Pakistan's prisons are vastly overcrowded. According to government statistics, 74,483 persons were in prison nationwide as of June 30, 1996, while the total capacity of the country's detention facilities was 34,014.1 Overcrowding is particularly severe in Punjab, where on February 28, 1998, there were 47,835 persons in prison,2 against a capacity of 17,271.3 Underlying the congestion in Pakistan's prisons is a breakdown in the criminal justice system. The failure of police to complete investigations on time, the reluctance of judges to grant release on bail, frequent adjournments of hearings, and a paucity of probation officers have all contributed to the prolonged pre-trial detention of persons charged with criminal offenses.
Child prisoners,4 who numbered over 3,700 at the end of 1997,5 are among the more conspicuous victims of this administrative and judicial neglect. The proportion who are under trial6-91 percent in Punjab-is even higher than the corresponding figure for adults,7 while the level of overcrowding that theyexperience is comparable in some facilities.8 The exceptionally low conviction rate for children (between 13 and 17 percent),9 coupled with the delays in their adjudication and the severely limited recreational and educational opportunities in Pakistani prisons, means that most spend months or even years in needless and damaging confinement. As children, they are also uniquely vulnerable to ill-treatment and sexual abuse-both in police lockups, where many are illegally held for extended periods, and in prisons.
A large majority of children in Pakistani prisons are detained on charges of murder, causing hurt with a dangerous weapon, theft, dacoity,10 prohibition,11 and zina (sexual acts outside of marriage). Of these, the first four are defined by the Pakistan Penal Code. Much of the code is retained from the colonial period, although significant portions-notably those governing murder and other "offences against the human body"-have been amended to bring them into accordance with Islamic law. The Penal Code sets the age of criminal responsibility at twelve,12 with children between the ages of seven and twelve deemed criminally responsible if they have "attained sufficient maturity of understanding to judge...the nature and consequences" of their "conduct on that occasion."13 Children aged seven and older are therefore potentially eligible for the full range of penalties provided for in the code, including death and life imprisonment.
Prohibition and zina are defined under a parallel body of criminal law: the Hudood Ordinances. The Ordinances were promulgated in 1979, two years after a coup by Army Chief of Staff General Zia-ul-Haq that ushered in more than adecade of military rule and a sweeping program of Islamizing Pakistan's laws and legal institutions. Besides the two aforementioned offenses, the Hudood Ordinances include certain crimes against property as well as false accusations of zina. In the event of a conflict between the ordinances and the Penal Code, the ordinances' provisions prevail.
The most far-reaching of the Hudood Ordinances is that governing zina, which in addition to criminalizing extra-marital sex, establishes separate ages of majority for men and women and dramatically narrows the definition of rape. The promulgation of the Zina Ordinance was followed by a sharp increase in the number of women in prison.14 While the number of female children in Pakistan's prisons remains low,15 those accused of zina account for a grossly disproportionate share of the cases. Of the fourteen girls in Punjab prisons who remained under trial at the end of February 1998, according to official statistics, eleven were charged under the Zina Ordinance.16 The Lahore-based NGO, AGHS Child Rights Cell, which recorded a significantly higher figure for girls in Punjab prisons under the age of eighteen-thirty-three-found that eighteen were charged under the Zina Ordinance.17
The Zina Ordinance defines the age of majority as sixteen for females and eighteen for males, or the attainment of puberty for either.18 Because the promulgation of the Zina Ordinance entailed the abolition of Pakistan's statutory rape law, girls as young as twelve have been prosecuted for having extra-marital intercourse under circumstances that would previously have mandated statutoryrape charges against their assailant.19 In addition, attaining majority at puberty exposes young children to the prospect of hadd (Quranic) punishments, including whipping, amputation, and death by stoning. For minors, the maximum punishment for zina offenses is either imprisonment for up to five years, a fine, or both. Minors may additionally be sentenced to receive up to thirty lashes of a whip.20 It should be noted, however, that sentences to hadd punishments must be confirmed by an appellate court,21 and that no hadd punishments have been carried out to date.
Although there is a juvenile justice bill pending before Pakistan's Senate, discussed in Chapter VII of this report, Pakistan presently lacks a federal juvenile justice law. Two of the country's four provinces, Punjab and Sindh, have enacted juvenile justice laws, but only in the city of Karachi are the rudiments of a juvenile justice system in place. There are no juvenile justice laws operative in Baluchistan or the North-West Frontier Province.
In July 1955, Sindh's provincial legislature enacted the Sindh Children Act, a juvenile justice and child protection law that succeeded the pre-partition Bombay Children Act of 1924. Like most legislation in Pakistan, the Sindh Children Act included a provision stating that it would come into force only when the relevant government office-in this case, the provincial Home Department-published a notice to that effect in its official gazette. However, the act remained dormant for nearly twenty years, owing in part to Sindh's merger in October 1955 into the new administrative unit of West Pakistan. In 1974, following Sindh's reconstitution as a province, the act was applied to the divisions of Hyderabad and Sukkur, and two years later, to Karachi.22
The provincial legislature of Punjab passed a modest juvenile justice law, the Punjab Youthful Offenders Act, in 1952, but subsequently failed to enforce it. The Punjab Youthful Offenders Ordinance of 1983 repealed the province's earlier juvenile legislation. The new law was closely modeled on the juvenile justice provisions of the Sindh Children Act, in most cases replicating its language. However, the law remained entirely inoperative until 1994, when it was broughtinto force in Punjab's Sahiwal district as part of an unrealized experiment in juvenile justice.23
10 "When five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and persons present and aiding such commission or attempt, amount to five or more, every person so committing, attempting, or aiding is said to commit dacoity." Pakistan Penal Code, Sec. 391.
11 The Prohibition (Enforcement of Hadd) Order, 1979, forbids Muslims in Pakistan from manufacturing, selling, possessing, or consuming any intoxicant.
12 Pakistan Penal Code, Sec. 82
14 "The number of women in prison at any moment...soared from as few as 70 in 1980 to as many as 4,500 in 1990." Human Rights Watch, Double Jeopardy: The Abuse of Women in Pakistan (New York: Human Rights Watch, 1992), p. 37.
15 There were twenty-six juvenile females in Pakistan's prisons-excluding those in the interior of Sindh province-at the end of 1997, according to data collected from the provincial prisons departments. Ahmad et al, The State of Juvenile Prisoners in Pakistan 1997, p. iv. This figure may substantially underrepresent the number of girls in prison. See note 17.
16 Prisons Department, Government of Punjab, "Crime-Wise/Section-Wise Monthly Population Statement...."
17 AGHS noted that girls are seldom counted separately from adult women by prison officials, and that its data were based on reports from two Punjab prisons, Multan West District Jail and Gujranwala District Jail, as well as information that it gathered in a program for women prisoners. AGHS Child Rights Cell, "Children in Prisons: Punjab Report," December 1997.
18 Offence of Zina Ordinance, 1979, Sec. 2(a).
19 See Human Rights Watch, Double Jeopardy, p. 149, Note 124, citing Women Living Under Muslim Laws, "How Far Are the Penal Laws Effective in Protecting Women," Dossier #3 (1988), p. 33.
20 Offence of Zina Ordinance, 1979, Sec. 7.
22 See generally Ilyas Khan, Laws Relating to Children (Karachi: Pakistan Law House, 1997), pp. 6-7.
23 Letter to members of parliament, from Hina Jilani, Director, AGHS Child Rights Cell, December 5, 1998.