Under common law – the system of legal dispensation followed in most countries around the world, including Pakistan – there are two basic ingredients necessary to prove the commission of a criminal offence: 1) actus reus, and 2) mens rea. In general terms, the first of these two – the actus reus – is the physical act (or omission) of committing the offence. The second – mens rea – is the corresponding requisite intent, necessary for proving that the alleged offender had desired to commit the said offence. And in a chain of unbroken precedents, dating back hundred of years, common law courts have held that only when the actus reus and the mens rea are both present, can a person be convicted of a criminal offence.
This fundamental idea in the criminal justice system – heck! – in common sense – did not feature into any consideration, either with the law enforcement agencies or with the district judiciary when, on 1st February, 2014, the Muslim Town Police Station, registered an FIR against, inter alia, nine-month old Musa, for offences including attempted murder . As it transpired, Musa was booked with around 30 others co-accused, for throwing rocks at gas company officials who were carrying out an anti-theft inspection in the low-income Ahata Thanedaran neighborhood of Lahore. Inspector Kashif Muhammad, who attended the alleged crime scene, wrote in his investigation report, that it was a case of “attempted murder.” Musa made his court appearance on Thursday, crying in the arms of his grandfather, Yasin, who is a 50-year old laborer. Additional District and Sessions Judge, Rafaqat Ali Qamar, granted “bail” to the child (who could not sign his name, of course, and started to cry as his thumb imprint was taken). The learned judge did not have the wisdom or the knowledge to dismiss charges against Musa, whose trial, along with other co-accused, shall commence on the next date of hearing, 12th April, on charges of planning the murder, threatening and interfering in affairs of the State.
Almost all criminal justice systems provide an unqualified immunity to children below a certain age to be prosecuted for criminal offences. The self-evident wisdom behind this jurisprudential ethos rests in the consummate belief that children (under a certain age) are incapable of formulating the mens rea (intent) necessary for the commission of a criminal offence. Swearing fidelity to this cardinal principle, the Pakistan Penal Code 1860 (PPC) unequivocally states, in section 82, that “nothing is an offence, which is done by a child under seven years of age.” Furthermore, section 83 of the PPC declares that nothing is an offence done by a child between seven and twelve years old“ who has not attained sufficient maturity of understanding to judge of the nature and consequences of his conduct on that occasion.” The provisions of section 82 and 83 of the PPC show that a child, below the age of seven years, is incapable of committing an offence because he is a doli incapax, incapable of forming or possessing the necessary mens rea for any offence.
The superior courts of Pakistan, at numerous instances, have reinforced their commitment to this ideology. A prominent example of this commitment was demonstrated when the courts struck down the Juvenile Justice System Ordinance (Federal Ordinance No. XXII of 2000), which stipulated that a child between the ages of seven and twelve years shall be deemed capable of possessing the necessary mens rea for an offence, unless it is established that such child “has not attained sufficient maturity of understanding to judge the nature and consequences of his conduct.” A Full Bench judgment of the honorable Lahore High Court, in the case of Farooq Ahmed v. Federation of Pakistan (PLD 2005 Lahore 15), struck down the law as being unreasonable, unconstitutional, and offending the very fabric of age-old principles of criminal justice.
The question that begs answering, therefore, is that if our legislative provisions as well as jurisprudential ideology, leaves no doubt as to the correct position in law, how and why was an FIR registered, and case proceeded, against 9 month old Musa? Is our law enforcement, the very instrument through which the criminal justice system is implemented in our land, really so clueless as to the mandate and contours of the law? Is there any training that the police officer – especially at the thana level – go through, in terms of the provisions and mandate of Criminal Procedure and Penal Code? Do they receive instructions about the due process of investigation? Are they taught the codal formalities of the legal regime, under which they dispense their uniformed duties? Is the lower judiciary really so ignorant about how to apply and enforce the principles of our jurisprudence? Did they learn nothing from their training in the red-brick building of Punjab Judicial Academy? Or is the curriculum and oversight of the Academy, while operational in name, of no real consequence to the improvement and reform of our judicial intellect? Did no one in the police station (at the time of registration of the FIR), or in the law chambers (at the time of engaging a legal counsel), or in the courtroom (at the time of granting bail to Musa), have the sense, nay, the humanity to scream and point out the mockery of the entire process of law?
There can be no doubting the fact that we live in troubled times. As a nation, we are in the clutches of unprecedented violence and terrorism, and the strategy of the state to solve the problem has now been reduced to shaking hands with the murderers. We have a criminal justice system that is not only inefficient in encountering the surge of violent crimes, but is also broken in effectively bringing the perpetrators to justice. We have a legal regime that allows minors (Rimsha Masih) to be charged with crimes that are punishable by death. We live in an age when intelligence agencies live outside the empire of law, and our superior judiciary over the past few years (under the able stewardship of now retired Iftikhar Chaudhary) has been consumed with the headline cases. And in this quagmire of debilitating issues, Musa, Rimsha Masih, the silent victims of acid violence, of karo-kari incidents, and those bearing the brunt of plain old oppression by the waderas/elites, are slipping deeper into the quicksand of their circumstances.
If there is one issue, just one singular problem, that our State, its law enforcement, and perhaps most importantly our judiciary, must purposefully and immediately address, it is to infuse efficiency and confidence into the dispensation of criminal justice. Only a rethinking of our legal paradigm, reinvesting in our law enforcement capacity, a retraining of our lower judiciary, and a reinforcing of our judicial ethos and resolve, can fix the rot in our national soul. And this process, of crawling back to the light, must start yesterday!

n    The writer is a lawyer based in Lahore. He has a Masters in Constitutional Law from Harvard
    Law School.