ISLAMABAD: The Supreme Court (SC) on Friday set aside the verdict of Islamabad High Court (IHC), extending the jail sentence of Raja Khurram Ali Khan, former judge and his wife convicted in 2018 for torturing a young domestic worker named Tayyaba.
A three-member bench of the apex court headed by Justice Mushir Alam and comprising Justice Ijazul Ahsen and Justice Yahya Afridi issued a verdict in the appeals filed by Mst Maheen Zafar and Raja Khurram Ali Khan against a common judgment dated 11.06.2018 rendered by the IHC division bench in the two appeals filed against the judgment rendered by the IHC single bench dated 26.03.2018 in its original criminal jurisdiction arising from the crime registered as FIR No 483 dated 29.12.2016 in Police Station Industrial Area, Islamabad.
In June 2018, the IHC divisional bench, comprising Justice Athar Minallah and Justice Miangul Hassan Aurangzeb, on the state's appeal, increased the husband-wife duo's sentences to three years each.
"Keeping in view the principles and law and the facts and circumstances of the instant case, we are satisfied that there is no mitigating factor which would call for handing down the lesser sentence”, the IHC had held.
It had further held that the appellants are not worthy of any sympathy because the ill-treatment and neglect was willful and cannot be justified on any ground whatsoever. “They were aware and they deliberately and consciously made an innocent and helpless child to suffer tremendously," the judgment had held.
On Friday, the judgment authored by Justice Yahya Afrdi held that the conviction and sentence awarded to Raja Khurram Ali Khan for commission of the offence punishable under section 201 PPC is maintained.
“While maintaining his conviction under section 328-A PPC, the quantum of sentence enhanced from one year simple imprisonment to that of three years by the IHC division bench in its judgment dated 11.06.2018 is set aside”, the court ruled.
The verdict held that the judgment of the IHC division bench dated 11.06.2018 is, accordingly, modified.
The court ruled that the quantum of sentence for the offence under section 328-A PPC decided herein being the subject matter of another appeal pending before this court (The State v. Raja Khurram Ali Khan and another (Criminal Petition No 721 of 2018)) shall finally be decided therein and disposed of the appeal.
“Lest this court passes any final finding on the appeal of the state regarding quantum of sentence, suffice it to state there is sufficient evidence warranting enhancement of the sentence awarded to Raja Khurram Ali Khan and Mst Maheen Zafar for the commission of the offence punishable under section 328-A PPC by the IHC single bench in its judgment dated 26.03.2018”, says the verdict.
The court while exercising its jurisdiction under Article 187 of the Constitution to serve “complete justice”, issued notice to Raja Khurram Ali Khan and Mst Maheen Zafar to explain as to why their sentences for commission of the offence punishable under section 328-A PPC passed by the IHC single bench in its judgment dated 26.03.2018 not be enhanced according to law.
“We are mindful of the fact that the essential mandatory notice for the enhancement of the sentences was not served upon the accused-convicts by this court while hearing the present appeals”, the court noted and added that in these circumstances, rendering any finding thereon, without serving notice upon the parties, and in particular, the convicts-accused would surely prejudice them.
“Therefore, ends of justice require this court to serve the requisite notices upon the parties, in particular, the accused-convicts, to explain as to why their sentences for commission of the offence punishable under section 328-A PPC not be enhanced,” the verdict held.
The court further noted that it was informed that Raja Khurram Ali Khan and Mst Maheen Zafar are presently serving their sentences in Adiala Jail, Rawalpindi. The court, therefore, directed the Superintendent of Adiala Jail, Rawalpindi to inform the said inmates about the present notice, with due acknowledgments to be returned to the Registrar of this court.
Similarly, the court in criminal appeal filed by (Mst Maheen Zafar v. Tayyaba Bibi and another) held that the conviction and sentence awarded to Mst Maheen Zafar for commission of the offence punishable under sections 337-A(i) and 337-F(i) of the PPC are maintained.
“While maintaining her conviction under section 328-A PPC, the sentence enhanced from one year simple imprisonment to that of three years by the IHC division bench in its judgment dated 11.06.2018 is set aside”, says the verdict.
The detailed verdict held that the right of appeal is a substantive right, which can only be granted by an express provision of an enactment, and cannot be inferred or implied therefrom.
“Only a convict has a right of appeal before the IHC division bench to challenge the conviction and sentence passed by the single bench of the High Court in its original criminal jurisdiction under the sub-section 1 of section 411-A CrPC and that too, in three circumstances.
Firstly, as a matter of right “on a question of law” (under clause a); secondly, with the leave of the court, on a question of fact or on a mixed question of law and fact (under clause b); and thirdly, with the leave of the court, where the law has not provided any fixed quantum of sentence (under clause c), the court ruled.
The court noted that this right of appeal of the convict before the division bench of the High Court under the sub-section 1 of section 411-A CrPC is subject to the condition that he has no remedy to challenge the decision passed by the single bench of the High Court, before the Supreme Court under Article 185 of the Constitution of the Islamic Republic of Pakistan, 1973.
The court further held that the provincial government has a right of appeal under sub-section 2 of section 411-A CrPC to file an appeal before the division bench of the High Court, against an order of acquittal of an accused passed by the single bench of the High Court in exercise of original criminal jurisdiction.
“The legislature has not provided any right to the state or the complainant to seek the enhancement of the sentence passed by the single bench of the High Court under any provision of the CrPC,” says the verdict.
The court held that single bench of the High Court, while exercising its original criminal jurisdiction, is not a court inferior or subordinate to the High Court.
“Thus, the division bench of the High Court under its appellate, revisional or inherent jurisdiction provided under the CrPC cannot enhance a sentence passed by a single bench in its original criminal jurisdiction”, the court ruled. Similarly, the court held that the state hasthe remedy to seek the enhancement of the sentence passed by the single bench of the High Court, by filing a petition of leave before it under clause 3 of Article 185 of the Constitution.
On December 29, 2016, Tayyaba, a 10-year-old domestic helper, was recovered from the house of the judge after receiving complaints of torture from neighbours. The issue had sparked outrage on social media and led to calls for strict and swift justice.
Subsequently, a first information report (FIR) was filed against the judge and his wife at the I-9 police station. An inquiry report by the police found that the judge's wife was responsible for torturing the child maid, and held Khurram responsible of indirect criminal negligence.