SHC dismisses woman’s bail plea in children trafficking case

The Sindh High Court (SHC) has dismissed the bail application of a woman in a human trafficking case. Applicant Dr Mubina Cassum Agboatwala, chairperson of a non-government organisation (NGO) working in the health and education sectors, was booked by the Federal Investigation Agency for facilitating the transfer of abandoned infants to foreign nationals under the pretext of adoption.

The prosecution alleged that the NGO was not registered as an orphanage or duly authorised adoption agency under the relevant laws. She was book following an inquiry that was initiated on a letter of the US consulate general in Karachi highlighting alleged irregularities in inter-country adoptions processed through the NGO.

The prosecution said the FIA collected various documents, including guardianship orders, correspondence with adoptive families and records from the social welfare department, and formed the opinion that despite absence of requisite authorisation, the applicant and her associates had arranged custody of minors for foreign families without intimation to police or child protection authorities.

A counsel for the applicant submitted that the applicant was a 66-year-old medical professional, social worker and chairperson of a duly registered welfare organisation engaged in health and educational services for over two decades.

He submitted that infants in question were abandoned children who were placed with adoptive parents through lawful guardianship orders passed by competent family courts under the Guardians and Wards Act, 1890, after publication of notices and observance of due process.

He said that there was no allegation or evidence of coercion, deception, exploitation or monetary gain — ingredients essential to constitute the offence of trafficking in persons under the Section 3 of the Prevention of Trafficking in Persons Act, 2018.

He submitted that the entire evidence was documentary in nature, investigation stood concluded, and the challan had been submitted; hence, no recovery or further interrogation was required.

The counsel submitted that the alleged acts pertained to a period prior to the promulgation of the said Act, and retrospective application of a penal law was constitutionally barred. He requested the high court to grant bail to woman being senior citizen with no criminal antecedents.

A federal law officer opposed the bail and argued that the allegations against the applicant were of a serious and sensitive nature involving cross-border transfer of minors, which warranted a cautious approach.

He submitted that the applicant’s NGO was not authorised to function as an orphanage or adoption agency and repeated filing of guardianship petitions containing identical narratives of abandonment reflected a systematic pattern suggestive of fabrication and misuse of judicial process.

A single bench of the high court comprising Justice Jan Ali Junejo after hearing the arguments observed that the record disclosed certain significant aspects that could not be lightly ignored. The SHC observed that non-registration of NGO as an orphanage, and its failure to report allegedly abandoned children to police, the Child Protection Bureau or any competent authority constituted a grave breach of statutory obligations under the child welfare regime.

The high court observed that use of identical facts and templates in multiple guardianship petitions reflected a discernible pattern of falsification while processing of passports and visas on the basis of NGO-issued documents indicated coordination extending beyond mere humanitarian activity.

The SHC observed that several adoptive parents were not present in Pakistan at the relevant time of custody transfer, yet judicial orders were procured in their favour, and two minors were personally retained by the applicant without following any lawful adoption procedure.

The high court observed that these facts, when considered collectively, disclosed prima facie a chain of conduct that squarely fell within the definitions of “recruitment, transfer, and receipt of children for the purpose of exploitation” as contemplated under the Section 3 of the Prevention of Trafficking in Persons Act, 2018.

The bench observed that there existed reasonable grounds to believe that the applicant was directly involved in the systematic facilitation of illegal transfer of minors abroad. The SHC observed that the record reflected that the applicant remained unavailable for arrest for a considerable period, and the investigation was still in progress, which further militated against the grant of bail.

The high court observed that the case did not attract the principle of further inquiry within the meaning of the Section 497(2) of the Code of Criminal Procedure nor did it fall within the ambit of the discretionary relief contemplated under the first proviso to the Section 497(1) of the CrPC, and dismissed the bail application.