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Tayyaba case: IHC increases sentence to lower court judge, his wife

By Faisal Kamal Pasha
June 12, 2018

ISLAMABAD: A division bench of the Islamabad High Court (IHC) here on Monday upheld and increased the sentence, earlier awarded by a trial IHC single bench to a suspended lower court judge Raja Khurram Ali Khan and his wife Maheen Zafar; the both husband and wife convicted for ill-treatment and torturing a juvenile housemaid Tayyaba Bibi.

The IHC division bench comprising Justice Athar Minallah and Justice Miangul Hassan Aurangzeb allowed an appeal by the state through Advocate General, Islamabad, (AGI) Tariq Mehmood Jehangiri and increased the sentence from one year to three years imprisonment with Rs50,000 to both husband and wife each. In case of default in payment of fine, the defaulter shall undergo simple imprisonment for a period of two months in addition, the division bench said. Previously, the IHC single bench comprising Justice Aamer Farooq on April 17 had awarded sentence to both husband and wife under Section 328-A of Pakistan Penal Code (PPC) for ill-treatment (neglect and abandonment) meted to the child and the single bench had rejected other charges of torture and causing disappearance of Tayyaba by Khurram Ali Khan.

The division bench, however, also convicted the couple under Section 201 PPC and sentenced for six months imprisonment that is related to “causing disappearance of evidence of offence, or giving false information to screen offender”. With that, the division bench further convicted Maheen Zafar under sections 337 A (i) “causing hurt to any person” and 337 F (i) of PPC that is related to compensate a person for causing him injury. The bench noted in its order: “There can be no compensation in monetary terms for the anguish suffered by the victim, an innocent, helpless and vulnerable child, but we feel that an amount of Rs500,000 may be a reasonable symbolic payment as 'daman' to Tayyaba Bibi as compensation for the agony which she had to suffer. We, therefore, hold Maheen Zafar liable for payment of daman.” the bench said. The IHC division bench also dismissed appeals filed by Raja Khurram Ali Khan and Maheen Zafar having been found without merit. Court cancelled their bail bonds and directed the police to arrest both the convicts.

State has been a complainant in this case that emerged in December 2016 when pictures of a badly wounded girl became viral on social media, and the incumbent Chief Justice Mian Saqib Nisar then took a suo motu notice of this issue. At the orders of the CJP, the IHC bench conducted trial in this case instead of a magistrate. After the trial, the IHC single bench announced its decision, both complainant and defendant had challenged the sentence dated April 17. State as a complainant had challenged the acquittal of the accused under sections 201, 337 A (i), 337 F(i), 342 and 506 (ii) of the PPC and sought enhancement of sentence.

Defendant Khurram Ali Khan and Maheen Zafar had also challenged the sentence. It is to mention here that the chief justice of Pakistan had directed the IHC to decide the appeals of the couple against sentence within one-week.

The IHC division bench, in its 46 pages judgment, has discussed the failure of criminal justice system and also expressed resentment over the role of police in protecting the citizens. While referring to the Suo Motu notice of the Supreme Court in the case, the bench observed, “It appears that only then the system started functioning for this victim of neglect, inhuman treatment and the worst form of abuse” as a medical board was thereafter constituted and proper investigations ensued.

“Without the publicity on the social and electronic media ultimately leading to the notice taken by the august Supreme Court, the criminal justice system was not responding to the plight of a battered and helpless child.”

The bench remarked that “We cannot restrain ourselves from recording our observations regarding the failure of the criminal justice system in protecting the most weak and vulnerable members of the society. The in charge of the concerned police station, namely Khalid Mehmood Awan, Inspector, received information regarding the plight of a child--Tayyaba Bibi-- on 28.12.2016. He also candidly admitted having received the heart wrenching photographs of an injured child on the same day, but he did not fulfill his obligations by putting the legal process into motion.

He also did not bother to respond to the report which was received at the police station pursuant, whereof, ruput No 24 dated 28.12.2016 was recorded. He seems to have been forced to move in the morning of 29.12.2016, apparently because of the inquiry ordered by the chief justice of this court, and the wide publicity of the images of an injured child on the social and electronic media.” The IHC bench, in its order, while mentioning details about the transportation of Tayyaba to the house of Raja Khurram Ali Khan as a domestic worker, has also criticised the violation of labour laws since the child was not of the age to enter into a labour contract and termed it child exploitation or trafficking under the United Nation laws.

The judgement says: “The protocol to prevent, suppress and punish trafficking in person especially women and children, supplementing the United Nations Convention against transnational organized crime adopted for ratification and accession by the General Assembly Resolution 55/25 dated 15-11-2000 provides under Article 3(c) that recruitment, transportation, harbouring or receipt of a child for the purpose of exploitation shall be considered 'trafficking in persons'. The bench also said that “Child labour can tantamount to the worst form of modern day slavery”. For handing over Tayyaba to Raja Khurram Ali Khan for domestic labour, Tayyaba’s father in exchange received a meagre amount of Rs. 18000/-. Her (Tayyaba) status was not different from a child who is a victim of trafficking and has to endure degrading treatment of being a virtual modern day slave, the division bench said.

AGI Tariq Mahmood Jehangiri had argued in this matter that the trial judge did not appreciated the evidence and has misread the same by extending benefit of doubt in favour of the appellants except in case of the offence under Section 328-A of the PPC. The division bench with the judgement disposed of in this matter.