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Petitioner: Raja Khurram Ali Khan and another VS Respondent: Tayyaba Bibi and another
Court Name: Islamabad High Court Judge(s): Athar Minallah, Miangul Hassan Aurangzeb Title: Raja Khurram Ali Khan and another vs Tayyaba Bibi and another Case No.: Crl. Appeal No. 154 of 2018 Date of Judgment:2018-06-04 Reported As: 2018 IHC 62 Result: N/A
Judgment ATHAR MINALLAH, J.- Through this consolidated judgment we intend to decide the instant appeal along with Petition for Leave to Appeal No. 02/2018 titled "The State through Advocate General, Islamabad v. Maheen Zafar and another". The instant appeal has been filed by Raja Khurram Ali Khan and his wife, namely , Maheen Zafar (hereinafter collectively referred to as the "Appellants "). The latter have assailed the judgment dated 17-04-2018, rendered by the learned Single Judge in Chambers, whereby they have been convicted and sentenced in the following terms: "In view of above the prosecution has been able to prove the charge under section 328-A PPC, hence the accused persons Mst. Maheen Zafar and Raja Khurram Ali Khan both are jointly responsible for it and are accordingly convicted. They are acquitted of other charges. Raja Khurram Ali Khan and Mst. Maheen Zafar are punished with imprisonment of One Year simple imprisonment with fine of Rupees 50,000/- each and in default to serve one month imprisonment. The accused shall have the benefit of section 382-B Cr.P.C. The accused are on bail hence shall be arrested immediately to serve the sentence." 2. The State, through the connected petition has sought leave under section 411 A (2) read with clauses (b) and (c) of sub section 1 ibid of the Criminal Procedure Code, 1898 challenging acquittal under sections 201, 337 A(i), 337 F(i), 342 and 506 (ii) of PPC and enhancement of sentence handed down for the offence of section 328 A of PPC vide judgment dated 17-04-2018. 3. The facts are that the case relates to offences committed against Tayyaba Bibi who, at the relevant time, was less than ten years old. She is the eldest amongst the four children of Muhammad Azam, son of Ahmad Khan (PW 13). Tayyaba Bibi was handed over to one Ms Nadra Bibi in August, 2016 for transporting her to Islamabad for employment. The latter further handed over the child to one Ms Sehrish Bibi who is sister-in-law of Raja Khurram Ali Khan. The child was ultimately left at the house of Raja Khurram Ali Khan to be employed as a domestic worker. The responsibilities of the young child, inter-alia, included taking care of the appellants' son
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and working in the kitchen. An amount of Rs.18,000/- was paid to the father of Tayyaba Bibi. There was no formal contract of employment nor was the consent of the child obtained. In any case, the child lacked the capacity to contract when she was handed over for being transported to another city to be engaged in domestic work. It appears from the recorded evidence that this arrangement had taken place in October, 2016. Raja Khurram Ali Khan was a Judicial Officer in the District Judiciary of Islamabad Capital Territory while his wife, namely Maheen Zafar, was a housewife. The Appellants had young children of their own. According to the depositions of Ms Mariya Hayat, PW-2, and her mother Ms Naila Khizar, PW-3, they first saw Tayyaba Bibi on 26-12-2016. The said witnesses are the next door neighbours of the appellants. Tayyaba Bibi told them that the Appellants had left her alone and that the house was locked. She was shivering and exposed to the hazards of cold weather. Since there was no one else at home, the said witnesses called her to their house. They tried to contact Raja Khurram Ali Khan so as to inform him about the presence of Tayyaba Bibi in their house but in vain. On his return he was informed and it was then that he took the child from the neighbour's house at about 9.30 pm the same evening. The next time the two witnesses saw Tayyaba Bibi in the house of Raja Khurram Ali Khan was on 28-12-2016 when they found her in an injured condition. They also informed another neighbour, namely Ms. Humaira Haroon wife of Haroon Khan Tareen, PW-4, who came to their house. From the other side of the wall dividing the two houses, Tayyaba Bibi told them that her injuries were caused due to beating and exposure to a burning stove by Ms Maheen Zafar. Ms. Humaira Haroon took photographs from her cellular phone. The photographs, Ex Pw 4/1-3, were later retrieved from the said phone by the National Response Centre for Cyber Crime Forensic Laboratory, Islamabad and taken into possession vide recovery memo Exh.PW-9/8. The photographs were put on the social media and were also received by the Incharge of the Police Station on his cell phone through WhatsApp. The outrageous photographs seemed to have caught the attention of the electronic media and pursuant thereto the Chief Justice of this Court ordered an enquiry into the matter on 28-12 2016. Notice under Article 183(4) of the Constitution was also taken by the august Supreme Court. 4. Pursuant to information received from Ibrar Sherazi,posted as Niab Court with Raja Khurram Ali Khan, Ruput No. 24 was recorded in the Daily Diary of the Police Station, Industrial Area on 28-12 -2016. The time of receiving the information recorded in the said ruput is 10:30 a.m. The Ruput No. 24, dated 28-12-2016, was brought on record as Exh.PW -16/B. According to the information recorded therein, Tayyaba Bibi, said to be employed as a .,~i.A4(domestic servant) was missing since 27-12-2016. As per the testimony of Khalid Mahmood Awan, Inspector/Incharge Police Station Industr ial Area I-9, Islamabad, PW-16, a lady had also informed him on 28-12- 2016 regarding Tayyaba Bibi's condition and that he had sent a Police Constable to search the house of the appellants. The photographs of Tayyaba Bibi in a severely injured condition were received by the Incharge Police Station on his WhatsApp account. Mr Khalid Mahmood Awan, PW-16, testified that he had contacted Raja Khurram Ali Khan on telephone on 29-12-2016 and then visited his house where he found Tayyaba Bibi in an injured condition. He took her to the Pakistan Institute of Medical Sciences (hereinafter referred to as the "PIMS "). The child was examined at about 11:16 a.m. by Dr Muhammad Naseer , Principal CMT and Head of Department PIMS, Islamabad, PW 5, in the presence of Dr Nasreen. The Medico Legal Report, Exh.P-5/A, was prepared on 30-12- 2016. The description of the injuries recorded in the report is as follows: "(i) There was swelling and blackening of right upper and lower eye lid and conje ctivitis of right eye which was ecchymosed. (ii) There was swelling and burn marks superficial in nature on the Dorso-nedial aspect of left hand. (iii) An abrasion on right side of face and over left ear, the nature of injuries were declared for wound No. 1 and 3, falling under sections 337 A(1) for wound No. 2, 337-F(1) PPC. (iv) Probable duration of injuries was about 24 hours. This report was handed over to police on 30.12.2016 at 02.30 pm and same bears my signature and stamp as exh.PW -5/A. " 5. PW-16 further deposed that on his instructions Shakeel Ahmed, ASI (PW-10), took Tayyaba Bibi to the office of Additional Deputy Commissioner (General) where Mrs. Nishaa Ishtiak, Assistant Commissioner Potohar , PW-7, was also present. The latter took Tayyaba Bibi to her office where she narrated the facts which were reduced in11
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writing. The said document was exhibited as PW-7/A and pursuant thereto FIR No. 483/2016, dated 29-12-2016, Exh.PW -14/B, was registered at the Police Station Industrial Area I-9 Islamabad . It was alleged in the FIR that Tayyaba Bibi who worked as a domestic servant in House No. 50 street No. 12, I-8/1, Islamabad was injured by Maheen Zafar by placing her hands on the hot stove besides being beaten by articles described therein. She was locked in a storeroom located next to the water tank and then at night in the servant quarter . It was alleged that she was consistently beaten and that food was not provided to her. It was also alleged that Tayyaba Bibi's parents did not inquire about her. From the office of PW-7, Tayyaba Bibi was sent to the Child Protection Bureau pursuant to a written request, Exh.PW -7/B. 6. It is important to note that it is an admitted position that on 29.12.2016 Khalid Mehmood Awan, PW 16, had recorded a video statement of Tayyaba Bibi and the CDs thereof were placed on record as Ex. DA. This fact was not mentioned by him in his examination in chief, when he had entered the witness box as PW 16. However , he admitted making such a video in his cross examination. The learned counsel for the Appellants has laid great stress on this statement. We saw this recording carefully and were astonished at how a male voice was asking leading questions from a visibly traumatized and injured child while some female was interjecting. It appears that the statement was recorded before the child was taken to PIMS because the injuries had not been treated by then. PW 16 admits that he was the one who was asking the leading questions. This recording unambiguously shows that the leading questions being asked by PW 16 and the interjections by a fema le voice, prompting the desired answers from an injured and visibly traumatized child, were definitely aimed at achieving desired results. The failure to mention this recording during the examination in chief and the manner in which the child was dealt with raises serious concerns regarding the conduct and professionalism of the witness who, at the relevant time, was the Incharge of the concerned Police Station. The recording of the statement in this manner was indeed despicable conduct on the part of the investigators. 7. On 30-12-2016, a Special Investigation Team was constituted to investigate the case. Several couples surfaced who claimed to be the parents of Tayyaba Bibi, despite the fact that the Appellants claimed to have known her parents. On 04-01-2017 an incomplete report under section 173 of the Code of Criminal Procedure, 1898 (hereinafter referred to as the Cr.P.C.") was submitted before the learned trial Court. On 09-01-2017, PW-16 took into possession the mobile phone, Exh.PW -9/1, vide recovery memo Exh. PW-9/A, belonging to Ms. Humaira Haroon, PW-4. On 15-01-2017, PW-16 recovered a Wiper (Exh.PW -8/1), Burner Cover (Exh.PW -8/2), 'Dohi' (Exh. PW-8/3) and Stove Stand (Exh.PW -8/3) from the kitchen of the house of the appellants. The said recovery was made on the information provided by Tayyaba Bibi and according to her statement these were the articles which had been used to cause the injuries. Site plan Exh.PW -16/A was also prepared by PW-16. Sections 337-A(i), 337- F(i), 201 and 328-A of the Pakistan Penal Code, 1860 (hereinafter referred to as the PPC") were also added. 8. On 04-01-2017 a Medical Board was constituted at PIMS which examined Tayyaba Bibi on 09-01-2017. The findings were recorded in the written report, Exh.PW -6/A and Exh.PW -6/B. The Medical Board was headed by Dr. Tariq Iqbal, Professor of Burns Surgery , Head of Department, Burn Care Center , PIMS, who entered the witness box as PW-6. According to the report of the Medical Board, multiple injuries were found on the body of Tayyaba Bibi, of which injuries at serial numbers 3, 4, 5 (a, c, d & e), 6 (a, c, d & e), 9 and 11 were described as 'healed'. The other injuries were mentioned as 'Trauma'. The interim and final reports of Forensic Analysis were brought on record as Exh.PW -11/A and Exh.PW -11/B. The charges were framed vide order dated 16-05-2017, for offences under sections 342, 337.A(1), 337-F(i), 506 (ii), 328-A and 201 of the PPC. The Appellants pleaded not guilty and, therefore, they were tried for committing the offences described in the charge. The prosecution produced sixteen witnesses while the Appellants preferred not to be examined on oath and, therefore, they recorded their respective statements under section 342 of the Cr.P.C. After the recording of evidence and affording an opportunity of hearing to the learned counsels for the Appellants and the learned Advocate General, Islamabad the trial Court, vide judgment dated 17-04-2018, convicted and sentenced the Appellants in the terms reproduced above. The Appellants were found guilty of committin g the offence under section 328-A of the PPC while they were acquitted relating to the other of fences by extending benefit of doubt.
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9. Raja Rizwan Abbasi, ASC, appeared for the Appellants and contended that; the Appellants were falsely involved in the case for ulterior motives; Raja Khurram Ali Khan, as a Judicial Officer, had served to the best of his abilities and had rendered judgments without fear and favour; he had rendered judgments which were detrimental to the interests of influential persons; some media houses had also been affected and, therefore, they had created an unnecessary hype which amounted to a biased media trial; Tayyaba Bibi was well looked after by the appellants; Tayyaba Bibi had given statements on three different occasions and had not alleged that she had been assaulted, tortured or in any manner ill treated by the appellants; the recorded version of the statements of Tayyaba Bibi shows that she was well looked after by the appellants; PW-7 was an interested person and had worked in a news agency which had highlighted the issue of Tayyaba Bibi through biased reporting; the police officials were influenced by the media trial and the proceedings which were taken up by the august Supreme Court; witnesses were not reliable; the neighbours of the Appellants i.e. PW-2, PW-3 and PW-4 had raised false alarms; Tayyaba Bibi remained missing since 27-12-2016; ruput no. 24, dated 28-12-2016, was not proved in accordance with law; the written complaint, on the basis whereof the criminal case was registered, was neither signed nor were the thumb impressions of Tayyaba Bibi affixed thereon; the criminal case i.e. FIR was, therefore, registered illegally; the prosecution was not able to prove the case against the appellants; the examination-in- chief of Tayyaba Bibi as PW-1 cannot be relied upon; she was tutored while she was in the custody of the officials and, therefore, she gave a misleading statement against the appellants; Tayyaba Bibi, being a child, could not have been believed by the learned trial Court; evidence of a child witness ought to be subjected to a close and careful scrutiny and should not be relied upon until and unless it was corroborated by some strong circumstances; it is settled law that children are the most un-trustworthy class of witnesses because of their tender age; reliance has been placed on 'Jalwanti Lodhin vs. The State', [AIR 1953 PATNA 246], 'Muhammad Ali Jan vs. the State and another ', [PLD 2015 PESH 134], 'Abbas Ali Shah vs. Emperor ' [AIR 1933 Lah 667], 'Muhammad Feroze vs. The State', [2003 YLR 2234 ], 'Muhammad Feroze vs. The State', [PLD 2003 KAR 355] & 'Muhammad Feroze vs. The State', [NLR 2003 CRI 474]; the contents of the complaint attributed to Tayyaba Bibi were later denied by her when she entered the witness box as PW-1; the Appellants have been made scapegoats; cross examination is a continuation of the statement and more important than the examination in chief; the learned trial Court has misread the evidence; a single circumstance creating reasonable doubt in a prudent mind about the guilt of the accused makes the latter entitled to its benefit; no offence under section 328-A of the PPC was made out; neglect, ill- treatment and abandonment in the conte xt of 328-A has to be wilful; the expression 'wilful' requires proof that the offence was committed intentionally; no such proof was brought on record by the prosecution; reliance is placed on "The State v. Syed Aamir Shabbir" [2016 P.Cr. L J 286], "Muhammad Irfan v. The State" [2018 P Crl. L J Note 68], "Rahmatullah v. The State" [2018 P Crl. L J Note 31], "Mst. Saira Bibi v. Muhammad Asif and others" [2009 SCMR 946], "Mukhtar Ahmad v. The State" [2003 SCMR 1734 ], "Muhammad Akram v. The State" [2009 SCMR 230],"Saleem Muhammad and another v. The State and another" [2017 P Cr. L J 1391 ], "State v. Ali Asghar" [2017 P Cr. L J 349], "Sarfraz alias Safu and others v. The State" [2017 YLR Note 220], "The State v. Muhammad Asif Saigol and others" [PLD 2016 S.C. 620] . 10. Mr Tariq Mahmood Jahangiri, learned Advocate General, Islamabad has argued that; the learned trial Court did not appreciate the evidence and has misread the same by extending benefit of doubt in favor of the Appellants except in case of the offence under section 328-A of the PPC; the witnesses were reliable and trustworthy; the witnesses were consistent and the prosecution had established its case beyond a shadow of doubt; Tayyaba Bibi was less than 10 years old and she was subjected to ill-treatment in the house of the appellants; the Appellants had deliberately subjected a child to torture; she was locked out of the house and was left all alone when the Appellants had gone out on 26-12-2016; on the same date Tayyaba Bibi was brought from the house of the neighbours by Raja Khurram Ali Khan; because the cruel and inhuman treatment attracted media attention, the Appellants tried to hide Tayyaba Bibi because of her being severely injured; a false ruput through the Niab Court was recorded in the concerned Police Station; offences under sections 337.A(i), 337-F(i) and 201 of the PPC were made out; the offence under section 328-A of the PPC was also established by the prosecution beyond a shadow of doubt and there was no reason for awarding a reduced sentence; the Appellants had wilfully committed acts and omissions
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which had led to the consequences contemplated under various offences; reliance has been placed on the cases titled "Mirza Shaukat Baig and others vs. Shahid Jamil and others" [PLD 2005 S.C. 530], "Muhammad Amin Qureshi and another vs. The State" [2007 P.Cr.L.J. 105], "Abdul Ahad vs. The State and anoth er" [PLD 2007 Peshawar 83], "Om Parkash Gupta vs. State of U.P." [AIR 1957 S.C. 458], "Ali Ahmad and others vs. The State and others" [2013 P.Cr.L.J. 1763 ], "Nasir Khan vs. Qasim Khan and another" [2017 P.Cr.L.J. 130], "Said Zaman Khan and others vs. FOP through Secretary Ministry of Defence and others" [2017 SCMR 1249 ], "Muhammad Imran vs. The State and another" [2013 YLR 1409 ] and "Dad Muhammad alias Dada vs. The State" [2015 P.Cr.L.J. 944]. 11. The learned counsel for the Appellants and the learned Advocate General have been heard and the record carefully perused with their able assistance. 12. This case involves a child who, at the relevant time, was less than 10 years old. Her custody was given to a person, namely Nadra Bibi, so that she could be transported and employed as a domestic worker in another city. The object was exploitation of the child in return for gain which was to be received by her father. Nadra Bibi initially transported and handed over custody of the child to one Sehrish Bibi and then to the appellants. Raja Khurram Ali Khan is a law graduate and, at the time the offence was committed, he was holding the post of Additional District & Sessions Judge at Islamabad. His wife, namely Maheen Zafar, is a housewife and they have children of their own who are either of the same age as Tayyaba Bibi or younger. It is established from the evidence brought on record that Tayyaba Bibi was employed to look after the child of the Appellants and to work in the kitchen. Tayyaba Bibi was thus exposed to the hazards of the kitchen such as fire, hot surfaces, sharp knives, toxic chemicals etc. She was not admitted in any school and thus her right to education was also denied. Admittedly, neither was the consent of Tayyaba Bibi sought nor was her engagement as a domestic worker (servant) governed under a contractual arrangement agreed at arm's length. There were no fixed working hours nor was she paid the minimum wage determined by the State of Pakistan. Needless to mention that because of her age she was not even competent to contract. Tayyaba Bibi had been working at the residence of the Appellants as a domestic worker since October, 2016. The Protocol to Prevent, Suppress and Punish Trafficking in Persons 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, harboring or receipt of a child for the purpose of exploitation shall be considered 'trafficking in persons' even if it does not involve any of the means described in Article 3(a). Child has been defined under Article 3 (d) as meaning any person under eighteen years of age. This is an internationally accepted definition of 'trafficking of a child'. Child labour can tantamount to the worst form of modern day slavery . The Black' s law dictionary , Eighth Edition defines the expres sion 'slave' as 'a person who is wholly subject to the will of another; one who has no freedom of action, but whose person and services are wholly under the control of another . One who is under the power of a master , and who belongs to him ....". Likewise, 'slavery' is defined as 'The condition of a slave, that civil relation in which one man has absolute power over the life, fortune and liberty of another'. Child slavery is referred to exploitation of a child for someone else's gain. The significance of this discussion would be highlighted later. It is sufficient to say at this stage that Tayyaba Bibi, a child less than ten years old, was brought to the house of Raja Khurram Ali Khan for being engaged in domestic work and her responsibilities were of a nature which had exposed her to physical and psychological harm. She had no freedom of action and her life and liberty were completely in the control of Raja Khurram Ali Khan as long as she worked as a domestic worker . As it would become evident later, even when she had been injured her liberty was controlled by Raja Khurram Ali Khan. In exchange the latter had paid a meager amount of Rs. 18000/- to her father . Her 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. Whether this was 'wilful ill treatment' or 'wilful neglect' for the purposes of section 328-A of the PPC will be discussed in more detail later . 13. The Appellants had been living in the house where the events had taken place for about one and a half years. The house next door had been occupied by the occupants for more than twelve years. Having lived as neighbours for almost one and a half years, admittedly , none had any complaint against each other . Moreover , there was
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hardly any interaction till 26-12-2016 when Raja Khurram Ali Khan had visited the neighbours for the purpose of bringing Tayyaba Bibi back to his house. Ms Maria Hayat, PW-2, and her mother Ms Naila Khizar , PW-3, were the next door neighbours. Ms Nishaa Ishtiak, PW-7, was, at the relevant time, an Executive Magistrate/Assistant Commissioner and was closely known to them. Guldaraz Khan, PW-12, at the time of registration of the criminal case, was employed as a cook in the house of the next door neighbours i.e. PW-3 and PW-2. By the time he had entered the witness-box as PW-12 he was no more employed. What is established from the evidence without doubt is that there was no reason whatsoever for PW 2, PW 3, PW 4, PW 7, and PW 12, all independent witnesses, to depose falsely . Moreover , despite being cross examined, the veracity and truthfulness of their depositions could not be shaken. It was understood that Raja Khurram Ali Khan, holding a law degree and an exalted position in the District Judiciary of Islamabad, would have known the consequences of his actions and omissions more than a person of ordinary prudence. Needless to mention that it is settled law that a Judg e must wear all the laws of the country on the sleeves of his robe. Relian ce is placed on the cases titled "Iffat Jabeen vs. District Education Officer (M.E.E.) Lahore and another" [2011 SCMR 437], "Section Officer , Government of Punjab, Finance Department and others vs. Ghulam Shabbir" [2010 SCMR 1425 ], "Land Acquisition Collector and 06 others vs. Muhammad Nawaz and 06 others" [PLD 2010 SC 745 ]. 14. As noted above, the first interaction of the child Tayyaba Bibi with Ms Maria Hayat and Ms Naila Khizar was on 26-12-2016. They were not cross examined regarding two crucial facts which they had stated in their respective examinations in chief, firstly, the events of 26-12-2016 and secondly, that they saw Tayyaba Bibi in an injured condition on 28-12-2016 and the statement attributed to her. Guldaraz Khan, PW-12, further corroborated the statements of PW 2 and PW 3. There is also no reason to disbelieve the deposition of PW 7 namely Nishaa Ishtiak. The depositions of Ms…
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