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Petitioner: Raja Khurram Ali Khan VS Respondent: Tayyaba Bibi (minor) daughter of Muhammad JUDGMENT
Court Name: Supreme Court of Pakistan Judge(s): Ijaz-ul-Ahsan, Mushir Alam, Yahya Afridi Title:Raja Khurram Ali Khan vs Tayyaba Bibi (minor) daughter of Muhammad
JUDGMENT
Reported As: PLD 2020 Supreme Court 146, 2020 P SC (C rl.) 144, 2020 SCP 1 Result: Appeal disposed off Judgment JUDGMENT YAHYA AFRIDI, J. Through this judgment, we shall decide the three Criminal Appeals filed by the State, Mst. Maheen Zafar and Raja Khurram Ali Khan against a common judgment dated 11.06.2018 rendered by the Division Bench of the Islamabad High Court, Islamabad in the two appeals filed against the judgment rendered by the Single Bench of the Islamabad High Court, Islamabad 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 (FIR) . This Court had earlier , on 27.02.2019, granted leave in the present three appeals in terms that: "The learned Counsel for the private petitioners in Criminal Petition Nos.721 and 931 of 2018 states that the petitioners in these two petitions are husband and wife and were charged under sections 328-A and 201 of the Pakistan Penal Code (PPC) and the wife (petitioner in Criminal Petiti on No.931 of 2018) was also charged under section 337-A (i) and F(i) PPC. The couple was convicted for the said offence s and the maximum sentence imposed on them was one year simple imprisonment under section 328-A, and all the sentences were ordered to run concurrently . The accused-couple and the State filed appeals against the judgment of the Trial Court. The appeal filed by the accused-couple was dismissed and that by the State was accepted to the extent that the sentence with regard to their conviction under section 328-A PPC was enhanced from one to three years simple imprisonment. 2. The learned counsel for the accused-couple state that the child Tayyaba (PW-1) in her cross-examination had contradicted many essential ingredients of the prosecution case; that her father Muhammad Azam (PW-13) supported the couple; that he did not want to pursue the case against them and had compromised the case with them, though such compromise was not accepted by the Court. Therefore, under these circumstances the
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Appellate Court should have extended the benefit of doubt to the couple rather than increasing their sentences from one to three years under section 328-A PPC. 3. The learned Advocate General, Islamabad ("AG") states that the couple were lightly let off and the wife should also have been convicted under section 506 of the PPC and the State has prefe rred Criminal Petition No.823 of 2018 in this regard. He states that the Appellate Court did not attend to the charge under section 506 of the PPC, from which the wife was acquitted, and against which the appeal had been filed. The learned AG states that the child had twenty-two injuries on her body which showed that she was subjected to barbaric cruelty , therefore, in these circumstances the sentences of the couple were rightly increased under section 328-A PPC since there were no mitigating factors and that the wife should also have been convicted under section 506 PPC. The learned AG says that admittedly the child Tayyaba was working in the house of the accused-couple and her body bore many injuries in regard whereof the defence taken was that the injuries were from before Tayyaba was employed by them. However , no evidence was produced to prove this as required under Article 122 of the Qanun-e-Shahdat Order , 1984, the learned AG submits. He further states that the couple also did not testify on oath under section 340(2) of the Code of Criminal Procedure. The child was living with the accused and her body bore the marks of a large number of injures which was proof enough of their guilt coupled with the fact that she was not taken to hospital nor to a doctor for treatment. Reliance has also been placed upon the case of Saeed Ahmed v State (2015 SCMR 710 ). 4. Leave to appeal is therefore granted in all three petitions to consider amongst other the aforesaid submissions of the learned counsel. 5. The learned counsel for the accused-couple state that they have filed application for suspension of their sentences, however , these applications are not fixed for hearing. The office is directed to fix the said applications along with the appeals before a three member Bench since the impugned judgment is of a division Bench of the High Court. Since the maximum sentence awarded to the accused is three years the applications for suspension of sentences and the appeals be fixed for hearing at an early date". 2. The present appeals, in essence, revolve around the alleged ill-treatment, neglect and injuries caused to a ten year old girl, named Tayyaba Bibi (PW-1), daughter of Muhammad Azam (PW-13), while she was stated to be a housemaid at the residence of Raja Khurram Ali Khan, the then Additional District & Sessions Judge, Islamabad, situated at Sector I-8/1, Street No. 12, House No. 50, Islamabad, where she was to attend to the kitchen, and the three minor children of her employer . 3. The chronology of events leading to the registration of the crime by the local police, and the investigation that followed leading to the trial is of the utmost importance in the present case. Accordingly , let us trace the facts leading thereto. 4. On 26.12.2016, Ms. Mariya Hayat (PW-2) and her mother Ms. Naila Khizar (PW-3) state that they, from the terrace of their house, witnessed a child (Tayyaba Bibi) in the neighbour 's house, who was stated to be in a bare state. When they inquired about her condition, Tayyaba Bibi informed them that she was a maid at the house, and that her employer and his family had left her alone outside the locked house. Tayyaba Bibi was stated to have been brought to the house of Ms. Naila Khizar , where she was fed and given a blanket to keep warm. Raja Khurram Ali Khan was stated to have been contacted by Ms. Naila Khizar on his mobile phone, but to no avail. Finally , when he, along with his family , were stated to have returned at about 09.30 p.m. on the same night on 26.12.2016, Tayyaba Bibi was taken back to her employer 's house. 5. On 28.12.2016 at 10.30 a.m., a complaint was lodged by Ibrar Sherazi, Naib Court of Raja Khurram Ali Khan, at Police Station Industrial Area, Islamabad (lodged as Rapat No. 24 dated 28.12.2016 Ex. PW-16) reporting the disappearance of Tayyaba Bibi since 27.12.2016. The same day, on 28.12.2016, Ms. Mariya Hayat (PW-2) and her mother Ms. Naila Khizar (PW-3) again witnessed Tayyaba Bibi across the boundary wall of their residence, and this time she had unattended injuries sustained on her person. The two ladies contacted Mrs. Humaira Haroon (PW-4), their neighbour , who, at 01.39 p.m. on 28.12.2016, took from her mobile phone three photographs of Tayyaba Bibi in her injured condition (Ex. PW -11/B).
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6. On 29.12.2016, Khalid Mehmood Awan, Station House Officer (SHO) of Police Station Industrial Area, Islamaba d (PW-16), after prior intimation to Raja Khurram Ali Khan on telephone, took custody of Tayyaba Bibi from his house, and was stated to have recorded a video of his questioning Tayyaba Bibi (Ex. PW), and thereafter , took her to PIMS Hospital, Islamabad for her medical examination. There, at 11.16 a.m. on 29.12.2016, Dr. Muhammad Naseer (PW-5) medically examined Tayyaba Bibi, and recorded four injuries on her person: swelling and blackening of right upper and lower eye lid and conjunctivitis of right eye which was ecchymosed; swelling and burn marks superficial in nature on the dorsomedial aspect of left hand; and finally , an abrasion on the right side of face and over left ear. The nature of the said injuries were later stated by the same examining doctor in the Injury Report to fall under sections 337-A(i) and 337-F(i) of the Pakistan Penal Code, 1860 (PPC), and that the probable duration between the injuries and the examination was about 24 hours (Ex-PW -F/A). After being medically examined, Tayyaba Bibi was taken by Shakeel Ahmad, ASI (PW-10) and lady constable Mst. Maryam Butt to the office of the Additional Deputy Commissioner , Islamabad, where Tayyaba Bibi was stated to have rendered a statement before Ms. Nisha Ishtiaq, Assistant Commissioner , Islamabad (PW-7)(Exh.PW -7/A), which became the source of the Marasala recorded by Shakeel Ahmad, ASI (PW-10), and based thereon, the FIR was registered on 29.12.2016 at 02.00 p.m. under sections 506, 342 and 34 of the PPC at Police Station Industrial Area, Islamabad. Later , sections 337(A)(i), 337(F)(i), 328-A and 201 of the PPC were also inserted in the FIR (Ex.PW -14/B). 7. On 04.01.2017, an application was moved by the District Magistrate, Islamabad for the constitution of a Medical Board, which resulted in her medical examination by a medical board comprising of three senior doctors, who finally formulated the report stating her to have 22 injuries (including the four injuries recorded in injury sheet Ex- PW-F/A) on her person (Ex. PW -6/A). 8. On 09.01.2017 two mobile phones of Mrs. Humaira Haroon (PW-4) were taken into possession (Ex. PW-9/1), and the Forensic Analysis Report thereon by the National Response Centre for Cyber Crime Forensic Laboratory , Islamabad, reported that the three pictures of Tayyaba Bibi recorded therein were in fact captured on 28.12.2016 at 01.39 p.m. (Ex. PW -11/1). 9. On 15.01.2017, the investigating officer (PW-16) took into possession from the house of the convicts the utensils reported to have been used to injure Tayyaba Bibi. Thereafter , the complete challan of the case was submitted. 10. An application titled Noor Ijaz Chaudhry v. Maheen Zafar and others (Criminal Misc. No. 162-T/2017) was moved before the Islamabad High Court for transfer of the trial from the Court of Magistrate, Islamabad, to that of the Single Bench of the Islamabad High Court, which was allowed vide order dated 24.03.2017. Thereafter , the Single Bench of the Islamabad High Court, exercising its original criminal jurisdiction, proceeded with the trial. Maheen Zafar was charged for committing offences punishable under sections 342, 337-A(i), 337(F)(i) 506 and 328-A of the PPC, while Raja Khurram Ali Khan was charged for committing offences punishable under sections 342, 328-A and 201 of the PPC. After they pleaded not guilty , Raja Khurram Ali Khan and Maheen Zafar were tried. During the course of the trial, the prosecution produced sixteen (16) witnesses, whereafter the statements of the accused was recorded, who refused to produce any evidence, and thus, the trial culminated in the conviction of Raja Khurram Ali Khan and Maheen Zafar vide judgment dated 17.04.2018 in terms that: "In view of the 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 accu sed 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." 11. Aggrieved, Mst. Maheen Zafar and Raja Khurram Ali Khan challenged the conviction and sentence passed against them before the Division Bench of the Islamabad High Court under section 411-A(1) of the Code of Criminal Procedure, 1898 (Cr.P.C.) (Cr P. No.154/2018). The State also filed a petition for leave to appeal under section 411-A(2) Cr.P.C. read with section 561-A Cr.P.C against the acquittal of Mst. Maheen Zafar and Raja Khurram Ali, and for the enhancement of their sentences awarded in committing the offence under section 328A PPC (PSLA No.2/2018).
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12. The Appellate Court, after hearing the parties, granted leave to the State, and converted and allowed their appeals in terms that: "For what has been discussed above the petition filed by the state seeking leave is converted into an appeal and allowed. We, therefore, uphold the convic tion of Raja Khurram Ali Khan and Mst. Maheen Zafar under section 328- A and enhance the sentence to simple imprisonment of three years each along with payment of fine of Rs. 50,000/- (Rupees fifty thousand). In case of default in payment of fine the defaulter shall undergo simple imprisonment for a period of two months in addition to the sentence. They are also convicted under section 201 of the PPC and sentenced to simple imprisonment of six months each. We further convict Maheen Zafar under sections 337 A(i) and 337 F(i) of PPC. 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 Rs.500,000/- (Rs five hundred thousand only) 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" under sections 337 A(I) and 337 F (i) of PPC. The payment shall be made to Tayyaba Bibi in lump sum and recovered in the manner prescribed under section 337 Y of PPC. The sentenc es will run concurrently . The appeal preferred by Raja Khurram Ali Khan and Maheen Zafar having been found without merit is hereby dismissed. Their bail bonds are cancelled and they are directed to be forthwith arrested." 13. We have heard the learned counsel for the parties and with their valuable assistance gone through the available record. 14. Let us first set out the crucial issues which require to be addressed in resolvin g the instant appeals. They are: whether the appeal filed by the State for enhancement of sentence under section 411-A(2) Cr.P.C., or any other provision of law, was competent before the Division Bench of the High Court; whether the two Courts below were correct in convicting Raja Khurram Ali Khan and Mst. Maheen Zafar for the offences they were charged for; and finally , whether the acceptance of appeal against the acquittal by the Appellate Court was in consonance with the settled principle of law for adjudication of appeal against acquittal. W e intend to discuss each issue in seriatim. Maintainability of Appeal before the Division Bench of the High Court Against Enhancement of Sentence Passed by a Single Bench of the High Court in its Original Criminal Jurisdiction 15. The State filed appeals for enhancement of sentences awarded to Raja Khurram Ali Khan and Mst. Maheen Zafar for the commission of offence punishable under section 328-A of the PPC. The appeals were entertained by the Division Bench of the High Court, as the appellate court, under section 411-A of Cr.P.C. The said provision of law reads as under: "411-A. Appeal from sentence of High Court (1) [Except in cases in which an appeal lies to the Supreme Court under [Article 185 of the Constitution] any person convicted on a trial held by the High Court in the exercise of its original criminal jurisdiction may, notwithstanding anything contained in section 418 or section 423, sub-section (2), or in the Letters Patent of any High Court, appeal to the High Court- a. Against the conviction on any ground of appeal which involves a matter of lay only; b. With the leave of the Appellate Court, or upon the certificate of the Judge who tried the case that it is a fit case for appeal, against the conviction on any ground of appeal which involves a matter of fact only, or a matter of mixed law and fact, or any other ground which appears to the Appellate Court to be a suf ficient ground of appeal; and c. With the leave of the Appellate Court, against the sentence passed unless the sentence is one fixed by law . (2) Notwithstanding anything contained in section 417, the Provincial Government may direct the public prosecutor to present an appeal to the High Court from any order of acquittal passed by the High Court in the exercise of its original criminal jurisdiction, and such appeal may, notwithstanding anything contained in section 418 , or section 423, sub-section (2), or in the Letters Patent of any High Court, but subject to the restrictions imposed by clause (b) and clause (c) of sub-section (1) of this section on an appeal against a conviction, lie on a matter of fact as well as a matter of law . (3) Notwithstanding anything elsewhere contained in any Act or Regulation, an appeal under this section shall be heard by a Division Court of the High Court composed of not less than two Judges, being Judges other than the
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Judge or Judges by whom the original trial was held; and if the constitution of such a Division Court is impracticable, the High Court shall report the circumstances to the Provincial Government which shall take action with a view to the transfer of the appeal under section 527 to another High Court. (4) Subject to such rules as may from time to time be made by [the [Supreme Court]] in this behalf, and to such conditions as the High Court may establish or require, an appeal shall lie to [the [Supreme Court]]from any order made on appeal under sub-section (1) by the Division Court of the High Court in respect of which order the High Court declares that the matter is a fit one for such appeal.]" (emphasis provided) 16. A careful reading of the above referred provision reveals that sub-section (1) (supra) provides the right of appeal only to a convicted person, and that too, in three situations. Firstly , the appe al can be filed by a convict as a matter of right "on a question of law" (under clause a); secondly , with the leave of the Court, a convict can file an appeal on a question of fact or on a mixe d question of law and fact (under clause b); and thirdly , with the leave of the Court, an appeal can also be filed by a convict against a sentence, where the law has not provided any fixed quantum of sentence (under clause c). This right of appeal before the Division Bench of the High Court under the sub-section 1 of section 411-A is, however , made subject to the condition that the convict should not have the remedy of appeal against the impugned judgment, sentence, or order 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 (Constitution), which provides: "Article 185 (1) Subject to this Article, the Supreme Court shall have jurisdiction to hear and determine appeals from judgments, decrees, final orders or sentences. (2) An appeal shall lie to the Supreme Court from any judgment, decree, final order or sentence (a) if the High Court has on appeal reversed an order of acquittal of an accuse d person and sentenced him to death or to transportation for life or imprisonment for life; or, on revision, has enhanced a sentence to a sentence as aforesaid; or (b) if the High Court has withdrawn for trial before itself any case from any court subordinate to it and has in such trial convicted the accused person and sentenced him as aforesaid; or (c) if the High Court has imposed any punishment on any person for contempt of the High Court; or (d) if the amount or value of the subject matter of the dispute in the court of first instance was, and also in dispute in appeal is, not less than fifty thousand rupees or such other sum as may be speci fied in that behalf by Act of 432 [Majlis-e-Shoora (Parliament)] 432 and the judgment, decree or final order appealed from has varied or set aside the judgment, decree or final order of the court immediately below; or (e) if the judgment, decree or final order involves directly or indirectly some claim or question respecting property of the like amount or value and the judgment, decree or final order appealed from has varied or set aside the judgment, decree or final order of the court immediately below; or (f) if the High Court certifies that the case involves a substantial question of law as to the interpretation of the Constitution. (3) An appeal to the Supreme Court from a judgment, decree, order or sentence of a High Court in a case to which clause (2) does not apply shall lie only if the Supreme Court grants leave to appeal." 17. A review of the above referred provision of the Constitution reveals that, apart from the expressed category of appeals provided under sub-clause 2 of Article 185, where the forum of redressal is the Supreme Court, the aggrieved person may in other cases seek his remedy against the conviction and sentence before the Division Bench of the High Court only under the grounds stated in clauses (a) to (c) of sub-section 1 14-A of the Cr .P.C. 18. Sub-section 2 of section 411-A of the Cr.P.C., on the other hand, provides a right of appeal to the Provincial Government 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 while exercising its original criminal jurisdiction. 19. It is a settled principle of law that a 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. It appears that there was a
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conscious omission on the part of the legislature not to provide the remedy of enhancement of sentence to a Division Bench of the High Court against one passed by a Single Bench of the High Court in its criminal original jurisdiction. This can be gauged on reviewing the provisions of Appeals, Reference and Revisions (Chapter-XXXIX Part-VII) of the Cr.P.C, and more particularly , the specific placement of section 411-A therein. A careful review of the provisions contained in the said chapter suggests that four distinct rights to appeal have expressly been provided therein: first, against the conviction and sentence passed by the Assistant Sessions Judge and by the Judicial Magistrate (section 408); second, against the conviction and sentence passed by the Sessions Judge (section 410); third, against an acquittal order passed by the Trial Court other than the High Court (section 417); and finally , against the conviction and sentence passed by the High Court (section 411-A). Also relevant for resolution of the matter in hand is the separate provision provided in section 411-A Cr.P.C. for appeal against the judgment and sentence passed by the High Court in its original jurisdiction. There is an express right of appeal to a convict against conviction and sentence under sub-section 1 (supra) subject to the conditions mentioned therein, and discussed above. While the Provincial Government has been vested with the right of appeal against an order of acquittal of an accused under sub-section 2 (supra), the omission of providing a right of appeal to the complainant and/or to the State for seeking enhancement of sentence in the said section or chapter of the Cr.P.C. is conspicuously indicative of legislative intent. 20. Interestingly , when we review the general powers of the appellate Courts, while exercising their respective jurisdictions under Chapter-XXXIX Part- VII, it is noted that they are all to proceed in terms of the procedure provided under section 423 of the Cr.P.C., wherein under sub-section 1 clause (b), the appellate Courts, including the Division Bench of the High Court exercising its jurisdiction under section 411-A, are expressly barred from enhancing a sentence passed by the trial courts. It reads: "423. Powers of Appellate Court in disposing of appeal (1) The Appellate Court shall then send for the record of the case, if such record is not already in Court. After perusing such record, and hearing the appellate or his pleader , if he appears, and the Public Prosecutor , if he appears, and in case of an appeal under [section 411-A, sub-section (2) or section 417], the accused, if he appears, the Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may -- (a) .... (b) in an appeal from a conviction, (1) reverse the finding and sentence, and acquit or discharge the accused, or order him to be retired by a Court of competent jurisdiction subordinate to such Appellate Court or [sent] for trial, or (2) alter the finding maintaining the sentence, or, with or without altering the finding reduce the sentence, or, (3) with or without such reduction and with or without altering the finding, alter the nature of the sentence, but, subject to the provisions of section 106, sub-section (3), not so as to enhance the same." (emphasis provided) 21. With respect to the case of the prosecution, it would be appropriate to also examine whether the State could have invoked the general revisional or the inherent powers of the High Court, under sections 435 or 561-A of the Cr.P.C, for the enhancement of sentence awarded by the…
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