Tayyaba Bibi torture case: SC sets aside IHC judgment to enhance sentence of former judge, spouse

The Supreme Court has set aside Islamabad High Court (IHC) judgment to enhance sentence from one year to three years of former judge of Islamabad and his spouse, who had been found guilty of torturing 10-year-old housemaid Tayyaba.

The judgment authored by Justice Yahya Afridi noted that Raja Khurram Ali Khan, former Additional District & Sessions Judge, Islamabad, and his wife Maheen Zafar, who were charged for the crimes, are persons of authority and social position.

A three-judge bench, headed by Justice Mushir Alam, on Friday released its judgment, which was reserved in May 2019, on the appeals against the IHC verdict. It maintained the conviction and sentence of Maheen Zafar for offence punishable under sections 337-A(i) and 337-F(i) of the Pakistan Penal Code (PPC), and the conviction and sentence awarded to Raja Khurram Ali Khan for the offence punishable under section 201 PPC.

The apex court noted that the IHC Division Bench lacked the jurisdiction to enhance the sentence of the convicts under any provision of law. Thus, the enhancement of sentence awarded to the accused-convicts for the offence under Section 328-A PPC by the division bench of the high court in its impugned judgment was without lawful jurisdiction and of no legal effect.

The judgment said the quantum of sentence for the offence under Section 328-A PPC is the subject matter of another appeal pending before the apex court shall be finally decided therein.

The court said: "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. 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 court noted that Tayyaba Bibi, the victim of the crime, was not treated with due care and caution during the investigation, and the trial proceeding. Tayyaba Bibi, who at the time of being taken into custody by Khalid Mehmood Awan, SHO (PW-16) from the house of convict Raja Khurram Ali Khan, was admittedly injured and required medical attention, but she was instead subjected to the process of questioning by the SHO, which he even video recorded (Ex PW). The court further noted that after her medical treatment at PIMS, Tayyaba Bibi, instead of being taken to a child care centre, was subjected to another bout of questioning, and this time by Nisha Ishtiaq, Assistant Commissioner, Islamabad (PW-7). In these circumstances, it would be fair to note that Tayyaba Bibi, during the period in which she rendered her statements, was not completely free from pressure and influence of the police, local administration and the accused.

The judgment said that Tayyaba's testimony during the examination-in-chief can be considered relatively free from adverse negative influences. No doubt, during her lengthy cross-examination, she wavered from the initial stance she had taken during her examination-in-chief, when she was confronted with her previous video recorded statement obtained by Khalid Mehmood (PW-16). However, in view of the findings recorded by the trial judge, regarding her stressed un-natural demeanor during her cross-examination, the said wavering stance cannot be given the same credence, as one may give to any adult witness of a crime.

In fact, her cross-examination should have been stopped the moment the trial judge noticed her reception of questions and responses thereto lacked intelligent rationality, which in fact is an essential attribute of a competent witness under the Article 3 of the Order.

The trial judge then surely erred by allowing her cross-examination to continue in her said disposition. It appears that the trial judge wrongly treated Tayyaba Bibi to be a child witness of a crime, rather than as a child witness who was herself the victim of the crime. This lack of distinction on the part of the trial judge led to his faulty conclusion of completely discarding the evidentiary value of her testimony.

The judgment said the prosecution was able to discharge its "legal" burden convincingly, leading the apex court to the irresistible conclusion that the "neglect", "abandonment", "assault" and "ill-treatment" of Tayyaba Bibi, were at the hands of the accused-convicts Maheen Zafar, and her husband Raja Khurram Ali Khan.

"The failure of the accused-convicts to produce any evidence to discharge their "evidential" burden was obviously a great opportunity missed by them to produce evidence to create dents in the prosecution's case."

The stated pieces of prosecution evidence, cumulatively proved beyond doubt the guilt of Maheen Zafar to have inflicted the four injuries (as per Dr Naseer Injury Report Ex. PW-5) on Tayyaba Bibi, and thereby to have committed the offences punishable under sections 337 A(i) and 337 F(i) of the PPC.

The said evidence also proved beyond doubt the guilt of Maheen Zafar to have "willfully" "assaulted"/"ill-treated" by inflicting four injuries on the victim's person [as per Dr Naseer (PW-5) and Dr Tariq Iqbal (PW-6, Ex. PW-6)], and on 26.12.2016 "willfully" "neglected"/"abandoned" her in the locked house, without food and warm clothing in the dead of winter, and from 28.12.2016 till 29.12.2016, when her custody was taken by the police, she "willfully" "neglected" to provide Tayyaba Bibi with the much needed medical attention to her injuries, while the victim was in her direct care, and thereby also committed the offence punishable under section 328-A of the PPC.