ISLAMABAD: The Supreme Court on Wednesday halted the Tayyaba trial and asked the Islamabad High Court (IHC) to consider transferring the case from Judicial Magistrate Islamabad Syed Haider Ali Shah to either another subordinate trail court or to consider assuming its own jurisdiction.
“Keeping in view of the background of the case which is already public, we while examining the jurisdiction under Article 184(3) of the Constitution to do complete justice, direct IHC to consider whether the pending case should be transferred to its own jurisdiction under Section 526 Criminal Procedure Code (CrPC),” reads the order dictated by a three judge SC bench headed by Chief Justice Mian Saqib Nisar. The IHC is required to issue a speaking order in this regard in 15 days.
Rights activist Asma Jahangir, who appeared before the court on behalf of the civil society, told Dawn that under CrPC’s section 526(3), the high court has the authority to transfer the matter from one trial court to another or decide the matter itself.
Ten-year-old Tayyaba was working as a maid in the house of a serving Additional District and Sessions Judge (ADSJ) Raja Khurram Ali Khan and is said to have been tortured by him and his wife, Maheen Zafar.
The apex court observed that since accused is a judicial officer, he should be tried by a judge of at least equal rank
The SC had taken suo moto notice of the matter after reports of it surfaced on social media. A compromise was later reached between the ADSJ and the minor girl’s family.
During proceedings of the case, Ms Jehangir told the court that influence was being used in the matter and that she was also told to distance herself from the issue.
“I can even give an affidavit in this regard,” she said, adding that Tayyaba’s parents were also pressured to not follow through with the case.
When Advocate General Islamabad, Mian Abdul Rauf told the court that the charge sheet of the case has been presented before judicial magistrate, Ms Jehangir said that the charges relating to slavery and human trafficking have not been included in the charge sheet submitted before the trial court by the state nor does it contain the name of the woman who is accused of selling the minor.
The court then questioned whether the trial should be held by the judicial magistrate and that the accused family should be tried by a judge of equal status at least, the accused being a judicial officer.
The court observed that the state should approach IHC for transferring the case to another trial court or that the SC can invoke its constitutional jurisdiction by asking the IHC to assume jurisdiction.
Ms Jehangir said the state should play its role by appointing a prosecutor general from outside of Rawalpindi or Islamabad and that the Advocate General’s Office should move an application for moving the case from the trial court.
The chief justice said it will be a great injustice if the case closes due to non-prosecution by the parents or due to lacunas in the law.
Ms Jahangir said the state is responsible for removing any lacunas in the law.
Published in Dawn, March 9th, 2017
