The judgement in the case pertaining to the torture of a minor working in the house of a judge highlights some weaknesses in the criminal justice system and vague legislation that encourages the exploitation of minor children.
The court verdict also used Black Law’s dictionary to define relevant sections of the Pakistan Penal Code (PPC) that may strengthen the prevailing law related to crimes against minor children.
The case related to Tayyaba, which surfaced in Dec 2016, highlighted that there is no law in the federal capital for protection of minor children who are employed as domestic workers nor was there any proper institute to look after minor victims.
A single bench of the Islamabad High Court (IHC) had earlier this year convicted an additional district and sessions judge and his spouse in the torture case and sentenced them to a year’s imprisonment. However, the IHC division bench in the recent judgement increased the sentence to three years.
As per the judgement authored by the bench headed by Justice Athar Minallah, “the case relates to offences committed against Tayyaba Bibi who, at the relevant time, was less than 10 years old. She is the eldest among the four children of Mohammad Azan...Tayyaba Bibi was handed over to Nadra Bibi in August 2016 for transporting her to Islamabad for employment. The latter further handed over the child to 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 and working in the kitchen. An amount of Rs18,000 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”.
Raja Khurram Ali Khan was a judicial officer in the district judiciary of Islamabad Capital Territory and his wife, Maheen Zafar, is a housewife.
According to Tayyaba’s statement, she was subjected to torture and ill-treatment by the family and at least two witnesses saw her injured in the house of Raja Khurram on Dec 28, 2016.
Her photographs were put up on social media and were also received by the in-charge of a police station via WhatsApp.
The photographs caught the attention of the electronic media and the IHC chief justice ordered an inquiry into the matter.
The court verdict pointed out that The Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, supplementing the UN Convention against Transnational Organised Crime says that the recruitment, transportation, harbouring or receipt of a child for the purpose of exploitation shall be considered ‘trafficking in persons’.
“Child labour can tantamount to the worst form of modern day slavery. The Black’s law dictionary, Eighth Edition defines the expression ‘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”, it says.
Tayyaba Bibi, at less than 10 years old, was brought to the judge’s house for domestic work and her responsibilities were such that exposed her to physical and psychological harm.
She had no freedom of action and her life and liberty were completely in control of her employer, even when she was injured, the court verdict says.
Judgement in Tayyaba case highlights weaknesses in criminal justice system, vague legislation leading to exploitation of children
Her status is no different that a child who is a victim of trafficking.
The division bench noted that in section 328-A of PPC, the legislature has inserted the offence through an amendment made in 2016.It is aimed at protecting the child from cruelty by criminalising a particular conduct described therein.
A person who wilfully assaults, abandons, ill treats, neglects or does any act of omission or commission which results in or has the potential to cause harm or injury to the child, either physical or psychological, is guilty of committing an offence under section 328-A.
The Black’s Law Dictionary (Sixth Edition) has defined ‘cruelty’ as the intentional and malicious infliction of physical or mental suffering upon living creatures, particularly human beings, or as applied to the latter, the wanton, malicious and unnecessary infliction of pain upon the body, or the feelings or emotions, abusive treatment, inhumanity, outrageous.
The judgment pointed out “the failure of the criminal justice system in protecting the most weak and vulnerable members of the society.”
It says that the in-charge of the concerned police station, Khalid Mehmood Awan, received information regarding the plight of the child on Dec 28 but he did not put the legal process into motion. He took steps on Dec 29 apparently due to an inquiry ordered by the IHC chief justice and the circulation of her picture on social and electronic media.
He is said to have picked up the child who required urgent medical assistance and the child is said to have been asked leading questions “and the interjections by some lady made it obvious that desired results favouring the Appellants were intended to be obtained,” the judgement says.
However, the child narrated different facts when she came before Assistant Commissioner Nisha Ishtiak. The Supreme Court took cognizance of the matter under Article 184(3) of the Constitution and it appears that only then the system. A medical board was constituted and a proper investigation ensued.
The court said that before the publicity of the case on media, the criminal justice system was not responding to the plight of the child.
The court termed it as “apparent collapse of the criminal justice system for the weak and vulnerable segments of the society and its efficacy for the privileged raise serious questions regarding rule of law.”
Published in Dawn, July 1st, 2018