Top court stays trial in Tayyaba torture case

ISLAMABAD: The apex court has temporarily stopped the trial pertaining to alleged torture of a ten-year-old maid, Tayyaba, and directed the Islamabad High Court (IHC) to consider whether the accused — a former sessions judge and his wife — be tried by a lower court in Islamabad or the IHC itself.

Hearing the suo motu case on Wednesday, the Supreme Court’s three-judge bench — headed by Chief Justice Mian Saqib Nisar — also asked the high court to pass a speaking order on this point within 15 days.

Tayyaba, allegedly tortured by a former additional district and sessions judge (ADSJ) Raja Khurram Ali Khan and his wife Maheen Zafar, was rescued from Khan’s residence in Islamabad with visible wounds on Dec 28, 2016. An FIR was registered against the judge and his wife on Dec 29, 2016.

On Jan 2, Khan reached a compromise with Tayyaba’s parents, on the basis of which his wife secured pre-arrest bail the same day. On Jan 3, the ADSJ Atta Rabbani handed over custody of Tayyaba to her parents. However, the SC took suo motu notice of the matter on Jan 4.

Appearing before the bench, Asma Jahangir – counsel for civil society representatives –  expressed her reservations over conducting the trial in Islamabad and requested that either the case be heard by the IHC itself or be referred to the trial court of a different province.

Jahangir also requested that a lawyer hailing from any other province be appointed as special prosecutor in this case. She said the local lawyers could not freely prosecute the accused.

“The state must show its ownership as it is responsible for the fundamental rights. The prosecution is not willing to help out,” she added. The public prosecutor in this case had allegedly supported the accused earlier.

Jahangir told the SC that the state functionaries had approached her to give up the case. She said she was considering submitting an affidavit about the people, who were pursuing her.

She also expressed reservations over the challan submitted by the police. The counsel contended that the capital city police did not add the sections of slavery, as well as human trafficking, in the challan.

Section 370 of PPC says, “Whoever imports, exports, removes, buys, sells or disposes of any person as a slave, or accepts, receives or detains against his will any person as a slave, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.”

Additional Attorney General Waqar Rana told the apex court that it could give direction to the high court to consider whether the trial to be conducted by a judge from Islamabad was fair or not. Later, hearing of the case was adjourned till March 21.

According to the CRPC’s Section 526, a high court has the power to transfer any case from one court, subordinate it to another on any of the grounds specified therein. This power of transfer extends to all classes of cases.

Normally, a criminal case may transfer from one court to another court by an application of the parties. The high court has the power to transfer a criminal case from one court to another court though its suo motu power of transfer.

Published in The Express Tribune, March 9^th, 2017.