Last Tuesday, the Islamabad High Court (IHC) sentenced additional district and sessions judge Raja Khurram Ali Khan and his wife Maheen Zafar to one year in prison for neglecting their 10-year-old maid, Tayyaba.

The case had sparked outrage in December 2016, as it brought to further light the rampant but often ignored illegal practice of child labour abuse.

At one point, the Supreme Court had to intervene suo motu to set aside the convicts’ compromise with the accused.

The IHC held that the evidence exhibited beyond a shadow of a doubt that under Section 328-A of the Pakistan Penal Code, the convicts "neglected and/ or willfully harmed and abandoned Mst. Tayyaba Bibi which resulted in harm to her or had the potential of causing harm."

The IHC did not find sufficient evidence to convict on other charges (wrongful confinement, criminal intimidation, shajjah-i-khafifah and damihah etc; classifications of physical harm, or hurt, defined by the Pakistan Penal Code).

It can be reasonably inferred that the convicts were convicted under Section 328-A due to the specific crime requiring a lower threshold of culpability.

What the law says

A reading of the section demonstrates that an accused’s act of omission, which has the potential to injure a child by causing psychological injury, may be punishable by imprisonment.

Within a few hours of the verdict, however, the IHC accepted the convicts’ application to suspend their sentences and granted them post-conviction bail against surety bonds of Rs50,000.

The accused were given seven days to appeal the verdict. During the seven days, the accused were released on bail, not in jail and were free to roam in public with no restrictions.

Today, the division bench of the IHC suspended the IHC's one-year sentence, and adjourned the next date of hearing till the second week of May.

The appellate bench’s rationale for suspending the original IHC verdict is not yet clear.Questions remain unanswered.

However, the whole matter highlights an unnoticed disturbing fact: courts granting bail after conviction in potential matters of public safety.

Section 426 (2-A) of the Pakistan Criminal Procedure Code (CrPC) empowers a court to exercise its discretion to suspend a convict’s sentence under certain circumstances pending appeal, while allowing a convict to be released on bail.

The period during which a convict’s sentence is suspended and the convict is released on bail is excluded from the total period of sentence the convict has to eventually undergo.

Recognising convicts on bail as a risk to society

The legal remedy of bail pending appeal after conviction is not exclusive to Pakistan. It is a well-recognised doctrine throughout the world.

Since the defendant's conviction rebuts the prior presumption of innocence, the defendant bears the difficult burden of convincing a court to grant an appeal bond after conviction. Courts throughout the world are careful in entertaining such bail applications.

For example, under the United States federal criminal law, a defendant’s eligibility for bail after conviction depends on whether the defendant poses a flight risk, a safety concern and/or whether the defendant’s appeal raises substantial questions that offer the prospect of success.

US federal courts have held that no right to bail exists where charges against a defendant indicate a strong threat to society and where a defendant poses a threat to a key witness.¹

Individual states within the US, which have their own laws, often prohibit bail after convictions for certain serious offences, which include child abuse or neglect.²

English jurisprudence is similar to the extent that bail is only granted in exceptional circumstances, such as where the merits of the case are overwhelming (e.g., good past behaviour, strength of case on appeal) or where the applicant will otherwise have served his sentence before the appeal can be heard.

In Pakistan, the model is somewhat similar. Interpreting Section 426 of the CrPC (except for 1-A), the SC has held that bail pending appeal is not allowed unless it is shown that the conviction was based on no evidence, based on inadmissible evidence or that it is ultimately not sustainable.³

A court examining suspension of sentence/bail application is only required to tentatively assess the evidence, as the court is not deciding the innocence or guilt of the convict.

Therefore, an appellate court through a cursory glance ascertains whether there exist strong grounds for suspension of judgment.

High courts have granted bail after convictions in certain fact-patterns that showcase glaring errors on the surface (e.g., appeal not disposed of even after expiry of three years,⁴ glaring contradiction in trial record as to arrest,⁵ accused having gone through significant portion of sentence,⁶ no overt act attributed to accused in the First Information Report⁷ and prosecution suppressing evidence).⁸

How gaps in the law leave victims vulnerable

Interestingly, there is no real jurisprudence in Pakistan on a convict’s bail being linked with safety risk, threat to the society or threat to victims or witnesses.

In 1999, the SC, without getting into the merits of a convict’s case, granted bail on the basis that the convict’s sentence, which was increased from three to five years, was fit for exercising discretion of bail in favour of the convict.⁹

Although the SC did not address it, the fact that the convict was convicted for criminal breach of trust (as opposed to a more heinous crime) may have played a part in the granting of bail without getting into the merits of the case.

In light of the above and otherwise, high courts within Pakistan have exercised suspension of sentences/bail application on a liberal basis where original sentences are short.

High courts have cited the aforementioned SC judgment to suspend various kinds of short sentences that span up to five years (e.g., mischief, carrying unlicensed firearms & bribery) whereby the hearing of the appeal would take some time.¹⁰

While the rhetoric on the surface is sound (i.e., short sentences are related to crimes of a less heinous nature), it is not entirely applicable towards the Tayyaba case.

The judge and his wife were sentenced to a short term imprisonment (i.e., one year) and reportedly have no criminal history. Their appeal was theoretically accepted by the division bench due to flaws apparent on the surface in the original IHC verdict.

However, the notion that persons convicted of a crime of neglect against a minor child under their care are roaming free, and that too on the submission of a paltry surety bond of Rs50,000 each is concerning.

With the acceptance of bail, the victim and her family may be exposed to potential threats by the convicts.

This is especially in light of the fact that the apex court in 2017 set aside a coerced compromise agreement between the victim and the accused, along with the chief justice of the SC insisting that there was no doubt that a criminal act had been committed.

Furthermore, since the appeal has now been entertained within seven days, it could not have been argued that bail last week was granted due to an uncertain time-frame for the appeal.

Courts, in deciding whether to suspend a sentence and to grant an appeal bond, must take into account various factors.

This includes the exact nature of the crime, whether there is a substantial risk that the convict will pose a danger to others in the community, whether there is a substantial risk the convict will intimidate the victims/witnesses and whether it appears that the appeal is filed only for the purpose of causing delay.

Pakistani law has not developed jurisprudence focused on convicts/accused being required to prove and establish that they do not pose a substantial risk of harm and safety to the public and/or the victims.

Instead, a suspension of sentence/grant of bail is based primarily on the merits of the convict’s case, the time-frame of appeal and a de facto statutory reading of the term of sentence.

Such standards of law, while beneficial, do not address the underlying adverse consequences of post-conviction bail, as showcased by the Tayyaba case.

For now, the victim, through the operation of law, stands potentially vulnerable in more ways than one.

¹Bail, 45 Geo. L.J. Ann. Rev. Crim. Proc. 383, 407 (2016)

²§ 31:3. Release pending appeal, Tn. Criminal Trial Practice § 31:3 (2017-2018 ed.)

³2007 SCMR 246, Supreme Court of Pakistan (Javed Hashmi v. the State)

⁴1999 MLD 351

⁵1991 P Cr. L.J. 1352

⁶2006 YLR1211

⁷PLD 2008 Lah. 306

⁸2006 P.Cr. L.J. 749

⁹1999 SCMR 2589, Supreme Court of Pakistan (Abdul Hameed v. Muhammad Abdullah)

¹⁰2005 PCr. LJ 657, Sindh High Court, Karachi (Nazeer Ahmed v. State), 2017 YLR Note 241, Sindh High Court and 2016 YLR 2600, Sindh High Court

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