ISLAMABAD: A former additional district and sessions judge who was convicted of physically abusing a child domestic worker has approached the Supreme Court seeking a review of its Jan 10 verdict that upheld that sufficient evidence existed the warrant an enhancement of his sentence.

The petition, moved by advocate Raja Rizwan Abbasi on behalf of Raja Khurram Ali Khan, seeks to set aside a Jan 10 verdict authored by Justice Yahya Afridi.

Exercising jurisdiction under Article 187 of the Constitution, the judgement issued notices against Khan and his spouse Maheen Zafar to explain why their sentences for the commission of the offence punishable under section 328-A of the Pakistan Penal Code (PPC) should not be enhanced to serve justice.

PPC section 328-A deals with the offence relating to cruelty to a child. Its provisions suggest that the sentence should not be less than a year and may be extended to three years if the offender wilfully assaults, mistreats, neglects, abandons or carries out an act of omission or commission that has the potential to harm or injure a child by causing physical or psychological injury to the child.

Khan and Zafar were convicted of physical abuse of a child employed as a domestic worker in their home. They are serving their sentences in Central Jail Adiala.

Petition claims Jan 10 verdict suffers from manifest defects and was in conflict with natural justice

The SC took notice of this case, known as the Tayyaba case, after it was highlighted in the media when it was reported that the victim’s family had reached a settlement in January 2017 with the offenders. The court had observed that no agreement could be reached in matters relating to fundamental rights.

On Dec 28, 2016, a complaint was made to the Child Protection and Welfare Bureau office in Rawalpindi about the mistreatment of the victim, who had been working in the home of the former judge in I-8/1 for a couple of years.

The media had reported that the victim was beaten and her hands burned, but the matter was settled based on an agreement between her employers and her parents.

In his review petition before the SC, Khan has pleaded that its Jan 10 verdict suffers from manifest defects and prima facie was in conflict with natural justice. The petition said the court had overlooked questions of fact and law while passing the verdict in question.

One of the main contentions raised by the petitioner in the first round of hearing was that a genuine and legitimate compromise was reached between the two parties wherein the guardian of the child appeared before a trial court and recorded their statements and compounded the offence.

The petition argued that by virtue of section 338 of the PPC read with section 345 of the Criminal Procedure Code, the compounding of the offence cannot be declined except in section 311 of the PPC, which is only applicable in the case of murder.

The petition also cited Quranic verses and said that things which are not prohibited are deemed to be permitted and when the PPC does not prohibit the compounding of the offence the compromise was to be adhered to by the trial court or the appellate court.

At the time of the appeal, the review petition contended, the entire case becomes open and the SC can rectify any error in the proceedings or judgement passed, but unfortunately the entire judgement was silent on the compounding of the offence.

The petition stated that the statement of private witnesses was not sufficient to prove anything against the petitioner and that the most important witness, the child, had stated that there was no torture, neglect or failure on the part of the petitioner’s party.

Published in Dawn, February 5th, 2020