2019 Y L R 98

[Islamabad]
Before Athar Minallah and Miangul Hassan Aurangzeb, JJ
Raja KHURRAM ALI KHAN and another---Appellants
Versus
TAYYABA BIBI and another---Respondents
Criminal Appeal No.154 of 2018 and Crl.P.S.L.A. No.2 of 2018, decided on 11th
June, 2018.
(a) Penal Code (XLV of 1860)---
----Ss. 328-A, 337-A(i), 337-F(i), 342, 506(ii)---Cruelty to a child, causing shajjah-i-
khafifah, causing damiyah, wrongful confinement, criminal intimidation---
Appreciation of evidence---Sentence, enhancement of---Allegation against the
accused persons was that they had ill-treated/neglected a minor girl, who was working
as a domestic servant at their house---Statements of prosecution witnesses showed
that the minor was employed to look after the child of the accused persons and to
work in the kitchen---Minor was, thus, exposed to the hazards of the kitchen such as
fire, hot surface, sharp knives, toxic chemicals---Minor was not admitted in school
and thus, her right to education was also denied---Admittedly, neither was the consent
of minor girl sought nor was her engagement as a domestic worker governed under a
contractual arrangement agreed at arm's length---No working hours were fixed nor
was she paid the minimum wage determined by the State---Girl was engaged in
domestic work and her responsibilities were of a nature which had exposed her to
physical and psychological harm---Girl had no freedom of action and her life and
liberty were completely in the control of accused persons as long as she worked as a
domestic worker---Accused persons had paid a meagre amount of Rs. 18000/- to her
father---Status of minor was not different from a child who was a victim of trafficking
and had to endure degrading treatment of being a virtual modern day slave---
Circumstances suggested that witnesses produced by prosecution were all
independent and they had no reason to depose falsely---Despite being cross-
examined, the veracity and truthfulness of depositions of witnesses could not be
shaken---Investigating Officer had unambiguously deposed that when he picked up
the girl from the house of the accused, she was in injured condition; she was taken to
hospital and, pursuant to her medical examination, the injuries were confirmed in the
Medico Legal Report---Medical Officer had confirmed that the injuries or the burn
marks were not because of any fall but were caused by deliberate act---Accused
persons in their statement recorded under S. 342, Cr.P.C. had vaguely stated that
wounds over hand and face were accidental, the contact burn over back were inflicted
in the crisis management centre because the wounds were not even complained of in
the complaint---No explanation was given regarding the accident which had caused
the injuries on the face and hands of minor---Nonetheless said statement
acknowledged that the injuries were caused while girl was in their house---Testimony
of girl that her injuries were not caused accidentally was corroborated by medical
evidence, her photographs, the depositions of witnesses and the narration of facts in
the FIR---Recovery of items used for causing the injury and burns was pursuant to
having been led by minor herself---Record showed that accused persons had hidden
the minor to ensure disappearance of evidence of the commission of offence against
the girl, who had suffered injuries and burns, thus the offence under S.201, P.P.C.
stood proved---Circumstances established that accused persons had left the minor
alone in the house and exposed to the cold weather in the evening stand proved
beyond any doubt---Hiding the minor while in injured condition and causing a false
report to be recorded in the concerned police station that she was missing also stand
proved from the evidence---Despite being injured and seen in such condition by
witnesses and yet not giving her medical assistance was wilful neglect and ill
treatment at the hands of the accused persons---Depriving the girl of the right of
education and keeping her in virtual servitude could obviously not be justified by
someone who held position of a judge---Deliberate attempt to hide the injured minor
till she was picked up by Police Officer and failure to give her medical assistance
alone satisfied not only the actus reus contemplated under S. 328-A, P.P.C. but also
satisfied the required mens rea---Offence under S.328-A, P.P.C. stood proved against
the accused persons in circumstances---Facts and circumstances of the present case
suggested that there was no mitigating factors which would call for handing down the
lesser sentence---Accused persons were not worthy of any sympathy because the ill
treatment and neglect was wilful and could not be justified on any ground
whatsoever---Accused persons were aware and they deliberately and consciously
made the innocent and helpless girl to suffer tremendously---Petition filed by the
State seeking leave was converted into appeal and was allowed by enhancing the
sentence of each accused to simple imprisonment of three years.
Jalwanti Lodhin v. The State AIR 1953 Patna 246; Muhammad Ali Jan v. The
State and another PLD 2015 Pesh. 134; Abbas Ali Shah v. Emperor AIR 1933 Lah.
667; Muhammad Feroze v. The State 2003 YLR 2234; Muhammad Feroze v. The
State PLD 2003 Kar. 355; The State v. Syed Aamir Shabbir 2016 PCr.LJ 286;
Muhammad Irfan v. The State 2018 PCrl.LJ Note 68; The State v. Syed Aamir Shabbir
2016 PCr.LJ 286; Muhammad Irfan v. The State 2018 PCrl.LJ Note 68; Rahmatullah v.
The State 2018 PCr.LJ Note 31; Mst. Saira Bibi v. Muhammad Asif and others 2009
SCMR 946; Mukhtar Ahmad v. The State 2003 SCMR 1734; Muhammad Akram v.
The State 2009 SCMR 230; Saleem Muhammad and another v. The State and another
2017 PCr.LJ 1391; State v. Ali Asghar 2017 PCr.LJ 349; Sarfraz alias Safu and others
v. The State 2017 YLR Note 220 and The State v. Muhammad Asif Saigol and others
PLD 2016 SC 620 ref.
Saeed Ahmed v. The State 2015 SCMR 710 rel.
(b) Administration of justice---
----Judge must wear all the laws of the country on the sleeves of his robe.
Iffat Jabeen v. District Education Officer (M.E.E.) Lahore and another 2011
SCMR 437; Section Officer, Government of Punjab, Finance Department and others
v. Ghulam Shabbir 2010 SCMR 1425 and Land Acquisition Collector and 6 others v.
Muhammad Nawaz and 6 others PLD 2010 SC 745 rel.
(c) Criminal trial---
----Cross-examination--- Principles--- If a witness was not cross-examined regarding
a material part of his evidence, then the inference would be that the truth of the same
was accepted by the other side, particularly when the statement was material to the
controversy of the case---If not challenged in cross-examination then such
unchallenged statement was required to be given full credit and usually accepted as
true unless discarded by reliable and cogent evidence.
Mst. Nur Jehan Begum through Legal Representatives v. Syed Mujtaba Ali
Naqvi 1991 SCMR 2300 and Dr. Javaid Akhtar v. The State PLD 2007 SC 249 rel.
(d) Criminal Procedure Code (V of 1898)---
----S. 154---Registration of FIR---Scope---First Information Report under S. 154,
Cr.P.C. could be registered by the incharge of the Police Station regardless of how
and in what manner the information had been received---First Information Report was
neither substantive evidence nor exhaustive document but merely a first informat ion
report regarding the commission of a cognizable offence.
(e) Criminal trial---
----Actus reus and mens rea---Scope---Two factors were mandatory required for
commission of offence---Actus reus was the physical element, the actual act---Mens
rea was the mental factor which related to the awareness or intention of person that
the conduct constituted a crime.
Raja Rizwan Abbasi, Sohail Akhtar, Naila Naureen and Raza Ali Shah for
Appellants.
Tariq Mahmood Jahangiri, Advocate General Islamabad for Respondents
Awais Haider Malik, State Counsel.
Date of hearing: 4th June, 2018.
JUDGMENT
ATHAR MINALLAH, J.---Through this consolidated judgment we intend to
decide the instant appeal along with Petition for Leave to Appeal No. 02/2018 titled
"The State through Advocate General, Islamabad v. Maheen Zafar and another". The
instant appeal has been filed by Raja Khurram Ali Khan and his wife, namely,
Maheen Zafar (hereinafter collectively referred to as the "Appellants"). The latter
have assailed the judgment dated 17-04-2018, rendered by the learned Single Judge in
Chambers, whereby they have been convicted and sentenced in the following terms:
"In view of above the prosecution has been able to prove the charge under
section 328-A, P.P.C., hence the accused persons Mst. Maheen Zafar and Raja
Khurram Ali Khan both are jointly responsible for it and are accordingly
convicted. They are acquitted of other charges. Raja Khurram Ali Khan and
Mst. Maheen Zafar are punished with imprisonment of One Year simple
imprisonment with fine of Rupees 50,000/- each and in default to serve one
month imprisonment. The accused shall have the benefit of section 382-B
Cr.P.C. The accused are on bail hence shall be arrested immediately to serve
the sentence."
2. The State, through the connected petition has sought leave under section
411A(2) read with clauses (b) and (c) of subsection (1) ibid of the Criminal Procedure
Code, 1898 challenging acquittal under sections 201, 337 A(i), 337 F(i), 342 and 506
(ii) of P.P.C. and enhancement of sentence handed down for the offence of section
328A of P.P.C. vide judgment dated 17-04-2018.
3. The facts are that the case relates to offences committed against Tayyaba Bibi
who, at the relevant time, was less than ten years old. She is the eldest amongst the
four children of Muhammad Azam, son of Ahmad Khan (PW-13). Tayyaba Bibi was
handed over to one Ms. Nadra Bibi in August, 2016 for transporting her to Islamabad
for employment. The latter further handed over the child to one Ms. 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 Rs.18,000/- 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. It appears
from the recorded evidence that this arrangement had taken place in October, 2016.
Raja Khurram Ali Khan was a Judicial Officer in the District Judiciary of Islamabad
Capital Territory while his wife, namely Maheen Zafar, was a housewife. The
Appellants had young children of their own. According to the depositions of Ms.
Mariya Hayat, PW-2, and her mother Ms. Naila Khizar, PW-3, they first saw Tayyaba
Bibi on 26.12.2016. The said witnesses are the next door neighbours of the appellants.
Tayyaba Bibi told them that the Appellants had left her alone and that the house was
locked. She was shivering and exposed to the hazards of cold weather. Since there
was no one else at home, the said witnesses called her to their house. They tried to
contact Raja Khurram Ali Khan so as to inform him about the presence of Tayyaba
Bibi in their house but in vain. On his return he was informed and it was then that he
took the child from the neighbour's house at about 9.30 pm the same evening. The
next time the two witnesses saw Tayyaba Bibi in the house of Raja Khurram Ali Khan
was on 28-12-2016 when they found her in an injured condition. They also informed
another neighbour, namely Ms. Humaira Haroon wife of Haroon Khan Tareen, PW-4,
who came to their house. From the other side of the wall dividing the two houses,
Tayyaba Bibi told them that her injuries were caused due to beating and exposure to a
burning stove by Ms. Maheen Zafar. Ms. Humaira Haroon took photographs from her
cellular phone. The photographs, Ex. PW 4/1-3, were later retrieved from the said
phone by the National Response Centre for Cyber Crime Forensic Laboratory,
Islamabad and taken into possession vide recovery memo Exh.PW-9/8. The
photographs were put on the social media and were also received by the Incharge of
the Police Station on his cell phone through WhatsApp. The outrageous photographs
seemed to have caught the attention of the electronic media and pursuant thereto the
Chief Justice of this Court ordered an enquiry into the matter on 28-12-2016. Notice
under Article 183(4) of the Constitution was also taken by the august Supreme Court.
 4. Pursuant to information received from Ibrar Sherazi, posted as Naib Court
with Raja Khurram Ali Khan, Ruput No. 24 was recorded in the Daily Diary of the
Police Station, Industrial Area on 28.12.2016. The time of receiving the information
recorded in the said ruput is 10:30 a.m. The Ruput No. 24, dated 28.12.2016, was
brought on record as Exh. PW-16/B. According to the information recorded therein,
Tayyaba Bibi, said to be employed as a " " (domestic servant) was missing since
27.12.2016. As per the testimony of Khalid Mahmood Awan, Inspector/Incharge
Police Station Industrial Area I-9, Islamabad, PW-16, a lady had also informed him
on 28-12-2016 regarding Tayyaba Bibi's condition and that he had sent a Police
Constable to search the house of the appellants. The photographs of Tayyaba Bibi in a
severely injured condition were received by the Incharge Police Station on his
WhatsApp account. Mr Khalid Mahmood Awan, PW-16, testified that he had
contacted Raja Khurram Ali Khan on telephone on 29-12-2016 and then visited his
house where he found Tayyaba Bibi in an injured condition. He took her to the
Pakistan Institute of Medical Sciences (hereinafter referred to as the "PIMS"). The
child was examined at about 11:16 a.m. by Dr. Muhammad Naseer, Principal CMT
and Head of Department PIMS, Islamabad, PW-5, in the presence of Dr. Nasreen. The
Medico Legal Report, Exh.P-5/A, was prepared on 30-12-2016. The description of the
injuries recorded in the report is as follows:
"(i) There was swelling and blackening of right upper and lower eye lid and
conjectivitis of right eye which was ecchymosed.
(ii) There was swelling and burn marks superficial in nature on the Dorso-
nedial aspect of left hand.
(iii) An abrasion on right side of face and over left ear, the nature of injuries
were declared for wound Nos. 1 and 3, falling under sections 337-A(i) for
wound No. 2, 337-F(i), P.P.C.
(iv) Probable duration of injuries was about 24 hours. This report was handed
over to police on 30.12.2016 at 02.30 pm and same bears my signature and
stamp as Exh.PW-5/A."
5. PW-16 further deposed that on his instructions Shakeel Ahmed, ASI (PW-10),
took Tayyaba Bibi to the office of Additional Deputy Commissioner (General) where
Mrs. Nishaa Ishtiak, Assistant Commissioner Potohar, PW-7, was also present. The
latter took Tayyaba Bibi to her office where she narrated the facts which were
reduced in writing. The said document was exhibited as PW-7/A and pursuant thereto
FIR No. 483/2016, dated 29.12.2016, Exh.PW-14/B, was registered at the Police
Station Industrial Area I-9 Islamabad. It was alleged in the FIR that Tayyaba Bibi
who worked as a domestic servant in House No. 50 street No. 12, I-8/1, Islamabad
was injured by Maheen Zafar by placing her hands on the hot stove besides being
beaten by articles described therein. She was locked in a storeroom located next to the
water tank and then at night in the servant quarter. It was alleged that she was
consistently beaten and that food was not provided to her. It was also alleged that
Tayyaba Bibi's parents did not inquire about her. From the office of PW-7, Tayyaba
Bibi was sent to the Child Protection Bureau pursuant to a written request, Exh.PW -
7/B.
6. It is important to note that it is an admitted position that on 29.12.2016 Khalid
Mehmood Awan, PW 16, had recorded a video statement of Tayyaba Bibi and the
CDs thereof were placed on record as Ex. DA. This fact was not mentioned by him in
his examination in chief, when he had entered the witness box as PW 16. However, he
admitted making such a video in his cross-examination. The learned counsel for the
Appellants has laid great stress on this statement. We saw this recording carefully and
were astonished at how a male voice was asking leading questions from a visibly
traumatized and injured child while some female was interjecting. It appears that the
statement was recorded before the child was taken to PIMS because the injuries had
not been treated by then. PW 16 admits that he was the one who was asking the
leading questions. This recording unambiguously shows that the leading questions
being asked by PW 16 and the interjections by a female voice, prompting the desired
answers from an injured and visibly traumatized child, were definitely aimed at
achieving desired results. The failure to mention this recording during the
examination in chief and the manner in which the child was dealt with raises serious
concerns regarding the conduct and professionalism of the witness who, at the
relevant time, was the Incharge of the concerned Police Station. The recording of the
statement in this manner was indeed despicable conduct on the part of the
investigators.
7. On 30-12-2016, a Special Investigation Team was constituted to investigate
the case. Several couples surfaced who claimed to be the parents of Tayyaba Bibi,
despite the fact that the Appellants claimed to have known her parents. On 04-01-
2017 an incomplete report under section 173 of the Code of Criminal Procedure, 1898
(hereinafter referred to as the "Cr.P.C.") was submitted before the learned trial Court.
On 09.01.2017, PW-16 took into possession the mobile phone, Exh.PW-9/1, vide
recovery memo Exh. PW-9/A, belonging to Ms. Humaira Haroon, PW-4. On
15.01.2017, PW-16 recovered a Wiper (Exh.PW-8/1), Burner Cover (Exh.PW-8/2),
'Dohi' (Exh. PW-8/3) and Stove Stand (Exh.PW-8/3) from the kitchen of the house of
the appellants. The said recovery was made on the information provided by Tayyaba
Bibi and according to her statement these were the articles which had been used to
cause the injuries. Site plan Exh.PW-16/A was also prepared by PW-16. Sections 337-
A(i), 337-F(i), 201 and 328-A of the Pakistan Penal Code, 1860 (hereinafter referred
to as the "P.P.C.") were also added.
8. On 04-01-2017 a Medical Board was constituted at PIMS which examined
Tayyaba Bibi on 09-01-2017. The findings were recorded in the written report,
Exh.PW-6/A and Exh.PW-6/B. The Medical Board was headed by Dr. Tariq Iqbal,
Professor of Burns Surgery, Head of Department, Burn Care Center, PIMS, who
entered the witness box as PW-6. According to the report of the Medical Board,
multiple injuries were found on the body of Tayyaba Bibi, of which injuries at serial
numbers 3, 4, 5 (a, c, d & e), 6 (a, c, d & e), 9 and 11 were described as 'healed'. The
other injuries were mentioned as 'Trauma'. The interim and final reports of Forensic
Analysis were brought on record as Exh.PW-11/A and Exh.PW-11/B. The charges
were framed vide order dated 16-05-2017, for offences under sections 342, 337-A(1),
337-F(i), 506(ii), 328-A and 201 of the P.P.C. The Appellants pleaded not guilty and,
therefore, they were tried for committing the offences described in the charge. The
prosecution produced sixteen witnesses while the Appellants preferred not to be
examined on oath and, therefore, they recorded their respective statements under
section 342 of the Cr.P.C. After the recording of evidence and affording an
opportunity of hearing to the learned counsel for the Appellants and the learned
Advocate General, Islamabad the trial Court, vide judgment dated 17-04-2018,
convicted and sentenced the Appellants in the terms reproduced above. The
Appellants were found guilty of committing the offence under section 328-A of the
P.P.C. while they were acquitted relating to the other offences by extending benefit of
doubt.
9. Raja Rizwan Abbasi, ASC, appeared for the Appellants and contended that;
the Appellants were falsely involved in the case for ulterior motives; Raja Khurram
Ali Khan, as a Judicial Officer, had served to the best of his abilities and had rendered
judgments without fear and favour; he had rendered judgments which were
detrimental to the interests of influential persons; some media houses had also been
affected and, therefore, they had created an unnecessary hype which amounted to a
biased media trial; Tayyaba Bibi was well looked after by the appellants; Tayyaba
Bibi had given statements on three different occasions and had not alleged that she
had been assaulted, tortured or in any manner ill treated by the appellants; the
recorded version of the statements of Tayyaba Bibi shows that she was well looked
after by the appellants; PW-7 was an interested person and had worked in a news
agency which had highlighted the issue of Tayyaba Bibi through biased reporting; the
police officials were influenced by the media trial and the proceedings which were
taken up by the august Supreme Court; witnesses were not reliable; the neighbours of
the Appellants i.e. PW-2, PW-3 and PW-4 had raised false alarms; Tayyaba Bibi
remained missing since 27-12-2016; ruput No. 24, dated 28-12-2016, was not proved
in accordance with law; the written complaint, on the basis whereof the criminal case
was registered, was neither signed nor were the thumb impressions of Tayyaba Bibi
affixed thereon; the criminal case i.e. FIR was, therefore, registered illegally; the
prosecution was not able to prove the case against the appellants; the examination-in-
chief of Tayyaba Bibi as PW-1 cannot be relied upon; she was tutored while she was
in the custody of the officials and, therefore, she gave a misleading statement against
the appellants; Tayyaba Bibi, being a child, could not have been believed by the
learned trial Court; evidence of a child witness ought to be subjected to a close and
careful scrutiny and should not be relied upon until and unless it was corroborated by
some strong circumstances; it is settled law that children are the most un-trustworthy
class of witnesses because of their tender age; reliance has been placed on 'Jalwanti
Lodhin v. The State' [AIR 1953 Patna 246], 'Muhammad Ali Jan v. The State and
another' [PLD 2015 Pesh. 134], 'Abbas Ali Shah v. Emperor' [AIR 1933 Lah. 667],
'Muhammad Feroze v. The State' [2003 YLR 2234] and 'Muhammad Feroze v. The
State' [PLD 2003 Kar. 355] the contents of the complaint attributed to Tayyaba Bibi
were later denied by her when she entered the witness box as PW-1; the Appellants
have been made scapegoats; cross-examination is a continuation of the statement and
more important than the examination in chief; the learned trial Court has misread the
evidence; a single circumstance creating reasonable doubt in a prudent mind ab out the
guilt of the accused makes the latter entitled to its benefit; no offence under section
328-A of the P.P.C. was made out; neglect, ill-treatment and abandonment in the
context of 328-A has to be wilful; the expression 'wilful' requires proof that the
offence was committed intentionally; no such proof was brought on record by the
prosecution; reliance is placed on "The State v. Syed Aamir Shabbir" [2016 PCr.LJ
286], "Muhammad Irfan v. The State" [2018 PCr.LJ Note 68], "Rahmatullah v. The
State" [2018 PCr.LJ Note 31], "Mst. Saira Bibi v. Muhammad Asif and others" [2009
SCMR 946], "Mukhtar Ahmad v. The State" [2003 SCMR 1734], "Muhammad
Akram v. The State" [2009 SCMR 230], "Saleem Muhammad and another v. The
State and another" [2017 PCr.LJ 1391], "State v. Ali Asghar" [2017 PCr.LJ 349],
"Sarfraz alias Safu and others v. The State" [2017 YLR Note 220], "The State v.
Muhammad Asif Saigol and others" [PLD 2016 SC 620].
10. Mr. Tariq Mahmood Jahangiri, learned Advocate General, Islamabad has
argued that; the learned trial Court did not appreciate the evidence and has misread
the same by extending benefit of doubt in favour of the Appellants except in case of
the offence under section 328-A of the P.P.C.; the witnesses were reliable and
trustworthy; the witnesses were consistent and the prosecution had established its case
beyond a shadow of doubt; Tayyaba Bibi was less than 10 years old and she was
subjected to ill-treatment in the house of the appellants; the Appellants had
deliberately subjected a child to torture; she was locked out of the house and was left
all alone when the Appellants had gone out on 26-12-2016; on the same date Tayyaba
Bibi was brought from the house of the neighbours by Raja Khurram Ali Khan;
because the cruel and inhuman treatment attracted media attention, the Appellants
tried to hide Tayyaba Bibi because of her being severely injured; a false ruput through
the Naib Court was recorded in the concerned Police Station; offences under sections
337-A(i), 337-F(i) and 201 of the P.P.C. were made out; the offence under section
328-A of the P.P.C. was also established by the prosecution beyond a shadow of
doubt and there was no reason for awarding a reduced sentence; the Appellants had
wilfully committed acts and omissions which had led to the consequences
contemplated under various offences; reliance has been placed on the cases titled
"Mirza Shaukat Baig and others v. Shahid Jamil and others" [PLD 2005 SC 530],
"Muhammad Amin Qureshi and another v. The State" [2007 PCr.LJ 105], "Abdul
Ahad v. The State and another" [PLD 2007 Peshawar 83], "Om Parkash Gupta v.
State of U.P." [AIR 1957 SC 458], "Ali Ahmad and others v. The State and others"
[2013 PCr.LJ 1763], "Nasir Khan v. Qasim Khan and another" [2017 PCr.LJ 130],
"Said Zaman Khan and others v. FOP through Secretary Ministry of Defence and
others" [2017 SCMR 1249], "Muhammad Imran v. The State and another" [2013 YLR
1409] and "Dad Muhammad alias Dada v. The State" [2015 PCr.LJ 944].
11. The learned counsel for the Appellants and the learned Advocate General have
been heard and the record carefully perused with their able assistance.
12. This case involves a child who, at the relevant time, was less than 10 years
old. Her custody was given to a person, namely Nadra Bibi, so that she could be
transported and employed as a domestic worker in another city. The object was
exploitation of the child in return for gain which was to be received by her father.
Nadra Bibi initially transported and handed over custody of the child to one Sehrish
Bibi and then to the appellants. Raja Khurram Ali Khan is a law graduate and, at the
time the offence was committed, he was holding the post of Additional District and
Sessions Judge at Islamabad. His wife, namely Maheen Zafar, is a housewife and they
have children of their own who are either of the same age as Tayyaba Bibi or
younger. It is established from the evidence brought on record that Tayyaba Bibi was
employed to look after the child of the Appellants and to work in the kitchen.
Tayyaba Bibi was thus exposed to the hazards of the kitchen such as fire, hot
surfaces, sharp knives, toxic chemicals etc. She was not admitted in any school and
thus her right to education was also denied. Admittedly, neither was the consent of
Tayyaba Bibi sought nor was her engagement as a domestic worker (servant)
governed under a contractual arrangement agreed at arm's length. There were no fixed
working hours nor was she paid the minimum wage determined by the State of
Pakistan. Needless to mention that because of her age she was not even competent to
contract. Tayyaba Bibi had been working at the residence of the Appellants as a
domestic worker since October, 2016. The Protocol to Prevent, Suppress and Punish
Trafficking in Persons Especially Women and Children, supplementing the United
Nations Convention against Transnational Organized Crime adopted for ratification
and accession by the General Assembly resolution 55/25 dated 15-11-2000 provides
under Article 3(c) that recruitment, transportation, harboring or receipt of a child f or
the purpose of exploitation shall be considered 'trafficking in persons' even if it does
not involve any of the means described in Article 3(a). Child has been defined under
Article 3(d) as meaning any person under eighteen years of age. This is an
internationally accepted definition of 'trafficking of a child'. 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. One who is under the power of a master, and
who belongs to him ...". Likewise, 'slavery' is defined as 'The condition of a slave,
that civil relation in which one man has absolute power over the life, fortune and
liberty of another'. Child slavery is referred to exploitation of a child for someone
else's gain. The significance of this discussion would be highlighted later. It is
sufficient to say at this stage that Tayyaba Bibi, a child less than ten years old, was
brought to the house of Raja Khurram Ali Khan for being engaged in domestic work
and her responsibilities were of a nature which had exposed her to physical and
psychological harm. She had no freedom of action and her life and liberty were
completely in the control of Raja Khurram Ali Khan as long as she worked as a
domestic worker. As it would become evident later, even when she had been injured
her liberty was controlled by Raja Khurram Ali Khan. In exchange the latter had paid
a meager amount of Rs. 18000/- to her father. Her status was not different from a
child who is a victim of trafficking and has to endure degrading treatment of being a
virtual modern day slave. Whether this was 'wilful ill treatment' or 'wilful neglect' for
the purposes of section 328-A of the P.P.C. will be discussed in more detail later.
13. The Appellants had been living in the house where the events had taken place
for about one and a half years. The house next door had been occupied by the
occupants for more than twelve years. Having lived as neighbours for almost one and
a half years, admittedly, none had any complaint against each other. Moreover, there
was hardly any interaction till 26.12.2016 when Raja Khurram Ali Khan had visited
the neighbours for the purpose of bringing Tayyaba Bibi back to his house. Ms. Maria
Hayat, PW-2, and her mother Ms. Naila Khizar, PW-3, were the next door
neighbours. Ms. Nishaa Ishtiak, PW-7, was, at the relevant time, an Executive
Magistrate/Assistant Commissioner and was closely known to them. Guldaraz Khan,
PW-12, at the time of registration of the criminal case, was employed as a cook in the
house of the next door neighbours i.e. PW-3 and PW-2. By the time he had entered
the witness-box as PW-12 he was no more employed. What is established from the
evidence without doubt is that there was no reason whatsoever for PW 2, PW 3, PW
4, PW 7, and PW 12, all independent witnesses, to depose falsely. Moreover, despite
being cross-examined, the veracity and truthfulness of their depositions could not be
shaken. It was understood that Raja Khurram Ali Khan, holding a law degree and an
exalted position in the District Judiciary of Islamabad, would have known the
consequences of his actions and omissions more than a person of ordinary prudence.
Needless to mention that it is settled law that a Judge must wear all the laws of the
country on the sleeves of his robe. Reliance is placed on the cases titled "Iffat Jabeen
v. District Education Officer (M.E.E.) Lahore and another" [2011 SCMR 437],
"Section Officer, Government of Punjab, Finance Department and others v. Ghulam
Shabbir" [2010 SCMR 1425], "Land Acquisition Collector and 06 others v.
Muhammad Nawaz and 06 others" [PLD 2010 SC 745].
14. As noted above, the first interaction of the child Tayyaba Bibi with Ms. Maria
Hayat and Ms. Naila Khizar was on 26-12-2016. They were not cross-examined
regarding two crucial facts which they had stated in their respective examinations in
chief, firstly, the events of 26-12-2016 and secondly, that they saw Tayyaba Bibi in
an injured condition on 28.12.2016 and the statement attributed to her. Guldaraz
Khan, PW-12, further corroborated the statements of PW 2 and PW 3. There is also
no reason to disbelieve the deposition of PW 7 namely Nishaa Ishtiak. The
depositions of Ms. Maria Hayat, PW-2, Mst Naila Khizar, PW-3, Ms. Humaira
Haroon, PW-4 and Guldaraz Khan, PW-12, remained consistent despite having been
subjected to cross-examination. Their testimonies are definitely reliable, trustworthy
and unshaken. It is settled law that when a witness is not cross-examined regarding a
material part of his/her evidence then the inference would be that the truth of the same
was accepted by the other side, particularly when the statement is material to the
controversy of the case. When not challenged in cross-examination then such an
unchallenged statement is required to be given full credit and usually accepted as true
unless discarded by reliable and cogent evidence. Reliance is placed on the cases
titled "Mst. Nur Jehan Begum through Legal Representatives v. Syed Mujtaba Ali
Naqvi" [1991 SCMR 2300] and "Dr. Javaid Akhtar v. The State" [PLD 2007 SC 249].
15. The above consistent, reliable and trust worthy evidence of independent key
witnesses, who had no ill will whatsoever towards the appellants, was further
corroborated by testimonies of other witnesses who had entered the witness box. It is
evident from the deposition of Khalid Mahmood Awan, PW-16, who at the relevant
time was the Incharge of the Police Station Industrial Area, I-9, Islamabad, that the
photographs showing Tayyaba Bibi in an injured condition were circulating on the
social media, so much so that he had also received them on his WhatsApp. He had
also deposed that some lady had specifically informed him on 28-12-2016 regarding
the treatment and condition of the child. Khalid Mahmood Awan, PW-16, had
unambiguously deposed that when he picked up Tayyaba Bibi from the house of Raja
Khurram Ali Khan she was in an injured condition. She was taken to PIMS and,
pursuant to her medical examination, the injuries reproduced above were confirmed in
the Medico Legal Report, Exh.PW-5/A, by Dr. Muhammad Naseer, who appeared as
PW-5. Shakeel Ahmed, ASI (PW-10), who was present at the Hospital along with
Tayyaba Bibi, confirmed during his cross-examination as follows:
"It is correct that I prepared the injury sheet, however, I and doctor were not
satisfied as to the cause of injury as she had not suffered those injuries from
fall from the stairs or otherwise. Again volunteered that the injuries or the burn
marks were not because of any fall but were caused by deliberate act."
16. The medical evidence confirms the testimonies of PWs 2, 3, 4 and 12. The
appellants, in their statements recorded under section 342 of the Cr.P.C, have vaguely
stated that "wounds over hand and face were accidental, the contact burn over back
were inflicted in the crisis manage-ment centre because the wounds were not even
complained of in the complaint in Ex-PW 7/A and MLR Ex-PW 5/A". No explanation
was given regarding the accident which had caused the injuries on the face and hands.
Nonetheless, this statement acknowledges that the injuries were caused while
Tayyaba Bibi was in their house. It would be pertinent to refer to the judgment of the
august Supreme Court in the case titled "Saeed Ahmed v. The State" [2015 SCMR
710] wherein it has been held as follows:
"That with regard to vulnerable members of Society, such as children, women
and the infirm, who were living with the accused or were last in his company
the accused ought to offer some explanation of what happened to them. If
instead he remains silent or offers a false explanation he casts a shadow upon
himself. This does not mean that the burden of proof has shifted onto the
accused as it is for the prosecution to prove its case, however, in respect of the
helpless or the weak that require protection or care it would not be sufficient
for the accused to stay silent in circumstances which tend to incriminate him,
and if he elects to do so he lightens the burden of the prosecution."
17. Moreover, Tayyaba Bibi's examination in chief to the extent that her injuries
were not caused accidentally is corroborated by medical evidence, her photographs,
the depositions of witnesses and the narration of facts in the FIR. The learned trial
Judge had explicitly noted that during the cross-examination she was answering every
question in the affirmative. This mechanical response during the cross-examination
was obviously because of the extreme trauma which she had to endure and the manner
in which she had been initially dealt with by the investigators, particularly PW 16, as
is evident from the recorded statement on the CD Ex. DA which is not disputed. The
entire cross-examination was based on this very statement. The recovery of items
used for causing the injury and burns vide recovery memo Ex. PW 8/A was pursuant
to having been led by Tayyaba Bibi herself.
18. There is no force in the argument raised by the learned counsel for the
Appellants that since the written complaint was not signed by Tayyaba Bibi, therefore
a case could not have been registered pursuant thereto. It is settled law that a first
information report under section 154 of the Cr.P.C. can be registered by the Incharge
of a Police Station regardless of how and in what manner the information has been
received. The First Information Report is neither substantive evidence nor an
exhaustive document. It is merely a first information report regarding the commission
of a cognizable offence. Moreover, PW 16 admits to have received information and
photographs of the injured child on 28.12.2016. He picked up the child on 29.12.2016
in an injured state and this in itself was sufficient for the recording of a First
Information Report.
19. There is yet another crucial dimension i.e. the mystery of ruput No. 24, dated
28-12-2016, Ex.PW 16/8. Interestingly, Raja Khurram Ali Khan, in his statement
recorded under section 342 of the Cr.P.C., did not deny its recording. He rather stated
that it was not investigated. It was recorded at about 10.30 am on 28.12.2016. On the
same day the witnesses PW 2, PW 3, PW 4 and PW 12 saw her in an injured
condition and this material part of the examination in chief was not cross -examined.
Khalid Mehmood Awan, PW 16, had deposed during cross-examination that on
28.12.2016 some lady had informed him regarding the condition of the child and had
received photographs of an injured Tayyaba on his WhatsApp. Raja Khurram Ali
Khan, in his statement recorded under section 342, gave an evasive response relating
to Tayyaba having gone missing on 27.12.2016. However, he did not give any
explanation regarding the presence of Tayyaba in his house on 28.12.2016 when the
witnesses saw her in an injured condition and in particular when she was picked up by
Khalid Mehmood Awan, PW 16 on 29.12.2016. It is established on the basis of
recorded evidence that in fact Tayyaba had never gone missing and false information
was provided to the Police Station which had led to the recording of rupat No. 24,
dated 28.12.2016. It was an attempt to hide Tayyaba Bibi because, sometime between
9.30 pm on 26.12.2016 till the witnesses saw her on 28.12.2016, she had suffered
injuries and burns on her face and hands. It was obviously to conceal evidence of the
commission of the offence.
20. It is obvious from the above that the prosecution evidence has established
beyond a reasonable doubt that on 26.12.2016 Tayyaba Bibi had been left alone by
the appellants. She was found shivering because of being exposed to cold. Around
9.30 pm Raja Khurram Ali Khan took her to his house from that of his neighbours.
From the evening of 26.12.2016 till 29.12.2016 she remained in the custody of the
appellants. On 28.12.2016 witnesses saw her in the house of Raja Khurram Ali Khan
in an injured condition. Despite severe injuries the latter did not take her to a medical
practitioner nor was medical aid given till her custody was handed over to PW 16 on
29.12.2016. There was no fall and the injuries and burns were not accidental. The
Appellants had hidden the child to ensure the disappearance of the evidence of the
commission of the offence against the child who had suffered injuries and burns. The
offence under section 201 of the P.P.C. stood proved. Were the injuries and burns
suffered by Tayyaba Bibi inflicted by Maheen Zafar and, therefore, offences under
sections 337-A(i) and 337-F(i) P.P.C. also stood established? Were these offences
proved beyond a shadow of doubt? The injuries and burns having been inflicted by
Maheen Zafar have been described by Tayyaba Bibi in her examination in chief. The
same was also narrated by her to the witnesses i.e. PW 2, 3 and 4 on 28.12.2016. The
items which were said to have been used to inflict the injuries and burns were
recovered pursuant to information provided by Tayyaba Bibi. We have no reason to
disbelieve her depositions while recording of her examination in chief. Her cross -
examination was confined to the video recorded statement made by Khalid Mehmood
Awan, PW 16. She was only asked questions relating to answers given in response to
the leading questions and interjections by a lady who apparently seemed to have been
known to the victim. However the material facts deposed by her during examination
in chief were not cross-examined. The video statement referred to during cross-
examination was brought on record in the form of CD, Ex. DA. As noted above, it
was an obvious attempt to intimidate and influence the already traumatized and
injured child to achieve some desired results. The learned trial Judge had also
observed the unusual and mechanical replies given by the child during her cross -
examination. Whenever the child was given an opportunity to give her version
without being intimidated she narrated exactly what was deposed by her during the
examination in chief and also narrated in the FIR. Interestingly, she was not cross -
examined on the material facts deposed by her during examination in chief and asking
her regarding what was said in the video statement recorded by PW 16 under
mysterious and intimidating circumstances was inconsequential. It did not challenge
the facts narrated during examination in chief. The failure to cross-examine PW 2
regarding the most material fact that she saw the child in an injured condition on
28.12.2016 and that the latter told her that the injuries had been caused by "Manoo
Baji". The question put to her in cross-examination was whether she had witnessed
that the child was beaten. However, deposition regarding presence of Tayyaba in the
house of Raja Khurram Ali Khan on 28.12.2016, the latter having been seen in an
injured condition and that her statement relating to injuries having been caused by
Maheen Zafar went unchallenged. This raises the inference that the truth thereof was
accepted. As noted, there is consistent, reliable and trustworthy corroboration of the
statement of Tayyaba Bibi deposed during examination in chief that her injuries were
caused by Maheen Zafar and no one else. The learned trial Court appreciated that the
statement of Tayyaba Bibi recorded by PW 16, the video recording whereof was
brought on record as Ex. DA, was based on leading questions and that the
interjections by a female were not bona fide but yet placing reliance thereon that too
by excluding from consideration other material evidence rendered the conclusions
perverse. The questioning was in the nature of tutoring the traumatized and frightened
child while the interjections by a female were an obvious attempt to favour the
Appellants' case and thus such statement could not have been relied upon. The other
material evidence discussed above was also not taken into consideration. We are,
therefore, of the firm opinion that on the basis of evidence brought on record the
offences under sections 337 A(i) and 337 F(i) of the P.P.C. stand established beyond a
reasonable doubt against Maheen Zafar.
21. Lastly, it brings us to the commission of the offence under section 328-A of
the P.P.C. The learned trial Court has handed down the conviction and lesser se ntence
of one year for this offence. The said section was inserted in Chapter-XVI of the
P.P.C. vide Act X of 2016. The said provision is reproduced as follows:
"[328A. Cruelty to a child.---Whoever wilfully assaults, ill-treats, neglects,
abandons or does an act of omission or commission, that results in or has,
potential to harm or injure the child by causing physical or psychological
injury to him shall be punished with imprisonment of either description for a
term which shall not be less than one year and may extend upto three years, or
with fine which shall not be less than twenty-five thousand rupees and may
extend upto fifty thousand rupees, or with both.]"
22. The above provision was made a criminal offence in 2016 and it is in addition
to the offence under section 328. Both the offences criminalize acts and omissions
relating to a child. Section 328A has a wide scope and, as is evident from its title, its
object and purpose is to protect a child from cruelty. It is, therefore, a specific offense
aimed at the protection of a child from the consequences of acts or omissions
described therein. It is a settled principle of criminal law that for the commission of
an offence two factors are mandatory. 'Actus reus' is the physical element i.e. the
actual act and 'mens rea' is the mental factor which relates to the person's awareness
or intention that the conduct constitutes a crime. The offence under section 328A can
be committed in one of the ways described therein i.e. 'assault', 'ill treat', 'neglect',
'abandon', 'doing of any act of omission or commission'. The consequence of such
'actus reus' has been described as actual or potential harm or injury to a child which is
either physical or psychological. It is obvious, therefore, that the consequence need
not actually harm or injure a child physically or psychologically but the potential of
such harm or injury to a child would also be sufficient to attract the offence under
section 328A. The adverb 'wilfully' qualifies the expressions 'assaults', 'ill treats ',
'abandons' 'neglects' and 'doing of an act or omission'. The expression 'wilfully' thus
manifests the mental element or, in other words, the 'mens rea' required in addition to
one of the conduct factors to hold a person guilty for committing the offence under
section 328A of the P.P.C. The prosecution, therefore, has to prove that the accused
had 'wilfully illtreated', 'wilfully assaulted', 'wilfully abandoned' or 'wilfully
neglected' so as to bring about the consequences contemplated under section 328A.
The question, therefore, which needs to be answered is the appropriate test to
determine the mens rea in the context of the said offence. There is no cavil to the
proposition that the language employed by the legislature, the context of the particular
legislation and the mischief which the offence aims at criminalizing generally
determines how the element of mens rea would be satisfied. The conduct of an
accused can be measured on the basis of two tests, firstly, an objective standard and
secondly, the subjective mental state of the actor. The subjective test seeks to
establish what was actually in the mind of the accused when the offence was
committed or, in other words, was the person aware of what he or she was doing. On
the other hand, the objective standard of mens rea is the test of a reasonable man
without having reference of what was intended or known at the time of the
commission of the offence. As will be discussed later, in other jurisdictions and
depending on the particular provision and its context, it may require as a subjective
test proof of a positive state of mind such as 'recklessness' or 'wilful blindness'.
23. The learned counsel for the Appellants has laid great stress on the expression
"wilfully" in support of his contention that the prosecution is required to establish
beyond reasonable doubt that the action or omission contemplated in section 328 -A of
the P.P.C. was actually intended to have been committed. In order to answer the
question of the standard of mens rea required to be satisfied in the context of section
328-A it would be advantageous to examine the precedent law.
24. The expression 'wilfully' has been interpreted and understood in different
ways, depending on the context and language used by the legislature in a particular
provision. In the case titled "Mirza Shaukat Baig and others v. Shahid Jamil and
others" [PLD 2005 Supreme Court 530], the august Supreme Court has referred to
various definitions of the expression "wilfully" and the relevant portion is reproduced
below:
"The words "designed to" as used in section 6 of the Act can be equated to that
of 'wilful' which means intending the result which actually comes to pass;
design; intentional; not incidental or involuntary. Again it says 'wilfully' is
generally used to mean with evil purpose, criminal intent or the like. In R.V.
Senior, willfully, was interpreted to mean deliberately and intentional, not
accidentally or inadvertently." [(1899) 1 Q B 283). (Words and Phrases,
permanent Edn. Vol. 45, p.275).
According to Halsbury's Law of England, Fourth Edition, Vol.11, para. 1252
'wilfully' means deliberately and intentional, not accidentally or inadvertently.
Frank R. Prassel in his Criminal law, Justice and Society 1979 Edition, page
150 says that "Intent is probably the most common, at least for the major
traditional offences, but some codes call the proof of 'wilful' 'voluntary',
'malicious', 'corrupt', or 'purposeful' product instead. These terms are generally
accorded similar legal meanings, subject to limited variation from one
jurisdiction to another.
According to Black's Law Dictionary, Fifth Edition, "an act is done willfully
and knowingly when the actor intends to do it and knows nature of the act.
Further that an act or omission is 'wilfully' done, if done voluntarily and
intentionally and with the specific intent to do something the law forbids, or
with the specific intent to fall to do something the law requires to be done; that
is to say, with bad purpose either to disobey or to disregard the law. It goes on
to say that when used in criminal context it generally means an act done with a
bad purpose, without justifiable excuse; stubbornly, obstinately, perversely.
The word is also employed to characterize a thing done without ground for
believing it is lawful or conduct marked by a careless disregard whether or not
one has the right so to act."
Stroud's Judicial Dictionary Vol.4, third Edition, says "that the legal meaning
of willful is purposely without regard to bona fides or collusion and
deliberately and intentionally but does not involve obstinacy of an obstructive
kind and it means an intentional disobedience. In the Law Terms and Phrases
Judicially Interpreted, by Sardar Muhammad Iqbal Khan Mokal, the term
"willfully" amounts to nothing more than this that the person whose action is
in question, knows that he is doing and intends to do what he is doing and is
free agent. He further says that willful means wantonly, intentional,
deliberately and consciously and not accidentally or by inadvertence.
Reference is made there to Madras State Waqf Board v. Tajammal Hussain
 (AIR 1968 Mad. 332) and Kedar Nath v. The State (AIR 1965 All. 233)."
20. According to Cyclopaedic Law Dictionary, 2nd Edition, the word 'wilfully'
"means in the common sense, voluntary or intentional. In criminal law the
term generally means more than 'voluntary' and implies an evil mind or
intent."
25. The august Supreme Court in the case titled "The State through Chairman
NAB and others v. Muhammad Asif Saigol and others" [PLD 2016 Supreme Court
620], while considering the expression "wilful default" used in section 9 of the
National Accountability Ordinance, 1999, has examined the precedent law from
various jurisdictions. The august Supreme Court has quoted with approval a passage
from the English case of "The Queen v. Senior ([1899] IQB 283) and the same is
reproduced as follows:
"Wilfully" means that the act is done deliberately and intentionally, or by
accident or inadvertence, but so that the mind of the person who does the act
goes with it. Neglect is the want of reasonable care - that is, the omission of
such steps as a reasonable parent would take, such as are usually taken in the
ordinary experience of mankind - that is, in such a case as the present,
provided the parent had such means as would enable him to take the necessary
steps."
26. The august Supreme Court has also cited with approval the judgment reported
as [2003 PLC (C.S.) 1277] titled "Saadat Pervaz Sayan v. Chief Secretary,
Government of Punjab" wherein in the context of "wilful negligence" the objective
standard of mens rea has been acknowledged.
27. It would be pertinent to refer to two judgments from foreign jurisdictions
which are relevant for the adjudication of the instant petition in the context of
interpreting the expression "wilfully", qualifying the verbs used in section 328-A of
the P.P.C. The first case is "R v. Sheppard and another [1980] 3 All ER 899, rendered
by the House of Lords. The facts in that case were that a child who was 16 months old
died from hypothermia associated with malnutrition. The parents were charged and
subsequently convicted and sentenced for having wilfully neglected the child. The
House of Lords interpreted the standard of mens rea required for establishing an
offence under section 1(1) of the Children and Young Persons Act 1933. The said
provision is quite similar to section 328-A of the P.P.C. The majority judgment was
rendered by Lord Diplock and the relevant portions are reproduced as follows:
"The actus reus in a case of wilful neglect is simply a failure, for whatever
reason, to provide the child whenever it in fact needs medical aid with the
medical aid it needs, such a failure as it seems to me could not be properly
described as 'wilful' unless the parent either (I) had directed his mind to the
question whether there was some risk (though it might fall far short of a
probability) that the child's health might suffer unless he were examined by a
doctor and provided with such curative treatment as the examination might
reveal as necessary, and had made a conscious decision, for whatever reason,
to refrain from arranging for such medical examination, or (2) had so refrained
because he did not care whether the child might be in need of medical
treatment or not."
"The proper direction to be given to jury on a charge of wilful neglect of a
child under s I of the Children and Young Persons Act, 1933 by failing to
provide adequate medical aid is that the jury must be satisfied (I) that the child
did in fact need medical aid at the time at which the parent is charged with
failing to provide it (the actus reus) and (2) either that the parent was aware at
that time that the child's health might be at risk if it was not provided with
medical aid or that the parent's unawareness of this fact was due to his not
caring whether his child's health was at risk or not (the mens rea)."
28. The majority, therefore, has held that two types of persons would be guilty of
'wilful neglect', one who knows that a person needs medical assistance and yet fails to
make arrangements deliberately or as a conscious decision and, equally, a person who
fails to do so because he or she does not care whether it is needed or not. The latter
falls in the category of recklessness and thus satisfies the required test of mens re a for
a guilty verdict. This test is applied particularly in the context of offences related to
child protection and where the actues reus is an omission or failure to act. We see no
reason why the same test may not be applied in the case of 'wilfully neglects' or
'wilfully abandons' in the context of section 328A of the P.P.C., keeping in view the
language used by the legislature, the context and the mischief which the offence aims
at preventing.
29. The other case is that of the Supreme Court of Canada rendered in the case
"R.v. A.D.H., 2013 SCC 28, [2013]2 SCR 269". The facts were that a 22 year old girl,
who did not know that she was pregnant, gave birth to a baby while using a public
toilet in a Super Market. The relevant provision qualified 'abandon' with 'wilful'. The
majority judgment was delivered by Cromwell J. The Supreme Court of Canada held
that the required test for determining the requisite mens rea in the context of wilfully
abandoning a child was subjective. However, the subjective test was interpreted in a
manner which is not different from the enunciation by the House of Lords in the
above discussed case. The relevant portions are reproduced as follows;
"In general terms, when a fault element is assessed subjectively, the focus is
on what the accused actually knew: Did the accused know that abandoning the
child would put the child's life or health at risk? If, as the respondent believed,
the child was dead when she abandoned him, she would not know that her
abandonment of him risked putting his life or health at risk. Again to speak
generally, when assessed objectively, the focus is not on what the accused
actually knew, but on whether a reasonable person in those circumstances
would have seen the risk and whether the accused's conduct is a marked
departure from what a reasonable person would have done. If a court were
persuaded that a reasonable person would have seen the risk of abandoning the
child in these circumstances and concluded that the accused's conduct was a
marked departure from that expected of a reasonable person, the fault element
would be established even though the accused in fact did not see the risk."
"On the other hand, a subjective standard means, in the context of an offense
under s. 218 of the Code, that the fault element requires proof at least of
recklessness, in other words that the accused persisted in a course of conduct
knowing of the risk which it created. Subjective fault, of course, may also
refer to other states of mind. It includes of intention to bring about certain
consequences, actual knowledge that the consequences will occur, or wilful
blindness ---- the knowledge of the need to inquire as to the consequences and
deliberate failure to do so"
30. We, therefore, advert to examining section 328A of the P.P.C. The legislature
has inserted the offence through an amendment which was made in 2016. It is aimed
at protecting a child from cruelty by criminalizing particular conduct described
therein. A person who wilfully assaults, abandons, ill treats, neglects or d oes 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 328A. The language makes it obvious that the legislature has
intended to protect a child from the risk of physical or psychological harm or injury
even if actual harm does not occur. If the described conduct potentially exposes the
child to the risk of harm or injury and the requisite mental element of mens rea is in
existence, even then the person would be guilty of committing the offence. The
appropriate test for the requisite mens rea, as already noted above, would be that
either the wilful neglect which had resulted in or had exposed the child to the
potential risk of harm or injury was due to awareness or that the unawareness was
because of not caring whether the child would be at risk or not. The expression 'ill
treats' is not defined but indeed has wide meanings. Its ordinary dictionary meaning in
the Chambers Dictionary (Tenth Edition) is; to treat badly or cruelly; to abuse.
Concise Oxford English Dictionary (12th Edition) defines the expression as to 'act
cruelly towards'. 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 other words used in the section and qualified
by the adverb 'wilfully' such as 'assault' or 'abandon' would also be interpreted in the
light of the ordinary dictionary meaning unless defined in the statute. The expression
'or does an act of omission or commission' further manifests the legislative intent by
enlarging the scope of the criminal offence. Children are one of the most vulnerable
members of society who cannot defend themselves against the risk of harm. Section
328A, therefore, criminalizes the creation or potential risk of harm and injury. The
appropriate test or standard of mens rea required would be the same as discussed
above. It is, therefore, obvious that exploitation of a child for the gain of another
person; trafficking for the purpose of exploitation; cruel, inhuman, degrading and
humiliating treatment of a child, whether due to neglect or ill treatment will attract the
criminal offence under section 328A if the mental element i.e. mens rea discussed
above is satisfied. This offence may also be attracted in cases where child maids are
publically treated in a degrading manner such as by making them sit or stand
separately e.g. in an eating place while the employers have their meals. Such
treatment would obviously fall within the ambit of 'wilful ill treatment' or 'wilful
neglect' depending on the facts and circumstances and the satisfaction of the test of
mens rea discussed above. In a nutshell, the criminal offence under section 328A
protects a child from the risk of harm or injury, physical or psychological whether
actual or potential.
31. This offence is definitely intended, as is obvious from the language used by
the legislature, to protect children from many cruel and inhuman practices prevalent
in society and which also have a tacit social acceptability e.g. exploiting a child for
the gain of another, degrading and humiliating treatment of a child, trafficking of
children for exploitation, engaging a child for domestic work and creating risk of
harm physically or psychologically etc. Mostly such exploitation is justified on the
ground of helping the poor without realizing that the victim who suffers and is
exposed to the risk of harm is an innocent and vulnerable human life. Such
exploitation and ill treatment of a child invariably leads to grave physical and
psychological abuse while the beneficiary is someone else. There can be no
justification for ill treatment or neglect of a child which exposes him or her to grave
risk of harm. The justification of cruel and inhuman treatment of an innocent child on
the ground of poverty was used as a pretext by those who were engaged in the
widespread custom of infanticide of baby girls at the time of the advent of Islam. It
was thus revealed in the Quran; 17;31 "You shall not kill your children due to fear of
poverty. We provide for them, as well as for you. Killing them is a gross offence",
and (Quran 6;140) "Losers are those who killed their children foolishly due to their
lack of knowledge, and prohibited what Allah has provided for them, and followed
innovations attributed to Him. They have gone astray, they are not guided". The Holy
Prophet (May Peace Be Upon Him) had stressed that 'Love your children and be kind
and merciful to them". The justification of ill treatment and neglect on the ground of
poverty is a negation of the express command of the Quran. Moreover, this purported
social acceptability of exploitation of a child on the ground of poverty is exposed as
having no moral base because when those who are exposed of being engaged in
keeping children as domestic servants in conditions which virtually tantamount to
bondage and servitude, they refuse to publically acknowledge or own their acts
because of the awareness of being stigmatized. This awareness itself is suffi cient to
satisfy the required standard of mens rea for ill treatment or neglect because it is
conscious and deliberate.
32. In the instant case, Tayyaba Bibi was indeed a victim of the worst form of
wilful neglect and ill treatment. As a child she was forced to endure the worst form of
inhuman behaviour and ill treatment at the hands of adults who owed her a duty of
care. From being exploited for the gain of Rs. 18000/- by her father, trafficked and
forced to work in the most dangerous conditions, to being battered, beaten, burnt and
then hidden to escape from being stigmatized in society, this is a classic case of
manifesting the criminal conduct and ensuing consequences contemplated under
section 328A of the P.P.C. As discussed above, the Appellants, having left Tayyaba
Bibi alone in the house and exposed to the cold weather in the evening of 26.12.2016
stands proved beyond any doubt. Hiding her while in an injured condition and causing
a false report to be recorded in the concerned Police Station that she was missing
since 27.12.2016 also stands proved from the evidence. Despite being injured and
seen in such condition on 28.12.2016 by witnesses PWs 2, 3 and 4 and yet not giving
her medical assistance was wilful neglect and ill treatment at the hands of the
appellants. Depriving her of the right of education and keeping her in virtual servitude
can obviously not be justified by someone who held the position of a Judge. The
deliberate attempt to hide the injured child Tayyaba Bibi between the evening of
26.12.2016 till she was picked up by PW 16 on 29.12.2016 and failure to give her
medical assistance alone satisfies not only the actus reus contemplated under section
328A of the P.P.C. but also satisfies the required mens rea. The offence under section
328A of the P.P.C., therefore, stands proved against both Raja Khurram Ali Khan and
Maheen Zafar. The question which needs to be answered is whether the learned trial
Judge was justified in handing down the lesser punishment.
33. A Division Bench of this Court in the case titled "Regional Director Anti
Narcotics Force, Rawalpindi through its Additional Director Law v. Muhammad
Aslam" (Crl. Appeal No. 151 of 2016) has summarized the principles and law
regarding the quantum of sentence and the same are as follows;
(a) The Court has the discretion to award an adequate sentence having regard
to the facts and circumstances of the case at hand.
(b) Discretion has to be structured and exercised by applying an independent
mind, uninfluenced by irrelevant or extraneous considerations. Such
application of mind ought to be obvious from the reasoning recorded in each
case.
(c) While determining the quantum of sentence the underlying object and
purpose of the relevant statute and the gravity of offence ought to be taken into
consideration. Sentence has to be proportionate to the gravity of the offence.
(d) The gravity of an offence is indicated by the maximum punishment
prescribed under the relevant statute and it is for the Court to judge the extent
to which an act committed falls short of the maximum punishment prescribed
by the legislature.
(e) If the relevant statute prescribes two or more punishments for an offence
then imposing the lesser punishment would only be justified if the Court is
satisfied that extenuating or mitigating circumstances exist for doing so.
(f) The nature of proof has no relevance with the character of the punishment.
(g) All the circumstances surrounding the guilt must be carefully borne in
mind. The punishment or sentence should be adequate so as to have an
effective deterrence for the offender as well as the rest of the society.
(h) If the sample sent for chemical examination is not a representative sample
of the entire substance recovered then the quantum of sentence would be
determined on the basis of the weight of samples sent for examination.
(i) The sentence prescribed by the legislature in the relevant statute has to be
applied with the same rigour to every person subjected to it regardless of his or
her nationality, age, social or financial status etc.
(j) The nature of the recovered substance would be a relevant factor to
consider. The quantity of recovered substance and not the weight on the basis
of processing thereof will be taken into consideration.
(k) When the recovery is made from possession of more than one convict then
each would be liable on the basis of the whole quantity.
Reliance is placed on the cases titled as 'Collector of Customs, Collectorate of
Customs, Rawalpindi v. Khud-e-Noor and others' [2006 SCMR 1609], 'Joshua
Chigbogu v. The State' [2006 SCMR 1539], 'Zahid Imran and others v. The State'
[PLD 2006 SC 109], 'Faisal Aleem v. The State' [PLD 2010 SC 1080], 'Ameer Zeb v.
The State' [PLD 2012 SC 380], 'Khuda Bakhsh v. The State' [2015 SCMR 735],
'Secretary, Government of Punjab and others v. Khalid Hussain Hamdani and 2
others' [2013 SCMR 817], 'Hassan and others v. The State and others', [PLD 2013 SC
793], 'Ghulam Mohy-ud-Din alias Haji Babu and others v. The State', [2014 SCMR
1034] and 'The State through Director ANF Peshawar v. Rashmali Khan and others'
[PLD 2016 SC 471].
34. Keeping in view the above principles and law and the facts and circumstances
of the instant case, we are satisfied that there is no mitigating factor which would cal l
for handing down the lesser sentence. The Appellants are not worthy of any sympathy
because the ill treatment and neglect was willful and cannot be justified on any
ground whatsoever. They were aware and they deliberately and consciously made an
innocent and helpless child to suffer tremendously.
35. For what has been discussed above the petition filed by the State seeking leave
is converted into an appeal and allowed. We, therefore, uphold the conviction of Raja
Khurram Ali Khan and Ms. Maheen Zafar under section 328A and enhance the
sentence to simple imprisonment of three years each along with payment of fine of
Rs.50,000/- (Rupees fifty thousand). In case of default in payment of fine the
defaulter shall undergo simple imprisonment for a period of two months in addition to
the sentence. They are also convicted under section 201 of the P.P.C. and sentenced to
simple imprisonment of six months each. We further convict Maheen Zafar under
sections 337-A(i) and 337-F(i) of P.P.C.. There can be no compensation in monetary
terms for the anguish suffered by the victim, an innocent, helpless and vulnerable
child, but we feel that an amount of Rs. 500,000/- (Rs. five hundred thousand only)
may be a reasonable symbolic payment as 'daman' to Tayyaba Bibi as compensation for
the agony which she had to suffer. We, therefore, hold Maheen Zafar liable for
payment of daman under sections 337-A(i) and 337-F(i) of P.P.C. The payment shall
be made to Tayyaba Bibi in lump sum and recovered in the manner prescribed under
section 337-Y of P.P.C. The sentences will run concurrently. The appeal preferred by
Raja Khurram Ali Khan and Maheen Zafar having been found without merit is hereby
dis-missed. Their bail bonds are cancelled and they are directed to be forthwith
arrested.
36. While parting we cannot restrain ourselves from recording our observations
regarding the failure of the criminal justice system in protecting the most weak and
vulnerable members of the society. The incharge of the concerned Police Station,
namely Khalid Mehmood Awan, Inspector, PW 16 admittedly received information
regarding the plight of a child, Tayyaba Bibi on 28.12.2016. He also candidly
admitted having received the heart wrenching photographs of an injured child on the
same day but he did not fulfill his obligations by putting the legal process into
motion. He also did not bother to respond to the report which was received at the
police station pursuant whereof ruput No.24 dated 28.12.2016 was recorded. He
seems to have been forced to move in the morning of 29.12.2016, apparently because
of the inquiry ordered by the Chief Justice of this Court and the wide publicity of the
images of an injured child on the social and electronic media. He called Raja Khurram
Ali Khan and picked up an injured child who required urgent medical assistance. It,
prima facie, appears from the CD Ex. DA that instead of rushing the child to the
hospital, he took her for the recording of her statement in the presence of some
woman who kept interjecting. The traumatized, battered and frightened child was
asked leading questions and the interjections by some lady made it obvious that
desired results favouring the Appellants were intended to be obtained. PW.16
accompanied the child to the hospital and in his presence she repeated the same facts
which were recorded at some undisclosed location. However, the child narrated
different facts when she came before Nisha Ishtiak, PW.7 which were reduced into
writing. The august Supreme Court took cognizance of the matter under Article
184(3) of the Constitution and it appears that only then the system started functioning
for this victim of neglect, inhuman treatment and the worst form of abuse. The
Medical Board was thereafter constituted and proper investigations ensued. Without
the publicity on the social and electronic media ultimately leading to the notice taken
by the august Supreme Court, the criminal justice system was not responding to the
plight of a battered and helpless child. This 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. There should have been no
need for cognizance having been taken under Article 183(4) of the Constitution for
making the criminal justice system functional for a battered child regardless to the
person accused of having committed an offence. The role of Khalid Mehmood Awan,
PW.16 in, prima facie, attempting to subvert the course of justice is evident from the
CD, Ex.D.A which requires thorough probe. If rule of law is to prevail and the
criminal justice system is to be made responsive to the weak and against alleged
offences committed by the stronger and privileged segments of the society then even
the slightest dereliction of duty by officials inevitably has to be dealt with sternly.
The Inspector General of Police, Islamabad Capital Territory is, therefore, expected to
probe the role of Khalid Mehmood Awan, PW.16, particularly regarding the making
of the video placed on record as Ex.D.A. The Inspector General is also expected to
take urgent and appropriate measures to ensure that professional officers, specially
trained to deal with victims who are children, are entrusted with cases relating to
them.
JK/79/Isl. Appeal dismissed.
;