IHC reserves decision on transferring Tayyaba case to subordinate trial court

The Islamabad High Court (IHC) on Friday reserved its decision regarding which court will hear the torture case of 10-year-old Tayyaba, a maid who was allegedly beaten by the family of a local court judge.

The Supreme Court on March 8 halted the Tayyaba trial and asked the IHC to consider transferring the case from Judicial Magistrate Islamabad Syed Haider Ali Shah to either another subordinate trial court or to consider assuming its own jurisdiction.

However, following today’s hearing, Justice Aamer Farooq reserved the decision on the issue.

The announcement is likely to come next week, a court official told Dawn.

Rights activist Asma Jahangir, who had appeared before the court on behalf of the civil society earlier, sought the transfer of the case under section 526(3) of Code of Criminal Procedure (CrPC).

According to Jahangir, the high court has the authority to transfer the matter from one trial court to another or decide the matter itself.

Ten-year-old Tayyaba was working as a maid in the house of a serving Additional District and Sessions Judge (ADSJ) Raja Khurram Ali Khan and is said to have been tortured by him and his wife, Maheen Zafar.

The Supreme Court had taken suo moto notice of the matter after reports of it surfaced on social media. A compromise was later reached between the ADSJ and the minor girl’s family.

However, the apex court on March 8 ordered that proceedings be halted in the Tayyaba torture case, telling IHC to decide on a trial court to refer the case to as it is not a trial court itself.

The court had also observed that the state should approach IHC for transferring the case to another trial court or that the SC can invoke its constitutional jurisdiction by asking the IHC to assume jurisdiction.

Today’s hearing

Counsel representing the civil society argued that if the case were to be heard by members of the subordinate judiciary, the case could be compromised as there might be a conflict of interest involved.

However, Sardar Taimur Aslam and Raja Rizwan Abbasi, the counsels representing the accused, argued against the transfer of the case to any other lower court or to the high court.

Senior advocate Ilyas Siddiqui, who is now representing Tayyaba’s parents, also opposed the transfer, saying if the trial were to be held at IHC, which is the appellate court, then both the defendant and petitioner risk losing the right to appeal the decision on two forums.

He further argued that CrPC allows for transfer of a case from one province to another with the consent of chief ministers and chief justices of the provinces involved, but that section is not applicable on Islamabad as it is a federal capital and not a province.

Siddiqui claimed that such a move would require an amendment in the CrPC.

Upon conclusion of arguments, the IHC decided to reserve its judgment.

Case history

Tayyaba, who was allegedly tortured by Khan and his wife, was rescued from his house in Islamabad with visible wounds on Dec 28, 2016. A First Information Report was registered against him and his wife on Dec 29, 2016.

By Jan 2, the accused ADSJ reached a compromise with Tayyaba’s parents through their lawyer Raja Zahoor Hassan and obtained pre-arrest bail for his wife from fellow ADSJ Raja Asif Mehmood.

On Jan 3, another colleague of the accused judge, ADSJ Atta Rabbani had handed custody of the child to her parents on a habeas corpus application, whereby which a person can report an unlawful detention of imprisonment before a court.

The apex court had directed police to investigate the case from every aspect, and on a subsequent hearing on Jan 11, observed that the role of Tayyaba’s parents’ counsel Hassan — who began practice in Islamabad a couple of years ago — was of key interest with regard to the “illegitimate” compromise first reached between the suspects and the child’s family.

Chief Justice of Pakistan Saqib Nisar had remarked during proceedings that there was no doubt that a criminal act had been committed in the Tayyaba case.

Source: Dawn