KARACHI: After the conviction of Shahrukh Jatoi under the Anti-Terrorism Act was set aside, civil society moved the Supreme Court (SC) on Monday challenging the Sindh High Court order. The high court had ruled that Shahzeb Khan’s murder did not fall within the Act’s ambit and therefore set aside the conviction of Jatoi and three others who were recently released after a compromise was reportedly reached with the deceased’s family.
Ten civil society members, including Jibran Nasir, Jamshed Raza Mehmood, Afiya Sherbano Zia, Naeem Sadiq and Faheem Zaman Khan, filed the appeal at the SC’s Karachi Registry.
The petitioners said that they have the legal right to appeal and challenge the judgment, arguing that this is an issue of public importance and involves acts of terrorism, especially considering the fact that the state has consented to the judgment and the legal heirs of the deceased person have compromised with the respondents.
They argued that the unfortunate and gruesome murder of Shahzeb resulted in creating fear, panic and insecurity amongst the people residing in the Defence and Clifton vicinities and the public in general in Karachi and Pakistan.
“This is evident from the various newspaper clippings published in relation to the aforementioned incident. It was reported that hundreds of people had come out on the streets demanding justice for the deceased on the grounds that the same could happen with their children,” they said.
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“This is because such unfortunate incidents are prevalent in our society,” the petitioners informed the court, adding that one such incident is the murder of Sulaiman Lashari, who was murdered in his home by Salman Abro and his armed guards.
The petitioner said it was pertinent to mention that Abro and the other accused were being tried by the anti-terrorism court concerned and the judgment in Shahzeb’s case will affect all similar cases.
The petitioner informed the court that on December 25, an FIR was lodged by Shahzeb’s father in relation to his murder. However, Jatoi belonged to an influential family and managed to flee Pakistan to avoid arrest.
Thereafter, the SC took suo motu notice of the murder and pursuant to various orders passed in a constitutional petition, Jatoi was brought back and arrested.
The police had charge-sheeted the suspects on February 18, 2013 before ATC-III, which framed the charges against the accused on March 7, 2013.
However, after framing the charges, Jatoi moved an application under Section 23 of the ATA for the transfer of the case to the court of ordinary jurisdiction, but the trial court had dismissed this plea.
The trial court’s order was challenged before the SHC, which on May 15, 2013 conclusively decided the question of jurisdiction in the following terms.
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The judges held that the “act of accused Shahrukh Jatoi created a sense of helplessness and insecurity amongst the people…where offence was committed and did destabilised the public at large. As such, provisions of Section 6 of the Anti-Terrorism Act, 1997 are fully attracted in this case.”
They further held that the case would fall within the jurisdiction of the ATC and ordered the trial court to decide the case expeditiously.
Jatoi challenged this order in the SC which, on October 21, 2013, also refused to grant leave to the respondent in the following terms: “This criminal petition is barred by eight days, but not accompanied with any application for condonation of delay. Otherwise too, after the final judgment passed by the trial court, this criminal petition seems to have become infructous, as the question of jurisdiction can now be agitated before the appellate court seized of the matter.”
The petitioner argued that it was evident from the SC’s aforementioned order that the criminal petition for leave to appeal against the high court’s order was not maintainable as it was at the time barred by eight days and Jatoi had failed to file an application for condonation of delay.
Through this order, the petitioners argued that the SC had not issued any direction in respect of the SHC’s order. Secondly, the passing observations given by the SC can in no manner be considered directions issued by, or even obiter dicta of, this court.
Thirdly, the observations do not set aside the high court’s judgment, therefore, May 15, 2013 is binding on any subsequent divisional bench of the SHC adjudicating the same issue in the same case.
They argued that another bench of the SHC on November 28 set aside the convictions and sentences awarded by the ATC to the respondents on the grounds “that this case did not come within the jurisdiction of the Anti-Terrorism Act, and was triable by the ordinary court. The high court remanded the case back to the relevant sessions court for denovo trial including the consideration of the compromise application filed by the accused and the legal heirs of the deceased.”
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The petitioners highlighted that a murder appeal was disposed of by the SHC in just six pages, adding that the family of the deceased did not pursue the appeals pending before high court and entered into a compromise with the respondents.
Moreover, the Sindh prosecutor-general, who was the highest criminal law officer on behalf of the government, had flatly conceded to setting aside the conviction by the ATC “which is a sheer proof of the collusion between the respondents and public officers especially in view of the past history of this case where prosecutors were changed repeatedly.”
Thirdly, the SHC’s division bench relied on the SC judgment passed on June 15, 2013 in a case in which was clearly distinguishable and did not consider the SC’s judgment in another case.
Therefore the petitioners argued that they were forced to file this appeal because the state, through the PG, had conceded to the case of the accused persons and consented to the SHC’s judgment and as a consequence, the state had abdicated its legal and moral responsibilities to safeguard the rights of the citizens in the criminal justice system.
The petitioners said that for unexplainable reasons, even the legal heirs of the deceased persons consented to the SHC’s judgment although they had rigorously contested the case in the trial court and as a consequence, they are unlikely to file any appeal.
“In view of the aforementioned facts, it became the constitutional and moral duty of the petitioners to file an appeal in order to maintain the confidence of…to dispel the emerging perception that the criminal justice system can be manipulated by the powerful and,” the petitioners said.
They pleaded to the apex court to grant them leave against the SHC’s order.
courtesy-the express tribune