Sarfraz Shah murder trial: In final arguments, defence challenges ATC’s power to try case

Lawyers request transfer to ordinary court so that the possibility of blood money opens up.

KARACHI: Two lawyers representing men standing trial in the Sarfraz Shah killing case have argued that the prosecution has failed miserably to show that terrorism was involved.

Defence lawyer MR Syed and Naimat Ali Randhawa posed a stiff challenge to the jurisdiction of Judge Bashir Ahmed Khoso’s Anti-Terrorism Court while summing up on Monday. They are fighting for their clients who are among the six personnel of the Abdullah Shah Ghazi Rangers. The case pertains to the killing of a 22-year-old Sarfraz Shah who was shot dead in a Clifton park on June 8.

Randhawa, who is defending the driver of the Rangers van, Manthar Ali, and Sepoy Tariq, a member of the six-man squad that was on duty that day, said that the trial court had dismissed their request to transfer the case to an ordinary court as at that time it could only rely on the FIR and charge sheet. But now, based on the strength of an order of a division bench of the SHC in a revision application seeking to transfer the case to a sessions court, Randhawa said that he challenges the power of the ATC to try this case.

The prosecution produced 20 witnesses but none of them said that there was panic at the spot, neither was the park closed early nor were shops or markets outside shut out of terror - so the alleged element of terrorism was absent, he argued. In fact, every prosecution witness has admitted that these establishments stayed open and the park was open till its usual time.

The accused men are Rangers officials in uniform. The arms issued to them are from the government armoury and they were assigned a duty to protect government property, the public and private property. Even if it was a murder, it was an act in good faith and the prosecution, with mala fide intentions, has covered up the fact that the deceased was a robber, Randhawa submitted.

He produced a copy of a statement of a defence witness Alam Zaib, who was Sarfraz Shah’s alleged victim. Randhawa said that Investigating Officer Sultan A Khawaja denied having recorded the statements of Alam Zaib and his girlfriend Hira. The said statement, recorded under Section 161 of the CrPC, was signed by IO DIG Sultan Khawaja. The defence counsel requested the court to make it part of the proceedings.

Referring to a technical aspect, the defence counsel said that by not transferring the case to a court of ordinary law, this special court, established under a special enactment, would deprive the accused and defendants the right to possibly reaching a compromise as would have been the case if it were being tried by a sessions court. Then it becomes a compoundable offence, enabling the parties to arrive at a compromise or blood money (Diyat or Islamic compensation).

But if this court arrives at the conclusion that it is competent to try the offence, the high court and Supreme Court, the two appellate forums, would be excluded and then the accused and defendants would be left with the option of seeking mercy from the president, he said. He then requested the court to transfer the case to an ordinary court of law, arguing that a conviction by this court (the ATC) would be an exercise in futility.

He also argued that his client, Manthar Ali, was driving the vehicle and had remained seated during the incident and hence played no role in it. Referring to the role of his second client, Sepoy Tariq, the defence lawyer said that he did not plan any murder and the mere presence of an accused at the place of an incident did not make him accountable for the actions by any other individual (such as Shahid Zafar who fired two shots).

MR Syed, the defence lawyer for Inspector Baha-ur Rahman, who was in charge of the mobile squad, dilated on the technical aspects of the timing of the incident etc. besides also challenging the jurisdiction of the ATC to try this case.

The proceedings were adjourned till Tuesday when Shaukat Hayat, counsel for the main accused Shahid Zafar, and Amir Warraich advocate would submit their final arguments to be followed by final arguments by Special Public Prosecutor Muhammad Khan Buriro.

Published in The Express Tribune, August 9^th, 2011.