Shahzeb case reflects ‘overindulgence’ of legal system
The murder case history of university student Shahzeb Khan reflects that it is a classic case of “overindulgence” in the legal system.
Despite immense pressure from the civil society and social media, a three-judge bench of the apex court, led by Justice Ijazul Ahsan and comprising Justice Munib Akhtar and Justice Sayyed Mazahar Ali Akbar Naqvi, has set aside the life imprisonment of Sharukh Jatoi and his accomplices, who were sentenced on the charges of terrorism.
Subsequently, Sharukh and the other perpetrators, who were involved in the murder of the young man on December 25, 2012, will be acquitted on the basis of a compromise.
The attorney general for Pakistan (AGP) Office has decided to file a review petition against the SC decision. However, a written order is yet to be issued.
Justice Naqvi, who has expertise in criminal law, was part of the bench. It is expected that he will author the written order.
The matter was adjudicated by three different forums several times – the trial court, Sindh High Court and Supreme Court.
On October 25, 2012, Shahzeb's father, who was a Sindh deputy superintendent of police, had lodged an FIR against Sharukh and others. However, Sharukh escaped from Pakistan to avoid being arrested. His age at the time of the offence was also disputed.
The accused party through documents established that his age was below 18. However, the prosecution proved that he was above 18 years at the time of the offence.
The civil society and electronic media strongly reacted at that time and demanded justice.
Thereafter, ex-chief justice of Pakistan Iftikhar Muhammad Chaudhry took suo motu notice for ensuring the arrest of Sharukh.
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Even his father was sent behind bars for his arrest. Finally, Shahrukh returned and was arrested.
In March 2013, Shahrukh moved an application for the transfer of the case from an anti-terrorism court (ATC) to a one of ordinary Jurisdiction.
However, the ATC on March 5, 2013 dismissed that application. Later Shahrukh filed a criminal revision before the SHC challenging the ATC’s May 5, 2013 order.
But the SHC upheld that order on May 15, 2013.
Subsequently, the culprits approached the apex court, which refused the leave to grant and dismissed that appeal.
Later, the ATC on June 7, 2013 convicted and sentenced Shahrukh and Siraj Ali to death. Their accomplices, Sajjad Ali and Ghulam Murtaza Lashari, were handed down life imprisonment.
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All of them filed criminal appeals and revisions before the SHC against their conviction.
During the pendency of the appeals, the family of Shahzeb entered into a compromise with all the convicts. Shahzeb’s family also filed compromise pleadings for this purpose.
However, this compromise could not be acted upon as the accused were convicted and sentenced under the Anti-Terrorism Act (ATA, 1997.
On November 28, 2017, the SHC passed a six-page judgment, setting aside the convictions and sentences handed down to Shahrukh and others by the ATC on the grounds that the case did not come within the jurisdiction of the ATA and was triable by an ordinary court.
The SHC remanded the case back to the relevant sessions court for a denovo trial including the consideration of the compromise application filed by the convicts and the legal heirs of Shahzeb.
Later, the convicts were acquitted on the basis of the compromise. However, one section of civil society strongly reacted to the SHC order.
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A human rights complaint and criminal appeals were also filed in the Supreme Court on behalf of members of the civil society.
A three-judge special bench of the apex court led by CJP Mian Saqib Nisar on January 31, 2018 took up the matter.
Interestingly, the judges’ family members came to witness the court proceedings.
On the same day, the bench ordered the arrest of Shahrukh and two co-accused in the Shahzeb murder case after setting aside their acquittal by a trial court and removal of anti-terrorism charges by the SHC.
The bench had wondered how the SHC had overlooked the SC's 2013 decision wherein it was mentioned that the case against Shahrukh and the co-accused should be conducted before an ATC.
It also asked Shahrukh's counsel Latif Khosa that why they had not filed a review petition against the apex court’s decision at that time in 2013.
Latif requested the bench to hear his arguments that the case did not fall under the ATA, but the SC refused to hear him.
It ordered the SHC to hear an initial appeal of Shahrukh and his co-accused against their death sentence by the trial court and decide the matter in two months.
So Shahrukh and the others were again arrested at the SC premises.
The judges’ family members were sitting in the gallery to witness the arrest scene. Lawyers had criticised the SC intervention at that time.
After four years, the apex court took up the appeals against the SHC judgment and quashed the sentences which were awarded under the ATA.
Shahbaz Khosa, the counsel for the four people, stated that it was a testing time for the judges to decide the cases without being influenced by the media and civil society.
It is being witnessed that judges are overcautious in criminal matters that are under the media’s radar.
The AGP Office has issued a statement that it was with concern that it had noted the acquittal of the “accused” in the Shahzeb murder case by the SC, without seeking the position of the attorney general.
"This is despite the instant case having already been adjudicated to be one of constitutional importance by the Supreme Court, which mandates seeking the assistance of the attorney general – as has been sought previously in petitions pertaining to the same matter,” the statement read.
“Further, in the case of Muhammad Jibran Nasir v State, AGP Mr Ashtar Ausaf Ali had already contended that the accused persons had committed an act of egregious terrorism, and that the impugned acquittal order of the Sindh High Court dated 28.11.2017 was per incuriam in view of the Supreme Court’s own order that the accused be tried within the ambit of anti-terrorism provisions. The attorney general’s position was duly accepted in the judgment of the Supreme Court, reported as PLD 2018 SC 351,” it added.
“Subsequently, [the] convictions of the accused were upheld in appeal by the Sindh High Court, which followed convictions duly handed down after close consideration of the evidence at a trial by the learned judge, Anti-Terrorism Court No III, Karachi,” it further stated.
“Be that as it may, in the event that the apex court has arrived at an outcome outside of its own previous pronouncements relating to anti-terrorism offences, the attorney general’s assistance must regardless be sought as to the acceptance of compromise, the scope of Fisad-Fil-Arz, and the particular circumstances of the instant case – in a which a review of judgement would be eminent,” it read.
“For all the aforementioned reasons, the office of the attorney general will be filing a review petition against the judgment of the Supreme Court in Shahrukh Jatoi v The State … pending [the] issuance of detailed reasons, in the interest of justice,” the statement concluded.