Complaint Filed to Human Rights Cell of Supreme Court in Shahzeb Murder Case

Complaint Filed to Human Rights Cell of Supreme Court of Pakistan in Shahzeb Khan Murder Case

Dated: 9th January 2018

“We the citizens of Pakistan appeal to the Honourable Chief Justice of Pakistan to take notice of the Honourable Sindh High Court (the Court) Judgment of 28th November 2017 (Impugned Judgment) whereby the Court decided not only to remove the terrorism charges from the case but also order a denovo trial sending the matter back to session’s court in a case decided more than four years ago by an Anti Terrorism Court (ATC). The Court in doing so not only disregarded the factual and legal findings of the ATC but also the findings of a divisional bench of Sindh High Court in the same matter where by the Court was pleased to decide the issue of jurisdiction observing that the matter rightly falls within the scope of Anti Terrorism Act 1997.

In our humble view the Court has erred in the Impugned Judgment by placing reliance on the Honourable Supreme Court (Supreme Court) Judgment of Waris Ali and 5 others versus the State’ (2017 SCMR 2572) which in our view was inapplicable and irrelevant to the facts of this case. Furthermore, the Honourable Court also failed to consider the judgments of the Supreme Court in ‘Kashif Ali versus the Judge, Anti Terrorism Court No.2, Lahore and Others’ (PLD 2016 SC 951) and ‘Shahbaz Khan alias Tippu and Others versus Special Judge, Anti Terrorism Court No.3, Lahore and others’ (PLD 2016 SC 1).

We are also disappointed by the role of the State which through the Prosecutor General, Sindh, conceded to the case of the accused persons and consented to the Impugned Judgment and as a consequence, the State has abdicated its legal and moral responsibilities to safeguard the rights of the citizens in the criminal justice system. Secondly, for unexplainable reasons, even the legal heirs of Shahzeb Khan consented to the Impugned Judgment although they had rigorously contested the case in the Trial Court and as a consequence, they are unlikely to file any appeal. Thirdly, in view of the aforementioned facts, it became the constitutional and moral duty of people of Pakistan to file this Complaint in order to maintain the confidence of citizens like us in the criminal justice system to dispel the emerging perception that the criminal justice system can be manipulated by the powerful and rich.

The brutal murder of Shahzeb Khan sent shockwaves across Pakistan terrorizing people given the manner in which the killers carried out the murder sending a message to society that they are “all powerful and above the law” as also observed by the ATC in this case.

This Complaint has been signed by more than 400 citizens of Pakistan from not just Karachi but also Lahore, Islamabad, Rawalpindi, Jhelum, Swabi, Mianwali, Sargodha, Layyah, Chakwal and DG Khan belonging to different age groups and different walks of life including students, teachers, doctors, media persons, business community, housewives and lawyers. Most notably the application is also supported by family and friends of Khadija Siddiqi, Late Barrister Fahad Malik and other victims of violence similar to one which Shahzeb Khan was subjected where the criminals attacked the victims shamelessly in public spaces in front of several citizens and without any fear of the law and law enforcement agencies and have also used their money and influence to exhaust the victim families in their pursuit for justice.

We believe that the ill precedent set by the Court through its Impugned Judgment will not cause injustice in the murder case of Shahzeb Khan but will adversely affect all victims across Pakistan in similar situations.
We are aware that that an Appeal has also been filed against the Impugned Judgment by several members of the civil society under Article 185(3) of the Constitution, 1973 in the Supreme Court. In view of the above we appeal to you that in order to safeguard our Fundamental Rights, as well as the Fundamental Rights of People of Pakistan, it is humbly requested the Chief Justice may kindly convert this Complaint into a Human Rights Case and exercise jurisdiction on this matter under Article 184(3), Constitution, 1973.”

Contact:

Khadija Siddiqi – 03354046933 Jawad Malik (Brother of Fahad Malik) – 03008506721

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Text of the complaint:

“9th January, 2018

Honourable Chief Justice of Pakistan,
Supreme Court of Pakistan Constitution Avenue, G-5/2
Islamabad.

Subject: Brutal Public Murder of Shahzeb Khan by Shahrukh Jatoi and Others, terrorising the People of Pakistan, especially People of Karachi

Dear Honourable Chief Justice,

1. The present complaint pertains to the brutal murder of a university student, Shahzeb Khan, on the night of 24.12.2012, who was gunned down by Shahrukh Jatoi, Siraj Ali, Sajjad Ali and Ghulam Murtaza Lashari. This incident resulted in striking terror, fear, panic, sensation, helplessness and insecurity amongst the people residing in that vicinity and the public in general and sparked countrywide outrage against the abuse of power by the wealthy people in Pakistan.

2. On 25-12-2012 Shahzeb Khan’s father lodged FIR against the abovementioned accused, however, Shahrukh Jatoi, belonging to an influential family, escaped away from Pakistan in order to avoid being arrested. It is pertinent to mention that after the gruesome murder of Shahzeb Khan, hundreds of people came out on the streets demanding justice for him on the ground that the same could have happened with their children. Thereafter, the Honourable Supreme Court took Suo Motu Notice of the murder and pursuant to various Orders passed in Constitution Petition No.1 of 2013, Shahrukh Jatoi was brought back and arrested.

3. On 07.03.2013, Shahrukh Jatoi moved an Application for transfer of the case from the Learned Anti-Terrorism Court, to the Court of Ordinary Jurisdiction. However, the Anti-Terrorism Court vide Order dated: 05.03.2013, was pleased to dismiss the aforesaid Application. Thereafter, Shahrukh Jatoi filed a Criminal Revision before Honourable High Court of Sindh challenging the impugned Order dated: 05.03.2013. Nonetheless, the Honourable High Court of Sindh through Judgment dated: 15.05.2013, upheld the Order of Anti Terrorism Court and conclusively decided the question of jurisdiction in favour of the Anti-Terrorism Court, in the following terms:

“…We, therefore, hold that act of accused Shah Rukh Jatoi created sense of helplessness and insecurity amongst the people of Defence/Clifton area, where offence was committed and did destabilize the public at large. As such, provisions of section 6 of the Anti-Terrorism Act, 1997 are fully attracted in this case. Therefore, present case would fall within the jurisdiction of Anti-Terrorism Court…” A copy of the judgment dated: 15.05.2013, is attached herewith.

4. Shahrukh Jatoi then filed Criminal Petition for Leave to Appeal before the Honourable Supreme Court, challenging the Judgment dated: 15-05-2013. However, the Honourable Supreme Court, vide Order dated: 21-10-2013 refused the Leave to Appeal and dismissed same.

5. In the meanwhile the trial was commenced and proceeded with by the Learned Anti-Terrorism Court. It is important to mention here that, apart from other witnesses and evidence, there were two eye witnesses to the unfortunate and gruesome murder of Shahzeb Khan. Therefore, as there was overwhelming evidence against all the accused persons named above, the Learned Anti-Terrorism Court, vide Judgment dated: 07-06-2013, convicted and sentenced, inter alia, Shahrukh Jatoi and Siraj Ali to death and Sajjad Ali and Ghulam Murtaza Lashari to life imprisonment.

6. All the accused persons filed Criminal Appeals and Revisions before Honourable High Court of Sindh, challenging the Judgment dated 07.06.3013 passed by Anti-Terrorism Court. On the other hand during the pendency of the aforesaid Appeals, the family of the Shahzeb Khan entered into a compromise with all the accused persons, whereby the family of Shahzeb Khan had also filed compromise pleadings in this regard but this compromise could not be acted upon as the accused persons have been convicted and sentenced under the Anti-Terrorism Act.

7. On 28.11.2017, the Honourable High Court of Sindh passed a six pages judgment setting aside the convictions and sentences, including death sentences and life imprisonments, of all the accused persons, given by the Anti-Terrorism Court No.III, Karachi, on the ground that the case did not come within the jurisdiction of the Anti-Terrorism Act, 1997, and was triable by the ordinary Court/Session Court and as a consequence, set aside the convictions and sentences and 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 Person. A copy of the judgment dated: 28.11.2017, is attached herewith.

8. We have filed this Human Rights Complaint for the following reasons:

A. That we have the locus standi to prefer this Complaint as we are residents of Pakistan, where the unfortunate and gruesome incident of murder of Shahzeb Khan took place, which resulted in striking terror and created fear, panic, sensation, helplessness and insecurity amongst the people residing in that vicinity and the public in general. Therefore, even though we do not know Shahzeb Khan or the Accused Persons, we were personally terrorized and intimidated by the murder of Shahzeb Khan, as it had created a sense of fear and insecurity. Furthermore, we are public spirited individuals who want welfare of the society and protection of constitutional and fundamental rights of the citizens of Pakistan against extremism, terrorism and the activities of proscribed organization and as a consequence, this complaint against the Impugned Judgment is filed on behalf of the people of Karachi, especially the people of Clifton and Defence, as well as the people of Pakistan. Therefore, we were in state of shock and terror when the Impugned Judgment dated: 28-11-2017 was passed by the Honourable Sindh High Court.

B. That the Honourable Sindh High Court in the Judgment dated: 28.11.2017, has erred in placing reliance on the judgment reported as ‘Waris Ali and 5 others versus the State’ (2017 SCMR 2572), as the abovementioned judgment is clearly inapplicable and not relevant. The case of Waris Ali can clearly be distinguished from Shahrukh Jatoi case on the ground that in the case before the Sindh High Court the issue of jurisdiction was already decided by the Divisional Bench of the same Court in the same case, which was not the legal position in the Wris Ali case. Secondly, the Waris Ali case simply lays down the proposition that mere cases of personal motive with no terrorising effect do not come within the jurisdiction of the Anti-Terrorism Act, 1997. Waris Ali Case cannot be interpreted as laying down that a subjective mens rea to terrorise on behalf of the accused is essential and mandatory in order to invoke the jurisdiction of the Anti Terrorism Act, 1997, because such a view would be contrary to the Judgment reported as ‘Kashif Ali versus the Judge, Anti Terrorism Court No.2, Lahore and Others’ (PLD 2016 SC 951) and ‘Shahbaz Khan alias Tippu and Others versus Special Judge, Anti Terrorism Court No.3, Lahore and others’ (PLD 2016 SC 1). Thirdly, Waris Ali case refers to earlier binding Judgments of Honourable Supreme Court reported as ‘Kashif Ali versus the Judge, Anti Terrorism Court No.2, Lahore and Others’ (PLD 2016 SC 951) and ‘Shahbaz Khan alias Tippu and Others versus Special Judge, Anti Terrorism Court No.3, Lahore and others’ (PLD 2016 SC 1) and states without explaining that the aforementioned two binding Judgments proceed on different legal and factual premises, without explaining in any manner possible what those premises are. Therefore, the Judgment dated 28.11.2017 is clearly illegal, violative of legal precedent and liable to be set aside.

C. That we are forced to file this complaint because, firstly, the State through the Prosecutor General, Sindh, conceded to the case of the accused persons and consented to the Impugned Judgment and as a consequence, the State has abdicated its legal and moral responsibilities to safeguard the rights of the citizens in the criminal justice system. Secondly, for unexplainable reasons, even the legal heirs of Shahzeb Khan consented to the Impugned Judgment although they had rigorously contested the case in the Trial Court and as a consequence, they are unlikely to file any appeal. Thirdly, in view of the aforementioned facts, it became the constitutional and moral duty of people of Pakistan to file this Complaint in order to maintain the confidence of citizens like us in the criminal justice system to dispel the emerging perception that the criminal justice system can be manipulated by the powerful and rich and from letting the criminal justice system from being reduced to a private dispute settlement mechanism.

9. It is important to disclose here that an Appeal has also been filed against the Judgment dated: 28.11.2017, by several conscientious members of the civil society under Article 185(3) of the Constitution, 1973 in the Honourable Supreme Court of Pakistan.

10. In view of the above we appeal to you that in order to safeguard our Fundamental Rights, as well as the Fundamental Rights of People of Pakistan, it is humbly requested that your Lordship may kindly convert this complaint into a Human Rights Case and exercise jurisdiction on this matter under Article 184(3), Constitution, 1973.

Thank you,

The 421 undersigned citizens of Pakistan.
(Names, CNIC Nos. and signatures attached)

Cc: Human Rights Cell
Supreme Court of Pakistan
Constitution Avenue, G-5/2, Islamabad.”



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