• Rules slain activist’s last interview can’t be considered ‘dying declaration’
• Terms murder outcome of land grabbing and not aimed at creating terror
• Declares confession of main accused before police officer ‘inadmissible’

KARACHI: Giving them the benefit of doubt, the Sindh High Court on Monday overturned the conviction of five men in the Perween Rahman murder case and ruled that the case did not fall within the ambit of the Anti-Terrorism Act (ATA) of 1997.

A two-judge bench comprising Justice Mohammad Karim Khan Agha and Justice Zulfiqar Ali Sang observed that the court found no evidence that the appellants hatched a conspiracy to assassinate Ms Rahman, the director of the Orangi Pilot Project (OPP), in 2013.

Ms Rahman was gunned down near her office on Manghopir Road on March 13, 2013. In December 2021, an antiterrorism court had sentenced four men — Rahim Swati, Amjad Hussain Khan, Ayaz Ali alias Swati and Ahmed Khan alias Pappu Kashmiri — to life imprisonment and handed down seven-year imprisonment to the fifth man, Imran Swati, the son of Rahim Swati.

The trial court found them guilty of facilitating, aiding and abetting outlawed Tehreek-i-Taliban Pakistan (TTP) militants for the murder of the rights activist.

In its verdict, the bench observed that no motive for the killing had been asserted in the FIR, but interview of Ms Rehman, statement of complainant Aquila Ismail, a sister of the deceased, as well as submissions of her counsel and prosecutor had established that land grabbers had threatened the victim since they wanted to grab the land of the OPP.

“We find that the object, intent, purpose and design of the murder of the deceased was not to create terror but rather grab some of the land of the OPP and as such this case did not fall within the purview of the ATA and as such all the appellant were acquitted of any offence under the ATA in the impugned judgment,” the verdict added.

About the confession of Rahim Swati before a police officer, the bench stated in the judgement that the confession was recorded under Section 21-H (conditional admissibility of confession) of the ATA and such provision only applied for the offences of terrorism and for the offences of the Pakistan Penal Code a judicial confession can only be recorded under Section 164 of the criminal procedure code by a judicial magistrate where all relevant legal safeguards must be observed.

It noted that most of the appellants, who were shown arrested in the present case when they were already in police custody, confessed to their involvement despite the fact that there was no evidence against them at the time of detention. None of them were brought before a judicial magistrate to record their confessional statements.

If further said that even the language of relevant provision made it doubtful to admit the confession as evidence under the ATA even if the case had fallen under the ATA since police had no solid admissible evidence against any of the appellant until Rahim Swati allegedly confessed before SSP Akhtar Farooq, which indicated that the ingredients for Section 21-H of the ATA to be applicable had not been met.

The bench stated that there might be no procedural law in this respect for confession under Section 21-H of the ATA but the court found that it would be prudent if this requirement was complied with after all such confessions in order to protect the credibility and integrity of the confession.

Referring to a ruling of the apex court, it stated the Supreme Court had suggested that in Section 21-H of the ATA the word ‘DSP’ ought to have been substituted by ‘judicial magistrate’ as such provision was in violation of the Constitution, but such a change was not made by the legislature.

The judgement noted that a hotly disputed aspect of this case was the admissibility of the interview which Ms Rahman had given to a journalist in 2011 and aired only after her murder.

However, it said that the interview was inadmissible and excluded from consideration on the gourd that it has violated the rights of the accused to a fair trial under Article 10-A of the Constitution as the appellants were denied their right to cross-examine the deceased while such an interview also did not come within the purview of a dying declaration.

The deceased might have named appellant Rahim Swati in the interview in a general sense along with many other non-accused and political parties, but this is hardly compelling evidence against him in respect of this case which occurred two years later”, it added.

The bench noted that even if the confession of Rahim was found to be admissible in evidence, it was a confession by one abettor against other abettors and there would have to be some other independent evidence of unimpeachable nature to support and or corroborate it in order to lead to a conviction of any co-accused and can only be used as circumstantial evidence.

It observed that based on the facts and circumstances of the case and evidence on record, abetment had not been proven against any of the appellants as there was no evidence that they instigated any of the alleged murderers as per charge.

The place of incident where the plan and conspiracy was allegedly hatched was not even visited by the investigating officer, the bench noted, adding the call data record was not collected to link any of the appellants to each other or any of the alleged persons who committed the murder or even to confirm the location of the appellants at the time of murder.

“It appears from the evidence that a firearm was recovered from Qari Bilal when he was killed in a police encounter and his pistol has matched with empties found at crime scene, however, no further investigation was ever carried out in this regard,” it added.

The bench noted that the joint investigation team (JIT) reports were exhibited, but the evidentiary value of a JIT report is no more than a Section 173 of CrPC.

Published in Dawn, November 22nd, 2022