AN out-of-court settlement reached between influential lawmakers belonging to the ruling Pakistan Peoples Party and the family of young Nazim Jokhio through which the latter pardoned the accused has apparently no legal value since the Feb 8 order of a judicial magistrate to incorporate relevant sections of the Anti-Terrorism Act in the murder FIR remains in the field.

The offences in the ATA are non-compoundable leaving no room for accused persons to get benefits from such compromises.

The video statement of grief-stricken Jokhio’s widow, Shireen, in which she said she had pardoned the accused for the sake of her children and in the name of Allah and the images of accused MNA Jam Abdul Karim being presented with ajrak by government lawyers after getting bail in the case present two different extremes of the country.

The Sindh government is alleged to have facilitated the influential accused — MNA Jam Abdul Karim and his younger brother MPA Jam Awais — as the final charge sheet in the Nazim Jokhio murder case has not been filed before the administrative judge of antiterrorism courts (ATCs) despite passing around two months to the judicial magistrate’s order in this regard.

The charge sheet has been pending with the office of the prosecutor general in the name of so-called scrutiny since Feb 9.

Legal experts believed that since the magistrate’s order to incorporate relevant sections of ATA in the FIR had not been overruled by any appellate judicial forum, no compromise or out-of-court settlement could be legally acceptable.

‘Violation of law’

Senior lawyer Shaukat Hayat was of the opinion that since the case was registered around five months ago, the delay on part of the prosecutor general to file the charge sheet before ATC was a violation of law and amounted to give favour to the accused persons.

He maintained that a court did not generally intervene during the investigation of the cases, but it could interfere in the case of any mala fide act in the process of investigation and an inordinate delay in file the investigation report on part of the prosecution.

While referring to an affidavit of Jokhio’s widow filed in court during hearing of the bail applications of accused persons, Mr Hayat said: “Emergence of such an affidavit before completion of investigation is aimed to temper with the evidence of the case”.

Commenting over reports that a letter reportedly sent by the home department to inspector general of police to remove the investigating officer of the case on the recommendation of the PG, the senior lawyer said: “The IG has the power to remove or replace an IO from any case, but prosecutor general cannot make such recommendation.”

He was of the view that the PG was bound to file the final charge sheet before the ATC along with a scrutiny note, if any.

“No compromise is possible until the court of competent authority order removal of relevant sections of ATA,” he added.

Seasoned criminal lawyer Mohammad Farooq told Dawn the offence of premeditated murder under Section 302 of the Pakistan Penal Code was a compoundable offence.

Referring to a judgement of the apex court reported in 2020 PLD, he added that all the offences under the ATA are non-compoundable.

He was of the view that following the order of the magistrate, the IO had to file the charge sheet to the office of the prosecutor general for legal opinion and after scrutinising the document the prosecutor cornered should have filed the charge sheet before the administrative judge of ATCs along with scrutiny note/legal opinion without a delay.

He said that the administrative judge of the ATC will decide the forum of trial while the accused party can also move an application under Section 23 of the ATA for transfer of the case to an ordinary court.

He also referred to another judgement of the Supreme Court in the case of Ghulam Hussain in which the apex court had addressed a long-standing controversy about applicability of Section 6 of the ATA. As per the verdict court, offence under ATA was a strict mens rea crime and it was important for prosecution to establish such mens rea alongside actus reus, he added.

Rights activist and lawyer Jibran Nasir was of the view that the prosecutor general was withholding the charge sheet on the pretext of scrutiny and trying to remove the name of MNA from the case.

Independent intervention sought

He maintained that the state, which was responsible to prosecute accused persons, was favouring the accused party.

“It is the responsibility of the state to plead the case especially when the complainant party backtracked, but in this case the state is presenting ajrak to the accused”, he added.

He further said that like the Shahzeb murder case, an independent intervention was also needed in this case and the Supreme Court might take notice through its suo motu power or public interest ligation.

Many attempts were made to reach out Prosecutor General Dr Faiz Shah for comments, but to no avail as he is said to be out of the country.

Initially, a sessions court while hearing the bail applications of accused had observed that prima facie the accused persons had no other intention or motive but to create insecurity and fear in the public by such act which falls within the definition of terrorism.

Later, a judicial magistrate had returned the case papers as well as the final charge sheet and directed the investigating officer to file the same before the administrative judge of ATCs.

Nazim Jokhio was found tortured to death at the farmhouse of PPP MPA Jam Awais in Malir on Nov 3, 2021. Two PPP lawmakers and their guards and servants have been booked for killing Jokhio, who earned the ire of the influential legislators by stopping their foreign guests from hunting houbara bustard.

Published in Dawn, April 4th, 2022