KARACHI: An antiterrorism court has observed that the courts can only act upon evidence and material presented before the judges and the judiciary cannot be blamed if the “executive/ police fail in their duty”.

The observation came in the detailed verdict of Naqeeb Ullah Mehsud murder case in which the ATC acquitted all the accused, including former SSP Rao Anwar, for want of evidence.

“Since the sufficient evidence in terms of reliability, cohesion, trustworthiness has not been collected nor produced” in court in the gruesome extrajudicial killing case “the right of benefit of doubt cannot be withheld even in high profile cases like this one,” ruled the ATC-XVI judge in the detailed judgement.

The judge stated that the courts despite being the main component of the criminal justice system can only act upon evidence and material presented before them, which is to be collected by the executive. “Courts cannot be blamed if the executive/police fail in their duty. Evidence collected by executive/police must be evaluated according to the laws and rules and judicial standards. Government has to ensure that cogent evidence to support prosecution is collected and presented in the court.”

Judge rules police, prosecution didn’t collect and produce ‘reliable, trustworthy evidence’ in Naqeeb murder case

The five-year-long trial of SSP Rao Anwar and his 17 subordinates over extrajudicial killing of Naqeeb Ullah Mehsud and three others had mainly revolved around the policemen’s presence at the scene of crime and time of the staged encounter. However, the prosecution did half job by not fully utilising the modern technology to collect the call data record (CDR) and geo-fencing of cell phones of the policemen as well as the victims.

The ATC-XVI judge in the 43-page judgement wrote that two eyewitnesses — Muhammad Qasim and Hazrat Ali — had initially identified six police officials — Arshad Ali, Abdul Aziz, Shafique Ahmed, Allah Yar, Ghulam Nazuk and Muhammad Iqbal — during an identification parade conducted by a judicial magistrate. But, it had become inadmissible since they had “improved” their earlier statements recorded to the police under Section 161 of the Criminal Procedure Code (CrPC) when they deposed before the court.

Discussing the admissibility and credibility of the CDR of Rao Anwar and other policemen submitted to the court by the investigating officer, the judge noted that the CDR of accused police constable Shakil, then SSP Rao Anwar, then DSP Qamar Ahmed Shaikh, Faisal Mahmood, Muhammad Anar and Khair Muhammad were produced before the court claiming that they allegedly remained in contact with each other, and had rather ‘added and abetted’ the absconding accused, who had staged the police encounter by killing the four persons and having fabricated the evidence by foisting weapons on each deceased.

The judge noted that the first IO, Abid Hussain Qaimkhani, during his cross-examination had admitted that he did not collect CDR of eyewitnesses (captives) Hazrat Ali and Muhammad Qasim and other prosecution witnesses, Sheroof Khan, Hamayoon and deceased Naqeeb during investigation.“

The judge added that complainant Muhammad Khan in the FIR had mentioned that the police had released two other captives Hazrat Ali and Muhammad Qasim on Jan 6, 2018 at about 10:00 pm at Superhighway, Karachi “whereas no such release had been stated by any of the abductees/witnesses, creating a question mark in the veracity of the statements of PWs”.

He said the IO Qaimkhani had admitted in cross-examination that he had tried to collect location of Naqeeb. “He said in cross-examination that he does not remember the location of three mobile number of slain Naqeeb on Jan 4, 2018 at Al-Asif Square. He does not deny such locations, he simply says he does not remember; he is trying to evade the answer; and by not producing the CDR of deceased Naqeebullah in particular circumstances would invoke Art 129(g) of Qanoon-e-Shahadat Order 1984 for adverse inference; Concludingly abduction of deceased Naqeebullah from Agha Shergul Hotel alongwith Hazrat Ali and Qasim is not digitally proved.”

“Since the sufficient evidence in terms of reliability, cohesion, trustworthiness has not been collected nor produced regarding happening of incident of abduction of abductees Hazrat Ali, Muhammad Qasim and deceased Naqeebullah, no sufficient reliable evidence beyond reasonable shadow of doubts regarding participation of the present accused in the fake police encounter and their sharing of common intention with absconding accused is produced, the right of benefit of doubt cannot be withheld even in high profile cases like this one”.

In the verdict, the judge wrote: “Before appreciating the evidence it is deemed relevant to observe the instant case is one of the highly high profile, widely published and infamous cases of its typical nature of highhandedness and barbarity of the police”.

The judge mentioned Dawn editorial ‘Test case’ published on November 15, 2022 and quoted it in the verdict: “The trial of Rao Anwar for the murder of Naqeebullah Mehsud is a test case. It will determine whether the criminal justice system has the will to hold accountable a top police official — now retired — whose terrifying reputation as an ‘encounter specialist’ long preceded this particular killing and yet who managed to thrive professionally.”

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The court observed that the editorial had “tendency to drive a judge in a particular direction”, but the court relied on the guidelines given by the Supreme Court regarding discussion in TV talk shows with regard to subjudice matter.

The judge said that these should “equally be guideline for all the media for self-restraint and respect of the bounds of the law and ethics established from long drawn experiences internally and externally while reporting pending cases in a way that fundamental right of fair trial (Article-10-A of the Constitution) should not be eroded and infringed upon with overzealous use of fundamental right of freedom of expression (Article-19-A of the Constitution) particularly when the proceedings before Hon’ble judicial forums are subjudice”.

Published in Dawn, January 26th, 2023