Daily Times

The Abbottabad Bench of the Peshawar High Court took up the appeal in Mashal’s murder case on 27 February 2018. Surprisingly, it suspended the operation of the trial court’s judgment dated 7 February 2018 to the extent of 13 appellants before the court and released them on bail. All thirteen were convicted by the trial court and sentenced to three years under the Anti-Terrorism Act, 1997. This decision of the Abbottabad Bench merits comment here.

The Anti-Terrorism Act, 1997 pursuant to its section 32 has an overriding effect on anything contained in the Code of Criminal Procedure or any other law that is inconsistent with the provisions of the Act. Section 25(8) of the Anti-Terrorism Act, 1997 states: “Pending the appeal ‘a High Court’ shall not release the accused on bail.” The effect of these two provisions is that the order of suspension and subsequent release on bail of the thirteen accused is a gross misreading of the law. In the common law tradition, a judge is supposed to wear laws on sleeves of robes. The Supreme Court has consistently held that the judge must allude to applicable law even if it was not pointed out during proceedings. Isn’t lack of application of mind in such an important case unbecoming of a High Court justice?

The order also notes: “Besides, the learned Additional Advocate General also has no objection on the desired suspension of the sentences to the extent of petitioners No 5 to 18.” The Additional Advocate General has since submitted a sworn affidavit that there was no such statement tendered by him and the statement so attributed to him is incorrect. Did the court, in order to make up for the textual hook, justify its conclusion by attributing concession to the state? Regardless, it is not up to the office of Advocate General to accede to the plea of suspension or bail when there is no such enabling provision in the special law. In addition, the presence of the complainant was quintessential for due process before the Abbottabad Bench could pass any such order.

People who are not affiliated with the criminal justice system will never realise the kind of sacrifice and resolve it takes to conduct matters such as the Mashal case

Another problem with the order is that the appeal was entertained by the Bench when nine connected appeals (including by state and father of Mashal) were already filed, prior in time, before the principal seat of the Peshawar High Court in Peshawar. The lawyer for the appellants before the Abbottabad Bench did not disclose this fact nor was any notice of the appeal served on the state before filing the appeal which is mandatory under the Peshawar High Court Rules. This is indicative of blatant disregard of the procedural aspects of the criminal justice system; procedures that ensure fairness, transparency and consistency in the applicability of the prevailing law of the land.

The order may soon be set aside, but the damage is already done. Those released on bail were swiftly taken up by the ghairat brigade in their wings. There were corner rallies and processions celebrating their release. One wonders why did the ghazis released on bail opt for trial in the first place? They could have admitted to the cold-blooded murder — in the glory of Islam — as they ostensibly did in public rallies.

Instead, their defence was: they only desecrated the dead body of Mashal who was killed by a gunshot wound. Video clips of Mashal’s last moments were played in the courtroom to controvert their ‘coached’ lies and baseless defence. A certain breed of believers is exempted from doublespeak after all. People not affiliated with the criminal justice system will never realise the kind of sacrifice and resolve it takes to conduct matters such as these for officers of the state. Our judges, police officers, prosecutors and most importantly their families receive death threats on every date of such proceedings. With threats, they also receive reminders on the eventual fate of the unfaithful and their accessories. No wonder, one private witness, when he refused to cooperate with the prosecution during the trial, was declared ‘hostile’ and cross-examined by the state’s counsel with the permission of the court. Most of the private witnesses were not prepared to testify per their statements recorded with the police. That affected the quality of prosecution’s evidence crucial to secure not just convictions on appropriate counts but also harsher sentences.

This one order has undermined the efforts of our unsung heroes from the police and prosecutors, in what is the most heinous crime our generation has witnessed. The murder of Mashal and how the instrumentalities of state respond to it will go a long way in informing the faith of an ordinary man in our justice system. Thus far, it has exposed a few cracks; perhaps one too many. Maybe it’s how the light will eventually get in.

Most of us have seen the painful last moments of his death. I wanted to watch those clips again for this piece, but I could not bring myself to it. But what about his family? They can’t erase anything or choose to summon those images at will and then discard them. When his father received Mashal, there was not a bone in his body that was not bruised, fractured or broken. He didn’t let Mashal’s mother touch his hands before Mashal was buried.

From court hearings, Iqbal Lala often visits his son’s grave.

The writer attended Berkeley and is a Barrister of Lincoln’s Inn

Published in Daily Times, March 13^th 2018.