ISLAMABAD: Shahrukh Jatoi, the main accused in Shahzeb Khan murder case, on Tuesday filed a review petition against Supreme Court verdict announced on Feb 1, 2018.
He raised the questions whether Article 184(3) of Constitution was invokeable against a judgement of the Sindh High Court when it was akin to Article 199 of Constitution. The apex court, on Feb 10, had passed the detailed judgment, while its short order was delivered on Feb 1, 2018. As a result, accused Shahrukh Jatoi, Siraj+ Talpur and Sajjad Talpur were arrested from the apex court premises.
Shahzeb Khan, a 20-year-old boy, was shot dead in Karachi on the night between Dec 24 and 25, 2012 when he was returning home after attending a wedding ceremony with his sister in the Country Club Apartments Karachi.
The Sindh High Court (SHC) on Nov 28, 2017 had set aside Anti-Terrorism Court order by holding that the murder case did not fall in the jurisdiction of the Anti-Terrorism Act and disregarded the apex court order of Feb 22, 2013.
The civil society activists had challenged the Sindh High Court 28-Nov, 2017 order in the apex court. The review petition, filed through Sardar Latif Khosa advocate, said the judgement under review being per incurium is liable to be recalled.
The petition said that multifarious legal proceedings and overlapping fora involved in various legal processes necessitate filing of an instant review petition before this court for the sake of minimising the unintended effects of the judgement under review to ensure and safeguard the right of fair trial to the petitioner as mandated by Article 10-A of Constitution.
The case of the petitioner stands eclipsed and is destined to be prejudiced if expunction of remarks, reviewing the directions and modification of the findings by revisiting the judgement is not carried out for the safe administration of justice.
It said that the private persons under the garb of civil society personnel for wholly ulterior motivations having fractured irrelevant consideration under Article 185(3) of the Constitution had petitioned, but in the light of strenuously opposed locus standi their petition/appeal was not processed and instead converted into suo motu appeal, which decided with utmost respect too was not maintainable.
He said the jurisdiction of courts is of constitutional origin. The jurisdiction of the ATC is regulated by the specific statutory provisions, whether a case falls within the jurisdiction of ATC or not is to be decided under Section 23 of the ATA 1997 and the appeal sections of the appellate courts respectively.
The Article 184 of Constitution does not cater for cases emanating in the judicial hierarchy which is regulated by due process of law sanctified as a fundamental right under the constitution. The parameters and requirements of Article 184(3) even otherwise were not available.
The review petition said: “With utmost respect if the Supreme Court at the very inception of the incident had taken suo motu notice, the same was obviously necessitated to streamline the investigation vigilance and in consequence the investigation was hurriedly and maliciously completed and challan submitted on trumped up 161 CrPc statements before the Anti-Terrorism Court.”
Such false and fabricated attributions were not supported during the trial and hence ingredients of ATC stood totally demolished, but despite formulation at preliminary hearing the same remains unattended by the apex court.
The counsel maintained that since the petitioner was not put to notice, his counsel could not produce the case law on the subject that Article 184(3) of Constitution was not invokeable in an adversarial proceeding emanating from a statute and particularly a criminal trial wherein locus standi of person to challenge acquittal has been very strict.
The Article 184(3) of Constitution was not invokeable against a judgment of the Sindh High Court when it was akin to Article 199 of Constitution.
The assumption of jurisdiction under Article 184(3) of Constitution is contrary to the law laid down in many judgments of the top court. The judgment under review thus being per-incurium is liable to be recalled.
The suo motu proceedings in Constitution Petition 1 of 2013 were meant as corrective to the investigation and enforcement of law at the inception of the occurrence and terminated upon filing of challan with the directions to proceed strictly on merit without being influenced by the proceedings of the suo motu petition.
The powers of jurisdiction exercisable by the superior courts of is regulated under Article 175(2) of the Constitution and adversarial proceedings are regulated by statutory law, while question of Fundamental public importance only falls within the ambit of Article 184(3) of Constitution.
The evidence collected during investigation gives way to the evidence recorded during the trial and which alone would determine the fate of the case.
The unfortunate murder of Shahzeb having resulted out of triviality and a sudden brawl in the dead of night without slightest element of creation of terror as none was around the place of occurrence and the legal heirs compromised and the state is bound to facilitate the compromise in terms of the judgment of the Supreme Appellate Court reported as PLD 1989 SC 633 and the petitioner was entitled to acquittal.
