wo judgments in high profile cases last month greatly disappointed the complainants in particular and the human rights defenders in general. First, MPA Jam Awais and his four servants were acquitted of the charges related to Nazim Jokhio’s murder. Next, former SSP Rao Anwar and his 17 subordinates were exonerated of the extrajudicial killing charges stemming from the killing of Naqeebullah Mehsud and three others.

The first acquittal came at the pre-trial stage after the parties reached an out-of-court settlement. Rao Anwar and his team, however, walked free because of the prosecution’s failure to prove its case against them.

An anti-terrorism court in Karachi announced its judgement acquitting Anwar on January 23. Anwar, the then Malir SSP, and his team had been indicted in March 2019, more than a year after the gruesome killings of Naqeebullah, Muhammad Ishaque, Nazar Jan and Muhammad Sabir in a staged encounter on the outskirts of the city.

Testimonies and evidence fraught with factual, procedural and legal defects were apparently included to the advantage of the accused, who were in the end given the benefit of the doubt by the court. However, the finding that the four men were killed in a staged encounter was upheld by the judge.

In all, 18 accused, including Rao Anwar, stood trial. SHO Amanullah Marwat and six other cops, who are said to have carried out the shootout, remain at large. Five cases were lodged against the victims who were dubbed by the police as terrorists affiliated with the proscribed Tehreek-i-Taliban Pakistan. However, those were declared bogus by the court. None of the accused challenged the quashment of the cases. This tended to lend credence to their having malafide intentions in filing those in the first place.

There was no direct evidence of the extrajudicial killings so that the prosecution relied on circumstantial evidence including call data records to corroborate the alleged involvement of Rao Anwar and the other accused. According to the investigators, the former SSP’s call data record and geo-fencing of his cell phone had established his presence at the crime scene. However, procedural omissions on the part of the investigating officer resulted in the CDR being judged inadmissible evidence.

The judge pointed out that the CDR was found defective on many counts. He said the prosecution didn’t place on record any document to show that the call data record of the accused was attested by the cellular company concerned; nor did it produce any witness associated with the company.

Further, the investigating officer didn’t provide the voice recording of an incriminating conversation between Rao Anwar and one of the absconding cops to the forensic science laboratory.

The witnesses were not provided protection despite court orders. Resultantly, they retracted their statements

“Rao Anwar cannot be absolved of the responsibility for the encounter that was declared illegal by the court,” Advocate Salahuddin Panhwar, who represented the complainant told The News on Sunday. “The former SSP admitted before the court that he had knowledge of the encounter, had remained in contact with the SHO and sent reinforcement when asked,” he said. “He, in fact, led the encounter by giving instructions. These things point to his role.”

In his defence, Rao Anwar had told the court that he had arrived at the crime scene after the incident had taken place. “I was implicated in this case on the basis of geo-fencing and call data records at the behest of a senior police officer I had departmental rivalry [with],” he alleged.

There was, however, direct evidence of the abduction of Naqeebullah and his two friends — Muhammad Qasim and Hazrat Ali. That, too, did not hold up in court. Both of them, produced as eyewitnesses, narrated how the three were abducted from a roadside restaurant by the accused policemen who took them to the Sachal check-post and tortured and detained them for three days. Later, they said, two of them were released while Naqeebullah was handed over to a subordinate of Anwar’s.

Their testimonies were disregarded by the court with the observation that they had made “dishonest and deliberate improvements in their versions to toe the prosecution case” when they were cross-examined by defence lawyers, raising doubt about their veracity. Panhwar says when a witness is examined under oath, they are inclined to be accurate to avoid perjury. He says the judge saw improvements because both the statements were not recorded properly by the investigating officer.

The witnesses admitted that no complaint was filed at any police station regarding their abduction and that they did not inform Naqeebullah’s family about his kidnapping after their release. They said they chose to remain silent.

The first investigating officer, Abid Hussain Qaimkhani, admitted that he did not collect the CDR of Hazrat Ali, Qasim or Naqeebullah to establish their presence at the restaurant. The judge remarked that such withholding of evidence by the investigating agency tended to support the adverse inference especially since the victims were said to have carried cell phones. Moreover, he noted that the witnesses, even the two abductees, were not sure about the date of their abduction.

The investigators also didn’t produce independent witnesses from the restaurant, including its owner or employees. The FIR was lodged with a delay of four days and the statements of the witnesses were recorded after a significant delay.

In his concluding remarks, the judge said, “it may be noted that 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.”

Panhwar laments that the procedural lapses in the investigation had damaged the prosecution case. In addition, he says protection was not provided to the witnesses despite court orders. As a result, they had retracted their statements. The police, he says, made no efforts to arrest the fugitives, who had absconded after obtaining bail from courts.

After his arrest from Islamabad, Rao Anwar was kept in a house in Karachi’s Malir Cantonment, which was declared a sub-jail. He was later released on bail. “Anwar enjoyed the protocol of a serving officer and would come to the court in an APC [armoured personnel carrier] in a convoy of police mobiles. This, too, intimidated some of the witnesses and influenced their statements” Panhwar says.

Naqeeb’s father, Muhammad Khan, the complainant in the case, passed away in December 2019. His younger brother, Alam Sher, then took up the fight. “We were 100 percent sure that justice would be served,” Alam tells TNS. “The JIT [joint investigation team] had included that Rao Anwar was guilty; yet he was let off,” he says.

“We are going to appeal the judgement before the Sindh High Court. If the high court doesn’t give us justice, we will go to the Supreme Court. We won’t rest until the perpetrators are punished; nor will we back away because of threats,” he says.

The writer is based in Karachi. He covers judiciary, social and human rights issues