KARACHI: SHC reserves order on pleas in UTP murder case
By Our Reporter
KARACHI, May 27: The anti-terrorism appellate bench of the Sindh High Court reserved on Monday judgment on appeals of two convicts in the murder case of four American employees of Union Texas Pakistan (UTP) and their driver in Karachi in 1997.
The bench comprised Justice Ghulam Nabi Soomro and Justice Sarmad Jalal Osmany. The appeals were heard by the Sindh High Court since 1999.
Habib Ahmed, AAG, Sindh, dealt with the late testimonies of the driver and the cleaner of the water tanker which was passing through the bridge on the day of the incident.
Responding to the contentions of Barrister Azizullah Shaikh, counsel for appellants Ahmed Saeed alias Saeed Bharam and Muhammad Saleem alias Ganja alias Denter, about their delayed testimonies, after a year and a half, Mr Ahmed said they were afraid and disappeared to their native village to protect themselves. They were located as a result of hectic efforts by police, he submitted.
He also dealt with the ballistic report and submitted that the empties recovered from the spot matched with the Kalashnikov of Salim Ganja.
Earlier, Suleman Habibullah, representing wife of the driver, who was killed in the attack, made submission on her behalf.
Mr Shaikh rebutted some of the points raised by Mr Ahmed.
Mr Shaikh maintained that the trial court had mainly relied on the confessional statements of the accused while convicting them.
It was his contention that their confessional statements were recorded, after an inordinate delay, under intense police torture. He further submitted that confessional statement under police custody had no value. He had also argued on the statements of two eyewitnesses and submitted that the investigation officer of the case, Inspector Muhammad Aslam Khan, created them.
The appellants had been awarded death sentence by the anti-terrorism court -IV at Karachi on November 12, 1997, along with other absconding co-accused namely Ajmal Pahari, Kashif David, Faisal Lamba, Waseem Tunda and Sajid, who allegedly waylaid a Toyota Crown vehicle of Union Texas Pakistan on PIDC bridge.
J. Enlo, T. Ritchie, E. Egbo, L. Jemmin and driver Anwar Mirza died of intense and direct firing by the accused.
The TPX police booked a number of persons, including MQM chief Altaf Husain, Nadeem Nusrat and former MNA Anees Ahmed, in the case.
According to the prosecution, on November 12, 1997 complainant Asim Raees Khan, an employee of the UTP, lodged an FIR at TPX police station, Karachi, that unknown persons opened indiscriminate fire on a car (No J-0812) of the UTP on PIDC bridge on Moulvi Tameezuddin Road which resulted in the death of five persons, driver Anwar Mirza and four Americans.
Proceedings quashed: Justice S. A. Rabbani of the Sindh High Court has allowed an application of a convicted FIA official and quashed proceedings instituted before the special judge of the anti-corruption court (Central) II, Karachi, in FIR No 01 of 2001.
The order was passed on the application of Mohammed Hanif who was a constable in the Federal Investigation Agency.
The applicant, represented by Shaikh Mir Mohammed, had been sent up before the special judge of the anti-corruption court (Central) II, Karachi, for trial under section 5 (1) (d) & (e) read with section 5 (2) of the Prevention of Corruption Act of 1947.
The alleged offence committed by him was that he had accumulated assets disproportionate to his known source of income during the period from 1998 to 2000. Such assets detected by the investigation agency comprised three immovable properties in his own name and two vehicles in the name of his brother, as detailed in the FIR.
The applicant had already been tried and convicted, with two others, by the accountability court No 1, Karachi, in accountability reference No 24 of 2000. On this basis, he made an application before the trial court for discharge, relying upon section 403 of CrPC.
The trial court had rejected the plea on May 22. The applicant, therefore, approached the SHC, invoking revisional powers as well as inherent jurisdiction under section 561-A of CrPC.
The counsel for the applicant contended that the charge against his client in the accountability reference was that he had acquired property of the value beyond his known source of income, and he had been convicted of this charge by the accountability court. Apart from sentence of 14 years’ rigorous imprisonment and fine of Rs10 million, all his movable and immovable properties, except one inherited family property, had been confiscated and forfeited, and now he could not be tried again for the same offence.
He relied upon section 403 of CrPC, section 26 of the General Clauses Act and article 13 of the constitution.
Syed Tariq Ali, Federal Counsel, submitted that the property involved in this case was different from that was considered in the accountability reference.
Justice Rabbani, in his order, observed that as per record the investigation officer in this case made an application before the trial court under section 344 of CrPC, seeking time to submit the final report, submitting that it was suspected that the properties involved in the subject FIR were also attached by the NAB court No I, Karachi, during proceedings of NAB reference No 24 of 2000.
It was mentioned that the matter was referred to the highups for closure of the subject case. The matter was referred to the Deputy Director, Law, for legal opinion and, on his opinion, the final report was submitted before the trial court.
According to that report, the Deputy Director Law, FIA, had given the opinion that the properties involved in this case were attached by the accountability court to compel appearance of the accused. He had also said that these properties had not been confiscated.
The opinion of the Deputy Director, Law, FIA, was in conflict with the record, Justice Rabbani in his order observed. The three immovable properties in the name of the applicant, mentioned in the FIR in this case, were attached in accountability reference No 24 of 2000, and it was in the knowledge of the accountability court that these three properties belonged to the applicant, who was accused in the case in the reference. Finally, the accountability court ordered confiscation and forfeiture of all movable and immovable properties of the convict/present applicant, with the exception of one property specifically mentioned in the judgment.
“It cannot, therefore, be said that the immovable property involved in this case was not a subject of the accountability reference,” he observed.
About the two vehicles, mentioned in the FIR in this case, the final report mentioned that the allegation could not be proved during the course of the investigation, the order said.
The alleged offence committed by the present applicant was that he acquired assets by illegal and corrupt practices, which were beyond his known means of income. For this offence, he was tried by the accountability court.
Justice Rabbani observed that it was obvious that the applicant had been sent up before the Anti-corruption Court for trial again for the same offence. This was not a case of distinct offence on the same facts. The prohibition provided by article 13 (a) of the constitution, section 26 of the General Clauses Act of 1897 and section 403(1) of the CrPC, was fully applicable in the present case.
