On Saturday, February 17, an Anti-Terrorism Court (ATC) found Imran Ali guilty of raping and murdering six-year old Zainab Amin, and handed him four counts of the death penalty, one life term, a seven-year jail term and Rs 3.2 million in fines.

Ali will not immediately be sent to the gallows. Far from it. The matter will be reviewed by the High Court irrespective of whether Ali files an appeal.

Under Section 374 of the Pakistan Criminal Procedure Code (Cr.P.C.), whereby a trial court (in this instance, the ATC) passes a death sentence, the proceedings are automatically referred to the High Court, and the sentence cannot be executed unless it is confirmed by the High Court.

Therefore, the ATC that sentenced Ali to death will forward a reference to the Lahore High Court to review its verdict.

While deciding a reference, a High Court has abundant powers to confirm the sentence, to annul the conviction, to order a new trial on the same/amended charge and, lastly, even to acquit an accused.

A reference under Section 374 of the Cr.P.C. can be decided even in the absence of the convict, keeping in view the merits of the case.

It is unlikely that the jurisdiction of the ATC will be set aside by the High Court, as matters similar to these (e.g., gang-rape and murder) have been upheld as acts of terrorism under the Anti-Terrorism Act.

Besides, the Supreme Court recently gave a wider scope to the jurisdiction of the ATCs, through which consequence of an accused’s actions are also a factor to be considered, rather than just the accused’s motive.

Therefore in this case, regardless of whether Ali intended to create an environment of fear, the consequence of his actions (e.g., mass rioting and public distress), attracted the ATC’s jurisdiction.

Related: Shahzeb Khan's murder was shocking but was it 'terrorism'?

However, the High Court, after examination of the trial evidence, may come to a different conclusion to that of the ATC.

The High Court may find that the evidence on record suggested that there existed reasonable possibility that the defence put forth by the accused was credible or that the prosecution was not able to prove its case against Ali beyond a reasonable doubt, which is a high threshold.

The High Court will analyse the evidence on record only, as no new evidence can be introduced at the stage of an appeal.

The High Court will determine whether there were inherent defects or gross oversights in the ATC's verdict to the extent that reasonable doubt existed against the suspect.

Similar to the ATC, the High Court will analyse the evidence and weigh whether there was any material discrepancy in the corroborative evidence used by the prosecution against Ali (e.g., oral, documentary, ocular and forensic evidence).

For instance, the High Court may find that discrepancies (if any) in the witnesses’ testimonies and/or inconsistencies in different kinds of evidence were material to the extent that an unbroken chain of corroborative events was not showcased by the prosecution, thereby setting aside the conviction.

Notwithstanding Ali’s confession made during the trial, the prosecution would still be required to prove the convict's guilt beyond reasonable doubt.

Ali’s confession will also be examined to verify whether such was made under any duress or unlawful circumstances.

Finally, and most crucially, the High Court will see whether the convict was afforded due process and a fair trial under Article 9, Article 10 and Article 10-A of the Constitution.

Also read: Zainab’s murder: how will the prosecution build its case?

Trials under the Anti-Terrorism Act are required to be proceeded on a day-to-day basis, with a verdict to be announced within seven working days.

Ali’s trial was held behind closed doors to ensure speedy proceedings that were not impeded by external factors that so notoriously impact cases of this nature (e.g., witness intimidation, delayed litigation tactics).

The ATC concluded its proceedings within four days, during which 56 witnesses, in addition to forensic evidence, were examined (and supposedly cross-examined).

The High Court will examine whether the defence counsel (whether privately appointed by the convict or by the state) had an adequate and fair opportunity to cross-examine all the witnesses (and consequently evidence) presented during the four-day proceedings against Ali.

A lack of fair and adequate opportunity would impact the verdict, theoretically at least.

Finally, in the (likely) scenario that the High Court affirms the ATC's verdict, Ali may file an appeal before the Supreme Court of Pakistan against the legality of the High Court's decision.

That does not, however, mean that the appeal would automatically be heard by the apex court.

Also, by then, Ali may be hard pressed to find counsel to represent him, due to the nature of the case.


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