The recent orders of the Peshawar High Court’s Abbottabad circuit bench suspending sentences of 25 convicts and releasing them on bail in the Mashal Khan lynching case have raised many eyebrows. The stance adopted by the concerned additional advocate general of Khyber Pakhtunkhwa government, who had not opposed the suspension of the sentences before the court, has also been criticised by Mashal’s father Iqbal Khan and his lawyers.

A two-member bench of the high court had on Feb 27 heard applications for suspension of sentences and granting bail to the said 25 convicts. Those applications were filed in the criminal appeals of the convicts challenging their conviction by an anti-terrorism court on Feb 7.

The anti-terrorism court, which conducted trial of the lynching case inside the Haripur central prison, had convicted 31 of the accused persons, whereas remaining 26 accused were acquitted. The court had also issued perpetual arrest warrants of four of the absconding accused persons and they were declared proclaimed offenders.

The said 25 convicts, who are now released on bail, were sentenced by the trial court to three years rigorous imprisonment each, under section 11-WW of the Anti-Terrorism Act, 1997, with a fine of Rs50,000 each. The said provision of ATA was incorporated in the law in Feb 2017 through the Criminal Laws (Amendment) Act, 2017, and it deals with lynching.

They were also sentenced to one-year imprisonment each with fine of Rs50,000 under section 297 (indignity to human corpse), 148 (rioting) and 149 (unlawful assembly) of Pakistan Penal Code (PPC). The trial court had ordered that their sentences shall run concurrently.

Before the high court, the counsels appearing for the said 25 convicts had contended that as their sentences were short one, they may be released on bail by suspending their sentences till final disposal of their appeal. It was contended that these petitioners were behind bars for the last about 10 months, but there was no likelihood that their appeal would be fixed for hearing in the near future due to the huge backlog of criminal cases before this court.

The bench in its order observed that the additional advocate general had also got no objection to the desired suspension of the sentences to the extent of petitioners who were sentenced to three years imprisonment.

The court had granted them bail on condition of furnishing two sureties each of Rs200,000. While the Code of Criminal Procedure (CrPC) has empowered an appellate court to suspend a sentence and set free a convict on bail, the Anti-Terrorism Act (ATA) in clear terms provides that the appellate court shall not release the accused on bail.

The Section 426 of CrPC deals with suspension of sentence pending appeals. Sub-section 1 of the said section states: “Pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order, that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail or on his own bond.”

Section 25 (8) of the ATA provides that pending the appeal in the High Court the accused shall not be released on bail.

A legal expert on the subject, who did not want to be named, said that the provision of ATA has to prevail over that of CrPC as the former was a special law. He said that under its appellate jurisdiction the high court was not empowered to suspend a sentence awarded under the ATA and to release a convict on bail. However, he said that the high court could suspend a sentence awarded under the ATA while exercising its constitutional jurisdiction under Article 199 of the Constitution.

He explained that like in the accountability cases wherein the superior courts were barred from releasing an accused on bail, but the courts exercise constitutional jurisdiction to deal with bail petitions, in the same manner a convict could request for suspension of his sentence under Article 199 of the Constitution of Pakistan, which deals with the constitutional jurisdiction of the high court.

The expert pointed out that the high court could not release a convict on bail under ATA through a bail application under CrPC rather the convict has to file a writ petition under Article 199 of the Constitution for suspension of his sentence.

Mashal’s father Iqbal Khan and his counsels had requested the Chief Justice of Pakistan to take notice of the PHC’s order. They had claimed that the high court bench had not issued notice to them while releasing the convicts on bail.

Another development in the lynching case was the arrest of an important accused, Arif, a tehsil councillor who had been absconding after the occurrence, by officials of Mardan police on March 8.

Along with three other absconding accused, Arif was also declared a proclaimed offender by the trial court and their perpetual arrest warrants were issued. The court had ruled that the prosecution had proved its case against the absconding accused persons.

In its judgment the court has discussed in detail the evidence put forward by the important prosecution witnesses. A total of 51 prosecution witnesses were examined most of whom were police officials.

An important piece of evidence against the accused Arif is a video footage wherein he was shown congratulating other members of the mob, which had lynched Mashal Khan at Mardan’s Abdul Wali Khan University on April 13, 2017. He had also announced that if they (police) wanted to register an FIR it should be registered against him. “My name is Arif and my father’s name is Thor Khan,” he had announced.

Published in Dawn, March 12th, 2018