A move by former member of Khyber Pakhtunkhwa Assembly, Baldev Kumar, to seek asylum in India on the grounds of alleged ‘mistreatment’ with religious minorities in Pakistan has brought in the limelight the appeals filed against his acquittal by an anti-terrorism court in the murder case of a lawmaker, Sardar Soran Singh.

Baldev Kumar had taken oath as an MPA on May 27, 2018, after a two-year long legal battle coupled with a controversy regarding his notification by the Election Commission of Pakistan as MPA-elect despite his being the prime suspect in the murder case. He remained MPA for a single day as the assembly was dissolved on May 28, 2018, for holding general elections.

He has now been seeking political asylum in India and has accused the Pakistani government of mistreating religious minorities in the country. In this regard, he had addressed a press conference on Sept 10 in Khanna, India.

Mr Kumar, who belongs to Sikh community of Swat valley, is currently on a three-month visit to India.

Since the murder of Soran Singh, then adviser to KP chief minister, in Buner district on April 22, 2016, Mr Kumar had remained engaged in different legal battles. He faced trial along with five other accused persons for the killing of Soran Singh. They were acquitted by an anti-terrorism court on April 26, 2018.

Separate appeals against their acquittal were filed by the KP government and legal heirs of late Soran Singh in Peshawar High Court, Swat bench, commonly called as Darul Qaza. A bench of the court is scheduled to hear these appeals on Sept 30.

Additional advocate general Mohammad Raheem Shah believes that they have a strong case against Mr Kumar and other accused and that he is hopeful that the verdict of ATC will be set aside. He said the trial court had not appreciated the evidence available against the accused persons.

Mr Kumar had remained an active member of the ruling Pakistan Tehreek-i-Insaf and in the 2013 general elections his name was placed at serial No 2 after Soran Singh on the priority list of candidates for non-Muslim reserved seats in KP Assembly.

The prosecution had cited the same reason as prime motive for killing Soran Singh as after his death he was entitled to become an MPA on the vacant seat.

Though the banned Tehreek-i-Taliban Pakistan had claimed responsibility for the murder of Soran Singh, the police arrested Baldev Kumar and other accused persons within few days of the occurrence and had stated that the TTP’s claim was not correct.

The prosecution claimed that during initial investigation the police had arrested an accused named Bahroz who had disclosed the entire facts to the investigation officers following which other accused persons, including Mr Kumar, were arrested.

It was alleged that Mr Kumar was aggrieved at the nomination of Soran Singh at serial No 1of the priority list. The prosecution claimed that one of the accused persons, Mukhtiar Mohammad, had fired at Soran Singh and all the accused persons were in contact with each other through their mobile phones.

Two of the accused, Bahroz and Alam Khan, also made a confession before a judicial magistrate wherein they had claimed that Soran Singh was killed at the behest of Mr Kumar.

In its appeal, the provincial government stated that the prosecution had proved the charges against the accused persons/respondents through solid evidence, including medical report, recovery of weapon of offence, CDR (call data record), judicial confessions of accused Bahroz and Alam Khan, motive for commission of offence, hiring of the assassin for the purpose, etc.

Advocate Shabbir Hussain Gigyani, an expert in terrorism-related cases, said that under normal procedure when an appeal was filed against acquittal of accused by an ATC, the high court initially summoned the record and on the basis of that it decided either to admit the appeal to full hearing or reject the same.

He said that if an appeal is admitted to hearing, the high court then normally directs the trial court to get surety bonds from the acquitted accused so as to ensure his appearance during proceedings of the appeal. He added that if the trial court failed to locate the acquitted accused/ respondent it informs the high court. He said that if the acquitted accused was abroad then the court issues notice to him through the concerned Pakistani embassy in that particular country.

“The high court is empowered either to hear an appeal against acquittal in absence of an acquitted accused or to adjourn hearing of the appeal for indefinite period,” Mr Gigyani said, adding that such accused had to be declared an absconder and proclaimed offender by the high court after fulfilling the requirement under the Code of Criminal Procedure (CrPC).

Looking at the present situation, it is evident that Mr Kumar is unlikely to return to Pakistan and pursue the appeal. In such a situation there is likelihood that he would be declared an absconder from law.

Apart from the trial in murder case of Soran Singh, his death had also exposed the constitutional lacuna related to filling reserved seats for non-Muslims.

The case of Mr Kumar showed that though he was charged with killing of Soran Singh and the PTI did not want him to become an MPA on the said vacant seat, the party was helpless to change its priority list of candidates because of a Constitutional provision under which a reserved seat falling vacant has to be filled by notifying name of the next candidate on the priority list of that party.

The party had also requested the ECP not to notify him as an MPA till conclusion of his trial. As he was imprisoned, he moved the high court seeking directives for the KP Assembly speaker to issue his production order so that he could take oath as an MPA. The high court on Feb 8, 2018, ordered the speaker to call the petitioner from prison and administer oath to him. However, when he was brought to the assembly on Feb 27, he could not be administered oath as several of the lawmakers raised objection to his presence.

However, he took oath on May 27 after he was acquitted by the ATC in the murder case.

Published in Dawn, September 16th, 2019