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KARACHI Holding the guards of the chief of the Pakistan People's Party (Shaheed Bhutto) responsible for opening fire on a police team, Additional District and Sessions Judge Aftab Ahmed 'justified' the subsequent police action that led to the killing of Mir Murtaza Bhutto and his seven associates over 13 years ago.
'Murtaza's associates actually put the lives of policemen in danger by firing on them and the police did not commit any offence while defending their own persons in performance of their lawful duty,' ruled the judge.
In the detailed verdict citing reasons for the acquittal of all the 18 policemen booked in the Murtaza Bhutto murder case, the judge not only 'justified' the police right to defence, but also threw out the charge of criminal conspiracy, rejected the evidence of private witnesses/eyewitnesses and a claim of the complainant's lawyer that there was a delay in shifting of Murtaza Bhutto to a hospital for treatment.
Justifying the Sept 20, 1996 encounter that occurred some yards away from 70 Clifton, the court observed that two criminal cases were registered against Murtaza Bhutto and his companions for raiding the CIA Centre and the police were justified in making arrests of his those guards as cognizable cases were pending against them.
It said that keeping in view the circumstances it appeared to be more probable that the guards and companions of Murtaza Bhutto were already charged and provoked against the policemen, and finding their arrest certain, they fired first at the police and wounded the police officers and damaged the vehicles.
There were sophisticated automatic weapons recovered by the police from the possession of the guards or from their vehicles as was evident from the arms licences and the ballistic report said that the guards had used the weapons at the time of incident and had made heavy and indiscriminate firing. 'The police were there to check the arms and arrest the guards as they had lawful order in this regard, thus the policemen did not form any unlawful assembly as allegedly by the prosecution.'
'No evidence to prove conspiracy'
The verdict said that according to the definition of criminal conspiracy there must be an agreement between two or more persons and in order to establish any such agreement, evidentiary material of admissible character was required. But, in the present case, the prosecution had given no direct evidence to prove any conspiracy. Neither the petitioners in their constitutional petitions nor complainant in the instant FIR divulged the detail of any such conspiracy, it added.
No date, time or place of the so-called conspiracy was mentioned nor was the name of any witness or sources disclosed. No convincing material had been produced in court by the prosecution leading to any circumstance pointing towards any conspiracy, said the verdict.
The judge said that the complainant's counsel had not mentioned any thing from the evidence on record in support of the conspiracy theory and only some witnesses deposed regarding political differences between Asif Ali Zardari and Murtaza Bhutto, but no specific circumstances had been given from which it could be inferred that there was any conspiracy.
The judgment said that co-accused Asif Zardari and Shakeeb Qureshi had already been acquitted in this case and the orders of their acquittal had attained finality. Therefore, accused Wajid Ali Durrani, Shoaib Suddle, Shahid Hayat, Rai Mohammad Tahir, Shabbir Qaimkhani, Agha Muhammad Jameel and Abdul Basit deserved to get the same benefit as the offence of criminal conspiracy was also not proved against them.
'Witnesses had a criminal record'
The private witnesses/eyewitnesses in the case were the associates of Murtaza Bhutto. However, the court did not entertain their evidence and observed that a majority of the eyewitnesses were involved and wanted in criminal cases on the day of incident and the investigation officers, Noor Mohammad and Hussain Asghar, had deposed that the Murtaza Bhutto's associates had a 'massive' criminal record.
'Involvement of a witness in criminal cases by itself may not be ground to disbelieve his testimony, but in our society involvement of a person in criminal activities or political extremism are a valid consideration to apply extra caution while dealing with the evidence of such like persons because their veracity and credibility remains under a log and dictates of justice would certainly demand a greater caution,' it added.
The court said in its order that there were also glaring contradictions, material deviations and open improvements in the statements of eyewitnesses.
Discarding the evidence of injured witnesses, the court said their depositions could not be accepted for the reasons that they suffered through material improbabilities and inconsistencies. All the three injured witnesses had come up with major variations in their later statements, which were not in their earlier depositions, it added.
'PWs not testified specifically against superiors'
The court also held the investigation officers responsible for having made an inordinate delay of several months in recording the testimonies of witnesses under Section 161 of the criminal procedure code and observed that according to the well-settled principle of law laid down by the apex court, such delays adversely affects the prosecution case.
According to the FIR, there were 80 to 100 policemen present at the place of incident, but only 18 policemen were charge-sheeted by the investigators and the prosecution was silent about the remaining policemen, it added.
The prosecution had examined over 70 witnesses and most of them were policemen. Since the accused in the case were police officials, thus the witnesses had not testified specifically against their superiors. Moreover, some of the witnesses deposed against the victims, stating that the associates of Murtaza Bhutto were equipped with deadly weapons and they started firing first at the police, it added.
Referring to the contention of the complainant's lawyer, the court observed that there was no delay in the shifting of Murtaza Bhutto to hospital as it was clear from material on record that the incident started between 8.40 and 8.45pm and his death certificate produced by Dr Ayaz Ali showed that he was admitted to the hospital at 9.20pm where he died at 11.55pm. The incident continued for about 15 minutes and the remaining 20 minutes must have been consumed in traveling, it added.
Accused given the benefit of the doubt
The verdict stated that the prosecution had miserably failed to prove the charges against the accused persons beyond a reasonable doubt that they killed the deceased as a result of a conspiracy or any other motive. Therefore, the accused were given the benefit of reasonable doubt and acquitted accordingly under section 265-H of the criminal procedure code, it concluded.
Mir Murtaza Bhutto along with his seven associates was killed on Sept 20, 1996 near his residence in Clifton in an alleged shoot-out with police.
The then DIG of the Karachi police, Shoaib Suddle, the director-general of the Intelligence Bureau, Masood Sharif, SSP Wajid Durrani, ASP Shahid Hayat, SHO of the Napier police station Inspector Agha Mohammed Jameel, ASP Rai Mohammed Tahir, Sub-Inspector Shahbbir Ahmed Qaimkhani, ASI Abdul Basit, Head Constable Faisal Hafeez, Head Constable Raja Hameed, and police constables Ghulam Shahbbir, Zulfiqar Ahmed, Zakir Mehmood, Zafar Iqbal, Ahmed Jan, Gulzir Khan, Ghulam Mustafa and Muslim Shah were nominated as accused in the case and they were acquitted through a short order pronounced by the judge on Dec 5.
