- Role of university admin, police remains dubious
- KP govt’s hiring of private counsels to contest case raises eyebrows
LAHORE/PESHAWAR: The verdict in the Mashal Khan lynching case has fallen short of setting a precedent in cases pertaining to blasphemy killings due to a flawed investigation by the Khyber Pakhtunkhwa (KP) police, prosecution and adjudication, Pakistan Today has learnt.
On April 13, 2017, Mashal Khan, 23, a student at the Abdul Wali Khan University Mardan (AWKUM), was lynched by a mob allegedly comprising his fellow students riled up by allegations of blasphemy against the young man.
The anti-terrorism court (ATC) on February 7, convicted 31 of the 57 arrested accused in the lynching case, awarding death sentence to the prime accused, life imprisonment to five other convicts and three-year jail terms to 25 others, while acquitting 26 others.
The verdict was criticised by the parents of Mashal, civil society, and the lawyers representing the slain student, with Mashal’s parents calling it “incomplete justice”.
A Joint Investigation Team (JIT) which was formed to probe the lynching of Mashal Khan revealed that it was a well-planned attack by the Pakhtun Students Federation (PSF) and that there was no evidence of blasphemy involved. According to the report, Mashal was getting vocal about student rights and the increasing irregularities in the institution and was becoming an apparent threat to the PSF.
However, the FIR [First Information Report] which was registered after the murder in the Sheikh Maltoon police station contains lacunas as it only included Section 302 and Section 324 (pertaining to intentional murder); Section 148 and Section 149 (pertaining to offences against public tranquility); Section 297 (pertaining to trespassing on burial places); Section 427 (pertaining to mischief); Section 7 of the Anti-Terrorism Act (pertaining to punishment for acts of terrorism) and Section 109 (pertaining to abetment), whereas, Section 120B—pertaining to criminal conspiracy— besides others that were added later.
Upon investigation, Pakistan Today has learnt that the murder took place while a police team was busy ‘negotiating’ with the university administration as police reached the campus early in the morning—at 10:00am.
Moreover, the JIT report also holds the police and university administration responsible for not taking timely action.
For instance, Wajid Malang—a convict handed down only three years—reached the university from a government-run college in Mardan and instigated people to murder Mashal for committing ‘blasphemy’ right under the police’s nose. However, the convict was exonerated in sections 120B, 427, 324, 302, 7 (a), 7 (b) [pertaining to civil commotion] and 21-1 ATA (pertaining to cordons of terrorist investigation) and 15-AA KP.
Section 149 of the Pakistan Penal Code states: “Every member of unlawful assembly guilty of offence committed in prosecution of common object.” However, despite being part of the mob and a party to the murder, the court acquitted 26 accused and the prime suspect from the charge. The verdict states that these people—26 accused who were acquitted—were not part of the mob that was there to kill Mashal, but they were merely recording the incident.
In spite of being termed as “pre-meditated murder” by the Supreme Court-mandated JIT, 26 accused seen in the video were exonerated due to “insufficient evidence”.
A counsel representing Mashal told Pakistan Today, “If someone was present in the video then there should not be a distinction of spectators or participants as everyone should have been sentenced under Section 149 for being part of the unlawful assembly. The acquitted persons were adults and responsible for their actions.”
He went on to say that “out of the mob of at least 400 people gathered at the site of the murder, only a dozen could be seen leaving the venue, so acquittal of that number of people was plausible, but 26 acquittals were incomprehensible”.
When asked if the prosecution was flawed, the counsel, who requested anonymity, said it was difficult to build a case on the video evidence; however, the prosecution team managed to build the case and got an unprecedented decision in the legal history of Pakistan.
It is pertinent to mention here that this is one of the few cases in which video-evidence was used for proving a crime, and judgement of execution was passed for one of the persons who was accused of the crime.
Mashal’s counsel further said that they had a strong case and were satisfied with the prosecution, however, the judgement is the domain of the judges.
It may be noted here that the cases of blasphemy are often ill-treated because of an inherent bias within the judiciary, lawyers, police and other departments of the government.
For instance, in the case of Junaid Hafeez—a university professor accused of blasphemy— at least six judges have been changed as of yet; police do not allow him to meet his lawyer in private; nor can the accused meet his father without the police’s approval.
The verdict itself can be judged by considering that Aizaz, who had pleaded not guilty in the court reportedly boasted of his involvement in the case in a welcome rally accorded to the acquitted accused in Mardan, and vowed to “kill the blasphemers in future as well”.
Another accused who was acquitted had admitted to kicking Mashal while he was alive — he too was acquitted by the court due to “lack of evidence”.
Human Rights Commission of Pakistan’s Irshad Ahmed told Pakistan Today that such glorification of violence at the Mardan rally was a result of the government’s inability to make an example out of people who kill in the name of blasphemy.
Lamenting the inherent bias in the criminal justice system of the country, he said, “The system failed us all” and added that the political parties cash in on such sensitive issues with no regard for repercussions.
Pointing out the flaws in the system, he said the Mashal case had become a high-profile case, therefore “justice was served” but in low-profile cases, like Junaid Hafeez and Shabqadar case—a principal was killed over blasphemy, nothing is ever done.
KP GOVT AND PROSECUTION:
The hiring of private counsels to contest the case by the KP government has also raised eyebrows.
After the verdict, Mashal Khan’s father had said that if the government had taken the case seriously at the outset then there would have been no need for it to go to the Peshawar High Court (PHC).
However, despite repeated attempts KP Prosecution Directorate and Law Minister Imtiaz Shahid could not be reached for comments.
KP police, named in the JIT report for its negligence— deliberate or unintentional— to prevent the murder has tried to shift the blame, saying that “investigation carried out by JIT also included other law enforcement and secret agencies, including the Inter-Services Intelligence (ISI), Intelligence Bureau (IB) and Military Intelligence (MI), therefore, only police couldn’t be blamed for the shortfall”.
It may be noted here that a KP police official quoted by a local newspaper had said that many members of the police, prosecution service and judiciary sympathised with the attackers and he did not expect any guilty verdicts.
Mardan Regional Police Officer (RPO) Alam Khan Shinwari told Pakistan Today: “We are not satisfied with the ATC’s verdict and for the very same reason the government moved the Peshawar High Court.” He said that all those who were part of the mob—61 accused—that attacked and killed Mashal Khan deserve punishment.
An informed source told Pakistan Today that “students, eyewitnesses and even inquiry reports revealed that students who were part of the mob, started gathering at the campus in the morning and a police squad, comprising 20 to 25 personnel, reached the campus around 10am. But due to no directives from the high ups, especially the district police officer of Mardan, these personnel stood as silent spectators. After the incident, DPO had avoided telephonic calls from media personnel, and RPO Deputy Inspector Shinwari had to respond and confirm the lynching of Mashal.”
When Pakistan Today contacted DPO Dr Muhammad Saeed, he was reluctant to comment on the police’s inquiry report, saying: “We have completed the investigation and presented challans before the court of law.”
“The matter is sub judice, therefore there’s no need for further comments,” he said.
It merits a mention here that the DPO is a former member of a religious party and many have tried to link his inaction with his religious activism of the past.
The ATC verdict also declared four absconding accused – Arif, a Pakistan Tehreek-e-Insaf’s tehsil councillor, Asad Khan, Sabir Mayar and Izhar Ullah alias Johny – proclaimed offenders as, according to the verdict, the prosecution has proved the case against them. Johnny was arrested by the police last month.
The investigation by the police in the case reeks of incompetence as the murder was committed when police were on the campus; police failed to build the case against the university officials for being negligent.
Besides the police, the university administration role also remains dubious in the murder. Instead of taking steps for controlling the mob, the assistant registrar on April 13, 2017, posted an official notice on the online board announcing that three students, including Mashal, were under investigation for blasphemous activities, and had been suspended.
“I am directed to notify that the following Inquiry Committee has been constituted to probe into the matter of blasphemous activities carried by the students of Department of Journalism namely, Mr. Abdullah, Mr. Mashal and Mr. Zubair. Further, the mentioned students are hereby rusticated and their entry into the premises of the University (all campuses) is banned until further orders.”
Talking to Pakistan Today, Supreme Court Advocate Saiful Malook regretted that 26 suspects were acquitted despite video evidence and confessions.
“How can the same law be used to punish few and acquit others in the same case?” he asked.
Despite all the shortcomings, Advocate Saif lauded the decision, saying that in an area mired with fundamentalism, such decision was welcoming.
The advocate said that the SC in its verdict in the Salman Taseer murder case had clearly stated that “no one can kill the blasphemers as there is already a law in this regard”, and whoever takes law in his own hands must be punished accordingly.
Commenting on the Jamiat Ulema-e-Islam-Fazl’s (JUI-F) and Jamaat-e-Islami’s (JI) rally, wherein the religious zealots had vowed not to accept the decision of the court, he said that if people start acting like that there will be chaos, saying that “holding a rally which favours everything that goes against them is tantamount to terrorism”.
“There is no difference between them and terrorists as actions of both go against the Constitution.”
“The Supreme Court must take a suo moto notice of the rally,” he urged.
He went on to say that democracy cannot work in a system where there is hegemony of religious zealots in many electorates.
“There is no space for counter-narrative due to state’s dependence on such elements,” he concluded.
Additional inputs from Shamim Shahid in Peshawar