Actor Osman Khalid Butt submitted a petition in the Supreme Court (SC) on Monday, challenging the acquittal of slain social media star Qandeel Baloch’s brother in her murder case on grounds that the high court’s judgement on the matter was “sketchy, illegal” and in “contravention of the law”.
The petition was moved through Barrister Khadija Siddiqui under Article 184(3) of the Constitution and prayed the apex court to set aside the Lahore High Court’s (LHC’s) judgement that acquitted Muhammad Waseem of Baloch’s murder and restore the trial court’s verdict that declared him a convict.
Earlier in 2019, a model court in Multan had convicted Waseem and sentenced him to life imprisonment after finding him guilty of killing Baloch, said to have been murdered in the name of honour. However, he was acquitted by the LHC earlier this month after serving less than six years in prison.
The court’s decision was widely criticized on social media and Parliamentary Secretary for Law and Justice Maleeka Bokhari stated around week after the acquittal that the law ministry planned to challenge the verdict.
The petition filed in the SC on Monday stated that the LHC had acquitted Waseem on the basis of a “compromise”, after Waseem moved an application against his conviction in the LHC.
The petition contended that the LHC’s judgement “allowed the perpetrators of honour killings to avoid punishment by seeking forgiveness” and “essentially endorses such barbarism”. Consequently, it argued, “the eternal loophole which assumedly had been rectified by the Criminal Law Amendment (Offences in the Name or Pretext of Honour) Act, 2016, stood nullified in light of the impugned Judgement, thereby enabling regressive interpretation of the law”.
“Furthermore, due to acceptance of the aforementioned compromise, no one is in a position to pursue the case on behalf of the deceased and come forth to contest the injudicious acquittal of the accused which disrespects the equal application of the law and undermines the general public’s confidence, faith and trust in our criminal justice system,” the petition read.
Outlining various aspects that need to be reviewed in relevance to the case, the petition termed the LHC’s judgement “sketchy, illegal, bad in the eyes of law” and “liable to be set aside”.
The petition argued that the high court’s judge had “failed to properly consider the settled principles with regard to acquittal of the accused”, and the court had “arbitrarily and erroneously” accepted Waseem’s appeal for his acquittal “without appreciating the material facts of the instant case”.
The judgement, it said, was the result of “misreading and non-reading of the material on the file”.
“While extending the benefit of the doubt to the accused … [the court] diminished salient features which make the prosecution case reliable and trustworthy,” the petition stated, adding that there was insubstantial use of the sufficient evidence available on record to incriminate the accused.
The plea further contested that the principle of fasad-fil-arz (mischief on earth) — which is covered under Section 311 of the Pakistan Penal Code and under which Waseem was convicted — was applicable to the case as it was a case of honour killing.
Section 311 is usually invoked after a person has been pardoned by the victim/complainant.
Under a recent law change, perpetrators are no longer able to seek forgiveness from the victim’s family — sometimes their own family — and to have their sentences commuted.
However, whether or not a murder is defined as a crime of honour is left to the judge’s discretion, meaning killers can theoretically claim a different motive and still be pardoned.
“There is no requirement under law to record evidence to ascertain the question of fasad fil arz after waiving or compounding the right of Qisas (retribution), in particular, when Section 311 PPC, unfurls that the facts and circumstances of a particular case warrant the punishment of an offender under Section ibid against whom the right of Qisas has been waived or compounded,” the petition said.
It added that despite a “compromise” being reached between the parties, the court “was not to blindly and impulsively act upon said compromise in order to acquit the accused”. Rather, the judge “ought to apply his judicial mind to the facts and circumstances of the case and proceed to convict the accused on the principles of fasad fil arz“.
The petition argued that the judge “erroneously observed that there must be clear and qualitative evidence in order to prove the question of fasad fil arz because the only prerequisites that need to be fulfilled are the facts and circumstances of a particular case and the same does not require any evidence”.
It added that the LHC judge “erroneously deciphered” that reaching a compromise before the framing of charges rendered the provision of Section 311 PPC inapplicable.
The judge, it said, “erred in holding that the offence had been compounded, thus, same entitled the accused to earn his acquittal”.
The petition said the judge acted “blindly and impulsively” on the said compromise and the subsequent acquittal of Waseem was a “sheer contravention of the relevant principles of law”.
The plea said there was sufficient evidence to secure Waseem’s conviction and that the accused had voluntarily confessed to the crime.
It added that the LHC judgement on Waseem’s acquittal was based on “misinterpretation and misapplication of law and has caused a serious miscarriage of justice”.
The plea stated that the judgement “is pregnant with serious infirmities and flaws … [as the judge] has acted with impulse”
It further added that if the judgement was not set aside, the appellant would suffer irreparable loss.
