SHC frames questions about NCHR Act’s overriding powers over CrPC

The Sindh High Court on Thursday framed questions with regard to the overriding powers of the National Commission of Human Rights Act over the Code of Criminal Procedure (CrPC).

The questions were raised on an application of the National Commission of Human Rights (NCHR) against an anti-terrorism order with regard to the transfer of the Nazim Jokhio murder case from an anti-terrorism court to a sessions court. The commission submitted in the application that the ATC had transferred the case to a sessions court after observing that case does not fall within the purview of the anti-terrorism law.

The applicant’s counsel Jibran Nasir submitted that the victim in the case had attempted to stop the illegal hunting of houbara bustards by some foreigners who were guests of Pakistan Peoples Party MNA Jam Abdul Karim and his brother MPA Jam Owais, who became annoyed after he uploaded a video of illegal hunting by the foreigners.

He submitted that the ATC misread the evidence of the case as there was a huge disparity in the power and resources of the victim and the accused; besides, the government and the prosecution became accomplices of the accused.

He said the applicant wanted to become a party in the case before deciding the jurisdiction of the case as the applicant’s stance was that such crime involved a grave violation of human rights and quite clearly and an act of terrorism, which must be prosecuted accordingly. He said the ATC passed the order without appreciating material facts on record and upon misreading and erroneous application of the law.

The counsel argued that it was in the interest of justice that the applicant’s application should have been heard with regard to the jurisdiction and trial of the case before an anti-terrorism court. The court was requested to set aside the ATC court order and transfer back the case to ATC for trial. The additional prosecutor general however opposed the application.

A division bench headed by Justice Mohammad Iqbal Kalhoro framed questions with regard to overriding powers of the NCHR on the CrPC to decide the application. The court asked the counsel to assist the court in answering questions whether the NCHR Act had an overriding effect over the criminal procedure code and if so what its effect is. The court also questioned whether the applicant in a criminal case registered by a private person can be made a party after the submission of the challan in the court, particularly when the applicant did not move an application to join the case at the time of the investigation nor did it come forward to lodge an FIR. It asked what would effect of making the applicant a party in the criminal case registered by a private person and therefore its outcome would be subjected to the evidence to be led by the private witnesses.

NCHR member Anis Haroon had earlier alleged in the application for becoming intervenor in the case that the government functionaries were trying to influence the investigation of the Nazim Jokhio murder, and the trial was being deliberately delayed by the prosecution department.

The intervenor said that there were glaring testaments that there is no chance of a fair trial and a just conclusion of the case if left at the mercy of the state offices, including those of the prosecutor general and the Sindh advocate general, which have, as displayed by their conduct, been compromised.

The police had earlier submitted the charge sheet before the anti-terrorism court excluding the names of 13 accused, including Pakistan Peoples Party MNA Jam Abdul Karim and his brother MPA Jam Owais from charge sheet.

Filing the charge sheet before the administrative judge of anti-terrorism courts, the investigation officer did not include the names of PPP MNA Jam Abdul Karim, his brother MPA Jam Owais and 11 others accused in the list of accused who were sent up for trial.

Nazim Jokhio’s tortured body was found at the Jam House, said to be owned by MPA Jam Awais, in Jam Goth on November 3, 2021. Jokhio’s brother lodged a case against Awais, Karim and others for being involved in the murder of his 27-year-old brother. According to the police, Nazim Jokhio was tortured to death for reportedly trying to prevent the lawmaker’s guests from hunting the houbara bustard in the Thatta district.