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Appeals court shoots down Bloemfontein Pakistani terror gang’s bid for freedom
The men argued that the search which led to the discovery of shallow graves at their rental property was a violation of their right to privacy.
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The Supreme Court of Appeals has dismissed an attempt by a gang of Pakistani national to have their life sentences overturned, on the basis that their privacy was violated in the process of uncovering their crimes.
Robbery, kidnapping and murder
In November 2007, four Pakistani nationals were lured to Clocolan in the Free State, robbed of a BMW sedan, cell phones and two firearms, before they were murdered and buried in a shallow grave.
Victims of an organised crime syndicate, Malik Yasser Awan, Amanullah Nusrullam, Shabodien Hussein and Majid Saleem, were buried at house 42 Andries Pretorius Street.
On 4 March 2008, Zia Khan, also a Pakistani national, was kidnapped and kept at house on 6 Van der Spuy Avenue, Bloemfontein, and threatened with death if his family did not pay a R2 million ransom.
Before he was killed and buried in shallow grave on the property, he was robbed of his Opel Corsa bakkie and a cell phone.
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In 2018, the Free State High Court in Bloemfontein found Pakistani nationals Saleem Qurashi, Farhan Ullah and Shabber Ghulam guilty of the crimes and sentenced each to life imprisonment.
The trio, also tried for attempting to kidnap Rashid Khan, also a Pakistani national, have since lost their bid to lobby the Supreme Court of Appeal in Bloemfontein to overturn their sentences.
Invasion of Privacy
They challenged the admission of evidence, which they contended was obtained unconstitutionally and infringed on their right to privacy and to a fair trial, and admission of hearsay evidence and the prominent role this played in their conviction.
Also questioned by the trio was the credibility of findings made by the Free State High Court in favour of the prosecution witnesses against them.
Qurashi, Ullah and Ghulam were tried together with four other Pakistani nationals on 11 counts; that of contravening the Prevention of Organised Crime Act, robbery with aggravating circumstances, murder, kidnapping, attempted extortion and conspiracy to kidnapping – a charge that was not preferred against Ghulam.
The men argued that their search and that of the 6 Van der Spuy Avenue property and other houses upon their arrest violated their right to privacy, but the SCA held that the points raised on this appeal, viewed individually or collectively, “could hardly tip the scales in favour” of the trio.
The SCA found that a notable feature of the Constitution’s specific exclusionary provision was that it does not provide for the automatic exclusion of unconstitutionally obtained evidence.
Law of evidence
No justification existed for the exclusion of the evidence, the SCA held, as during the course of the trial, some of the evidence relied upon by the prosecution was sought to be excluded by the defence on account of its hearsay nature.
However, the high court has ruled them admissible in terms of the Law of Evidence Amendment Act and the SCA considered the principles applicable
Evidence, the SCA held, must be excluded only if it rendered the trial unfair or detrimental to the administration of justice.
As no evidence was presented on that score on behalf of the accused, the high court was simply unable to make that assessment, but found that although the search at 6 Van der Spuy Avenue was without a search warrant, the property was for all intents and purposes abandoned.
Also, the search had been conducted with the permission of the letting agent and searches in Kestell (Free State) and Pietermaritzburg in KwaZulu-Natal were conducted on the arrest of the trio in terms of the Criminal Procedure Act.
Since none of the three testified during the trial within a trial, the SCA held that there was no way for the high court to know whose privacy was infringed, the extent and scope thereof or whether as a consequence, it ought to exercise its discretion in favour of admitting such evidence.
