Action recommended against those who distorted facts

ISLAMABAD: The inquiry committee constituted to ascertain the fact regarding the age of prisoner Shafqat Hussain, recommended that criminal action should be initiated against all those who had conceived, actualised, facilitated and used the birth certificate as a legal document to misguide and misrepresent the actual facts of the case.
It said, “Given the law of the land and the facts of the case which unraveled during the course of the inquiry, the committee feels it obligatory to recommend that the single piece of ‘evidence’ which was used to vilify and defame the justice system in Pakistan, and which has since been declared as fake by the issuing authority, must be looked at in more detail.”
A copy of the inquiry report conducted by a team of FIA is with The News with other documentary evidence enough to negate the claim of convicted Shafqat Hussain that he was juvenile at the time when he killed a seven-year-old boy and threw his body in a nullah. Shafqat Hussain was sentenced to death in 2004 and was scheduled to be hanged on 19th March, 2015.
“Thus the inquiry committee is of the view that there is no substance in the defendant’s claim of juvenility at the time of crime. All the facts on record and evidence as well as corroborating evidence establish Shafqat’s age as 23 years at the time of crime.
“Moreover, in the light of the following principle upheld by the honourable Supreme Court, defendant is not entitled to the plea of age at this stage,” the inquiry committee said in its conclusion.
“If a convict, for example, wishes to avoid death penalty on account of being less than 18 year of age, then the onus would be on him to prove his minority for the purpose. Where an accused claims minority, then such a plea must be taken by him at the earliest available opportunity and he should not be allowed to throw surprises at the prosecution and at the courts at the fag end of the trials or at the appellate or revisional stages depriving the prosecution of opportunities to rebut such claims in a proper manner,” the report maintained.
“On the directions of the Ministry of Interior, Government of Pakistan, vide letter No.F.No.3/34/2008-Ptns dated 24.03.15, an inquiry committee was constituted vide letter No.DIZ/Admn/2015/1318-20 dated 24.03 15 to conduct an inquiry into the case of the prisoner Shafqat Hussain s/o Shahzullah who was sentenced to death in the year 2004 and was scheduled to be hanged on 19th March, 2015. He was granted a stay in execution following the concerns raised by few sections of society regarding his age at the time of crime,” report said.
The objective of the enquiry is not to determine the age of Shafqat Hussain. It is to ascertain whether the claim of juvenility of Shafqat Hussain at the time of crime is valid as per the facts on record or all the evidence available so far and whether the issue of juvenility can be legally or principally raised at this point of time, the report indicating objectives of the inquiry said.
“The Inquiry team visited Karachi — where the incident took place, where the accused is lodged in jail and where most of the judicial process took place upto the High Court level and also where the family of the victim currently resides.
The inquiry team obtained and inspected the entire police/jail/legal and judicial record pertaining to the case of Shafqat Hussain.Legal counsel Mansoor-ul-Haq Solangi, who represented Shafqat Hussain, was met and his statement recorded.
The inquiry team also visited the native village of the condemned prisoner, Shafqat Hussain, to meet his parents and teachers,” said in the inquiry report. “On the document called Huliya form (admitted and discussed in the trial court) the age of Shafqat Hussain is recorded at the time of arrest under Rule 26-7 of “Police Rules 1934”, as “23 years”. As per rules, the age in such cases is always written on the consent and approval of the accused and the details regarding his height, features, identification marks, body structure and complexion are mandatorily mentioned on this document.
As per the record of CRO (Criminal Record Office) maintained in each district under the Rule 21-35 of “Police Rules 1934”, the age of Shafqat Hussain was “23 years” at the time of crime. (Copy of the relevant document from the entry register of CRO and the official photograph taken at that time. It is worth mentioning that the same CRO record also shows the particulars and photograph of another person Zeeshan Masih alias Bunty, convicted of murder, with his age clearly mentioned as 14 years and the competent court sending him to Youth Industrial school which is a juvenile jail. It is important to note that the judicial magistrate, at the time of judicial remand, is bound under section 167 of the “Criminal Procedure Code” to ensure that in case of a juvenile, the person is sent to the juvenile jail instead of the normal prison. In Shafqat Hussain’s case, the judicial magistrate’s decision of sending him to normal jail corroborates the fact that he was not even seemingly a juvenile nor was this issue raised by Shafqat Hussain, his relatives or his legal counsel at that time.Other documents which confirm the age of Shafqat Hussain to be 23 years at the time of crime are the Admission Register in the Jail and the original History Tickets.
The statement of Shafqat Hussain recorded under Section 342 (1) of “Criminal Procedure Code 1898” duly signed by Shafqat Hussain himself and certified and sanctified by Arshad Noor, the then honorable judge of Anti-terrorism Court No.3 Karachi, in the presence of the defence counsel and the accused is a clear and categorical confirmation of his age to be 23 years at the time of the crime,” the report maintained.
“Certain segments of the people defending Shafqat Hussain say that the issue of Shafqat Hussain’s juvenility was not raised at the trial level because Shafqat Hussain was represented by a defence lawyer provided by the court who did not defend his case properly.
This is not a fact. Shafqat Hussain was actually represented by his hired defence namely Mansoor-ul-Haq Solangi. Mansoor-ul-Haq Solangi has himself confirmed, during enquiry, that he was hired and paid by Shafqat Hussain’s brother and he was not deputed by the State.
To the question why he did not raise the issue of age during trial, he replied that the age was never an issue at any juncture and the defendants never raised this issue nor asked him to raise this issue at any stage. Moreover the physical appearance of Shafqat Hussain at that time belied any confusion in the matter,” the report said adding, “If one were to go by the date of birth provided by the defendants, then Shafqat Hussain would be only 12 ½ years old at the time of the incident.
On enquiry team’s visit to the place of incident, it was found that Shafqat was working as a security guard at the place since the year 2000 that would make him only 09 years old at the time of employment. Obviously nobody would employ a security guard who is 9 years of age and this fact has been confirmed by the owner of the building who said that Shafqat Hussain was a fully grown man at the time of his employment and he looked very much similar to the official photograph taken at that time.”
One case in point is the fact that the defendants have repeatedly claimed that Shafqat Hussain was the youngest of the seven children. From the school record it has been verified that Shafqat Hussain was in class-4 in the year 1996 whereas his so-called “younger” brother Abdul Majeed was in class-2 in the year 2000 which means that if one were to go by the age given by the defendants for Abdul Majeed (01.01.1990), he should have been 11 years of age in Class-2 and Shafqat Hussain aged 05 in class-4. How can this be possible??
In its assessment, the committee said, “Apart from the over-riding clarity of the above record, what is more compelling is that over a judicial process spread over almost 10 years i.e. 2004-2014, the issue of Shafqat’s age was not raised in the manner it is being raised now. Up till December 2014, not even a single document or certificate was provided to corroborate the claim of juvenility of Shafqat Hussain not even in the Supreme Court where this issue was contested for the first time in the 4th review when the trial proceedings were already exhausted. This document presented in December, 2014 (Birth Certificate— which has since been cancelled as fake by the issuing authority) was produced solely on the affidavit of one individual namely Sakhi Zaman who is neither the father nor brother of the convict and therefore absolutely incapable or unsuitable for giving any kind of affidavit in order to apply for a Birth Certificate.”
“After going through a sea of police, jail and judicial record and having interviewed multiple individuals relevant to the case, we found absolutely no contradiction in the record (which includes his pictures at the time of arrest) that Shafqat Hussain was 23 years of age at the time of arrest. The only way to explore any option to the contrary, therefore, rested on the present legal counsel of Shafqat Husain who had been pleading his case in the higher courts. The said legal counsel publicly welcomed the constitution of this Committee in her letter to Secretary Ministry of Interior dated 27th March 2015 but when we repeatedly invited them to appear before the committee and present any corroborating evidence; they preferred to stay away saying that whatever documents they have they had already provided. As already mentioned that the only document that was provided was a so-called birth certificate “issued” in December, 2014 which has already been cancelled as fake by the issuing authority. We feel that the legal counsel decided to deliberately keep away from the proceedings of this committee because of very serious contradictions in their story over which they were probably not prepared to be cross-examined publicly or on record,” the report maintained.
An impression has been created as if there is no margin or space in Pakistan’s penal system for treating juveniles as per their rights and the obligations of their age.
As per the record of Prisons department, 10867 convicts have been treated as juveniles between the year 2004 to 2015 in Karachi alone and have been given their due rights under the Pakistan Penal code. In 2004 alone (the year in which Shafqat Hussain was convicted) 1455 convicts were treated as juveniles in Karachi. Nobody in the criminal investigation system of Pakistan or in the extended judicial process had personal enmity or ill-will to project him as an adult when he was actually a juvenile.
There are road-blocks at every level both in the investigation process and the judicial process for pre-empting such a miscarriage of justice. The truth is that the defence counsel after “inventing” this excuse did not even find it fit to provide any kind of legal certification in the matter and have focused on innuendos, here say and blatant distortions. And this situation continues until this day (16 April 2015) when these words are being penned. After welcoming the constitution of the Committee whole-heartedly on 27th March and promising her full cooperation, the legal counsel went back on her word and refused to appear before the committee on the 6th of April 2015, the report concluded.