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Opinion

August 3, 2015

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It's not just about Shafqat

Shafqat Hussain is due to be hanged - for the fifth time - at 4:30am on August 4, 2015. His ‘black warrant’ was issued on July 27, despite a comprehensive 12-page report by the Sindh Human Rights Commission (SHRC) on July 16 that urges the Sindh government to move to stay the execution, and approach the Supreme Court of Pakistan to “consider the evidence which could not be produced at the trial by defence”.
The SHRC’s recommendations cannot be taken lightly. This is a government-appointed statutory body set up in 2013 under the Human Rights Act of 2011 passed by the Sindh government. A respected retired judge of the Supreme Court heads it. At stake is a human life.
Chaired by Justice Majida Rizvi, the SHRC conducted a rigorous four-week investigation into Shafqat’s case in which it examined the original trial record and evidence, records and litigations.
Shafqat’s impoverished family think he was about 14 when he left their village in Azad Jammu & Kashmir to find work in Karachi. A year later, in March 2004, he was arrested for the murder of a child who had been kidnapped. He was tried under the Anti-Terrorism Act because the murder ‘spread terror in the neighbourhood’. The government-appointed lawyer never provided proof of his age.
His confession was obtained under torture “including brutal beatings with sticks and fists, electrocution, and being burnt with cigarettes,” according to the Justice Project Pakistan (JPP), a legal aid firm that has taken up his case. “Ten years later, Shafqat still has the scars from the cigarette burns on his arm as a mark of the torture inflicted on him as a young boy.”
Shafqat’s brother told JPP how when he first visited Shafqat in prison and asked him about the torture, the boy began shaking and crying and even urinated on himself. He said that a co-worker arrested along with him was also tortured but released after his family bribed the police.
JPP had petitioned the SHRC to consider

two main issues: the prisoner’s juvenility and confession extracted through torture – critical issues that the state-appointed defence lawyers did not bring up at the trial.
The Islamabad High Court (IHC) initially termed the FIA inquiry “prima facie illegal” since the FIA is not the appropriate body to investigate the prisoner’s age.
The FIA also released pictures stated to be of Shafqat, showing a grim, heavily bearded man much older-looking than the frail teenager whose photo the JPP had obtained from his parents. But wouldn’t poverty, hard work, torture, and imprisonment age anyone?
Furthermore, “determination of age is a judicial act and is not to be exercised by executive. The enquiry conducted by the FIA was not under court’s order and as such was not admissible,” says the SHRC.
According to the SHRC, “the trial court should have taken up this issue (of age), even if not raised on behalf of the accused. The courts are well aware how the issue of age is taken in this country, particularly in rural areas where the births are not even registered.”
The SHRC report terms the handling of the case as “careless” and finds that “important evidence is missing on many issues”. It raises an important question: “can a human being be executed when there is so much confusion and the evidence is lacking to clarify the same?”
Besides considering international treaties and conventions, the SHRC in its investigation was also “mindful of our own law and constitution which disapproves any information extracted under duress or torture.”
“Under Islamic law any statement recorded under duress and torture is also not admissible,” states SHRC.
In the end though, this is not just about Shafqat. Most of the over 8,000 death row prisoners in Pakistan are similarly poor, lacking social, political or financial capital. Confessions are routinely obtained under torture, and convictions follow trials during which the poor have little or no access to proper legal counsel.
Aftab Bahadur, a plumber’s apprentice, was on death row for over 22 years for a triple murder he insisted he didn’t commit. When arresting him, the police offered to release him for Rs50,000, a bribe he was too poor to pay. Witnesses who testified against him later recanted, but Aftab was hanged in June.
Disinterested defence lawyers and falsified witnesses also appeared in the case of Zulfiqar Ali Khan, hanged in May for the death of two armed robbers he shot in self-defence in 1998. His model behaviour throughout his 16-year long imprisonment included educating himself and over 400 fellow prisoners, enabling several to earn school, college and university degrees.
Like Shafqat, both were charged under the Anti-Terrorism Act.
After the massacre at the Army Public School, Peshawar, on Dec 16, 2014, Pakistan lifted a six-year moratorium on executions ostensibly in order to counter militancy.
Since then Pakistan has hanged over 190 convicts. But the steady fall in militant attacks since 2010 owes more to the military crackdown and seizing territory from Taliban insurgents than to the revival of executions. The latter is hardly likely to scare men who are willing to blow themselves up, as Katharine Houreld notes in a Reuters analysis (‘Militants in minority in Pakistan execution drive, deterrent effect debated’, July 27, 2015).
Fewer than one in six of the 180 executed in Pakistan as of July 27 were linked to militancy, according to the Reuters analysis. Of the 180 hanged till then, “29 were convicted of assassinations or assassination attempts, sectarian murders, a hijacking or killing of security officials – falling under a broad definition of militancy.
“Almost all were hanged immediately after the massacre. Since then, most executions were of murderers with no militant links.”
With the emphasis in Pakistan being on retributive, rather than restorative, justice, courts are sentencing even mentally ill and physically disabled prisoners to death.
Khizr Hayat, a former policeman, is so severely mentally ill that he doesn’t know he is being hanged – he thinks he’s going home. The case of Abdul Basit, who became a paraplegic after becoming severely ill in prison, has also aroused international outrage. In the past few days, hectic efforts by human rights activists led to both being granted last minute reprieves – for now.
Given the sorry state of Pakistan’s justice and investigation systems, the government would do well to commute these death sentences and re-impose the moratorium while moving to change the system.
As the SHRC notes: “A life once gone cannot be revived”.
The writer is a senior journalist. Blog: www.beenasarwar.wordpress.com
Twitter: @beenasarwar

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