It is better that ten guilty men go free than one innocent man suffer”, said Blackstone. But the Islamic Republic of Pakistan is a land of strange contradictions: terror charges have been dropped by the IHC in case of Mumtaz Qadri, who killed the Punjab Governor in broad daylight on the one hand, and a juvenile is going to be executed in a couple of days, after having been sentenced by an anti-terrorism court without affording him his legal defense.
Shafqat, born in a destitute family of beautiful Neelam Valley, dropped out of school before completion of his primary education. After leaving school, Shafqat moved to Karachi to stay with his older brother in search of livelihood. He was only thirteen at the time and found a job as a caretaker at a block of flats. A lease dispute arose between Shafqat’s employer (the owner of the building) and some of his tenants that led to hostile litigation between the parties. In the line of his duty, Shafqat was asked by his employer to help evict the tenants out of the building. The tenants refused to leave and it occasioned exchange of bitter remarks between some of the tenants and Shafqat.
Few days later, a young boy, the son of one of those tenants, went missing from the building. Shafqat continued to work at the building for 42 days after the child’s disappearance. And eventually, police desperately searching for a suspect in the case apprehended Shafqat. While under detention, Shafqat was kept in solitary confinement and a confessional statement was extracted out of him after application of third-degree torture methods.
The framers of law of evidence in the subcontinent had excluded extra-judicial confession as a piece of inadmissible evidence in court of law. But all rules of evidence and principles of due process of law were blatantly violated during Shafqat Hussain’s criminal trial. The accused, in this case, lacked the financial resources to hire legal counsel of his own choice and the state counsel did not take pains to prepare the case adequately. The first and foremost defense plea was the age of accused, which not only would have served as a mitigating factor but could also take the case out of the jurisdiction of the ant-terrorist court. Section 4 of the Juvenile Justice Ordinance 2001 provides that the juvenile court has ‘exclusive’ jurisdiction to try all cases when a child is accused of commission of an offence. But the question of poor Shafqat Hussain’s age was never raised, and hence he suffered the fate which many real terrorists were able to avert because they could afford big lawyers. Shafqat Hussain’s crime is his inability to ‘buy’ justice. Also, the awarding of death sentence on the basis of withdrawn confessions is legally incomprehensible.
In January, the planned execution of Shafqat Hussain was halted through the intervention of Chaudhary Nisar with the promise of an inquiry made by the latter in the National Assembly in these words: “Members of this house brought the case of a boy, Shafqat Hussain, to the attention of the ministry and me. Mr speaker, we halted his execution, it is pending for now, and there has also been an inquiry ordered on that. Because whatever means you use to take someone’s life, you are answerable.” But once again ‘black warrants’ have been issued for Shafqat Hussain’s execution on March 19, without holding the promised inquiry into his age. Such travesty of justice must be stopped.
In the United Kingdom, where there exists far lesser probability of a miscarriage of justice, a criminal cases review commission has been set up to investigate and refer back the cases if reasonable evidence has been found that the judge committed a legal error. And since the setting up of the body in 1997 till November last year, the Court of Appeals re-heard 543 cases on the Commission’s recommendation and quashed convictions in 374 instances.
One of the major success cases of the commission, related to Patrick Nolan, deserves specific mention. The latter was acquitted of murder charges after he spent fourteen years in jail. Patrick Nolan, 19 at the time of conviction, was held guilty of killing 64 year old Eric Carver. The conviction was based on Patrick’s confession, which he retracted at a later stage. The Court of Appeals considered the plea of involuntary confession and in the absence of corroborating evidence of proof of motive, recovery of weapon or forensic evidence, declared the conviction to be ‘unsafe’.
Through this column, I make an earnest appeal to the Interior Minister to stop the execution till the age of the convict is conclusively determined. The finality of decision by the Supreme Court in the criminal appeal and subsequent review petition will place no bar to re-open the case as the Supreme Court has inherent power to do full and complete justice. Thus the interior minister could send a reference to the Supreme Court through Ministry of Law invoking the Court’s advisory jurisdiction under Article 186 of the Constitution.