ISLAMABAD: Islamabad High Court (IHC) on Tuesday issued a stay order on the execution of Shafqat Hussain whose age has been a topic of controversy for many months.

Hussain’s execution was scheduled for today (May 6) but a petition was filed against the Federal Investigation Agency’s (FIA) inquiry which concluded that he was not a minor when he committed the crime. IHC Justice Athar Minallah remarked that the federal government unnecessarily created confusion in this case by ordering an inquiry to determine Hussain’s age as he was convicted by the Supreme Court.

He was sentenced to death in 2004 for the alleged kidnapping and murder of a seven-year-old boy in 2001 from an apartment building where Hussain worked as a guard. His lawyers claimed that he was 14 at the time the crime was committed.

The court observed that the order of the interior ministry, which an executive authority, to the FIA for an inquiry into Hussain’s age was ‘prima facie illegal’ as this falls in the domain of the judiciary.

The court observed that determining the age of a convict is a prerogative of a competent judicial forum, not an executive authority.

The petitioner’s counsel, Dr Tariq Hassan, informed the court that following the dismissal of the mercy petition in 2012, two more petitions were filed before the president which are awaiting response.

He said the petitions have not been filed against the conviction but against the FIA’s inquiry into the convict’s age.

He pleaded before the court, that in a similar case in 2003, the Supreme Court had held that only a judicial forum could determine the age of an accused person.

Justice Minallah remarked that in case Shafqat Hussain is hanged tomorrow and later it is proven that he was in fact, underage then the president and the courts would face the implications.

He directed the counsel for the federal government and the petitioner to conclude their arguments by Wednesday when the court resumes hearing.

Meanwhile, Interior Minister Chaudhry Nisar Ali Khan in a speech on the floor of the National Assembly said Hussain’s appeals were denied by the high court and the Supreme Court so no judicial recourse remains for the condemned man.

In the same speech, he revealed that an inquiry to determine his age was underway. Following the December 16 terrorist attack on the Army Public School in Peshawar, the government lifted the moratorium on the death sentence and an anti-terrorism court (ATC) of Karachi issued the black warrant for Shafqat Hussain’s execution.

Published in Dawn, May 6th, 2015

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