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IT was the massacre of children that resurrected the capital punishment in Pakistan. Even as the bodies of innocent children from the Army Public School, Peshawar, were being retrieved and buried by their distraught family members, the government decided that the death penalty, unenforced for several years, would be reinstituted again.
The massacre had left a country in mourning; there was rage, there was helplessness, and the resolution to kill those who had killed — and not only those who had massacred the APS children — seemed like the way forward. Under the logic of desperation, it was assumed that resolutely resuming the killing of killers would be a better path for the country.
Except that a good number of those killed or on death row may not have killed at all. Recently, the Supreme Court of Pakistan acquitted a man named Mohammad Anar, who had been sentenced to death in 2005 before his penalty was commuted to life imprisonment in 2011. The reason for the acquittal was simple: the eyewitness whose testimony had been the basis of Mohammad Anar’s conviction and subsequent sentencing was known to have been four to five acres away at the time of the crime. According to the FIR filed, the witness said he had rushed to the house of the victim when he heard shouting and screaming while he was milking his cow.
The court’s attentions have not always come in time to save innocent people in Pakistan’s prisons.
This version of events, which should have made the charge against Mohammad Anar dubious from the outset, was ignored by the trial court. As pointed out by Justice Asif Saeed Khosa, who headed the three-member bench of the SC examining the case, it made no sense how the witness and others who lived at a distance from the crime scene arrived there with such speed and saw the crime being committed but did nothing to stop it.
The SC’s decision comes in the footsteps of several other cases in which death sentences by lower courts have been commuted and in certain cases (such as Mohammad Anar’s) even led to complete exoneration and acquittal.
Last month, just before Mohammad Anar’s acquittal, a man named Mazhar Farooq was acquitted by the SC after having served a 24-year sentence for the 1992 murder of a student.
The court’s attentions have not always come in time to save innocent people in Pakistan’s prisons. In late October, the SC heard the case of two brothers, Ghulam Sarwar and Ghulam Qadir. As in Mohammad Anar’s case, the court found serious discrepancies in the eyewitness testimony that was offered in support of convicting the two brothers, and exonerated them. It was too late, however. When the authorities went to locate the men, it was found that they had already been executed in 2015.
The impetus for reinstating the death penalty in Pakistan came from the premise that the country had failed to send a clear enough message to the terrorists who killed its innocent children. The cases mentioned here and undoubtedly many others that have not yet (or may never) be reviewed by the SC reveal that most of those being sentenced to death involve poor villagers. Many of them are mentally ill or already beleaguered religious minorities. Their plight, a mix of conniving and unreliable witnesses, lack of investigation and, most problematic, a basic failure by trial courts to review glaring discrepancies, means that many innocent Pakistanis may have been put to death.
The public seems largely unconcerned with the hanging of innocents. In general terms, the decisions of the Supreme Court of Pakistan seem to garner attention only when they involve the rich and powerful, the power plays between generals and prime ministers, the various vagaries of the well situated.
In the case of defendants such as the Ghulam brothers or the recently acquitted Mohammad Anar, the stories lack the theatrical elements that generate interest or sustain it. Add to this the fact that in a country where investigative capacity and skill of police departments are both scant and paltry, and you have a situation where many cases may be decided by the court of public opinion.
In Mohammad Anar’s case, it was his cousin and various others who decided that he was the culprit, lodged the report, and procured a death sentence for a man they believed must be guilty. When the wife of the deceased, a woman named Kausar, was also murdered a few days later, no one even bothered to file a report.
Included in most pieces of legislation are penalties not only for the commission of crimes but also for false accusations. The Pakistan Penal Code contains provisions that punish false accusations, the knowing provision of false testimony and lying under oath among others. Their function is to serve as deterrents so that the punishment of those who commit such acts is a warning for others who would consider doing the same thing.
The law, however, is a frail thing in a country where few can read it and even fewer understand it. The result is that the provision of justice, which inevitably relies on the credibility of witnesses, on a staunch commitment to process and procedure, is at best approximate.
Where the wealthy are concerned, battalions of lawyers are hired at great expense and the approximation of ‘justice’ comes close to what its purchasers and purveyors desire. In the case of those like Mohammad Anar, punished for years for a crime he could not have committed, or Mazhar Farooq who languished behind bars for over two decades, the approximation is closer to a fabrication than justice. In the case of the Ghulam brothers, hanged and then exonerated, it does not exist at all.
The writer is an attorney teaching constitutional law and political philosophy.
Published in Dawn December 7th, 2016
