THE older lawyers in Peshawar were not surprised to find para 66 in the judgement of Justice Waqar Seth in the case against retired Gen Pervez Musharraf in view of his reputation as a lawyer for out-of-the-box solutions. But there are reasons to believe that the inspiration for para 66 came to the honourable judge from outside his person.
Like other parts of the world, South Asia has a history of inhuman punishments. Grandmothers’ tales often contained references to women and children of ordinary families being thrown into oil presses by tyrannical despots. As late as the 1830s, the authors of the Indian Penal Code were asked to include in the list of punishments some degrading practices such as blackening the faces of petty criminals and parading them in the streets.
The suggestions were turned down as the humiliation of any person was not to be countenanced. The punishments laid down in the Penal Code were: death, imprisonment, and flogging. This was the case with the Pakistan Penal Code till 1996 when the list of punishments was brought into conformity with the religious code.
By and by, the ideas of human rights and dignity of the human person gained currency in our part of the world too and the Constitution of 1973 promised the people of Pakistan inviolability of the dignity of the human person, the only absolute right they have.
Like other parts of the world, South Asia has a history of inhuman punishments.
Came Gen Ziaul Haq and he put the brakes on any progressive movement towards humanising the Penal Code and adopted a policy of rule by terror. He put enormous effort into brutalising the rulers and the ruled. The public hanging of a convict in Lahore, public floggings in several towns, the whipping of journalists, etc were some of the visible methods used to brutalise society and force it into submission.
The other means of brutalising the people chosen by Gen Zia included prescribing capital punishment for various offences with a casual stroke of his pen and a plan to enforce his version of Islam through the application of harsh laws not only vide the Hudood Ordinances but also through changes in the Penal Code.
Gen Ziaul Haq also distorted the justice system by creating a parallel scheme of adjudication by creating the Federal Shariat Court and the Shariat Appellant Bench. (The latter’s most outstanding contribution to the country’s judicial history is declaring land reform un-Islamic through a questionable interpretation of the people’s faith.)
From Ziaul Haq’s spurious Islamisation, the promulgation of the Qisas and Diyat Ordinance by Ghulam Ishaq Khan was just a short step. The deleterious impact of this measure on the justice system is yet to be adequately assessed. Murder ceased to be a crime against society; it became a private matter between the killer, and the victim’s family.
The president lost his power of pardon under Article 45 of the Constitution, and the practice of deferring action on mercy petitions, in the hope the killer would secure pardon from the victim’s family, has resulted in many convicts becoming seriously sick in prison. The wrong interpretation of the law and release of killers on their being forgiven by the wali of the victim even before their trial began facilitated the killing of ‘troublesome’ females by bloodthirsty patriarchs.
Some years ago, a sessions judge misinterpreted the Qisas law and sentenced a person accused of murder to be shot dead by the victim’s father in the compound of the school where the murder had been committed. The wrong was not noticed by the superior courts. The local authorities woke up a day or two before the execution of the sentence when preparation for the gory spectacle had begun at the scene of action — the school playground. Through last-minute intervention sanity was allowed to prevail.
Then we had the horrible case in Lahore of the murder after rape of 100 children. The culprit dissolved the bodies of his victims in acid but did not destroy their clothes, shoes and schoolbags, which enabled the bereaved families to identify the victims. The trial court pronounced the most horrible and utterly obnoxious verdict in the country’s judicial history: the accused murderer’s dead body was to be chopped into 100 pieces and these pieces were to be dropped from the top of the Minar-i-Pakistan. The convict, known as Javed Iqbal, died in prison in mysterious circumstances. The sentence could not be carried out but the atrocious judgement has not been struck down.
One sanguinary consequence of the long process of brutalisation has been the growth of fondness for instant justice and disregard for respect due to a dead body. Extralegal killings in so-called police encounters have taken a heavy toll of life. Police officers have earned rewards for eliminating petty politicians’ rivals. The so-called internment centres in the erstwhile tribal areas are dens of torture.
There have been complaints of law-enforcement personnel pumping bullets into the dead bodies of their victims. Whenever a heinous crime is reported, the aggrieved party calls for the instant execution of suspects even before they are charged. Quite a few members of the ruling elite have tried to gain popularity by promising to hang suspects from the nearest lamp post. Only the other day, a federal minister called for the hanging of people like Ahsan Iqbal in public chowks. He did not add ‘till death’.
The roots of para 66, that is being denounced by everyone who matters, thus lie in the waywardness of a thoroughly brutalised society and the justification of atrocities on convicts in the name of belief, national security or the imperatives of a legal order. The entire population is living in a state of fear, and politicians as well as judges are afraid to speak out against the blatant miscarriage of justice. If any new para 66 is to be avoided, a serious attempt is necessary to stop inhuman, cruel, or degrading punishments, as required under the Convention against Torture that Pakistan has duly ratified.
Published in Dawn, December 26th, 2019