Last month’s killing of an eight-year-old girl reportedly after a sexual assault in Nowshera and subsequent cases of the same nature have generated a public debate whether perpetrators of such crimes should be executed in public or not.

Presently, arguments and counter arguments are going on in the media, especially social media, between the supporters and opponents of death penalty in public. Even difference of opinion persists over the issue in the federal cabinet as some of the members are opposed to the demand of public execution whereas others are its vocal supporters.

On Feb 7 a resolution was passed by the National Assembly, calling for public hanging of offenders convicted of sexually abusing and killing children. The resolution was presented by Minister of State for Parliamentary Affairs Ali Mohammad Khan.

The resolution demanded that to stop these shameful and brutal killings of children and give a strong deterrent effect, the killers and rapists should not only be given death penalty, but they should also be hanged publicly.

Interestingly, soon thereafter the resolution was condemned by Federal Minister for Science and Technology Fawad Hussain Chaudhry on social media. “Strongly condemn this resolution this is just another grave act in line with brutal civilisation practices, societies act in a balanced way, barbarianism is not answer to crimes ---- this is another expression of extremism,” he wrote on twitter.

Federal Minister for Human Rights Shireen Mazari, Federal Minister for Law Farogh Naseem and parliamentary secretary for law and justice Barrister Maleeka Ali Bukhari also opposed the demand.

“Public hangings are in contravention of Article 14 of the Constitution which guarantees the inviolability of dignity of man and the principles laid down in 1994 SCMR 1028 declaring public hangings to be in violation of Article 14 of the Constitution,” Ms Bukhari stated in a tweet on Feb 7.

Presently, there is no mention of execution in public in the Pakistan Prison Rules, 1978.

Chapter 14 of the Prison Rules deals with prisoners under sentence of death. The said chapter also explains how to carry out an execution. Rule 354 deals with place of execution. Rule 354 (i) states: “Executions shall normally take place at the District Prison of the district in which the prisoner was sentenced, unless the warrant otherwise directs.

Furthermore, Rule 354 (ii) states: “If a condemned prisoner requests for change of place of execution for any cogent reason, his petition shall be forwarded to Government, through the Inspector-General, for orders. If the Government orders change in the place of execution, the warrant shall be returned to the Sessions Judge who issued it for altering the place of execution on the warrant.”

Rule 359 deals with deputing of police force in cases when execution is to take place inside a prison or outside. Rule 364 is more important as it fixes presence of maximum of 12 respectable male adults for witnessing an execution inside or outside a prison.

The said rule provides that respectable male adults up to maximum of 12 may be admitted with the sanction of the Superintendent, to witness an execution either inside a prison, or into the gallows enclosure when the gallows is outside the prison; provided that the Superintendent may in his discretion refuse admission altogether or to any particular individual.

It provides that the spectators are to be kept at a distance and a sufficient strength of the guards should be drawn up close at hand, ready, prepared to suppress any disturbance or frustrate any attempt at rescue.

It was in the Special Court for Speedy Trial Act, 1992, that “deterrent effect” of an execution was mentioned. Subsequently, the almost identical provision was also included in the Anti -Terrorism Act, 1997.

The speedy trial courts were set up following the passage of the Constitution (Twelfth Amendment) Act, 1991. Through that constitutional amendment Article 212-B was included in the Constitution for a period of three years. The erstwhile 212-B provided for establishment of special courts for trial of heinous offences.

Section 10 of that speedy trial courts law dealt with place of execution. It stated: “The Government may specify the place of execution of any sentence passed under this Act, having regard to the deterrent effect which such execution is likely to have.”

Subsequently, the Special Courts for Speedy Trials (Repeal) Act, 1996, was enacted through which curtains were drawn on the speedy trial courts.

The Anti-Terrorism Act was enacted in 1997. Section 22 of the Act provides: “The Government may specify the manner, mode and place of execution of any sentence passed under this Act, having regard to the deterrent effect which such execution as is likely to have.”

However, after enactment of that Act the successive governments have not deviated from the set procedure of executing a death penalty as provided in the Pakistan Prison Rules.

In the present debate the most discussed judgment is that of the Supreme Court of Pakistan reported as “1994 SCMR 1028”, which was delivered on Feb 6, 1994. The apex court had taken suo motu notice of the issue in light of the provision of section 10 given in the Special Courts for Speedy Trial Act, 1992.

The bench was headed by then Chief Justice Nasim Hassan Shah. The bench had disposed of the case after then Deputy Attorney General Mumtaz Ali Mirza made a statement that the Government had decided, as a matter of policy, that it will not carry out executions of criminals sentenced to death in public despite the powers vesting in it to do so under section 10 of the Special Courts for Speedy Trials Act, 1992.

Quoting Article 14 of the Constitution, which deals with dignity of man and privacy of home, the bench had ruled: “According to this provision the dignity and self respect of every man has become inviolable and this guarantee is not subject to law but is an unqualified guarantee. Accordingly, in all circumstances; the dignity of every man is inviolable and executing in public, even the worst criminal, appears to violate the dignity of man and constitutes, therefore, a violation of the fundamental right contained in Article 14.”

Moreover, a two-member bench of Lahore High Court had on Oct 16, 2018, dismissed a writ petition seeking direction of the court for the government that a convict, Imran Ali, in the Zainab murder case should be hanged publicly.

Published in Dawn, February 10th, 2020