Justice Project Pakistan in partnership with Dawn.com hosted ‘Before The Sun Comes Up’, a unique live online performance based on four original stories written by renowned author and journalist Mohammed Hanif.
Narrated by actor and director Sarmad Khoosat, the stories were told from the point of view of four prisoners caught up in our criminal justice system. As they waited for the dawn of their execution, they let their guard down and spoke of the circumstances that brought them to death row. Manipulated by powerful people, the prisoners become pawns in a game of retribution where justice is fleeting. And fatal.
Written by: Mohammed Hanif
Narrated by: Sarmad Khoosat
Visuals: Emma Brierley
Music: Hailey Beavis
Conceived by: Ryan Van Winkle
Technical support: Mishermayl Productions
In the wake of the deadly terrorist attack on the Army Public School in Peshawar in December 2014, a tragedy which resulted in the loss of nearly 150 lives, most of them children, Pakistan lifted a six year moratorium on the death penalty in an effort to combat terrorism. Since then, Pakistan has been among the most prolific users of the death penalty with 516 executions and 1,563 death sentences, mostly for non-terrorism related charges. Pakistan currently has the second largest reported death row population in the world with 4,225 prisoners.
However, there has been much criticism over the misuse of both the Anti-Terrorism Act (ATA) and subsequently anti-terrorism courts (ATCs) in Pakistan. ATCs are special civilian courts created to handle offences linked to terrorism. Throughout the years, amendments have been made to the Act, increasing the number of offences over which these courts have jurisdiction, such as extortion, kidnapping, sectarian violence. Research shows that while countless cases tried under the ATA are of a personal nature and have nothing to do with terrorism, the accused are convicted on the mere basis of presumption and speculation.
Explore: Killing justice
Additionally, there are several clauses of the ATA that raise concerns regarding the right to a free and fair trial, guaranteed under the Constitution, and adhering to international standards. Anti-terrorism courts accounted for 18.75% of the total death sentences handed out by Pakistan from January 2015 to December 2019, however, these courts have often been used to try people for crimes other than terrorism. Only 16.28% of the prisoners who were tried in ATCs and were executed during the same period committed offences related to terrorism.
Also, in ATCs, confessions made in police custody are admissible as evidence. It gives the police a freehand to discard ordinary protections provided to accused persons under the Code of Criminal Procedure (CrPC), should they choose to treat the matter as a case of terrorism. In 2019, then Chief Justice of the Supreme Court, Justice Asif Saeed Khosa authored a detailed judgment reviewing the meaning of terrorism and its scope as defined in the ATA. The judgment stated that terrorism was too widely defined and that offences or acts of violence arising from personal issues and disputes do not come under terrorism.
Those under trial in ATCs have been denied basic legal rights such as resummoning of witnesses, barrel testing of weapons etc. Another aspect of special courts regarding terrorism is the use of in camera trials. Essentially, in camera trials are trials held in private, without granting access to the press and public. Such trials are usually meant to preserve the safety of those involved in the trial, such as the witnesses and the accused. However, lack of transparency during such trials in special courts undermines constitutional protections and weakens due process rights.
Usually protected by special safeguards under the Juvenile Justice Systems Ordinance (JJSO) as well as international law, juvenile offenders charged under the ATA have these rights revoked. According to research by Justice Project Pakistan, juvenile offenders have been sentenced to death despite clear and credible evidence proving their ages. One such person is Muhammad Iqbal, who was recently released from prison after spending nearly 20 years on death row. Arrested at 17 and tried in an ATC, he was sentenced to death in 1999, despite the fact that an ossification test proved him to be a minor at the time of the alleged offence. His sentence was commuted this year by Lahore High Court and he was released in June 2020, after spending more of his life in prison than he has outside it.
According to data from the Human Rights Commission of Pakistan (HRCP), between January 2015 to August 2019, Pakistan’s anti-terrorism courts have imposed 250 death sentences, while 75 executions have been carried out.
The average time that a prisoner spends on death row after being sentenced is 11 years.
While the Constitution of Pakistan guarantees both the right to a fair trial and to inexpensive and expeditious justice in Articles 10-A and 37 respectively, this is very seldom the case. There are several reasons why justice is delayed, including an extreme backlog of cases in the criminal justice system, lack of checks and balances by superior courts, ineffective policing system etc. Despite the fact that these reasons are well-known and acknowledged, a 2018 report by Justice Project Pakistan detailed that Pakistan accounted for 13% of all global executions, with a total of 479 executions between the years 2015 to 2017 alone.
A report submitted to the Ministry of Law by Reprieve in 2019 stated that between 2010 and 2018, 78 per cent of death sentences in Pakistan had been overturned by the Supreme Court due to lack of evidence and faulty investigations. In numerous cases, the Supreme Court cited weak witness testimony, manipulation of evidence, use of involuntary confessions and other critical issues. The Supreme Court upheld the death sentence for only lethal offences, acquitting or commuting sentences for non-lethal offences. However, lower courts do not follow the same protocol, and regularly award death sentences for non-lethal crimes.
While conditions in Pakistani prisons are already miserable, due to a myriad of reasons including lack of hygiene and severe overcrowding, the life of a death row prisoner is unimaginable. Condemned prisoners live in tiny crowded ‘death cells’ and are not allowed outside for more than an hour or two a day. All their activities such as eating, drinking and going to the toilet take place in this cell. Some are kept in solitary confinement, depending on the nature of their crime. When it finally happens, the execution is extremely traumatic for the prisoner’s family as well as the jail officials and the other prisoners.
There are countless cases of delayed justice wreaking havoc on the lives of ordinary people. A particularly harrowing story is that of two brothers, Ghulam Sarwar and Ghulam Qadir. Tried on murder charges and sentenced to death in 2005, the brothers spent 10 years in prison, maintaining their innocence and appealing to higher courts, only to have the sentence upheld. Finally, in 2016, the Supreme Court made a final decision on their case and declared them innocent. They were acquitted of all charges and orders issued for their release from Bahawalpur Central Jail. However, the jail authorities informed the apex court that the brothers had already been hanged to death the previous year.
Death sentences are often handed to people from marginalised communities who do not have the social capital and financial backing to protect themselves from faults in the criminal justice system. As such, these people are disproportionately vulnerable to several issues, ranging from police brutality and forced confessions to inabilities in hiring effective legal representation.
Access to legal counsel is a crucial issue, as there is a lack of a structured and accessible legal aid system in Pakistan. It doesn’t help that state appointed public defenders are usually paid a pittance, and some have been known to take payment for cases and then not show up to attend hearings. As such, defendants from impoverished backgrounds are left without well-trained, responsible and motivated legal counsel. In capital cases, the presence of effective legal representation can be the difference between life and death. Families that cannot afford to pay exorbitant fees for decent representation or even travel to far away cities to attend the hearings of loved ones ultimately pay the highest price.
Rather than analysis and forensic evidence, cases are usually built on witness testimonies and confessions. Confessions are usually extracted or coerced, and torture is seen as a routine part of a criminal investigation. Witness testimonies can be manipulated by the police and are also likely to be extracted under coercion. People from marginalised sections of society are far more vulnerable and likely to fall victim to forced confessions and make false statements under extreme duress.
Such is the story of Aftab Bahadur. Working as a plumber in the house he was accused of murder in, he was arrested as a young boy merely 15 years old and sentenced to death by hanging, despite his indisputable juvenility and strong evidence showing that his confession had been extracted through torture. The two witnesses in his case that testified against him later withdrew their testimony, stating that they had only testified under torture and police pressure. At the time he was arrested, the Juvenile Justice Systems Ordinance (JJSO), a law safeguarding special rights for juvenile offenders, was not in effect. However, his sentence was not commuted or changed even after the promulgation of the law allowed for retrospective relief. Instead, Bahadur was wrongfully executed in 2015. He continued to maintain his innocence until his last day.
Pakistani citizens are regularly exploited as migrant workers in countries that have built entire economies on their backs. There is hence a dire need for a uniform consular protection policy which provides protection and support to all Pakistanis worldwide.
According to a report by Justice Project Pakistan from earlier this year, there are 10,896 Pakistani citizens imprisoned in 28 countries worldwide. Saudi Arabia and the United Arab Emirates currently hold the highest number of incarcerated Pakistani citizens. In 2020, the number of Pakistanis imprisoned in Saudi Arabia increased from 1,509 in 2015 to 3,248. On the other hand, countries such as Bangladesh have successfully managed to reduce the number of their citizens imprisoned abroad.
Weak regulation of labour migration leaves Pakistani citizens susceptible to human and drug trafficking and forced labour. Migrant workers are exploited during the recruitment process, usually through illegally operating intermediaries and sub-agents, as well as through private firms known as overseas employment promoters (OEPS). Some 1.5 million Pakistanis have left their home in the past three years to join the Pakistani diaspora of nearly 10 million. Most overseas Pakistani citizens reside in Gulf countries, migrating there to send money back home and to provide for their families in Pakistan.
As a result, the increase in foreign exchange remittances contributes greatly to Pakistan’s economy. However, if arrested, the consular support provided to these citizens is virtually nonexistent. Pakistani prisoners overseas are also executed for non-lethal crimes such as crimes related to drug offences, and research shows that many of them are deceived, coerced or forced into committing the offence. Due to the lack of a uniform consular policy, Pakistanis abroad are left vulnerable and without protection. Their cases and lives are left to the discretion of local courts which do not adhere to international standards of fair trial and due process.
Zulfiqar Ali was a Pakistani citizen on death row abroad, arrested on drug charges in Indonesia. He was arrested after his flat-mate was caught with 300 grams of heroin in Jakarta, a city that Ali was not even present in at the time of the occurrence. A government commissioned inquiry in 2010 confirmed his innocence, however, he was still not released and warrants for his execution by firing squad were issued in 2016. Detained for nearly 14 years, he passed away from liver cancer in 2018, before his death sentence could be carried out. There are countless Pakistanis abroad like Zulfiqar Ali who have been denied their right to freedom and justice.
This feature is part of a collaboration with Justice Project Pakistan in the lead-up to the World Day Against the Death Penalty on October 10.