THE recent acquittal of a murder convict after 28 years in jail reflects the failure of our criminal justice system. The Supreme Court declared the convict was a juvenile at the time of the crime in 1993 and was thus entitled to special remission in the death sentence under the law. This belated relief to the prisoner on death row is a classic example of justice delayed.
He was a teenager when arrested and challaned for committing a murder in District Vehari. His trial took almost five years. He was sentenced to death by an additional sessions judge in 1998. His appeal was decided after three years when the high court dismissed it in 2001. He then filed a petition before the Supreme Court that dismissed it in 2007. Hope had come in the form of a presidential order granting special remissions in death sentences of prisoners who were juveniles as defined under the Juvenile Justice System Ordinance 2000 at the time of the crime. Yet, he faced further bureaucratic and legal hurdles.
The young man filed a plea before the home secretary Punjab for commuting the sentence to life imprisonment since he was legally a juvenile in 1993. As the home secretary sat on his application, the prisoner moved another petition before the sessions judge in Vehari who rejected it in 2009. A writ petition was disposed of by the Lahore High Court in 2015 with directions to the home secretary to decide the representation. Back came the reply that the question of being a juvenile had been pending before the Supreme Court since 2003 in another case. A bureaucrat passed the buck telling the high court to wait for the apex court’s decision. The youth turned back to the sessions judge, Vehari, in 2015 but his plea was dismissed again on the ground that his case was not pending in the district-level court and since his sentence had been confirmed by the Supreme Court, the issue of juvenility could not be determined at a subordinate judicial forum.
He turned again to the Supreme Court that converted his petition into an appeal and set aside the session and high courts’ judgements by relying on documentary proof to confirm that he was entitled to benefit from the law. Thus ended a long struggle of nearly three decades by a young man who managed to escape capital punishment for a crime he may have committed as a child under circumstances beyond his control.
One convict’s fight to escape the gallows exposes the deep flaws in our criminal justice system.
Such episodes should make us review policies and laws dealing with crime and punishment. Is the death penalty fair? Does it meet the standards of evidence or proof of guilt? Was there due process? Does it deter violence or promote vendetta? No one disputes that crimes for which people are condemned are abhorrent and demand justice. But should society sink to the level of its worst offenders and get trapped in a vicious cycle of vengeance? Let us rethink executions.
First is the issue of fairness. Is the penalty applied equally to everyone? A survey of about 5,000 prisoners on death row in 2008 indicated that most belonged to the poor strata. Those with money, influence and means of coercion mostly managed to avoid capital punishment by paying blood money or effecting ‘compromises’. It was mostly those who could not wield influence or manipulate the system that went to the gallows. The PPP-led government in 2008-13 had imposed a moratorium on the death penalty which was sensible in view of the criminal justice system’s shortcomings. However, the PML-N government, after the APS tragedy, lifted the moratorium and, with 5,000 prisoners on death row, the executions resumed. Since 2015, about 750 have been hanged. The resumption of executions was initially targeted at those convicted of terrorist acts in the implementation of NAP. However, the temptation to display results through the number of people executed was hard to resist.
Then there’s the issue of credibility of witnesses and quality of evidence. Collusion and connivance play a major role from the start. Ocular testimony and extrajudicial confessions are given primacy in murder cases with less reliance on circumstantial and scientific evidence. The Supreme Court delivered a landmark verdict against perjury in 2019, observing that the rule falsus in uno, falsus in omnibus (false in one thing, false in everything) “had in the past been held by the superior courts … to be inapplicable to criminal cases … which had gradually encouraged and emboldened witnesses … [to] indulge in falsehood… .” In 1951, Lahore High Court’s justice Munir decided to adopt an approach of mixing truth with falsehood, in accordance with the ‘character’ and ‘mentality’ of witnesses. This practice has since posed a “grave danger of miscarriage of justice”. Chapter XI of Pakistan Penal Code contains sections of the law against false testimony and entails serious punishments. Awarding death penalties through a tainted process should be discouraged.
The third point is about the due process: investigations, prosecutions and trials in accordance with the law. For example, 14 military courts decided 650 cases in four years in 2015-18; 344 were awarded capital punishment and 56 have been executed. Investigation was based on a single confessional and identical statement. The accused were denied access to lawyers. Trials by senior military officers were cursory. The matter ended up in the higher judiciary.
Fourthly, based on about four decades of experience as a police officer, I can confidently say it is the certainty rather than severity of punishment that creates deterrence and promotes the rule of law. I saw this in Tokyo and London and its reverse in New York and Chicago. Harsh punishments never deter criminals.
Finally, the global trend is against capital punishment. The UK has an extradition treaty with India but is reluctant to have one with Pakistan. Both India and Pakistan have the death penalty. The difference is that in India, life imprisonment as maximum penalty, even for murder, is the norm. A judge must give detailed, cogent reasons if the verdict is death. In Pakistan, awarding the death penalty is the norm; the judge awarding life imprisonment as maximum penalty must give detailed reasons to justify the lesser punishment. This must change in Pakistan. The death penalty is cruel and ineffective.
The writer is former IG Police and author of The Faltering State and Inconvenient Truths.
Published in Dawn, April 11th, 2021