ISLAMABAD: The Supreme Court observed on Tuesday that imposing a death sentence on a convict does not imply treating the prisoner inhumanely by confining them to a death cell for an indefinite period.

“All prisoners living in death cell are not only deprived of their constitutional rights, but they also live under mental st­­ress,” regretted Justice Jamal Khan Man­dokhail, who was heading a three-judge SC bench that had taken up a petition filed by a condemned prisoner seeking review of the court’s Oct 28, 2015 order.

Ghulam Shabbir, represented by senior counsel Hasnat Ahmad Khan, has already spent 24 years in a death cell. The petitioner, who was sentenced to death by a trial court in December 1994 for killing two persons in 1990, pleaded that since he had served his life term, his death sentence should be commuted to life imprisonment.

Commutes prisoner’s sentence to life imprisonment

The apex court, which had entertained his review application on Sept 19, 2017, commuted his death sentence to life imprisonment.

Justice Mandokhail, who authored the verdict, also addressed the issue of the president’s power to pardon a death row prisoner under Article 45 of the Constitution. However, he expressed regret that prisoners in death cells often submit mercy petitions to the president through the jail superintendent concerned with significant delays.

Furthermore, due to the lack of any procedure or mechanism, it takes years to decide mercy petitions, Justice Mandokhail lamented, noting that this is a major contributor to the delay in executing death sentences.

Therefore, the issue of submission and disposal of mercy petitions also require consideration, he emphasised, asking the respective governments to consider drafting policies or enacting laws or amending the existing laws, in line with the international standards to minimise the period of detention of prisoners in death cells to a possible minimum extent.

Justice Mandokhail observed that the prolonged detention in prison, equal to or exceeding the period of life imprisonment, constitutes a separate and distinct punishment under Section 302(b) of the Pakistan Penal Code (PPC).

He noted that death row prisoners are often held in solitary confinement and in­­humane conditions, even though such tre­atment is not part of the original sentence.

Petitioner in death cell for 24 years

The judgement highlighted that when the present appeal was rejected by the apex court on Oct 28, 2015, the petitioner remained incarcerated for about 25 years, without earning remissions.

“Despite confirmation of his death sentence by the top court, the petitioner was awaiting execution of his sentence for the last nine years,” it said, adding that it was a fact that till date, the petitioner had served out a sentence of more than 34 years without earning remissions, of which, he remained incarcerated in death cell for about 24 years.

“If remissions are counted, his detention may come to almost 40 years,” Justice Mandokhail regretted, noting that the living conditions in death cells were miserable and altogether different from those of other prisoners.

“Thus the condemned prisoner is forced to live in inhuman condition. The date and time of execution of his sentence is uncertain, which in the given circumstance results into horrible feelings creating anxiety. His family suffers too along with the inmate, by way of mental torture, in taking care of the incarcerated prisoner,” the verdict regretted, adding that it also compromises his personal values and dignity.

“Since the courts are overburdened, it takes years rather decades in conclusion of the proceedings in normal course. Thus the delay in concluding judicial proceedings and execution of sentence was due to the system failure, beyond my control,” conceded Justice Mandokhail.

“The petitioner has faced the agony of prolonged criminal proceedings, hence, a victim of circumstances and, therefore, cannot be penalised for the act of the court or the executive,” the judgement emphasised.

In its conclusion, the Supreme Court commuted Ghulam Shabbir’s death sentence to life imprisonment, issuing a directive that copies of the judgement be dispatched to the interior secretary, provincial chief secretaries, secretaries of home departments, Attorney General for Pakistan and advocates and prosecutors general for all provinces.

Published in Dawn, August 28th, 2024