YOUTUBE SCREENGRAB
KARACHI: While there is consensus that Saulat Mirza's dramatic statement is not admissible in court unless it is recorded in the presence of a judicial magistrate, legal experts believe it can create grounds to reopen investigations into the case.
According to human rights ministry's former legal adviser Muhammad Akmal Waseem, a case always remains open to reinvestigation in criminal law. "It does not matter how old it is," said Waseem, who has also served as an assistant advocate general.
"It cannot be treated as admissible evidence in the case in which the confession is being made [which is the murder of former KESC managing director Shahid Hamid]," he pointed out. "But, it can help set a new direction for a fresh probe."
The televised confession of death row convict Saulat Ali Khan alias Saulat Mirza, has sparked a rare debate on the admissibility of a condemned prisoner's last-minute confession about his partners in crime. Hours before walking the gallows from his death cell in Balochistan's Mach Jail, Mirza claimed that he had murdered the Karachi Electric Supply Company's former managing director on the orders of his Muttahida Qaumi Movement (MQM) chief Altaf Hussain.
"Despite its unusualness, the legal admissibility of such a statement is conditionally possible under the ambit of the Constitution," former Supreme Court judge Wajihuddin Ahmed told The Express Tribune. "Such confessions will only be useful to the extent of other accused, which have not been punished in the same case," he explained, adding that it will only carry significance if additional evidence corroborates the confession. "Otherwise, it's worth nothing."
There are some procedures that need to be followed when verifying such statements. "The confession will have to be recorded before a judicial magistrate under Section 164 of the Criminal Procedure Code (CrPC), strictly ensuring that the statement is not being given under any influence or pressure," said Ahmed.
Status of approver
The law allows a convict, such as Mirza, to become an 'approver' with the help of a confessional statement. An accused can make a written statement, under CrPC Section 338 (power to grant or tender pardon), to the relevant court during trial, promising to help trace the other accused involved in the crime.
Legal experts said, however, that this is not an unusual practice since there are similar examples from other high-profile cases. In the murder case of Raza Kasuri against the then prime minister Zulfikar Ali Bhutto, the chief of the then Federal Security Force, Masood Mahmood, had become an approver against Bhutto. This was the case in which Bhutto was sentenced to death and subsequently executed in 1979.
In the hijacking case of a plane carrying General (retd) Pervez Musharraf in 1999, senior civil servant Aminullah Chaudhry became an approver against the then prime minister, Nawaz Sharif. However, in both the cases, the accused became approvers before conviction. Mirza's case is unique as it may be the first time a convicted man may become an approver.
Approver's gains
By becoming an approver, the accused can win a pardon. But this is subject to an agreement with the victim's legal heirs. "Once the legal heirs of a victim agree with an accused, who wants to become an approver to help track down other accomplices, it will make it legally binding on them to pardon him/her," a senior lawyer, who specialises in criminal trials, told The Express Tribune.
"However, such a pardon is subject to the final outcome of the trial during which he will remain in the jail," he explained, requesting anonymity as he provides legal consultations to a law enforcement agency. "If the approver's allegations appear to be false, he cannot win a pardon."
This legal provision can, however, easily be exploited by the accused, feared Justice (retd) Ahmed. "If this is allowed to happen, it will open the door for dramatics in our judicial system."
Presidential clemency
Nevertheless, there are chances of convicts, such as Mirza, to never walk to the gallows. Under Article 45 of the Constitution, the president is empowered to either commute the death sentence of a condemned prisoner into life imprisonment or even remit any punishment completely, said a legal expert.
Published in The Express Tribune, March 21st, 2015.
COMMENTS (1)
Comments are moderated and generally will be posted if they are on-topic and not abusive.
For more information, please see our Comments FAQ