Shafqat Hussain case: Petitioner challenges legality of FIA inquiry

Maintains only judicial forum can determine age; govt directed to submit reply today.

ISLAMABAD:

The Islamabad High Court (IHC) on Monday directed the government to explain the legal status of an inquiry conducted by the Federal Investigation Agency (FIA) to determine age of the murder convict Shafqat Hussain.

The government has been directed to submit its reply today (Tuesday), a day before Hussain’s scheduled execution on Wednesday.

The direction came after Shafqat’s counsel convinced Justice Athar Minallah in light of a Supreme Court judgment that only a judicial forum could determine juvenility or otherwise of Hussain.

The counsel, Dr Tariq Hassan, maintained that the apex court in a similar case ruled that only a judicial commission could be set up to determine a convict’s age.

Earlier in his remarks, Justice Minallah asked Hassan to give any example from the US, UK, EU or India in which a case was reopened after it had been decided at the highest level.

Hassan replied that the petitioner was not seeking reopening of the case rather his plea was about the legal status of the inquiry committee. Shafqat’s counsel requested the court to declare that his age could only be determined by a judicial inquiry.

The petitioner said the Interior Ministry had set up an inquiry committee comprising FIA officials to determine Shafqat’s juvenility, but the petitioner said the FIA did not have the authority nor competence to conduct such an investigation.

To this, the court asked the state’s counsel to satisfy it about the legal status of the inquiry as well as the status of the two mercy petitions, one each filed by the convict and his mother, pending before the President of Pakistan.

Hassan requested the court to declare the ministry’s inquiry unlawful and direct the respondents to submit all documents, affidavits and statements pertaining to the case before the court.

In addition, the court was requested to restrain the respondents from taking any action detrimental or prejudicial to the petitioner during the pendency of the petition or until the final decision.

Hussain was arrested and sentenced to death in 2004 for kidnapping and killing a seven-year-old boy from an apartment building in Karachi where he was working as a guard.

Shafqat, who was due to be hanged on the morning of March 19, was given a reprieve hours before his scheduled execution after a civil society campaign pointing out to the possibilty of a mistrial.

The convict, through his counsel, requested for a judicial inquiry saying that there was prima facie evidence that he was a juvenile when the trial court sentenced him to death in 2004.

He stated that in light of the petitioner’s birth certificate, the death sentence prima facie deprived him of certain fundamental rights enshrined in the Juvenile Justice System Ordinance 2000.

Further, Shafqat’s counsel added that at the time of his trial, he remained an undocumented juvenile and lacked any appropriate government identification records pertaining to his date of birth. Hussain, at the time was presumed to be an adult and was tried accordingly, the petition stated.

“The death sentence of the petitioner is in violation of the applicable laws and is even more astonishing given that the state has failed to discharge its responsibility for establishing a juvenile’s age prior to prosecuting him,” it read.

The petitioner has made the Interior Ministry, Sindh IG prisons, National Commission for Human Rights, FIA, Ministry of Law, Justice and Human Rights, National Database and Registration Authority, National Commission for Human Rights and the Local Government and Rural Development Department of Azad Jammu and Kashmir as respondents.

Published in The Express Tribune, May 5^th, 2015.