LAHORE: Legal experts believe that there are no mitigating circumstances for Malik Mumtaz Hussain Qadri so that if he stands by his confession he would definitely be handed a death sentence. They say that there is ample evidence against Qadri, not least his confession before a judicial magistrate.
Several criminal law experts told The Express Tribune that photographs of the incident, the man’s confession first in front of the press and later on before the judicial magistrate have left the accused with no grounds for defence.
Experts, however, are quick to point out that Qadri’s confession under Section 164 of the Criminal Procedure Code before the judicial magistrate was not final. Qadri could deny the charges during trial. They say Qadri’s final confession would be before the trial court at the time of the framing of the charge sheet.
Justice (retd) Zahid Hussain Bukhari, a former prosecutor general of Punjab, told The Express Tribune that in case Qadri denied the charges in the trial court, the prosecution could bank on the prior confession. He said the trial court could summon the judicial magistrate and other witnesses to prove the prior confession. The court could then, he said, assess whether the confession was coerced, pressured or made voluntarily. If the prosecution proved that the confession had been made voluntarily, the court could decide the matter without listening to any more witnesses. Bukhari said that Qadri most likely would get a death sentence. But, he could avoid the sentence and get a life imprisonment instead if he was able to establish ‘strong reasons’ behind his motive to killing Taseer.
Advocate Aftab Ahmed Bajwa was of the opinion that Qadri had no grounds for a lesser punishment then the death sentence. The plea of sudden-and-grave provocation, which Bajwa believes would have been useful, was closed to him. Under such a plea, the accused would have to have attacked the governor as soon as he heard the blasphemy allegation raised against Taseer. This, however, was not the case as Qadri seems to have planned his attack in advance. Bajwa said that a confession before the trial court is the one that counts and not the one in front of the judicial magistrate. The trial court provides ample opportunity to an accused to retreat a prior confession.
If Qadri confesses before the trial court, the judge would empty the court and ask Qadri in seclusion whether he was making the confession under some coercion, or pressure or voluntarily, he said. In the case Qadri sticks to his confession, the court must record the statement in the presence of all attendants present in court including the legal counsel for the accused.
Bajwa said that if Qadri confessed, the case could be decided within two weeks. The case is in the Anti-Terrorism Court which is prohibited to allow an adjournment lasting more than two days, he added.
Qadri’s lawyer, Malik Waheed Anjum, told The Express Tribune that his client had recorded his confession voluntarily and would record an identical statement before the trial court. Despite the confession, Anjum hopes that Qadri would be sentenced to an imprisonment of less than 25 years.
He said Qadri had told him that he would not change his stance and was adamant that at every forum he would confess to the killing of the ‘blasphemer’. Anjum was not prepared to share his strategy at this stage.
Advocate Muhammad Arif Awan, a lawyer who will defend Qadri on behalf of the Sunni Ittehad Council, told The Express Tribune that the procedure for recording Qadri’s confession was not legal. He said before the confession was recorded the accused should have been in judicial custody and not in the custody of the police. He said the confession could have been coerced. He said he would discuss the case further once the prosecution submits its challan before the court.
Advocate Surayya Farzand Chaudhry said that Qadri’s case should be above the law and should be dealt with as a special case on humanitarian grounds. She said Qadri had no enmity with Taseer and committed the murder for what he believed to be the cause of Islam.
Qadri, last Monday, confessed, before a judicial magistrate in Rawalpindi, to killing Punjab Governor Salmaan Taseer.
Published in The Express Tribune, January 13th, 2011.