The burden of death
Although Pakistan's justice system is facing severe criticism due to its failure to redress people’s grievances, international rights organisations have acknowledged the Supreme Court’s efforts to minimise the scope of death penalty for last one decade.
A study conducted by Reprieve revealed that Supreme Court of Pakistan set aside the death penalty in 78 per cent of cases between 2010 and 2018. On an even more uplifting note, 97 per cent of sentences were either commuted to life imprisonment or decided otherwise in 2018.
By the end of 2020, the death row population decreased from 4,225 in 2019 to 3,831 (including 29 women - a steady decrease, which is consistent with the trend from previous years. It is also important to note that although the number of prisoners increased in all four provinces during the pandemic, the number of condemned prisoners kept decreasing.
Similarly, in the last five years, the country’s apex court has evolved jurisprudence through its various rulings and minimised the scope of death penalty.
On the eve of the 18th World Day Against the Death Penalty last year, Law Minister Dr Farogh Naseem said that in Pakistan, the capital punishment was an exception and was awarded in very rare cases. No one has been executed in the country in 2020, he added.
Naseem gave full credit to the superior judiciary, which according to him, applied different techniques in death penalty cases. Due to these techniques, confirmation of death penalty is not easy, he added.
He said the Supreme Court has evolved a jurisprudence which has decreased the number of death sentences. However, he said, it is up to the people of Pakistan – not the government – to decide about abolishment of the death penalty.
Also speaking on the same occasion on October 9 last year, Ambassador to Pakistan Androulla Kaminara said the EU and its member states formally oppose death penalty at all time and under all circumstances as the death penalty is contrary to the right to life. However, she admitted that numbers of execution have drastically reduced in the last couple of years.
"The call for the death penalty might come from an impulse in reaction to a horrific crime,” she said. “But as a society, we need to reflect deeper on what justice really means and what needs to be done for such crimes not to happen again.”
She said the EU holds a principled position against the death penalty in all circumstances and for all cases. It considers capital punishment to be inhuman, degrading and unnecessary.
“As a matter of fact, there is no valid scientific evidence to support that the death penalty deters crime more effectively than other punishments. Instead, it is the certainty of being caught and punished that serves as a deterrent and of course actions to prevent such crimes from happening in the first place.”
She said under its international commitments, including the UN International Covenant on Civil and Political Rights (ICCPR), Pakistan needs to limit the use of death penalty to the “most serious crimes; to allow for clemency petitions and to provide adequate protection to juvenile offenders and the mentally ill.
“This is one of the conventions linked to the GSP+ export regime offered to Pakistan,” she added.
There are 27 offences in Pakistan legally punishable by death. These offences go far beyond the threshold of ’most serious crimes’ stipulated by Article 6 of the International Covenant on Civil and Political Rights and include blasphemy, sexual intercourse outside of marriage ie adultery, kidnapping or abduction, gang rape, assault on the modesty of women (ie forceful stripping of a woman for instance), smuggling of drugs, arms trading and sabotage of the railway system.
In 2008, then Pakistan Peoples Party government decided to adopt a de facto moratorium on civilian hangings despite opposition from various state institutions. Only one person has been executed since then: a soldier convicted by court martial and hanged in November 2012.
In the wake of the both deadly and horrific terrorist attack in December 2014 on the Army Public School in Peshawar, a tragedy which resulted in the loss of nearly 150 lives (most of them children), Pakistan, in an effort to combat terrorism, lifted the six-year moratorium on the death penalty
Since then Pakistan has been among the most prolific users of the death penalty with 516 executions and more than 1600 death sentences, mostly for non-terrorism related charges. As of October 2020, Pakistan has the second largest reported death row population in the world.
The Amnesty International’s report on executions and death sentences revealed that Pakistani courts awarded 632 death sentences in 2019, showing an alarming increase of 253 per cent compared to 2018.
However, the number of death sentences awarded in 2020 has decreased as compared to 2019. In 2019, 632 death sentences were handed out in Pakistan, mostly by the model courts set up by former Chief Justice Asif Saeed Khosa. The number has decreased to 177 in 2020. However, the Covid-19 Pandamic may have been a factor in decreasing this number sice due to the deadly virus, as the day-to-day working of every court has been adversely affected for the last one year.
A senior prosecutor, who represents the state in murder cases, said on the condition on the anonymity that the superior courts now uphold the death sentence only in heinous crimes like terrorism. Generally, the courts convert the death sentence into life imprisonment in view of various mitigating factors.
Sharing his own experience, he said in the last three years, the apex court upheld the death sentence in only seven cases in which he was representing the prosecution department.
To a query about the high number of death sentences awarded by the model courts in the recent past, the law officer said the trial courts work in a ‘different atmosphere’ and the superior courts consider other factors and convert death sentences into life imprisonment.
He said that the trial courts could not award life imprisonment to a guilty person. "There is a different environment in trial court. Camplainant gets far too much emotional at trial stage,” he said. “If the trial judge doesn't grant death sentence then the victim’s family will themselves take revenge. When the matter comes before superior courts after a couple of years then by then the family has cooled down and the superior courts convert the death sentences into life imprisonment,” he adds.
How SC minimised scope of death penalty
Last five years, the country’s apex court has evolved jurisprudence through its various rulings and minimised the scope of death penalty.
In March 2019, former chief justice of Pakistan Asif Saeed Khosa wrote a 31-page verdict, declaring that the rule “falsus in uno, falsus in omnibus – false in one thing, false in everything” shall be an integral part of jurisprudence in criminal cases. It said the rule shall be given effect to, followed and applied by all the courts in its letter and spirit.
The Latin rule holds that a witness who gives false testimony in one matter is not credible to testify in any matter because “the presumption that the witness will declare the truth ceases as soon as it manifestly appears that he is capable of perjury”. It says faith in a witness's testimony cannot be partial or fractional.
In view of this ruling, a large number of death penalty cases were overturned by the superior courts. The trial courts are also following the same principle in murder cases. In 2019, Justice Khosa, while presiding over a seven-judge larger bench, declared that the sentence passed in non-compoundable offences like terrorism must be reduced on the grounds of compromise between the parties in compoundable offence committed in the same case.
“It is declared that in an appropriate case, keeping in mind the peculiar circumstances of the case, compounding of a coordinate compoundable offence may be considered by a court towards reduction of the sentence, within the permissible limits, passed for commission of a non-compoundable offence.” The 27-page judgment authored by Justice Khosa declared that consideration of this factor vis-à-vis reduction of the sentence passed for commission of the non-compoundable offence lies within the discretion of the court and cannot be treated as automatic or as a matter of course.
The judgment made it clear that there would be no acquittal in non-compoundable offences like terrorism on the basis of compromise between private parties in compoundable offence in the same case. However, it declared that the convict’s sentence could be reduced in a similar situation.
The Pakistan Bar Council (PBC) Executive Committee’s former Chairman Azam Tarar said it was another landmark judgment, which would open up the window to reduce the death sentence in the country.
“Even the court has given opportunity to the convict approaching the president for a second mercy petition on the basis of compromise in similar matters and the president may reduce the conviction in view of the apex court’s verdicts,” said Tarar.
In the last couple of years, the Supreme Court has also limited the scope of terrorism. The apex court urged the parliament to redefine the word ‘terrorism’ by taking into consideration international perspectives and focusing only on violent activities aimed at achieving political, ideological or religious aims.
Justice Khosa also authoring the judgment observed that the definition of ‘terrorism’ contained in Section 6 of the Anti-Terrorism Act (ATA), 1997 as is too wide and includes so many actions, designs and purposes which have no nexus with the generally recognised concept of terrorism.
Legal experts believe that that this ruling has also limited the chances of death sentence. It is reported that since December 2014, almost 86 per cent people sentenced to death under the ATA were accused of offences that had nothing to do with terrorism. The death penalty was introduced for people involved in trade of narcotics in 1994 through amendment to the Dangerous Drugs Act.
In the case of Ghulam Murtaza, Justice Khosa set out sentencing guidelines in narcotics cases. He also elaborated other mitigating circumstances for juveniles and women. The ruling streamlined the sentence awarded by all courts when trying cases for narcotics and reduced the number of death sentences.
Senior lawyers said the application of the death penalty can be progressively restricted through codification of these sentencing guidelines. In July last year , the Supreme Court overturned the death sentence of two brothers – Sikandar Hayat and Jamshed Ali – who had sent 27 years of their lives in jail on account of “the right of expectancy of life”.
By a majority of 2-1, a three-judge bench accepted a review petition filed by the death row prisoners. Authoring the majority judgment, Justice Yahya Afridi held that the petitioners have the right of expectancy of life as they were incarcerated for more than 25 years, while their pleas challenging their death sentences were pending before the competent legal judicial forums.
The judgment noted that the right of expectancy of life is a right of a convict sentenced to death, who while consciously pursuing his judicial remedies provided under the law, has remained incarcerated for a period equal or more than that prescribed for life sentence.
The court noted that the right of expectancy of life had genuinely accrued to the petitioners having admittedly being incarcerated in the death cell for a period more than twenty-five years, while they were seeking justice from the appropriate judicial courts of our country.
Legal experts said the life expectancy period will reduce death penalty. In February, a five judge larger bench headed by Justice Manzoor Ahmad Malik held that where a medical board confirms and certifies that the defendant is no longer able to appreciate the rationale behind the crime and their death sentence, he or she cannot be executed.
The judgment also opposed the execution of mentally-ill convicted persons. The apex court has commuted the death sentence of a convict who spent 23 years on death row by applying juvenility law. The judgment will give relief to those prisoners, whose convictions are final but they may again approach the courts, if they were juvenile at the time of commission of offence.
However, after the retirement of ex CJP Asif Saeed Khosa in December 2019, backlog of criminal cases have been increasing in the apex court. Unlike past, no special benches are being constituted to hear criminal matters especially jail petitions. The situation may also get worse after the retirement of criminal law expert Justice Manzoor Ahmad Malik in April.
Legal opinion on abolishment of capital punishment
The opinion is also divided over the complete abolishment of capital punishment in Pakistan.
One section of lawyers say that when there is a law regarding capital punishment, then it should be implemented forthwith. They say that the bar is not in favour of a complete abolition of the death penalty in the country as this is contrary to Islamic shariah. However, they are not in favour of awarding death sentence in drug trafficking cases. They support capital punishment in blasphemy cases but also agree that the government should develop a strategy to stop the misuse of the blasphemy laws.
Additional Attorney General Tariq Mahmood Khokhar says international research has established that the death penalty does not sufficiently act as a deterrent for crimes. “In Pakistan, 60 to 70 per cent of litigations or FIRs registered are falsified or fabricated and innocent people are punished in these matters. Therefore, it would be better to abolish capital punishment,” he said.
He says that if the government goes ahead with the death penalty, Pakistan’s trade relations with the European Union (EU) will be severely affected as capital punishment is in violation of the EU’s Charter of Human Rights. “Countries like Saudi Arabia, Iran or the United States of America can afford to carry out death penalties as they do not rely on international trade,” he says. According to Amnesty International, the top four countries in the world meting out the death penalty are China, Iran, Iraq, Saudi Arabia and the US.
Another senior lawyer believes that only lower income people face the death penalty in the present system. “Rich people are able to hire influential lawyers to contest their cases and have them freed,” he believes. “These people can manage an investigation in their favour by buying out witnesses, investigation officers or the judiciary. There is little chance of the penalty in their case,”he adds.
Opinion is divided as to whether capital punishment should be abolished on terrorism charges. One section believes that the death sentence is necessary to eliminate terrorism. However, some lawyers rule out the nexus between the elimination of terrorism and the abolition of the death penalty. Terrorists are ready to die for their acts and terrorism cannot be eliminated through capital punishment.
SC rejects petition against abolition of the death penalty
In May 2015, Supreme Court while dismissing a constitution petition against the abolition of the death penalty in Pakistan had observed that the right to life and liberty is not absolute in nature. Such a right is, however, circumscribed and subject to law.
The three-judge bench of the apex court, headed by the former chief Justice Mian Saqib Nisar dismissed the petition, filed by Barrister Zafarullah, a representative of the Watan Party, against the awarding of death sentence in 27 different offences.
Nisar, authoring four-page judgment, observed that the petitioner referred Article 9 of the constitution, which says that ‘no person shall be deprived of life or liberty’. But the court has made clear that the right to life and liberty is not absolute in nature and a person cannot be bereft of his life and liberty except in accordance with the law.
The court while referring Article 4 (2) (a) of the constitution says that a person can be deprived of his life and liberty, if it is provided and prescribed by any law.
The judgment also says that the petitioner has failed to show the court that on the basis of two constitutional clauses, the top court while exercising its jurisdiction in terms of Article 184 (3) of the constitution can direct the abolition of the death penalty in Pakistan and annul any law.
Regarding the petitioner’s argument that Article 9 is not a properly worded article, therefore the parliament should make necessary amendment, the judgment says that the top court while exercising the instant jurisdiction does not deem it appropriate to issue such direction. “As regards the argument that the criminal justice system is unfair, unreasonable and convicts and death punishments lack due process, suffice it to say that this by itself is not a threshold or touchstone for striking down any law, rather if there is deficiency in the relevant law, it is the duty of the parliament to provide it or correct the law by amendment”.
The court while referring to Article 10-A of the constitution said that if any person is aggrieved on account of lack of fair trial or due process of law, he has the remedy, before the appropriate forum in appropriate proceeding, to challenge such a trial and conviction.
Recently, Supreme Court Judge Justice Syed Mansoor Ali Shah also authored another judgment wherein the court held that in dealing with a reference for the confirmation of the death sentence, it is incumbent upon the high courts to read and appraise each and every piece of evidence. “[They also have] to examine whether or not any evidence has been improperly admitted or excluded, or misread or non-read by the trial court. Even the non-filing of appeal or withdrawal of appeal by the convicted person, or any concessional statement by the state counsel does not relieve the high court from performing its duty of reappraising the whole evidence available on record,” the judge noted in his judgment.
The apex court in its ruling impressed upon the high courts to widen their scope of examination of the murder reference, which would be useful to overturne capital punishment by the high courts.