The time to abolish death penalty not only in Pakistan but in the whole of South Asia has come. Any delay in taking this long overdue step may not only cause extinction of more lives without justification, the governments in the region may increase the number of many insoluble problems they are facing. The urgency of action in this matter is underlined by the following instances:

The execution of Mohammad Afzal Guru, a Kashmiri sentenced to death on the charge of conspiring to attack the Indian parliament in December 2001, has been fixed for October 20, 2006. (He may well have been hanged by the time these lines appear in print). While pleading for clemency in this case, Indian human rights activists have advanced several cogent arguments. They have pointed out that the Supreme Court of India noted there was no direct evidence of his involvement or of his belonging to any terrorist outfit and that he has been convicted and sentenced purely on the basis of circumstantial evidence. Important figures in Jammu and Kashmir including its former chief minister have pleaded clemency and warned of serious consequences if Mohammad Afzal is hanged. However, partisan statements apart, judicial error cannot be ruled out.

A British national, Mirza Tahir Hussain, whose death sentence has been upheld by the Supreme Court of Pakistan, is scheduled to be hanged. The British prime minister has deemed it prudent to warn Pakistan of serious repercussions if the convict is hanged while the British crown prince is on a visit to this country. This is no time to inform Mr Blair that murder by state under the cover of death penalty laws is condemnable even when committed out of royal sight. What is important at the moment is the fact that the convict’s trial has invited serious criticism and the refusal of victim’s family to forgive him is alleged to have been secured under duress. In this case too, judicial error cannot be ruled out.

Sheikh Omar Saeed, described as the principal accused in the Daniel Pearl murder case, was sentenced to death quite some time ago. Appeal proceedings in the Sindh High Court have been frozen as hearing has been continually postponed from one date to another. Now the Americans have started saying that Omar Saeed did not behead Daniel Pearl and that another person, who is already in their custody, was responsible for the foul deed. Now, who in today’s Pakistan will reject American testimony?

Recently, the Supreme Court took notice of a case in which five innocent persons were arrested on the charge of abducting and murdering a woman who was enjoying the security of a prison in Gujrat. The accused suffered imprisonment for nearly five years before the trial court discharged them. They were lucky. If they could be arrested on the charge of killing a woman who was very much alive, the possibility of their being sentenced to death could not be ruled out. This is one of the many cases that prove how easy it is in Pakistan to try people on murder charge.

Some time ago, a couple of young labourers were charged with murdering a retired official in Lahore. They confessed to the crime. After some time, they were released when the police found the real killer. When asked by their elders as to why they had confessed to a crime they had not committed, they said: “If you had been there in our place, you would have confessed to all the murders reported in the city over the past three years.”

Let it be said at the outset that the attack on the Indian parliament was a most heinous act of unpardonable criminality and the brutal beheading of Daniel Pearl cannot be condoned by any rational being. Those responsible for such horrible crimes must be punished, but only those who can be proved guilty beyond a shadow of doubt and that too through a judicial process that is not only just but is also perceived to be just. Besides, punishment for even the most heinous crime cannot be as offensive to contemporary human sensibility as death penalty has become.

All these cases strengthen the argument that in countries where the judicial process is prone to errors, death penalty should not be imposed. The reason is obvious: the execution of a person cannot be reversed and no system of justice can be forgiven for allowing the state to take the life of persons who are innocent or whose crime is not proved beyond the shadow of doubt.

Pakistan has attracted serious criticism from the international legal community and human rights activists for increasing the offences for which death sentence can be awarded, and this is contrary to the worldwide trend towards reducing capital offences and abolition of death penalty. At the time of independence, death sentence could be awarded only for treason and murder. Now several more offences such as purveying narcotics, blasphemy, abduction for ransom and gang rape, also carry the punishment of death. Thus the number of people who are awarded death sentence in Pakistan every year is in the neighbourhood of 550 — an intolerably high figure.

Another factor that has made death penalty even more objectionable is the operation of the Qisas and Diyat law since 1990. Murderers who are rich enough to buy forgiveness from the families of their victims or are powerful enough to terrorise the latter into forgiving them have been walking out of prison unscathed. Thus, the law on death penalty in Pakistan is attracting more and more stigma as a pro-rich and pro-gangster measure.

Pakistan has regrettably ignored the Second Optional Protocol to the International Covenant on Civil and Political Rights which aims at the abolition of death penalty. The protocol is rooted in the belief that “abolition of death penalty contributes to the enhancement of human dignity and progressive development of human rights”. It also reaffirms the fact that the International Covenant on Civil and Political Rights strongly suggests abolition of death penalty. Unfortunately, the Government of Pakistan is still afraid of signing the Covenant on Civil and Political Rights and its non-ratification is a convenient excuse for not looking at the protocol. However, non-ratification of an international instrument does not completely free a state of its obligations under it as a signatory to the UN charter and the Universal Declaration of Human Rights.

It is no secret that Pakistani community’s appetite for murder by state has been whetted by the process of brutalisation initiated by the authoritarian regime in the seventies. Yet, there are organisations, such as Human Rights Commission of Pakistan, which have consistently demanded an end to death penalty on the ground that, possibilities of mistake apart, the ends of justice are not met by taking life or revenge for a criminal act that no one can commit while sane and in view of the evidence that death sentence is no deterrent to crime.

One may also point out that the demand for abolishing death penalty has not been raised by undesirable NGOs alone. One of the first persons to make this demand in early fifties was Mr A.K. Brohi, the law wizard of his time whose patriotism and devotion to sacred cultural norms even General Ziaul Haq would have vouched for.

It is certainly time that Pakistan took a look at the worldwide movement against the death penalty regime. In 1863, Venezuela, the country Mr Chavez has helped us discover, was the only state to have abolished the capital punishment. Other countries were slow to join the Latin American pioneer and by 1970 their number had risen to 13 only. The enforcement of the Covenant on Civil and Political Rights in 1976 and the adoption of the Second Optional Protocol in 1989 persuaded many countries to stop killing human beings on state account. Their number rose from 23 in 1980 to 46 in 1990, to 75 in 2000 and to 85 in 2005.

Thus, the demand for abolition of death penalty is not only justified in terms of state interest, it is also endorsed by experience of contemporary communities and lessons of respect for human dignity that humankind has learnt after ages of struggle for truth and justice.
 

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