On November 15, 2012, Pakistan’s four-year-old moratorium on death sentences was broken: a convicted prisoner — a soldier — was hanged in a Mianwali jail, making his the first execution during the ruling Pakistan People’s Party’s current stint.
Muhammad Hussain had been charged with killing his senior officer in 2008. He was court martialed and tried in the military court in Okara Cantonment, under which he was sentenced to death in February 2009.
Hussain’s mercy petitions to the GHQ and the army chief were both rejected. His mercy petition to President Asif Zardari, too, had been turned down.
Moratorium
Pakistan has been notorious for death sentences and executions. But this changed when in 2008 the PPP regained power in the Centre. Yousaf Raza Gilani, the-then prime minister, agreed to enforce a moratorium on executions and commute death sentences of prisoners to life imprisonment.
Even though the latter is yet to happen, the death sentences were definitely stayed by the president and the moratorium was renewed every three months.
In fact, Pakistan’s death penalty and execution statistics had been continually horrifying the world for a long time. In 2005, for example (during General Pervez Musharraf’s rule), at least 241 people were sentenced to death and 31 executed — the fifth highest number in the world following China, Iran, Saudi Arabia and the United States.
According to Amnesty International, more than 900 people were on the country’s death row at the time and in their report it claims that “many were sentenced by lower courts only”.
The phrase ‘lower courts’ is unclear however, because only one Trial Court, the Court of Sessions, has the power to award capital punishment according to Section 31(2), Code of Criminal Procedure (CrPC) and that Court generally tries only the most serious crimes. All death sentences have to be confirmed by the High Court (Sections 31(25), 374 and 376 CrPC.
Today, more than 8,000 people are waiting on death row, including children.
Pakistan was one of only eight countries in the world (China, Congo, Iran, Nigeria, Saudi Arabia, United States and Yemen are the others), which has since 1990 executed prisoners who were under 18 years old at the time of committing a crime.
However, the minimum age has been raised to 18 to for execution. Meanwhile, according to Section 368 CrPC hanging remains the only legal way for an execution in the country.
Demand for abolition of death penalty
The soldier’s hanging came as a blow despite the moratorium. But PPP says that its hands were tied.
“The fact is that this execution could not have been stayed by the president,” says a member of the ruling party. “It was a military case and therefore, the civilian government could really have no say in it.”
Today, various groups demand the complete abolishment of the death penalty in Pakistan. The campaign increases and decreases with time but it definitely does not die out.
Dr I. A. Rehman, founder member of the Human Rights Commission of Pakistan (HRCP), says it is about time the informal moratorium became formal.
“Our opposition mainly stems from critical and well-documented deficiencies of the law, the correct administration of justice, the major and glaring flaws in police investigation along with chronic corruption,” he says. “Let’s also not forget the cultural prejudices against religious minorities in the country which have several times led to unjust judgments.”
Another important point, he said, is that the judicial system in Pakistan is loaded against the poor and lack of financial means puts those accused of death penalty offences at a serious disadvantage.
Asad Jamal, an independent Lahore-based law practice professional, adds that the weak become weaker from the first step.
“There is rampant corruption and laziness when the police forces a false confession out of suspects, then onwards when the person who does not have money is left to languish in jails and is easily awarded a death sentence.”
He highlights that Pakistan’s constitution has a Qisas and Diyat Act which acts as a major guideline, especially for murder. Qisas pertains to the ‘eye for an eye’ form of ‘justice’ ending with giving death to the murderer. Diyat is blood money compensation, which is usually about Rs3 million. A poor family cannot pay this.
This then, occasionally, also leads to out-of-court settlements which have their own serious problems such as blackmailing the family of the accused. If the crime is committed against society, there should be a court settlement. If the victim’s family has demanded for the accused to be hanged, the president cannot intervene.
In Pakistan, capital punishment is prescribed for 27 different crimes, which include various forms of intentional murder, treason, blasphemy, kidnapping or abduction, rape, procuration and importation for prostitution, assault on modesty of woman and stripping of her clothes, drug smuggling, arms trading and sabotage of the railway system. This is so even when police investigations are weak, trials rely very heavily on testimonies of witnesses and accused (who are almost always tortured into giving statements) and forensic evidence to back up prosecution cases is nearly non-existent.
Hangmen and the horrors
A week before the hanging, a “black warrant” of the condemned prisoner is issued. In the next few days, he is transferred to the “black room” to spend his last few days in solitary confinement.
The officials who are supposed to oversee the execution (Jail Superintendent, four prison officers, executioner, two paramedics, a physician, a magistrate acting as judicial witness and possibly an imam/religious official) tend to spend the last night in the prison premises since the hanging takes place in the wee hours of the morning.
The condemned prisoner is allowed to meet his relatives on the last day, fed a diet of only liquids and fruits while the executioner is expected to rehearse the punishment or at least foresee the procedure once before.
When the time comes (usually around three or four in the morning) the prisoner’s face is covered with a black cloth bag and a noose tied around his neck on top of that. He is hung from a 9-12 yard rope (especially made in Lahore) from an 18-foot height beam. He hangs for 30 minutes, four feet above the ground and then a physician verifies if the convict is dead.
These are chilling facts. But one of these men tend to see them happening over and over again. One of the most overlooked people associated with the death penalty are the hangmen themselves.
In some jails, these hangmen are ordinary jail wardens or constables. They tend to do their jobs not to be replaced by any other.
“Tying the perfect knot in the noose is a work of art that one gains after a long time of practice,” says a jail police official. “That is why we keep one man for the job. Then again, it is not a good idea to expose several men at the same time for this task. One is enough.”
Large amounts of grease are used on the rope just below the noose so that once the weight increases, the knot easily slips into place and tightens around the prisoner’s neck. Also, if the knot is not tied properly, the prisoner can struggle at the end for a long time before dying. He may break his neck but not die. This must be avoided at all costs.
In other jails across the country, hangmen are kept separate from the jail police officials. They are just that: hangmen.
But almost all face the same emotions even though the moratorium has left them jobless. They sink beneath the burden of the guilt of killing another even if it is their job. Some even hide their job status from their families in shame.
“I used to get drunk every night after the first execution,” says Dad Mohammad*, an old man who has pulled the lever on many infamous criminals and some not too guilty either.
“Whether the person is a criminal or not, seeing him in the last few days — in fact a few hours before the hanging is extremely tortuous for me. Sometimes they soil their clothes in fear. Sometimes they are begging for mercy, sobbing: it is hard to see a man lose his dignity and self respect like that. When it is hard to see an animal dying, how can a person just kill another so calmly?”
He says the feelings have gnawed at him for years but a job was a job and not much could be done.
S. Masih who mainly works at the Kot Lakhpat jail in Lahore says that at times he would have to hang five men in a day. In total, he says he has done more than 200 executions.
“It has been a kind of family tradition,” he says. “My grandfather hanged Bhagat Singh.” Coincidently, all three of Punjab’s executioners are Christian.
“I may be back in business if the moratorium is changed by another government,” says Masih. “But perhaps, I am one man in the country — even the world — who would prefer to stay unemployed rather than do the work he does.”
Opposition
PPP’s Farhatullah Babar states that the only reason why the death penalty cannot be completely abolished is because of the country’s Shariah laws which make it difficult.
At present, those awaiting the death sentence have had their executions postponed indefinitely, because, according to some interpretations of the law, the president may not pardon a murderer if the victim’s family has decided he or she should be awarded death.
“We would need a cross-party consensus to change the constitution. Many consider abolition un-Islamic,” he says. “But we have stayed most executions of more than 8,000 people who are on death row on grounds of human compassion.”
But in keeping with a discernible pattern of opposing every major step taken by the ruling PPP, the PML-N-led Punjab government has time and again announced its opposition to the moratorium. This is significant since Punjab is where most executions have taken place.
According to news reports, the Punjab Government besides using the Shariah card, contends that the death penalty works as a deterrent to crime. However, no-one has been hanged since 2008.
The 2010 statistics show that as many as 53,768 prisoners are held in 32 jails in Punjab, including 705 women. Of the total, 6,082 are condemned prisoners, including 27 women. The highest number of condemned prisoners can be seen in the Lahore District Jail — 4,531. Appeals of 4,500 condemned prisoners are pending in the high court; 1,300 in the Supreme Court, while appeals of 40 prisoners are pending in the Federal Shariat Court. Mercy petitions of 242 condemned prisoners are pending with the president since November, 2008.
Non-execution, says the Punjab Government, is tantamount to increase in murder and related crimes of serious nature, rendering the state and society unprotected.
However, Advocate Asad Jamal refutes this, saying that research has shown that the death penalty does not, in fact, have a deterrent effect. When Canada abolished this practice in 1975, murder crimes decreased significantly. There were decidedly more convictions after that instead of death penalty and this curbed the crime rate rather than executions.
Human rights activists
A fierce advocate of life sentence as an alternative, Clive Stafford Smith from the U.K.-based legal aid Reprieve, says it is only called Capital Punishment because it is meant for those without capital in their hands.
He says that although the judicial system has become stronger in Pakistan, the system had to change. “The truth is that the State cannot just take away lives while it has never given its poor any kind of welfare. It is usually these poor who resort to all sorts of crimes later on.”
Death penalty awarded by judges is criticized widely by lawyers defending prisoners on death row. The high number of lower courts’ capital verdicts over-turned by the high courts adds weight to the argument. Lawyers say there is a complete absence of due process.
“The death penalty is not for the worst crime, but the worst lawyer,” says Faisal Siddiqi, a Karachi-based lawyer, adding that legal aid plays a critical role in acquittal. “Access to competent legal aid is not available to the majority of prisoners involved in trial for capital punishment”, he says, before adding, “there is a consensus amongst lawyers though that criminal law and death penalty convictions are tilted against the accused, and the poor are worst hit by it.”
Sarah Belal, Director of Justice Project Pakistan (which is associated with Reprieve U.K., says, “It is very common for witnesses to perjure, or willfully lie. In fact, our judicial precedence has evolved to deal with the issue of perjury, but not to deal with it in a sense that charges should be brought against witnesses in a capital case who are found to be lying.”
Justice Project Pakistan is a non-profit law firm, which has represented death row inmates pro-bono and has helped them acquire mercy petitions. They also represent the Pakistanis who have been imprisoned at Bagram Prison.
The writer is a freelance journalist. She is an IVLP alumni and currently doing hers Masters in Criminology