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Death-row convict’s age verification plea dismissed

Death-row convict’s age verification plea dismissed

ISLAMABAD: The Islamabad High Court (IHC) on Monday dismissed death-row prisoner Shafqat Hussain’s petition seeking his age verification to avail the benefit of Juvenile Justice System Ordinance.

Shafqat was arrested and sentenced to death by an anti-terrorism court in 2004 for kidnapping and killing a seven-year-old boy at an apartment building in Karachi where he worked as a guard. According to his lawyers, Shafqat was 14 years old when he committed the crime in 2001.

Justice Athar Minallah of the IHC, in the 19-page detailed order, noted that on August 26, 2004, the trial court, which handed down the death sentence on the convict, recorded the statement of Shafqat in the presence of his counsel where his age was reported as 23 years.

Justice Minallah observed that the record produced in the matter showed that Shafqat had “engaged the professional service of an experienced counsel who conducted the trial on his behalf.” The judgment narrated how the case created hype and what compelled the government to verify the convict’s age even though the Supreme Court had already dealt with the matter.

The judgment stated that an article published in daily “The Independent” by Clive Stafford Smith, Director Human Rights Charity, Reprieve, about the age of Shafqat was factually incorrect. “The scribe was obviously not aware of the actual facts of the case. The contents are factually incorrect, not only in the light of the record but are also unequivocally contradicted by the stance of the petitioner taken before this court.”

The verdict added: “Such litigation, besides being not maintainable, falls within the realm of being frivolous. It is tantamount to abuse of the process of the court. Most importantly, such petitions and hype without first verifying the facts and examining the record are likely to be seen as being aimed at eroding public confidence in the criminal justice system.”

The judgment said if the proceedings, which had attained finality, were made subject to reassessment, the role of the judicial system and the effectiveness of the criminal justice system would be undermined and eroded inevitably leading to a chaos in society. Simultaneously, the victim of crime will also suffer.

The judgment, however, admitted that, “No system can ever be perfect as humans are fallible…in the instant case it has been noticed that some scribes and activists in their exuberance raised an undeserved alarm without verifying the facts or examining the record. Raising of concerns without exercising care and before verifying the facts in itself may lead to miscarriages of justice.”

During the course of arguments, Dr Tariq Hassan, the counsel for Shafqat, said his client’s age be determined to ensure that he does not become the victim of a miscarriage of justice. The petitioner is entitled to the due process under Article 10-A.

It was also argued that the determination of the age was to be made by a judicial forum. The execution of the sentence is in violation of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment 1984.

Mohammad Waqar Rana, the additional attorney general (AAG) representing the federal government, however, contended that the conviction of Shafqat had attained finality and the question of age was not raised by the convict at any stage till the review was filed. The review order unambiguously referred to the question of age, he said.

He added that the petitioner had concealed the fact from the court that the Sindh High Court (SHC) had also dealt with the identical petition filed by him and dismissed it on December 23, 2014.

AAG Rana said the executive inquiry was initiated by the minister for interior merely to satisfy himself on the veracity of the publication of an article in the foreign press.

Justice Minallah observed that the petitioner’s counsel did not place any record before the court to establish that any of the fundamental rights of the convict had been violated. “On the other hand, an inquiry into the age of the petitioner is being sought without placing any material that would even remotely show that any fundamental right of the petitioner has been violated so as to require interference by this court.”

Reacting to the order of the court, Dr Hassan, the counsel for the convict, said after examining the detailed judgment a decision on the filing of an appeal against it would be finalised.

“A very substantial question of law is involved in this case,” he said, adding: “The questions are about the rights of a condemned prisoner, right of pardon which may be a right of the condemned prisoner.” What we will see either to file an appeal in the Supreme Court or in the IHC after examining the court verdict,” he added.

Published in Dawn, May 12th, 2015

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