Capital punishment in Pakistan’s legal system: Where is the justice?

Published: July 1, 2013

A criminal case can stretch as far as a decade without reaching its conclusion. PHOTO: AFP

During 2007-2012, Pakistan executed 171 death penalties and sentenced 1,497 prisoners to death. We compete with countries like Iraq and Iran; both countries do not principally champion human rights. We only have China to beat. If it offers any comfort, there is a great deal of ground to cover.

In 2008, the president of Pakistan announced a moratorium. After that, death sentences were given but not executed. Last year Muhammad Husain’s execution in Mianwali Jail brought an end to the restraint the government had observed. At present, Pakistan hands down capital punishment for 27 different crimes.

The code of conduct of the Bar of England and Wales outlines that the prosecuting counsel should not attempt to obtain a conviction by all means at his command. He is not appearing on behalf of any party and is responsible for the overall impartial presentation of the case. Such ethical considerations are alien to the criminal justice system in Pakistan. The prosecution counsel along with the other organs of the state, like the police, leave no stone unturned to influence what could have been a fair trial.

In Pakistan, tampering with the evidence and even planting it is a norm. The police, although understaffed and incompetent, are well trained to carry out such duties.

While there is no ethical bar on discussing the evidence and matters related to it with witnesses in England and Wales, the code instructs caution to exercise that discretion as the contact can lead to suspicion of coaching the client. Coaching a client is expected to be one of many phony fortes of average criminal lawyers in Pakistan. Lawyers with little regard to overriding duty to the court do not hesitate in running the most convenient defence for their clients whether they believe it to be true or not.

We generally have a philistine attitude towards everything. If banning YouTube wasn’t bad enough, Ms Rahman’s statement on Google is another example.

Add forensics to that bucket.

It was appalling to note that the Council of Islamic Ideology declared that DNA testing in rape cases, one of 27 for which we have capital punishment, is inadmissible as primary evidence. The Council is relevant to our criminal justice system because of Article 229 of our constitution. This is illustrative of our eagerness or lack of it to improve our investigation procedures and keep them current with today’s age. Mere resolutions without any follow up cannot challenge such a regressive attitude.

There is a fantastic dearth of good defence lawyers in Pakistan. Litigation can be very expensive. Since Pakistan has not developed the comprehensive Legal Aid system, often a sarkari wakeel (public defender) is so awful that he appears in courtship with prosecution to put his client on death row. Noting these trends the academics have advocated for inquisitorial role of the judges. This can enable their participatory role in proceedings as opposed to adversarial where judges are not interventionist. It is unlikely if that can come in handy.

Consider the case of Rinkle Kumari.

When she was first presented to the court of Civil Judge Gotkhi, she requested to be returned to her parents. The court declared her “confused” and sent her to police custody in Sukkur Women Police station. The next time she appeared in the court she recited the kalma and became Faryal Bibi. It is a glaring example where even with an interventionist judge outcome of the trial would be no better. Our judges, especially in the lower courts, are susceptible to political pressures and outright dishonesty.

Moreover there is a menace of backlogging in our courts as well. There are 4,981 death row prisoners in Punjab, 266 in Sindh, 102 in KP and 26 in Balochistan. The total number of pending appeals in provincial High Courts of Pakistan is 5,378 and 1,031 in the apex court. The state is utterly oblivious to the idea of what ‘justice delayed’ implies.

A criminal case can stretch as far as a decade without reaching its conclusion. It isn’t fair to those sentenced nor the families involved as they tortuously wait for verdicts. How a nation treats its prisoners says a lot about that nation. Let alone their conditions; we are only reminded of their existence during election fervour.

Our prisons are a deplorable reflection of how low we have stooped morally.

In our justice system, with all its evils, capital punishment taken at its highest cannot reform our societal ethos. At its lowest, it fails to tender deterrence against crime. The argument against the capital punishment is far from complicated.

If a state cannot ensure a fair trial, it should not play god either.

Follow Ummar on Twitter @UmmarZia

Ummar Ziauddin

Ummar Ziauddin

Is training as a Barrister from Lincoln's Inn, England. He tweets @ummar zia

The views expressed by the writer and the reader comments do not necessarily reflect the views and policies of The Express Tribune.

  • Ahmed Gul

    At the beginning of the article you mentioned that Pakistan executed 171 death penalties from 2007-2012 and is competing with countries ‘LIKE’ Iraq and Iran.

    It should be noted and is mentioned in the first link you provided that the USA, a so-called ‘liberal’ country carried out 220 executions within the same period and wasn’t mentioned anywhere in the article.Recommend

  • https://www.facebook.com/qazilaeeque?ref=tn_tnmn Qazi Laeeque Ahmed

    There is this self contradiction, I guess.

    Opening statement: “During 2007-2012, Pakistan executed 171 death penalties and sentenced 1,497 prisoners to death.”
    Then in the first paragraph: “In 2008, the president of Pakistan announced a moratorium. After that, death sentences were given but not executed.”

    I think there have been no civil death penalty executions in Pakistan during the past 5 years. Recommend

  • Parvez

    At the outset let me say that I am no lawyer……..my knowledge comes from reading John Gresham and simple thinking.

    The case that I think you are making is that as the legal system is so inept it has no basis for prescribing a sentence as severe as death. You have not made mention of the violation of the moral, humane aspect of the death penalty ? …….that would have been a better argument but of course on this subject, in an Islamic republic the part religion plays also can not be ignored and trumps all else.

    If the legal system is flawed ( which it is ) and we adopt your logic, then all punishments must be scrapped or watered down…………does that make sense ? The answer should lie in improving the legal system.

    You also refer the to British legal system but as you must know we are a mixture of an Islamic and a Western based system……..so we have apples and oranges making comparisons it even more complex.
    Recommend

  • g

    badly researched and ambiguous message – self contradictory – if not good at something shouldn’t try – Pakistan is a country of monsters and capital punishment is a great deterrence. Human Rights are for Human, not for monsters – leave it to Europe.

    don’t give bad name to Barristers for your publicity. Recommend

  • anon

    Harsh punishments are of little to no use as long as the justice system can’t function properly. It is much more important to be able to capture and convict the correct criminal than having strict punishments on the book. Very small percentage of criminals is ever caught and punished. Anyone who has some power can get himself acquitted whereas poor and weak people are left to suffer harsh punishment (whether guilty or not).Recommend

  • DonurJack

    I think that the article is very well written and covers the topic very comprehensibly. Potential contradictions come not from the article but from the fact that capital punishment in Pakistan is a moot point with supporters for both sides. However, shouldn’t we finally follow the path of the civilised world and finally move away from barbaric practices? I fully support the author! Recommend

  • http://syedaabidabokhari.wordpress.com The Only Normal Person Here.

    Does country like Pakistan have enough resources to feed criminals like that? Recommend

  • Pakistani

    So do you think, judiciary should not give capital puishment to Shahrukh Jatoi and culprits like that????? Their are certain crimes which should be dealt with much severe punishment than capital punishment so I AM in favour of it. Period.Recommend

  • Vishal Kaul

    Anything happen in Pakistan on the name of Islam .Recommend