Why am I speaking for Shafqat Hussain?

Published: March 21, 2015
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This photograph taken on March 12, 2015 shows the Pakistani Kashmir parents of convicted killer Shafqat Hussain, displaying a photograph of their son, in Muzaffarabad. PHOTO: AFP

This photograph taken on March 12, 2015 shows the Pakistani Kashmir parents of convicted killer Shafqat Hussain, displaying a photograph of their son, in Muzaffarabad. PHOTO: AFP This photograph taken on March 12, 2015 shows one of the Azad Kashmir parents of convicted killer Shafqat Hussain holding a photograph of their son in Muzaffarabad, the capital of Pakistani-administered Kashmir. PHOTO: AFP

A day before Shafqat Hussain was scheduled to be hanged on March 19th, I released a video called “How were you like when you were 14?” as my contribution to the #SaveShafqat campaign trending online.

Shafqat has completed his five-year prison term for involuntary manslaughter. Yes, there are no murder charges against him. He was originally convicted for murder by the trial court but the High Court in appeal overturned same in 2007.

Shafqat now faces death only on one count – kidnapping for ransom. The Anti-Terrorism Act of 1997 passed by the Pakistan Muslim League-Nawaz (PML-N) government was designed in a way to deter people from committing crime by increasing the scope of what meant terrorism and by including tougher sentences and penalties for same. Under Section 6(2)(e) of ATA 1997, “kidnapping for ransom” falls under the definition of terrorism and is punishable by death. However, if left to the wisdom of our courts alone, they will find a way to ensure that killing of a sitting governor of a province of Pakistan does not amount to terrorism under the same Act and in Salman Taseer’s case, the Islamabad High Court actually managed to do that.

However, I did not speak up for Shafqat because of my views on the death penalty or whether kidnapping by ransom deserves a death penalty. I also did not speak for him because of his counsel’s contention that Shafqat never committed the crime and the confession was extracted through torture. I am also not Shafqat’s lawyer nor do I benefit from any NGO representing Shafqat. My one and only motive was, and is, to determine Shafqat’s age at the time he is said to have committed the crime in April 2004, which was allegedly just 14, to see if my judicial system was hanging a child or not.

The reason I was swayed to believe that this could be a possibility?

The only picture available on record before March 19th was of a kid which everyone saw and was allegedly taken months before his arrest. It swayed the likes of Sherry Rehman, Nafisa Shah, Shireen Mazari, Fatima Bhutto and many others.

Also, Shafqat is also said to be the youngest of seven siblings with the second youngest, Sumaira, being born in 1989 according to her CNIC issued in June 2011, which would make her 16 in 2004, and Shafqat, being her younger brother, under 16.

Photo: Jibran Nasir

Photo: Jibran Nasir

Then there was also the birth certificate, issued by the government of Azad Jammu and Kashmir, in December 2013, wherein as per government record and certification, Shafqat was born in 1991. The same birth certificate has many typographical errors but it still carries the sign and seal of the requisite authority.

Photo: Jibran Nasir

Moreover, the ATC punishing juveniles with a death penalty is also not an unusual occurring. In the past, juveniles like Mewal Shah, Sarfaraz, Bhai Khan, Naseerullah and Zahoor Ahmed were also given death sentences by the ATC and were all in the death cell of Mach Jail in 2012. Regardless of the gravity of their crimes, they were still children on death row. This past week, Muhammad Afzal was hanged who was reportedly 16 when he was convicted.

The responses to my video message were not disappointing but were disturbing. Majority of the people responded by saying that when they were 14 they knew “kidnapping was wrong”, “murder was wrong” and “raping or molesting a kid was wrong.”

The disturbing thing here was that people were willing to accept that yes, Shafqat may have been 14 at the time he committed the crime, but since they themselves had the good sense of not committing a crime when 14, Shafqat’s age should be a factor we should all ignore and proceed with hanging him. It makes me wonder how even the most educated and liberal in Pakistan have a sick liking for seeing other people’s blood and death even if it is a child.

Also, by this logic, if a 14-year-old passes the driving test, he should be given a driving license and if he is politically opinionated, he should also be given the right to vote. But perhaps we are focused more on taking away liberties of children as opposed to giving them more of it.

I was under the false impression that perhaps people after entertaining the idea of Shafqat being a juvenile in 2004 would be in favour of the due process being followed and the law being lenient to him. In Pakistan, a juvenile, anyone who has not achieved the age of 18, can only be tried in juvenile courts established under the Juvenile Justice System Ordinance 2000 of Pakistan. Under Section 12 of the said law, a juvenile cannot be punished by death. Pakistan is also a signatory of the UN Convention on Rights of a Child since 1990 which allows for a prison term, not a death penalty, for very serious crimes.

A lot of people online also commented on how I do not care for the family of the victim, seven-year-old Umair, and how I am being insensitive to a mother who lost her child. Someone even called me “the Abdul Aziz of liberals” for trying to save a murderer of a child. In my mind, I was trying to empathise with Umair’s mother and trying to feel the pain of losing a child and do not want Shafqat’s mother to feel that same pain if indeed Shafqat was a child himself in 2004. Shafqat’s hanging will not bring Umair back but yes, it will amount to retribution. An eye for eye, life for a life are well established norms since long but a child for a child is where retribution begins to scare me.

Here I would also like to highlight that Shafqat was never charged with rape or an attempt to rape. The rape allegation is a fiction created by the private TV Channel and a respected anchor person is leading this debate. I do not know what secret information that channel has but for everyone’s viewing a picture of the original charge-sheet is attached to confirm that there were no rape charges.

Knowing very well any person’s emotional reaction to hearing of any incident involving rape or molestation of a child, it was below all journalistic ethics to raise this charge when the same cannot be verified even from any of witness statements submitted in court by the family of the victim in Shafqat’s case.

Photo: Jibran Nasir

Yesterday, the same anchor has also provided pictures which are allegedly from the time of Shafqat’s arrest and I cannot refute that the person in the picture does look like an adult, perhaps someone in their mid-20s. Surprisingly, these pictures were available with a private news channel but were never surfaced through the ministry of interior which again raises questions as to their competence and inefficiency.

Photo: Jibran Nasir via Dunya News

But where I would appreciate this investigative journalism by the anchor, it was saddening to see him draw analogies between the #SaveShafqat campaign which influenced the government to postpone Shafqat’s hanging to how the East India Company made Indian’s their slaves. At the other end, I did not see any strong suggestion or support by the anchor to medically determine Shafqat’s age, where the result can very well even favour the anchor’s stance that Shafqat was an adult at the time of conviction.

There are also claims that three Urdu newspapers, Daily UmmatDaily Express and Nawai Waqt published a picture of Shafqat under police custody back in May 2004. I also learnt from another private TV channel that they have video recording of the same in their archives wherein, the face of the accused, who is believed to be Shafqat, is blurred. In the coming days, all of this is expected to come to light and add to the debate regarding Shafqat’s age.

At the end of it all, it will be the medical examination which will be most conclusive in reaching a decision and laying the controversy to rest, which could go either way.

For me, an earnest attempt to medically determine Shafqat’s age is not to see Shafqat being acquitted of his charges but only to reconsider his original sentence. If Shafqat is found to be an adult and convicted correctly, then the only cost the government would have borne would be paying for his meals for the 30 extra days he has been kept alive. His hanging would be rescheduled and he would be executed and we will find another forum to discuss if kidnapping should be punishable by death.

But if he is found to have been a juvenile in 2004, then Pakistan would be saved the embarrassment of hanging a child in front of the international community. The government would be saved from a judicial murder. Our judicial system would be saved from carrying out a gross miscarriage of justice. And for all of this, it was and is worth speaking for Shafqat and as some people commented, putting my credibility on the line.

Correction: A previous version of this post carried an offensive photograph. The piece has since been edited and the error is regretted. We apologise for the inconvenience.

Mohammad.Jibran.Nasir

Jibran Nasir

A lawyer and civil and political rights activist. He is the co-founder of Elaj Trust, Pakistan For All and Never Forget Pakistan. He tweets @MJibranNasir (twitter.com/MJibranNasir)

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