Thursday, 1 January 2015

Another ‘innocent’ Kashmiri could be hanged in Pakistan, Dr Shabir Choudhry

Dr Shabir Choudhry       01 January 2015

After the tragic incident in Peshawar some innocent Azad Kashmiris are also facing death penalty. Akhlas Ahmed, who had no role in any kind of terrorism was apprehended, charged and sentenced to death. To many Azad Kashmiri people this and some other hangings were ‘revenge killings’ to satisfy sentiments of the Pakistani people.

People of Pakistan have every right to be angry over the slaughter of innocent school children; and demand that terrorists must be punished. Furthermore, the policy of supporting some terrorist groups and targeting the others must be abandoned; because terrorism could not be justified under any pretext.

While fighting and eradicating terrorism and sources of terrorism the law enforcing bodies must ensure that they do not kill innocent people just to add to number of ‘terrorists’ killed.

Shafqat Hussain was a student of class four in Kail, Neelam Valley, Azad Kashmir. His father was seriously ill and in serious financial crises, and in order to support his family he abandon his education and came to Karachi in 2004 as a child. With help of friends he got a job as a security guard or a chokidaar. His brother also lived in Karachi with some other people. They kidnapped a seven year boy from the neighbourhood in New Town where Shafqat Hussain worked; and asked for ransom. Later on when police was involved in this matter they killed the boy and threw his body in a gutter.

At the time of kidnapping and killing Shafqat Hussain was on duty. Police could not arrest the culprits, but they arrested Shafqat Hussain. He was only a child with very little education and experience of city life. The simple village boy, due to fear and intense physical torture accepted the murder. However, later on he withdrew his confession by saying he accepted the murder to avoid torture.

Instead of bringing his case before an ordinary court for kidnapping and murder, his case was taken to anti-terrorism court. Killing of a child, no doubt is very serious crime, but it is not a terrorist act. At the time of hearing in November 2004, he was 14; and no proper legal help was provided to him. The defence did not even raise this point that the accused was a minor and should be heard in a juvenile court.

The Amnesty International also takes this position that Shafqat Hussain was a minor; and must not have been tried in anti terrorist court; and must have been given appropriate legal support. In any case, being a minor he should not have been ‘given the death penalty, which cannot be imposed on minors in Pakistan’.

Because his lawyers did not raise the issue of his age in the original trial in anti terrorism court, his subsequent appeals were dismissed on technical grounds. Sarah Belal, his new lawyer, argued that ‘the petitioner had already served jail for a time almost equivalent to a life imprisonment keeping in view the remissions given in Pakistan. “The enforcement of a death sentence in these circumstances would amount to double punishment, which is prohibited under Article 13 of the constitution”.

According to the Human Rights Watch, Pakistan has ratified both the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child, which specifically prohibit capital punishment of anyone who is aged below 18 at the time of the offence.
UN Convention on the Rights of the Child defines a 'child' as a person below the age of 18. Shafqat Hussain was only 14 at the time when the alleged crime was committed. Article 19 of the Convention says:
1. States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.
2. Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement.
Let us assume that Shafqat Hussain killed that boy, or was an accomplice to the murder. If he was not a minor, in normal murder trial he would have got a life sentence. He was arrested in April 2004, and has been in either police custody or in jail since that time. That is more than 10 years in prison. A normal killer serves less than that. If it was not for the Peshawar incident, he could have been contemplating to be released in near future.

Then question arises why this treatment to Shafqat Hussain? I acknowledge people of Pakistan are angry because of death of innocent school children in Peshawar. Those responsible for this heinous crime must be caught and punished. I fail to understand how hanging of Shafqat Hussain will satisfy the ‘sentiments of the angry nation’? I am sure there will be some Pakistanis who would be upset over this, and treat this as unfair and may call it ‘revenge’.

One may say Shafqat Hussain was a poor boy with no financial muscle and influence to get a proper legal help when he needed at the initial trial. Even after his sentence, there was no one there to pursue his case properly. There is no powerful individual or a group, even now to tell the authorities that he DOES NOT deserve to be hanged.

Critics might say those responsible for investigating this case wanted a scapegoat that they could close the file. It was easy for them to use third degree and get a confession from a child, rather than working hard to apprehend the real culprits.

It is beyond my comprehension why a case of kidnapping and killing of a child, where no direct evidence was available was taken to anti terrorism court? Furthermore, why his counsel did not raise the question of his age at the time of initial trial?

Did they think, a poor boy from a remote area of Azad Kashmir was a good scapegoat; and they could prove their efficiency and get promotion for ‘brilliant’ investigating work?

I don’t know if hanging of Shafqat Hussain will satisfy sentiments of angry people; or if it will help Pakistan in its fight against terrorists, but I am sure it will anger many people of Azad Kashmir who will think that the concerned authorities are not going after those who openly defy the government write and promote terrorism, but are very keen to hang Azad Kashmiri people on flimsy evidence.

I request human rights organisation, Human Rights Commission of Pakistan, and other conscientious people to speak against hanging of Shafqat Hussain.

Writer is a political analyst, TV anchor and author of many books and booklets. Also he is Director Institute of Kashmir 

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