Pakistan: Will the judiciary bring back to life the two brothers who were declared innocent, following their execution?

A Statement by the Asian Human Rights Commission
November 4, 2016

Sadly, in an atrocious system where innocents spend decades behind bars awaiting justice to be served on them, instead death penalties are handed down as state sanctioned murder.

The lack of justice sector reforms coupled with near-collapsed institutions of criminal justice has yet again caused a grotesque miscarriage of justice. In a shocking revelation on year after two siblings have been hanged the Supreme Court declared them innocent of all charges. The Court finding several anomalies in several witness accounts acquitted and exonerated both brothers of all charges – to find, that they have already been hanged despite their appeal pending in the Supreme Court.

Ghulam Sarwar and Ghulam Qadir, were accused of murdering a woman in the year 2002, and the trial court handed down its verdict in 2005, finding them guilty of all charges following which the Lahore High Court upholding the said decision of the Trail Court, handed down the brothers’ death sentences in 2010; they were executed on October 13, 2015.

On October 6, 2016, after one year of their hanging, a three-judge bench of the Supreme Court accepted their appeal, set aside the Lahore High Court verdict and ordered their release. No sooner the convictions were set aside, it transpired that the president of Pakistan had already rejected their mercy petitions and they were hanged in the Bahawalpur jail.

Sadly, in an atrocious system where innocents spend decades behind bars awaiting justice to be served on them, instead death penalties are handed down as state sanctioned murder. The legal axiom “justice delayed is justice denied” is sadly the norm in Pakistan where it takes an average of around 10 years for a litigation to be heard and many before the courts do not receive justice during their lifetimes. In many other cases innocent persons are hanged as they are unable to afford capable defence lawyers. The judiciary too is lax in sieving through the evidence of the cases which are concocted by the police against such poor accused, and often with the view to extorting bribes.

The Criminal justice system fails to meet even the basic standard of due process and fair trial. The judicial system in Pakistan has been mired by delays and indolence of judicial officers, including the police, the state lawyers as well as the judiciary. The entire system of administration of justice has virtually collapsed to the point that rule of law has become non-existent and the state has virtually no presence in remote parts of the country.

Calls for comprehensive reforms to this overall system of justice has been called for, time and again by the civil society activists, the intelligentsia and interested parties however, despite such repeated calls – except for a few half-hearted pledges by the government for reforms, no concrete measures have been taken so far.

A blatant miscarriage of justice of this magnitude – where two innocent lives have been taken away by the state machinery - is unprecedented in the history of Pakistan and amply demonstrates to the world the level of negligence on the part of entire system of the judiciary and the state to provide justice to its people. The two innocent victims cannot ever be compensated for their lives and for the 11 years behind bars.

Following the verdict, in 2016, the lawyers of the deceased brothers filed an application, stating that the Sessions judge, Home Secretary and the Interior Secretary had failed to discharge their duty mandated under Article 190 of the constitution, adding that despite having the knowledge of the pendency of the appeal, it is highly unprecedented and deplorable that both the brothers were so executed.

The Interior Secretary, Home Secretary, Additional District and Session’s Judge, Hon. Sadiqabad and Superintendents of Rahim Yar Khan and the Bahawalpur Jail administration were also named in the application for having failed in their duty. The case exposes another dangerous aspect of the underling absence of coordination between the jail authorities and judiciary.

Each and every stage of the archaic and colonial criminal justice system including - the police, prosecution, and judiciary - is infested with loopholes that are used and abused by the officials, and the state itself for their own financial gains.

Ironically, the said colonial system has been dispensed with ages ago in its country of origin, yet it persists in its atrocious form in all Commonwealth countries including Pakistan. The Ghulam brothers’ case should act as a reminder to the authorities to reinstate the moratorium on the death penalty given the macabre cases of miscarriages of justice. When criminal the justice system cannot guarantee a fair trial and due process – the enforcement of death penalties should be absolutely done away with.

This case is a textbook example of everything going wrong with Pakistan’s archaic and inefficient criminal justice system that instead of meting out justice – punishes the poor and vulnerable while allowing the rich to get away with murder. The system is extremely stringent for the improvised while providing enough loopholes for those with deep pockets to go scot free. The selective application of the system has bought about utter disregard to rule of law making might becoming the right a social mantra for the politically well placed.

The lifting of the moratorium on the execution of death sentences since 2014 while its criminal justice system is mired in corruption and injustice is a complete travesty of justice and travesty of human decency. Exercising the death penalty in an already intolerant society is clearly a populist move rather than a deterrent to crime and terror. Blind to justice and international norms, these Courts have been awarding death sentences to minors and even the mentally and physically challenged as is the cases with Imdad Ali.

So far more than 425 people, within a span of 18 months, have been hanged to comply with the National Action Plan (NAP) to eradicate terrorism. However, the glaring facts are a glaring reminder enough to the state that these hardly have the deterring effect on crime and terrorism – all of which continue unabated if not, are on the increase.

Despite the constitutional guarantee under Article 9 of the Constitution the courts of the state dole out death penalties without following any due process nor fair trial. Right to life is a supreme and inalienable right, and any exception to it must be narrow and well -founded. The death penalty legitimizes an irreversible act of violence by the State and will inevitably claim innocent victims. As long as human justice remains fallible, the risk of executing the innocent can never be eliminated.