Do not hang Sarabjit

Do not hang Sarabjit By Farhatullah Babar
The News, March 21, 2008

The decision to put off for a month the execution of Sarabjit Singh, the condemned Indian national jailed in Pakistan since 1990, is welcome but the debate whether he should be executed or not will continue. Those who say that he should be executed claim that Sarabjit had confessed to his crime and the country’s highest court has upheld the conviction. But those who plead that his life be spared have no less a strong case.

Three issues need examination: the possibility of miscarriage of justice, the larger issue of the death penalty itself and the timing of the execution.According to the record, an Indian national was arrested in August 1990 near the Kasur border for trespassing. After nine days he was produced before a magistrate as “Manjit Singh,” an alleged RAW agent who had set off a series of bomb blasts in Lahore, Multan and Faisalabad.

Initially the trespasser confessed he was “Manjit” and admitted to his crime, but later denied it all during trial. The FIR filed was “blind” and did not mention any accused by name. He maintained his name was Sarabjit Singh and had often crossed the Kasur border to “smuggle” alcohol. He was, however, awarded the death penalty by the Anti-Terrorist Court in 1991 based on the original confession made before a magistrate, which was later upheld by the High Court.

Sarabjit’s family located him in 2000 and arranged a defence council for him through human rights networks. From his death cell the convict appealed to the Supreme Court, claiming that he was not Manjit Singh. He said he was Sarabjit Singh of Amritsar and that the prosecution had forced him to admit to a wrong identity. The Supreme Court dismissed his appeal in August 2005.

Unfortunately, our record of convictions on the basis of confessions alone is not very remarkable. Remember the high-profile murder of Hakim Muhammad Saeed in Karachi in the 90s and the confession of accused Amirullah before journalists and before the then prime minister. The prime minister was so impressed with the prosecution’s story and Amirullah’s confession that he ordered the out-of-turn promotion of the police officer, who superseded 40 senior officers. Later, however, Amirullah turned out to be innocent.

About two years ago the Supreme Court took notice of a case in which five innocent persons had been arrested on charge of abducting and murdering a woman. The five accused suffered imprisonment for several years before the woman was found alive and in jail in Gujrat. They were lucky to have escaped the hangman’s noose. If they could have been arrested, charged and jailed for murdering a woman that was alive, they could have been hanged too.

The principal accused in the Daniel Pearl murder case, Sheikh Omar Saeed, was sentenced to death and his appeal is still pending. Now the US says that another person who is in their custody, and not Sheikh Omar, beheaded Daniel Pearl. It seems unlikely that the new testimony coming from Washington will be rejected.

In his book, A Judge May Speak, Justice Khuda Bukhsh Marri laments how a 21-year-young student leader, Abdul Hamid Baloch, was executed in the late 70s for murder after being convicted by a military court. The name of the murder victim had twice been changed, besides many other irregularities in the trial process. Despite a stay against the execution by the Balochistan High Court Hameed Baloch was hanged. Justice Marri recalls how he still twists and turns at the trauma.

A former prime minister of Pakistan was actually hanged in 1979. One of the judges of the bench later publicly confessed that the hanging was a political decision, and not a judicial verdict.

All this makes a strong case, that in countries where the judicial process is prone to miscarriage and errors, or where domestic or regional politics are driven by vengeful compulsions, the death penalty should not be handed down too easily.

The worldwide trend is to reduce the number of offences that carry the death penalty, but in Pakistan the list of offences for which the penalty can be given has expanded. At the time of independence only treason and murder were punishable with death. Today more than two dozen offences carry the death penalty, including “blasphemy,” “attempting to wage war against Pakistan,” “attempted mutiny,” “possessing a dangerous drug” and “sabotage of the railways.”

It is claimed that capital punishment deters crime. But after over sixty years the capital crime rate, instead of going down, has gone up and the special and speedy-trials courts have, instead of ending crime, lowered the chances of citizens getting fair trials.

In nearly 110 countries the death penalty has been abolished in law or in practice, while nearly 90 countries still retain it. The abolitionists include the countries of the EU and developing ones like Nepal and Sri Lanka. It seems doubtful whether capital punishment has a link with the crime rate or with any particular society. It is the certainty of punishment and delivery of justice that brings down the level of crime, not capital punishment.

The Sarabjit case has echoed in the Indian parliament and New Delhi has sought clemency. About two years ago it was also reportedly raised in the Musharraf-Manmohan Singh meeting in Havana. The execution on the basis of confession alone can turn out to be a national embarrassment and cast shadows on relations between the two countries.

If the Indian convict is really a case of mistaken identity, it would be a gross miscarriage of justice if he is hanged. If he is actually a RAW agent, it would still be sensible to commute the death sentence. Reprieve can be employed to focus on a mechanism to mitigate the sufferings of one country’s nationals held in the jails of the other and help advance confidence and peace in the region.

It is indeed strange that the execution date was suddenly announced after nearly three years of limbo, and just when a democratic government is to enter office. Let it not be said that it was cynically timed to warn the new government against pursuing its vision of peace in the region. It is one thing when issues of peace are decided behind the scenes by those who want to hang every Indian crossing into Pakistan but quite another when public representatives are asked to pay the political wages for it by making it look like their decision.

The writer is a former PPP senator. The views expressed in the article are his own. Email: drkhshan@isb.comsats. net.pk