Daily Times

Recently, a special court comprising of Justice Waqar Seth, Justice Shahid Karim, and Justice Nazar Akbar, which was constituted to conduct a trial, under Article 6 of the Constitution of Pakistan 1973, of Retired General Musharraf, penned down a death sentence over charges of abrogating the Constitution of Pakistan in November 2007.

Out of three, two Justices agreed upon condemning him to death whereas the third Justice acquitted him of the charge of abrogation of the Constitution in 2007. It was for the first time in the history of Pakistan that a retired General, who had abrogated the Constitution, stood trial for his actions and received the death penalty. After 125 hearings in the last six years, the special court laid down its verdict; finding him guilty of high treason offence, which is punishable by the death penalty and/or life imprisonment, as embodied in the High Treason (Punishment) Act of 1973.

The verdict received an ovation from those who wanted the supremacy of civil liberties and the hegemony of the Constitution. The incumbent government gave an impression that due to him being a retired General and former president of Pakistan, he would be given a presidential pardon under Article 45 of the Constitution of Pakistan. The said Article gives power to the president of Pakistan to commute any sentence or grant pardon in a sentence to any convict at any stage. The question that needs consideration is why should only General Pervez Musharraf be considered for the presidential pardon?

The writer believes that the death penalty is a barbaric and medieval time punishment that should not be practised upon any human; even those convicted of heinous offences, such as high treason. However, in Pakistan, the death penalty is granted in 33 offences. At present, there are reports that more than 6,500 inmates across prisons of Pakistan have been sentenced to death. The reinstatement of the death penalty happened in 2014 after the Peshawar Massacre. Since then, 570 people have been executed. In the writer’s humble opinion, General Musharraf should not be the only one subjected to a presidential pardon. Instead, all those who have been facing death sentences ought to be given presidential pardons. The incumbent government’s intention to exercise Article 45 (in case, if the Supreme Court of Pakistan withheld Special Court’s death sentence verdict) must be for all death convicts to balance justice equilibrium. Those who have been facing a death sentence either did not have any counsel of their choice during the pendency of trial or their trial was completed without the fulfilment of fair trial norms.

The history related to the practice of Article 45 of the Constitution provided that the presidential pardon had rarely been exercised to pardon and commute a sentence laid by the court of law. For instance, General Musharraf exercised Article 45 of the Constitution in 2006-2007, to pardon a British-Pakistani, Mirza Tahir, who was convicted of murdering a taxi driver in Rawalpindi in 1988. His clemency plea was drafted and sent to the president by Prince Charles.

All death sentence inmates should be treated as special as General Musharraf

The former prime minister of Britain, Tony Blair, came on an official trip to Pakistan in 2006, wherein he discussed Mirza Tahir Hussain’s case with General Musharraf. Later on, the same pattern was followed by the former president of Pakistan, Asif Zardari, for granting a presidential pardon to his political allies convicted of minor offences. Before this, former president, Rafique Tarar, had also exercised the power of Article 45 in 1998 wherein the accused was acquitted of a charge of espionage.

In the writer’s view, all death sentence inmates should be treated as special as General Musharraf because the right to life is a precious natural right that cannot be taken away by the state, even in the rarest of rare circumstances. The death penalty is a barbaric medieval time punishment that has no value in the modern age where non-penal social engineering scheme is worthwhile to reform the social and criminal justice system. The cases of General Musharraf and another death row inmate, Muhammad Iqbal, alias “Balli” are alike.

Generically, the writer submits that General Musharraf should not have received a death sentence at all even if strong evidence had been adduced against him by the prosecution team. The death sentence is not the right method to evolve a democratic system and democratic norms. No doubt, it has never been in the history of Pakistan that a military dictator has faced trial or been sentenced to death. Despite this, the death sentence ought to be condemned.

If the incumbent government plans for a presidential pardon, all death row inmates shall be treated alike and their clemency pleas should be decided on humanitarian grounds.

The writer is an advocate based in Lahore