My contention is if a person is to face trial with fair means fulfilling all international rules and fulfilling the ingredient of Article 10-A of the Constitution of Pakistan prescribed for a trial, hardly a person can then be sentenced to death by the trial courts of Pakistan. The reason for my contention is that handing down the death penalty is too high a penalty in the trial courts and furthermore it appears to me that the trial courts are too liberal and freely mete out the death sentence to people put to face trial.
The author has noticed that for, instance, if the trial court administers 10 cases of offences punishable with the death penalty, the trial court, out of those 10 cases, will hand down the death penalty in nine cases. Furthermore, the Criminal Code of Procedure (CrPC, 1898) guarantees that all death sentences handed down by trial courts must go to the High Court for confirmation. Of these decided cases sent to the High Court for confirmation of sentence almost seven will result in acquittals and/or incarceration for life. The question then arises: can we trust such a judicial system where the number of sentences swings from one extreme to another? In my opinion, the death sentence is imposed unnecessarily by the trial courts. This clearly points towards a full blown crisis in the trial courts of Pakistan. There are various reasons behind this kind of anomoly. To me it appears that the trial courts are reluctant to take full burden on their shoulders and wish only to get away with trial without ensuring the ingredients of fair trial. Furthermore, it is arguable that the trial courts of Pakistan hand down the death sentence in cases that do not call for it and inflict undeserved mental agony to those who are faced with such a sentence.
It is the need of the time to place a moratorium on the death penalty in Pakistan, which was lifted last year in the awake of the Peshawar massacre in the Army Public School (APS), killing more than 140 children. The government of Pakistan, in consultation with all the stakeholders, reinstated the death penalty after almost five years of a complete ban. The last PPP coalition government, in 2008, under immense international pressure from international human rights groups, especially the United Nations, placed a moratorium on capital punishment. Since the reintroduction of the death penalty in Pakistan more than 200 inmates have been executed and these people were those who were convicted for a single murder. Hardly a single inmate convicted of terrorism has been sent to the gallows by the civilian courts.
This article focuses on the civilian courts system, therefore I am ignoring the structure and procedure of the military courts, which were introduced last year by the government through a constitutional amendment. However, the government last year reinstated the death penalty with the view of combating terrorism and executing convicted inmates of terrorism — those who had been languishing in various prisons in Pakistan, particularly in Punjab. The government’s intention to send terrorists to the gallows has proven to be a failure over the last one year as a majority of those who have been sent to the gallows were not convicted of brazen acts of terror but just single murders. They might have been awarded the death sentence erroneously as the trial courts’ approach is too liberal and they often award the death sentence unnecessarily.
Keeping the death sentence in the criminal justice of Pakistan does not serve a deterrant purpose at all. The trial courts of Pakistan, in my opinion, lack the propensity to conduct a fair trial to ensure that innocent and falsely implicated people are not sentenced to death. The leading nations of the world have already abolished capital punishment and strong sentiment against it is in existence in nations that have it in their criminal justice system. The countries of Europe abolished it years ago except for Belarus. The majority of states in the US have abolished it as well and the remaining states slowly and steadily are moving towards a point where the general public will stop supporting it. The international community has quite often asked the government of Pakistan to place a moratorium on the death sentence as it breaches human dignity as well as being the most barbaric punishment, which, in the modern era, lacks support.
I truly believe that the reinstatement of the death penalty by the government of Pakistan to combat terrorism lacks thoughtfulness and strategy. Since its reintroduction the ratio of terrorism related activities in Pakistan to date have not declined at all. Every day, people commit heinous crimes across Pakistan despite the death penalty being in practice. When will we understand that the rope is not a social saviour? The government of Pakistan should really think about placing a ban on capital punishment and introduce policies and schemes that debar the ratio of crimes across Pakistan, including heinous crime of terrorism. It is not easy task to introduce a legal framework that actually helps to minimise terrorism and heinous offences. The legislature also needs to amend those laws dealing with terrorism that have proven ineffective. I think there is a need to amend Sections Seven and Six of the Anti-Terrorism Act (ATC) and the judicial system to interpret the scope of them. It has been observed that the legal jurisprudence concerning terrorism is too narrow and is rather unclear. The judiciary should be compelled to interpret the laws concerning terrorism extensively so that heinous crimes of terrorism might not be confused with ordinary criminal acts.
Capital punishment should be banned as soon as possible. It is worthwhile to mention that capital punishment is medieval and a barbaric punishment that is no longer effective enough to debar the ratio of crimes in society. The reintroduction of the death penalty will not and has not helped the authorities to cater to terrorism in Pakistan. It is on record that terrorism related activities since 2014 have not decreased and therefore placing reliance upon capital punishment for combating terrorism is not an effective argument. The countries that abolished the death penalty years ago have a lesser crime rate when compared to countries that still practice it. There is a need to introduce a legal framework order that ensures only culprits of terrorism be punished instead of falsely implicated people or regular criminals.
The writer is an advocate of the High Court based in Lahore. He can be reached at greenlaw123@hotmail.com