Will the Judiciary in Pakistan Deliver Justice to the Country’s Death Row Prisoners As it Determines Abdul Basit’s Fate Today?

By SANAM MAHER | 1 January 1970

It took Iqbal Bano, a 60-year-old resident of Lahore, an hour to piece together the story of her son Khizar Hayat’s life for the past fifteen years. Hayat, a police officer from the village of Khangah Dogra outside Lahore, was arrested in the city in 2001 and charged with the murder of Ghulam Ghous, a fellow officer.

On 1 August, when I spoke to Bano about the case over the phone, she told me that she believed that Jehangir Jawed, a man who claimed to be a saint, was to blame for her son’s troubles. “The pir [saint] saw that we are khatay peetay log—well-to-do people. He wanted my son to leave his wife and children and marry his daughter.” Bano alleged that her son had been under Jawed’s “influence” since 1996. She added that Hayat had kicked his wife and children out, and sold the family land so that he could procure money to build a home for his spiritual guide.

Frustrated, Bano approached Ghous, Hayat’s friend, in 2001 and asked him to meet Jawed. “I wanted him to scare this man a bit, to shake him up,” she explained. A few days later, Ghous was shot dead and his body was dumped outside his neighbour’s house near Lahore’s Shad Bagh area. Bano was at home watering her garden when she received a phone call informing her that Hayat had been arrested and charged with the murder.

Before her son’s first appearance in court in July 2002, Bano had paid a lawyer Rs 150,000 to defend him. The lawyer never turned up at the hearing. The prosecution had lined up witnesses who said they saw Hayat shoot Ghous while the police officials claimed they had arrested Hayat as he was trying to flee from the city. “I stood alone before the judge and I swore on the Quran that my son would never kill his friend,” she said. She told me that the judge took pity on her and promised to review the case before the next hearing. The delay did not help. “At the next hearing, I appeared in court to find that the same judge would not be presiding over the case,” said Bano. That day, in April 2003, Hayat was sentenced to death, joining more than 8,000 prisoners who are on the death row in Pakistan.

Bano persisted with her son’s appeals, albeit without success; she hired another lawyer for Rs 50,000, but he was unable to argue her case successfully. She was then approached by a public defender who promised to save her son for Rs 20,000. “I was so happy and hopeful that I took him two kilos of mithai—sweetmeats,” she recalled. But on the day of the hearing, the lawyer clammed up, Bano said, and did not make any of the arguments they had previously discussed, in court. The death sentence was upheld.

In 2010, Bano met Sarah Belal, who heads a not-for-profit advocacy organisation called the Justice Project Pakistan (JPP). JPP was established in Lahore in 2009 and provides pro bono legal and investigative services to prisoners deemed vulnerable—often those without the financial means or clout to win their cases. It focuses in particular, on those prisoners who are facing the death penalty, have been victims of police torture or are mentally ill.

Shortly after the moratorium had been lifted from the death penalty in December 2014, Belal had stated that JPP had encountered “consistent abuse of procedural safeguards” during trials held under both civilian and military courts. "The people of Pakistan think that when you’re executing terrorists, you'll be killing those who were responsible for the Peshawar attacks. What you will [largely] see will be regular criminals—people who are accused of murder, robbery, property disputes—being executed."

The indifference that the lawyers initially engaged by Hayat’s family had displayed in his case may not be an aberration either. Namra Gilani, who works with the JPP and is one of Hayat’s lawyers now, told me, "It is very common for lawyers—especially state-appointed lawyers—to behave in this way. They are paid a pittance, sometimes just Rs5,000 per case, so something like this is more common with them. However, we have also found that if a lawyer takes on a case and they feel there is low chance of acquittal, they won't bother showing up in court or doing their due diligence with the case."

Usually, when Bano speaks of the lawyers who have failed her thus far, her indignation and anger spills out in rapid fire Punjabi. But when she spoke to me about meeting Belal, she paused. “The first thing Sarah said to me was, ‘Amma ji, now you are not going to give your money to any more lawyers,’” Bano said.  She drew in a breath. The narration that followed was not filled with anger, it was interjected by sobs.

According to Hayat’s jail record, he started exhibiting “psychiatric symptoms” in February 2008. In September that year, he was admitted to the hospital at Kot Lakhpat jail in Lahore for over a month. He was diagnosed as a paranoid schizophrenic and prescribed anti-psychotic medications.  After the stay on executions during the month of Ramazan was lifted on 24 July this year, Hayat was the first of two prisoners to receive his “black warrant”, or execution orders. His hanging was slated for 16 June.

 

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Pakistan’s informal moratorium on the death penalty was instituted by former president Asif Ali Zardari in November 2008 and expired in June 2013, a month after the government of Prime Minister Nawaz Sharif came to power. Soon after, the Sharif-led government hinted at lifting this moratorium, reportedly in a bid to crack down on militancy. The subsequent outcry from human rights organisations and the possible threat to a lucrative deal from the European Union that offered Pakistan duty-free access to its markets—and hinged in part, on the country’s human rights record—ensured that the moratorium remained in place.

However, on 17 December 2014, a day after an estimated 150 people, including 134 children, were killed during an attack on Army Public School Peshawar, Sharif announced that the moratorium on the death penalty would be lifted for all terror convicts. “I don’t think people who slaughter others deserve any sympathy,” he asserted in January 2015. 

In March, the government stated that all prisoners who had been charged with capital offences would now be eligible for execution as well. These offences, 27 in total, include crimes such as blasphemy, robbery that results in death and kidnapping for ransom. Since December 2014, 209 people have been executed.

As Sultana Noon, the Pakistani researcher for Amnesty International—a non-governmental organisation that focuses on human rights—had noted in The Express Tribune on 1 August 2015, "What makes the use of the death penalty in Pakistan particularly troubling is the many violations of fair trial rights. The judicial system is riddled with flaws—defendants often lack adequate access to legal counsel, ‘evidence’ extracted through torture is used as a basis for convictions, corruption is rife, and groups protected under international law, such as juveniles or persons with mental or intellectual disabilities, are often sentenced to death." 

Among the names that Noon had cited in her article as examples of the “human tragedy behind Pakistan’s grim execution statistics”, was Hayat’s. His lawyers at the JPP say that he is entirely unaware of his fate, and believes that the preparations being made for his execution—the meetings with lawyers and family—are in fact, for his acquittal. “Hayat’s last medical record from 2014 states that he is disoriented in time, place and person, and is taking medication as his mental condition is so poor,” Maryam Haq, one of his lawyers and the head of legal affairs at JPP, told me.

“For the last two years I notice the following features—loosening of association present; he keeps distorted speech; he keeps irrelevant talk to the extent that his neighbouring prisoners become hostile,” the medical officer examining Hayat on behalf of the jail authorities noted on 5 March 2014. The medical officer concluded that, “He [Hayat] is deluded about [sic] psychotic religious personality.”

Hayat’s term in jail has not helped his condition. “He lives in solitary confinement after he was brutally beaten by inmates in 2009, and many times when we meet him, he is covered in his own feces,” Haq said. Whenever Bano visits her son in prison, she told me, he asks for Jawed saying, “He is my father, he will release me.” “If I took him [Hayat] any food, he would throw it at me and if he saw his children, he would say they are not his,” she said, before adding “He told me that he is mining gold from the jail’s grounds and making coins out of it like King Solomon.”

However, Hayat’s mental condition has not granted him any reprieve from the gallows. “As far as the law is concerned in Pakistan, there is no provision stating that you cannot execute a person who is mentally ill,” Haq explained to me. “If you are mentally ill at the time of committing the offence, that issue is meant to be raised at the time of trial and the law provides for a complete defence or acquittal.”

Hayat’s mental condition was not discussed at either his trial in 2003 or during the subsequent appeals. “The laws dealing with insanity are completely underdeveloped in Pakistan. Most defence lawyers don’t even bother to speak to their client. Thus they are not able to determine whether the client is mentally ill and the issue doesn’t get raised at trial,” Haq told me. 

By June this year, Hayat’s lawyers from JPP were scrambling to operate within the grey areas of the law in order to save him. The jail manual, a set of rules followed by all prisons in Pakistan, mandates that before any execution, there must be a medical examination of the man or woman who has been sentenced to death. “It is the irony of all ironies that in order to be executed, you must be physically and mentally fit,” Haq noted wryly. Additionally, the prisoner must be given the right to execute his or her last will, a right that, Hayat’s lawyers argued, he has not been cognizant enough to exercise.

In July, his lawyers appealed to the court and asked for time to appoint a guardian for Hayat’s will. The Lahore High Court issued a stay in the case and directed the superintendent of the jail to submit a report on Hayat’s latest medical status. The report that he filed consisted of just a handful of words. According to Haq, it said, “He is stable. He eats and sleeps. He is fine.” The request for guardianship was dismissed.

Changing tack, the lawyers then presented the court with a letter signed by 15 doctors. This letter stated that there was no way Hayat could have displayed the kind of symptoms that were noted in the jail’s medical report in 2014, only to be “fine” now. The court stayed the execution once more and asked for the superintendent to submit Hayat’s latest medical report, with comments. According to Gilani, Hayat was examined by a medical board at the Punjab Institute of Mental Health (PIMH) and the doctors there determined that he is suffering from psychosis. “The jail’s doctor–who is not a psychiatrist–insists that Hayat is not suffering from schizophrenia and only presents depressive symptoms and is partially lucid,” she told me. Hayat’s next hearing will take place on 26 August and lawyers at the JPP say that there is no way of knowing whether the PIMH report will trump the jail’s assessment. “Hayat’s fate depends on what the judge is thinking at the hearing,” Gilani said. “It is unpredictable and from what we at JPP have seen so far, if they want to get rid of someone, they will find reasons to do it.”

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Without easy access to jail records, there is no way to ascertain how many other prisoners on the death row could be suffering from mental illnesses. Haq described these records as “a black hole for information” and said that it is near impossible to get access—it took the JPP three years to obtain all of Hayat’s medical records. “It is very possible that people with mental illnesses have been executed,” he told me.

Less than three hours from Lahore, Abdul Basit, a former administrator at a medical college, who has been charged with murder and was given the death sentence in 2009, has been grappling with another kind of disability. “In 2010, whenever I would visit my son, he would tell me his head was splitting and he couldn’t shake his fever,” Basit’s mother Nusrat Parveen, who lives in Faisalabad, told me. “Soon it got to the point where he could not walk without the help of other prisoners.” Parveen said that Basit was finally taken to the district hospital in August 2010. At the hospital, he began to have “fits” and was diagnosed with meningitis.

The authorities contacted Parveen when Basit was taken to the hospital. She recalled, “When I reached the hospital, I saw that his face was skewed to one side and he was having seizures.” The doctor told her that her son only had two hours to live. After three weeks of remaining comatose, Basit regained consciousness. However, he had lost all movement in his body from the waist down.

In April 2012, a medical board concluded that Basit was suffering from paraplegia and the long-term complications of spinal atrophy. Shortly after Hayat received his black warrant, Basit, who is 43 now, was told he would be hanged on 29 July. The lawyers from JPP—that has taken on Basit’s case—struggled to answer one question: how was it physically possible to hang a man who cannot walk? “The execution of a paralysed man will constitute a cruel and unusual punishment, violating the fundamental right to human dignity enshrined in the Constitution,” Basit’s lawyer Azam Nazir Tarar told the Lahore High Court in July, winning a stay in the execution.

Parveen told me that her son’s illness is degenerative. At the moment, she said, he is unable to see clearly or use either of his arms fully. “Basit will not be able to pass the jail’s own test to determine a convict’s fitness before he is executed,” Haq told me, and added, “Ultimately, if  [the execution] goes ahead, it is murder.”  A medical board that examined Basit this month concluded that he is permanently paralysed. The report that summarised this examination noted that “he is having 0/5 power in his lower limbs and 4/5 power in upper limbs. He is bed bound with urinary and fecal incontinence.” According to the jail manual, “The condemned prisoner shall mount the scaffold and shall be placed directly under the beam to which the rope is attached, the warders still holding him by the arms.”  Basit does not meet this criterion since he has been rendered incapable of either walking or standing at the gallows. “Am I hopeful that men such as Abdul Basit won’t be hanged? Yes, always. But realistically, I cannot say what will happen, because as far as executions are concerned, everybody is gunning for one after another,” said Haq, before concluding,  “It’s a bloodbath.”

Gilani told me that JPP has been independently conducting research to see if there is any precedent for the execution of a physically-impaired person in Pakistan. “Former prisoners and those in the prisons have told us stories of when this happened last,” Gilani said. In one instance, an execution was reportedly botched when the rope broke and the prisoner fell, breaking his legs. According to the prisoners who were there at that time, the man was made to sit and the rope was fastened around his neck once more. In another instance, the inmates claimed that an old man was brought to the gallows on a stretcher and held up by jail officials, as he could not support his own weight during the hanging. Gilani also told me that that according to an executioner she spoke to, “They will hang him (Basit). They have done that before and they will do it again.” Basit’s fate will be determined in a hearing today.

 

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Hayat and Basit can both appeal to the president of Pakistan for mercy, under Article 45 of the constitution. This article allows the president to forgive or commute a sentence on the basis of any grounds. As human rights lawyer Asad Jamal put it, “Aisi zabardast kism ki power hai Article 45 mein, jaisay ke kissi badshah ke powers—The scope of article 45 is so wide that it is like giving the president the powers of a king.” However, not a single mercy petition sent to the president since December 2014 has been approved. In such a scenario, Haq told out, “You have to ask how those petitions are being reviewed.”

Legally, the jail authorities are duty-bound to submit a mercy petition on behalf of each prisoner who does not have legal counsel after his or her appeals have been exhausted. The interior ministry must receive all the relevant documents and appeals before it reviews the material and pass it on to the president’s office. However, Haq told me that most mercy petitions that are submitted by the jail authorities on behalf of prisoners who are unable to procure a lawyer contain three perfunctory lines: “The prisoner’s Supreme Court decision has come through. He has been sentenced to death. Please consider his case for mercy.”

In Basit’s case, the family submitted a mercy petition in 2013. In June 2015, after receiving a phone call from the interior ministry that requested Basit’s medical records, they travelled from Faisalabad to Islamabad to present the documents. They were told that the records had not been correctly attested. “The jail refused to give them attested records and his [Basit’s] mercy petition was rejected,” Haq said. Three days later, the family received another phone call telling them that Basit’s black warrant had been issued.  “Basit’s family received word of the warrant on a Friday and he was scheduled to be executed on Monday, 29 June.” The family could not challenge the order since the court would be shut during the weekend. “This was done deliberately,” claimed Haq. 

Both Hayat and Basit’s families believe the two men have suffered enough for crimes that they did not commit. “My mother-in-law and I sold our jewelry in order to pay our lawyer Rs 250,000, but we didn’t know he was in cahoots with the other side’s team,” Basit’s wife, Musarat told me. “The day that the judgement came through, he [the defendant’s laywer] crossed the courtroom to congratulate the other side’s lawyer.” Musarat has given her two children the impression that their father works outside Pakistan. She told me that they do not get to meet him and she does not want to tell them if he is hanged. “When they announced that the moratorium would be lifted I didn’t feel scared for my husband,” Musarat said. “I thought they would get the terrorists.” Basit’s mother added, “They tell me that this is the law in Pakistan. They say we must abide by it. But if this is a man-made law, then why can’t they change it? My son has spent eight years in prison already. Is this any less than death?”

Meanwhile Bano expressed her anguish over the fact that her son has been kept alive for 15 years, but may still be killed. “Isn’t this twice the punishment?” she asked. According to a report by Reuters—an international news agency—less than one in six among those who have been executed in Pakistan since December 2014 were linked to militancy. When I told Bano about this statistic, she was not surprised. “There are no terrorists being hanged. It is men like Khizar [Hayat] with children and families. The families have to care for the prisoner—take them food, medicines, clothes, and find them lawyers and wait for hours in court—even if they have lost their breadwinner. This is not justice.”

Update: On 25 August 2015, Abdul Basit's hearing did not take place as the court ran out of time. His hearing has been adjurned till 31 August. The judge hearing Khizar Hayat's case, that was scheduled for today, is on leave. His case will now be heard on 8 September. 

An earlier version of this story incorrectly stated that 209 people have been executed in Pakistan since December 2015. The Caravan regrets the error.

Sanam Maher is a Karachi-based journalist, and tweets as @SanamMKhi.

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