Confusion clouds Pakistan’s 'terrorist' executions

ISLAMABAD — Manzoor Hussain’s voice breaks as he talks about the conditions that his brother lives in, and the struggle he has gone through to try and find justice.

"We want only justice. There should be investigation on this: How can a 14-year-old carry out such a murder on his own?" he asks me, beseechingly.

Manzoor’s youngest brother, Shafqat, now 24, is currently incarcerated at the Central Jail in Pakistan’s largest city, Karachi, where he has been on death row for more than 10 years, after being convicted for murder and sentenced by an anti-terrorism court to be executed by hanging.

Shafqat was 14 when, in 2004, he was arrested and convicted for attempted kidnapping and murder, the case resting on a single piece of evidence: a confession, which he and his lawyers say was obtained under torture.

According to court records, Shafqat told the judge he'd confessed under pressure and torture. Neither the trial judge nor the teen's state-appointed attorney pursued those claims.

"When I met my brother, he actually [urinated on] himself," says Manzoor, recalling seeing Shafqat again for the first time after his arrest in 2004.

"His nails had been removed, and he was just saying to me that he was innocent and needed help. They burned cigarettes on him. I saw the marks."

Shafqat was tried as an adult — police reports indicate he was 23 years old at the time. Interior Minister Chaudry Nisar in January announced a stay of execution while Shafqat's case is reviewed, though he remains on death row.

He is one of thousands of people who have been tried in Pakistan’s Anti-Terrorism Courts (ATCs) since they were established in 1997.

Since Pakistan lifted its moratorium on executions in December, it is these courts whose convictions are sending people designated “terrorists” to the gallows, under a new government policy announced following the Dec. 16 attack on a Peshawar school.

More than 141 people were killed in the deadly attack, making it the deadliest strike by the Pakistani Taliban (Tehrik-i-Taliban Pakistan, or TTP, claimed responsibility for the attack) in Pakistan’s history, and marking an apparent turning point for the state’s counterterrorism policy. Among other steps, Prime Minister Nawaz Sharif announced that the state would begin executing "terrorists," and that military courts would be established to try civilian terrorism suspects.

Since then, Pakistan has executed 24 people, all of them designated "terrorists" by the courts. Of those, nine belonged to the armed sectarian extremist group Lashkar-e-Jhangvi, eight were convicted of plotting to assassinate former President Pervez Musharraf, and three were convicted in cases related to other attacks. Four of those hanged, however, did not have any known connection to state-designated "terrorist" groups, nor did the prosecution in their cases attempt to make such a connection.

Pakistan is currently host to the largest recorded death row population in the world, with at least 8,237 inmates incarcerated in jails across the country, some awaiting execution for more than 20 years.

Pakistan instituted a moratorium on executions in 2008, and, since then only one man had been hanged (in a case related to the Army) as of late December, when the measure was lifted.

It remains unclear, however, how the process of designating "terrorists" for executions works — whether it is based on convictions in the ATCs or on other evidence, lawyers and rights groups have told Al Jazeera.

Initially formed in 1997, in response to an increase in cases of armed attacks against the state, the ATCs have since been used by police to try a wider array of cases, as such courts make it easier to secure convictions, obtain non-bailable warrants and also ease the restrictions on forced confessions, says Sultana Noon, Pakistan researcher at Amnesty International.

"Certainly what we're seeing and have seen is that there are people who have nothing to do with terrorism who are charged and convicted in the ATCs. I have seen cases of Ahmadis [a minority sect of Islam declared non-Muslim under Pakistani law] who have been charged with blasphemy, but are charged in conjunction with the ATA," she told Al Jazeera.

As of July 2014, ATCs were hearing more than 17,000 cases across the country, and conviction rates hover between 25 and 40 percent.

The ATCs are empowered to try cases related to bombings and murder, but have also been hearing cases of kidnapping, drug trafficking, rape and other crimes, under a provision that allows for cases to be heard if they are deemed to “create a sense of fear or insecurity in society.”

Currently, at least 818 people on death row were convicted under the Anti-Terrorism Act (ATA) and appear to be liable to be executed, regardless of the nature of their crime or their connection to State-designated “terrorist” groups, according to a report by Justice Project Pakistan, a Lahore-based legal rights organization.

Noon, who has been a rights investigator in Pakistan since 2008, says that “torture is endemic” to the way the Pakistani police investigate crimes.

In the country’s regular courts, confessions made to police officers are inadmissable as evidence. For them to be considered as valid evidence, they need to be made in the presence of a judicial magistrate, according to the Code of Criminal Procedure. The Anti-Terrorism Act of 1997, however, loosened that restriction in cases brought before the anti-terrorist courts, allowing police officials to record legally valid confessions. 

"I think the most alarming issue with the ATCs has to do with torture," Noon says.

"Torture is systematically used by the police across Pakistan and the problem with especially with ATA legislation is that it allows for confessions that are made in front of the police to be used in court."

This, she says, allows for cases such as Shafqat’s to occur — he  alleges he was tortured to confess to a crime he did not commit, and because he was being tried in an ATC, the confession stood.

"Your access to justice depends on your economic background. So for example if you are too poor to get a lawyer of your own choice, you get a state appointed lawyer. State appointed lawyers are given less than 10,000 Pakistani Rupees ($100) to represent you in the entire case, and a trial can go on for years," Noon said.

Sarah Belal, lead counsel at JPP and currently Shafqat’s legal representative, says public defenders rarely make the effort to get to know their clients — a key reason why, for example, Shafqat’s status as a juvenile was not brought up in court.

"It's considered bad practice for the lawyer to meet the client in jail," she says, citing eight years of criminal law experience in Pakistan.

"So the only time state-appointed attorneys are meeting clients is the few minutes before they are presented before the court. If your client is mentally ill or is a minor or has other issues, that is not enough time to gauge those issues or mount those defenses."

The case of Shoaib Sarwar, a death row inmate in Rawalpindi, is illustrative of some of the issues that have arisen as a result of the government’s decision to selectively resume executions for those designated "terrorists."

Sarwar, who was 17 at the time of the killing, was convicted in 1998 for having killed a man, Qais Nawaz, in a case that did not involve links to any armed groups. 

He was tried in a regular court, not an ATC, and was given the death penalty. In 2006, he exhausted his last right of appeal at the Supreme Court, although a mercy petition with Pakistan’s president, as per law, remains pending.

In late January, however, Sarwar’s trial judge issued a death warrant for the convict, commencing a process that saw him shifted to the Adiala jail for execution. His family was informed that they were to meet him, as he had 48 hours to live.

Malik Mushtaq, the superintendent of Adiala jail, however, refused to hang Sarwar, arguing that he did not meet the government’s policy for "terrorist" executions.

The case went back and forth for days, while Sarwar’s fate hung in the balance, before the president issued a stay order on the execution earlier this month.

Others, however, have been less fortunate: Last week, two men, Muhammad Riaz and Muhammad Fayyaz, were hanged in Mirpur, in Pakistan-administered Kashmir, for murder in another case that was not heard by an ATC. In Karachi, Behram Khan, a man who was convicted for having killed a lawyer and tried in an ATC, was hanged on Jan. 13, while the next day Zahid Hussain was hanged for killing a policeman in another case unconnected to state-designated “terrorist” groups.

Belal’s firm represents several death row inmates, and she says that the uncertainty in these cases shows the lack of clarity in the government’s approach to judicially taking human lives.

"[Shoaib Sarwar’s] case shows how fragile this moratorium is, because the government policy has not been communicated to the rest of the stakeholders who are involved in carrying out executions, including provincial home departments, jail departments, and the courts themselves. So you have the lower judiciary completely unaware of the notification of the federal policy, and misunderstanding their role in implementing that policy," she says.

In such a situation, it’s no wonder that death row inmates across the country have been living in fear that they, too, could be next, regardless of the nature of their conviction or crime.

"When we heard the news about the lifting of the moratorium, fear prevailed throughout the cells," says Aftab Bahadur, who was 14 years old when he was convicted for murder and has spent the last 23 years on death row.

"The sense of terror made the atmosphere darker. Afterwards, when the executions started [here] at Kot Lakhpat jail, everyone here was undergoing a sort of mental torture."

Bahadur, who maintains his innocence, is incarcerated at Lahore’s Kot Lakhpat jail and says his confession was obtained under torture. In the last several years, he has been summoned to the gallows several times, but lawyers have so far been successful in obtaining last-minute stays of execution.

"During the last 23 years of my imprisonment, I have received death warrants so many times that I can't remember the exact number. Obviously, it feels horrible whenever the warrant has been issued," he says.

"We start to count down [to our execution] which itself is painful and nerve-wracking. In fact, we die many times before our death. In my personal experience, nothing is more dreadful that waiting to die."

For Manzoor, Shafqat’s brother, the fight for justice goes on, as his brother remains incarcerated, and under threat of being hanged.

"I want to say this to the whole world: Is this child a terrorist? He has not attacked the army, or the government or anybody. This is the height of injustice. They give these sentences to innocent people. The guilty people, they don't even look towards them, for fear their eyes will be torn out," he says.

"These laws are only there for the poor people, they are not to be applied against rich people. If he was a Bhutto or a Zardari or Sharif [all prominent Pakistani political families], he would never have been tried this way. But his last name is Hussain, and everyone sees him as Shafqat Hussain Ghareebzada."

Ghareebzada, the last name Manzoor bestows upon his brother, translates to "son of the poor."