Justice or Injustice Through Death Penalty
By: Mian Muhibullah Kakakhel
Senior Advocate, Supreme Court of Pakistan
Death Penalty for heinous offences like murder waging war against the state, mutiny and highway robberies etc; being an important principle of pre-Islamic, Islamic and modern Criminal Jurisprudence could all together be brushed aside from the statutes and holy religious codes. Dictators and Tyrants have always found refuge against mass unrest and threat to their despotic rule in the statutes containing death sentences.
Death sentence to rivals or staunch political opponents has always been a favourite verdict of the rulers to exterminate their leading political and potential opponents by adopting unfair but seemingly judicial methods of assassination.
Death sentence however, has always been very vehemently and rhetorically pleaded against by reformist philosophers. The argument against death sentence put forward by these philosophers and social reformers mainly is that there is always an error of judgment and every case in which a man has been sentenced to death, there is present a probability of the sentence having been awarded erroneously both by error of law and error of human judgment. In my view there has always been a very convincing and over vehelming possibility that although the death sentence is awarded in accordance with law but it is not in accordance with justice. At page-539 of his monumental book �Fundamental Law of Pakistan� Mr. A.K. Brohi writes that our courts are courts of law and not the courts of justice. �The judges are often heard in our courts of law declaring their helplessness in the face of law to be able to do justice, how often do we not often hear it said�. �We must take law as we find it, the result we have reached is one which we could not very well have avoided. We are only concerned with what law is and not with what it ought to be, if this leads to an unjust result this is a matter for the parliament, not for us. These and such other observations that one discovers in the judicial pronouncement of our courts serves to point out what is really at stack�. Then by following the democratic principle of majority judgment to execute a human being could not be a natural result of a collective judicious exertation of faculties of mind. It is a matter of common knowledge that the majority view in elections has quite oftenly been unrealistic rather fallacious even in the most modern countries.
History is full of some very notable and notorious executions found not only unjust but illegal and effected only to get rid of political or religious inimical entities. Thousands of prophets to lacs of political enemies to millions of Military men have been done to death on one pretext or the other by seemingly legal processes but which executions have proved to be unjust or still controversial. A.K. Brohi writes �but then even honest judges are only honest men of flesh and blood men who are heir to all the ills that men suffer from, ills to which the whole of the man kind is a prey. Extra judicial factors do some time operate and where as some of these have reference to the besetling sins inherent in the Constitution of the human mind, there are others that have reference to the nature of the system itself. Judges are called upon to appeal to the artificial standards of judgment and in the conflict of view between them it is the majority view that is made to prevail, a view which need not be a valid view to take of the case before the court ��.. but the judges contradict each other, they contradict themselves-not always on different occasions. Their real motives do not always square with their expressed reasons�.
Death penalty has been done away with by many countries following the Philosophy of error of judgment and human right to exist. Death sentence has found favour with all Rulers of Pakistan like many other backward countries of the world. Award of death penalty was on the increase during the period of 1977 to 1988 of General Zia’s regime(Pakistan).
This sentence could not be pleaded for in a country of great political vicissitudes, economic decline and moral degeneration. It could also not be a just legal pronouncement in a country where the evidence brought forward by the prosecution is generally not unimpeachable, where 95% of the cases are acquitted because of questionable character of eye witnesses and the doubts existing in the prosecution theories, the rest of five percent cannot be convicted by the same generally unacceptable words of those mouths which are a part of a society where 95% of the words of the mouths of the witnesses are disbelieved by the courts.
This is also a common observation of the Bar Members that almost all the people of our country do not like to come forward to give an eye witness account of the occurrence of murder or robberies, consequently false charges against suspected enemies are brought by the relatives of the deceased on the basis of strong suspicions and these relatives even swear in the witness box to give evidence of a remotely vividly witnessed occurrence. The law is clear, even the statement of one witness which per chance may find support from other circumstances like motive, recovery of blood or empty cartridges from the place of occurrence may lead an innocent person to gallows to be hanged till he is dead. Is this justice or murder through judiciary? Is not this the way the judges are made to act as mercenaries.
In our countries like India and Pakistan even the offences carrying capital punishment are simply investigated by local police officials who are responsible for not only its investigation but also its success. Confessions are obtained through third degree methods hence majority of the confessions being involuntary are retracted by the accused during trial. The police quite oftenly introduce stock witnesses in an un-witnessed occurrence and tutor the witnesses into making the F.I.R. by carrying out preliminary enquires prior to the registration of a case. Statements during investigation and even dying declarations are recorded by Police of their own accord in confirmity with medical evidence. The notoriety of police needs very little mention of it. Can the questionable integrity of a police officer be accepted to deprive a man of his life- so precious to him and to man kind?
We have also observed a tendency in the complainants, in murder cases to substitute the real offender by the innocent due to many fold reasons not easy to capitulate by the courts. Then the complainants are also inclined to rope in as many persons as possible of the opposite party by throwing a very wide net around them. This tendency has been given vent and protection by sections 34 and 149 of the Penal Code of Pakistan, India and other countries. In 99% of the cases innocent persons are roped in with real culprits and the courts and the courts can do nothing but to try them and execute them if the record of the case so recommends. In many cases of highway robberies and undetected crimes the police very aptly puts the noose around the neck of any person it fits in. Irony of fate is that the prosecution counsels make efforts to the best of their capability to push even a proclaimed innocent to gallows. The law does not have any compensation nor can it provide any if some body has unjustifiably been deprived of his life.
It is recommended that the death penalty be declared as an offence against humanity by the United Nations and the Member States may be required to expunge the death penalty from their statutes. The declaration of human rights by the United States may be suitably incorporated with a clause barring death penalty in the whole world. The member States may supply a clause to the chapter on Fundamental Rights in their Constitutions abolishing the extermination of mankind through unscrapulous enactments containing death sentences.
The judgment in the case of execution of Prime Minister of Pakistan Mr. Zulfiqar Ali Bhutto authored by Lahore High Court directly and upheld by the Supreme Court of Pakistan is a certified black spot in the legal literature of the country. It was confirmed by the judges including the Chief Justice of Supreme Court of Pakistan Dr. Naseem Hassan Shah after retirement and after the death of General Zia Ul Haq, the then Dictator who stage managed the drama of judicial murder of Mr. Bhutto that they had wrongly awarded and confirmed the death sentence to Mr. Bhutto. (Reference may be made to the statement of Ex. Chief Justice Naseem Shah). The judgment was upheld only by a majority of 3 to 4 (PLD 1979 Supreme Court Page 53). Had Mr. Bhutto not been hanged he would have been the Prime Minister again which is evident from the fact that his people’s party won the elections for 3 more terms.
In such social conditions and existing circumstances the sections of law providing death penalty need immediate expunction from the statute books. Till the time this holy work of deletion is done, the judges may of their own accord like to award alternate punishment of life imprisonment etc; by resole to mitigating circumstances which always exist in every criminal case or by exercise of discretion of awarding lessor penalty and by extending benefit of doubt liberally.
People should remain on guard against passing of any despotic law entailing capital punishment failing which they must wait to be executed should they some time become a victim of the above mentioned holocaust.
(The Author has conducted hundreds of murder cases during his legal practice)