Imran Ali, the man accused of abduction, rape and killing of a minor girl Zainab in Kasur a few weeks ago who confessed to his crime before the Anti-Terrorism Court (ATC), was awarded death penalty last week. Following large-scale public outrage after Zainab’s murder, people have been demanding a public hanging of the culrpit.
The ATC judge in Lahore has awarded death penalty on four counts and imposed a fine of Rs1 million. The accused has moved for appeal before the Lahore High Court against his sentence.
Ali, the prime suspect in the case, was arrested on January 23 followed by a 14-day judicial remand. He was indicted on February 12 and was given death penalty on February 17 and is considered the swiftest case in the history of Pakistan’s criminal justice system. The prosecution had presented at least 56 witnesses against the suspect, in addition to forensic evidence, including the DNA and polygraph tests during this time.
Even though there were huge protests and condemnations across the world for not arresting the culprit by the police, the conclusion of trial in 96 hours has raised many serious questions around the fairness of the trial and functioning of the criminal justice system of the state. The trial was conducted in Kot Lakhpat Jail, away from media’s eye. The accused was assigned a defence counsel, Mehar Shakeel Multani, who withdrew from the proceedings of the trial, followed by another counsel appointed to defend him on state expense.
“After the accused had confessed to his crime clearly and without any pressure, I decided not to fight his legal battle. I cannot defend a person who had raped minor girls and killed them,” Multani tells TNS. “My conscience did not allow me to defend him.”
Independent lawyers and civil society members are not satisfied with the way the case has proceeded and suggest that the defense counsel is duty bound to defend the accused. “The trial was conducted in-camera inside the prison without access to independent observers, members of the bar and independent legal counsel for the accused. The trial was conducted under the Anti-Terrorism Act 1997 which requires speedy proceedings on a day-to-day basis, making it imperative that each and every step is taken carefully to meet constitutional and legal requirements to ensure compliance of Article 10-A of the Constitution of Pakistan,” says lawyer Asad Jamal who had written to the jail authorities seeking permission to observe the trial and assist the accused.
Jamal had made this request “to ensure fair trial for the accused and to assist the court to reach a just decision in the larger interest of the society, the victims and their families, to appear before the presiding officer to submit concerns as an officer of the court and to attend and observe the trial proceedings.”
There was no response to Jamal’s request. Meanwhile, the judgment was announced in this particular case.
“The trial of the accused in the Zainab case was an opportunity to demonstrate that Pakistan has a functional, viable criminal justice system that can protect its citizens, including its most vulnerable citizen — children. This required a system that would be transparent and ensure due process while holding the perpetrator accountable,” says Saroop Ijaz, lawyer and representative of Human Right Watch in Pakistan. “Unfortunately, this opportunity was lost and the Zainab case trial fell victim to playing to public outrage rather than fair trial, use of modern technology, public awareness and vigilant policing. This is what will make our children safer, not fast track executions.”
“The aim of the public prosecutor is always to get ‘desired’ results and improve the conviction ratio. However, in this case, we see an extraordinary speed in dispending justice and cross examining more than 50 witnesses only in four days,” says Jamal, questioning the fairness of the trial. “It is humanly impossible to deal with 56 witnesses in four days in a fair way. It should have been an open trial; there was no valid reason to conduct it in jail and in secrecy.”
Jamal questions the value of confession of the accused which may have been “extracted under duress” and said no one knows whether “a psychoanalysis of the suspect was conducted to confirm legal insanity”.
The prosecutor general of the Punjab province, Ihtesham Qadir, defends the fast-paced trial terming it in accordance with the law. “Section 19 of the Anti-Terrorist Act 1997 binds the anti-terror court to conclude the trail within a week,” he says. “The accused was given an opportunity to appoint a defence counsel of his own choice which he availed.”
However, Qadir had no answer to the question whether all other cases in anti-terrorism court were being concluded within the suggested time period. He was also clueless whether all child-abuse and rape cases would be dealt in the same manner and in the same speed in future.
“The time clause was fulfilled in this case because the accused had confessed to his crime and the chief justice of the province had also directed to hear the case on day-to-day basis,” he says, adding that ideally all cases in anti-terrorism courts should be dealt in the same way.
Ijaz opposes the demand for public execution which he thinks is dangerous and illegal. He says this demand violates Article 14 of the Pakistan Constitution and Pakistan’s international law obligations. “This is a sign of a brutalised society and public executions will brutalise it even more. Pakistan needs less violence in the public space not more. The death penalty has been discredited as a deterrent to crime and it is extremely disturbing that rather than moving away from death penalty completely, there are some people in Pakistan who think that exposing our children to more violence is the answer.”