The death cell is a horrible place and every moment spent there is a constant reminder to the death row convict of his impending death. It is a small room and the prisoner is allowed outside for only a couple of hours a day. The death row prisoner is not entitled to the same amenities as other ordinary prisoners and there is a separate chapter in the Jail Manual as to how they are to be treated and kept.
In short, a death row convict is a dreadful sight to behold both physically and mentally. Once the death sentence is confirmed by the High Court, a mercy petition is sent to the President of Pakistan who is empowered under Article 45 of the Constitution to grant pardons, remissions and reprieves. If a mercy petition is rejected the death penalty is carried out.
The case of Bali: a teenager facing death row
Muhammad Iqbal alias Bali is a resident of Mianwal Ranjha, District Mandi Baha-ud-Din and was a death row inmate.
Pakistan is a signatory to the United Nations Convention on the Rights of Children, 1989 (UNCRC) and International Convention on Civil and Political Rights, 1966 (ICCPR). Article 37(a) of the UNCRC and Article 6 paragraph 5 of the ICCPR binds the member states not to impose a death penalty for crimes committed by persons of less than 18 years of age.
Bali was arrested in 1998 by police on charges of dacoity and murder and was tried by an Anti-Terrorism Court. During the trial, Bali claimed innocence stating that he was being framed by a local political figure and that he was a child (under 18 years) at the time of commission of offence which was a mitigating circumstance. The Prosecution moved an application to determine age of the Petitioner and the four co-accused which was allowed and an ossification test was conducted which revealed that Bali was indeed a juvenile.
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The trial court judicially resolved in its judgment that Bali was a juvenile and determined his age to be 17 years at the time offence was committed. However, the Court on 05-07-1999 awarded death sentence to Bali while the other co-accused were given life imprisonment.
Mistrial in Bali’s case; death penalty upheld
The trial was indeed a mistrial as Bali was never charged with any provisions of Anti-Terrorism law, yet the trial was concluded and sentence awarded. This major flaw was never highlighted all the way up to the Supreme Court and had that been the case, in all probability the entire proceedings would have been set-aside, however, that was not to be!
Bali’s appeals up to the Supreme Court were dismissed and the death penalty was upheld. Bali continued to plead before all courts that he was a juvenile when the offence was committed, yet the courts were of the view that he was not entitled to any mitigation in death sentence. Bali also moved an application for acquittal on the ground of compromise with the family of the deceased, however, this application and subsequent appeals were also dismissed by the courts on the ground that offence was non-compoundable and compromise cannot be reached between the parties.
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Although Pakistan is a signatory to UNCRC and ICCPR which prohibit the imposition of death penalty to a person under 18 years of age. Yet, it was in the year 2000 that Juvenile Justice System Ordinance, 2000 (JJSO) came about which finally prohibited death penalty to persons under 18 years of age. Unfortunately for Bali, the JJSO did not operate retrospectively and since he had committed the crime in 1998 before the JJSO was put into effect, he was not entitled to its benefit.
Was President’s pardon enough?
To rectify this problem and in tune with Pakistan’s international obligations, the President of Pakistan in an exercise of constitutional powers, under Article 45 of the Constitution issued a special remission whereby sentences of all juveniles were remitted with a retrospective effect by converting their death sentence into life imprisonment. The Federal Government issued a Notification No. F.8/41/2001-PTNS dated 13-12-2001 (Presidential Notification) to this effect granting special remission in sentences to those condemned prisoners who were juveniles at the time of the commission of the offence and convicted before 17-12-2001.
As per the presidential notification, the provincial government was to ensure that the age as recorded by the trial court entitled the death row prisoner to this benefit. Bali fell squarely within the four corners of the Presidential Notification.
Consequently, the Government of Punjab issued a letter to the Registrar Lahore High Court, Lahore dated 18-08-2003, incorporating the Presidential Notification and apprising him of a list of 28 juveniles intended to receive the benefit of Special Remission under the Presidential Notification. Bali’s stood out at Serial No. 19 of this list. This letter specifically stated that for cases of juveniles covered under the Presidential Notification a mercy petition is not to be sent to the President since he has already exercised his powers under Article 45 of the Constitution and as such mercy powers have already been exercised.
The life of a condemned prisoner
Read: https://t.co/my6wYBFd4p pic.twitter.com/76TSTxFDWg
— Daily Times (@dailytimespak) June 21, 2018
After the letter dated 18-08-2003 was issued by the Government of Punjab, although it was the duty of the Provincial Government to ensure that benefit of the Presidential Notification was given to Bali, there is no record as what happened to Bali’s entitlement to special remission under the Presidential Notification. The only explanation I can think of is that he got lost in the system and was forgotten, so he continued to remain in death cell for ensuing years.
Treatment as a human rights issue
The Government of Punjab, in clear departure to its letter dated 18-08-2003, forwarded a mercy petition to the President which was rejected on 16-03-2016 and death warrants were issued setting out his execution date. The Chairman, National Commission for Human Rights, on a representation by Bali, intervened and requested Government of Punjab (GoP) to look into the matter as a humanitarian problem. He apprised them (GoP) that this was a human rights issue and they should take necessary steps to stop the execution of death warrants since he was to be given the benefit of the Presidential Notification.
As a consequence, the death warrants were withdrawn by the Punjab Government. Since the request of the Chairman, National Commission of Human Rights had also been forwarded to the trial court which had issued the death warrants, the Government of Punjab assured the trial court that it will look into the matter and inform it of its decision. The decision was never made.
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By now the Punjab Government realised that it had made a blunder by not giving Bali benefit of the Presidential Notification since 2001, which could potentially result in a domestic and international nightmare since it would be seen as a contravention of Pakistan’s treaty obligations and the Presidential Notification. Therefore, the matter was pushed under the carpet since no one wanted to take responsibility for such a mess. As a result of this inaction, Bali continued to suffer in death cell awaiting his impending execution.
Government’s lack of empathy
In 2018, Bali filed a Writ Petition in the Lahore High Court praying that special remission under the Presidential Notification be granted to him. The matter was referred to the Government of Punjab by the High Court directing it to pass a speaking order. The Government of Punjab passed an order dated 04-05-2018 stating that another mercy reference for commutation of death sentence of the Petitioner into life imprisonment has been forwarded to the Chief Minister Punjab for its further transmission to the President of Pakistan for orders.
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It also stated that further proceedings will be carried out after the outcome of that reference. As expected, there was no finding given by the Government of Punjab in its order whether Bali was entitled to benefit of the Presidential Notification or not. The rejection of this mercy reference meant Bali’s execution, thus Bali remained in his death cell waiting the dreaded moment when the second mercy petition would be rejected and his execution would be carried out.
Will Bali finally walk free after 22 years on death row?
In 2019, Bali challenged the order dated 04-05-2018 in the Lahore High Court praying that since he was covered under the Presidential Notification and his death sentence stood converted into life imprisonment in 2001 he must be freed forthwith. The Lahore High Court passed its Judgment on 06-02-2020 by accepting the Writ Petition and setting aside the order dated 04-05-2020 as illegal. Bali’s death sentence was commuted to imprisonment for life.
Bali was served justice after almost 22 years. He was 17 years old when he was arrested and put in jail, he would be 38 years old now. Although I was his legal counsel, I have never met Bali yet it gives me an immense sense of gratitude and fulfilment that I was a part of his life in some remote way and I made a difference. I shudder to think what he would be like after 22 years of illegal incarceration in a death cell but I hope he does well with what is left of his life.
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As I write, he should probably be freed from jail now or in the near future, after calculating the remissions he is entitled to under the law; I wish him all the best. To the officials who turned a blind eye to his predicament, without showing any empathy and lacking all sense of duty to save their own skins, knowing fully well that Bali was illegally incarcerated in a death cell, I wish that the powers that be, take them to task, since no action has been taken against them.
Bali was among the list of 28 men maintained by the Government of Punjab who were entitled to reprieve under the Presidential Notification, what happened to the other 27 may always remain a mystery.
Ahmed Hasan Khan is an Advocate Supreme Court of Pakistan. He has served as legal counsel of Bali, the views expressed in this opinion piece are the author’s own and do not necessarily reflect the editorial policy of Global Village Space. GVS provides space to diverse views and opinions but is not in a position to verify facts or legal positions expressed in Opinion pieces.