Cross Post from Daily Dawn, Published January 24, 2010
By Azaz Syed and Matiullah Jan
We are publishing a disturbing investigative report by Dawn that shows a possible miscarriage of justice. We do not know of the actual guilt of the accused, but the investigative report shows a possible serious lapse of the judicial process before the ultimate punishment was meted out to the accused; the capital punishment.
The charges against the accused were serious. He was accused of actually participating in the plot to murder Pakistani President and his entourage, and dozens of innocent policemen and civilians died in that attempt. Yet, the report below shows that serious doubts hang about the way he was prosecuted, the allegations of torture, and possibility of state witnesses who gave testimonies against the accused under extreme duress. One of the many disturbing aspects of the case was the fact that the ultimate arbiter of the accused fate was none other than his alleged target, the President of Pakistan.
Despite the woeful history of the judicial process in Pakistan, the country cannot afford to act the same way of the enemies it is fighting. The State of Pakistan offers a social contract to its citizens that none of the bloody extremist groups have even imagined offering to the Pakistanis, except an ideology soaked in a violent and extreme anti modern interpretation of the religion. A state’s primary responsibility is providing for the safety and welfare of its population; and that includes providing the due process to an accused. A fair and timely process entails that all appeals are afforded to the accused before the punishment is handed out, more so in case of the capital punishment. Fighting the terror unleashed by bloody religious groups does not mean that we resort to heavy handed justice. In words of Martin Luther King, an injustice anywhere is a threat to justice everywhere. Injustice sets dangerous precedents, and turns rulers into tyrants due to lack of accountability. Injustice pervades the society insidiously, putting all the society inhabitants at risk of being failed by the judicial system some time in the future.
While the accused is long deceased, I hope the state of Pakistan will look into the allegations of irregularities committed against the accused, and hope that Pakistan will finally start looking into bringing its justice system (civilian or military) in line with the requirements of an efficient and fair system. For all of the wrongly convicted who were failed by the judicial system, this is a small solace. Yet for all the Pakistanis, the state needs to show itself as a country capable of living up to the social contract it is supposed to offer to the Pakistanis; fair and unfettered access to justice to its citizens.
ISLAMABAD: Abdul Islam Siddiqui, a soldier of the Pakistan Army hanged in 2005 after an in-camera military trial for his alleged involvement in the Dec 2003 attack on then president Pervez Musharraf’s convoy, was denied right to file writ in any superior court, Dawn investigations show.
The case of six other co-accused from the Air Force is currently in the apex court. Two of the soldiers turned prosecution witnesses, but alleged torture and coercion by military authorities nevertheless.
“The military authorities tortured us to get a false statement against Siddiqui. Brigadier Feroz, who was supposed to be our defending officer, threatened us into get our signatures on an English-language statement.
“Prosecutor Brigadier Liaqat threatened us with dire consequences unless we signed the statement and Siddiqui’s defending officer, a major whose identity I’ve been unable to ascertain, was browbeaten by military court officials every time he tried to argue in Siddiqui’s support,” claims a former soldier Hafiz Mohammad Ashfaq. He was subsequently released but dismissed from service without benefits.
Havaldar Mohammad Younis, another witness who deposed against Siddiqui and is currently incarcerated in Gujranwala jail, also alleged torture.
In an undated hand-written note to his family, he claimed that he was subjected to torture for 10 months in Rawalpindi cells to extricate a false statement against Siddiqui.
“I filed an appeal before Maj-Gen Ahmed Shuja Pasha [current ISI Chief and the then military judge hearing appeals against conviction] who merely completed the procedural formality before upholding my sentence,” Younis said in his note.
“He did not provide a lawyer or summon my witness and did not even care for my refusal to depose before him.”
Attempts to secure the army’s version of events failed as military spokesman Maj-Gen Athar Abbas did not respond to calls or a detailed text message.
“Recent Supreme Court verdicts have established that persons convicted by military courts have the right to file writs in high courts,” said former attorney-general Malik Mohammad Qayyum.
“I recently represented some Air Force personnel in a similar case in the SC, which upheld their right to move the judiciary against the military court verdict.”
Siddiqui was prosecuted by in-camera trial and executed on Aug 20, 2005. Record shows that he was sentenced to death before Dec 25, 2004, when this fact was officially announced.
Siddiqui’s family quote him as saying that he had filed appeals before military appellate courts right up to the army chief, but all were rejected.
“The appeal process in the army is contradictory,” said Colonel (retd) Akram, a former military lawyer.
“When the army chief confirms a death sentence, the convict can file an appeal in a military court of appeal which is headed by a military officer subordinate to the army chief.” He added that it was strange that General Musharraf — the target of the attempted murder — decided the fate of an appeal as the army chief. And, had Siddiqui been allowed the due process of the law, his mercy petition would have been presented to Pervez Musharraf in his capacity as president.
Under the law, such appeals — once rejected by the army chief and confirmed by appellant military courts — go to high courts and then the Supreme Court.
If the appeal is rejected by the apex court, a mercy petition is filed before the president. In Siddiqui’s case, the process of law appears to have been short-circuited.
President Musharraf rejected Siddiqui’s appeal as army chief and when this was confirmed by an appellate military court, it was interpreted by jail authorities as a rejection of his mercy petition by Musharraf in his capacity as the president.
“You are hereby informed that your son Islam Siddiqui, who was sentenced to death for an attempt on the life of the president and whose appeals have been dismissed, including a mercy petition that has been rejected by the president of Pakistan, will be hanged to death [sic] on Aug 20, 2005,” said the Aug 13, 2005, letter from the jail authorities to Siddiqui’s father Karim Buksh, mother Maria Kalsoom and brother Umer Islam Siddiqui.
Siddiqui’s family members accuse jail officials of stopping them from challenging the death sentence in superior courts.
“Ten days before his scheduled execution, I reached Multan jail accompanied by our lawyer and the prison authorities refused to let us meet my brother saying that the army had strictly forbidden it,” said Umer Islam Siddiqui.
Normally, jail authorities are responsible for filing appeals for such convicts from jail,” said Shah Khawar [then acting attorney-general and currently the deputy AG] when contacted in December.
Mr Qayyum said that military officials could still be held accountable.
“The family of the hanged soldier can still seek action against military authorities by filing writ in the High Court,” he said.
“The name of the Abdul Salam Siddiqui never formally appeared in the previous proceedings of the lower courts; we were told by the prosecutor that he was hanged in the same case but his case details were not provided,” said advocate Col (retd) Akram.
“If a military court awards the death sentence to any accused persons, it has to be verified by the chief of the respective armed forces; since he was the Chief of Army Staff at the time, Gen Musharraf must have signed his death warrant,” said another lawyer, advocate Altaf Malik who is representing the air force personnel.
Colonel (retd) Akram, said that they never knew that there was a seventh accused in the case.
“We came to know about him through media reports after his execution and later the army prosecutor told me that since he was an army man, his case was separated from the Air Force persons,” said Akram.
“Even if he was involved in the assassination attempt, though, he should have been tried with the rest of the accused persons.”
35-year-old Siddiqui, a father of three who worked for Company No. 1 of the Defence Services Guard, was charged with pressing the button of the remote control device which caused an explosion on Jhanda Chichi Bridge on Dec 14, 2003.
Immediately prior to his execution, Siddiqui wrote a two-page letter to his family claiming innocence.