Two Kashmiris, one each in Pakistan and India, are on death row. Both are victims of lawyer neglect, police brutality, media lies and court opportunism. Both are in the glare of international scrutiny. Both have petitioned their country’s president to spare their lives. Both are palpably innocent and should be reprieved. One is Mirza Tahir in Pakistan and the other is Mohammad Afzal in India.
Eighteen years ago, Mirza Tahir was 18 years old when he stepped off a plane from London to Islamabad and hired a taxi to take him to Mirpur. He says that, en route at night, the taxi driver stopped at a deserted spot, pulled out a gun and tried to sodomize him. A scuffle ensued and the taxi driver was killed. The police said Tahir robbed and killed the fellow. Tahir was convicted and sentenced to death by a lower court but the high court ordered a retrial. The lower court then reduced his sentence to life. But an appeal before the high court yielded a full acquittal. The case was then dragged to the Federal Shariat Court by the heirs of the deceased and the FSC sentenced him to death. The sentence was upheld by the Appellate Shariah bench of the Supreme Court. Afzal has spent 18 years on death row on the basis of a forced and retracted confession and dubious circumstantial bits of “evidence”. The taxi driver’s heirs have demanded blood for blood. Incredibly enough, though, no one has wondered how a foreign lad who stepped off an airliner hours earlier could have acquired a gun for the premeditated robbery (for a few hundred rupees) and murder of an unknown taxi driver?
Indeed, no one has stopped to think that the case refers to a particularly bleak and opportunist period in Pakistan’s political history two decades ago when the Federal Shariat Court and other such “Islamic institutions” bequeathed to us by General Zia ul Haq, including the Appellate Shariah bench of the SC, were inclined to overlook the spirit of justice and letter of law in their rush to reinforce the Qisas and Diyat Ordinances. Clearly, he is a victim of unjust and ideologised “Islamic” laws. Therefore President Musharraf should “pardon” him. That will also send a powerful message that his “enlightened moderation” is very much about closing the suffocating and hypocritical Zia chapter in our legal, political and cultural history.
The case of Afzal is more complex because it is also entwined in geo-political state necessities. He was a Kashmiri “militant” who had surrendered to the Indian authorities and was trying to lead a secluded and monitored life. But he was arrested, along with three other Kashmiris, shortly after the attack by five terrorists on the Indian parliament in Delhi on December 13, 2001. The trial court sentenced the three men to death and the sole woman to five years imprisonment. The high court, however, acquitted the woman and one of the men but upheld the sentences of Afzal and another. Then the Indian Supreme Court stepped in, reduced the other’s death sentence to life but enhanced Afzal’s to three life terms and two death sentences.
In its judgment the apex Indian court admitted that: “As is the case with most conspiracies, there is and could be no direct evidence of the agreement amounting to criminal conspiracy. However, the circumstances cumulatively weighed would unerringly point to the collaboration of the accused Afzal with the slain ‘fidayeen’ terrorists.” More dubiously, however, the court held that “the (parliament attack) incident, which resulted in heavy casualties, had shaken the entire nation, and the collective conscience of the society will only be satisfied if capital punishment is awarded to the offender. The challenge to the unity, integrity, and sovereignty of India can only be compensated by giving maximum punishment …”.
This statement, as Arundhati Roy has brilliantly argued, “validates ritual murder, which is what the death penalty is, and skates precariously close to valorizing lynch law”. The role of the ultra-nationalistic and “patriotic” Indian media in pointing the finger at Pakistan and flogging the police’s trumped up case was especially objectionable. The climate in which Afzal’s trial took place was characterized by hawkish calls for strikes against Pakistan following America’s new doctrine of preemptive action against Afghanistan and Iraq after 9/11. Hindu frenzy had already been whipped up by communal riots in Gujarat which had claimed over 2000 Muslim lives and driven over 150,000 Muslims from their homes. Bereft of money and a good lawyer, Afzal was asked to conduct his own personal cross-examination of witnesses.
The blatant contradictions and holes in this case have been superbly documented by social activists in India. Kashmir has erupted with protests. The former Kashmir chief minister, Farooq Abdullah, a Delhi loyalist, has warned that Afzal’s execution could provoke a violent backlash and engulf India in flames. Under the circumstances, the Indian leadership would do well to be guided both by notions of justice and national security rather than the jaundiced Indian media and frenzied Hindu mobs. “The challenge to the unity, integrity, and sovereignty of India can only be compensated” not by giving maximum punishment to Afzal as argued by the SC but by doing exactly the opposite.