Shafqat Hussain
Shafqat Hussain
Shafqat Hussain

Mr. Mamnoon Hussain

President of Pakistan

President’s Secretariat

Islamabad

PAKISTAN

Fax: +92 51 9207458

Email: [email protected]

Your Excellency,?

I am William Nicholas Gomes, Human rights defender and Freelance journalist.

I am writing urgently regarding the case of Shafqat Hussain, a condemned prisoner in Karachi Central Jail who is due to be executed on 9th June 2015. I write to lend my support to Mr. Hussain?s mercy petition submitted to your office on 2nd June 2015.

?There are several problems with Shafqat Hussain?s case which have led Your Excellency to extend mercy to him in the past. These issues have yet to be resolved and, as such, I ask that you use your power under Article 45 of the Constitution of Pakistan to immediately stay Shafqat?s execution and grant him clemency.

Factual Background:

Shafqat Hussain was arrested and sentenced to death in 2004. According to Shafqat?s family, he was 14 years old at the time of his alleged offence. Shafqat was arrested on suspicion of involvement in the kidnap of another local child, who lived in a building where he worked. After his arrest, Shafqat was subject to several days of brutal torture which included his being electrocuted and burned with cigarettes. Only after this ordeal did Shafqat confess ? a confession which he recanted at the first available opportunity. Ten years later, Shafqat still bears the physical and psychological scars from this torture. At trial, Shafqat?s lawyer failed to introduce a single piece of evidence or call a single witness in Shafqat?s defence, neglecting even to ascertain the age of his client.?Legal Background:

Shafqat Hussain?s execution would be in clear violation of both Pakistani and International law. The execution of a prisoner who was a juvenile at the date of their alleged offence is strictly prohibited by the UN Convention on the Rights of the Child and the International Covenant on Civil and Political Rights (ICCPR), both of which have been ratified by Pakistan. Pakistan?s Juvenile Justice System Ordinance (2000) also strictly prohibits the death penalty for juveniles.

Pakistan has also ratified the United Nations Convention Against Torture (CAT) and Article 14 of the Constitution of Pakistan strictly prohibits torture and all forms of cruel and degrading treatment. Article 12 of CAT requires that where credible allegations of torture are raised, they must be independently investigated. Article 15 of CAT also prohibits any reliance being placed on evidence tainted by torture.

Stay of Execution & Present Situation:

In January and again in March 2015, Your Excellency stayed Shafqat Hussain?s execution and ordered that an inquiry be conducted ? in recognition of the violations of International and domestic law in his case.

However, after the first enquiry was ordered in January 2015, no action was taken. The inquiry eventually conducted by the Federal Investigation Agency (FIA) was inadequate in many respects and has been declared ?prima facie illegal? by the Islamabad High Court. As a result of these inadequacies, the issues leading Your Excellency to order this inquiry remain unresolved, including:

1) Juvenility:

Despite a statement by the Interior Minister, Chaudhry Nisar Ali Khan that ?[t]he Inquiry? was to verify [the] claim of age? , the FIA?s inquiry explicitly stated that:

??The objective of the enquiry is not to determine the age of Shafqat Hussain.?

Concern regarding Mr. Hussain?s age is unsurprising considering that Pakistan has one of the lowest rates of birth registration in the World and 73% of births in the country are not registered. ?However, the United Nations Committee on the Rights of the Child (CRC Committee) has made clear in its General Comment No. 10, on children?s rights in juvenile justice, that:

?If there is no proof of age, the child is entitled to a reliable medical or social investigation that may establish his/her age and, in the case of conflict or inconclusive evidence, the child shall have the right to the rule of the benefit of the doubt.? ?(Emphasis added).

The only documentary evidence available shows that Shafqat Hussain was a juvenile at the time of his alleged offence. This includes a government-issued birth certificate which puts his age at the time the crime was committed at 14 and a contemporary school record from his native village. To continue with Mr. Hussain?s execution in the face of this evidence would be in direct contravention of Pakistan?s legal obligations.

2) Innocence:

There is also considerable evidence to suggest that Shafqat Hussain is innocent of the crime for which he was convicted. The evidence against him is purely circumstantial. There are no eyewitnesses linking him to the crime and no direct physical evidence. There were also a number of procedural violations in the police investigation, notably, that the only witnesses to the recovery of key prosecution evidence were relatives of the victim.

These failings have even been recognised by the Sindh High Court who, in replacing Mr Hussain?s conviction for murder with a conviction for ?Accidental Death? recognised that the case, ?hinge[d] upon Mr. Hussain?s confession only?. ?Shafqat recanted this confession at the first opportunity and has always maintained that it was only extracted after days of brutal torture. This torture and the evidence of Shafqat?s innocence remain entirely un-investigated.

3) Torture:

Mr Hussain has detailed how he was brutally beaten, electrocuted, suspended by means of a pole passed between ties securing his hands and his feet, subjected to Falaka (beating on the soles of the feet with a blunt instrument) and burnt with cigarettes by police. These allegations are supported by Mr. Hussain?s statement at trial (recanting his confession) and by contemporary television footage from the program ?POLICE?.Furthermore, Dr Frank Arnold ? a leading international expert in torture and the forensic analysis thereof ? has analysed the allegations of torture in Mr Hussain?s case and the injuries reported, and has concluded that they are consistent with the torture alleged.

In contravention of Pakistan?s obligations under CAT, these allegations of torture have never been investigated and seriously undermine the safety of Mr. Hussain?s conviction as well encouraging that mercy be granted.

Request for Mercy:

Your Excellency, I recognise that ? in line with Pakistan?s obligations under domestic and international law ? you have exercised your power to stay Mr. Hussain?s execution in the past. However, in part as a consequence of the inadequacy of the FIA inquiry, the numerous issues in Mr Hussain?s case remain entirely unresolved. In the circumstances Mr Hussain?s execution would be a grave injustice.

Therefore, I respectfully request that Your Excellency use the absolute power granted to you under the Constitution of Pakistan to immediately stay Mr. Hussain?s execution and grant him clemency as requested in his mercy petition. To act otherwise would be to contradict the reasons for which Your Excellency did beneficently stay Mr. Hussain?s execution previously.

Your Excellency, you alone have the power to ensure that justice is done in this case and I appeal to you to use such power in the name of grace and humanity.

Yours sincerely,

?

William Nicholas Gomes

Human Rights Defender & ?Freelance Journalist

Twitter @wnicholasgomes

Email: [email protected]

www.facebook.com/williamnicholasgomes

CC.?

?Prime Minister of Pakistan, Mr. Mian Mohammad Nawaz Sharif,

?Federal Minister for Interior Pakistan,?Mr. Chaudhry Nisar Ali Khan

Registrar of the Supreme Court of Pakistan,?Mr. Justice Tahir Shahbaz,

Advisor to the President of the European Council for Asia, Mr. Sem Fabrizi

Acting Head of the Delegation of the European Union to Pakistan,?Stefano Gatto

Director of Human Rights and Democracy Unit, EEAS, Ms. Veronique Arnault

Chair of the EU?s Working Party on Asia, Mr. Boguslaw Majewski

Chair of the EU?s Working Party on Human Rights (COHOM), Mr. Engelbert Theuermann

President of the European Parliament, Mr. Martin Schulz

Vice-President of the European Parliament responsible for Democracy and Human Rights, Mr.

Edward McMillan-Scott

Chair of the European Parliament?s Foreign Affairs Committee, Mr. Elmar Brok

Chair of the European Parliament?s Subcommittee on Human Rights, Ms. Barbara Lochbihler

UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment,?Mr. Juan M?ndez

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