Mirza Tahir Hussain – the ongoing tragedy

Prince Charles’ visit to Pakistan has brought into sharp focus the case of Mirza Tahir Hussain, a 36 year old dual British and Pakistani national who has been on and off death row for the last 18 years. The Prince has been requesting, in the run-up to his visit the pardon and release of Hussain whose execution was to have coincided with the royal visit. At the time of writing the execution has been stayed for the fourth time till 31st December, a welcome gesture, but no solution nonetheless. The Government of Pakistan has come under increasing international pressure over the execution, with representations made from both governments and more significantly human rights charities, and not without good reason.

As an 18 year old Leeds lad who had just joined the Territorial Army, Hussain had gone to visit relatives in Pakistan in the winter of 1988. He had landed in Karachi, and stayed the night with an aunt before taking a train to Rawalpindi. From there, at night he hailed a taxi to take him from Rawalpindi to his home village in Bhubar for 500 Rupees. The taxi driver, Jamshed Khan, had allegedly at some point during the journey stopped the car and attempted to sexually abuse him at gunpoint. It is on the record that the pistol, and its holster were both of Pakistani make. In the ensuing scuffle the gun had been fired, leading to the death of the taxi driver. Hussain, in shock at the events, drove the taxi to the nearest police patrol he could find and explained what had happened, surrendering himself and the gun. He was arrested. Then he was tried.

In September 1989 Hussain was sentenced to death by the Sessions Court in Islamabad. In 1992 the High Court ordered a retrial and overthrew the conviction. This led to Hussain’s acquittal in 1996.

But the sigh of relief only lasted a week. It was decided that the case against Hussain constituted armed robbery, which was to be tried under the Federal Shariah Court. Although the Court agreed that there had been no robbery they found him guilty of the murder on a 2-1 basis with Justice Abdul Waheed Siddiqui disagreeing with Justice Dr Fida Mohammad Khan and Justice Mohammad Khiyar. Justice Siddiqui, in his judgement, issued a 59 page document condemning the way the case had been handled. He found all three alternative versions forwarded by the prosecution as “mutually annihilating”. He concluded that Hussain had been “an innocent, raw youth not knowing the mischief and filth in which the police of this country is engrossed” stating that the police had introduced false witnesses and “fabricated evidence in a shameless manner”.

However, the judgement was upheld and Hussain’s subsequent appeal was dismissed. Pakistani President Pervez Musharraf has also to date rejected Hussain’s plea for clemency in 2005.

The family of Jamshed Khan were offered an amount as blood money in 1990 but rejected it. They have refused any subsequent negotiations or mediations and Hussain’s family has voiced concern that they may view the matter as a ‘blood-feud’ and have threatened to kill him if released.

Hussain has thus spent the last 18 years in prison in the Adiala Jail in Rawalpindi. He resides, with three other inmates, in a 10 by 12 foot cell. His brother, Amjad Hussain, who has left his job to appeal for his brother, recalls how Tahir has aged beyond his years and suffered from psychological problems stemming from his confinement. In an interview given to the BBC Asian Service Tahir seemed prayerful and resigned to the will of God.

It seems astonishing that Mirza Tahir Hussain has had to endure this manifest miscarriage of justice. Anybody remotely familiar with the conditions prevalent in Pakistan, a country which I am deeply attached to, will know immediately of the plausibility of his story. It would not be surprising to learn that a young man, out of his depth, taking such an arduous journey in Pakistan would have been seen as a target for sodomy. Again, it would be no surprise to any Pakistani that certain sections of the police may have been implicated in producing false evidences or other shortcuts in order to make the case appear rock-solid. Indeed, such a version of events is not just plausible, it is quite likely.

Rather the converse is almost impossible to conceive. Questions arise almost every step of the way. Why would a young, confident lad, with everything to live for murder the taxi driver who was taking him to his village? Where did he procure the gun from, having just spent one day in Pakistan, constantly travelling? Why did he immediately surrender himself to the police, rather than run? Why has the case been plagued with procedural irregularities, with both the High Court and Justice Siddiqui finding Hussain’s convictions as unsafe and the procedures riddled with anomalies? And why was he tried yet again after acquittal, in breach of the well established arguments preventing ‘double-jeopardy’, when in any case the very reason for transfer to the Shariah Court was not upheld? Every single question adds an increasing moral weight and urgency on the need to pardon him.

Yet the Presidential Pardon, surely an absolute moral imperative, keeps failing to materialise. Although espousing an approach of ‘enlightened moderation’, and in large part working towards these goals, President Musharraf has not used his authority to set aright this clear travesty. Ostensibly this path has been pursued to uphold the rule of law. As Musharraf has himself put it:

“I cannot violate a court judgment, whether you like the court or not, it’s a court’s judgment and I stick to the law. And we need to find ways of how to handle this situation. I am not a dictator, where I can violate laws, violate the constitution, violate the laws of Pakistan. That cannot be done.”

However, President Musharraf has used powers of Presidential Pardon before. He pardoned the nuclear scientist Abdul Qadeer Khan when he admitted to betraying nuclear state secrets of Pakistan for profit. In his recent book “In The Line of Fire”, the President makes much of the delicateness of the situation and of the balance that had to be struck, given that A.Q. Khan was a national hero who had committed an act of high treason. The President may claim, as he did in the interview with Andrea Catherwood for ITV’s Sunday Edition that “I have never pardoned anyone who has been passed a death sentence. I have never pardoned a single one.” But the question remains that what is of a higher order crime – state treason, with massive national and international ramifications, or this very suspect conviction.

And the law does give President Musharraf the authority to use his Pardon. As Amjad Hussain and Amnesty International markedly pointed out Article 45 of the Constitution of the Islam Republic of Pakistan, 1973, gives him this authority, stating that: “The President shall have power to grant pardon, reprieve and respite, and to remit, suspend or commute any sentence passed by any court, tribunal or other authority.” Amjad Hussain has obtained from Dr. Khalid Ranjha, Musharraf’s former law minister a written opinion that it is within the President’s authority to issue a pardon.

It maybe that the honourable President considers that a Pardon would appear as if Pakistani law is compliant to international pressure. Yet a young man’s life hangs in the balance. This is not a game of politics.

President Musharraf, I am sure I do not just speak for myself but for the nation of Pakistan, and Pakistani expatriate communities the world over when I ask you to pardon Mirza Tahir Hussain, a victim of a travesty o justice, and let him go home.