The late Dorab Patel, a former Justice of the Supreme Court of Pakistan used to say that if he had to be a judge again, he would never award the death penalty. His reasons: human fallibility and faulty legal systems that discriminate against the poor. As he emphasised, a human life once taken, could never be brought back.

Justice Patel, who resigned from office in 1981 in protest at the military rule of Gen. Ziaul Haq, was a founding member of the Human Rights Commission of Pakistan. The HRCP, like other credible international organisations like Amnesty International and Human Rights Watch, took a stand that reinforces the principled position against the death penalty. The HRCP, in its first convention in 1986, passed three resolutions: hold elections, abolish the separate electorate system, and abolish the death penalty.

Unfortunately, Pakistan remains among the 62 countries that continue to retain and use the death penalty, compared to the 135 that have abolished this punishment in law or practice. The HRCP in its report Slow march to gallows (2007) records a staggering number of prisoners awaiting execution in Pakistan: over 7,400 men and 36 women. Most are poor. Some were under-age at the time of the alleged crime. Pakistan was among the six countries (along with China, Iran, Iraq, Sudan and the USA) that accounted for 91 per cent of the 1,591 executions reported in 25 states in 2006, according to Amnesty.

The death penalty does not deter crime more than other punishments, notes Amnesty. The homicide rate has fallen by 40 per cent since 1975 in Canada, where the death penalty for murder was abolished in 1976. On December 18, 2007, the UN General Assembly passed a resolution—by a wide margin—on a worldwide moratorium on executions. The resolution has since been opposed and the debate will continue in the session this September.

Since 1973, 126 death row prisoners in America have been released after being found innocent thanks to advances in DNA evidence. In countries like Pakistan and India, with flawed investigative and legal systems, the odds against each other’s prisoners are even greater—especially when they are accused of terrorism.

As the HRCP noted in a recent press release, “The relations between India and Pakistan have long affected the entire population of South Asia. One of the factors contributing to tensions between the two neighbours is the horrible treatment they mete out to one another’s prisoners.”

Surabjit Singh was convicted of espionage and terrorism (bomb blasts at Lahore, Kasur and Faisalabad that killed 14 people in 1990). Fifteen years later, in 2006, the Supreme Court upheld the death sentence awarded in 1991. A life sentence is 14 years. Surabjit has already served 18 years in prison, mostly on death row.

The high-profile release on March 3 of another Indian, Kashmir Singh, convicted of espionage, had raised hopes for other prisoners. Pakistan’s unconditional and unilateral release of Singh was a magnanimous gesture that raised expectations of India’s reciprocation. Caretaker minister for human rights Ansar Burney said as much, talking to journalists at Wagah border after bidding Kashmir Singh an emotional farewell.

Although no one conveyed these expectations through “proper” channels, New Delhi could have moved beyond the existing system under which prisoners are occasionally released and exchanged, like fishermen who stray across the maritime border. After all, Kashmir Singh’s release was not part of that inadequate mechanism either.

Unfortunately, soon after arriving in India, Kashmir Singh admitted having spied for his country. He was apparently upset at finding his family living in poverty, uncared for by the ‘sarkar’ for which he had sacrificed so much, even getting circumcised in order to escape detection in Pakistan. He soon retracted his admission but the damage was done. Still, even if he was guilty, his 35-year captivity should be considered punishment enough.

To make matters worse, a week after Kashmir walked free across the Wagah border, garlanded and feted, New Delhi sent across a coffin containing the body of under-trial Pakistani prisoner Khalid Mehmood who had died on February 12, 2008. India denied torture, and listed the hospitals where the prisoner was treated but without mentioning the nature of his ailment (cirrhosis of the liver, according to an Indian High Commission official in Islamabad in response to a query later).

Indian authorities say that they informed Pakistan of Mehmood’s death the same day but received the family’s request for the body to be transported to Pakistan for burial only three weeks later. However, India’s denials of torture are met sceptically by human rights activists, given the country’s track record—no better than Pakistan’s. In any case, the timing couldn’t have been worse for Surabjit Singh.

Shortly afterwards, he received a ‘black warrant’ for his execution date. This warrant was issued “in routine” and not in retaliation for Mehmood’s death, maintains Singh’s lawyer, additional advocate general Punjab Rana Abdul Hameed. However, he adds that now it is a “matter between two governments that they need to sort out as a humanitarian issue.”

The governments are clearly aware of this aspect. On March 19, Pakistan’s granting of a month’s reprieve to Surabjit Singh coincided with India’s release of a Pakistani prisoner, Jamal Qurashi of Sukkur, acquitted just two days previously of a counterfeit currency case in Uttar Pradesh in 2005. Institutional mechanisms to facilitate prisoners are already underway, like a much needed Agreement on Consular Access (both governments are currently slow to grant consular access to prisoners). A newly formed Joint Judicial Committee on Prisoners met recently in New Delhi and will meet again in Pakistan in early April.

Executing Surabjit Singh will derail this process and kill hope for other prisoners, guilty or innocent. Pakistan spontaneously released Kashmir Singh outside the existing formal mechanisms. Any reciprocal gestures by India will go a long way towards improving relations and clearing the bad blood created by Khalid Mehmood’s death.

Meanwhile, Surabjit Singh’s sister and two young daughters have appealed to President Musharraf and the new government to allow them to meet him. Even better, spare his life.

Postscript: On March 20, another Indian prisoner died in Pakistan. Laxman Kanji, a young fisherman from Gujarat, who was among a dozen arrested in 2006 ago for trespassing Pakistani waters. Prison authorities at Malir Jail on the outskirts of Karachi said he had been complaining of stomach pains for ten days and was shifted to the prison hospital when his condition deteriorated. According to one newspaper report, some 430 Indian prisoners currently languish in Pakistani prisons. Many do not have consular access or proper legal aid.