ISLAMABAD: Death-row convict Shafqat Hussain’s case took a new twist on Monday when a judge of the Islamabad High Court (IHC) observed that the inquiry conducted to determine the age of the convict was prima facie ‘illegal.’

During the hearing of a petition filed against the finding of the Federal Investigation Agency (FIA), Justice Athar Minallah observed that the executive might not have determined the age of the convict as it was the prerogative of a competent judicial forum.

The observations came after Dr Tariq Hassan, the petitioner’s counsel, pointed out that the Supreme Court in 2003 had dealt with an identical matter where a death-row convict was seeking benefit under the Juvenile Justice System Ordinance 2000. He said the apex court had held that only a judicial forum can determine the age of an accused.

Also read: Shafqat Hussain to be executed on May 6

At the very outset, the court asked the counsel for the federal government about the status of the mercy petition the convict had filed with the president of Pakistan.

When the court resumed the hearing of the petition after 3pm, the counsel for the federal government informed the judge that the president had rejected the mercy petition in 2012.

Advocate Hassan, on the other hand, claimed that after the dismissal of the mercy petition, the convict had filed mercy petitions twice which were still pending before the president.

IHC judge says probe to determine Shafqat Hussain’s age by FIA seems to be ‘illegal’

When Justice Minallah asked the lawyer to explain how the court could entertain the matter which had already been decided by the Supreme Court, Advocate Hassan replied that he was not seeking any direction against the conviction.

“I did not file the petition against the conviction, my plea is different, I am seeking the determination of my client’s age by a competent judicial forum.” He added.

He said neither the ministry of interior nor the FIA had any legal mandate to prove the juvenility. “They have no right to determine the age of a convict,” he contended.

The court then asked the standing counsel for the federal government to explain to the court the legality of the inquiry into the convict’s age. He also directed the standing counsel to inform the court about the status of the mercy petition pending before the president by Tuesday.

Shafqat was arrested and sentenced to death in 2004 for kidnapping and killing a seven-year-old boy at an apartment building in Karachi where he worked as a guard.

The counsel reiterated that at the time of the murder, Shafqat was a minor and should have been tried in a juvenile court.

Published in Dawn, May 5th, 2015

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