29th December 2021

By Ahmed Saeed


LAHORE

The Lahore High Court (LHC) on December 13, 2021, acquitted two Christian brothers, Mansha Masih and Shahid Masih, in a narcotics case for which they served a jail time of 16 years. Although the court ordered their immediate release, it was of little benefit as the two had already been released after serving their life sentence (a maximum of 25 years, which can be reduced due to concessions and good behaviour) in September 2021 three months before the high court judgment.

Shahid, now almost 40, is let down with the justice system, especially the courts.

“Whatever the court says now, it does not affect me in any way. They cannot give me back the years of my life wasted behind bars. I would have been thankful to them if they had acquitted me during the earlier stages of the case.”

The sentiment is not the brothers’ alone. Their entire family has been fragmented by their wrongful incarceration. Mansha and Shahid lost their parents, a brother and a sister-in-law in the 16 years they spent in prison, and could not attend the funeral rites of any of their dearly departed.

Shahid was closest to his mother, whom he said never let him wander far from her.

“She used to visit me in jail. And every time she came, she always consoled me that this entire ordeal will be over soon,” tears well in his eyes as he speaks of his mother. “She was like a magnet to me, she drew me towards her. When she passed away, I felt like my soul left me.”

THE CASE

Mansha and Shahid were implicated in a 2006 narcotics bust when their rickshaw had been stopped by the police at a checkpoint on their way home one evening. After a brief search, police recovered a total of 34 kilograms charas, packed in 34 packets weighing a kilogram each. Shahid recalls that after he and his brother were arrested, they were not taken to a police station and instead were held at a private ‘haveli’.

“They kept us there for five or six days before transferring us to a police station. After that, they produced us before a magistrate who sent us to jail on judicial remand.”

The police charged them under sections 6 and 9(C) of the Control of Narcotic Substances Act (CSNA) to which the brothers pleaded not-guilty. They believed they would be rid of the case soon as they knew they had not committed the felony.

‘POLICE FALSELY IMPLICATED US IN THE CASE’

In their statements recorded under section 342 of Criminal Procedure Code (Cr.P.C), the two brothers professed their innocence and denied all allegations leveled against them. They said they were implicated in the case because they had quarreled with the personnel deployed at the checkpoint.

“In order to save themselves from any untoward incident, the police falsely involved us in this false and untraced case and planted huge narcotics on us,” their statement read.

The trial continued at a sluggish pace, and while both brothers remained in jail, their family exhausted huge sums to fight and win their case.

“Our family suffered every which way because of this case, but it has completely shattered us financially,” Shahid said while explaining the financial toll of the case.

“One day, my younger brother came to meet me in jail with some homemade cooking. He told me he had to cook by using his children’s old clothes for tinder as he had no money to buy firewood. ‘I only had enough to buy the ingredients and now I am all broke,’ my brother told me and it was such a painful moment for me,” he told Voicepk.net.

The trial took six years to conclude and in 2013, the additional session judge Lahore convicted the two brothers for life with a fine of Rs. 100,000 each. In the verdict, the judge noted that “there are minor contradictions and discrepancies in the prosecution evidence, but these minor contradictions and discrepancies are not material and fatal to the prosecution case.”

Shattered by the trial court judgment, both brothers challenged the decision through a jail appeal in the Lahore High Court (LHC). However, their family’s savings had run dry during their six-year-long trial, and with no means and resources, their appeal remained pending for years to come.

Mansha and Shahid met with a team of paralegals from the Asma Jahangir (AGHS) Legal Aid Cell while on a routine visit to Kot Lakhpat Jail in Lahore to find unrepresented inmates deserving of pro bono legal assistance. The firm took up the brothers’ case and pursued their appeal in the LHC.

‘PROSECUTION’S EVIDENCE TOTALLY BEREFT OF CONFIDENCE’

On December 13, 2021, the division bench of the high court acquitted Mansha and Shahid of the charges framed against them and set aside the trial court verdict, noting a clear break in the chain of the safe custody of the sample as well as of the case property.

“Firstly, the investigating officer, Muhammad Khalid had failed to state that he handed over the case property to Moharrir whereas Moharrir has stated that it was Shahbaz Ahmed who handed over the case property which remained uncorroborated.”

The order also stated that the prosecution evidence is totally bereft of confidence and reality, and in such circumstances the conviction cannot be sustained.

NO LAW TO COMPENSATE VICTIMS OF WRONGFUL CONVICTIONS

Shahid, although dejected by his achingly long incarceration, still wants to jumpstart the life and dreams that abruptly and unfairly ended 16 years ago. Unlike the days of youth, however, he has nothing to start with this time around – neither the money nor the parents to support him.

He seeks nothing except an answer to a question from the state as to who should be held responsible for destroying 16 years of the prime of his life and how he can be compensated.

In Pakistan, there is now law for the redress of victims of wrongful convictions due to gross miscarriage of justice, despite how rampant it is due to legal and procedural flaws in the criminal justice system.

In 2016, the Supreme Court acquitted two brothers of the death penalty and ordered their immediate release from jail, only for it to be later revealed that both men had been put to the gallows a year earlier due to a misreading of documents by jail authorities. The incident sent shockwaves throughout the country, with the legal fraternity demanding that the government bring in legislation to compensate the victims/heirs of a gross miscarriage of justice.

As a result of this campaign, in 2017, Senator Azam Swati, now Federal Minister for Railways and a Senator of ruling Pakistan Tehreek-e-Insaf (PTI) introduced a bill in the Senate to legislate on this issue. The bill, titled the ‘Miscarriage of Justice (Compensation) Act, 2017’ included provisions for remedy and payment of compensation to innocent persons who either lose their lives or lose a considerable portion of their lives in prison due to conviction as a result of miscarriage of justice.

However, no progress has since been made. While the bill gathers dust, victims of wrongful convictions, like Mansha and Shahid, have no choice but to hold out on the dim hope of it coming into law.

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