Count To Three

Accused of spying for the Research and Analysis Wing (RAW), India’s premier external intelligence agency, and charged with the crime of engineering deadly bomb blasts in 1990, Sarabjit’s review petition, his first of four, was rejected by the Pakistan Supreme Court on March 9, consequently confirming the death sentence awarded to him by an anti-terrorism court. The rejection may have dampened the spirits of those who initiated the ‘Save Sarabjit’ campaign, but the man himself remains positive. "I’m quite sure I shall be spared because I did not kill anyone," he was quoted as saying by his lawyer Abdul Hameed Rana.

Call it the optimism of the foolhardy, but Sarabjit has planned out the days of freedom that he believes will be his. To Nankana Sahib, Guru Nanak’s birthplace in Shekhupura district, he will first go, before leaving for India to meet his wife to whom he’s eternally grateful for launching the campaign to save him. The visit to Nankana Sahib will be a journey of atonement, as he believes his imprisonment, and death sentence, is a divine retribution for having violated the teachings of Guru Nanak. "I am a loving family person who did commit the crimes of drinking and smuggling of liquor from across the border (from where he was caught in 1990) but terrorism is not what I could ever have thought of doing," lawyer Rana quotes Sarabjit as telling him in a recent meeting.

It’s the crime of terrorism—and not smuggling of liquor into Pakistan—that he has been found guilty of. On March 9, the Supreme Court of Pakistan upheld a death sentence on Sarabjit, awarded by an anti-terrorism court for being a RAW spy and masterminding a deadly bomb blast at Yakki Gate, Lahore, in which three persons were killed. According to the prosecution, Sarabjit is a paid Indian agent who was nabbed from the Kasur border area on August 30, 1990. Apart from the Yakki Gate incident, he was also charged with a second blast at Chowk Bhatti Gate, Lahore, on May 18, 1990, that killed nine persons; a third at Chowk Nazimabad, Lahore, on July 28, 1990, killing an eight-year-old; and a fourth at the Bahawana Bazaar, Faisalabad, on August 30, 1990, killing four.

The anti-terrorism court sentenced him to death on five counts on the basis of his confession. The conviction was upheld by the Lahore high court. Sarabjit went in appeal to the Supreme Court, taking the plea that the person accused of bomb blasts in court papers was named Manjit Singh, who had been brought up in Agra and whose family shifted to Amritsar in 1972. He claimed he was Sarabjit Singh of Amritsar, that he was a victim of injustice as the prosecution had compelled him under duress to accept the wrong identity.

But the court papers show Sarabjit alias Manjit as having confessed to being a RAW spy who had engineered five blasts (the fifth was in Multan for which he wasn’t tried because there was no casualty) in 1990. He subsequently denied his confessions, though magistrate Khalid Zauq confirmed to the trial court that Sarabjit had recorded the statement before him on September 8, 1990. Another prosecution witness, Major Ghulam Abbas of 319 Intelligence Battalion, Lahore, told the trial court that he had interrogated Sarabjit, who disclosed he was trained for two months by RAW DSP R.K. Seri Wastey for terrorist activities in Pakistan.

On August 18, 2005, a division bench of the Supreme Court dismissed Sarabjit’s appeal against the death sentence awarded in the Yakki Gate blast. A review petition was filed with the apex court. On March 9, a division bench comprising Justice Abdul Hammed Dogar and Justice Kakarullah Jan said, "The death sentence is well-deserved and he (Sarabjit alias Manjit) did not warrant any leniency." The judgement, in fact, took exception to the trial court convicting Sarabjit only on one count of terrorism when he should have been sentenced separately for each death.

Counsel Rana says three other review petitions are still pending in the Supreme Court. He told Outlook, "We are expecting the Supreme Court to give its verdict on the other three review petitions within this month. But frankly speaking, we have no hope. The only way out appears to be a presidential pardon from General Pervez Musharraf. I have already filed a mercy petition before the President who under Article 45 of the Pakistani Constitution can grant pardon and commute death sentence."

In his pardon appeal to the President, Rana has contended that Sarabjit was awarded death sentence due to bias against his religion and nationality. "The harsh sentence and conviction awarded to Singh is against the basic principles of natural justice.... If the statements of defence witness were considered by the lower courts and the Supreme Court of Pakistan itself, the fate of Sarabjit’s case would have been entirely different," Rana’s petition states. Further, argues Rana, since Sarabjit has already spent 16 years in prison, he should be given the benefit of the doubt—and set free.

Yet Sarabjit’s chances of survival receded last week when federal law minister Wasi Zafar claimed the President could have pardoned Sarabjit had he been accused only of spying. Since he had also been accused of triggering blasts in which people were killed, pardon to him, under the Islamic law, could only be granted by the victims’ families. However, a reading of Article 45 of the Pakistani Constitution belies Zafar’s assertion. It states, "The President shall have power to grant pardon, reprieve or respite and to remit, suspend or commute any sentence passed by any court, tribunal or other authority." It was under this article that the death sentence awarded to Parminder Singh Saini for hijacking an Indian plane was commuted to life imprisonment on April 17, 1998. Parminder was freed because he had already spent the term of life imprisonment in jail, awaiting completion of his trial.

Perhaps Sarabjit’s only hope arises from the wishes of many who want to save him in the interest of Indo-Pak relations. Says Asma Jahangir, chairperson of the Human Rights Commission of Pakistan, "The imposition of death penalty on Sarabjit Singh is not unusual in the context of Pakistan’s legal system, but the case is unique as it has sparked off interest in the plight of foreign prisoners." She advocates a presidential pardon for Sarabjit. "If the Indian convict’s case is indeed of a mistaken identity, then his hanging would be a gross miscarriage of justice. If he’s really a RAW agent, it would still be sensible to commute the death sentence as a unilateral step to break clean with the past when the two countries used to carry out covert operations in each others’ territories," she adds.

However, Pakistani information minister Sheikh Rashid Ahmed says the conviction of Sarabjit is not aimed at sending an enemy spy to the gallows; it’s rather a consequence of an open judicial process followed worldwide, including India. Others rubbish such claims, arguing for abolition of death penalty itself as it involves taking away the life of a human being on flawed evidence produced every day before the courts in Pakistan. It’s just the charge that Sarabjit makes against his indictment.