ISLAMABAD, Pakistan – After spending half his life in a Pakistani jail, Tahir Mirza Hussain is scheduled to hang on his 36th birthday for killing a taxi driver — even though a court acquitted him 10 years ago.
Hussain, a British-Pakistani, claims he is innocent. He was cleared by a secular court but retried and found guilty in an Islamic one. He now faces execution June 1 unless President Gen. Pervez Musharraf intervenes.
His muddled case, spanning two decades, is emblematic of Pakistan's corrupt and bifurcated legal system, described by a leading rights activist as "flawed" and in desperate need of reform.
Amnesty International has called for a retrial, and British Prime Minister Tony Blair and Foreign Secretary Margaret Beckett have urged Musharraf to reconsider Hussain's sentence. He has already served 18 years in a cramped, dark cell, mostly at the notorious Adiala Jail in Rawalpindi near the capital.
"What does he have to do to get justice?" said his elder brother Amjad Hussain, who is visiting from Leeds, northern England, to lobby for Hussain's life. "How could you retry a man who was acquitted?"
Mirza Hussain's family migrated to England from Pakistan when he was a boy. In December 1988, after training in Britain's reserve army, the 18-year-old came back to visit relatives living near Chakwal, about 56 miles south of Islamabad. On his way, he claims, his taxi driver stopped the car, produced a gun and physically and sexually assaulted him. In the struggle that followed the gun went off and the driver, Jamshad Khan, was fatally injured.
Hussain voluntarily reported the incident to police and was arrested. In September 1989, a sessions court sentenced him to death.
The high court revoked the death penalty in November 1992 due to serious discrepancies in the prosecution's case and ordered a retrial. In April 1994 his sentence was reduced to life in prison; in May 1996 the high court acquitted Hussain of all charges.
But a week later, while he was waiting for release, his case was referred to the Islamic, or Sharia, court on the basis that the crime he was charged of — "haraabah," or armed robbery — came under its jurisdiction.
In August 1998, in a split 2-1 verdict, the Islamic court's judges sentenced him to death again, although the legal provision he was tried under required a confession or witness to the crime. The prosecution had neither.
The dissenting judge, Abdul Waheed Siddiqui, gave a scathing assessment of the prosecution in a 59-page judgment. He described Hussain as "an innocent, raw youth not knowing the mischief and filth in which the police of this country is engrossed." He said police introduced false witnesses and "fabricated evidence in a shameless manner" against Hussein, who had no criminal record.
Amnesty and other rights groups have condemned the trial as unfair, but Pakistan's government maintains Hussain has been treated with due process. In 2005, Musharraf, an advocate of moderate Islam, rejected his mercy petition.
Pakistan's police and judiciary are rarely noted for their integrity, and legal experts say having both secular and Sharia law at work only allows for more abuse.
"It's a basic and fundamental flaw with our criminal justice system," said Hina Jilani, vice-chair of the independent Human Rights Commission of Pakistan. "There should be just one set of laws."
The dueling jurisdictions have come into play in other high-profile cases, including the prosecution of the attackers of Mukhtar Mai, a Pakistani women who was gang-raped on the orders of a village council in 2002 over her younger brother's alleged affair with a woman from a higher caste family. The Supreme Court is still deliberating whether the case falls under the jurisdiction of a secular or Islamic court.
Former military dictator Gen. Zia ul-Haq introduced Shariah law to Pakistan in 1979, two decades after the Islamic nation was born. His controversial Hudood Ordinance, which covers offenses such as adultery, rape and theft, requires four male witnesses to prosecute a rape.
Hussain's case also falls under the Hudood Ordinance. His only hope now is presidential intervention or reconciliation with the dead taxi driver's ethnic Pashtun family through a settlement.
Amjad Hussain said his late father offered financial compensation back in 1990 but it was rejected. The deceased's family have since refused the mediation efforts of a prominent Islamic cleric. Amjad Hussain claims the family, which could not be reached for comment, has threatened to kill his brother if he is released.
"To them, it's a blood feud," he said.
Amjad Hussain shook his head as he recounted how his brother has grayed in prison, suffered psychological problems and become resigned to his fate — finding solace in Islam, in whose name he's been jailed.
"Sometimes he just feels like getting this over and done with. He once told me don't bother to try and help, because whatever God ordains is going to happen," Amjad Hussain said. "That scares me."