India requested ICJ for stay against Kulbhushan's sentence in Pakistan

[graphican]

@Mods,

please correct the title of this thread. ICJ has not issued any orders. Its just India who has requested for action and court is yet to speak on that.

 

[Panther 57]

When did India and Pakistan started to follow United States Law structure, Miranda Warning is only applicable there ??????

As far as I know we follow Anglo Saxon Law. Regarding Natural Justice, Google is your friend mate, please read about it in detail if you can.

If what you say is applicable then all the cases disposed on the basis of confessional statement are null and void since partition.

As per Pakistan Law
Confession
Confession means an admission of certain facts which constitutes an offence. Statement of accused becomes confession only when recorded in compliance of the provisions of S. 164 and 364 of Cr.P.C. after observing necessary precautions and formalities.

Procedure which magistrate must adopt while recording confession

• As soon as person is produced before a magistrate for getting his confession recorded followings are things which magistrate must observe;
• His handcuffs should be removed
• All the police officers shall be turned out of court room
• He should be informed that he was before a magistrate and that whether he made any statement or not, he will not be handed back to the police but will be sent to the judicial lockup.
• He should be given sufficient time to ponder over the matter
• He should be warned that he was not bound to make any statement and if he did so it may be used as evidence against him.

Questions to be asked by Magistrate
Following question must be put to person by magistrate;

• For how long have you been with the police?
• Has any pressure been brought to bear upon you to make a confession?
• Have you been threatened to make a confession?
• Has any inducement been given to you?
• Have you been told that you will be made an approver?
• Why are you making this confession?

Important Characteristics of Confession in light of Case Laws
Confessional statement of accused must be supported and corroborated through some independent and reliable evidence to reply upon same for his conviction (2008 P.Cr.L.J. 507)

Confessional statement of an accused when is to be believed has to be considered in its entirety and the portion of the statement favoring the accused is not to be ruled out of consideration. (PLD 2001 Quetta 33)

Confession of one accused would not be sufficient to prove innocence and non-involvement of other accused in commission of murder when it appears that confessing accusing made confession to save lives of other co-accused who happens to be his sons. (2001 P.Cr.L.J. 301)

Confessional statement cannot be used against an accused if the same is not put to him while recording his statement u/s 342 Cr.P.C. (2007 P.Cr.L.J. 276)

All questions put to the accused and his answers thereto must be recorded in writing. (PLD 1994 Pesh. 102)

Confessional statement of accused must be supported and corroborated through some independent and reliable evidence to rely upon same for his conviction. (2008 P.Cr.L.J. 507)

Exculpatory confessional statement cannot be used against co-accused for the purpose of conviction. (2008 P.Cr.L.J.)

Confessional statement of one accused can be used as a corroborative piece of evidence against other accused. (NLR 2003 A.C. 1)

Confession recorded on Oath
Confession recorded on oath is inadmissible. (PLD 2005 Pesh. 46)

Retraced Confession
Confessional statement although retracted would be sufficient piece of evidence for conviction if it is found true, voluntary and having not been obtained by coercion, inducement of torture. (PLD 2005 S.C. 168)

Confession before Police Officer
If confession is made by the accused before police officer then it becomes his duty to get his confessional statement recorded before the competent magistrate otherwise such confession is not admissible in evidence. (2008 MLD 430)

In his case all the requirements of law have been fulfilled and as he was captured by Pakistan Army he was tried according to international conventions under army act.

 

[Mrc]

Indians are pleading under vienna convention of counsellor relations... case comes under geneva covention for treatment of spies...

 

[Lord Of Gondor]

The International Court of Justice in Hague, Netherlands, has asked Pakistan to put on hold its death sentence to Kulbhushan Jadhav, an Indian national it accused of spying. A letter has been sent to Pakistan Prime Minister Nawaz Sharif, official sources said.

http://www.ndtv.com/india-news/inte...s-death-sentence-of-kulbhushan-jadhav-1691539

 

[boxer_B]

iran-seeks-access-to-kulbhushan-jadhav-for-interrogation

 

[Kathin_Singh]

@Mods,

please correct the title of this thread. ICJ has not issued any orders. Its just India who has requested for action and court is yet to speak on that.

Dear , order is issued to your government in a letter.


“In my capacity as president of the court, and exercising powers conferred upon me under Article 74, paragraph 4, of the rules of the court, I call upon Your Excellency’s Government, pending the court’s decision on [India’s] request for the indication of provisional measures, to act in such a way as will enable any order the court may make on this request to have its appropriate effects,” Judge Ronny Abraham of France, the ICJ’s president wrote to the Pakistani government on May 9.

 

[Sheikh Rauf]

Oh really?

Just so you know Pakistan has been doing that since the 80s.
And Kashmir is yet to be "free".

However, don't let us stop you. Do keep trying, if nothing else at least it'll help you sleep better knowing you lot did something.

#KhayaliPulao

when you call Azad Kashmir means free Kashmir there is part of it we will free it from unhuman 700 thousands army who occupied kill innocent Kashmiries.
there are army sitting there permenantly imagin the resources which you cud have built toilets feed atleast one time your regular poor indian, are wasting on army who is committing suicide, crying for food, humiliate by their officers cant and will not stand up in front of the people who are there but to be shaheed.

keep the light up on fences.

 

[Spring Onion]

Comon, i remember those multiple threads few weeks ago where everyone was in so much of hurry to hang him.

Good that you took uturn now.

everyone here means the Forum members. Indeed we still want him to be hanged as soon as possible. When I said don't worry we are in no hurry to hang him by this I meant Government of Pakistan which BTW has the authority not the forum members.

So there is no U-or V Turn here

 

[Tom M]

If what you say is applicable then all the cases disposed on the basis of confessional statement are null and void since partition.

As per Pakistan Law
Confession
Confession means an admission of certain facts which constitutes an offence. Statement of accused becomes confession only when recorded in compliance of the provisions of S. 164 and 364 of Cr.P.C. after observing necessary precautions and formalities.

Procedure which magistrate must adopt while recording confession

• As soon as person is produced before a magistrate for getting his confession recorded followings are things which magistrate must observe;
• His handcuffs should be removed
• All the police officers shall be turned out of court room
• He should be informed that he was before a magistrate and that whether he made any statement or not, he will not be handed back to the police but will be sent to the judicial lockup.
• He should be given sufficient time to ponder over the matter
• He should be warned that he was not bound to make any statement and if he did so it may be used as evidence against him.

Questions to be asked by Magistrate
Following question must be put to person by magistrate;

• For how long have you been with the police?
• Has any pressure been brought to bear upon you to make a confession?
• Have you been threatened to make a confession?
• Has any inducement been given to you?
• Have you been told that you will be made an approver?
• Why are you making this confession?

Important Characteristics of Confession in light of Case Laws
Confessional statement of accused must be supported and corroborated through some independent and reliable evidence to reply upon same for his conviction (2008 P.Cr.L.J. 507)

Confessional statement of an accused when is to be believed has to be considered in its entirety and the portion of the statement favoring the accused is not to be ruled out of consideration. (PLD 2001 Quetta 33)

Confession of one accused would not be sufficient to prove innocence and non-involvement of other accused in commission of murder when it appears that confessing accusing made confession to save lives of other co-accused who happens to be his sons. (2001 P.Cr.L.J. 301)

Confessional statement cannot be used against an accused if the same is not put to him while recording his statement u/s 342 Cr.P.C. (2007 P.Cr.L.J. 276)

All questions put to the accused and his answers thereto must be recorded in writing. (PLD 1994 Pesh. 102)

Confessional statement of accused must be supported and corroborated through some independent and reliable evidence to rely upon same for his conviction. (2008 P.Cr.L.J. 507)

Exculpatory confessional statement cannot be used against co-accused for the purpose of conviction. (2008 P.Cr.L.J.)

Confessional statement of one accused can be used as a corroborative piece of evidence against other accused. (NLR 2003 A.C. 1)

Confession recorded on Oath
Confession recorded on oath is inadmissible. (PLD 2005 Pesh. 46)

Retraced Confession
Confessional statement although retracted would be sufficient piece of evidence for conviction if it is found true, voluntary and having not been obtained by coercion, inducement of torture. (PLD 2005 S.C. 168)

Confession before Police Officer
If confession is made by the accused before police officer then it becomes his duty to get his confessional statement recorded before the competent magistrate otherwise such confession is not admissible in evidence. (2008 MLD 430)

In his case all the requirements of law have been fulfilled and as he was captured by Pakistan Army he was tried according to international conventions under army act.

Thank you for providing an elaborate explanation , and answer of your question lies in your explanation itself.

Important Characteristics of Confession in light of Case Laws
Confessional statement of accused must be supported and corroborated through some independent and reliable evidence to reply upon same for his conviction (2008 P.Cr.L.J. 507)

This is exactly what natural law states. A confession of a convict cannot be used as an evidence I reiterate as an EVIDENCE against him. And I guess I have told the same before.

 

[That Guy]

There was no stay of execution ordered by the ICJ, this is fake news. The letters provided are requests made by the Indian government, nothing more.

@waz @Horus @WebMaster

I think it would be best to shut this thread down. It's literally based upon fake news.

 

[my2cents]

What a folly by India.

The guy is in prison and his life is hell already.
On top of this, he is waiting to be executed - which is even more hell.

India is getting opened up that she is trying to protect a terrorist. Frantic.

All the above is working in favour of Pakistan. All we have to do is to sit quietly and watch.

It is really sad that Pakistan state will not act on its own accord to do the right thing. We are just trying to protect our citizen who our govt. thinks is innocent. That's the least we can do in this case. Since you guys would not give consular access, we had to resort to ICJ to intervene. Lets see how it pans out.

Myself, I don't have much hope in your judicial process after how you conducted the 26/11 trial of Lakhvi and others. Only recently you guys put Hafeez Saeed in house arrest after much international pressure. He was given free reign to conduct his hate campaign just to spite us.

 

[anant_s]

can ICJ rule freeing him? or just can stay his hanging ?

At this moment, the directive from ICJ is to put stay on the the process of carrying out of sentence. The request made by India against Pakistan in ICJ is as follows:

The Republic of India institutes proceedings against the Islamic Republic of Pakistan and requests the Court to indicate provisional measures

THE HAGUE, 9 May 2017. On 8 May 2017, the Republic of India instituted proceedings against the Islamic Republic of Pakistan, accusing the latter of “egregious violations of the Vienna Convention on Consular Relations” (hereinafter the “Vienna Convention”) in the matter of the detention and trial of an Indian national, Mr. Kulbhushan Sudhir Jadhav, sentenced to death by a military court in Pakistan.

The Applicant contends that it was not informed of Mr. Jadhav’s detention until long after his arrest and that Pakistan failed to inform the accused of his rights. It further alleges that, in violation of the Vienna Convention, the authorities of Pakistan are denying India its right of consular access to Mr. Jadhav, despite its repeated requests. The Applicant also points out that it learned about the death sentence against Mr. Jadhav from a press release.

India submits that it has information that Mr. Jadhav was “kidnapped from Iran, where he was carrying on business after retiring from the Indian Navy, and was then shown to have been arrested in Baluchistan” on 3 March 2016, and that the Indian authorities were notified of that arrest on 25 March 2016. It claims to have sought consular access to Mr. Jadhav on 25 March 2016 and repeatedly thereafter.

According to the Applicant, on 23 January 2017, Pakistan requested assistance in the investigation of Mr. Jadhav’s alleged “involvement in espionage and terrorist activities in Pakistan” and, by a Note Verbale of 21 March 2017, informed India that “consular access [to Mr. Jadhav would] be considered in the light of the Indian side’s response to Pakistan’s request for assistance in [the] investigation process”. India claims that “linking assistance to the investigation process to the grant[ing] of consular access was by itself a serious violation of the Vienna Convention”.

India accordingly “seeks the following reliefs: (1) [a] relief by way of immediate suspension of the sentence of death awarded to the accused[;]

(2) [a] relief by way of restitution in interregnum by declaring that the sentence of the military court arrived at, in brazen defiance of the Vienna Convention rights under Article 36, particularly Article 36[,] paragraph 1 (b), and in defiance of elementary human rights of an accused which are also to be given effect as mandated under Article 14 of the 1966 International Covenant on Civil and Political Rights, is violative of international law and the provisions of the Vienna Convention[;] and

(3) [r]estraining Pakistan from giving effect to the sentence awarded by the military court, and directing it to take steps to annul the decision of the military court as may be available to it under the law in Pakistan[;]

(4) f Pakistan is unable to annul the decision, then this Court to declare the decision illegal being violative of international law and treaty rights and restrain Pakistan from acting in violation of the Vienna Convention and international law by giving effect to the sentence or the conviction in any manner, and directing it to release the convicted Indian National forthwith.”

As the basis for the Court’s jurisdiction, the Applicant invokes Article 36, paragraph 1, of the Statute of the Court, by virtue of the operation of Article I of the Optional Protocol to the Vienna Convention on Consular Relations concerning the Compulsory Settlement of Disputes of 24 April 1963.

On 8 May 2017, India also filed a Request for the indication of provisional measures, pursuant to Article 41 of the Statute of the Court. It is explained in that Request that the alleged violation of the Vienna Convention by Pakistan “has prevented India from exercising its rights under the Convention and has deprived the Indian national from the protection accorded under the Convention”.

The Applicant states that Mr. Jadhav “will be subjected to execution unless the Court indicates provisional measures directing the Government of Pakistan to take all measures necessary to ensure that he is not executed until th[e] Court’s decision on the merits” of the case. India points out that Mr. Jadhav’s execution “would cause irreparable prejudice to the rights claimed by India”.

India further indicates that the protection of its rights is a matter of urgency as “[w]ithout the provisional measures requested, Pakistan will execute Mr. Kulbhushan Sudhir Jadhav before th[e] Court can consider the merits of India’s claims and India will forever be deprived of the opportunity to vindicate its rights”. The Applicant adds that it is possible that the appeal filed by the mother of the accused on his behalf may soon be disposed of.

India therefore requests that, “pending final judgment in this case, the Court indicate:

(a) [t]hat the Government of the Islamic Republic of Pakistan take all measures necessary to ensure that Mr. Kulbhushan Sudhir Jadhav is not executed;

(b) [t]hat the Government of the Islamic Republic of Pakistan report to the Court the action it has taken in pursuance of sub-paragraph (a); and

(c) [t]hat the Government of the Islamic Republic of Pakistan ensure that no action is taken that might prejudice the rights of the Republic of India or Mr. Kulbhushan Sudhir Jadhav with respect of any decision th[e] Court may render on the merits of the case”.

Referring to “the extreme gravity and immediacy of the threat that authorities in Pakistan will execute an Indian citizen in violation of obligations Pakistan owes to India”, India urges the Court to deliver an Order indicating provisional measures immediately, “without waiting for an oral hearing”. The Applicant further requests that the President of the Court, “exercising his power under Article 74, paragraph 4[,] of the rules of the Court, pending the meeting of the Court . . . direct the Parties to act in such a way as will enable any Order the Court may make on the Request for provisional measures to have its appropriate effects”.

So essentially this is only a start of proceedings.

 

[Qutb-ud-din Aybak]

Agreed, for that you have to establish in your court of law that he was/is a spy, just because you say so doesn't make him one or doing a closed court trail will neither establish that. The fact that his trial was not done in an open court (the Geneva convention calls for the same; https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule107) and no details or certified copies of his trial, charges and punishment is not shared with his relatives, let alone India even after multiple requests says a lot.

FYI, An excerpt from Rule 107 if you don't know:

Right to fair trial

A spy taken in the act may not be punished without previous trial. This requirement was already recognized in the Brussels Declaration and the Hague Regulations.[10] It is also set forth in a number of military manuals.[11] Captured spies are entitled to the fundamental guarantees set out in Chapter 32, including the right to a fair trial (see Rule 100). This is emphasized in the military manuals of Canada, Germany, New Zealand and Nigeria.[12] It is also laid down in Additional Protocol I, which states that anyone who is not entitled to prisoner-of-war status, and does not benefit from more favourable treatment in accordance with the Fourth Geneva Convention, still enjoys the fundamental guarantees of Article 75 contained in Additional Protocol I.[13] Consequently, the summary execution of spies is prohibited.

And a fair trail means an open court trail not something done with zero transparency. LOL

Now regarding his confession, according to natural justice a person cannot be held as a witness against himself and his confession statements cannot be used as evidence against him. It's same everywhere in the world, not sure about Pakistan though.

If Pakistan really have enough evidence its the golden opportunity to shame India internationally, now India has given you the bait, just grab it and shame India for ever.

a fair trial in case of a spy is not an open trial but a trial in which the accused is given right to defend himself. no where in the above mentioned conditions is an open trial mentioned. we triad him before sentencing him completing all Geneva convention and Vienna convention obligations.
he has been proved guilty at our court of law. we are not obliged to prove him guilty in Indian court of law. we have no obligation to trial him under any international law when we have our own law. According to international law this isn't a dispute which comes under OCJ juristriction. we don't have plan to do it volunteerily either. our stance is quite simple.
1. according to bilateral agreement between India and Pakistan spies cannot be given consular access.
2 kalboshan have been given a chance to prove himself innocent in free and fair trial.
3. ICJ have no right to interfere in our country judicial system.
4. previously many countries including India have done same to the spies. India and Pakistan law against spies is exactly the same which means India cannot take up the issue of any so called bugs in our law.
5. kalboshan have been given the right to appeal and the he can also appeal to army chief followed by president.
6. kalboshan have confessed his crimes in front of the judge. he is not innocent. all the military court proceedings were recorded.
7. copy of charge sheet is still available in media.
8. when you said that you agree that we have to prove him guilty in our court than you should have realized that the game is over for kalboshan. we have already proved him a spy and a terrorist in our court.

 

[SarthakGanguly]

Request from the Indian Government to the ICJ brings the case to sub-judice. That is tantamount to a stay in the execution PROVIDED IR Pakistan abides by the ICJ. Which it probably will ignore.

I think the Government of India knew this well in advance.

 

[The Eagle]

@The Eagle @waz @WAJsal I have reported this person n number of times to you guys but you have failed to take any action, via the report tool or General headquarters. Please take some time out to clean up the thread from incessant trolls like these and apply the same level of scrutiny that you do to Indian members.

This is one of many examples, and I am sure you will agree it breaks every rule set out in the forum policy! don't be partial, we know where are when inaction is displayed. I trust you will act in accordance. Audit the posts of @Areesh and prove me wrong!

I have checked each & every report that are handled accordingly yet unable to find much related with this particular thread. Members are advised to report such posts without quoting back or doing so, and move-on. Reading the whole thread and auditing takes time so how about to report specific posts with appropriate reason that would be really helpful to do the needful. Looking forward for cooperation.

Regards,