Why is Gopal Das free and not Khaleel Chishty?

If Dr Khaleel Chishty, a 79-year-old Pakistani accused of murder in 1992, dies in an Indian jail not only would it be a matter of shame, it would also be a setback in bringing home many Indian prisoners in Pakistan, says Shivam Vij.

The central government wants him to do it, the Rajasthan government wants him to do it, but Rajasthan's acting Governor Shivraj Patil wouldn't sign on a file for several months now. His obstinacy could become a major hurdle for many Indians and Pakistanis lodged in each others' prisons.

In an unusual order, the Supreme Court of India quoted William Shakespeare and Faiz Ahmed 'Faiz' to directly appeal to the government of Pakistan to pardon and release Indian prisoner Gopal Das.

Pakistan President Asif Ali Zardari signed the papers within 16 days, ahead of Prime Minister Yusuf Raza Gilani's visit to Mohali to witness the cricket World Cup semi-final between India and Pakistan with his Indian counterpart.

On April 7, Gopal Das crossed into India. There were those in Pakistan who had opposed his release, arguing he had a few months left to complete his sentence, and that he should not be shown mercy because he had been found guilty in 1984 by a Pakistani military court on charges of being a an Indian spy.

He and his family claimed this was not true, and wanted him pardoned because now 52, he had spent the last 27 years in several Pakistani prisons.

When Amna Chishty read about Gopal Das' case, she wondered why the Indians could not show similar mercy to her father, lodged in an Ajmer jail. Just like Das, Dr Khaleel Chishty had spent 19 years away from his family in Karachi. Just like Gopal Das, Chishty's family claims he was innocent, wrongly convicted for a murder. Moreover, the main accused in that murder case have been given pendency bail but Dr Chishty was not, for the simple reason that he is a Pakistani.

Starting with Pakistani journalist Beena Sarwar and People's Union of Civil Liberties Kavita Srivastava, a campaign to have Dr Chishty pardoned began in April this year. While it took the Pakistanis three weeks after the Indian Supreme Court's appeal to get Gopal Das cross the border, it has been over eight months since the campaign to free Dr Chishty began. 

There are many reasons why the case for pardoning Dr KhaleelChishty under Article 161 of the Constitution of India is more compelling than that of Gopal Das.

Firstly, unlike Das, who is in his early 50s, Dr Chishty has little time to live. Not only is he 79, he is disabled and bed-ridden. So bad is his health condition that he is taken to hospital by Ajmer jail authorities where his blood pressure is checked every day, and he is allowed to rest in hospital every few hours. His declining health is not mere old age. In March 2010 when he fell from his bed, got injured so badly he needed hip surgery, suffered a heart attack on the operating table. The heart attack meant his life had to be saved by the doctors with an unhealed hip fracture. That left him disabled.  

That, however, does not impress Patil. When sending the mercy petition back to the Rajasthan government on July 4, he had several questions to ask. Amongst them: is he really as ill as he claims to be?

The second reason that makes Chishty's case more compelling than Das' is that while Das was convicted of spying, and thus committing acts against the Pakistani state, Chishty is not accused of harming the Indian state, its integrity or sovereignty. Das was found inside Pakistan without a visa; his family claimed he had unknowingly strayed into the border. Chishty was visiting his ailing mother when he was trapped in a family fight.

He is convicted for a murder in which he is not even the main accused, not someone who fired the gun. The trigger was pressed in self-defence by his nephew, a minor. Dr Chishty was sitting on the terrace with these two nephews when some relatives of theirs climbed up with the intention of killing Dr Chishty. There were family jealousies and feuds behind this, as is not uncommon in South Asia. The other attackers who survived have also been convicted. Dr Chishty's nephew, who admits using the gun in self-defence, says Dr Chishty was framed since he was the main enemy of the other side, which knew he won't be able to return home to Karachi once named in the FIR. The circumstantial evidence against Chishty is flimsy; since his tobacco pipe and lighter were found on the terrace it was presumed he was there when the murder took place. His family says he had escaped downstairs since the attackers had come looking for him.

The Rajasthan high court has upheld Dr Chishty's conviction and the case is all set for the Supreme Court now. So let us presume that he did indeed commit murder; one could still argue that he has been given enough punishment for it. The murder took place in 1992, it has been over 19 years. These 19 years, until conviction in January, he was on bail. But he wasn't free.

He chose to live in an ancestral farmhouse on the outskirts of Ajmer, so that he is away from family squabbles. But he lived there under surveillance and could not easily leave the village. An eminent virologist in Karachi, he spent his retirement thus away from his wife and children. His daughter Amna Chishty wrote in a moving public appeal, "During this time he missed two of his daughter's weddings, the birth of nine of his grand-children and the house and library he had made for his retirement. He was forced to swap this with a lifestyle, which eventually made him emotionally, physically and financially bankrupt."

Dr Chishty's family approached Justice Markandey Katju, one of the two Supreme Court judges who appealed to Pakistan to release Das. It was time for justice Katju to return the favour. He wrote to the prime minister and the Rajasthan governor in his private capacity, even before he had retired. It was time to return Pakistan's favour, he said. Patil did not even give Justice Katju the courtesy of acknowledging his letter. Justice Katju wrote to Congress President Sonia Gandhi a few weeks ago, but Dr Chishty is still in jail.

Ravi Shankar Prasad of the Bharatiya Janata Party, which is in opposition in Rajasthan, objected to a sitting Supreme Court asking for the release of a Pakistani prisoner, and said he should work for the release of Indian prisoner Sarabjit Singh from Pakistan. Sarabjit Singh is awaiting his death sentence in Pakistan for his alleged involvement in bomb blasts in Lahore and Multan in 1990.

Amongst other things, what comes in the way of the campaign to have Sarabjit Singh pardoned, is the fact that India is not releasing Chishty even though Pakistan had pardoned Das. Such lack of grace and reciprocity on India's part affects the life of every Indo-Pak prisoner. It also doesn't help Sarabjit Singh's case that after kissing Indian soil and hugging his family in April, Das had immediately declared he had indeed been a RAW agent betrayed by India.

The Rajasthan government replied to Patil's questions in October and this time, as per the Constitution, he cannot return the file. He can keep sitting on it, which is what he is doing. One of his queries was why the trial took 19 years. Does a former Union home minister really find it unusual that a murder trial in India can take 19 years? This suggests he had long ago made up his mind to let Dr Chishty die in jail. 

Dr Chishty's family was in India last month, to meet him and also to appeal to the Indian government to release him. His grandson Ali Chishty was meeting him after some years; Dr Chishty could not recognise him. Dr Chishty met his family as though he was doing so for the last time, and said that everybody, the judiciary, the government and the media, were waiting for him to die.

If Dr Chishty dies in jail not only would it be a matter of shame, it would also be a setback in bringing home many Indian prisoners in Pakistan. Governor Shivraj Patil should spare a thought for Sarabjit Singh and his family, and about the plight of every Indian in Pakistani jails, and then ask his own conscience what is the right thing to do.