RAWALPINDI: No less than 23 suspect terrorists have been acquitted of the charge in the past six months by the trial courts in Rawalpindi and Islamabad. That sounds alarming but only until one learns the reason -weak prosecution.
Each of the 23 accused went free because the prosecution failed to connect them firmly with the seven terror attacks they were said to have a hand in. Mostly, the prosecution's case collapsed because the trial judge found the witnesses and confessional statements unreliable.
“In my experience, the prosecution in suicide attack cases overwhelmingly relies on eyewitnesses to the incident who later identify the suspects during the identification parade in jail,” said Advocate Basharatullah Khan who has represented accused people in such cases.
However, the prosecution case is usually very weak legally; for instance eyewitnesses are found by the investigators after the accused have been arrested. This weakens the case as ideally eyewitnesses' testimony should be recorded soon after the incident and not after the accused are arrested, he pointed out.
This is exactly what happened in the case of Ghulam Mustafa Tabbasum and Shafiqur Rehman who were recently acquitted after having been tried for being involved in the suicide attack at the entrance of Rescue 15 in Islamabad in 2009.
The Margalla police in their preliminary investigation report did not mention any eyewitness. Later they added that two policemen claimed to have seen the two suspects roaming near the office of Rescue 15 two days before the suicide attack.
And if the eyewitnesses were found at the right time, the prosecution fails to fulfill legal requirements, making the testimony invalid. This was the mistake made by the prosecution which won the accused of the suicide attack on a police gathering near Melody Market in 2008, Qari Ilyas, his freedom.
The Aabpara police failed to fulfill all the legal requirements of holding the identification parade at the jail under the supervision of the judicial magistrate.
The two police witnesses identified Ilyas in the absence of the magistrate and confirmed that they saw him 'directing' the suicide bomber to attack the police gathering on July 7 2008. The testimony was thrown out of the court.
Lazy eyewitnesses also came to the rescue of Qari Ilyas in another case. Along with Mohammad Rizwan and Rao Shakir Ali, he was accused of a car bomb blast outside the Danish embassy in Islamabad in June 2008.
The prosecution based its case on two police constables who said they saw the three outside the embassy soon before the blast. Later these two constables identified the three accused in a police station — in violation of rules of the identification parade. In September 2010, all three were acquitted.
A month later, an anti-terrorism court acquitted five men in two suicide cases one â€“ outside the office of Islamabad police's special branch and at the checkpost of Frontier Constabulary. The reason? The eyewitnesses.
One of the two witnesses never appeared in court and the other could not identify the five men in the court though he had earlier testified that he saw them near Jamia Faridia planning the suicide attacks.
“In all these cases, the investigators had no legal means to link the suspected terrorists with the actual incident and as a result fabricated witnesses,” Advocate Khan said.
A second main reason for the acquittal of terror suspects in the last six months is that the prosecution could not prove the circumstances in which the suspects were arrested; in almost all the cases the families of the suspects alleged that the suspects had disappeared long before the police found them.
In support of their contention, the families could provide FIRs they had filed against the disappearance of their relative or moved the high court against the missing men, the lawyer added.
“Most recently, the Lahore High Court in Rawalpindi on April 12 acquitted nine men as it could not be proved that they had been arrested from a house on the outskirts of Rawalpindi cantonment,” the lawyer said.
These nine men had been arrested and accused of the murder of Surgeon General Mushtaq Baig and for possessing explosives. However, they were acquitted earlier of the murder.
But this year, though a magistrate had convicted the nine men for carrying explosive material and illegal weapons, the high court set aside the conviction.
This decision came because the prosecution could not satisfy the court about the identity of the owner of the house in which these nine men were supposed to have been living at the time of the arrest, Basharatullah told Dawn .
However, in the last case, the prosecution's blunder was so great that it has left observers bereft.
Former MMA MNA from Karak Shah Abdul Aziz was acquitted by a court from the charges of kidnapping and beheading a Polish geologist in 2008 in Jand, Attock. This is because the entire case was based on the confessional statement of Attaullah, the second accused.
However, the case came to an abrupt end when it was discovered that Atta's statement was written in English while he only spoke and understood Pushto.