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Faulty prosecution

November 19, 2012

SOME time ago, a Pakistani court acquitted nine men who had been on trial for the February 2008 suicide attack which killed the Pakistan Army’s surgeon-general, Lt-Gen Mushtaq Ahmed Baig, in Rawalpindi’s Garrison area.

The presiding judge, Justice Raja Akhlaq Hussain, said the prosecution had “miserably failed to establish [the] involvement of present accused in the alleged occurrence”. His 12-page judgment is testament to what is wrong with anti-terrorist prosecution in Pakistan, and squarely blames the police for their inability to collect evidence and substantiate allegations.

Justice Hussain highlighted the persistent dilemmas facing terrorist cases in Pakistan: the prosecution routinely fails to produce evidence that can be upheld in a court of law.

The blatant neglect of procedure is presumed as one of the reasons of failure. In one case, the police kept the accused for 23 days at a police station where the prosecution witnesses were serving as police constables.

The lack of professionalism in the collection of evidence led to the release of the accused in the deadly 2002 attack by a terrorist group on the US consulate in Karachi that killed 12 people.

The attackers, who had made a failed attempt on Musharraf’s life about one and a half months before, caused carnage when they rammed their explosives-laden vehicle into the consulate. An Anti-Terrorism Court (ATC) convicted four terrorists, but the high court overturned their conviction due to inconsistent evidence during the hearing of an appeal against the conviction.

The police do not take this apportioning of blame lying down; they point fingers at lapses committed by other pillars of the criminal justice system. The prosecution occupies the middle ground between the judiciary and the exposed vulnerability of police; they are the interlocutors, the agency which takes the police’s case forward to the courts.

Hence, they are necessarily exposed to the working lapses of the police, and in some cases take remedial measures to correct them. However, the police still blame them for not accommodating constraints by not strengthening the police case with adequate legal cover and in general making terrorist prosecution more difficult.

Then there are the structural issues within the ambit of legislation. Terrorism has been exhaustively defined in Section 6 of Anti-Terrorism Act (ATA), 1997, and the superior courts of Pakistan declare any ‘action’ an act of terrorism if it is ‘designed’ to coerce the government or to provoke sectarianism etc.

An overview of the act in terms of judicial decrees says that this law aims to prevent terrorism and sectarian violence, enable the speedy trial of heinous offences and for matters connected therewith or incidental thereto. Provisions of the act contain, to some extent, the substantive law, but the law is mainly procedural in nature.

The Code of Criminal Procedure (CrPC) 1898 has been made applicable to the proceedings before a special court by virtue of Section 32 of the 1997 act. This means that the ATA emphasises procedure that is different from a normal criminal trial, (i.e. special courts and speedy trials etc.) but wherever the ATA is silent about procedure, the law of normal criminal trials which is mentioned in the CrPC prevails.

The ATA is not exhaustive in nature, and thus the CrPC and the Qanoon-i-Shahadat (law of evidence), and judgments of higher courts, are used in aid of the ATA to reach decisions.

The ATCs are creations of the ATA and the CrPC has been made applicable to facilitate the courts in delivering justice. This essentially means that ATCs, like any other sessions (criminal) court in Pakistan, have to follow the established principles of the criminal justice system which have been evolved by the Supreme Court.

Thus, when any accused is sent to an ATC to be tried under the ATA, the initial presumption of innocence is attached to him and the prosecution is duty-bound to prove his guilt beyond any reasonable shadow of doubt. This is not easy to prove in Pakistani courts where direct eyewitness testimony is the preferred mode of evidence, which is an antiquated source as compared to forensic evidence — which is hardly ever used in Pakistan. An important aspect of the 1997 Act highlighted by the Supreme Court is that an act of terrorism is a sine qua non for the application of the provision as contained in Section 6 of the ATA. Whether or not it is an act of terrorism cannot be determined without examining the nature, gravity and heinousness of the alleged offence, the contents of the first information report, its cumulative effect on society and the evidence which has come on record. Section 6 of the ATA defines acts of terrorism as everything which falls under it as acts of terrorism, which can be tried under the ATA vis-à-vis Section 7 of the ATA.

Section 7 of the ATA determines the punishment of the crime committed, and it is in the hands of the police to determine — after hearing out the complainant — that the occurrence falls under the ambit of Section 6, and under what category of Section 7 it would be tried under the ATA.

It is alleged that this power has been widely abused by the police. It is incredible that until recently, the addition of this section — which can determine the life or death of an accused — is added in police stations by a minor police functionary who is barely literate. This semi-literate junior officer is usually the favourite of the station house officer, and does all his correspondence work since the latter is too busy.

The wide application of this section is now generally frowned upon by senior police management, with approval required to be sought from more senior echelons of the police before being included in the FIR. The ATA itself was amended by many ordinances, but since the ordinances are a temporary phenomenon, with their lapse the same old ATA remains — with its many flaws.

Thus, even upon superficial scrutiny, the criminal justice system relating to terrorist prosecution presents many challenges that need to be resolved before the dismal conviction rates of terrorists can be improved.

The writer is a security analyst.