Pakistan: Justice In Terror – Analysis

By Tushar Ranjan Mohanty

A delay by the Khyber Pakhtunkhwa (KP, erstwhile North West Frontier Province) Government in hiring a defence counsel for the banned Tehreek-e-Nafaz-e-Shariat-e-Mohammadi (TNSM) chief, Maulana Sufi Muhammad, charged in nine cases, including sedition, conspiring against the state and encouraging terrorism. The ATC gave the Prosecution Department a final chance to hire a state lawyer before the next hearing on May 9, 2011. Sufi Muhammad, meanwhile, stuck to his decision of not hiring a lawyer to defend himself.

Earlier, on December 30, 2010, the Chief Justice of the Supreme Court of Pakistan, Iftikhar Mohammad Chaudhry, expressed his dissatisfaction with the poor functioning of ATCs, particularly with regard to the low disposal and high pendency of cases. The data cited indicated disposal/pendency figures of the ATCs in the four Provinces as follows:

Name of Province	Number of Courts	Total cases decided during the preceding year	Cases Pending
Punjab	14	1574	408
KP	11	1120	369
Balochistan	6	227	114
Sindh	11	340	1027

A day later, Prime Minister Yousuf Raza Gilani also voiced similar concerns in the National Assembly (NA), admitting that the ATCs needed improvement, because thousands of terrorists, who had been apprehended by law enforcement agencies, got bail from courts due to legal lacunae and resumed terrorist activities. The Prime Minister added, “I will not blame the judiciary, but we have to improve the Anti-Terrorism Act.”

The ATCs were established in 1997 under former Prime Minister Nawaz Sharif’s Government to deal with terrorism. The main purpose was to disburden the parent judicial system from the increasing number of terrorism related cases. The 1997 Anti-Terrorist Act was amended on October 24, 1998, by the Anti-Terrorism (Amendment) Ordinance, and originally applied to the NWFP and Balochistan. On August 27, 1999, the Pakistan Anti-Terrorism (Amendment) Ordinance extended the ATC system to the entire country.

The data on disposal and pendency of cases before the ATC does not adequately reflect the gravity of the situation. According to the Pakistan Security Report 2010 published by the Pakistan Institute for Peace Studies (PIPS), law-enforcement agencies had arrested 10,161 suspected terrorists across the country, including 8,863 alleged members of the Tehreek-e-Taliban Pakistan (TTP) and other Taliban affiliated groups, 50 al Qaeda operatives, 288 suspected Afghan Taliban, 18 militants of Jundullah (a Karachi-based group) and 147 cadres of Lashkar-e-Jhangvi (LeJ). A significant proportion of these suspects were released after preliminary investigations, although precise figures were not made public.

Partial reports from other sources help fill up the picture. According to an October 16, 2010, report in Dawn, the ATCs in the Punjab Province had freed the accused in 306 high-profile terrorism cases after witnesses resiled out of fear, while suspects in another 372 cases were acquitted on the basis of compromises between the parties, or on merit, through 2010. The Punjab Public Prosecution Department initiated proceedings against hardened criminals and activists of banned outfits in 1,324 cases registered under the Anti-Terrorism Act (ATA) from January 1 to September 30, 2010. These cases were sent to 14 ATCs working in Lahore, Gujranwala, Rawalpindi, Multan, Faisalabad, Sargodha, Bahawalpur and Dera Ghazi Khan Divisions. The report disclosed that 479 of these cases resulted in the acquittal of all accused, including 144 cases in Lahore courts, 62 in Gujranwala courts, 42 cases in Rawalpindi, 35 in Multan, 53 in Faisalabad, 62 in Sargodha, 42 in Bahawalpur and 39 in Dera Ghazi Khan. The prosecution was successful in securing convictions in just 199 cases, 43 in Lahore, 40 in Gujranwala, 15 in Rawalpindi, 14 in Multan, 22 in Faisalabad, 34 in Sargodha, eight in Bahawalpur and 25 in Dera Ghazi Khan. The prosecution department had 235 cases transferred from the ATCs, to lower courts because these were found to be unsuitable for trial under the ATA.

Some of the high profile cases, in which the accused were set free, include:

December 15, 2010: Judge Malik Akram Awan of Rawalpindi ATC No. I acquitted Qari Ilyas, who was accused of involvement in a suicide attack which had killed 15 Policemen and two civilians near Islamabad’s Melody Market on July 6, 2008.

May 13, 2010: Justice Raja Ikhlaq Hussain of Rawalpindi ATC No. II acquitted nine persons allegedly involved in a suicide attack, which had killed the then Surgeon General of Pakistan, Lieutenant General Mushtaq Ahmed Baig, and eight others in Rawalpindi on February 25, 2008, in the jurisdiction of the RA Bazaar Police Station.

April 9, 2010: Justice Raja Ikhlaq Hussain acquitted seven terrorists accused of involvement in a car suicide bombing targeting a 72-seater bus of the Inter Services Intelligence (ISI), parked in front of the Hamza Camp (Ojhari Camp) near Faizabad in Rawalpindi on November 24, 2007, which killed 32 people.

March 2, 2010: Judge Malik Akram Awan of the Rawalpindi ATC No. I acquitted seven accused who were arrested in connection with a suicide attack targeting a Pakistan Air Force (PAF) bus on the Faisalabad Road in Sargodha in Kamra, killing seven PAF officers and three civilians.

January 2, 2010: Rafaqat Hussain and Hasnain Gul, accused of involvement in two suicide attacks in Rawalpindi, were set free by Rawalpindi ATC No. I due to lack of evidence. They were also accused of being part of the conspiracy to assassinate Benazir Bhutto on December 27, 2007, in Rawalpindi.

Another media report on March 24, 2011, indicated that, during an internal security assessment in February, 2011, the KP Government was informed that, of 1,443 militants arrested, 695 had been bailed out, mostly by appellate courts, while 48 others had been acquitted by ATCs. The only conviction in the Province, to that date, had been delivered by an ATC of the Malakand Division in early March 2011, when a ‘commander’ of the Swat chapter of the TTP, Noorani Gul, was handed down a cumulative prison term of 120 years. The overall conviction rate in terrorist cases in KP stood at five per cent.

Worse, KP Information Minister Iftikhar Hussain observed, on February 25, 2011, that “those terrorists freed by the courts become active again as they are given the opportunity to regroup.” Giving details of cases decided by courts over the preceding two years, Hussain noted that 200 cases had been registered during 2009, but the number fell to 101 in 2010. However, a 75 per cent increase was recorded in the last quarter of the year. 96 per cent of those charged with terrorism were freed by the courts, while four per cent were convicted.

The Pakistani military establishment is particularly dismayed by the dismal performance of the Rawalpindi-based ATCs, which failed to convict even a single terrorist over the last three years for involvement in at least two dozen high-profile cases of suicide bombings in and around the twin cities of Rawalpindi and Islamabad between 2007 and 2010, primarily targeting Security Forces (SF) personnel. A senior Army official at General Head Quarters conceded, while requesting anonymity, that the country’s khaki (Army) top brass was really upset with the performance of the ATCs not only in Rawalpindi, but also in KP.

Lack of evidence is cited as one of the reasons for the acquittal in most the cases. The prosecution’s cases collapse because the trial judge often finds witnesses and confessional statements unreliable. Advocate Basharat Ullah Khan of Rawalpindi noted, “if the eyewitnesses were found at the right time, the prosecution fails to fulfil legal requirements, making the testimony invalid”. The lack of evidence also points a finger at the ill equipped Police Force. Policemen who had received training in skills like lifting fingerprints or gathering other forensic evidence, are rarely used, Akbar Nasir Khan, former Police Chief of Mianwali District in Punjab, observes; “If there is no fingerprint provided to the court, no bloodstained clothing, no ballistics provided, no firearms or other things, how can the court convict?”

Meanwhile, a close scrutiny suggests that, though the judiciary has failed to deliver, it is Governments at both the national and provincial levels which are more at fault. Governments appear disinterested in pushing appeals against inadequate sentences or the acquittal of militants and terror suspects. Section 25, Sub-section 4, of the ATA 1997, provides that “the attorney general may, on being directed by the federal or a provincial government, file an appeal against an order of acquittal or a sentence passed by a Special Court within 15 days of such order.” The clause is used with extraordinary reticence.

The President had promulgated the Anti-Terrorism (Amendment) Ordinance, 2009, on October 1, 2009, in the expectation that amendments to the ATA would help in taking appropriate action against those involved in acts of terrorism. Following completion of the constitutional life of 120 days of that ordinance, it was re-promulgated in February 2010, but was allowed to lapse on May 31, 2010, with the Federal Government making no attempts at its renewal, demonstrating a surprisingly lackadaisical approach in dealing raging terrorism in the country.

The problem, clearly, lies at every level of the system, with each concerned agency demonstrating a lack of capacity and will to address a problem that grows more urgent by the day. Given the enveloping institutional decay in Pakistan, it remains unlikely that much will change in the foreseeable future.

Tushar Ranjan Mohanty
Research Assistant, Institute for Conflict Management