Why can’t Pakistan convict any terrorists? Part I – by Rabia Shakoor and Eqbal Alavi

Let’s consider the acquittals in high profile terrorism cases in May 2010 alone:

On May 30, Maulana Abdul Aziz of Lal Masjid was acquitted in the Children’s Library case.

On May 25, the Supreme Court dismissed the appeals filed by the authorities challenging the release from house arrest of JuD chief Hafiz Saeed (ordered by the Lahore High Court).

On May 13, anti-terrorism Court No. 2 of Rawalpindi acquitted 9 suspects detained on the suicide attack on Surgeon General Mushtaq Beg of the Pakistan army.

On May 5, the Rawalpindi Anti Terrorism court acquitted four suspects in the Marriott bombing case, including Dr. Usman who has been implicated in various terror attacks including the attack on the Sri Lankan team and the GHQ attack.

The question remains. Why can’t Pakistan convict any terrorists?

In this article by Vidya Rana, a police official makes a very interesting observation about the lack of information sharing by the intelligence agencies:

To a question on this particular issue, a police officer expressed his sheer frustration, which, according to him, emanates from a host of factors.

“We are being used as a ‘pick-n-drop’ service to terrorist-suspects. Police usually arrest a terrorist on tip-off of intelligence agencies. The little information we gather during preliminary investigation, it goes to media to justify the arrest. After taking physical remand, the arrested is handed over to those who provided tip-off for further investigation. But after submitting the challan, police find it difficult to substantiate the charges with evidence deemed concrete by the court,” the police officer said adding that it all happens because investigating agencies do not provide complete evidence to police which can land the terrorist in serious legal trouble during the court proceedings and the subsequent judgment.

Another police officer said they do not have any mechanism to gather relevant evidence due to legal and procedural complications.

“Even if police have arrested someone red-handedly, their witness is not acceptable in a court of law. Not only this, we do not have data base on terrorists, neither recording tracking system is available. We are dependent on other security agencies and they provide us with some record at will,” he explained.

This account calls into question the role of the intelligence agencies. why do they only selectively provide information to the police and the prosecution? Shouldn’t their primary job be to assist in the arrest and conviction of terror suspects? Instead the police is left, as this official describes it, as simply being a ‘pick and drop service’ to terrorism suspects.

It’s no secret that many of these terrorists have at one time been cultivated as “assets” for these agencies. A good example is Maulana Abdul Aziz of Lal Masjid. It’s possible that intelligence agencies are not willing to share enough information with the police and the prosecution in order to ensure a successful conviction in case that information will implicates elements within the intelligence agencies themselves. Two examples will suffice to show the dubious dedication of the military leadership to successful terrorist trial and prosecution.

The first example is the case of the GHQ attack of 2009. Despite a terrorist being caught alive (which should have been a major source of information and an important tool in preparing the prosecution), the military leadership’s approach to investigating the attack on its own headquarters seemed non-serious. Despite a report being prepared and submitted to General Kayani based primarily on the evidence provided by Dr. Usman (the surviving terrorist), no criminal action was taken against him or any of the individuals or organizations identified in the report.

The second example is in the case of Major Adnan who was dismissed from the army for reportedly spying for banned terrorist outfits. After the LA Times picked up the story and connected it to the Faisal Shehzad case, the military leadership made every attempt to deny and minimize Major Adnan’s role in the Times Square case. Amazingly, despite Maj. General Athar Abbas admitting, on May 29, that Major Adnan had had contact with banned organizations, Major Adnan was released and sent home to his family where the media was able to contact him and verify that he had indeed been released. The release of Major Adnan defies all logic – how can the military possibly release a senior officer who has confirmed links to banned terrorist organizations and then claim that it is seriously interested in counter-terrorism?

It was further frightening when a report from the Secretary Prosecution, Government of Punjab confirmed the lack of cooperation from the intelligence agencies. The report stated:-

the accused remained under probe with the agencies prior to the arrest (by police), but no positive information was passed onto the local police and thus the role played by the agencies couldn’t be availed to probe the guilt of the accused

According to police officials, no technical evidence was handed over to the police like forensics, NADRA record, mobile record, findings of polygraphic machines, etc. They say acquiring such things is not possible without excellent personal relations with the intelligence officials as it is done only through the sweet will of the keepers of such record and there is no legal force for pressuring them. The police even don’t have free access to NADRA record as they pay Rs 25 for verification of a computerised record, they say.

The report complains that:

“No one from any agency facilitated nor any liaison was made from any person to pursue the prosecution in the court of law
The will of the intelligence agencies to ensure access to government data is limited to them is highly deplorable. It has been revealed earlier that the direct taps on cellular connections is limited to the ISI and it is vehemently guarding its exclusive access. Such pity fist fights to maintain dominant position within the intelligence community is objectionable since it limits the effectiveness of counter terrorism operations. Not only do the local law enforcement agencies have to “apply” to the ISI for a tap, they have complained that such requests take sometimes even days to be completed rendering them useless. If these highly expensive technical facilities provided to the intelligence agencies cannot be used effectively in prosecuting the apprehended terrorists, then the usefulness of these gadgets and equipment becomes diminished.

The will of the intelligence agencies to ensure access to government data is limited to them is highly deplorable. It has been revealed earlier that the direct taps on cellular connections is limited to the ISI and it is vehemently guarding its exclusive access. Such pity fist fights to maintain dominant position within the intelligence community is objectionable since it limits the effectiveness of counter terrorism operations. Not only do the local law enforcement agencies have to “apply” to the ISI for a tap, they have complained that such requests take sometimes even days to be completed rendering them useless. If these highly expensive technical facilities provided to the intelligence agencies cannot be used effectively in prosecuting the apprehended terrorists, then the usefulness of these gadgets and equipment becomes diminished.

Apart from these larger open questions, there are a number of other reasons why the number of terror convictions have been so low.

Weak / poorly prepared prosecution and intimidated witnesses not appearing in court. As an example, consider the Marriott bombing case.

The [counsel for the accused] said that the prosecution had named 128 witnesses and only 83 recorded their statements, nine witnesses had expired, five foreigners had left the country and the rest did not appear in the court.

Giving details of allegations against the acquitted men and three men who were absconding, the lawyer said that police had accused the four arrested men of facilitating Zakarullah, the main suicide attacker who had driven an explosives-laden dumper truck into the hotel.

Similarly In the case of Malik Ishaq a terrorist leader of the Lashkar-e-Jhangvi, no fewer than eight witnesses were killed by Malik Ishaq’s network of terrorists during the course of his trial.

“Hosing away” of evidence and counter-productive interference by intelligence agencies: The UN Commission report on the Benazir Bhutto murder describes in detail the deliberate tampering of crime-scene evidence that took place shortly after the attack on BB. Hosing down of the crime scene, hosing down of her car, etc. In the Marriott bombing case, also, the counsel for the defense pointed out that contrary to the account of the Secretariat police, the suspects had not been arrested by the police but had been picked up by the intelligence agencies “a few days after the attack” and had apparently spent some days in their custody before being turned over to the police. In the Daniel Pearl kidnapping case, Omar Saeed Sheikh surrendered himself to Brigadier Ejaz Shah who had reportedly been his “handler” in the ISI and spent a week in his custody before his “arrest”. Such unexplained irregularities make it almost impossible to successfully build a case for the prosecution.

The the intelligence agencies operate under SOPs from executive branches which have no legal value. They have no legal provisions available for apprehending suspects and this can be done only through the police, legally. Most of they times they apprehend suspects on their own and later the Police has to furnish backdated FIRs and alter their roznamcha to show that the suspect was apprehended by them. This becomes a problem because if the defender’s lawyer catches this discrepancy, then it can become a technicality that will result in acquittal.

Moreover, in one case the intelligence agencies handed over the suspects one year after apprehending them. How is the prosecution supposed to present this detention as legal when the only allowed provision is holding a suspect for 24 hours before it becomes compulsory to present him before a magistrate and get a judicial remand?

In the case of the prosecution of the attack on the Surgeon General and the attack on the AFPMGI bus, it is horrifying to note that the affected department (Pakistan Army) not only failed to file an FIR, nobody from the concerned department testified in court nor did it show any interest in the prosecution. The concerned department conducted its own investigation, did not share its findings with the either the JIT or the Police and according to the report, “neither assisted nor showed any interest in the trial of the accused”. Such actions are deplorable and are extremely conducive to acquittals of guilty terrorists.

As the noted constitutional lawyer Babar Sattar said:-

This gap between the requirements of the law and our evolving practice of military agencies taking a lead role in investigating terror attacks then gets bridged by fabricating a bogus story about backdated arrest of the accused by the police and consequent recovery of weapons. The aim of such exercise is to satisfy the procedural requirements of the law. But it doesn’t work. A trial, simply put, is the story of a crime being told by the prosecution. The arrest or the accused and recovery of evidence linking the accused to the crime are the two foundational pillars of the prosecution’s case.

But when the story weaved by the police and the prosecution is simply not true, as it has to camouflage actual facts and the role played by military agencies, even a half decent defense attorney is able to poke holes in it and create doubt. The benefit of this doubt caused by the procedural impropriety practiced by state agencies then goes to the accused who walks away scott-free. And the rest of us keep scratching our heads and wondering why our judges and our criminal justice system fail to put the bad guys behind bars.

Intimidation of the prosecution and judges: consider this contemporary account of the famous Daniel Pearl kidnapping case which describes in detail the intimidation of the lead prosecutor, Raja Qureshi. The defence lawyer of the accused had accused the prosecutor of being guilty of blasphemy and informed the judge that he would be going to hell. Bomb threats were made to the city jail in Karachi which led to the removal of the trial to the city jail in Hyderabad. The Washington Post journalist was a witness to Raja Qureshi receiving threatening phone calls in his home.

Recently, the judge presiding over a case involving Sufi Mohammad in the ATC Malakand, was not only threatened but the Taliban paid a visit to his house and threatened his family as well who were living in Peshawar.

State prosecutors are expected to perform under the worst circumstances: the extended networks of terror suspects threaten their security, and complainants and witnesses refuse to testify in ATC proceedings for fear of reprisals. On a more prosaic level, prosecutors have no access to offices, legal resources or clerical staff, and few funds are available from the government to revamp the ATC infrastructure.

Intimidation of the investigative agencies: An example is the attack on March 9 on an office of the interrogation centre of the Special Investigation Agency (SIA) of the Punjab government while Dr. Usman, the prime suspect in the Marriott case was allegedly being interrogated there.

Lack of interest of the media and lack of public monitoring of terror cases: In countries like India and the United States, high profile terror cases are constantly monitored by journalists and civil society. In Pakistan, due to a) the media’s right wing bias and b) the secretive nature of anti-terrorism court trials there is little interest or knowledge among the public and the press of a terrorism trial while it is in progress. The media and the public are simply left in the dark and seem to show little interest in cases that should be at the forefront of public attention. They are then left mystified when there is a small news report that a high profile terrorist who in some cases (such as Maulana Abdul Aziz) was even caught on camera committing the crime he has been accused of, is released with little explanation by the courts.

Part 2 of this series: https://lubpak.com/archives/12679
Part 3 of this series:https://lubpak.com/archives/18179

Comments

comments

Latest Comments
  1. Ahmed Iqbalabadi
    -
  2. Aamir Mughal
    -
  3. Farhan Q
    -
  4. Saleem Ahmed
    -
  5. Saleem Ahmed
    -
  6. Sarah Khan
    -
  7. cheap retro jordans wholesale
    -
  8. comment acheter des kamas
    -