The bloodbath of Shia Muslims at the hands of fundamentalist Sunnis continues along the streets and roads in Pakistan. The Shia victims of sectarian violence have little hope for justice since three out of every four terrorism cases end up in an acquittal on technicalities.

Yesterday, Shias en route to their homes in Gilgit were removed from buses, lined up along the road, and shot in cold blood near Kohistan. Eighteen perished, while scores others were injured. Less than two weeks ago in Parachinar 43 Shias were killed in a bomb blast and subsequent firing by the security agencies. Eyewitness account reveals that the bomb was detonated remotely after it was placed on an empty cart in the Kurrami Bazaar by a person who disappeared in the same hotel where security forces were hosting reportedly “internally displaced people.”

While the convoy of buses near Kohistan was attacked by Jundallah, a sectarian outfit that thrives on murdering Shias, the attack in Parachinar was perpetrated by the supposedly “good Taliban”, who only recently were presented to the world as those who have renounced violence. However, killing Shias for the Taliban, both good and bad, is fair game.

Shias, however, have not been the only victims of violence in the past two weeks in Pakistan. Peshawar is experiencing a spell of murderous violence. A bomb blast at the Kohat Road bus stand killed 13 last Thursday. The very next day four policemen died in a coordinated attack on the fortified Kotwali police station by militants who blew themselves up during the attack. Yesterday, a Chinese woman and her guide were murdered in the centre of the Peshawar City. In the neighbouring city of Nowshera, six people were killed in a bomb attack after a political rally on Monday.

While the attacks on police and indiscriminate violence against civilians is equally reprehensible, the perpetrators of violence, however, are not attacking the victims for their religious, political, or any other beliefs. The attacks on Shias and other religious minorities are targeted killings primarily motivated by the bigoted religious intolerance exhibited by certain fundamentalist Sunni sects.

The State seems helpless in delivering justice even when it is successful in arresting those accused of terrorism. The path from arrest to conviction is punctuated with traps that capture the public prosecutors, but give a free pass to the accused. Several well-known terrorists have been acquitted by the anti-terrorism courts because of the flawed judicial system where errors and omissions during documentation, investigation and prosecution of the crimes have earned the accused their freedom who wasted no time in rejoining militant outfits.

When courts fail victims

During 1990 and 2009, the anti-terrorism courts (ATC) in Punjab alone failed to convict the accused in 74 per cent of the 311 cases in which a final verdict was delivered. Most of the accused were acquitted not because they were able to demonstrate and/or substantiate their innocence, but because the judicial system in Pakistan is not capable of handling terrorism cases where prosecution’s case rests on circumstantial and forensic evidence, and not on the eyewitness account.

A systematic review of 178 ATC verdicts by Syed Ejaz Hussain, who until recently served as the deputy inspector general of police for anti-terrorism in Punjab and also holds a doctorate in criminology from University of Pennsylvania, revealed that the courts acquitted the accused in 77 per cent of the cases. Most of the accused were apprehended for being involved in sectarian violence.

The review of cases revealed that errors, omissions, misconduct and the judicial system’s undue requirements during the registering of the complaint (first information report (FIR)), investigation of the crime, and prosecution lead to the acquittal in three out of four cases.

In 36 per cent of the cases, the courts acquitted the accused because they were not personally named in the FIR. This is an absurd requirement in terrorism cases. How can one ascertain the identity of the accused immediately after the terrorist attack when the FIR is registered? In most instances, FIRs are registered against unknown accused, which should not be the reason for the courts to acquit the accused because their identity was not known to the police or to the victims the very second the attack took place.

In 11 per cent of the cases, the courts have acquitted the accused because eyewitnesses could not put the accused at the crime scene. Again, an absurd requirement by the anti-terrorism courts. The dead victims of the terrorist violence cannot step out of their graves to identify the accused for the courts. The injured may have never seen the person/s detonating the bomb through a remote control device. Victims of sniper firing never know where the bullet has come from. Why then are the courts acquitting the accused because the eyewitnesses could not place them at the crime scene?

In another 17 per cent of the cases, the courts have acquitted the accused because the FIR registered soon after the incident either did not describe the unknown accused or his role in the crime.

It appears that the courts fail to appreciate the fact that perpetrators of terrorist violence are not immediately known to the victims or to the police. Their identities are ascertained much later as the case is investigated. Just because the accused have not been singled out in the first information report, which is filed immediately after the incident either by the victims or by the state, the courts should not necessarily acquit the accused, especially when other compelling circumstantial/forensic evidence is available to consider.

The review of the 178 cases further revealed that many cases were thrown out because of the shortcomings during investigation. In 35 per cent of the cases issues with the police line-up (identity parade) resulted in an acquittal. In some cases the witness failed to identify the accused in the line-up, while in other cases a police line-up was never put together. In 26 per cent of the cases, the recovered evidence was found unsatisfactory by the courts. For instance, the recovered evidence, such as the weapon used in the crime, did not match the weapon described by the forensic expert. In another 14 per cent cases, the confessional statements were not recorded adequately, which resulted in an acquittal. Excessive delays in submitting cases to the courts, improper recording of witness statements, and compromised medical or forensic evidence also resulted in acquittals.

The above suggests that there is an urgent need to train the investigators in modern detective work that now involves forensic scientists, and computer and communication experts. Furthermore, there is a need to have the public prosecutors and magistrates advise detectives so that the evidence collection procedures comply with the regulations set by the courts. For instance, there should never be a delay in presenting the accused in front of the courts. The public prosecutors are intimately aware of the repercussions of such delays, and hence they can advise the detectives of the legal requirements. In fact, the government may want to show episodes of shows, such as Law & Order, and CSI to the investigators in Pakistan so that they may learn about the intricacies of investigative work.

Lastly, missteps during prosecution have also resulted in acquittal of the accused. Most problems arise with witnesses who often change their testimony, fail to show up during the trial, offer contradictory testimony or settle with the accused. Most of the time the witnesses feel intimated by the accused and out of fear for their lives or that of their families, they refuse to bear witness. This suggests that there is an urgent need for a witness protection program in Pakistan to offer necessary safety to the witnesses in terrorism cases. In fact, the witness protection program may work only if the witnesses are settled abroad afterwards rather than having them settle in Pakistan where they will always be looking over their shoulders.

The Supreme Court and the press in Pakistan are pressuring the intelligence agencies in the missing person cases who have been accused of terrorist activities and have been secretly kept in custody by various intelligence agencies. The Supreme Court is well-placed to argue and stand for the rights of the accused, who are presumed innocent until proven guilty.

At the same time, it is also incumbent upon the higher courts and the press in Pakistan to be mindful of the fact that the accused in terrorism-related violence are most likely to be acquitted by the lower courts on technicalities. I understand and appreciate that due process matters.

However, the rights of the victims of terrorism matter as well. With the odds of conviction being less than one in four, the balance is tilted in favour of the accused rather than the victims of terrorist violence in Pakistan.

Murtaza Haider, Ph.D. is the Associate Dean of research and graduate programs at the Ted Rogers School of Management at Ryerson University in Toronto. He can be reached by email at [email protected]

Source: Dawn

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