In order to be effective, any Criminal Justice System must instill deterrence among the public for violation of penal statutes. Unfortunately, in Pakistan, it is axiomatic that our Criminal Justice System does not garner such command. Such lack of esteem may be attributed to a number of factors which eventually capitulate to a negligible conviction rate, a denunciation for any criminal justice system.
Pinpointing a single defect in the system seems impossible; rather it is an accumulation of factors that contribute to the consistently low conviction rate in Anti-terrorism Courts in Pakistan: from investigation to administration to prosecution and onwards.
Anti-Terrorism Courts were established under the Anti-Terrorism Act, 1997 which came into force on 20.08.1997 and repealed the Suppression of Terrorist Activities (Special Courts) Act, 1975. The new legislation offered a more comprehensive dispensation than the former, encompassing investigation, offences and their punishment, investigation and witness protection etc. In its infancy, the anti-terror dispensation was validated by the Supreme Court of Pakistan.[1] The apex Court, cognizant of the grave insecurities facing Pakistan, countenanced the establishment of Anti-Terrorism Courts to try offences of Terrorism.
Terrorist activities still persist more two decades later. Miscreants have not abstained from their terrorist designs, much to the insecurity and loss of the general public in Pakistan. This continued rebellion against the state provides a manifestation that terrorists have not been deterred by the ATA-regime, and that fact bears a direct causal link to failure in bringing terrorists to justice: the conviction rate in Pakistan is close to trifling.
But does the fault for a low conviction rate stem from the legislation itself? The answer would be in the negative. The Anti-Terrorism Act provides a comprehensive dispensation:
Section 6 and 7 of the Legislation prescribe the offence of terrorism and the punishment therefor. Sections 8, 11G, 11H, 11J, 11K, 11V, 11W, 11WW, 11X, 21C, 21I, 21J and 27 encapsulate other ancillary offences triable by Anti-Terrorism Courts.[2] Punishments for all these offences have been prescribed as well.
Section 12 confers jurisdiction upon the Anti-Terrorism Court to try offences under the Act whereas Section 13 established Anti-Terrorism Courts for different districts in Pakistan as per the requirement therefor. Section 17 vests the Anti-Terrorism Court with additional jurisdiction to try other offences forming part of the Charge sheet. Section 19 enlists the procedure and powers of the Anti-Terrorism Courts.
Section 18 requires that all cases under the Anti-Terrorism Act require the participation of Public Prosecutors which may be appointed as per the requirements of each district by the respective Governments. Section 19B requires them to undertake pre-trial scrutiny. The Anti-Terrorism Court may even take cognizance of a case on its own volition.
Section 19 pertains to investigation, the investigators and the composition of a Joint Investigation Team that may be tasked with collective investigation. A thirty day time limit binds investigators to compile a police report and send it to the court for initiation of proceedings. A seven day time limit is prescribed for the Court to conclude a trial after its commencement.
Quite importantly, section 21 requires that protection ought to be afforded to every participant in the proceedings including Judges, Counsel, Prosecutors and witnesses etc. It also enlists the special measures that can be taken to counteract threats to security.
All in all, the language of the Anti-Terrorism Act, 1997 caters to many of the requirements of the Criminal Justice System and envisions efficient and expeditious administration of terrorist cases. The application of the law, however, has not been so efficient. As a result, convictions are rare at best.
On the whole, there is a variety of factors that contribute to the failure to secure convictions at a reasonable level.[3] These factors, which are wide-ranging, include the following:
It is safe to conclude that all these factors are deeply rooted in the criminal justice system. [12]
Many infrastructural problems transcend trial-oriented problems: lack of financing, understaffing, delays in concluding cases, security concerns etc. all compromise the expectation of the bringing terrorists to justice. [13]
At the heart of the every case lays an element of investigation. Investigation marks the formal endeavor to probe into the details of any suspicious activity. It is a sine que non that effective investigation is essential for securing actual justice in the criminal justice system. Yet, in Pakistan, investigation is rarely effective. Much of that has to do with the improper training of investigators and their unfamiliarity with modern modes of investigation and collection of forensic and scientific evidence. For instance, terrorists now resort to electronic means of propaganda. Investigators, must, therefore, be in a position to handle and utilize the most up-to-date modes of investigation. Of course, the responsibility rests upon the state to ensure that sufficient facilities are provided to up-and-coming police officers to acquaint them with modern techniques now essential to effective investigation. [14]
Another primary reason for the ineffectiveness of investigating agencies is the burden of work undertaken by them on a regular basis. Officers are saddled with a plethora of voluminous documents and evidence, which require minute and careful analysis. In 2019, a single investigator investigated over 42.41 cases on average. Of that number, an average prosecutor could only finalize only three quarters of the investigations assigned i.e. 32.98.[15] Because of this overwhelming workload, Investigators are compelled to hurriedly conclude investigations in order to meet deadlines or otherwise. The failure to ensure proper investigation yields direct adverse consequences to the ensuing prosecution which will essentially rely upon the evidence collected. Corruption, of course, is an oft-cited reason too.[16]
Time and time again, Law Commissions [17] and Courts alike have stressed that low conviction rates are primarily attributable to flawed investigation, and its corollary, weak prosecution. Former Chief Justice of Pakistan, Iftikhar Muhammad Chaudhary, at the full Court address for the year 2013-14, brought the impact of poor investigation to the fore. [18] According to him “negligence on the part of investigating agency was damaging the prosecution case......Due to defective and careless investigation and weak prosecution, a large number of terrorists and criminals get released by courts, which is not only lowering the image of judiciary but also encouraging the criminals.......There is need to improve the quality of investigation by educating the investigators with the current laws.” He pointed out that each investigation officer (IO) had a “heavy workload, which is one of the causes of deterioration in the standard of investigation...It should be ensured that a reasonable number of cases be assigned to each IO”.
Strong counter terrorism systems require constant and constructive coordination among members of the Prosecution teams and the Investigation teams. Given the gravity of terrorist activities, the Parliament had opted not to replicate the somewhat archaic Code of Criminal Procedure powers, but it nonetheless made them applicable under the giuse of general powers exercisable by investigators. However, the mode of inter-departmental communication and inter-departmental coordination has not been provided in the legislation; as a result, it is incumbent upon state institutions/departments to impart knowledge and training among one another to effectively execute the provisions of Counter-terrorism legislation.
Crimes of terrorism are crimes against the public at large, more heinous and grave than crimes of ordinary nature, and ought to have better counteraction than the existent state of affairs. Needless to say, the Anti-Terrorism Act, 1997, and the challenge of terrorism, entails cooperation among prosecutors, investigators (from any agency or force), courts and other state institutions to instill strength into our justice system against the problems that terrorist activities pose. Not only does Pakistan require prosecutorial academies, it needs an integrated coordinative regime where all stakeholders can acquire training, investigative and logistical, for the effective administration of the criminal justice system.
But coordination should not stop right there. Every individual case has its own sensitivity. It should be ensured that all departments/agencies are, in actuality, engaged with one another in the investigation process. Thereafter, after the challan is forwarded to the Court, equal, if not more, efforts should be made to support prosecutors. Prosecutors, who also require special training in the modern world, should be equally receptive and should yearn to be more participative in the trainings because it is the prosecutors who eventually have to relay that evidence to the Court for consideration.[19] Prosecutors and investigators should work together, from the pre-trial scrutiny stage to the culmination of the trial. Part of the problem is highlighted by the procedural arrangements in the Federal Capital which lacks a prosecution team. Police therefore adopts the practice to directly sending challans to the Courts without any pre-trial scrutiny.
An area of major concern is the assurance of security to prosecutors, witnesses, investigators and judges alike. One major reason for low conviction rate is the insufficiency of evidence because in many instances, witnesses abstain from appearing in court out of fear.[20] Many trials are already conducted in jail premises because of the seriousness of those cases.[21] The responsibility of safety of such person falls upon the state through its law enforcement agencies. [22] Terrorists have and will continue to adopt means of intimidation to disrupt the course of justice. Prosecutors, nor judges, or witnesses should be in a position to feel insecure and fear for their and their families’ safety.
Further complexities may arise on transfer of cases from one territory to the other.[23] In such instances, it will often be out of the control of the witnesses to comply with the trial schedule. In such circumstances, law enforcement agencies should provide protection to those individuals and provide assistance to them in entering appearance before the Courts.
Perhaps the most conspicuous impediment plaguing the efficient administration of the legal system was the volume of cases. Courts, including Anti-Terrorism Courts, are already suffering infrastructural deficiencies. They are often undermanned; many districts do not have the full roster of judges against vacant seats; and in functional courts, the case docket is always flooded with a plethora of cases. The overwhelming backlog of cases resulted in a net disposal of 24 cases disposed of against institutions for 2019.[24]
Until recently, Anti Terrorism Court Judges use to administer a very burdensome task-sheet. They were forced to hear and decide different cases, at different stages, with different sets of facts and circumstances, differences in preponderance of evidence against the accused, applications made by parties to the proceedings, simultaneously, often in the same week, or even in the same day. Each case has its own facts, its own aggravating and mitigating circumstances, its own evidence, and its own seriousness. All these intricacies rendered a judge’s daily duties prodigious.
There is a seven day time limit on concluding trials. Be that as it may, till the last quarter of 2019, with every passing week, more and more cases were instituted. Judges were taxed with multiple complex cases at the same time. This led to a compromise of the minuteness in perusal of evidence. Much of this workload could be attributed to the investigation and prosecution who have processed and forwarded the case for hearing to the Court. It is these officers who eventually facilitate the judge on evidentiary and legal matters. The problem stemmed not from the processing of cases, instead it manifested itself when there were too few judges and too many cases, particularly in the absence of a credible case management system.
Worryingly, members of the Bar opportunistically take advantage of these shortcomings. Adjournments were and still are commonplace, despite the rule that no more than two adjournments shall be granted.
The Chief Justice of Pakistan’s ambition in the statement, “there is a dire need to strengthen the surveillance systems of the courts at district level for which I will urge the members of the bar to come forward and join us to eradicate corruption” seems to have borne little success. The same problems of maladministration persist. Surveillance mechanisms have not been put in place.
However, the recent pronouncement of the Supreme Court of Pakistan has significantly mitigated the workloads of Anti-Terrorism Courts.[25] Private animosities or vendettas no longer vex Anti-Terrorism Courts on a regular basis. It does remain to be seen, however, whether there will be a corresponding ascension in conviction rate. Regardless, the initiative should be welcomed by all stakeholders.
Although consolidation of data for conviction rates proves to be an arduous task, there is consensus among lawyers, judges, academics and other practitioners alike that conviction rate in terrorist cases remains underwhelming. Terrorism cases are serious complex trails. The Law and Justice Commission of Pakistan accounts that complex criminal proceedings span over two and a half years on average.[26] This is partly the reason for why acquittals have spiked. It was estimated that between 1990 and 2009 the ATC Punjab adjudicated upon 311 cases out of which, 231 (74%) resulted in acquittals. According to another report for the year 2013, there were 1,015 cases pending before the Anti Terrorism Courts in Punjab (the ATC Punjab). Out of these, only 506 cases were adjudicated upon by the ATC Punjab. While 307 decisions led to acquittals, only 136 cases resulted in convictions.[27] Khyber Pakhtunkhwa follows a steadily optimistic pattern though far from where an ideal system ought to be.[28] The rate of conviction in Khyber Pakhtunkhwa in the year 2012 in Anti-Terrorism Court which was 4.9%, and in Session Court it was 31% has now risen to 30% and 33.4% respectively in 2018. [29]
The recent jurisprudence of the apex Court has enunciated instructive principles of law. Quite recently, a seven Member Bench of the Supreme Court of Pakistan, in Ghulam Hussain and others v State and others, while delving into the categorization of terrorism offences, the Supreme Court affirmed that crimes of terrorism are crimes against the public and a communal interest dictates the requirement of punishing terrorists.[30] Any offence that was predicated upon personal vendettas or enmities was held not to be terrorism. In the process of declaring the law, the Supreme Court took notice of the fact the current categorization of offences in section 6 of the Act compounded complexities. Courts must now apply a different approach in assessing terrorism. Therefore, it has called upon Parliament to suitably amend the statute to instill clarity in the Act.
Terrorism has disturbed Pakistan for far too long. Despite the existence of counter-terrorism legislation, terrorists have not refrained from attempting miscreany. Pakistan has already suffered an enormous loss in terms of life, peace and prosperity. Legislative safeguards endeavor to bring those culpable to justice. But history shows that the process has been far from uncomplicated. Effective counter-terrorism legislation remains imperative. Enforcing an efficient counter-terrorism regime is not impossible. Constructive coordination, effective training and dedicated perseverance are a few of the keys to the achievement of this end. It is axiomatic that all entities must shoulder some of the responsibility. It is high time that state institutions engage in constructive dialogue and devise a credible and sustainable solution. Practical efforts are necessitated. The words of Quaid-e-Azam, Muhammad Ali Jinnah, ring truer than ever in embodying the fortitude of Pakistan:
In Pakistan lies our deliverance, defence and honour...In our solidarity, unity and discipline lie the strength power and sanction behind us to carry on this fight successfully.
1. Mehram Ali v Federation of Pakistan, PLD 1998 SC 1445
2. Sections 11G, 11H, 11I, 11J, 11K, 11V, 11W, 11X, 21C. 21I, 21J were inserted into the Act by way of Anti-Terrorism (Amendment) Act, 2005 [Act No II of 2005]; section 11WW was inserted vide Anti-Terrorism (Amendment) Act, 2017 [Act IV of 2017]
3. See Aatekah Mir-Khan & Asad Kharal, Prosecuting Terrorists: Out of 559 Cases in 2012, Suspects Acquitted in 414 , EXPRESS TRIB. (Apr. 1, 2013), http://tribune.com.pk/story/529 353/prosecuting-terrorists-out-of-559-cases-in-2012-suspects-acquitted-in-414/. For an insightful discussion on the many factors behind the low conviction rate, see Umer Farooq, Prosecutors in the Dock , HERALD MAG. (Karachi), July 2010, at 24 (on file with author); see also Umer Farooq, Judgment on Errors , HERALD MAG. (Karachi), July 2010, at 29 (on file with author); Why Is It So Difficult To Convict Accused? , DAWN (Feb. 20, 2011), http://www.dawn.com/news/607486/why- is-it-so-difficult-to-convict-accused. Conviction statistics vary from district to district and from year to year, and have been reported to be as low as 5-10%. See Zofeen T. Ebrahim, Poor Security for Witnesses Means Low Conviction Rate , DAWN (Dec. 6, 2012), http://www.dawn. com/news/769312/poor-security-for-witnesses-means-low-conviction-rate; Low Conviction Rate , DAWN (Apr. 21, 2010), http://www.dawn.com/news/531633/low-conviction-rate
4. Charles Kennedy, “The Creation and Development of Pakistan’s Anti-Terrorism Regime,” in Satu Limaye et al. eds., Religious Radicalism and Security in South Asia (Honolulu: Asia-Pacific Center for Security Studies, 2004), pp. 387-412.
5. Pakistan: Heinous Crimes in July 2014 , CTR. FOR RESEARCH & SEC. STUDIES (Aug. 13, 2014), http://crss.pk/story/pakistan-heinous-crimes-in-july-2014/ (“35 crimes that feature remarkably gruesome odious circum- stances that take one’s breath away”
6. ANATOL LIEVEN, PAKISTAN: A HARD COUNTRY 107 (2012); According to the annual Transparency International (TI) National Corruption Perception Surveys, Pakistan’s police and lower courts continuously rank among the most corrupt institutions in the country. Global Corruption Barometer 2013 , TRANSPARENCY INT’L, http://www.transparency.org/gcb2013/country?country=Pakistan (last visited Nov. 18, 2014); see also Pakistan Country Profile , BUS. ANTI-CORRUPTION PORTAL, http://www.business-anti- corruption.com/country-profiles/south-asia/pakistan/corruption-levels/judicial-system.aspx
7. Parveen Gul, Bahadar Ali, FACTORS AFFECTING CONVICTION RATE: A CASE STUDY OF KHYBER PAKHTUNKHWA: Journal of Law and Society Law College Vol. XLIX, No. 72 University of Peshawar, January 2018; ANATOL LIEVEN, PAKISTAN: A HARD COUNTRY 107 (2012)
8. Rabia Chaudhary, Anti-Terror Laws, Policing and the Criminal Justice System, Anti Terrorist Efforts in Punjab, Centre for Public Policy and Governance, 2014: At the case registration stage, these were caused by factors like there were no eyewitnesses to the crime, accused were unknown and hence not nominated, there was no description of the accused provided in the FIR and at times there was an unexplainable delay in the registration of the case.
9. Ibid
10. B. R. Saini. (2012). Protection of Witness under the Law of Evidence-A Comparative Study (Master‟s thesis) Kurukshetra University. Retrieved from http://shodhganga.inflibnet.ac.in/handle/10603/8788?mode=ful
11. Recent judgments of the Supreme Court of Pakistan have created complications for Anti-Terrorism Courts.
12. Pakistan: The Country Has Turned into a Killing Field , ASIAN HUM. RTS. COMMISSION 15-17, 20 (Dec. 9, 2013), http://www.humanrights.asia/news/ahrc-news/ AHRC-STM-230-2013http://reliefweb.int/sites/reliefweb.int/files/resources/AHRC-SPR-005- 2013-HRRpt-Pakistan.pdf (“Pakistan’s criminal justice system is deeply flawed, inefficient, and corrupt. It is not independent, and investigators and prosecutors lack the resources, training, and security for successful prosecutions. Every time the criminal justice system is circumvented, it becomes weaker and irrelevant, and the culture of impunity that thrives in its place fuels further cycles of consequence-free violence and crime. Law-enforcement agencies are not equipped to gather forensics and other evidence, while intimidation and political intervention make guilty verdicts a rarity. As a result of this ineffective criminal justice system’s failure to end the culture of impunity, Pakistanis remain at the mercy of those state and non-state actors who resort to violence as a means to secure power.”).
13. Huma Yusuf, Anti-Terrorism Courts in Pakistan, CTC Sentinel, Volume 3, Issue III, March 2010.
14. https://nacta.gov.pk/criminal-justice-reforms/
15. Statistics from 1st January 2019 to 15th November 2019. See the Law and Justice Commission of Pakistan Report.
16. ANATOL LIEVEN, PAKISTAN: A HARD COUNTRY 107 (2012) p. 102-3: One police officer’s statement is on record: Family and clans here stick together, so if you really want to arrest one person here and prosecute him successfully, you may need to arrest ten, or threaten to arrest them—the original suspect plus three for perjury, three for bribing the police and judges, and three for intimidating witnesses. And if the family has any influence, the only result will be to get yourself transferred to another district. So I’m afraid that it is often much easier just not to arrest anyone . . . . The police and courts have to judge between them on the basis of evidence, every bit of which is probably false in one direction or another. So either the case goes on forever, or it is resolved in favor of which side has more power and influence. If it is an especially bad case and you are sure of what happened, you may be able to bargain with the family or with local politicians to give you the man you want. But then of course you will have to give them something in return, or let one of their members off in some other case. That is typical give and take
17. Justice S. A. Rehman Law Reform Commission 1958 or Commission on Reform of Law 1993
18. Struggle for justice: terrorists take advantage of weak prosecution, says Chief Justice: https://tribune.com.pk/story/620191/struggle-for-justice-terrorists-taking-advantage-of-weak-prosecution-says-cj/
19. Reforming Pakistan’s Criminal Justice System, Crisis Group: https://www.crisisgroup.org/asia/south-asia/pakistan/reforming-pakistan-s-criminal-justice-system
20. Parveen Gul, Bahadar Ali, FACTORS AFFECTING CONVICTION RATE: A CASE STUDY OF KHYBER PAKHTUNKHWA: Journal of Law and Society Law College Vol. XLIX, No. 72 University of Peshawar, January 2018
21. Huma Yusuf, Anti-Terrorism Courts in Pakistan, CTC Sentinel, Volume 3, Issue III, March 2010
22. Section 21, Anti-Terrorism Act, 1997 enlists the measures that can be taken for protecting parties to Court proceeding
23. Section 28(1A), Anti-Terrorism Act, 1997 empowers the Federal Government to transfer proceedings.
24. Statistics from 1st January 2019 to 15th November 2019. At the beginning of 2019, a total of 3870 cases were pending disposal. Because of fresh institutions, the number of cases as of 15th November 2019 was 3746 cases, according to the Report of the Law and Justice Commission of Pakistan.
25. Ghulam Hussain and others v State and others, PLD 2020 SC 61
26. Transforming the Criminal Justice System, Law and Justice Commission of Pakistan, April 2016, page 98.
27. Punjab Prosecution Department.
28. Key Note Address of Dr. Shuaib Suddle on “Criminal and Police Reforms” in a Meeting of the Committee of the Whole in Senate Hall at Parliament House, Islamabad on August 20, 2015. Countries like Russia, China and Japan have a very high conviction ratio of above 90% to the credit of their criminal justice systems.
29. Directorate of Prosecution, Government of KPK: The rate of conviction in Khyber Pakhtunkhwa in the year 2013 in Anti-Terrorism Court was 15%, and in Session Court it was 30%; The rate of conviction in Khyber Pakhtunkhwa in the year 2014 in Anti-Terrorism Court was 17%, and in Session Court it was 28%. The rate of conviction in Khyber Pakhtunkhwa in the year 2015 in Anti-Terrorism Court was 23%, and in Session Court it was 33.6%. The rate of conviction in Khyber Pakhtunkhwa in the year 2016 in Anti-Terrorism Court was 30%, and in Session Court it was 33.4%.
30. PLD 2020 SC 61