AND

CHALLENGES FOR CRIMINAL JUSTICE IN

PH.D. THESIS

Submitted by

Zafar Iqbal

Reg. No. NDU-PCS/PH.D/S-11/014

Supervisor

Dr. Farkhanda Zia Mansoor

Department of Peace and Conflict Studies

Faculty of Contemporary Studies

National Defence University

Islamabad

2016

WAR ON TERROR

AND

CHALLENGES FOR CRIMINAL JUSTICE IN PAKISTAN

PH.D. THESIS

Submitted by

Zafar Iqbal

Reg. No .NDU-PCS/PH.D/S-11/014

Supervisor

Dr. Farkhanda Zia Mansoor

This Dissertation is submitted to National Defence University, in partial fulfillment for the degree of Doctor of Philosophy in Peace and Conflict Studies

Department of Peace and Conflict Studies

Faculty of Contemporary Studies

National Defence University

Islamabad

2016

Certificate of Completion

It is hereby recommended that the dissertation submitted by Mr. Zafar Iqbal titled “War on Terror and Challenges for Criminal Justice in Pakistan” has been accepted in the partial fulfillment of the requirements for the degree of Ph.D. in the discipline of Peace and Conflict Studies.

______

Supervisor

______

External Examiner

Countersigned By

______

Controller of Examination Head of the Department

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Supervisor’s Declaration

This is to certify that Ph.D dissertation submitted by Mr. Zafar Iqbal titled “War on Terror and Challenges for Criminal Justice in Pakistan” is supervised by me, and is submitted to meet the requirements of Ph.D. degree.

Dated: ______Dr. Farkhanda Zia Mansoor Supervisor

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Student’s Declaration

I hereby declare that the thesis submitted by me titled “War on Terror and Challenges for Criminal Justice in Pakistan” is based on my own research work and has not been submitted to any other institution for any other degree.

Dated: ______Mr. Zafar Iqbal

Ph.D. Scholar

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ABSTRACT The US launched War on Terror (WOT) with an intent to bring the perpetrators and abettors of the 9/11 incident to justice in its own terms and satisfaction. The US became the sole judge in its own cause, ousted government and eliminated Al-Qaeda leadership. This approach of retributive justice demonstrated the US hegemony and pursuit of realism. Pakistan joined the WOT in the wake of US threats but became the subject of and ultimately turned into a battlefield in the fight against terrorism. National and internal security of Pakistan was jeopardized. Performance of the agencies of criminal justice system became subject of open public criticism. Consequently, the Armed Forces had to assume the responsibility of national security and administration of justice, which is against the principle of tricotomy of power enshrined in the constitution.

This research proposes that the WOT has collapsed the whole edifice of criminal justice system in Pakistan. In order to analyse this proposition, the research explores causes of WOT and examines American rationale for initiating WOT. The study also explores effects of WOT on national security and criminal justice system of Pakistan as well as different parameters of its criminal justice system vis-à-vis terrorism. It also discovers different theories of crimes and examines utility of different theories of punishments in deciding terrorism-related cases. The study also discovers history and evolution of security and anti-terrorism laws of Pakistan and the effects of amendments introduced after 9/11 on the criminal justice in Pakistan. The research also examines role and efficacy of courts martial as an alternative mechanism for criminal administration of justice in terrorism cases.

The study is mainly based on qualitative analysis and extensive review of literature on the subjects of national security, peace and conflict, international humanitarian law, legal theories and analysis of the laws relating to terrorism. The dissertation has been organized into seven chapters, with separate introduction and conclusions. The study does not prove the hypothesis to the hilt. Nevertheless, it concludes that the criminal justice system of Pakistan did not succeed in meeting the challenges of WOT and play its effective role in eradicating the menace of terrorism through justice. The study recommends that WOT may be successfully fought through a comprehensive strategy based on equal cooperation, ownership and devotion of all the stake-holders.

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ACKNOWLEDGMENTS

I express my deep gratitude to Dr. Farkhanda Zia Mansoor, Professor of Law in the International Islamic Studies, Islamabad for supervising, steering and rendering intimate guidance in completing this Ph.D dissertation. My research work would not have been accomplished without her painstaking assistance. I also extend my thanks to Dr. Ishtiaq Ahmad Choudhry, Head of the Department of Peace and Conflict Studies, Faculty of Contemporary Studies, National Defence University, Islamabad for his encouragement and intellectual support to complete this study. I also owe my profound thanks to Mr. Muhammad Idrees and Mr Muhammad Ramzan, who helped and assisted me in compiling the data, typing and composing this dissertation. My sincere appreciation and profound gratitude are also due to Mr. Abdul Sattar for his very valuable editorial advice.

I must also acknowledge the support of my parents, sisters, brothers, wife and children, who remained deprived of my due care and attention. Without their encouragement and moral support, it was difficult for me to complete this work, especially when it was undertaken along with my hectic official assignments. In particulars, I owe special thanks to my sisters, who rendered many valuable suggestions for successful completion of this dissertation.

Finally, I bow my head before Allah Almighty, who created me amonghst the best of creatures, bestowed upon me His countless blessings and gave me the required wisdom and vigor to sucessessully undertake this difficult but rewarding assignment.

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To Parents, Brothers, Sisters and Family

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TABLE OF CONTENTS

ABSTRACT…………………………………………..………………………………...... vi ACKNOWLEDGEMENTS……………………………………………………………….. vii DEDICATION……………………………………..……………………………………… viii ABBREVIATIONS AND ACRONYMS ………………………...... xiv LIST OF TABLES………………………………………….…….……………….………. xvii INTRODUCTION 1 Statement of the Problem ………………………………………………………… 16 Hypothesis ……………………………………………………………………. 17 Independent and Dependent Variables …………………………………………... 17 Research Questions ………………………………………...…………………….. 17 Significance of the Study ………………………………………………………… 18 Justification and Likely Benefits ………………………………………...... 20 Objectives and Scope of the Study ……………………………………………. 20 Research Methodology …………………………………………………………… 21 Limitation of the Study…………………………………………………………… 22 Review of Literature ……………………………………………………………... 23 Organization of the Study ….…………………………………………………….. 30 CHAPTER 1 WAR ON TERROR AND THE PURSUIT OF MILITANCY IN 34 PAKISTAN 1.1 Background and causes of WOT ………………………………………...... 36 1.1.1 Theory of Realism ……………………………………………………………….. 40 1.2 Reasons for US Pursuit of Militancy in Pakistan after 9/11……………...... 43 1.3 US Rationale for WOT and Pursuit of Militancy in Pakistan…………………….. 48 1.3.1 Just War Theory ……………………………………………………………...... 50 1.3.2 UN Charter and the Security Council Resolutions……………………………….. 52

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CHAPTER 2 EFFECTS OF WAR ON TERROR ON THE NATIONAL SECURITY AND 59 CRIMINAL JUSTICE IN PAKISTAN …………………………………………………. 2.1 Internal Security ………………………………………………………………….. 60 2.2 Resurgence of Militancy ………………………………………………...... 65 2.3 Drone Attacks…………………………………………………………………….. 66 2.4 Economic and Political Debacles ………………………………………………… 67 2.5 Humanitarian and Internally Displaced Persons (IDPs) Issues…………………… 69 2.6 Allegations of Human Rights Violations ………………………………………… 71 2.7 Missing Persons Syndrome ……………………………………………...... 73 2.8 Application of International Humanitarian Law ………………………...... 77 2.9 Effects of WOT on Criminal Justice System in Pakistan ……………………….. 81 2.10 Major Terrorism Incidents during 2007-2015 ……………………………………. 85 CHAPTER 3 THE CRIMINAL JUSTICE SYSTEM OF PAKISTAN - DIMENSIONS AND 97 PARAMETERS VIS-À-VIS TERRORISM ……………………………………………. 3.1 Broad Parameters of Criminal Justice System in Pakistan ……………...... 98 3.1.1 Role of Police, Law Enforcement and Prosecuting Agencies …………………… 99 3.1.2 Role of Courts…………………………………………………………………….. 104 3.1.3 Role of Prisons …………………………………………………………………… 108 3.1.3.1 Offence or Crime ………………...... 110 3.1.4 Nature and Extent of Offences or Crimes as Acts of ……... 111 3.2 Theories of Crimes………………...... 113 3.2.1 Biological Theories ………………………………………………………………. 113 3.2.2 Psychological and Socio-psychological Theories………………………………… 114 3.2.3 Sociological Theories…………………………………………………………….. 114 3.2.4 Crime-specific Theories………………………………………………………….. 115 3.3 Theories of Punishment………………...... 117 3.3.1 Theory of Retribution ……………………………………………………………. 118 3.3.2 Theory of Reformation and Rehabilitation ………………………………………. 119 3.3.3 Theory of deterrence …………………………………………………………….. 120

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3.4 International Legal Standards………………...... 121 CHAPTER 4 HISTORICAL EVOLUTION OF CRIMINAL JUSTICE SYSTEM AND PRESENT 134 STATUS OF SECURITY AND ANTI-TERRORISM LAWS ………………………… 4.1 Security and Anti-terrorism Legislation in the Post-independence to Separation of 135 East Pakistan (1947-1971)……………………………………………………... 4.2 Security and Anti-terrorism Legislation after the Emergence of New Pakistan till 170 Ouster of Mrs (1972-1996) ……………………………………… 4.3 Security and Anti- terrorism Legislation during Mr and General Pervez 185 Musharraf regimes in the pre and post 9/11 tragedy (1997-2015) ……...... 4.3.1 Anti-terrorism Act 1997 ………………………………………………………….. 187 4.3.2 Shari Nizam-e-Adl Ordinance 1999 and ’h Nizam-e-Adl Regulation 2009.. 200 4.3.3 Actions (in Aid of Civil Power) Regulations 2011………………………………. 202 4.3.4 Investigation for Fair Trial Act 2013 ……………………………………………. 206 4.3.5 Protection of Pakistan Ordinance 2013 and Protection of Pakistan Act 2014……. 207 CHAPTER 5 TRIALS OF CIVILIANS BY MILITARY COURTS IN HISTORICAL PERSPECTIVE 213 AND THEIR ROLE IN CRIMINAL JUSTICE SYSTEM …………. 5.1 President Ayyub Khan Amends the Army Act …………………………………... 214

5.2 Prime Minister Bhutto Amends the Army Act …………………………………... 215 5.2.1 “ (Amendment) Act 1977” and Jurisdiction of Courts Martial over 217 Civilians Challenged ……………………………………………………………... 5.3 General Zia-ul-Haq Promulgates Martial Law and Establishes Military Courts or 220 Tribunals by Amending the Constitution ………………………………………… 5.4 Prime Minister Benazir Bhutto Amends Constitution to Establish Special Courts for 221 Trial of Heinous Crimes ……………………………………………………… 5.5 Prime Minister Nawaz Sharif Establishes Military Courts through “the Pakistan 221 Armed Forces (Acting in Aid of Civil Power) Ordinance 1998” to Try Civilians.. 5.6 President Musharraf Promulgates “Pakistan Army (Amendment) Ordinance 2007” to 225 Bring Civilians within the Purview of Army Act………………………. 5.7.1 Prime Minister Nawaz Sharif Amends the Constitution and Pakistan Army Act in the 227

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Background of APS Carnage ……………………………………

5.7.2 Reaction to 21st Constitutional Amendment and Pakistan Army (Amendment) Act 231 2015…………………………………………………………………………... 5.7.3 Arches of Judgment in “21st Constitutional Amendment and Pakistan 234 Army (Amendment) Act 2015” Case…………………………………… 5.7.4 Analysis and Significance of Supreme Court Judgment for Criminal Justice in 237 Pakistan………………...... ………………...... CHAPTER 6 DISCUSSION AND ANALYSIS ………………………………………………………… 245 6.1 Is WOT justifiable on the Touchstone of Realism? ……………...... 246 6.2 Is American Rationale for Initiating WOT and Pursuit of Militancy in Pakistan 249 Justifiable? ………………...... ………………………………………………… 6.3 Did the Judicial Organs Play their Role in Combating Terrorism and 256 Crime? ………………...... ………………...... 6.3.1 Role of Police, Law Enforcement and Security Agencies ……………………….. 262 6.3.2 Role of Lawyers and Attorneys …………………………………………………... 264

6.3.3 Role of the Criminal Courts ……………………………………………………… 267 6.3.3.1 Discretion of the courts and theories of punishment ……………………………... 270 6.3.4 Role of Prisons …………………………………………………………………... 270 6.4 What is the Effect of Different Amendments Introduced in the Security and Anti- 274 terrorism Laws of Pakistan after 9/11? ………………………...... 6.4.1 Effects of Anti-Terrorism Act 1997 in the pre- 9/11 Scenario …………………... 274 6.4.2 Effects of Anti-terrorism Act 1997 in the post-9/11 Scenario …………………… 278 6.4.2.1 Issues of missing persons and Anti-terrorism Act 1997 …………………………. 278 6.4.3 Effects of Actions (in Aid of Civil Power) Regulations 2011 …………………… 282 6.4.4 Effects of Investigation for Fair Trial Act 2013 ………………………………….. 284 6.4.5 Effects of Protection of Pakistan Act 2014 ………………………………………. 286 6.5 Did the Amendments Introduced in the Security and Anti-terrorism Laws of Pakistan 290 after 9/11 Improve, Complicate or Compromise Criminal Justice System in Pakistan?

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……………………………………………………………….

6.6 Do the Legislations Introduced after 9/11 Conform or Violate International Legal 294 Standards? ………………………………………...... 6.7 Do the Trials of Civilians by Courts Martial Offend Human Rights?...... 299 6.7.1 Mechanism of Trial before Courts Martial……………………………………….. 301 6.8 Are Military Courts an Alternative Mechanism for Criminal Administration of Justice 311 in Terrorism Cases? ………………………………………………………. 6.9 Conclusions……………………………………………………………………………. 313 CHAPTER 7 RECOMMENDATIONS ………………………………………………………………… 321 7.1 Need to Understand the Genesis of Terrorism and its Root Causes …….……….. 322 7.2 Need to Reconcile Security and Anti-terrorism Laws and Avoid their Multiplicity and 325 Ambiguity ………………………………………………………. 7.3 Need to Introduce Judicial Reforms in FATA …………………………………… 331 7.4 Need to Reconcile Difference of Perceptions ……………………………………. 335 7.5 Need to Understand Significance of Deterrent Approach and its Implementation.. 340

7.6 Need for Capacity Building and Inculcating Sense of Responsibility and Ownership 343 ………………………………………………………………………... 7.7 Need to Implement Policy of Reward and Punishment for Judicial and Police 348 Officials ………………………………………………………………………….. 7.8 Need to Reconcile and Resolve the Issues of Human Rights and Missing Persons 351 7.9 Need for Jail Reforms ……………………………………………………………. 355 7.10 Need to Implement the Judgments of Supreme Court and National Judicial Policy 360 2009 ………………………………………………………………………. 7.11 Need to evolve a strategy of winning the hearts and minds ……………………… 362

7.12 Need to Implement National Action Plan 2014 ………………………………….. 367 BIBLIOGRAPHY ………………………………………………..…………….…………. 371 APPENDIX………………………………………………………………………………… 396

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ABBREVIATIONS AND ACRONYMS

APS Army Public School ASF Airports Security Force ATA Anti-terrorism Act 1997 BLA Baloch Liberation Army BLF Baloch Liberation Front CPEC Pakistan Economic Corridor CrPC Criminal Procedure Code DPO District Police Officer ECL Exit Control List EU FATA Federally Administered Tribal Areas FBI Federal Bureau of Investigation FC Frontier Constabulary, Frontier Corps FCR Frontier Crimes Regulation, 1901 FIA Federal Investigation Agency FMDA FATA Disaster Management Authority GB Gilgit Baltistan GHQ General Headquarters GCC Gulf Cooperation Council HRC Human Rights Council IB Intelligence Bureau ICC International Criminal Court ICJ International Court of Justice ICTY International Criminal Tribunal for the former Yugoslavia IDPs Internally Displaced Persons IED Intensive Explosive Device IG Inspector General IHL International Humanitarian Law IO Investigating/Interrogation Officer ISAF International Security Assistance Forces

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ISI Inter-Services Intelligence JPMC Jinnah Post Graduate Medical Centre KP LB Lashkar-e- LEA Law Enforcement Agency MO Military Operations NACTA National Counter Terrorism Authority, 2009 NADRA National Database and Registration Authority NJP National Judicial Policy 2009 NATO North Atlantic Treaty Organization NDU National Defence University Islamabad NODEFIC Norwegian Defence International Centre NWFP North West Frontier Province NORDEFCO Norwegian/Nordic Defence Cooperation Organization OEF Operation Enduring Freedom OHCHR Office of High Commissioner for Human Rights PAA Pakistan Army Act 1952 PATA Provincially Administered Tribal Areas PILDAT Pakistan Institute of Legislative Development and Transperancy PLD All Pakistan Legal Decisions PLJ Pakistan Law Journal PMDC Pakistan Medical and Dental Council POPA Protection of Pakistan Act 2014 POTA Prevention of Terrorist Activities Act PPC PTV Pakistan Television Sec Section SFMU Special Forces Military Unit SC Supreme Court of Pakistan SHO Station House Officers SSP Senior Superintendent of Police / Sipah-e-Sahabah Pakistan

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TDPs Temporarily Displaced Persons TTP Tahreek-i-Taliban Pakistan TNSM Tehrik-i-Nifaz-i-Shariat-i-Mohammadi T2F The Second Floor UBA United Baloch Army UNO Organization UNSC United Nations Security Council WOT War on Terror WMD Weapons of Mass Destruction

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LIST OF TABLES

1. Table 2.1 - Fatalities in Terrorists Violence in Pakistan (2003-2015) 64 2. Table 2.2 - List of High Profile Cases (2004-2007) 84 3. Table 3.1 - Hierarchy of Criminal Courts in Pakistan 107 4. Table 3.2 - Comparative Analysis of International Legal Instruments 125 5. Table 6.1 - Comparative Analysis of Anti-terrorism and other laws of 397 Pakistan

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INTRODUCTION

The incident of 9/11 had challenged the sovereignty of America but the ensuing War on Terror (WOT)1 and United States of America’s pursuit of militancy in Pakistan adversely affected the unity, security and sovereignty of Pakistan.2 Pakistan chose to join the WOT against its wish but subsequently assumed the same to be its own war when the battlefield was shifted into Pakistan and US hunt for militants extended inside Pakistan. Resultantly, the menace of terrorism,3 militancy and radicalization extended beyond the tribal areas and engulfed the whole of Pakistan, causing irreparable damage to its socio-religious, political, administrative, economic, legal, security and other institutions. US tried to justify WOT and pursuit of militancy in Pakistan on the basis of just war theory,4 its inherent “right of self

1The WOT was initiated by United States of America against Al-Qaeda and its leadership who was harbouring in and accused of masterminding the attack on the twin towers in New York on September 9, 2001. Pakistan as a matter of fact had no role either in supporting Al-Qaeda or any other non-state actor in launching the said attacks. However, US rage and anger was such that it managed to fetch involuntary support from Pakistan against the Taliban rule in Afghanistan. The language and tenor of President Bush in his State of the Union address reflects his anger and unconditional support of the world for his military campaign in Afghanistan. See “US President George W. Bush, White House, State of the Union Address, January 29, 2002,” available at http://www.whitehouse.gov/news/releases/20020129-11.html, accessed on August 29, 2011. 2Marc Ambinder and David W Brown, “The story of US Special Forces infiltrated in Pakistan”, The Atlantic, February 15, 2012.

3“Today few words are as politically or emotionally charged as “terrorism” but it is still not clear what exactly “terrorism” is? Generally speaking, “terrorism” is the use of politically-motivated violence or terror by the state or non- state actors and groups. It is a derisive and subjective term with negative connotations applied to one’s enemies and opponents.” This has been observed by Rana Eijaz Ahmad, “War against Terrorism or War for Terrorism” (2007), The Journal of Political Studies, Vol. 11, accessed on May 7, 2016. Also see Barrister Saadia Abbasi, “Anti-terrorism Laws and Way Forward in Dealing with Terrorists in Comparison with Contemporary Countries”, Pakistan Army Green Book 2014, (Islamabad: Crystal Printers, 2014), pp. 18-31. She has explored different definitions of terrorism developed over a period of time and in the backdrop of 9/11 tragedy. She referred to individual, group, political and state terrorism; and observed that there is still room for a conclusive definition of terrorism. 4Just war theory ordains that war may only be waged when inevitable, for a just cause by a just authority; while its conduct and culmination should also be just. In the primitive Roman society, even wars against non- Catholics were considered as just wars. So far as the just authority is concern, it used to be fetiales, the priests monitoring international treaties, in the Roman. See Brian A. Garner, Black’s Law Dictionary, (USA: Thomson West, 2004) pp. 164, 883-884. See also Augustine, The City of God, translated by Bettenson (New York: Penguins Books, 1972), pp. 6-13, as quoted by Bradley L. Herling in “Machedicy Or Just War Theory in an Age of Terror”, Existenz, Volume I, Numbers 1-2 (Fall 2006), pp. 75-76 and available at http://wwwbu.edu/paideia/existenz. Augustine had been resisting war on the basis of the teachings of Christianity; however, he had to consent for war when the enemy reached at the gates of Rome. Basics of the just war doctrine have been discussed in Chapter 2. However, see for example: James F. Childress, “Just War Theories: The Bases, Interrelations, Priorities, and Functions of Their Criteria.” Theological Studies, No 39,1978, pp. 427-445; Gene Sharp, “Beyond just war and pacifism: nonviolent struggle toward justice, freedom and peace”, Ecumenical Review, April, 1996, available at http://findarticles.com/p/articles/mi_m2065/is_n2_v48/ai_18310385/print?tag=artBody;coll; “Just War Theory” at http://www.justwartheory.com and www.iep.utm.edu/justwar; accessed on March 24, 2016. 1

defence”5 and “Security Council Resolutions”;6 however, its justifications always remained subject to criticism and legal scrutiny, with low moral standing as it had exceeded the right of self defence. WOT and US pursuits of militancy in Pakistan were characterized by her hegemonic designs,7 rather than just war or self defence.8 The WOT and US pursuit reached the saturation point with all its pros and cones including elimination of in a Special Forces operation in Abbottabad on 2 May 2011,9 trust deficit between the two main allies of WOT especially after the targeted massacre of Pakistani troops at Salala post on 26 November 2011 by US led NATO forces,10 followed by blockade of logistics supplies to NATO troops in Afghanistan by Pakistan,11 deliberate absence of Pakistan from Bonn Conference of December 201112 to record her protest in the wake of Salala tragedy13 and the

5Article 2(4) of the UN Charter forbids “threat or use of force against the territorial integrity or political independence of any state”; while its Article 51 reads: “Nothing in the present Charter shall impair the inherent right of individual or collective self defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace.” It is the provisions of Article 51, which were invoked by America for justifying attack on Afghanistan and launch of WOT. 6For example: “UN Security Council Resolutions” 1368 (2001), 1373 (2001), 1377(2001), 1535 (2004), 1540 (2004) and 1963 (2010), available at http://www.un.org/Docs/scres, accessed on July 27, 2011. However, the said resolutions do not define or differentiate “terrorism” viz-a-viz “freedom fighting” but stress the member states to fight terrorism utilizing all available means, so as to ensure “international peace and justice.” For conflicting views on definition of terrorism, see Nadeem Ahmad, “Conceptualizing terrorism: Problems of defining and building consensus”, IPRI Journal XII, No. 2 (Summer 2012), pp. 58-75. 7US redefined its strategy to implement “the Project for New American Century” to extend “the benefits of Freedom across the globe”, and i.e. “to counter terrorism and democratic regime charge”. See The White House Washington, “the National Security Strategy of the United States of America 2002” available at http://www.infomationclearinghouse.info/article.2320/1665.htm, accessed on March 2, 2012. 8After winning the , US prepared the blueprint to capitalize its surplus military forces and defence resources to extend its hegemony and corporate privatization throughout the world. See for example, “Project for old American Century, New American Century”, available at www.oldamericancentury.org. See also Dr. Shahid Ahmad Hashmat, International Conflict Resolution: Role of UN and OIC, (Islamabad: NUST Publishing, 2014), pp.1-2; Rana Eijaz Ahmad, “Security, Political Dimensions and Consequences of NATO Expansion in the Region”, South Asian Studies, Volume 25, Number 2, July-December 2010, pp.413-418; Rana Eijaz Ahmad, “War against Terrorism or War for Terrorism” (2007), The Journal Of Political Studies, Vol. 11; Fernando R. Teson, “Ending Tyranny in ,” Ethics and International Affairs, Volume 19, No 2, 2005,pp. 1- 20, www.onlinelibrary.wiley.com.doi. For US justification of WOT on the basis of just war doctrine, see for example: Tamie Harrison, “On the war against terror as a just war”, October 20, 2009, available at http://userpages.Umbc.edu, accessed on April 7, 2016. 9Amna Yousaf Khokhar, “Operation Neptune Spear: A watershed in war against terrorism”, Institute of Strategic Studies Islamabad, available at www.issi.org.pk. See also Philip Sherwell, The Telegraph, May 7, 2011, available at www.telegraph.co.uk , accessed on March 24, 2016. 10The unprovoked attack claimed lives of 24 Pakistani soldiers including officers. See Noor ul Haq, “Abbottabad and Salala Attacks 2011” (2012), IPRI Factfile available at https://www.scribd.com/document/180506511/Abbottabad-n-Salala-Attacks-2011, accessed on April 14, 2014. See also www.defence.pk portal, accessed on February 29, 2012. 11 Ibid 12 Many conferences were held on Afghanistan issue since the launch of American military campaign in 2001.The International Conferences on Afghanistan described as “Afghanistan and International Community: From Transition to Transformation Decade” was held in Bonn on December 5, 2011, which was not attended by 2

Congressional hearing/debate initiated on 8 February 2012 in the House Sub-committee on Oversight and Investigation by American Congressman Dana Rohrabacher seeking “right to self determination” for the people of Balochistan,14 which lies within the exclusive domain of Pakistan, followed by tabling a bill/resolution on the same issue in the House of Representatives within a short span of two weeks.15 Describing Pakistan a “disastrously dysfunctional country”, reluctance of White House to lobby for subsidized sale of eight F-16s to Pakistan and suspension of foreign military financing for the said sale by the American Congress16 as well as its refusal to support Pakistan’s bid to join Nuclear Suppliers Group

Pakistan to record its protest on Salala incident. “Collection of Afghan Agreements with Official Text from 2001 to 2011” is available at reliefweb.int/report/Afghanistan/Afghanistan-agreements-collection-official-text- 2001-2011. For details of the conferences, see peacemaker.un.org/afghanistan-bonnagreement2011 and www.cimicweb.org. See also Britta Petersen, “Bonn minus Pakistan”, , http://tribune.com.pk/story/302576/bonn-minus-pakistan/, accessed on April 29, 2016. 13Shahid R. Siddiqui, “Confine your operation to Afghanistan, Islamabad tells Washington”, October 12, 2010, available at axisoflogic.com. See also “Pakistan: NATO attack inflames tense ties with US”, November 27, 2011, available at www.cnn.com. American CIA had calculated that Taliban cannot be defeated unless the sanctuaries in Pakistan are destroyed with more attacks inside Pakistani territories. America planned and reacted accordingly. See also “NATO air attack on Pakistan was self defence”, The Guardian, September 27, 2011, www.theguardian.com; Britta Petersen, “Bonn minus Pakistan”, The Express Tribune, http://tribune.com.pk/story/302576/bonn-minus-pakistan/, accessed on 24 March 2016. 14 Noor ul Haq, “Abbottabad and Salala Attacks 2011” op. cit.; Huma Imtiaz, “US congressman tables bill for Baloch right to independence”, the Express Tribune, February 18, 2012, available at tribune.com.pk., accessed on 24 March 2016. See also “US lawmakers raise issue of ‘Baloch self-determination”, DAWN Islamabad, 9 February 2012, p 14; “Senators criticize US interference,” DAWN Islamabad, February 10, 2012, p 3; Najmuddin Shiekh, “Rohrabacher & Balochistan,” DAWN Islamabad, February 29, 2012, p 7. 15Ibid. 16 Obama Administration had promised sale of eight F-16s to Pakistan on subsidized rate of 270 million US dollars with 450 million dollars American aid against the actually cost of 700 million US dollars so as to meet its security needs and fight against terrorism. However, American Congress, on 29 April 2016, suspended the Foreign Military Financing for Pakistan on the plea that these might be used against . On 19 May 2016, the House of Representatives passed the National Defence Authorisation Act, which required Obama Administration to certify, before releasing the requisite aid, if Pakistan has launched desired operation against Haqqani network, American military aid, funds or equipments are not used against minorities seeking religious or political freedom and release of Dr Shakil Afridi, who was instrumental in locating and eliminating Osama bin Laden. The last two conditions were included on the move of Rohrabacher. This in fact demonstrates lack of American interest in the security needs of Pakistan, as it does not need logistic support or defence supplies through Pakistan and has finalized phased plan for ultimate withdrawal of troops from Afghanistan. This is the repetition of American betrayal to Pakistan in the 1990s, when in the wake of Soviet retreat and withdrawal from Afghanistan; America had not only refused to deliver F-16s to Pakistan but declined to return the money paid in advance. It is also unfortunate that US President Barak Obama in an interview to an American magazine had uttered the words to describe Pakistan a dysfunctional state. For details, see Anwar Iqbal, “F-16s right platform for Pakistan’s counter-terrorism war: US” and “F-16 sale in jeopardy”, DAWN Islamabad, May 1, 2016, pp. 1 and 8. Muhammad Alam Khatak, Defence Secretary of Pakistan, and Chief of the Army Staff General Raheel Sharif also raised the issue of F-16s with General Joseph L. Votel, Commander US Central Command, who visited the Ministry and GHQ on 9th of May 2016. They shared concern of the Armed Forces regarding suspension of grant of purchase of F-16s and necessity for Pakistan to fight the WOT. 24 May 2016 was the last date for Pakistan to bid for the purchase of F-16, which elapsed without any breakthrough, leaving Pakistan to explore other options to meet its defence requirements. See Moed Yusuf, “ Two ” and “F- 3

(NSG)17 depict that US has neither anything at stake in Afghanistan nor is concerned with security needs of Pakistan or is interested to maintain any lasting friendship with Pakistan, except for the advancement of her global political interests.18 The WOT embraced the whole of Pakistan like an octopus, grabbing all its spheres in its fierce full clutches. Consequently, not only the political, social, religious, economic, geographical, legal and moral fibers were critically affected but military doctrines were also redefined, strategic policies reshaped and principles of foreign policy and international relations reformed, so as to protect the security of Pakistan from being compromised.19 Militancy, terrorism, violence, ethnicity and intolerance cropped up in the society, which created law and order situation beyond the capacity of the police to control;20 and thereby inviting the Armed Forces of Pakistan to act in aid of civil power.21 This situation diverted attention of the Armed Forces from their primary responsibility of protecting the country against any external aggression to the internal security and fighting the menace of radicalization, extremism, terrorism and militancy.22 Targeted explosions on military

16s issue raised with Centcom Commander”, DAWN Islamabad, May 10, 2016, pp. 1 and 9. See also Anwar Iqbal, “US House imposes strict restrictions on aid to Pakistan”, DAWN Islamabad, May 21, 2016, p. 16. 17America supported India in her bid to join NSG and denied any such support for Pakistan. Despite the fact that India has not yet signed NPT, President Obama supported India’s application to join NSG but denied the same support to Pakistan, who had also applied for its membership to be decided in NSG meeting held on 23-24 June 2016 in Seoul, North Korea. When Pakistan approached America, it was suggested to seek support of the 48 members NSG, instead of lobbing for American support. For details, see “India wins Obama’s support for NSG bid” and Anwar Iqbal, “US asks Pakistan to seek NSG’s acceptance not individual endorsement”, DAWN, Islamabad June 8 and 10, 2016, pp. 1 and 5. 18See Baqir Sajjad Syed, “Aziz cautions US against upsetting S. Asian Strategic Stability”, Anwar Iqbal, “China opposes India’s bid to join NSG”, “Pakistan, US trade blame for bad patch in ties” and “Slipping Pak-US ties”, DAWN Islamabad, June 10 and 11, 2016, pp. 1, 5 and 8. 19Lieutenant General (Retired) Ali Muhammad Jan Oarakzai, “Situation in FATA: Causes, consequences and the way forward”, Policy Perspectives, Volume 6, Number 1, January-June 2009, Institute of Policy Studies, Islamabad, available at www.ips.org.pk., accessed on March 27, 2016. See also Dr RaziaMusarrat, “US War on Terrorism and its Impact on South Asia” (2007), Journal of Political Studies, Vol. 11, p2, accessed on 24 March 2016, citing Dr Noman Umar Sattar, “War against Terrorism: Implications for Pakistan”, National Development and Security, (Summer/2004), Volume XII, Number 14, pp. 31-34. 20Munir Akram, “Pakistan’s war on terrorism”, DAWN Islamabad, July 6, 2014, p. 8. See South Asian Terrorism Portal Database at www.satp.org, Pakistan Institute for Conflict and Security Studies and Centre for Research and Security Studies reports for 2015, which give details of the fatalities and analysis of terrorism related incidents in South Asia and Pakistan. 21Article 245(1) of the 1973 permits that “Armed Forces shall act in aid of civil power” only when so called upon by the government. 22 Brigadier Raashid Wali Janjua, “Civil- Military Relations-The Impact of Internal and External Factors in Reshaping the Balance of Civil Military Relations”, NDU Journal, 2010, pp. 27-46; Dr. Noman Omar Sattar, “Terrorism: Dynamics of the new Wave”, Margalla Papers, 2009, pp. 22-39. Since 2002, military had been on the hunt of terrrists in FATA consisting of seven districts i.e. South and North Waziristan, Bajur, Aurakzai, Mohmand, Khyber and Kurram agencies. Miliitary had launched offencives in different discticts of the said 4

installations and security forces,23 blowing up of girls schools, presence of huge quantity of explosives and weapons, incapacity of law enfacement agencies to combat terrorism, challenge to the writ of the government, prevailing sense of insecurity, economic disparity, increase in foreign loans, price hike and poverty, weakening of political institutions and the criminal justice system,24 threats of UN intervention by describing the Armed Forces operations against the militants and terrorists as ‘non-international armed conflicts’ and highlighting the allegations of violations of International Humanitarian Laws (IHL),25 are said to be some of the consequences of WOT to Pakistan.

There is no denying the fact that Pakistan had been reluctant to join the US WOT for multiple reasons; including evident threats to her security and sovereignty, constitutional obligations to maintain friendly relations with neighboring countries, respect for UN Charter, which protects sovereignty and independence of the nation states. However, despite having provided for an effective judicature under Article 175 of its Constitution and declared in its preamble and Article 40 the manifest desire and resolve to promote international peace and

agencies, which include operations in the name of Al-Mizan, Zalzala, Black Thunderstorm,Sher Dil, Rah-e- Rast, Rah-e-Haq, Rah-e-Nijat, Koh-e-Safaid and finally Zarb-e-Azb launched on 15th day of June 2014 in North Waziristan agency. 23 For example: GHQ attack on 10 October 2009, Mehran Naval Base attack on 22 May 2011, Badbher Airbase Attack on 18 September 2015, attack on Quaid-e-Azam International Airport Karachi on 4 June 2014, attack on Army Public School Peshawar on 16 December 2014. 24For examples of the deteriorated law and order situation in the country, rampant terrorism, challenges to the writ of the government and national security from different angles, see judgment of the Supreme Court in 21st Constitutional amendment case cited as District Bar Association Rawalpindi v Federation (PLD 2015 SC 401). See also Watan Party v Federation of Pakistan (PLD 2011 SC 997) p.1098 and Pakhtunkhwa Public Service Coordinators, “Impact of Terrorism on Pakistan”, http://www.kppsc.com.pk/pages/?Impact_of_terrorism_on_Pakistan accessed on May 15, 2016 25For allegations of human rights violations, see for example: The Hands of Cruelty published in 2012 and is available at https://www.amnesty.org/en/latest/news/2012/12/report-exposes-hands-cruelty-pakistan-s-tribal- areas/. The report was followed by a letter no TG ASA 33/2012. 016 dated 20 December 2012 of Mr John Dalhuisen, Senior Director Research of Amnesty International, to Prime Minister Raja Pervaz Ashraf, highlighting human rights violations in tribal areas and criticizing Actions (in Aid of Civil Power) Regulations 2011, for giving legal protection and impunity to Armed Forces for violation of human rights during the military operations in tribal areas. “Torture in 2014” is available at https://www.amnesty.org/en/search/?contentType=2561&tid=2034&term_node_tid_depth=1789&p=133 , accessed on March 31, 2016. See also Human Rights Commission of Pakistan, “State of Human Rights in 2015”, (: HRCP, 2016). Also see Niaz A. Shah, Islamic Law and The Law of Armed Conflict: The Armed Conflict in Pakistan, (: Rutledge, Taylor & Francis Group, 2011) pp. 134, 148-150. For meanings of IHL, see The Hague and Geneva Conventions of 1949, which are generally regarded as the main sources of modern IHL, which govern armed conflicts. This has been observed by the International Court of Justice in legality of the threat or use of ‘nuclear weapons’, Advisory Opinion, 1999 I.C.J. 226, 256 (Jul 8) declaring that “two branches of the law applicable in armed conflict have became so closely inter-related that they are considered to have formed one complex system” - François Bugnion “Droit international humanitaire coutumier” (2007), Swiss Review of International and European Law, pp 165-214. 5

security, foster good will and friendly relations among all nations, and encourage settlement of international disputes by peaceful means, Pakistan was portrayed as a terrorist and failed state. It may be appreciated that constitution has been recognized as the supreme law of any state and reflects the will of the people of that State.26 It lays down, inter alia, the guiding principles of policy to be followed by various organs of the state; whereas, preamble of any constitution describes in brief the need, objectives and contents of the ensuing constitution and the issues to be dealt therein.27 Analyzed on this principle, international peace and harmony emerges as a predominant will of the people of Pakistan; whereas “domestic tranquility and common defence” are the manifest objectives of establishing the US Constitution.28 It is in this backdrop and being a weaker nation confronted with serious internal and external threats that Pakistan has been submitting to the American will and compromising on US pursuit of militancy in Pakistan whereas US has been toeing its doctrine of “common defence and domestic tranquility” which is associated with launching offensives and challenging the sovereignty of other nations, as is evident in the Bush doctrine,29 may that be at the cost of violating United Nations Charter30 or managing UN resolutions in the name of individual and collective self defence31 in her favour and against the country who might cause any potential or hypothetical challenge to the American interests.32 The degree and frequency of such violations by US multiplied after the collapse

26Emmanuel Zafar, The Constitution of the Islamic Republic of Pakistan, Volume I (Lahore: Irfan Law Book House, 1992), pp. 24-25. 27The State v Zia-ur-Rehman (PLD 1973 SC 49). 28Preamble to the Constitution of the United States of America 1789. American Constitution was presented to states for ratification on 28th day of September 1787. Until 21 Jun 1788, nine states ratified it; while it was given effect from 4th day of March 1789. 29The White House Washington, “The National Security Strategy of the United States of America 2002” available at http://www.infomationclearinghouse.info/article.2320/1665.htm, accessed on March 2, 2012. The doctrine emphasises on “counter terrorism across the globe and a policy of democratic regime change”. 30See Article 2(4) of the UN Charter which reads: “All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations”. 31See for example: “UN Security Council Resolutions” 1269, 1368 (2001), 1373 (2001), 1377(2001), 1535 (2004), 1540 (2004), 1625, 1805 and 1963 (2010), available at http://www.un.org/Docs/scres. On the other hand, Article 51 of the UN Charter reads: “Nothing in the present Charter shall impair the inherent right of individual or collective self defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace.” 32For example: “UN Security Council Resolutions” 1368 (2001), 1373 (2001), 1377(2001), 1535 (2004), 1540 (2004), 1963 (2010), available at http://www.un.org/Docs/scres, accessed on July 27, 2011. However, the said resolutions do not define or differentiate “terrorism” viz-a-viz “freedom fighting” but stress the member states to fight terrorism utilizing all available means, so as to ensure “international peace and justice”. For conflicting 6

of Soviet Union and the incident of September the eleventh.33 Afghanistan, Iraq, Egypt, Syria and even Pakistan, who has been graded as a terrorist state by and on the behest of US, are the living examples of US interference in the name of right of self defence, democratic regime change and execution of its hegemonic political order in the recent and current history.34

The desire for peaceful co-existence is inherent in every nation and recognized as a right of every nation state in the United Nations Charter, which provides for international peace and security. This commitment of the comity of nations received a severe blow in the aftermath of WOT and had devastating effects on the domestic peace, internal security and sovereignty of Pakistan and other countries of the globe including America itself that had the best security apparatus. The existing administrative structure and judicial system became handicapped to combat the menace of terrorism. Consequently, many countries of the world amended their security and anti-terrorism laws. Establishment of the Department of Homeland Security, promulgation of USA PATRIOTS Act 200135 and The John Warner Defence Authorization Act;36 New Control Orders Regime37 and Academic Technology Approval Scheme (ATAS) 2007;38 Prevention of Terrorist Activities Act (POTA) 2002;39 the

views on definition of terrorism, see Nadeem Ahmad, “Conceptualizing terrorism: Problems of defining and building consensus”, IPRI Journal XII, no. 2 (Summer 2012), 58-75. 33After winning the cold war, America prepared the blueprint to capitalize its surplus military forces and defence resources to extend its hegemony and corporate privatization throughout the world. See for example, “Project for old American Century, New American Century”, available at www.oldamericancentury.org, accessed on 04 April 2016. See also Dr. Shahid Ahmad Hashmat, International Conflict Resolution: Role of UN and OIC, (Islamabad: NUST Publishing, 2014), pp.1-2. For American justification of WOT on the basis of just war doctrine, see for example: Tamie Harrison, “On the war against terror as a just war”, October 20, 2009, available at http://userpages.Umbc.edu, accused on April 7, 2016. 34The White House Washington, “the National Security Strategy of the United States of America 2002” available at http://www.infomationclearinghouse.info/article.2320/1665.htm, accessed on March 2, 2012; Adam Richards, “George W Bush: the 9/11 terrorist attack and war on terror”, Chapter 13, Lesson 6, transcript.study.com; Cui Bono, “9/11 false flag operation: Huge tipping point as state-sponsored terrorism is exposed”, August 31, 2014, State of the Nation, available at stateofthenation2012.com. See also Zerohedge, “George Bush Idiotic ‘’ speech - How the Neocons Blundered the US into Confrontation with Iran and Paved the Way for ISIS”, October 22, 2015, available at davidstockmancontracorner.com., accessed on March 24, 2016. 35 “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act 2001” 36The Act allows American President to impose martial law and deploy troops anywhere in America to suppress public disorder. 37Under the New Control Orders Regime, British Police and law enforcement agencies (LEAs) were given unprecedented powers to detain any suspect without charging him for 28 days. 38Academic Technology Approval Scheme (ATAS) 2007 provided more strict criteria for foreign students except those hailing from European Union. 7

Pakistan Army (Amendment) Ordinance 2007,40 amendments in Anti-terrorism Act (ATA)41 1997 and establishment of National Counter-terrorism Authority (NACTA) in 2009,42 followed by promulgation of National Judicial Policy (NJP) 2009,43 the Actions (in Aid of Civil Power) Regulations for FATA and PATA signed by the on 23 Jun 2011,44 Investigation for Fair Trial Act 2013,45 Protection of Pakistan Act 2014,46 Constitution (21st Amendment) Act 2015 and Pakistan Army (Amendment) Act 201547 may be cited as examples of the necessity of these laws and resolve of the concerned states to eradicate and combat terrorism.

39Though repealed when the BJP government in India was ousted in 2004, POTA 2002 recognized confessions before police as admissible in evidence and put the responsibility on the accused to prove their innocence. 40PLD 2007 (Supp-I) Federal Statutes 18). For details of the emergency and its subsequent validation by the Supreme Court headed by Justice , see Tika Iqbal Muhammad Khan v General Pervez Musharaf (PLD 2008 SC 178). General Pervez Musharaf had also previously proclaimed emergency on 12 October 1999, held the Constitution in abeyance and issued Provisional Constitution Order on 14 October 1999. For contents of the emergency and the order, see PLD 1999 Central Statutes 446 and 448. The Ordinance was promulgated by President General in November 2007; however, it was not validated by the Parliament. 41The Anti-terrorism Act was repeated amended, in the backdrop of WOT, vide Anti-terrorism (Amendment) Ordinance (VI of 31 January) 2002 (PLD 2002 Central Statutes 202), Anti-terrorism (Amendment) Ordinance (CXXV of 15 November) 2002 (PLD 2003 [Supp (Part I)] Federal Statutes 1014, Anti-terrorism (2nd Amendment) Ordinance (CXXXIV of 23 November) 2002 (PLD 2003 [Supp (Part-I)] Federal Statutes 1070, Anti-terrorism (Amendment) Act (XIII of 19 Mar) 2013 (PLD 2013 Federal Statutes 443), Anti-terrorism (2nd Amendment) Act (XX of 26 Mar) 2013 (PLD 2013 [Sup] Federal Statutes 468), Anti-terrorism (Amendment) Ordinance (VII of 14 October) 2013 (PLD 2014 [Sup (Part II)] Federal Statutes 172), Anti-terrorism (Amendment) Act (VI of 15 June) 2014 (PLD 2014 [Supp (Part II)] Federal Statutes 134), Anti-terrorism (Amendment) (2nd Amendment) Act (VII of 20 June) 2014 (PLD 2014 [Supp (Part II)] Federal Statutes 203).] 42National Counter Terrorism Authority (NACTA) was established in 2009 to coordinate and receive intelligence from all intelligence agencies, share real time intelligence amongst all law enforcement, security and intelligence agencies, devise and executive counter terrorism policy of the government. NACTA was created as an independent entity with an executive committee chaired by Interior Minister and responsible to the Prime Minister. Although the authority had the legislative support in terms of NACTA 2013 (PLD 2013 [Sup (Part I)] Federal Statutes 119), yet its formation and functioning is still shrouded with mystery in the intelligence supremacy game or lack of seriousness of the government to activate NACTA. Recently, government has assigned NACTA to form a core group consisting of representatives of the federal and provincial governments, civil society, political parties and international groups to revisit and suggest reforms in the criminal justice system within the scope of National Action Plan. See also Iftikhar A. Khan, "Criminal justice system revamp plan approved”, DAWN Islamabad, May 27, 2016, p. 3 43PLD 2010 Journal 7. 44President promulgated Regulation F. No. 11(5) P/L/2011 for PATA and Regulation F. No.11 (6) P/L/2011 for FATA, published in Gazette of Pakistan Extraordinary, 566 and 567 of 27 June 2011 at pages 241-257 and 259-275. The FATA Regulation is also available at PLD 2012 Federal Statutes 46. 45PLD 2013 (Sup) Federal Statutes 45. 46 Protection of Pakistan Act 2014 was assented by the President on the 9th day of July 2014 and is available at PLD 2014 [Sup (Part II)] Federal Statutes 177. Earlier Protection of Pakistan Ordinance 2013 (PLD 2014 Federal Statutes 42) was promulgated, which was followed by the Protection of Pakistan Rules 2013 (PLD 2015 Federal Statutes 5), promulgated by the federal government on 5th day of December 2013, as empowered under Section 20 of the Ordinance. 47PLD 2015 Federal Statutes 1 and 3 respectively. The enactments were described as Act I and II of 2015 respectively. 8

History of criminal justice system and security laws of Pakistan is deep rooted and has its origin in the legislations made by the British in the Indo-Pak sub-continent.48 Their intention was to rule the people and serve them only to the extent that they remain subservient and obliged to their rulers. This view is forfeited from the facts that initially they had different rules for the local and the European troops in India. Even two different standards of punishments were followed for the native military personnel and European Army officers.49 However, subsequently the Indian Army Act 191150 and the Indian Army (Suspension of Sentences) Act 192051 provided uniform and consolidated laws for the whole body of Indian troops serving as part of the British Army in India. Despite this discrimination in the early days of their rules, the British reconciled the laws and administered justice amongst the subjects placed in similar circumstances; and followed the principle of equality before law to a reasonable extent. However, when it came to the political questions, continued rule against the will of the people and suppression of their rights, ensued the Movement or War of Independence 1857. As a consequent thereto, the stringent legislations and graver punishments prescribed thereby could not impede the path of independence for the people of sub-continent. Explosives Act 1884,52 Foreigners Act 1946,53 Works of Defence Act 1903,54 Explosive Substances Act 1908,55 Prevention of Seditious Meetings Acts 1911,56 Frontier Crimes Regulation 1901,57 Official Secrets Act 192358 did not succeed

48Indian Independence Act 1947 read with Government of India Act 1935 provides the basis for government of the independent Pakistan till new constitution is promulgated. See 10& 11 GEO VI, Chapter 30. See also Government of India Act 1935 (26 Geo V, Chapter 42), (Lahore: PLD Publishers, 1952), which also contains the said 1947 Act. 49Imperial Gazette of India 1907, Volume IV, Chapter XI as cited in Manual of Indian Military Law 1937, (Delhi: Defence Department, Government of India, 1937), pp. i-iv. Until 1824, death sentence was awardable only to native officers and soldiers; while they were not awarded imprisonment or transportation. It was finally in 1911, a consolidated uniform Act i.e. the Indian Army Act 1911 was promulgated, which repealed previous Articles of Wars. See also Justice S.B. Malik, Compendium of Laws of Defence Services, (Allahabad: The University Book Agency, 1991), pp. xlviii and xlix. 50 Ibid. 51 Ibid. 52M. A. Farani, Criminal (Local & Special Laws) Minor Acts, (Lahore: Lahore Law Times Publications, 2005), pp. 520-527. 53Foreigners Act 1946, The Registration of Foreigners Act, 1939 and The Foreign Relations Act 1932 are available in Arif Ali Mir, Manual of Foreigners Laws in Pakistan, (Lahore: Irfan Law Book House, 2005), pp. 1-24, 46-48 and 73-76. 54Manual of Pakistan Military Law (Volume II), (Rawalpindi: , Ministry of Defence, 1987), pp. 1295-1315. 55M. A. Farani, op. cit., pp. 527-528. 56Pakistan Code (Vol VI) 1966, p. 51. 57Kazi Muhammad Ashraf, Punjab Laws (Vol I), (Lahore: Mahmood & Company, 1964). 9

in restoring peace and stability in the sub-continent; rather helped in the creation of two independent states of India and Pakistan. After the independence, Pakistan also confronted the law and order issues in Khyber Pakhtukhwa (KP), Balochistan and Bengal province of East Pakistan now Bangladesh. Leaving aside India’s negative role in creating internal disturbance and challenges to the integrity and security of Pakistan, which are still continuing, neither the above said laws nor new laws such as Security of Pakistan Act 1952,59 East Bengal, Punjab and North Western Frontier Province Disturbed Areas (Special Powers) Ordinance 1962,60 the West-Pakistan Maintenance of Public Order Ordinance (MPO) 1960,61 Defence of Pakistan Ordinance 1965,62 Criminal Law Amendment (Special Tribunal) Ordinance 196863 and Defence of Pakistan Ordinance 197164 succeeded in averting separation of East Pakistan and creation of ‘Bangladesh’, as the political issues may not be resolved through legislations to suppress the rights and desires of the people and seeking their unconditional obedience. Continued failure or disregard to administer free and fair justice breads unrest, disloyalty, disunity and ultimately irrational and exaggerated demands of the people which may not be fulfilled, unless the rights of others or sovereignty of the country is compromised. This has been experienced in the case of East Pakistan.

After the fall of Dhaka and installation of the government of Mr Zulfiqar Ali Bhutto, followed a unanimous Constitution of 1973 created a hope for unity, fraternity, sovereignty and rule of law in the now Pakistan. But the lust for continued retention of power, self-righteousness and demand for extra provincial autonomy created another scene for unrest and internal disturbance in the country, which necessitated promulgation of Prevention of Anti-National Activities Act 1974,65 Private Military Organizations (Abolition and Prohibition) Act 1974,66 Suppression of Terrorist Activities (Special Courts) Act 1975,67

58Manual of Pakistan Military Law (Volume II), (Rawalpindi: Government of Pakistan, Ministry of Defence, 1987), pp. 1277-1288. 59PLD 1952 Central Acts 288. 60PLD 1962 Central Statutes 608. 61PLD 1961 W.P. Statutes 30. The Ordinance was promulgated in pursuance of the Presidential Promulgation of 7 October 1958. 62PLD 1965 Central Statutes 262. 63PLD 1968 Central Statutes 92. 64PLD 1972 Central Statues 31. 65PLD 1974 Central Statutes 151. 66PLD 1974 Central Statutes 50. 67PLD 1975 Central Statutes 89. The Act was repeatedly amended during 1987-1991. 10

Criminal Law Amendment (Special Court) Act 1976.68 However, the said laws could neither prevent anti-Bhutto government movement of Pakistan National Alliance (PNA) nor save him from the ill-fate of death sentence in Nawab Muhammad Ahmad Khan murder case.69 During his reign as Prime Minister, Mr Bhutto had to neutralize Khan Abdul Ghaffar Khan, Nawab Muhammad Akbar Khan Bughti, Khair Bakhsh Marree factors70 in the provinces of KP and Balochistan. The legislative measures though helped him maintain national integrity and unity for which he had to even call the Armed Forces to act in aid of civil power and declare persons subject to the laws on active service71 and commit the political leaders and workers of opposite parties having anti-state and militant elements in preventive detentions and the prisons, yet he could not save his government.

General Muhammad Zia-ul-Haq succeeded Mr Bhutto and despite the factor of ‘jiyalas’, who were loyal workers of the Pakistan People’s Party and mourned on the ouster of Mr Bhutto’s government, his execution and Movement for Restoration of Democracy (MRD), succeeded in winning confidence of the people of the three provinces either in the name of Islamization or bringing the opponents of Mr Bhutto in the political stream by exalting them on higher portfolios of Governors or Chief Ministers. He also succeeded in neutralizing Bhutto and jiyalas factor in , especially in Karachi, by creating and patronizing Muhajir Quami Movement (MQM), later converted into and described as Muttahida Qaumi Movement. Despite the fact that MQM gave recognition and representation to the suppressed, neglected and poor class, but the consequences of its politics suffered by the nation so far are disappointing and devastating. MQM followed coercive politics of

68PLD 1976 Central Statutes 189. The Act was further amended vide Criminal Law Amendment (Special Court) (Amendment) Act 1976 of 23 August 1976 (PLD 1976 Central Statutes 593). 69Details of the PNA movement and the legal battle fought by the first lady to save her husband are available in Begum Nusrat Bhutto v Chief of Army Staff (PLD 1977 SC 657-763) 70 Khan Abdul Wali Khan along with other Pakhtoon and Baloch leaders of his National Awami Party (NAP) including Mir Ghoaus Bakhsh Bizinju, Sardar Khair Bakhsh Marri, Sardar Attaullah Mangel etc were arrested and lodged in Sihala Special Jail for one month preventive detention in February 1975. NAP was also banned under Section 6(1) of the Political Parties Act 1962 and its funds frozen, for allegedly acting against the sovereignty and integrity of Pakistan; promoting and advocating self-determination for the Baloch and Pakhtoons, maintaining and encouraging private and tribal lashkars who endangered lives of the innocent citizens and even attacked the law enforcement agencies in Lesbella/Balochistan. While Khan Abdul Wali Khan moved the Supreme Court, Mr Bhutto also filed a reference in the Supreme Court, who decided that activities of NAP and its leaders were prejudicial to the sovereignty or integrity of Pakistan, in the case entitled Islamic Republic of Pakistan v Abdul Wali Khan (PLD 1976 SC 57). NAP changed its name to (ANP) and is still playing its role in the national politics and had ruled the province of KP. 71See for example: Ministry of Defence Notification No. 3/75 dated 3rd day of January 1975 available in Manual of Pakistan Military Law (Volume I), (Rawalpindi: Government of Pakistan, Ministry of Defence, 1987), p. 833. 11

unconditional submission and obedience in its ranks and files, absolute authority with no difference of opinion with Mr Altaf Hussein, intolerance and elimination of opponents, 72 establishment of torture cells, no-go areas and challenge to the writ of the government, national security and sovereignty, with proven support of anti-Pakistan forces, more specifically Indian intelligence agency RAW.73

When the political means to bring MQM on table and restore peace in Karachi failed, the government had to launch operation with the assistance of Armed Forces and Law Enforcement Agencies (LEAs) in 1991-1992. Anti-state and terrorist activities of MQM were at the highest flow when General Asif Nawaz was the Chief of Army Staff, when even the Armed Forces were not allowed to act in aid of civil power in Karachi.74 Kidnapping and torture of military personnel enraged the Armed Forces and the government.75 Simultaneously, the government resorted to legal measures to check and punish illegal, criminal, anti-state, anti-national and terrorist activities of MQM and other like-minded; and enacted Surrender of Illegal Arms Act 1991,76 Terrorist Affected Areas (Special Courts) Act

72Mr Altaf Hussain himself is accused of abetting murder of Dr. Imran Farooq, who was his party member and had challenged his authority. In view of Altaf Hussain’s repeated speeches against Ranger’s operation in Karachi and repenting on past links with RAW by some members of MQM, a debate was initiated to burry the past and give MQM to reconcile its past, with minus Altaf Hussain formula. The move received a severe blow when the enraged Mr Altaf Hussain reprimanded MQM leaders for failing to defend him for allegations of his criticism against the Rangers and links with RAW. He responded the idea by forcing MQM legislators to resign from the Parliament and Provincial Assemblies. For details see “MQM lawmakers tender resignation”, August 12, 2015, available at www.dawn.com/news/1200027/ and “Minus Altaf formula not acceptable” July 8, 2013, available at www.dawn.com/news/102353/, all accessed on August 8, 2016. But as the misfortune would have it, despite absolute control, Mr. Altaf alongwith some of his comrades was sacked by his own deputies after his anti-Pakistan tirade on 22 August 2016, so as to save ban on the party. See Azfar-ulAshfaq, “Dr Sattar-led MQM sacks four London-based leaders”, DAWN Islamabad, September 21, 2016, p. 1 73For alleged links of MQM with RAW, see “MQMs alleged links with RAW: report sent to Interior Ministry”, The News, June 8, 2016; “MQM had links with India’s RAW agency, Saulat Mirza tells JIT”, April 30, 2015, available at https://www.geo-tv/latest/98604-mqm-had-links-with-india’s-raw-agency-saulat-mirza-teels-jit, accessed on August 8, 2016. 74Criminal activities of MQM and its militants in Karachi have also been discussed in Suo Moto case No. 3 of 2001 and Watan Party/Suo Moto case No. 16 of 2011 (PLD 2001 SC 1041 and PLD 2011 SC 997 respectively). 75 It may be recalled that Major Kaleemuddin was kidnapped on 20 June 1991 and tortured by MQM, who had allegedly hatched a conspiracy to convert Karachi into “Jinnahpur” state, in connivance with Indian RAW. Nawaz Sharif launched operation clean-up in Karachi which was continued by Mrs Benazir Bhutto as well until August 1994. Altaf Hussain was also one of the accused in Major Kaleem case and awarded 27 years rigorous imprisonment in absentia. However, subsequently his sentence and convictions along with 18 MQM members stood set aside, when the provincial government, on 13 August 2007, withdrew its appeal in Major Kaleem case. For details see, “Major’s kidnapping, Jinnahpur 1992, 1994 anti-MQM operations”, available at https://www.thenews.com.pk/print/28991/-majors-kidnaping-jinnahpur-1992-1994-anti-mqm-operations, accessed on August 8, 2016. 76PLD 1992 Central Statutes 48. 12

1992,77 Special Courts for Speedy Trial Act 1992.78 This effort of the government with the assistance of the Armed Forces helped curtail criminal and terrorist activities of MQM, remove no-go areas, shatter confidence of the MQM leadership and workers, who either went underground or exiled themselves. However, death of General Asif Nawaz and ouster of Mr Nawaz Sharif government in April 1993 gave a big blow to the collective efforts of the civil- military leadership to check growing lawlessness, terrorism and military in Karachi and other parts of the country. Politically motivated and MQM-influenced police and judiciary in Karachi were definitely some of the factors to contribute in high rate of criminality, terrorism and militancy. MQM case is not exception to the notion that when the suppressed and the depressed gain power, they tend to retaliate with multiplying force. Their actions and conduct generally are irrational and motivated by retribution, reprisal and absolute authority with no scope for pardon or compromise except unconditional submission to their will by the opponents and opposite forces. This phenomenon of realism79 continues until those suppressed by the (suppressed converted into) oppressors stand up against the later and eliminate or treat them the way they were treated by the others after gaining power.

Accordingly, MQM was joined by other ethnic, linguistic and religious groups in contributing law and order situation in Karachi; and challenge authority of MQM. The law and order situation in Karachi started deteriorating to the extent that the started recession rather than a boom. Efforts of the government to eradicate menace of bhatta collection, sectarian violence, target killings and strikes with the existing laws did not bear fruit. The government in its last effort promulgated ATA but its execution through the same police and judiciary scared of personal and job security, influenced by political factor, with lack of capacity and motivation, remained a challenge for the government. Depressed by the ground realities and deteriorated law and order in the country, especially in Karachi and in the wake of Mehram Ali case, the government decided to establish military courts in Karachi through Armed Forces (Acting in Aid of Civil Power) Ordinance 1998.80 The military courts

77PLD 1992 Central Statutes 235. 78PLD 1992 Central Statutes 229. 79To understand the theories of realism, see for example: Thomas Hobbes, Leviathan, Chap XIII, pp. 56-57; and “A Realist Theory of International Politics” in Hans J. Morganthau, Politics Among Nations (New York: Alfred A knopf, 1973), pp. 3-15. 80PLD 1999 Central Statutes 156; The Ordinance was further amended by “Pakistan Armed Forces (Acting in Aid of Civil Power) (Amendment) Ordinance 1998” (PLD 1999 Central Statute 160). 13

tried heinous crimes and created deterrence by awarding deterrent sentences within a couple of months, until the Supreme Court declared the said Ordinance ultra vires to the constitution and suggested amendments in the 1997 ATA as well as ordered transfer of all pending cases to the anti-terrorism courts (ATCs).81 The government kept on amending and improving the ATA which became the basic and most authentic anti-terrorism law in the country, except the establishment of Qazi courts in Kohistan district of KP province established through the Shari Niazm-i-Adl Ordinance 199982 on the demands for enforcement of Shariah.

The law was delivering with leaps and bounds until the WOT ensued in the wake of 9/11 attack on the twin towers in New York. KP was the most affected by the American WOT initiated in Afghanistan and being fought in Pakistan. Since the people of KP and its adjoining tribal areas of FATA and PATA were considered as the sanctuaries and supporters or sympathizers of Taliban and their Al-Qaeda allies, they sought refuge in these areas; hence these areas and the people inhabited therein became the subject of American hunt and pursuits of WOT. The questions of legality of US pursuits of the alleged accused or abettors of 9/11 attacks and rationale for her drone strikes in these areas aside, the US WOT challenged sovereignty and national security of Pakistan and contributed to the deterioration of law and order in the whole of country, as the alleged accused scattered in the settled areas of Pakistan, initially in search of safe heavens and subsequently for regrouping and re- organization. Their criminal acts were converted into militancy, terrorism, and anti-state activities in the settled areas against the innocent civilians, Armed Forces and LEAs with the momentum in the American drone strikes and implied and direct support of the Armed Forces and the government of Pakistan to the Americans.83 As a consequence thereto, when all efforts to restore peace and writ of the government failed, the Armed Forces were called in to conduct operations against the militants, miscreants and terrorists operating in any name or manifestation or garb of non-state actors funded by the friends and foes.84 Since these

81Notification issued by the Ministry of Interior on 20 November 1998 whereby Armed Forces were called under Article 245 of the Constitution in Karachi. For details of the emergency order, resolution of the Parliament and other relevant notifications, see “Sh Liaquat Hussain case” (PLD 1999 SC 504, pp. 681-683). 82Ordinance 1 of 16 January 1999 (PLD 1999 N.W.F.P Statutes 20). PATA falls under the administrative control of the Chief Minister of Khyber Pakhtunkhwa in term of Articles 246(b)(i) and 247(1)(2)(3)(4) of the Constitution. 83See generally Niaz A. Shah and Amnesty International Report op. cit. 84"Revisiting Counter-terrorism Strategies in Pakistan: Opportunities and Pitfalls", Asia Report No. 271, July 22, 2015, International Crisis Group Brussels, available at http://www.crisisgroup.org/en/regions/asia/south- 14

military campaigns were aimed at neutralizing activities of the said anti-state elements and incapacitating the said violent non-state actors, the government did not conceive to try them through the special or anti-terrorism courts, especially those apprehended and detained in the FATA and PATA during military operations. On the other hand, those tried before the anti- terrorism courts were either awarded lenient punishments or acquitted of the charges for want of sufficient incriminating and legally admissible evidence.85

This state of affairs aggravated terrorism, compromised life and liberty as well as protection of property; while the law and the enforcers of law remained helpless. It also adversely affected the national security and sovereignty of Pakistan, as it was regarded a failed and insecure country for any international and multilateral social, cultural, economic and educational activity. Suicidal and bomb attacks on places of worship, public places, educational institutions, kidnapping and target killings of the philanthropists, businessmen, intellectuals, moderates and even members of the Armed Forces, LEAs and opponents of the terrorists and miscreants became order of the day.86 In such circumstances, the efforts to bring the culprits to justice through the existing investigating and prosecuting agencies and the judicial officers did not succeed to give a clear message to the criminals to stop; otherwise they would be eliminated through the force of law.87 Simultaneously, voices were raised for alleged violations of human rights and enforced disappearances. In order to address the issues, the government, besides amendments in the existing laws, for example ATA, promulgated Shariah Nizam-i-Adl Regulation 2009 for PATA, Actions (in Aid of Civil Power) Regulations 2011 for PATA and FATA,88 Investigation for Fair Trial Act 2013,89 Protection of Pakistan Act 201490 and finally 21st Constitutional Amendment and Pakistan Army (Amendment) Act 2015.91 It is a general perception that the said laws were

asia/pakistan/271-revisiting-counter-terrorism-strategies-in-pakistan-opportunities-and-pitfalls.aspx; Khyber Pakhtunkhwa Public Service Coordinators, “Impact of terrorism on Pakistan", available at http://www.kppsc.com.pk/pages/?Impact_of_terrorism_on_Pakistan, accessed on April 24, 2016. 85An e xclusive discussion with Brigadier Muhammad Amin, former Judge Advocate General, Pakistan Army and G. M. Chaudhry, Advocate Supreme Court of Pakistan, at Islamabad on January 27, 2016. 86 Detail account of these events has been given in chapter 3. 87An exclusive interview with Brigadier Muhammad Amin, op. cit. 88President Asif Ali Zardari promulgated Regulation F. No. 11(5) P/L/2011 for PATA and Regulation F. No. 11(6) P/L/2011 for FATA, published in Gazette of Pakistan Extraordinary, 566 and 567 of 27 June 2011 at pages 241-257 and 259-275. The FATA Regulation is also available at PLD 2012 Federal Statutes 46. 89PLD 2013 (Sup) Federal Statutes 45. 90PLD 2014 [Sup (Part II)] Federal Statutes 177. 91District Bar Association Rawalpindi v Federation of Pakistan (PLD 2015 SC 401). 15

promulgated to validate the detentions of persons who had been apprehended and interned without being tried since 2008 and condone any act or omission connected with their continued detention and delay in trial.92 The prosecution regime thus in fact has been linked with the Pakistan Army (Amendment) Act 2015. It may be recalled that this Act is not the only effort to bring the culprits within the pale of courts martial or military courts.93 There had been occasions when military and the political regimes had assigned and recognized the role of courts martial or military courts as an alternative mechanism for the administration of criminal justice in Pakistan.94 However, this role had not only been temporary but also subject to both criticism and appreciation. Though efforts and sacrifices of the armed Forces in the fight against terrorism are appreciable and commendable for the time being yet the pros and cons of the present role assigned to the Army for maintenance of peace and administration of criminal justice would be best calculated after the termination of the assignment.

Statement of the Problem

Since the launch of WOT, Pakistan remained at the lowest ebb of its political, economic and socio-religious debacles, and judicial fiascos. Pakistan had to experience challenges to its sovereignty, security and criminal justice system. It had also confronted the Lawyers Movement and National Reconciliation Ordinance which endangered the principle of tricotomy of power enshrined in the constitution. It had also faced the stigmas of failed, defaulter and terrorist state at the cost of growing injustice, intolerance, extremism, radicalization, despite President Musharraf's policy of enlightened moderation. The greatest set back was caused to the law and order situation in the country, writ of the government and fair administration of criminal justice, which is the hall mark of any peaceful, disciplined and prosperous nation. Nations may survive even if enslaved but their survival becomes questionable when injustice prevails. Injustice does not mean that an innocent is punished; but also encompasses a situation where the criminals escape punishment or do not get due

92An exclusive interview with Lieutenant Colonel Rahiem, former officer of the Judge Advocate General’s Department, advocate High Court Rawalpindi and human rights activist dated January 29, 2016. 93Courts martial in the generic sense are described as military courts. However, in the legal parlance, courts martial are distinguished from military courts in the sense that courts martial are established or convened under the military laws; whereas military courts are established during martial laws. 94Chapter 5 has been dedicated to discuss the role of courts martial and military courts as an alternative mechanism for the administration of criminal justice in Pakistan. 16

punishment and make a mockery of law, the judges feel insecure and are reluctant to hear cases against terrorists or acquit them for want of evidence or due to threat to lives. Justice and peace are indissoluble virtues. Peace and tranquility flow from justice; whereas injustice leads to chaos, sense of deprivation, lack of confidence in the government, law enforcement agencies and the judiciary; besides encouraging the criminals to jeopardize the peace and tranquility. Delay in dispensation of criminal justice has a direct nexus with the maintenance of public peace and security in the country, as it helps the criminals to escape punishment. It also breeds frustration amongst the aggrieved parties and erode their confidence in the criminal justice system.95 It may be appreciated that a criminal justice system recognizes three main organs i.e. the police, the courts and the prisons, who are collectively responsible for maintenance of peace and order as well as management and control of crimes and criminals. The Armed Forces have no role in the administration of criminal justice. However, the WOT induced the Armed Forces, specifically the Army, to share or take over functions of the said organs. This scenario instead of strengthening the three main agencies of criminal justice deteriorated their performance. The system which required improved structure, efficient functions and rational decision making in the wake of WOT sought refuge in the defecto performance of its functions by the Army.

Hypothesis

The WOT has collapsed the whole edifice of criminal justice in Pakistan.

Independent and Dependent Variables

WOT is independent variable; while challenges for criminal justice are dependent variables in this study. Correlation of the two variables and dependence of the later variables over the former had kept the study alive in the context of fast changing strategies to fight terrorism, their fall outs and revamping of the strategies.

Research Questions

In order to analyse the hypothesis, following research questions and issues have been framed: -

95This had been so observed by Chief Justice at page 1044 of Suo Moto Case No. 3 of 2001 decided on the 10th of August 2001 and is reported as PLD 2001 SC 1041. 17

 What is the background or cause of WOT and what are reasons for US pursuit of militancy in Pakistan?

 What is the US rationale for initating WOT and pursuit of militancy in Pakistan and is this rationale justifiable?

 What are the effects of WOT on national security and criminal justice system of Pakistan?

 What are different dimensions and parameters of the criminal justice system of Pakistan vis-à-vis terrorism?

 What is the historical background and evolution of security and anti-terrorism laws of Pakistan?

 What is the effect of amendments introduced in the security and anti-terrorism laws after 9/11 on combating terrorism and ensuring internal security of Pakistan?

 Are courts martial an alternative mechanism for criminal administration of justice in terrorism cases; and if they meet the criteria of fair trial?

Significance of the Study

National security has always been the focal point in the discussions of the experts in international relations, strategic and war analysts, and the scholars of peace and conflict studies. In view of its contemporary relevance with the national security of Pakistan, “War on Terror and challenges for criminal justice in Pakistan” was selected as the research topic for this PhD dissertation. The incident of 9/11 followed by the WOT distorted the whole edifice of the criminal justice system in Pakistan, which contributed to the already deteriorated law and order situation. It also promoted domestic violence and militancy to the extent that the writ of the government was challenged and compromised.96 And when the Armed Forces were called in terms of Article 245 of the 1973 Constitution of Pakistan to act in aid of civil power and control the internal disturbance, they were attacked by the militants who caused

96 Ms Sitwat Waqar Bokhari, “Pakistan’s Challenges in Anti-terror Legislation”, Centre for Research & Security Studies, (2013), available at http://www.academia.edu/13522605/Pakistans_Challenges_in_Anti- Terror_Legislation, accessed on April 5, 2016. 18

heavy casualties and loss to the Armed Forces, besides ruthless killing of men in uniform.97 Resultantly the national security of Pakistan was compromised. Despite all these odds, the Armed Forces and the LEAs had been following the rule of law and bare minimum force was used to incapacitate the militants and restore the peace in the areas of insurgency and under control of the militants. The responsibility assigned to the Armed Force of Pakistan was necessarily associated with the right of the Armed Force to apprehend, arrest and detain militants, collect the evidence from/against them and hand them over to the LEAs/police for investigation, prosecution and conviction.98 This undoubtedly is in line with the principles of rule of law and due process of law. However, adherence to the said principles, within the means of the existing criminal justice system in Pakistan resulted into collection of inadmissible and irrelevant evidence, weak prosecution and ultimate acquittal of the hardened criminals/militants who subsequently formed their own groups and launched attacks on the LEAs and the civilians in revengeful pursuits.99 In order to combat this menace and inherent ineffectiveness of the criminal justice system, there have been alleged long-term detentions, enforced disappearances and extra-judicial killings of the militants, their accomplices and suspected/potential militants. This situation provoked public sentiments and human rights violation issues at national and international level;100 while less voice was raised against the atrocities and violations committed by the said Violent Non-State Actors (VNAs). There has also been severe criticism by the superior on the conduct of law enforcement and intelligence agencies for the alleged illegal detentions, disappearances and extra-judicial killings of the citizens suspected of involvement in anti- state or terrorists activities.

97 District Bar Association Rawalpindi case op. cit; Ahmer Bilal Soofi, "Military Employment: Constitutional Provisions and Relevant Laws" Hilal English - The Pakistan Armed Forces Magazine, November, 2013; “49,000 casualties in Fata since 2001, SC told.” The Nation, March 27, 2013. 98Ibid. 99Naeem Sahoutara, "Terrorism cases pending before courts for eight years",TRIBUNE, July 5, 2015, http://tribune.com.pk/story/915455/terrorism-cases-pending-before-courts-for-eight-years/; Chris Allbritton, "Two Days After School Attack, Pakistan Court Lets Terrorists Walk Free",thedailybeast.com. December 19, 2014, http://www.thedailybeast.com/articles/2014/12/18/two-days-after-school-attack-pakistan-court-lets-a- terrorist-walk-free.html; Mudassir Raja, "ATC acquits 3 terrorism suspects due to lack of evidence”, TRIBUNE,September 18, 2012,http://tribune.com.pk/story/438548/atc-acquits-3-terrorism-suspects-due-to-lack- of-evidence/; Noor Wali Shah, "Lack of evidence leads to Sufi Muhammad’s acquittal in five cases." TRIBUNE, Novermber 10, 2013, http://tribune.com.pk/story/629818/court-diary-lack-of-evidence-leads-to- sufi-muhammads-acquittal-in-five-cases/; "Conviction rate slow in anti-terrorism courts in Pindi, Islamabad." DAWN, December 2014, http://www.dawn.com/news/1151583, all accessed on April 24, 2016. 100See for example: Human Rights Commission of Pakistan, “State of Human Rights in 2015”, (Lahore: HRCP, 2016. 19

Since the said chaos and crisis in not merely a law and order issue but a covert war against war combatants trained, funded and supported from within and beyond, a dire need was felt to revisit the existing criminal justice system of Pakistan, so as to ensure unity, integrity, security and sovereignty of Pakistan. In this backdrop certain amendments in the existing laws were introduced, besides new legislation. There is need to understand the rationale and consequences of these legislations so as to effectively fight the WOT, while recognizing state obligations, rights of the peoples and protection to the accused available under the constitution. This underlined necessity makes significance of this study more vivid and pronounced.

Justification and Likely Benefits

The study is likely to help understand the impact of WOT on the criminal justice system in Pakistan, causes of its failure and contribution of WOT to the deteriorated law and order situation, and re-emergence of terrorism and militancy in Pakistan. WOT magnified the cost of maintaining domestic peace, national security, law enforcement and justice beyond the capacity of Pakistan to afford. It will also help recognize the role of Pakistan in curbing the menace of militancy in the region and involuntarily or voluntarily compromising her sovereignty, while responding to the American desire, implied requirements of the United Nations Security Council Resolutions and international law.

Objectives and Scope of the Study

The study is intended to carry out extensive review of legal literature, apply legal theories in the real perspective, and analyze the original legislations and existing or amended Anti-terrorism laws until 2015. Precise objectives of the study may be delineated as under:-

 To study background and causes of WOT and critically analyze US rationale for initiating WOT and pursuit of militancy in Pakistan on the touchstone of just war theory, doctrine of self-defence and UN Security Council Resolutions and realist paradigm.

 To explore effects of WOT on the national security and criminal justice system in Pakistan.

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 To examine different dimensions and parameters of criminal justice system of Pakistan vis-à-vis terrorism.

 To explore different theories of crimes and punishments as well as examine their utility while deciding terrorism-related cases.

 To examine role of police, prosecuting agencies, courts, prisons and lawyers in the administration of criminal justice in Pakistan.

 To explore history of criminal justice system in Pakistan and evolution of security and anti-terrorism laws of Pakistan, including the amendments or new legislations introduced after 9/11 (WOT).

 To examine if the amendments and the legislations introduced after 9/11 conform international legal standards and relevant Geneva Conventions of 1949.

 To analyze the amendments/new legislations on the touchstone of the fundamental rights enshrined in the constitution.

 To analyze the effect of amendments and new legislations on combating terrorism and internal security of Pakistan as well as remedy the challenges for criminal justice in Pakistan.

 To examine the role and efficacy of courts martial as an alternative mechanism for criminal administration of justice in terrorism cases.

 To recommend future anti-terrorism legal strategy for Pakistan.

Research Methodology The study is mainly based on the qualitative analysis of the literature on the WOT and criminal justice system in Pakistan. Such literature is available in the form of books, legal journals, statutory laws, research papers, UN resolutions, reports of the UN agencies and human rights organizations, media coverage and the internet. In addition to the qualitative method of case studies through contemporary literature review, analysis of ideas and judgements of the superior judiciary, quantitaive techniques have also been employed to arrive at the findings and conclusions. The study is also augmented byinterviews and opinion of the uniform personnel engaged in combat and intellenge based operations against the

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terrorists and the fight against terrorism as well as the legal experts. Although some of the primary sources of the study are based on these interviews and discussions yet the desire of those who wanted to remain anonymous for security and service reasons has been respected. Similarly, due to security and operational necessities, availability of authentic and complete information, remained a difficult business. Thus reliance was placed on the information available from open sources, media reports and independent researches, which at times were not only contradictory but also confusing. Both the qualitative and quantitative techniques have been used depending upon the subject and the issue, especially while tabulating and analyzing the extent and nature of crimes and the causalities suffered as a consequence of WOT.

The study has been built on extensive review of legal literature, application of legal theories in the real perspective, analysis of the existing and amended laws relating to criminal procedure and terrorism. It is also augmented by the study of the Constitution of Pakistan and the case law, comparative study of various anti-terrorism laws, UN Charter, UN Security Council Resolutions, international laws including international humanitarian laws, various conventions and treaties on the peaceful resolution of conflicts and the like. In view of complex nature of independent and dependent variables of the study and with intent to help understand relevance and significance of the issue, theoretical framework has been developed and discussed with reference to the context in the relevant chapters, instead of creating separate chapters. The research also concentrates on the review of literature on the subject of National Security, Peace and Conflict Studies, International Relations available in the libraries and internet, attending seminars, lectures, conferences and workshops etc. Interviews with intelligentsias, jurists, legal experts and human rights activists have also helped understand the issues and find some of their solutions.

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Limitation of the Study

It is a recognized natural handicap in social sciences research, especially in the field of peace and conflict linked with law, where the crisis is ongoing, that the study is hampered by limited information and variations in perspective produced with the passage of time, emergence of fresh events and revelations of new facts. This study is also not an exception to this natural handicap, as it focuses on an issue which is current and still continuing. Continuity of the crisis required up-to-date and reliable information for a meaningful analysis of the ever-changing events, especially US military campaign in Afghanistan and her strategic moves to protect her interests in Afghanistan and hegemonic designs in the world, frequent amendments in the anti-terrorism laws of Pakistan in the wake of WOT, trials of the terrorists, judgments of the trial courts and the superior judiciary. However, efforts have been made to make up this deficiency through an objective analysis of the issues in the historical perspective and futuristic approach. Tough the emphasis remained on the issues surfaced till 2015 yet a sincere effort has been made to incorporate latest data or developments and evaluate them to keep the study more objective and wholesome.

Review of Literature

An analysis of the available literature on the subject suggests that it is mostly related to the causes and consequences of WOT on the political, economic, social, moral, and religious fibres of the states, the ensuing waive of terrorism and threats to national security, and trends in international relations. Generally, it does not deal with its effects on the criminal justice system of the effected states including Pakistan. The international relations experts and human rights activists have contributed a lot on the justification of WOT and helped highlight human rights violations in Afghanistan and Iraq; but no one specifically touched upon the success or failure of criminal justice system in Pakistan. Crimes of War101 edited by Roy Gutman and David Rieff highlighted the war crimes in Afghanistan and the establishment of transitional justice based on the Human Rights Commissions recommendations in 2005, grave abuses of human rights by American troops, torture, secret

101Roy Gutman and David Rieff, Crimes of War: What the Public Should Know, (New York, London: W.W. Norton & Company, 1999). The book contains 140 articles by various scholars in the pre-9/11 scenario, which examine the war crimes and crimes against humanity committed in the world on the touchstone of International Humanitarian Laws. 23

detentions, prolonged disappearances, crimes against peace and other violations of International Humanitarian Laws and the Geneva Conventions of 1949; while Patrick R. Anderson and Donald J. Newman in Introduction to Criminal Justice102 dilated upon various implications of criminological theories on criminal justice, models of crime control and criminal justice system in America. However, they did not correlate them with terrorism; rather their emphasis was on the procedural law relating to crimes, trials and sentencing. The Constitution and National Security103 edited by Howard E. Shuman and Walter R. Thomas contain research articles relating to distribution of constitutional powers, evolution of presidency, constitution and foreign policy, national security and the U.S judiciary, and legal lessons in national security but it is deficient of material on criminal justice system in America or Pakistan vis-a-vis terrorism. Future Generations and International Law104 edited by Emmanuel Agius and Salvino Busuttil contains articles dealing with obligations of justice towards future generations, status of future generations as a subject of international law and practical legal consequences of future generation provisos in existing treaties. Similarly, International Law, the International Court of Justice and the Nuclear Weapons edited by Laurence Boisson105 contain research papers on the role of international court of justice, international organizations, international humanitarian laws, notion of state survival, the right to life and genocide, perspective of Japanese International Lawyers, silence of law and the voice of justice etc. These papers may help understand fundamental/human rights issues and the role of international court of justice but do not address the issue of combating terrorism and administration of justice in the perspective of Pakistan. Omer Yousif Elagab in International Law Documents Relating to Terrorism106 has collected material relevant to terrorism, including UN resolutions and recommendations on international terrorism, European Union and UK laws on prevention of terrorism including Criminal Justice Act 1993, Intelligence Services Act 1994, Criminal Justice and Public Order Act 1994,

102Patrick R. Anderson and Donald J. Newman, Introduction to Criminal Justice, (Florida: McGraw-Hill, 6th Revised Edition, 1998). This text book was first published in 1989. 103Howard E. Shuman and Walter R. Thomas, The Constitution and National Security, (Hawaii: University Press of the Pacific Honolulu, 1990). 104Emmanuel Agius and Salvino Busuttil, Future Generations and International Law, (London, New York: Routledge, Taylor & Francis Group, 2013). This book was first published in 1998. 105Laurence Boisson, International Law, the International Court of Justice and the Nuclear Weapons, (Cambridge: Cambridge University Press, 1999). 106Omer Yousif Elagab, International Law Documents Relating to Terrorism (London: New York: Cavendish Publishing Limited, 1997) 24

Interception of Communication Act 1985, Charter of International Military Tribunal 1945, Criminal Justice (International Co-operation) Act 1990, Nicaragua (ICJ Reports 1986, P. 108) and USA v. Iran (ICJ Report 1980, P.3) cases. Study of the said laws/cases may help compare and evaluate the Pakistani laws relating to terrorism but do not cater for the legal issues confronted by Pakistan as a consequent of WOT. Similarly, Carl Boggs in his The Crimes of Empire107 has taken an enlightened look at the history of American military criminality, aiding and abetting terrorism and imperial justice through war-crimes tribunals including Saddam Hussein tribunal but did not refer to the effect of WOT on criminal justice system either in Iraq, Afghanistan or Pakistan. Brigadier Javed Iqbal in his treatise on “the Effect of International Terrorism on the security of Pakistan”,108 Antonio Cassese in his article entitled “Terrorism is also Disrupting Some Crucial Legal Categories of International Law”,109 Alvroz Jose in his article “Hegemonic International Law Revised”,110 Hassan Abbas in his book Pakistan's Drift into Extremism: Allah, the Army and America's War on Terror,111 J.K Baral and J. MN, Mohanty in The US War Against Terrorism: Implications for South Asia112 and Schachter in his article “The Lawful Use of Force by a State against Terrorists in another Country”113 concentrated on various aspects of national security, terrorism and its effects on the international security, its contributions to economic and international relations as well as justifying American WOT, but neglected the important aspect of administration of justice in the wake of war against terror. Their emphasis had been on capacity building of the LEAs and combating terrorism through use of force rather than rule of law and improving the criminal justice system in their countries or Pakistan. It may be appreciated that no state may survive with discriminatory laws and arbitrary judicial system,

107Carl Boggs, “The Crimes of Empire: rogue superpower and world domination”, (London, New York: Pluto Press, 2010) 108 Brigadier Javed Iqbal, “Effects of International Terrorism on the Security of Pakistan” (2007), Army War Coll Carlisle Barracks PA, Mar 13. 109 Antonio Cassese, “Terrorism is also Disrupting Some Crucial Legal Categories of International Law”, European Journal of International Law, Volume 12, Number 5, (2001), pp.993-1001. 110Jose E. Alvroz, “Hegemonic International Law Revisited”, Journal of International Law (97 A.J.I.L. 873), American Society of International Law, October 2003. 111Hassan Abbas, Pakistan's Drift into Extremism: Allah, the Army and America's War on Terror, (London: M.E. Sharpe, 2004). 112 J.K Baral and J. MN, Mohanty, “The US War against Terrorism: Implications for South Asia”, Strategic Analysis, Volume. 26, Number 4, Institute for Defence Studies and Analysis, New Delhi, October-December, 2002. 113Oscar Schachter, “The Lawful Use of Force by a State against Terrorists in another Country” 19 Israel Year Book on Human Rights (1989). Also published in Henry H. Han, Terrorism & : limits & possibilities of legal control, (New York: Oceana Publications, 1993), pp. 243-266. 25

as administration of justice is the hall mark of any welfare nation state; nevertheless extra- ordinary measures/steps within the pale of the constitution and the International Humanitarian Laws may be justified. Pakistan Army Green Book 2004 was dedicated to the subject of terrorism; while Pakistan Army Journal, other leading journals and news papers including legal journals such as All Pakistan Legal Decisions (PLD) and Pakistan Law Journal (PLJ) have extensively written on the subject of terrorism and different facets of administration of justice. Pakistan Journal of Criminology also contributed on the reasons and incapacity of Pakistan to fight terrorism, identification of potential terrorism and its implications for law enforcement in Pakistan, besides suspects' interrogation and interview legislation in America.114 However, neither the said journals contributed significantly nor any comprehensive research had been conducted on the WOT viz-a-viz criminal justice system in Pakistan. Their emphasis inadvertently or tacitly remained focused on terrorism, identifying and eliminating terrorism, effects of terrorism to the security and interests of America, Pakistan and other allies to some extent.

In addition to the above, six significant research papers have been written on the anti- terrorism and security laws of Pakistan. The first of such papers is “The Creation and Development of Pakistan’s Anti-terrorism Regime, 1997-2002”, which was authored by Charles Kennedy.115 It was written in the backdrop of 9/11 tragedy. The paper examined ATA viz-a-viz Supreme Court judgments in Mehram Ali and Sh Liaquat Hussain cases. He was followed by Fayyaz, who authored a research paper entitled “Responding to Terrorism: Pakistan’s Anti-Terrorism Laws.”116 Shabana Fayyaz mainly focused on comparison of Suppression of Terrorist Activities (Special Courts) Act 1975 and the ATA1997 as well as the amendments introduced by President Musharraf in the Act of 1997. The former Act of 1975 was introduced by Prime Minister Bhutto to neutralize the anti- government, subversive and separatist or nationalist movements in North West Frontier Province (NWFP) now KP and Balochistan provinces, while the 1997 Act was introduced by Prime Minister Nawaz Sharifto curb sectarian violence. In this context, 1975 Act was

114Pakistan Journal of Criminology, Volume 3/Number 2 &3/April-July 2011, (Peshawar: Pakistan Society of Criminology, 2011) 115Charles H. Kennedy, “The Creation and Development of Pakistan’s Anti-Terrorism Regime, 1997-2002” (2004), Religious radicalism and security in South Asia, pp 387-411. 116Shabana Fayyaz, “Responding to Terrorism: Pakistan’s Anti-Terrorism Laws” (2010), Perspectives on Terrorism, Vol. 2 No. 6. 26

politically charged as it intended to control and suppress “acts of sabotage, subversion and terrorism;” while 1997 Act was targeted against sectarian violence, ethnic clashes and communal rites. Subsequently, in the wake of deteriorated law and order situation in Karachi and the launch of WOT, it became terrorism-centric and politically motivated as well when President Musharraf amended the 1997 ATA on 2nd day of December 1999 to include, inter alia, the offences of hijacking, kidnapping and abetment thereto in the definition of terrorism as well as enhanced the punishment to death for the offence of terrorism so as to saddle the ousted Prime Minister Nawaz Sharif for terrorism. Her comparison of the two Acts, which intended to suppress and control anti-government and subversive activities, sectarian violence and terrorism through the establishment of special courts, does not go beyond the amendments introduced in the ATA in 2005. This Article was followed by another paper “Evolution of Counter-Terrorism Legislation in Pakistan” by Saba Noor, published in 2008.117 She followed the footsteps of Kennedy; however, explored the history of anti- terrorism laws from 1947 till 2008. She carried out a brief historical survey of the counter- terrorism legislation in Pakistan. Though her emphasis, like Shabana Fayyaz, remained on the ATA 1997 and amendments introduced in it during Musharraf Regime until 2005, yet she also discussed other enactments as well. Since her objective was to evaluate and explore counter-terrorism process in Pakistan, she did not discuss the difficulties faced in the implementations and execution of the counter-terrorism laws and the consequences of such laws on the administration of criminal justice. Nevertheless her work was more elaborate in comparison with her two predecessors as she had the opportunity to seek guidance from their works, which she had frequently relied. She also discussed the Provisional Constitutional Order 1 of November 3, 2007, whereby, General Pervez Musharraf had promulgated the emergency to oust the Chief Justice of Pakistan and other judges of the superior judiciary. She also referred to the Prevention of Electronic Crimes Act 2007 to describe government’s efforts to control and punish cyber-terrorism. Seemingly, the subsequent two papers are improvement of the earlier papers and have not been written independently, as the later authors could not help shed away the impression of the formers. Despite there being host of security and anti-terrorism legislations, they generally restricted their discussions to the

117Saba Noor, “Evolution of Counter-Terrorism Legislation in Pakistan” (2008), Conflict and Peace Studies, Vol. I, No. 1, (Islamabad: Pakistan Institute for Peace Studies).

27

statutes and case law relied by their predecessor. Saba Naveed Sheikh, in her paper “Emergency and Security Laws of Pakistan”,118 has also endeavoured to examine emergency provisions in the Constitution of Pakistan119 and their effects on the fundamental rights.120 She succinctly referred to the emergencies proclaimed under the 1973 Constitution but analyzed mainly the November 2007 Proclamation of Emergency by General Pervez Musharraf, which as a matter of fact was a political move to prolong his rule and neutralize the adjudicature which was considered as a hurdle in his election as the President after shedding away his uniform. It was not terrorism-centric emergency but motivated for personal and political gains. The amendment introduced in the Pakistan Army Act 1952 on November 11, 2007,121 was also criticized as it had impliedly legitimized all illegal detentions and enforced disappearances. While analyzing security or anti-terrorism laws of Pakistan, she also examined the 1997 ATA touching upon the amendments introduced before and after the 9/11 tragedy until October 2009,122 as well as Mehram Ali and Sh Liaquat Hussain cases. Her study examined the 1997 ATA in the context of human rights violations. She had also discussed the role of National Security Council of Pakistan.123 The researcher also dilated upon the issues of enforced disappearances, illegal detentions and extra-judicial killings during 2005-2010 and heavily relied upon the 2006 report of the Human Rights

118Published in South Asian for Human Rights, a democratic regional network based in Colombo, Sri Lanka, on February 25, 2011, available at http://www.southasianrights.org/WP-content/uplodds/2009/10/security-Laws- Report-Pakistan-Final.pdg, accessed on February14, 2013. 119Articles 232-237 of the Constitution. 120For example: Articles 15-19 and 24 of the Constitution. 121The amendment was introduced vide Pakistan Army (Amendment) Ordinance 2007 (PLD 2007(Supp-I) Federal Statutes 18), which was given retrospective effect from 1st day of January 2003. However, this Ordinance lapsed as the Parliament did not validate the same. Also no person was tried by court martial under the amended provision whereby civilians committing certain offences under the Security of Pakistan Act 1952, The Pakistan Arms Ordinance 1965, The Prevention of Anti-National Activities Act 1974, ATA 1997, and other offences such as murder, kidnapping for ransom, sedition, waging war against the government etc. and any abetment thereto could be tried by court martial. 122On the 1st day of October 2009, President Asif Ali Zardari promulgated Anti-terrorism (Amendment) Ordinance 2009, whereby onus to prove innocence was shifted to the accused and that any suspect could be kept in “preventive detention for a period of 90 days.” See PLD Unreported Statutes (2004-2009), Part III, Federal Statutes 874-882. 123See National Security Council Act 2004 (PLD 2004 (Supplement) Federal Statutes 197-198), which also repealed National Security Order (No. 5 of) 2001. President General Zial-ul-Haq was the originator of the idea of National Security Council, who in 1985 inserted Article 152A in the Constitution, which empowered the NSC, consisting of amongst others, the Chairman Joint Chiefs of Staff Committee and the three Services Chiefs, “to make recommendations relating to the issue of Proclamation of Emergency under Article 232, Security of Pakistan and any other matter of national importance that may be referred to it by the President in consultation with the Prime Minister”. However, this amendment was done away in October 1985 after the Eighth Amendment. Article 152A was again added by General Pervez Musharraf through Chief Executives Order No. 24 of 2002; but subsequently omitted vide Constitution (Seventeenth Amendment) Act 2003. 28

Commission of Pakistan and Human Rights Watch, Charles H. Kennedy and Shabana Fayyaz. Ms Sitwat Waqar Bokhari, in her study “Pakistan’s Challenges in Anti-terror Legislation,”124 concluded in October 2013, also corroborated in general terms outcome and analysis of her predecessors. She concentrated mainly on the ATA 1997 and amendments introduced in it until 2013, besides the Investigation for Fair Trial Act 2012 and Protection of Pakistan Ordinance 2013 to some extend as by that time the study was ready for printing. She was of the view that the ATA 1997 remained ineffective to counter terrorism and punish the terrorists, as the successive governments lacked political will to implement the law, with across the board transparency and equality. She examined anti-terrorism legislations of Pakistan in the aftermath of 9/11 but their comparative analysis and post 2013 legislation remained out of the domain of her study. Another significant work is “An Appraisal of Pakistan’s ATA” by Tariq Parvez and Mehwish Rani.125 The two authors analyzed different provisions of the 1997 ATA, difficulties in their implementation. They expressed concerned over the broad definition of “terrorism” in the ATA and powers of the government to amend the schedule to include more offences in the orbit of “terrorism” or “terrorist act.” This scenario has overburdened the ATCs, which causes delay in conclusion of trials by the ATCs. They are also of the view that lack of sufficient knowledge and guidance for use of internet and cyber forensics by the police and the investigators viz-a-viz the terrorists are also a handicap to implement the ATA. Protection of witnesses, judicial, police and prosecuting officials has also been emphasized by them.

It may be appreciated that the above studies are in the nature of research papers with limited space and scope. The authors had the natural handicap of time and space to conduct their research. For example: the study by Kennedy was restricted to 1997-2002; while the paper of Shabana and Saba Noor covered the period upto 2005 and 2008respectively, with slightly different scopes. Saba Naveed had different targets which covered mainly the 2007- 2011 eras; while Ms Sitwat remained committed to the ATA 1997, the Investigation for Fair Trial Act 2012 and Protection of Pakistan Ordinance 2013 only. Tariq Parvez and Mehwish focused only on ATA 1997. None of the above scholars touched upon the subject of criminal

124 Ms Sitwat Waqar Bokhari, “Pakistan’s Challenges in Anti-terror Legislation”, Centre for Research & Security Studies, Islamabad, October 2013. 125This is Special Report 377 of August 2015 published by the United States Institute of Peace, available at www.usip.org web site as.usip.org.special report 377, accessed on March 24, 2016. 29

justice system and the challenges confronted by it as a whole. Their studies are also deficient of research and analysis of the most important legislations in the wake of WOT. Such legislations include: Actions (in Aid of Civil Power) Regulations 2011 for FATA and PATA, Investigation for Fair Trial Act 2013, Protection of Pakistan Act 2014, Pakistan Army (Amendment) Act 2015 and 21st Constitutional Amendment 2015.

The above discussed studies also remained indifferent from the causes of WOT and analysis of American rationale for the WOT and pursuit of militancy in Pakistan. The scope and objectives of the present study are not only different but also all embracing so far as challenges to the criminal justice in Pakistan are concerned. This study carries out not only survey of the historical developments of the security and anti-terrorism laws of Pakistan, but also endeavours to find a rationale or otherwise for their enactments. It also carries out critical and comprehensive analysis of the counter-terrorism laws and examines their impact on the performance of different organs of criminal justice system as well as the human rights issues connected therewith. This study is more comprehensive and detailed with an insight into the legal complexities, in the light of juridical wisdom of the judges of the superior judiciary and the human sufferings in the wake of WOT. The study has been conducted with an independent mind, disregarding biases and prejudices of the earlier or similar researches; thus has produced good fruit for thought.

Organization of the Study The study has been organized and divided into seven chapters with separate introduction. The introduction gives brief background of the study, its significance and objectives. It also provides an insight into the ensuing study, the hypothesis, independent and dependent variables, research questions, scope and limitation of the study, research methodology and the literature review. The precise hypothesis is that the WOT has collapsed the whole edifice of criminal justice in Pakistan. Resultantly criminal justice system of Pakistan failed to meet the challenges of WOT. Chapter 1 explores the background and causes of WOT. It also examines the reasons and American rationale of initiating WOT and pursuit of militancy in Pakistan. In doing so, the study juxtaposes theory of realism, just war doctrine; relevant provisions of UN Charter126 and the Security Council Resolutions.127 In

126Articles 2(4) and 51. 30

this realm, the chapter contains necessary theoretical framework as well. Chapter 2 highlights effects of WOT on the national security and criminal justice in Pakistan. In this context, some of the consequences of WOT on internal security, resurgence of militancy, economic and political debacles, human rights issues including missing persons, plight of IDPs, specifically women and children, have also been highlighted. The chapter also narrates the incidences of brutal killings and suicide attacks in the country and helplessness of the government machinery to successfully avert these attacks. Chapter 3 discusses dimensions and parameters of the criminal justice system of Pakistan vis-à-vis terrorism. The chapter also contains theoretical framework relevant to the criminal justice system and examines the role of police, judiciary and prisons in the fight against terrorism. The chapter also analyses different theories of crimes and punishments. The chapter further examines if terrorism may fit in the category of “political crimes.” The chapter also analyses the extent to which anti- terrorism laws meet international legal standards and explores which of the theories of punishment is most suited in the context of WOT in Pakistan. Chapter 4 explores the history of security and anti-terrorism legislations in Pakistan in three phases i.e.post-independence to separation of East Pakistan now Bangladesh (1947-1971), emergence of new Pakistan to ouster of Benazir Bhutto (1972-1996) and Nawaz Sharif and President General Pervez Musharraf regimes in the pre and post 9/11 tragedy (1997- 2015). The historical account is followed by the analysis of amendments in the post 9/11 scenario on the touchstone of constitutional guarantees and international legal standards. The study in this chapter establishes nexus of the existing security and anti-terrorism laws with the past to suggest future anti-terrorism legal strategy. It also discusses effects of the amendments introduced after 9/11 in fighting terrorism viz-a-viz human rights issues and constitutional guarantees. Chapter 5 reconnoitres the history and necessity of trials of civilians by courts martial or military courts. The chapter examines the amendments in the military laws and the constitution introduced by President General Muhammad Ayyub Khan, Prime Minister Zulfiqar Ali Bhutto, President General Muhammad Zial-ul-Haq, Prime Minister Benazir Bhutto, Prime Minister Nawaz Sharif and General Pervez Musharraf. The chapter also discusses growing interests of the governments in military courts or courts martial in combating terrorism and implied lack of confidence in the judiciary. The chapter also

127Security Council Resolution Nos. 1368, 1373 and 1377, all of 2001. 31

highlights significance of the Supreme Court judgment in 21st Constitutional Amendment case128 on criminal justice system in the background of WOT. Chapter 6 is dedicated to discussion, a wholesome analysis of the facts enumerated in chapters 1 to 5 and conclusions. It tries to find out answers to the research questions to corroborate or contradict the hypothesis. It does not find a moral or legal justification in initiating WOT in Afghanistan and American pursuit of militancy in Pakistan. It concludes that necessity of comprehensive and strict anti-terrorism legislation cannot be undermined. However, the amendments in security and anti-terrorism laws introduced after 9/11 are ambiguous, confusing and against the spirit of the constitutional guarantees. Even if such legislation is accepted to be within the legislative competence of the Parliament and validated by the Supreme Court, its implementation in the letter and spirit remained doubtful mainly for three reasons: lack of commitment of the three organs of criminals justice system to fight terrorism through justice, ineffective system of check and balance, and overwhelming sharing or taking over of responsibilities of the three organs by the Army or Civil Armed Forces. The chapter finds that performance of the courts martial has received both admiration and criticism. Their pace of delivery of justice has been appreciated but rhetorics for violation of human rights and right to fair trial are also rampant, as claimed by the convicts and their families in different petitions and complaints. On the other hand, performance of the criminal courts and the ATCs is dismaying. The judiciary has not dispensed with arbitrary adjournments. The time- limit prescribed by the Supreme Court and the law is not being followed. The delaying tactics by the counsels are continuing unnoticed. It appears as if the judicial organ has not taken establishment of military courts as a serious blow to its performance and sanctity. If that be the case, it is evident that the criminal justice system is not prepared to redefine its future course. The chapter concludes by suggesting that the judiciary and the legislature must understand consequences of this indifferent approach after the period of two years given to the military courts is over. The judiciary must prepare itself right now for a leading role after January 2017 to revamp the criminal justice system. This may help the nation to regain confidence in the criminal justice system and predict peace and security through justice. Chapter 7 suggests recommendations for future anti-terrorism legal strategy. It suggests a multi-thronged strategy; first, to understand the genesis and root causes of terrorism in

128The judgment is cited as “District Bar Association Rawalpindi v Federation of Pakistan” (PLD 2015 SC 401). 32

Pakistan and revisit her relations with United States America on the basis of Henry Kissinger’s famous quotation;129 then, to implement NAP 2014, consolidate existing security and anti-terrorism laws so as to ensure clarity, avoid ambiguity and multiplicity; implement Supreme Court judgments in Mehram Ali, Sh Liaquat Hussain, Suo Moto Case No. 3 of 2001,130 Muhammad Bashir,131 Watan Party132, Haider Ali133 and District Bar Association Rawalpindi cases as well as National Judicial Policy 2009. It also suggests award of deterrent punishments and their executions, and implement jail reforms; and inculcate in the lawyers’ community a sense of patriotism and duty towards fair, less expensive and expeditious justice rather than contributing to injustice and frustrating the process of justice. The strategy emphasizes to ensure implementation of law without favour or fear; and effective check and balance on these actors of criminal justice system.

129Henry Kissinger, American National Security Adviser and Secretary of the State during 1969-1977, had said so in November 1968, when he advised American President Richard Nixon, before he took oath, that fate of Nguyen Van Thieu (President of South Vietnam) be different from that of Diem; otherwise the nations would consider that “it may be dangerous to be America’s enemy, but to be America’s friend is fatal.” See William Frank Buckley, United Nations Journal: A delegate’s Odyssey, (New York: NY Putnam, 1974), p. 57. It has also been said that “Although it is dangerous to be America’s enemy, but it can be lethal to be America’s friend.” See George F. Will, “Fatal to be America’s friend?”, (Indiana: Gazette , 2002), p. 6. 130The case related to the situation in Karachi. It was decided on 10 August 2001 and is reported at PLD 2001 SC 104. The judgment was written by Chief Justice Irshad Hassan Khan, who highlighted weaknesses of our criminal justice system and suggested remedial measures, which have been discussed in Chapter 6. 131Muhammad Bashir v SHO Okara Cantt (PLD 2007 SC 539). This case highlights significance of justice and peace in providing relief to the aggrieved party and assisting it in registration of FIRs, when so refused by the police. By virtue of CrPC Section 25, Sessions Judges and some Additional Sessions Judges have been designated as Justices of Peace. Under the provisions of CrPC Section 22, they may order the police, on a simple application by the aggrieved party, to register FIR, if refused by it. Similarly, the Supreme Court obliged the SHOs to first register FIR, when so requested by any aggrieved party/complainant; and then use his discretion to investigate or arrest the accused, if satisfied of the allegations. A person giving false information could be punished under CrPC Section 182, instead of refusal to register FIR, the Supreme Court ordained in Muhammad Bashir case at pp. 552-555. 132Watan Party v Federation of Pakistan, also known as Suo Moto case No. 16 of 2011 (PLD 2011 SC 997) and implementation of Watan Party/Suo Moto Case No. 16 of 2011 (PLD 2013 SC 443). The cases deal with law and order situation in Karachi and implementation of Supreme Court directions to restore peace and order in Karachi, including issues of militant wings in political parties, Layari gangs, land mafias and remedial measures. Details have been discussed in Chapter 6 133Haider Ali v DPO Chakwal (2015 SCMR 1724). The case was heard on 4 September 2015, wherein the Supreme Court examined different aspects of criminal justice system and performance of its various organs. The Supreme Court gave specific directions and called for reports within a period of 1-3 months. The Supreme Court ordered for next date of hearing in 3rd week of October 2015. However, outcome and extent of execution of the court’s orders is not yet known. The ratio of the case has been discussed in Chapter 6. 33

CHAPTER 1

WAR ON TERROR AND THE UNITED STATES PURSUIT OF MILITANCY IN PAKISTAN

Sovereignty of any state is directly linked with its national security, which may be measured from the level of its domestic peace and tranquility; and its preparation to thwart any external threat to its geographical boundaries and ideological belief, if any, or the values. Nations may ensure their security and consequently repel threats to their sovereignty by strengthening their political institutions and state organs as well as maintaining international relations based on peaceful co-existence. Pakistan is not an exception to this principle. However, the history and experience reveal that the security of Pakistan has been at risk and persistently jeopardized countless number of times after 9/11. The internal disturbances caused by militancy and terrorism exported from Afghanistan and partially sponsored by the foreign elements as well as increasing threats of external aggressions are serious concerns for Pakistan.1 Security and integrity of Pakistan remained shrouded with uncertainty, despite the fact that Pakistan claims and strives for international peace even by contributing the maximum number of troops for peacekeeping missions under the auspices of United Nations2and being an ally in the “War on Terror” (WOT). The irony is that the security of Pakistan is presumed by the people of Pakistan to be at risk from or due to America, her main partner in the WOT, which has been transferred into Pakistan and assumed to be its own war by the government of Pakistan. The US pursuit of militancy, its hot pursuit and special forces operations (including elimination of Osama Bin Laden, deployment of Raymond Davis like private contractors/serial killers) and drones attacks in Pakistan in the name of WOT have

1 In this context, reference may be made to the recent capture of Indian spy Kulbhushan Yadav, who was an ex Indian Navy officer, on 25 March 2016. He was allegedly involved in terrorism, separatist movements, subversive and anti-Pakistan activities for the last many years. See Baqir Sajjad Sayed, “Indian envoy summoned to receive demarche over RAW agent’s arrest”, DAWN Islamabad, March 26, 2016, pp. 1 and 5. See also “Capture of spy proves India’s interference in Pakistan: army” and “Transcript of RAW agent Kulbhushan’s confessional statement”, DAWN Islamabad, March 30, 2016, pp. 1 and 5. Iftikhar A. Khan, “Iran urged to help round up RAW agents”, “Spy issue fluffed at world forum: FO”, DAWN Islamabad, April 1, 2016, pp. 1 and 5. 2 During 2011, Pakistan was the leading troops contributing country for UN Peacekeeping Missions. ”Background Note: United Nations Peacekeeping”, http://www.un.org/en/peacekeeping/documents/back groundnote, accessed on August 12, 2011. At present, Pakistan is one of the three major troops contributing countries including Bangladesh, India and Pakistan. See also Ashley Kirk, “UN Peace Keeping Mission: How many personnel does each country contribute”, The Telegraph, September 29, 2015. See also Para 7 of “Pakistan at UN”, available at www.Pakun.org, accessed on March 27, 2016. 34

compromised the integrity, security and sovereignty of Pakistan. It created a gulf between the people and the government, who in most of the cases is either silent or give justifications which neither appeal to the masses nor provide an insight of the game being played in Pakistan.3 The people of Pakistan at present may not be concerned with the theories of the incident of 9/11 but are perturbed of the consequences of 9/11 on the security and consequently sovereignty of Pakistan. The government of Pakistan and more specifically America justify WOT, pursuit of militancy and other operations in Pakistan on the basis of the “just war theory,”4 “inherent right of individual and collective self defence,”5 United Nations Security Council resolutions6 and mutual agreements or at least mutual understanding between the two states or precisely the implied consent information to Pakistan. Although the present government led by Mr. Nawaz Sharif has taken a slight shift from the previous stance of its predecessors and maneuvered a resolution7 passed in the

3 (Retired) Ali Muhammad Jan Oarakzai, “Situation in FATA: Causes, consequences and the way forward”, Policy Perspectives, Volume 6, Number 1, January-June 2009. See also Dr Razia Musarrat, “US War on Terrorism and its Impact on South Asia” (2007), Journal of Political Studies, Vol 11, p 2, citing Dr Noman Umar Sattar, “War against Terrorism: Implications for Pakistan” (2004), National Development and Security, Volume 12, No. 14, pp 31-34. 4 Brian A. Garner, Black’s Law Dictionary, (USA: Thomson West, 2004) pp. 164, 883-884. See also Prof Michel Chossudovsky, “9/11 and America’s war on terrorism”, Global Research, September 10, 2015, available at www.globalresearch.cct, accessed on March 27, 2016.

5The UN Charter, Articles 2(4) and 51. Full text of UN Charter available at http://www.un.org/abontun/charter/, accessed on July 27, 2011. See also Jackson Nayamuya Maogoto, “War on Enemy: Self defence and state sponsored terrorism”, Melbourne Journal of International Law, Volume 4, Number 2, University of Manchester, available at papers.ssrn.com, accessed on March 27, 2016. It is important to understand that the UN Charter permits use of military force in combating state sponsored terrorism or aggression by the states against the others; whereas international law and norms recognise domestic criminal laws and mechanisms as the most appropriate responses to terrorist acts.

6 For example: “UN Security Council Resolutions” 1368 (2001), 1373 (2001), 1377(2001), 1535 (2004), 1540 (2004), 1963 (2010), available at http://www.un.org/Docs/scres, accessed on July 27, 2011. However, the said resolutions do not define or differentiate “terrorism” viz-a-viz “freedom fighting” but stress the member states to fight terrorism utilizing all available means, so as to ensure “international peace and justice”. For conflicting views on definition of terrorism, see Nadeem Ahmad, “Conceptualizing terrorism: Problems of defining and building consensus”, IPRI Journal XII, no. 2 (Summer 2012), 58-75.

7UN General Assembly Resolution A/RES/68/178 (of December 18, 2013) titled “Protection of human rights and fundamental freedom while countering terrorism” is available at http://www.un.org/en/ga/search/viewdocs- asp?/symbal=A/RES/68/178, accessed on April 14, 2014. The resolution, inter alia, urges the states “to ensure that any measures taken or means employed to counter terrorism, including the use of remotely piloted aircraft, comply with their obligations under international law, including the Charter of the United Nations, human rights law and international humanitarian law, in particular the principles of distinction and proportionality”. For record/report of the proceedings/meeting, see www.un.org.news/press/docs/2013/ga/1475.doc.htm. See also Masood Haider, “Drone use should comply with international law: UN”, DAWN (Islamabad) December 20, 2013. 35

United Nations General Assembly against the (American) use of armed drones (in Pakistan), yet America is less likely to concede to the wisdom of the comity of nations and Pakistan’s point of view. This chapter explores the background and causes of WOT, reasons for US pursuit of militancy in Pakistan after 9/11 and its rationale for doing so, by employing the theories of realism and just war, UN Charter and Security Council Resolutions.

1.1 Background and Causes of WOT The “Collapse of the Soviet Union” after the Afghanistan war and the end of “Cold War” gradually disintegrated the Jihadi groups who had been fighting the CIA sponsored war in Afghanistan.8 Their command and control structure lost its significance and helped re- emergence of warring factions, warlords and drug mafia.9 This also created distrust amongst the Jihadis on America, who used Jihad as a driving force against Russia; and after the successful campaign against Russia in Afghanistan left them at the mercy of the circumstances. America was no more an ally of the Afghan Jihadis but was considered as a threat to the unity of Afghanistan.10 On the other hand, the emergence of Taliban and establishment of an Islamic State in Afghanistan, under the leadership of Mulla Umar, a staunch Muslim ruler with primitive Islamic school of thought, with the assistance and presence of Osama Bin Laden led Al-Qaeda in Afghanistan created a sense of insecurity amongst Israel and America vis-à-vis their interests in the Middle East and other part of the globe.11 The growing tension may be calculated from the communication made by Osama Bin Laden on the 23rd day of August 1996 declaring war against the Americans occupying the Land of the Holy Places, suggesting the to expel the infidels from the Arabian

8 Dr Akbar Ahmad, Thistle and Drone: American War on Terror or War on Tribal Islam, (Lahore: Vanguard Books, 2013), pp. 8, 67-70 and 73. The Taliban who had been fighting anti-communist war for CIA were no longer considered as trusted friends who could advance and protect American strategic interests. See also Steve Galster, “Afghanistan, Lesson from the Last War, the Making of US Policy, 1973-1990”, The National Security Archive, Volume II, October 9, 2001; Phil Gasper, “Afghanistan, CIA, Bin Laden and the Taliban”, International Socialist Review, November-December 2001. 9 Mark Shaw, “Drug trafficking and the development of organized crimes in post-Taliban Afghanistan”, UNDC Chapter 7, available at sistersources.worldbank.org. It may be recalled that with the fall of Taliban, opium and poppy cultivation in Afghanistan increased and led to transferring of drug trafficking in the hands of warlords and commanders, with an organized criminals’ protection industry. See also Gretchen Peters, “How opium profits Taliban”, Peace Works, Number 62, US Institute of Peace, August 2009. 10 Osama Bin Laden “World Islamic Front Statement: Jihad against Jews and Crusaders” Washington Post (1998). Carlotta Gall, “The Wrong Enemy: America in Afghanistan, 2001-2014”, Houghton Mifflin Harcourt, 2014, pp332-333. 11 “Al-Qaeda (The Base)”, Global Security Organization, available at www.globalsecurity.org, accessed on March 27, 2016. 36

Peninsula.12 The situation was aggravated by a religious edict i.e. fatwa issued by Osama Bin Laden during a speech on 23 February 1998, depicting American activities against the Muslims as declaration of war on Allah, His Messenger and the whole of Muslim community. He urged the Muslim Ummah to rise against American atrocities against the poor and weak Muslims and described the same as Jihad, being a legitimate right and sacred duty to stand against the enemy who was attacking sanctity and respect of the religion of Islam and lives of the Muslims. Inspired by the Islamic history and interpretations of orthodox religious scholars, he issued the following fatwa to all Muslims: “The ruling to kill the Americans and their allies - civilians and military - is an individual duty for every Muslim who can do it in any country in which it is possible to do it, in order to liberate the Al-Aqsa Masque and the Holy Mosque (Mecca) from their grip, and in order for their armies to move out of all the lands of Islam, defeated and unable to threaten any Muslim, this is in accordance with the words of Almighty Allah... fight the pagans all together as they fight you all together, and “fight them until there is no more tumult or oppression and there prevails justice and faith in Allah.”13

The above denoted edict might have been appreciated by some specific and limited segment of his followers in Al-Qaeda but like many other religious edicts, it was never taken seriously by any nation-state including the USA, until it helped link 9/11 attack with Al- Qaeda and Taliban. Similarly, it was not acted upon by his Arab followers, except in reprisal actions, but to the exclusion of any Taliban.14 There is no such evidence which may even suggest that the said edict was either adopted as a state policy or appreciated by any Muslim nation-state including Taliban government. Osama’s edict reflected the sentiments of an Arab non-state actor, who had been CIA ally in Afghan Jihad against Soviet Union and was apprehensive of the American hegemonic designs in the backdrop of her continuous presence in Saudi Arabia, Kuwait, UAE and her role in the ; while US was also cognizant of the feelings of the Arabs and other non-state actors, who were used by the US in the name of

12“Al-Qaida Declarations and Acts of War”, The Heritage Foundation, available at [email protected] and www.heritage.org , accessed on March 27, 2016. 13World Islamic Front Statement, “Jihad against Jews and Crusaders,” available at http://www.fas.org/irp/world/para/docs/980223-fatwa.htm and http://www.usc.edu/schools/college/crcc/ engagement/resources/texts/muslim/qusran/009.qmt.html, accessed on February 10, 2012. 14 It may be highlighted that 95 percent of the Al-Qaeda followers were directly or indirectly Yamenis. The 9/11 hijackers, who were 19 in number, were also predominantly from the Asir/Ghamdi tribe of Yamen, the ancestral place of Osama Bin Laden. None of them was from Afghanistan or Taliban. For details see Dr Akbar Ahmad, op. cit., pp. 107-109. 37

Jihad and then betrayed. Thus the suggestion in the edict to vacate at least Al-Aqsa (Palestine) and Mecca (Saudi Arabia) and stop atrocities targeted against the Muslims was prima facie considered or at least projected as a direct challenge to the American hegemonic designs.

It was in this brief back drop that after the incident of World Trade Centre and Pentagon on September 11th, American President Mr. George W. Bush, while addressing a joint sitting of the Congress on 20th day of September 2001, pronounced that “enemies of freedom” had committed an act of war against America. He demanded the Taliban government to deliver all Al-Qaeda leaders in Afghanistan, to America, release all foreign nationals, protect foreign journalists, diplomats and humanitarian aid workers, immediately and permanently close terrorist training camps in Afghanistan and not only hand them over to America but also give her full access to terrorist training camps.15 He cautioned “these demands are not open to negotiation or discussion. The Taliban must act and act immediately. They will hand over the terrorists, or they will share in their fate. Our war on terror begins with Al Qaeda…… but it does not end there. It will not end until every terrorist group of global reach bas been found, stopped, and defeated.”16 He also warned the world to decide “either you are with us or you are with the terrorists.”17 However, when the Taliban did not respond to the call of Mr. Bush, he made another speech on the 7th day of October 2001, from the White HouseTreaty Room, declaring the beginning of “Operation Enduring Freedom”, in the following words:

"Now the Taliban will pay a price… Initially, the terrorists may burrow deeper into caves and other entrenched hiding place. Our military action is…designed to clear the way for sustained, comprehensive and relentless operations to drive them out and bring them to justice.”18

Simultaneously, the US presented a seven-point demand to Pakistan requiring it to dissociate from Osama Bin Laden and not to extend him any support, cease diplomatic

15“President Bush’s war-on-terror speech”, The Guardian, 21 Sep., 2001. 16 Ibid. 17Ibid. Also Fazal ur Rehman, “Pakistan and the War on Terrorism,” accessible at http://www.issi.org.pk/old- site/ss_Detail.php?dataId=264, accessed on August 29, 2011. 18 The speech is available at http://middleeast.about.com/od/afghanistan/at/me0981007b.htm, accessed on February 27, 2012. It is, however, argued that Taliban and Al-Qaeda are two distinct terrorist entities, with different goals, operations, ideologies and sources of recruitment. Taliban played no role in 9/11 attacks, which were Al-Qaida planned and sponsored. See Josh Schott, “The difference between Taliban and Al-Qaeda”, Stanford University, November 17, 2012, available at www.e-ir.info, accessed on 24 March 2016. 38

relations with Taliban government, if it continued to protect and back Osama Bin Laden and his network, allow America access to her Naval and Air bases for “blanket over-flight and landing facilities”, provide her “immediate intelligence and immigration information.” Pakistan was also warned that the said demands were not negotiable.19 US maintained consistent pressure on President Musharraf, who without having recourse to the Parliament and in a desperate desire to get his government legitimized from international community, scrummed to the American demands; and consequently took a U-turn in his policy towards Taliban and on 17 September 2001 announced to support America in its campaign against terrorism. While addressing the 58th UN General Assembly session, President Musharraf endorsed that the tragedy of 9/11 had renovated security strategies and realigned geopolitical scenario. He boasted that Pakistan had taken a strategic decision to support the WOT so as to advance the cause of humanity and protect national interest; and that Pakistan would remain in the forefront in that decisive moment of history. He concluded by suggesting to avoid confrontation, save the civilization from being collapsed and follow collective will of history for a peaceful and cooperative global society.20 He also addressed the nation on 19 September 2001 and pleaded for joining WOT for securing Pakistan’s strategic assets, safeguarding Kashmir cause, preventing Pakistan from being declared a terrorist state, preventing anti-Pakistan government in and portraying Pakistan as a responsible and dignified nation.21 This is how an exclusive American grievance against Al-Qaeda and its associated ViolentNon-State Actors was converted into an unconventional WOT, without even setting clear objectives, until the beginning of 2003;22 and consequently the American Forces invaded Afghanistan that was not involved in the 9/11 attacks23 but was directly targeted by President Bush in his address to face the music if it did not accept the American charter of demands.

19 J.K. Baral and J.N. Mahanty, “The US War Against Terrorism: Implications for South Asia”, Strategic Analysis, Vol. 26, No. 4, (The Institute for Defence Studies and Analysis, Oct-Dec 2002), p.13. 20 “Address of President Musharraf to 58th UN General Assembly session, 2004”, accessible at http;//www.un.org.Docs/unga, accessed on February 28, 2012. 21 “President Pervez Musharraf Speech, September 2001”, available at http://www.nation.com.pk/daily/Sep- 2001/main/top5.asp, accessed on August 29, 2011. 22 President U.S “National Strategy for Combating Terrorism” (2003), Washington, DC. 23 9/11 Commission “Report of the National Commission on Terrorist Attacks upon the United States” (2004), Retrieved September. 39

1.1.1 Theory of Realism It may not be out of context to briefly go through the philosophical underpinnings of the realism theory as it may help understand and analyze American turned WOT in the realist perspective. Realism is one of the most influential academic traditions in international relations and consequently the war and peace. Realists regard war as an inevitable feature of international politics; and that sovereignty, anarchy, balance of power and security dilemmas dominate international system. The ancient Chinese military strategist, Sun Tzu, in his Art of Warhas described that “art of war is of vital importance to a state. It is a matter of life and death, a road either to safety or the ruin.”24 Realists regard that the human beings are inherently egoistic and self-interested to the extent that their self-interests overcome moral values. Thucydides in History of the Peloponnesian War also described that self-interest over morality, rejection of ethical norms and justice, anarchy, acquisition and distribution of power were the recognized virtues of Athenians who represented realism. According to Thucydides, the Athenians affirmed priority of self-interest over morality; they were of the view that “consideration of right and wrong had never turned people aside from the opportunities of aggrandizement afforded by superior strength.” 25 He also presented Athenian envoys at Melos as demonstrating anarchy when they declared that “without any common authority that can enforce order, the independent states may only survive when they are powerful.”26 Thucydides traced the cause of war between the two blocks of “Greek city- states: the Delian League under the leadership of Athens and the Peloponnesian League under the leadership of Sparta in the changing distribution of power.”27 He also quoted an event of 416 B.C when Athens conquered the island of Melos, Athenian envoys offered Melians with two choices i.e. destruction or surrender; and simultaneously warned them not to appeal for justice but think only of their survival.28 Machiavelli in the Prince has also separated the politics from ethics.29 Hobbes in Leviathan propounded the basic concept of realist tradition and declared that human nature is egoistic while the international system is anarchic. He viewed that “politics is rooted in the struggle for power” wherein power seeking

24 Sun Tzu, “The Art of War” (2012), e-artnow, Ch.1, Para 2. 25 Thucydides, History of the Peloponnesian War, Chap 1, available at http://clssics.mit-edu/Thucydides/ pelopwar.mb.txt., accessed on February 28, 2012. 26 Ibid, Chap V, Para 97. 27 Ibid, Chap I, Para 23. 28 Ibid, Chap V, Para 97 - 113. 29 Nicolo Machiavelli, “The Prince” (2009), Christoph Lymbersky Management Laboratory Press, pp.96-101. 40

individuals endeavour to destroy or subdue one and another.30 Morganthau, the founder of classical realism, in Politics Among Nations also declared that war is an in evitable phenomenon in international politics; and propounded six principles of political realism, upshots of which are:-

 “Politics governed by objective laws have roots in human nature.

 Understanding international politics is the concept of interest defined in terms of power.

 The forms and nature of state power will vary in time, place and context but the concept of interest remains consistent.

 Universal moral principles do not guide state behaviour, though state behaviour will certainly have moral and ethical implications.

 There is no universally agreed set of moral principles. States do use ethical terms to justify their external behaviour which in fact is designed to confer advantage, legitimacy and further the national interests of the state.

 Intellectually, the political sphere is autonomous from every other sphere of human concern, whether legal, moral or economic.”31

Kenneth Waltz, who propounded the neorealist theory, in Structural Realism argues that balance of power is the central concept in realist theory and in the absence of an equilibrium maintaining force, one state will gain ascendance over the others, encroach upon their interests and rights and may ultimately destroy them. He also suggests that equilibrium may be maintained either by diminishing the weight of the heavier or increasing the weight of the lighter or by employing principle of divide and rule i.e. keep the competitor weak by dividing them, or entering into armament race i.e. acquiring sophisticated and advanced armament, and pursuing policy of (making or breaking) alliances. He refutes the argument that “realism’s concepts of anarchy, self-help and power balancing” have lost their

30 Thomas Hobbes, “Leviathan” (1996), Cambridge University Press, pp. 56-57. 31 “A Realist Theory of International Politics” in Hans J. Morganthau, Politics Among Nations (New York: Alfred A knopf, 5th edn, 1973), pp. 3-15. 41

significance.32 Mearsheimer in his article Realism, the Real World and the Academy explains realist paradigm “as a body of theories……… Specifically, states are the principle actors in world politics and no higher authority sits above them. This absence of hierarchy in the state system is commonly called anarchy.… Furthermore, calculations about power dominate state thinking, and states compete for power among themselves. ………. States cooperate with each other for sure, but at root they have conflicting interests, not a harmony of interests. Finally, war is a legitimate instrument of state-craft.” He also draws a distinction between the main realist theories in the following words:-

“Morgenthau maintains that states are hardwired with an insatiable lust for power, which causes them to seek to maximize their share of world power; while Waltz emphasizes that the structure of the system causes states to compete for power but that states should not strive to maximize power. Instead, they should aim to control an “appropriate” amount of powers.”33

It is in this realm that in 1997 neo-conservatives also joined hands with the neo- conservative realists in the Washington-based think tank (including Dick Cheney, Donald Ramsfeld, Richard Perle, Paul Wolfowitz, who later became the Vice President, Defence Security, Defence Policy Board Chairman and Deputy Defence Secretary respectively in Bush government) for “Project for the New American Century”, with the objectives to increase defence budget to promote “American global leadership, challenge regimes hostile to American values and interests, promote political and economic freedom world-wide and establish a global order that supports American security, prosperity and principles; besides establishment of a global American empire to bend the will of all nations."34 It may be appreciated that the above brief account of realism does not cater for “probability of an actual war between a powerful state in the international system and non-state actors, representing some radical objectives that sharply contradict the values and interests of the powerful state. Similarly, the possibility of an actual war between the most powerful state and one of the

32 Kenneth N. Waltz, “Structural Realism after the Cold War”, International Security, Vol 25, No.1 (Summer 2000), pp. 5-41. 33 John J. Mearsheimer, “Realism, the Real World and the Academy”, in Michael Brecher & Frank, Realism and Institutionalism Studies, (Ann Arbor: The University of Michigan Press, 2000), pp. 23-33. 34See “Project for the New American Century, Statement of Principles”, accessible at http://www.newamricancentury.org/statementofprinciples.htm and William Rivers Pitt, “The Project for the New American Century”, accessible at http://www.infomationclearinghouse.info/article. 1665.htm, both accessed on March 2, 2012. 42

weakest and most vulnerable states in an unprovoked situation and on the basis of an alleged connection to a terrorist organization did not attract any serious realist.” It was after the incident of 9/11 that the American National Security Strategy 200235 redefined threat as emanating from a terrorist organization i.e. Al Qaeda, a weak state i.e. Afghanistan and a rough state i.e. Iraq; and rendered the traditional concepts of deterrence and containment as irrelevant; but with enlarged hegemonic strategy to implement Project for the New American Century and to avail the 9/11 tragedy as “a moment of opportunity to extend the benefits of freedom across the globe.” 1.2 Reasons for US Pursuit of Militancy in Pakistan after 9/11

When the military campaign in Afghanistan escalated during December 2011, Osama Bin Laden and the Taliban leadership narrowly escaped during Tora Bora battle, managed to avoid capture and presumably crossed into tribal areas adjoining Pakistan.36 Other Taliban leadership also ran for their lives, scattered, spread and escaped into different parts of Afghanistan, Iran, Pakistan and wherever they found safe heavens.37 America continued Operation Enduring Freedom (OEF) causing indiscriminate destruction in Afghanistan, dethroned Taliban government and established a government of its own choice in fulfilment of its democratic regime change doctrine.38 While the military operation in Afghanistan was in progress, America extended its war in the oil rich Iraq in 2003 accusing Iraq of possessing or developing “weapons of mass destruction (WMD)” and failing to abandon its “nuclear and chemical weapons development program” in disregard to the United Nations Resolution.39 Therefore, its President Saddam Hussain, being an oppressor, be removed from power and eliminated, as well as democracy brought to Iraq. In pursuit of their objectives, Mr. Saddam

35 The White House Washington, “The National Security Strategy of the United States of America 2002” available at http://www.infomationclearinghouse.info/article.2320/1665.htm, accessed on March 2, 2012. 36 Gordon Corera, “Bin Laden’s Tora Bora escape just after 9/11”, BBC, July 21, 2011, available at www.bb.com. See also Yaniv Barzilai, “How Bin Laden Escaped in 2001 - The Lesson of Tora Bora”, The daily Beast, December 15, 2013, available at www.thedailybeast.com, accessed on 24 March 2016. 37 “The Taliban, A Council on Foreign Relations Presentation”, available at www.cfr.org/taliban, accessed on 24 March 2016. 38 Carl Conetta, “Strange Victory: A critical appraisal of ensuring freedom and Afghan war”, available at www.comw.org/Pda/0201/strangevie, accessed on 24 March 2016. 39“UN Security Council Resolution 1540” of 8 November 2002 accessible at http://www.un.org/Docs/scres, accessed on July 27, 2011. See also http://usmilitary.about.com/od/terrorism/a/Iraqwar_2htm, accessed on February 27, 2012. 43

Hussain was hanged for crimes against humanity;40 while the allegations against Iraq’s WMD remained unfounded and baseless. Although the American and allied forces combat operations in Iraq came to a halt on the 1st day of September 2010,41 after seven years of invasion, yet the American led North Atlantic Treaty Organization (NATO) and International Security Assistance Forces (ISAF) operations continued in Afghanistan, trickled into tribal areas between Afghanistan and Pakistan and even extended deep into Pakistan itself compromising its sovereignty, integrity, peace and security.42 Pakistan provided all possible assistance to US for its military campaign into Afghanistan, including land and air bases, logistic support and supply route to NATO forces, despite the intensified operation.43 And when Taliban and Al-Qaeda could not resist the operation, they dispersed, scattered and escaped. Pakistan’s tribal areas adjoining Afghanistan including FATA proved to be a safe haven for them; and subsequently converted into a hub of militancy and support base for their activities in Afghanistan against American and allied forces. As per the commitment of Mr. Musharraf, in response to American demands, Pakistan came into forefront, assumed front-line-state against Taliban despite tough public displeasure and increasing anti-America sentiments, as the “American WOT is perceived in much of the Muslim world as a war on Islam.”44 Despite the establishment of Karzai government of its own choice, physical presence of NATO and ISAF troops and launching a mass scale military campaign, the Taliban resistance in Afghanistan continued. The lack of unity in the Taliban and Al-Qaeda ranks and files coupled with their reprisal and revengeful nature and

40 “Saddam Hussein Executed in Iraq”, accessible at http://news.bbc.co.uk/2/hi/6218485.stm, accessed on February 27, 2012. 41 Barbara Slazar Torreon, “US Periods of War and Dates of Recent Conflicts”, February 27, 2015, available at www.fas.org. See also Rukeyya Khan, “US declares an end to combat operations in Iraq”, September 1, 2010, available at www.opendemocrary.net/security, accessed on 24 March 2016. 42 Shahid R. Siddiqui, “Confine your operation to Afghanistan, Islamabad tells Washington”, October 12, 2010, available at axisoflogic.com. See also “Pakistan: NATO attack inflames tense ties with US”, November 27, 2011, available at www.cnn.com. American CIA had calculated that Taliban cannot be defeated unless the sanctuaries in Pakistan are destroyed with more attacks inside Pakistani territories. America planned and reacted accordingly. See also “NATO air attack on Pakistan was self defence”, TheGuardian, September 27, 2011, www.theguardian.com, accessed on 24 March 2016. 43 “Pakistan obligated to facilitate NATO, ISAF”, The Express Tribune, October 16, 2010, available at tribune.com.pk. See also UN Security Council Resolution 1401(2002), 28 March 2002, available at www.unama.unmission.org, accessed on 25 March 2016. 44 Benazir Bhutto, Reconciliation: Islam, Democracy and the West (London: Simon & Schuster Ltd, 2008), p. 311. 44

history of resistance against foreign aggression45 further deteriorated the law and order situation in Afghanistan; and compromised security of troops fighting against Taliban and Al-Qaeda militants in Afghanistan. The scattered militants gradually gained strength, formed their own groups and started anti-state and militant activities inside Pakistan. Pakistan followed an anti-terrorism policy based on dialogue, deterrence and development; however, it did not respond to the satisfaction of the government due to interference by foreign elements and lack of financial resources to carry out development in the affected areas of FATA and Khyber Pakhtunkhwa (KP, former NWFP). When the political process to settle the issue did not succeed to the satisfaction of America, Pakistan on the American insistence, for the first time deployed its regular troops in FATA during 2002, for conducting low- intensity operations against the militants or as were also called miscreants. In the meantime, the militants continued targeting NATO/ISAF troops until Pakistani forces launched operations against them in February 2004.46 However, in retaliation to military operations, the militant groups started attacks on the security forces, ousted local administration and established their own Sharia system in their areas of operation.47 The surviving civilians annoyed by the operations in the FATA and inspired by the Sharia lent support to the militants as well as embraced radicalism; thus further compromised the integrity and security of Pakistan. America did not get convinced with the Pakistan’s policy and stance that the continuous use of force against indigenous and foreign militant groups may undermine the chances of long-term success and consistently insisted upon Pakistan to do more.48 When Pakistan expressed its handicaps to submit to the obsolete American dictations, the level of mistrust and reciprocal grievances deepened. America assumed upon itself the responsibility to crush militancy; and in pursuit of militancy employed and deployed Special Forces

45 Josh Schott, “The difference between Taliban and Al-Qaeda”, Stanford University, November 17, 2012, E- International Relations Students, available at www.e-ir.info, accessed on 24 March 2016. It is noteworthy that Taliban and Al-Qaeda are two distinct entities, with different goals, operations, ideologies and sources of recruitment. Taliban played no role in 9/11 attacks, rather condemned the attacks, whereas it was Al-Qaida who master minded the 9/11 attacks. 46 Muhammad Amir Rana and Rohan Gunaratna, “Al Qaeda Fights Back: Inside Pakistani Tribal Areas,” PIPS, Islamabad 2006, p. 15. 47 “Testimony Presented Before the United States House of Representatives, Armed Services Committee, Sub- Committee on Oversight and Investigations” by C. Christice Fair, accessible at http://www.rand.org/congress/testimony/topic.htm, accessed on February 28, 2012. 48 Owen Bennett Jones, “On the Verge”, the RUSI Journal, Vol. 155, No.1, February/March 2010. See also Murad Ali, “US aid to Pakistan and Democracy”, Volume 6, July-December 2009, Institute of Policy Study, Islamabad, available at www.ips.org.pk., accessed on 24 March 2016. 45

Military Unit (SFMU) personnel in Pakistan in the disguise of technical and administrative staff and in 2004, started drone strikes in tribal areas of Pakistan.49 Activities of Black Water50 and Raymond Davis51 like staff and Operation Neptune Spear in Abbottabad on night 1/2 May 2011 are the culminating point of American pursuit of militancy in Pakistan.52 In order to create deterrence and bring Pakistan to its terms, American led NATO/ISAF troops launched an unprovoked attack on the Salala Check Post on 26 November 2011 causing death of at least 24 Pakistani soldiers including officers, which further deteriorated the relations between the two main allies in the WOT.53 The drones’ attacks killing TTP leadership, including not only created mistrust and delayed the dialogue process between TTP and the Government of Pakistan but also put at risk the lives and security of innocent civilians and LEAs/Armed Forces of Pakistan.54

On the face of events, American pursuit of militancy in Pakistan was continuation of WOT and an attempt to seek unconditional surrender, hunt and eliminate Al-Qaeda and Taliban leadership. But in fact, America was pursuing the balance of power strategy against an emerging economic giant and power block in China and Russia,55 which may create a bi-

49 Marc Ambinder and David W Brown, “The story of US Special Forces infiltrated in Pakistan”, The Atlantic, February 15, 2012, available at www.theatlantic.com., accessed on 24 March 2016. 50 Andrew Hobbs, Brithney Gates and Kelsa Arnoid, “Blackwater (xe): The Secret US war in Pakistan”, July 24, 2012, available at www.voltairenet.com. See also Jeremy Scahill, “The Secret US war in Pakistan”, The Nation, November 23, 2009, available at www.thenation.com., accessed on 24 March 2016. 51 “Timeline, The Raymond Davis Case”, February 4, 2011, available at www.Dawn.com. See also Chris Arsenault, “The spy game, CIA, Pakistan and blood money”, Al Jazeera, March 17, 2011, available at www.algazeera.com., accessed on 24 March 2016. 52 Amna Yousaf Khokhar, “Operation Neptune Spear: A watershed in war against terrorism”, ISSI, available at www.issi.org.pk. See also Philip Sherwell, The Telegraph, May 7, 2011, available at www.telegraph.co.uk, accessed on 24 March 2016. 53Noor ul Haq, “Abbottabad and Salala Attacks 2011” available at https://www.scribd.com/document/180506511/Abbottabad-n-Salala-Attacks-2011, accessed on April 14, 2014. See also www.defence.pk portal, accessed on February 29, 2012. 54“Pakistan on high alert after Taliban leader killed by US drone strike”, www.theguardian.com/world/2013/nov/02/pakistan-taliban-leader-us-drone-strike , accessed on April 14, 2014. Updates on the number of causalities/deaths caused by American drone attacks and terrorist activities are available at South Asian Terrorism Portal at www.satp.org, accessed on April 14, 2014. 55 Ambrish Dhoka, “Factoring Central Asia in China’s Afghanistan Policy”, October 2, 2013, Journal of Eurasian Studies, available at www.science-direct.com; Zhao Huasheng, “US Central Asia Diplomacy in Post Afghanistan War Era”, China Institute of International Studies, available at www.ciis.org.cn. See also Peter Symonds, “The Taliban, the USA and Resources of Central Asia”, October 24 2001, available at world socialist website www.wsws.org, accessed on 24 March 2016. 46

polar system with Pakistan playing a key role.56 It may be recalled that Taliban-Pakistan partnership before 9/11 was never considered by America as detrimental for her democratic peace theory and hegemonic designs in Asia. This partnership coupled with Chinese silent support, American failure to negotiate with Taliban a partnership in the gas pipeline project from Turkmenistan-Afghanistan-Iran-Pakistan and establishment of Gawadar Port was considered a threat not only to New American Century Project but also Indian interests in the region.57 In this backdrop, safe escape of Al-Qaeda and Taliban leadership was considered by America a potential threat to her hegemonic designs, as they had the potential and capacity to reorganize and lead their remnants in Afghanistan, with the assistance of Pakistani/tribal sympathisers.58 America being apprehensive that Chinese interference and strategic control of Gawadar Port may help the Central Asian States to find a secure trade route through Pakistan59, besides re-emerging support in Afghanistan for Taliban, never wanted Al-Qaeda and Taliban leadership to remain alive.60 Therefore, America and its allies followed the policy of divide and rule and diminishing the weight of the lighter and weak to maintain absolute balance of power in her favour.61 Accordingly, America created or helped create factions in the Taliban by creating and supporting Tahrik-e-Taliban Pakistan (TTP) and Baloch ethnic groups which worked against the interests of Pakistan and launched

56 Judy Dempsey, “The US and China: The Return of Bipolar World”, November 12, 2012, available at carnegie.europe.eu. See also Yan Xuetong, “Why a Bipolar World is more likely than a unipolar or multipolar one”, the World Post, June 22 2015, available at www.huffingtonpost.com., accessed on 24 March 2016. In comparison with America, China’s expansionism is motivated by an insatiable appetite for commodities. Its powerful economy, wealth and deep pockets allowed it to extend and exercise its influence in the world. 57 “Making the Trans Afghanistan Pipeline safe for Democracy” NWO Observer, December 7, 2009, available at https://nwobserver.wordpress.com. See also John Faster, “Afghanistan and the new Great Game”, NWO Observer, August 16, 2009, available at http://www.nwobserver.wordpress.com, accessed on 24 March 2016. For the last two decades, America has been vying with Russia, China, the European Union and Japan for political influence in this key strategic region and for the right to exploit the world’s largest untapped reserves of oil and gas in Central Asian Republics. 58 Jayshree Bajoria, “Al-Qaeda Council on Foreign Relations”, June 6, 2012, available at www.cfr.org, accessed on 24 March 2016. 59Aymen Ijaz, “Significance of Gowadar Port”, Institute of Policy Research, Islamabad, August 20, 2015, available at www.ipripak.org, accessed on 21 Mar 2016. Also see Zafar Bhutta’ Ties with Central Asia: poised to gain wider influence”, The Express Tribune, October 5, 2015, available at tribune.com.pk, accessed on 22 March 2016. Also see Syed Fazal-e-Haider, “Importance of Gawadar Port for China”, available at www.pakistaneconomist.com, accessed on 22 March 2016. 60 Syed Saleem Shahazed, “Pakistan: Taliban leader builds new links with Al-Qaeda”, September 10, 2003, available www.pakistaneconomist.com, accessed on 24 March 2016. 61 RT Question More, “Controversial British plan to divide and rule Afghanistan”, September 9, 2012, available at www.rt.com, accessed on 18 March 2016. Also see Anand Gopal, “US policy in Afghanistan created hundred of little dictators”, March 30, 2016, available at www.therealnew.com, accessed on 18 March 2016. 47

extensive terrorists’ activities,62 besides challenging federalism, integrity and unity of Pakistan.63 The debate initiated by four American congressmen led by Dana Rohrabacher on 8 February 2012 on the Balochistan issue, seeking right of self-determination for them and subsequent resolution in the Houses of Representatives is evident to understand policy to disregard morality and respect for sovereignty of other nation-states;64 and dictate its own terms by employing deterrence and making or breaking alliances theories. Although America has denied of any official support to the Congressmen for this drive65 yet keeping in view American track record, the policy makers may understand significance of this move, which is sufficient to prove American interests and tacit support to the ethnic groups and Baloch insurgents. America is least bothered about the unity of Pakistan and the losses caused to Pakistan as a result of joining the WOT; her only interest is to advance her hegemonic designs, ensure balance of power in her favour and eliminate any potential threat to her unipolar world and unquestionable advancement of her values, may the same be based on double standards.

1.3 US Rationale for WOT and Pursuit of Militancy in Pakistan

After the tragic incident of September the 11th 2001, Bush Administration chalked out an official policy on WOT and pursing militancy throughout the world, specially targeted against Afghanistan, Iraq, and Pakistan etc. This policy was widely known as the Bush Doctrine which declared that “no distinction would be drawn between terrorists and the rogue states that sponsor or harbour the terrorists.”66 The Bush Doctrine laid the foundations of a unique world war in the “name of counter-terrorism and democratic regime change”,

62 Asif Haroon Raja, “North Waziristan, Pakistan fixation betrays Washington’s sincerity of intention”, July 26, 2010, available at http://thepeopleofpakistan.wordpress.com, accessed on 18 March 2016. Also see Shaukat Qadir, “Indian/American support for TTP”, The Global Pakistan, May 23, 2009, available at http://pakistanibychoice.wordpress, accessed on 18 March 2016. 63 Farooq Ahmed Butt, “Internal dynamic of Pakistan and its impact on National Security, October 29, 2013, available at www.slideshare.net, accessed on 22 March 2016. See also Sajjad Shoukat, “Pakistan Day: Deeds not words matter”, March 21, 2015, available at writingforgodot.readersupportednews.org, accessed on 18 March 2016. 64 Huma Imtiaz, “US congressman tables bill for Baloch right to independence”, the Express Tribune, February 18, 2012, available at tribune.com.pk., accessed on 24 March 2016. See also “US lawmakers raise issue of ‘Baloch self-determination”, DAWN Islamabad, 9 February 2012, p 14; “Senators criticize US interference,” DAWN Islamabad February 10, 2012, p 3; Najmuddin Shiekh, “Rohrabacher & Balochistan,” DAWN Islamabad, February 29, 2012, p 7. 65 See for example: Anwar Iqbal, “US Opposes Independent Balochistan”, DAWN Islamabad, February 13, 2014, p 16. 66“The National Security Strategy of the United States of America”, (2002), The White House, Washington. 48

which sought not only to seize the activities of trans-national sub-state terrorist networks but also to conquer and reconstruct the terrorist-affiliated states, designated by America as belonging to an ‘axis of evil’.67 It also incorporated and further elaborated the Shultz doctrine which conceived of Al-Qaeda and other Violent Non-state Actors or sub-state terrorist organizations as the “clients of the axis of evils” or the rogue states that intend to disrupt the USdominated “global political order, reject basic human values, hate America and everything for which it stands.” The Bush doctrine also created an exception for America whereby enemies of America were declared as the enemies of humanity while it was claimed to be the champion of basic human values; therefore, its enemies must be considered to be the enemies of humanity, everyone and everywhere.68 Despite the fact that 9/11 Commission Report neither found any evidence to the effect that 9/11 attacks were lunched or funded by any foreign state nor that “Al-Qaeda members were the irregular troopsof the Taliban,”69 Al-Qaeda were considered as part of a well-established cooperative alliance with the Taliban who provided safe haven to Al-Qaeda leadership and denied American demands. Similarly, the Bush Doctrine kept alive the implicit claim that 9/11 was multi-state-sponsored terrorist conspiracy funded by the axis of evil, referring to Iraq, Iran, Syria etc.,70 and linked the same with “common causes and connections between Al-Qaeda and other militant Islamic organizations” so as to justify inter-state WOT beyond Afghanistan. There has been much debate on the rationale for waging the WOT and pursuit of militancy which may be discussed on the touchstone of Jus bellum justum i.e. the Just War Theory, Article 51 read with Article 2(4) of the UN Charter and the Security Council Resolutions including Resolution 1373 of 28 September 2001.71

67“US President George W. Bush, White House, State of the Union Address, January 29, 2002,” available at http://www.whitehouse.gov/news/releases/20020129-11.html, accessed on August 29, 2011. 68 “The National Security Strategy of the United States of America”, (2002), The White House, Washington. 69 “The 9/11 Commission Report”, op. cit. 70 Adam Richards, “George W Bush: the 9/11 terrorist attack and war on terror”, Chapter 13, Lesson 6, transcript.study.com; Cui Bono, “9/11 false flag operation: Huge tipping point as state-sponsored terrorism is exposed”, August 31, 2014, at “State of the Nation”, available at stateofthenation2012.com. See also Zerohedge, “George Bush Idiotic ‘Axis of Evil’ speech - How the Neocons Blundered the US into confrontation with Iran and paved the way for ISIS”, October 22, 2015, available at davidstockmancontracorner.com., accessed on 24 March 2016. 71 See for example: “UN Security Council Resolutions” 1368 (2001), 1373 (2001), 1377(2001), 1535 (2004), 1540 (2004), 1963 (2010), available at http://www.un.org/Docs/scres, and Articles 2(4) and 51 of the UN Charter available at http://www.un.org/abontun/charter/, accessed on July 27, 2011. For conflicting views on 49

1.3.1 Just War Theory

War is an inevitable phenomenon of human civilization. There have been conflicts and wars for the glory of monarchy, protection of national interests, lust for more power, protection of the suppressed and the marginalized people and so on. If necessity of war cannot be denied, justification of war is always emphasized.72 A war without justification is hit by international norms and United Nations Charter which recognizes sovereignty of all states and prohibits aggression against any state.73 Just War Theory or jus bellum justum postulates moral justification for waging war, mainly on the basis of two criteria i.e. “the right to wage war” (jus ad bellum) and “right conduct in war” (jus in bello).74 This doctrine suggests that not only the initiation of war but also its conduct and culmination should be justifiable on recognised and established morals.75 Augustine is generally considered as the exponent of the just war theory. He was against war, but when the barbarians grasped Rome’s gates, he ordained that war was permissible to protect Roman Empire, which was converting into Christian Rome.76 Just War Theory aims at drawing a fine distinction between just and unjust waging of war and strives to restrict use of arms, make their use more humane and to advance the cause of lasting peace and justice.77 This is equally

definition of terrorism, see Nadeem Ahmad, “Conceptualizing terrorism: Problems of defining and building consensus”, IPRI Journal XII, no. 2 (Summer 2012), 58-75. 72 Bradley L. Herling in “Machedicy, Or Just War Theory in an Age of Terror”, Existenz, Volume I, Numbers 1-2 (Fall 2006), pp. 74-84, while quoting Michael Walzer, Just and Unjust Wars: A moral Argument with Historical Illustrations (New York: Basic Books, 1977) at page 74 reiterates that some times war in not only necessary but also morally justifiable. 73 See Article 2(4) of the UN Charter which reads: “All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations”. 74 “Just War Theory” at http://www.justwartheory.com and www.iep.utm.edu/justwar, accessed on February 29, 2012. See also Brian A. Garner, Black’s Law Dictionary, (USA: Thomson West, 2004) pp. 164, 883-884. James F. Childress, “Just War Theories: The Bases, Interrelations, Priorities, and Functions of Their Criteria.” Theological Studies, No 39, 1978, pp. 427-445. 75 The norms of the time and space generally determine the morality aspects. |However, generally the war had been waged in self-defence, retribution and religious differences. The later two grounds in any case do not justify war. See Brian A. Garner op. cit. 76 Augustine had been resisting war on the basis of the teachings of Christianity See Augustine, The City of God, translated by Bettenson (New York: Penguins Books, 1972), pp. 6-13, as quoted by Bradley, op. cit., pp. 75-76 and available at http://wwwbu.edu/paideia/existenz, accessed on 14 March 2016. 77“Just War Theory” op. cit. Thomas Aquinas, “Christians and War” available at http://olympia.anglican.org/churches/B/stdunstan/Beliefs/Christians_War/Christians-War_3.htm and http://web.archive.org/web/20060710024929/http://olympia.anglican.org/churches/B/stdunstan/Beliefs/Christia ns_War/Christrians_War_3.htm, accessed on February 29, 2012. 50

applicable during the conduct of war and at the termination of war.78 Just war theory propounds that war may be waged as a last resort79 by a just authority i.e. a legitimate government; while non-violent political struggle may be a substitute for war. In contrast to the just war doctrine, theory of realism does not believe in morality; it recognises “state security and self interests” and accentuates that in order to achieve these objectives, states can go to any extent, even disregarding moral and ethical grounds of waging war.80

Just war theory is based on the distinction between ethical and unethical justification of war.81 It is concerned with the ethical grounds of initiating a war, ethical conduct in the course of war and post-war settlement; and advocates pacifism i.e. peaceful resolution of disputes and believes in diplomacy over war. However, it does not have any established conventional criteria or check boxes which may be mechanically applied to any conceivable war. Therefore, the Bush Doctrine invoked and justified the WOT and pursuit of militancy on the basis of self-righteous militarism.82 Despite the fact that the just war theory is broad based, yet the rationale for a just war may be gauged through rational insights into: “how the use of arms may be restrained, made more humane and ultimately directed towards the establishment of a lasting global peace and justice.”83 The principle of non-aggression and non-interference amongst sovereign states is inherent in the global legal order wherein the sovereign enjoys immunity from aggression and intervention; while war may be justified only in self-defence, either adjuvant defence on behalf of other(s) or pre-emptive self defence against imminent aggression.84 The right of pre-emptive self defence, however, is

78Thomas Aquinas, “Christians and War” available at http://olympia.anglican.org/churches/B/ stdunstan/ Beliefs/Christians_War/Christians-War_3.htm and http://web.archive.org/web/20060710024929/, accessed on February 29, 2012. 79 Bradley L. Herling, op. cit., p.76. 80 Gene Sharp, “Beyond just war and pacifism: nonviolent struggle toward justice, freedom and peace” Ecumenical Review, April, 1996, available at http://findarticles.com/p/articles/mi_m2065/is_n2_v48/ai_ 18310385/print?tag=artBody;coll, accessed on 24 March, 2016. In the primitive Roman society, even wars against non-Catholics were considered as just wars. So far as the just authority is concern, it used to be fetiales, the priests monitoring international treaties, in the Roman. See Brian A. Garner op. cit. 81For further distinction of just war theory, see http://www.justwartheory.com, and www.iep.utm.edu/justwar, accessed on February 29, 2012. See also James F. Childress, op. cit., pp. 427-445. See also Charles Guthrie and Michael Quinlan “The Structure of the Tradition”, Just War: The Just War Tradition: Ethics in Modern Warfare, (UK: Bloomsbury Publishing, 2007), pp. 11-15. 82 Larry May, Grotius and Contingent Pacifism, Studies in the History of Ethics, February 2006, available at http://www.historyofethics.org/search.shtml/022006/022006May.html, accessed on August 29, 2011. 83 Michael Byers, “Pre-emptive Self-defence: Hegemony, Equality and Strategies of Legal Change,” The Journal of Political Philosophy, Volume 11, Number 2, 2003, pp. 171-190. 84 Ibid. 51

highly controversial as the powerful states tend to enlarge this right at will in the name of humanitarian assistance for innocents against grave harms,85 threat from the rogue states,86 who allegedly have WMD, support and export terrorism besides suppressing the rights of their own citizens, and forced democratic regime change,87 as did America after 9/11 and is pursuing the same policy under the Project for the New American Century.88

1.3.2 UN Charter and the Security Council Resolutions In contrast to the just war theory, US fetched comparatively better legal support for its WOT from the United Nations in the wake of Article 51 read with Article 2(4) of the Charter89 and in terms of the Security Council resolutions. American invasion in Afghanistan was justified on the basis of the right of self defence against an armed attack90 and Resolution 1373, which has been termed an unprecedented legislative act by the UN Security Council that “selected provisions from various terrorism conventions and converted them into universally binding obligations.”91 Simultaneously, America initiated a UN-led political process that culminated in the Bonn Agreement in December 2001 for reconciliation and

85 Gillian Brock, “Humanitarian Intervention: Closing the Gap between Theory and Practice,” Journal of Applied Philosophy (2006) 277-91, Volume 23, No 3, available at www.onlinelibrary.wiley.com., accused on August 29, 2011. 86 Eric Patterson, “Just War in the 21st Century: Reconceptualising Just War Theory After September 11,” International Polities (2005) Volume 42, 116-134; available at www.palgrave-journals.com/ip/journal., accused on August 29, 2011. 87 Fernando R. Teson, “Ending Tyranny in Iraq,” Ethics and International Affairs, Volume 19, No 2, 2005, 1- 20, available at www.onlinelibrary.wiley.com.doi, accused on August 29, 2011. 88 After winning the cold war, America prepared the blueprint to capitalize its surplus military forces and defence resources to extend its hegemony and corporate privatization throughout the world. See for example, “Project for old American Century, New American Century”, available at www.oldamericancentury.org, accessed on 04 April 2016. See also Dr. Shahid Ahmad Hashmat, International Conflict Resolution: Role of UN and OIC, (Islamabad: NUST Publishing, 2014), pp.1-2. For American justification of WOT on the basis of just war doctrine, see for example: Tamie Harrison, “On the war against terror as a just war”, October 20, 2009, available at http://userpages.Umbc.edu, accused on 7 April 2016. 89 Article 2(4) reads: “All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations”; while Article 51 reads: “Nothing in the present Charter shall impair the inherent right of individual or collective self defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace.” 90“Letter by the Permanent Representative of the US to the President of the Security Council”, wherein America had also reserved the right to take similar action against “other organizations and countries”. See S/2001/946, of 7 October, available at www.un.org.en/docu-ments/index.shtml., accused on August 29, 2011. 91 For a description of the ‘legislative’ nature of 1373 resolution, see Pual C. Szasz, “The Security Council Starts Legislating.” 96 AJIL, (2002) 901-905 available at www.jstor.org.pss/3070686, accessed on August 29, 2011. 52

provisional arrangements,92 and peacekeeping and peace-building efforts in Afghanistan.93 In fact, America took full advantage of the “time of its choosing’. It kept on utilizing the UN channels so tacitly and intelligibly that it managed the 1368 and 1373 Resolutions so drafted that it precluded any language in the said and other resolutions on the issue that would constrain its ability to strike at terrorists or rogue states harbouring them.94 It managed support from NATO, ISAF and UN peacekeepers to help its military operation and stabilize Afghanistan; but marginalized any decision making role of NATO in its Operation Enduring Freedom as well as resisted deployment of ISAF beyond Kabul until late 2003. In order to muster support of Russia for 1373 resolution, whose implementation has been described as hegemonic international law in action,95 US accepted that Russia’s policy against Chechnya was a war against terrorists. It also included paragraphs in the preamble of the said resolutions reaffirming “the inherent right of individual and collective self defence” enshrined in Article 51, so as to gather supportive reaction from international community for the claim that America had been the victim of an “armed attack” within the meaning of Article 51. Accordingly, before USinitiated its military campaign, NATO and the Organization of American States declared that 9/11 strikes, being “armed attacks”, might be reciprocated by a proportional military response;96 while the Gulf Cooperation Council (GCC) expressed its willingness to participate in any joint action that has clearly defined

92 Numbers of conferences were held on Afghanistan issue since the launch of American military campaign in 2001. Agreement on Provisional Arrangements in Afghanistan Pending the Rehabilitation of Permanent Government Institutions” held in Bonn in December 2001 is available at www.un.org/News/dh/latest/afghan/afghan-agree-htm and www.refworld,org. Conclusions of the International Conferences on Afghanistan described as “Afghanistan and International Community: From Transition to Transformation Decade” held in Bonn on December 5, 2011 are also available at peacemaker.un.org/afghanistan-bonnagreement2011. See also www.cimicweb.org and reliefweb.int/report/ Afghanistan/Afghanistan-agreements-collection-official-text-2001-2011, where “Collection of Afghan Agreements with Official Text from 2001 to 2011” is available, accessed on April 14 29, 2016. 93 Gerard Russell, “Peacemaking in Afghanistan: A Role for the United Nations” in Maintaining International Peace and Security: A Summit Meeting of the UN Security Council, International Peace Institute, Jun 2011, available at www.ipinst.org, accessed on August 29, 2011, p. 8. 94 David M. Malone, “US-UN relations in the UN Security Council in the Post-Cold War Era”, in Rosemary Foot & Michael Mastanduno, US Hegemony and International Organizations: The United States and Multilateral Institutions (Oxford: Oxford University Press, 2003), pp.80-89. 95 Alvarez Jose E, “Hegemonic International Law Revisited,” AJIL (2003) 873-888, Vol-97:387; available at www.safhr.org/ and www.asil.org/ajil.cfm, accessed on February 29, 2012. 96 NATO Press Release No. 124, “Statement by the North Atlantic Council” (12 September, 2001): “Terrorist Threat to the America,” Resolution 1, “24th Meeting of Consultation of Ministers of Foreign Affairs Acting as Organ of Consultation in Application of the Inter-American Treaty of Reciprocal Assistance,” OEA/Ser, F/II.4/RC.24/RES.1/01 (21 September 2001). 53

objectives.97 A number of states including Pakistan consented to provide airspace and logistic support; while Russia, China and many Arab states also supported America. Although OPEC, OIC and Arab League did not express their support but they refrained from condemning it.98 On the day Operation Enduring Freedom-Afghanistan was launched, the President of the Security Council also reiterated unanimous support for America expressed in earlier resolutions of the Security Council.99 Hence, practically all states assimilated the notion that as terrorist attack by a terrorist organization was an “armed aggression” by a state, entitling the victim state to resort to “individual self defence.”100 This “instant custom”, though a deviation from the recognized principles of self defence, was also validated by the International Court of Justice (ICJ) in the case of American cruise missile attacks on Sudanese Al-Shifa Pharmaceutical Factory101 and an airbase in Afghanistan in connection with the alleged Al-Qaeda sponsored bombings on US embassies in Kenya and Tanzania in August 1998.102 This verdict of the ICJ was perverse to its decision in Nicaragua case, wherein it had ruled that Articles 2(4) and 51 were not fully obverse sides of the same coin; and that every instance of “illegal use of force” did not constitute “an armed attack”; thus, the right to self defence would be available only in regard to the “an armed attack” only.103

1.4 Conclusion US initiated WOT did not succeed in eliminating terrorism. Instead it became the cause of breading terrorism, and religions. It also inculcated the notions of self-righteousness, self-retribution and lack of confidence in law and international norms.

97 Murphy, “Terrorist Attacks on the World Trade Centre and Pentagon,” 96 AJIL (2002) pp. 244, 245, 247-248, available at www.asil.org/search.cfm , accessed on February 29, 2012. 98 Murphy, “Terrorism and the Concept of Armed Attack in Article 51 of the UN Charter, 43 HILJ (2002) 42, pp. 48-49; Beard, “America’s New War on Terror: The Case for Self-defense under International Law’’ 25 Harvard Journal of Law and Public Policy (2002) 559. 99 The operation was launched on 7 October 2001 and continued till 31 December 2014. On 7 October 2011, permanent representative of America to the UN wrote a letter (UN Security Council Doc S/2001/946) to the President of the Security Council informing him of the launch of the operation and requesting him to adopt the same as Security Council document and circulate it to the member states. The letter is available at http://aldeilis.net/english/letter-from-us-to-president-of-un-security-council-7-oct-2001/, accessed on August 29, 2011. 100 Antonio Cassese, “Terrorism is Also Disrupting Some Crucial Legal Categories of International Law”, EJIL, 12 (2001) pp. 993-1001, Vol-12, No.5. 101 See Oscar Schachter, “The Lawful Use of Force by a State against Terrorists in another Country.” 19 Israel Year Book on Human Rights (1989), p. 216. 102“Letter to the President of the Security Council,” S/1998/780 of 21 August 1998, available at www.un.org.en/docu-ments/index.shtml, accessed on February 29, 2012. 103“The Republic of Nicaragua v. United States of America,” ICJ Reports (1986), pp. 193-195 and 210-211, 160-171. 54

Not only Pakistan but also the whole world became the victim of terrorism. The West, once known for peace and tolerance, also became the subject of terrorism. Madrid train bombings in 2004, Paris attacks in 2015 and Brussels attacks in March 2016 may be cited as examples.104 While initiating WOT, US overwhelmingly followed the egoistic and anarchic traditions of realism and disregarded peaceful settlement of the issue. Though America succeeded in gathering support of the P5 and the world at large in the disguise of UN Security Council Resolutions,105 yet the ensuing insecurity and waive of terrorism in the whole world in the wake of WOT shall remain discredit to the American policies to fight the menace of terrorism. US policy of regime change and supporting anti-government forces in Afghanistan, Iraq, Libya, Egypt, Syria etc in the garb of eliminating terrorism from the world changed the legal and moral status of America from an aggrieved party to the aggressor and abetting human rights violations in these countries. American campaign against terrorism has been described as sheer violation of humanitarian laws and good cause for inviting the jurisdiction of International Criminal Court (ICC).106

The above assertion is fortified by the history of International Tribunals, which reveals that Americans or Westerns had never been tried by them. Mostly Africans and one odd case of Western adversaries e.g. former Serbian President Slobodan Milosevic and Serbian politician and ex military commander Rodovan Karadzic had been tried by the International Tribunals.107 Both were tried by the International Criminal Tribunal for the former Yugoslavia (ICTY). They were charged for committing systemic genocide of Bosnian Muslims and Croats during 1992-1995 and removing them from the territories claimed by

104 Madrid train bombings claimed about 190 lives, Paris attack 130 lives and Brussels attacks 35 lives, besides wounding several. Attacks in the check-in hall at the Zaventem Airport and Maalbeak Metro Station in Brussels, which is not only the Belgian capital but also Headquarters of the European Union and NATO, refer to the growing terrorism in Europe in a bid to take revenge from the Europe for causing instability and disintegration in the Muslim countries in the name of terrorism. See also “35 killed in Brussels attacks claimed by militant IS group” and Khurram Husain, “Tides of terror”, DAWN Islamabad, March 23 and 24, 2016, pp. 1 and 8 respectively. 105 For example: “UN Security Council Resolutions” 1368 (2001), 1373 (2001), 1377(2001), 1535 (2004), 1540 (2004), 1963 (2010), available at http://www.un.org/Docs/scres, accessed on July 27, 2011. 106 Noam Chomsky and Andre Vltchek, On Western Terrorism From Hiroshima to Drone Warfare, (London: Pluto Press, 2013), pp. 26 and 27. 107 Noam Chomsky and Andre Vltchek ibid. 55

Serbs.108 Milosevic died in the prison at Hague in 2006; while Karadzic, who though indicted in absentia in 1995 but arrested in 2008, was finally convicted and sentenced to suffer 40 years imprisonment by The Hague Court on 24 March 2016. He was indicted and convicted of 10 charges including genocide of more than 8000 Muslims males during 44 months siege of Bosnian capital Sarajevo during 1995 and other crimes against humanity. Fate of the Serbian Military Chief Ratco Mladic, who is known as “The Butcher of Bosnian” is also likely to be decided by the tribunal in 2017.109 In contrast to the crimes of African and Serbian leaders, take the example of American invasion in Iraq, which could not be described as genocide, war crime or crime against humanity. In this realm, the notion that American President Bush or his field commanders may be brought before the International Criminal Court for determination of their guilt and punishment can not be turned into reality.110

America has an intelligible approach of “self immunization” and creating “legal barriers” against any such move. It may seek exoneration and exception for any of its criminal acts from being tried by any international tribunal. It may be recalled that although America initiated and consented its subjection of International Court of Justice in 1946 but manipulated text of its charter to create exception for it. Hence it may not be tried under any international convention or treaty including UN Charter, Charter of Organization of American States or the Geneva Conventions.111 Referring to the Nicaragua case, though ruling of the ICJ was against America, yet it invoked provisions of the Charter of the Organization of American States 1948112 in its favour. America managed face saving and

108 Ibid. Maude Brulard, “Karadazic faces day of reckoning at UN war crimes court”, Masood Haider, “Bosnian Serb leader Karadzic sentenced to 40 years in prison”, DAWN Islamabad, March 22 and 25, 2016, pp. 13 and 15 respectively. The atrocities committed in Bosnia had been described as the worst of the crimes against humanity after the World War II. The families of the victims were at least expecting life imprisonment and were not satisfied of the verdict as the tribunal did not find him guilty of committing genocide in 7 Bosnian towns. 109 Ibid. 110 Ibid, Noam Chomsky and Andre Vltchek, op. cit. Exemption to the American military and police officers from application of IHL and any criminal liability during their service in UN Peacekeeping Operations has also been criticized. See for example: Dr Shahid Ahmad Hashmat, International Conflict Resolution: Role of the UN and the OIC, (Islamabad, NUST Publishing, 2014), p. 61.

111 Ibid. 112 The treaty was signed at the Ninth International Conference of American States on 30th April 1948 in Colombia and became operative on 13th of December 1951. More than 35 States including United States of America, Jamaica, , Nicaragua and Mexico are its signatories. It had been amended by 4 subsequent Protocols until 10 June 1993 when the last “Protocol of Managua” was adopted. America assumed for itself “the 56

relief on the legal ground i.e. Charter of the Organization of American States had exempted America and ousted jurisdiction of the ICJ against American attacks in Nicaragua. America also managed exemption from the ICJ, when Yugoslavia alleged NATO for bombings in its territories and committing the crime of genocide. America contested before the ICJ that the Convention on the Prevention and Punishment of Crime of Genocide of 9 December 1948 was not applicable to it. Accordingly, the court dropped prosecution against America.113

Similarly, when the Rome Statute114 to establish International Criminal Court (ICC) was being signed on 17 July 1998, America could not negotiate its terms and had to surrender before the comity of nations. The Statute of Rome created four core international crimes which may be investigated and prosecuted by the ICC, if the states are unable or are unwilling to investigate or try such offences. These offences include genocide, crimes against humanity, war crimes and the crimes of aggression. These offences are not subject to any period of limitation.115 America though signed it on 31 December 2000 but has not yet ratified it. In order to neutralize its effects, American Congress subsequently passed American Service-Members Protection Act, 2002.116 This Act is described in Europe as the Netherlands Invasion Act, which authorized the White House to invade Hague, if any American was tried by the International Criminal Court in Hague. The Act authorized the President to use all means to take out any American or NATO personnel, intended to be

historic opportunity to offer to man a land of liberty and a favourable environment for the development of his personality and the realization of his just aspirations” in the preamble of the Charter.

113 Noam Chomsky and Andre Vltchek op. cit. America contested that no case, in which it is a party, could be submitted to International Court without her specific consent; and that nothing in the Genocide Convention requires or authorises legislation or other action by or against America prohibited by its laws and as interpreted by the American Supreme Court. America also contended that it reserves the right to decide whether, when and how the Convention on the Genocide, can be applied to itself. See also John Bart Gerald, “Is US really a signatory to the UN Convention on Genocide”, available at www.sevendipity.li.more/genocide/html, accessed on March 24, 2016.

114 Rome Treaty became effective from 1st July 2002 and is available at www.icc-cpi.int and www.icrc.org, accessed on March 15, 2016. 115Articles 4-9 of the Rome Statute, which provide for legal status, jurisdiction and crimes triable by the ICC. See also www.iccnow.org, accessed on 24 March 2016. 116The Act was signed by President George W. Bush on 2nd day of August 2002. It is available at legalcounsel.house,gov. and www.law.cornell.edu, accessed on March 15 2016. America consistently opposed jurisdiction of any International Court who could hold its military and political leaders responsible to a uniform global justice system; and would veto any legislation or resolution, if adopted by UN Security Council against its interests. 57

detained or imprisoned in Hague, the principle seat of ICC, even if so ordered by it. 117 This “immunization” approach is supported by the sophisticated propaganda techniques which have colonized hearts and minds of both the masses and the perpetrator governments.118 In this backdrop, America is likely to continue pursuing its global hegemonic designs until the uni-polar world is reshaped in a bi-polar or multi-polar world to create a balanced world order.

In a recent development after 15 years of the 9/11 tragedy in 2011, American Congress, on 17th of May 2016, promulgated “Justice against Sponsors of Terrorists Act.” 119 The Act envisages right of the victims of 9/11 to sue persons, entities and countries, who had directly or indirectly supported or abetted the 9/11 incident, in the American courts for civil claims and damages. The Act extended jurisdiction of the American courts against any act of international terrorism against America, its citizens or security by any foreigner or foreign country, irrespective of the place of the alleged abetment or the act of terrorism. The enlargement of this jurisdiction has been criticized120 as blatant violation of the state sovereignty and challenge to the authority of the ICJ or ICC recognized under the UN Charter. It has empowered America and its citizens to accuse any nation or its citizens, sue them in American courts and claim damages. Simultaneously, this legislation has posed biggest threat not to anyone else but to the American allies including Saudi Arabia and Pakistan.121

117 Articles 8 and 9 of the American Service-Members Protection Act, 2002. See Human Rights Watch, “US: Hague Invasion Act Becomes Law”, August 3, 2002, available at www.hrw.org. See also Robert Marquand, “Dutch still wincing at Bush era Invasion of The Hague Act” The Christian Science Monitor, February 13, 2009, available at www.csmonitor.com, accessed on 24 March 2016. 118 Noam Chomsky and Andre Vltchek op. cit. 119The Act is accessible at the American Congress Library via https://www.congress.gov/bill/114th- congress/senate-bill/2040/text , accessed on June 9, 2016. 120 Daniel Pipes, “The Justice Against Sponsors of Terrorism Act is Sham Legislation”, Middle East Forum, May 28, 2016, available at http://www.meforum.org/blog/2016/05/justice-against-sponsors-of-terrorism-act , accessed on June 9, 2016. 121 See for example: “Justice against Sponsors of Terrorism Act would hold Saudi Arabia legally liable for 9/11”, available https://medium.com/govtrack-insider/justice-against-sponsors-of-terrorism-act-would-hold-saudi- arabia-legally-liable-for-9-11-9a399c298267#.3hxqtyrzf, accessed on June 9, 2016.

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CHAPTER 2

EFFECTS OF WAR ON TERROR ON THE NATIONAL SECURITY AND CRIMINAL JUSTICE IN PAKISTAN

It is an undeniable fact that the War on Terror (WOT) has affected the whole world. However, its effects to Afghanistan and Pakistan are enormous and long-lasting. The war initiated in Afghanistan is being fought equally in Afghanistan and Pakistan, initially with the full and subsequently with partial strategic and logistic support of Pakistan. Pakistan not only lost its strategic depth but also fetched enmity and proxy war from Afghanistan, Iran and India. These countries turned more hostile against Pakistan in an attempt to balance the score. The theatre of war was shifted first into the tribal areas and then to the settled areas of Pakistan. Pakistani nation had to face the wrath of comity of nations as a terrorist and failed state.1 Simultaneously, Pakistan had been accused of supporting and harbouring terrorists in the name and garb of Taliban and Al-Qaeda members and sympathizers. The comity of nations, more specifically America, forgot the peace maintained and control exercised over narcotics production and business by the Taliban regime in Afghanistan. The world also forgot the sufferings of Pakistan and the Afghan refugees crisis suffered and managed by Pakistan after the Soviet invasion in Afghanistan and the launch of WOT. America continued her demand “to do more” but did not recognize the negative effects of WOT on national security of Pakistan. American aid to Pakistan was peanuts in comparison with the economic, political and human losses suffered by Pakistan.2 Terrorism, militancy, lawlessness, insecurity and challenge to the writ of the government nurtured as a routine culture. 3 This chapter explores the effects of WOT on the security of Pakistan. Since national security is an integrated whole, the chapter also examines effects of the WOT on other facets of national security, such as internal security, resurgence of militancy, economic and political debacles and the Internally Displaced Persons (IDPs) or, as are also called, Temporarily Displaced Persons (TDPs) issues, more specifically women and children. The chapter also analyses the

1Maryam Azam, “Genesis of Militency in Pakistan”, IPRI Journal, 14(1), (Winter 2014), pp.102-123. 2Rana Eijaz Ahmad, “War Against Terrorism or War for Terrorism” (2007), The Journal of Political Studies, Vol. 11. See also Rana Eijaz Ahmad, “Security, Political Dimentions and Consequences of NATO Expansion in the Region”, South Asian Studies, Volume 25, Number 2, July-December 2010, pp.413-418. 3Regarding impact of WOT on different facets of life in Pakistan, see for example "Impact of terrorism on Pakistan", Khyber Pakhtunkhwa Public Service Coordinators,available at http://www.kppsc.com.pk/pages/?Impact_of_ terrorism_on_Pakistan, accessed on April 24, 2016. 59

effects of WOT on criminal justice system in Pakistan viz-a-viz needs of the national security and human rights issues. In this endeavor, the chapter discusses the issues of human rights and missing persons. Simultaneously, the study in this chapter analyses if effects of WOT on the criminal justice system are temporary in nature or are likely to redefine future of the country and fate of the people of Pakistan.

2.1 Internal Security The WOT contributed to the deterioration of internal security situation in Pakistan, whereby scores of innocent people are being killed in suicide/car bombings,4 specifically targeted against the law enforcing agencies including the army and police, rallies, mosques and other public places.5 The situation became critical, after the launch of Al-Mizan, Rah-e- Rast, and Rah-e-Nijat operations6 against militants in Swat, Malakand, Buner,Chitral and other parts of South Waziristan Agency; wherafter the militants in retaliation launched terrorist activities and suicide attacks in Lahore, Peshawar and other cosmopolitan cities.7

4Kiran Firdous, “Militency in Pakistan” (2009), Institute of Stretegic Studies, pp 112-129; Umbreen Javaid, "Operation Zarb: A Successful Initiative to Curtail Terrorism", South Asian Studies, ,Volume 30, Number 2, July-December, 2015, pp. 43-58, 2015. See for example recent in Gulsha-e-Iqbal Park Lahore. Imran Gabol, “At least 72 killed in suicide blast as terror revisits Lahore”, The Daily Dawn, 29 March, 2016. 5 Ibid. 6 Since 2002, military had been on the hunt of terrrists in FATA consisting of seven districts i.e. South and North Waziristan, Bajur, Aurakzai, Mohmand, Khyber and Kurram agencies. Miliitary had launched offencives in different discticts of the said agencies, which include operations in the name of Al-Mizan, Zalzala, Black Thunderstorm, Sher Dil, Rah-e-Rast, Rah-e-Haq, Rah-e-Nijat, Koh-e-Safaid and finally Zarb-e-Azb launched on 15th day of June 2014 in North Waziristan agency. Operation Al-Mizan was initiated in FATA during 2002 and continued till 2006, with the deployment of 70000-80000 troops, out of whom 1200-1500 soldiers laid their lives. Rah-e-Rast was launched in Swat during May-July 2009; whereas operation Rah-e-Nijat was launched in North and South Waziristan Agencies when approximately 30000 troops were deployed there during June 2009. The mendate was to recapture the areas under the control and influence of the TTP, who was not only providing safe heavens and hide outs to the terrorists but also providing them logestics to continue terrorist activites throughout the country. During these military operations, huge military losses and substantial displacement of the people had been reported. This was not a full fledged operation as General Kiyani remained reluctant for a clean sweep operation, due to its fallout. However, this operation was followed by the operation zarb-e-Azb for a decisive military compeign, which is still ongoing. See Umbreen Javaid op.cit. and Mariam Shah, "Comparing Pakistan’s Past Military Operations with Operation Zarb-e-Azb.", Pakistan Defence Forum, 12 Aug. 2014. "Pakistan: 200 Taliban die in 24 hours", CNN News, 10 May, 2009. See also "ISPR Update” 29 May 2012, available at https://www.ispr.gov.pk/front/main.asp?o=t-press_release&id=2074 , accessed on April 23, 2016. 7 Details of suicide and terrorists attacks have been given in the subsequent pages which depict brutality of the terrorism suffered by Pakistani nation. See for example suicide attack in Gulsha-e-Iqbal Park Lahore. Imran Gabol, “At least 72 killed in suicide blast as terror revisits Lahore”, The Daily Dawn, 29 March, 2016. 60

Lal Masjid incident in July 2007,8 assassination of Mrs Benazir Bhutto and Mr. Salman Taseer on 27 December 2007 and 4 January 2011 respectively,9 and attacks on GHQ and Mehran Naval Base Karachi on 10 October 2009 and 22 May 201110, attack on Quaid-e- Azam International Airport Karachi on 4 June 2014,11 Nanga Parbat attack on foreign mountaineers on 22 June 2013,12 Army Public School carnage on 16 December 2014,13attack on Shikarpur Imambargah on 30 January 201514, Safoora Goth attack on bus of Ismaili community on 13 May 2015 and Badbher Airbase Attack on 18 September 2015 respectively15 and target killings on sectarian, linguistic and ethnic basis also intensified militants’ activities in Pakistan. The toll of terrorism related fatalities during 2003 - March 2016 had reached 60,266 which included 20,999 civilians, 6,450 security forces personnel and 32,817 terrorists.16

8"Pakistani Forces Storm Mosque, Killing More Than 40 Militants",www.haaretz.com, July 10, 2007, available at http://www.haaretz.com/news/pakistani-forces-storm-mosque-killing-more-than-40-militants-1.225220, accessed on April 23, 2016. 9For details of assisnations of Mrs Benazir Bhutto, see "Assassination", available at http://www.benazirbhutto.com/assassinatination.html and “Punjab governor Salman Taseer assassinated in Islamabad” available at http://www.bbc.com/news/world-south-asia-12111831/.See also video of news regarding murder of Salman Taseer with caption “Salman Taseer was repeatedly shot at close range with a sub- machine gun” at the same web site, both accessed on April 23, 2016.Also see “Law and Order Situation in Pakistan”http://laosop.blogspot.com/2010/12/benazir-bhutto-profile.html. , accessed on November 24, 2015. 10 In the attack on GHQ, SepoyAqeel alias DrUsman, a military deserter, was leading the attck, who was arrested and later executed during December 2014, as a result of sentence awarded by court martial. See also Captain Mujahid, “One year earlier- the day TTP attacked GHQ - 10 October 2009”, Pakistan Defence Forum,www.defence.pk/threads/one-year-earlier-the-day-ttp-attacked-ghq-10-october-2009.76025/. The attack on Naval base claimed lives of 15 Navy and Rangers personnel. See Jahanzeb Haque, “Navy says PNS base under control after attack” www.tribune.com.pk/story/173888/blast-on-dalmia-road/, accessed on April 26, 2016. 11 In the attack on Karachi Airport, 18 staff/civilians and 10 terrorists were killed; while a dozen people wounded. “TTP claims attack on Karachi Airport”, www.dawn.com/news/1111397, accessed on 24 November 2015. Also see “2001-2014: A Timeline of Terror Attacks in Pakistan.” http://www.haaretz.com/world- news/1.632169, accessed on November 30, 2015. 12Zahir Shah Sherazi, “Gunmen kill nine foreign tourists and their guide in Nanga Parbat”http://www.dawn.com/news/1020142, accessed on 24 November 2015. 13This attack was brutal in its own nature as it was specifically targeted against innocent children of APS School, which claimed at least 151 lives. Zahir Shah Sherazi, ‘Militant siege of Peshawar school ends, 141 killed” http://www.dawn.com/news/1151203, accessed on 24 November 2015. 14 “Sectarian outrage in Shikarpur; 53 dead”, DAWN Islamabad, January 31, 2015, pp. 1, 5. 15“45 killed in attack on Ismaili community bus in Karachi” available at www.thenews.com.pk/latest/article/4313-45-killed-in-attack-on-Ismaili-community-bus-in-karachi, and “Army Captain among 29 killed in TTP-claimed attack on PAF camp in Peshawar” http://www.dawn.com/news/1207710 , accessed on 24 November 2015.

16This data is updated as on 20 March 2016 and available at South Asia Terrorism Portal throughhttp://www.satp.org/satporgtp/countries/Pakistan/database/casualities.htm, accessed on March 24, 2016. 61

An extremely complex phenomenon, the roots of militancy in Pakistan may be traced back to the Afghan war of 1979 and Afghan refugees;17 and associated with number of socio-economic and politico-religious factors, ethnicity and sectarianism, arms and drug smuggling etc,18 yet the main cause is linked with WOT and the power polities at the international level.19 The tribal areas of Pakistan bordering Afghanistan were the first affected that witnessed the rise in militants’ violent activities, extremism and terrorism, which spread in Khyber Pakhtunkhwa (KP) and Punjab as well as gave birth to the Baloch insurgency and ethnicity in Karachi.20 The successive governments of Pakistan observed a policy of restraint and dialogue directly and indirectly with major factions of Tehreek-i- Taliban (TTP) and splinter groups.21 This policy was embraced with intent to avoid further

17Abdul Nasir Dotani, "The Impact of Afghan Crisis on Pakistani Society since 1979 till date." (2011), International Conferrence, Doshisha University, Kyoto, Japan. 18Mohammad Waqas Sajjad, "External Factors Of Instability In Pakistan-Troubled Alliances In War.", http://www.academia.edu/909392/EXTERNAL_FACTORS_OF_INSTABILITY_IN_PAKISTAN_TROUBLE D_ALLIANCES_IN_WAR; Arshad, Muhammad. "Terrorism in Pakistan: Causes & Remedies", http://www.qurtuba.edu.pk/thedialogue/The%20Dialogue/6_3/Dialogue_July_September2011_224-241.pdf; Usman, Tehseena and Minhas Majeed Khan, "Drug Trafficking from Afghanistan to Pakistan and its Implications.", Journal of the Research Society ofPakistan, University of the Punjab, Lahore, Volume 50, Number 2, December 2013, http://pu.edu.pk/images/journal/history/PDF- FILES/ARTICLE%202%20TEHSIN%2025-43_v50_no2_2013. pdf, accessed on April 3, 2016. 19 David Sykes, "Is the War on Terror Transforming Contemporary Politics?" E-International Relations Students,, June 22, 2009, http://www.e-ir.info/2009/06/22/is-the-war-on-terror-transforming-contemporary- politics/, accessed on April 5, 2016. “It is true that the USA planned this was not to fight terrorism, but to secure the vast resrves of gas and oil of Caspian sea region”, observed AfreenBaig in “War on Terrorism in Pakistan’s National Interest”, June 23, 2008,http://presidentmusharraf.wordpress.com/2008/06/23/war-on-terrorism-in- paksitan-national-interest/,accessed on April 11, 2016. 20 See Maryam Azam, “Genesis of Militency in Pakistan”, IPRI Journal XIV, No. 1 (Winter 2014), pp.102-123, www.ipripak.org/wp-content/uploads/2014/04/Article-no.-6-Maryam.pdf; SR Mehboob, “Governance and Militency in Pakkistan’s Khyber Pakhtunkhwa Province”, Background Paper prepared for Centre For Stretegic& International Studies, Washington and published in December, 2011, www.csis.org/files/publication/120119-Mehboob_Khyberpakhtunkhwa_Web.pdf ; Dr Mansoor Akbar Kundi, “Insurgency Factors in Balochistan”, Central Asia Journal, Number 64, Area Study Centre (Russia, China & Central Asia), University of Peshawar, www.asc- centralasia.edu.pk/Issue_64/07_Insurgency_Factors_in_Balochistan.html; Huma Yusuf, “Conflict Dynamics in Karachi”, Peaceworks No 82, United States Institute of Peace, 2012, www.usip.org/sites/default/files/PW82- conflict%20Dynamics%20in%20Karachi.pdf; Revisiting Counter-terrorism Strategies in Pakistan: Opportunities and Pitfalls, Crisis Group Asia Report No 271, 22 July 2015, International Crisis Group, Brussels, Belgium, www.crisisgroup.org/~/media/files/asia/south-asia/pakistan/271-revisiting-counter- terrorism-Strategies-in-Pakistan-opportunities-and-Pitfalls.pdf.accessed on April 26, 2016. 21Civil Military Relations,“Parliament’s Quest for Oversight on Defence in Pakistan” Pakistan Institute of Lagislative Development and Transperancy, January 2012, www.pildat.org; DG ISI Lieutenent General Shuja Pasha presented a detailed breifing to the Parlimetarians in a joint session of the Parliament on 8 October, 2008 regarding the measures taken by the Armed Forces to counter terrorism and restore law and order in the country. His brief included video clippings of brutalities committed by the terrorists and covered different military operations including Rah-e-Haq in Swat, Sirat-e-Mustaqeem in Khyber Agency, Eagle Swoop in Dera Adam Khail and Sher Dil in Bajour Agency. However, the government could not fetch unanimous support of 62

disunity amongst the nation, as the opposition parties had not been in favour of a full-fledged cleansing of militants, despite the desire and capacity of the armed forces to nip the evil in the bud.22 The last reconciliation efforts of the government received a big blow when the militants attacked Karachi Airport and made hostage to certain staff in 2014; which was followed by attack on Naval Dockyard. The collective patience of the nation was transformed into a decisive battle Zarb-e-Azb launched on June 14, 2014 against terrorism, militancy and hostilities in the country, so as to search, cordon and eliminate militancy and its launching pads any time any where in the country.23 Today, most of the major cities of Pakistan are experiencing the repercussions of terrorist and suicide attacks, target killings, bomb blasts and the like anti-state activities, yet Zarb-e-Azb is likely to yield the desired dividend, it is expected.24 Since the declaration of WOT, Pakistan deployed its troops including Frontier Constabulary and paramilitary forces to search, neutralize and even eliminate Taliban and Al-Qaeda fugitives, acting against the sovereignty of Pakistan.25 Federally Administered Tribal Arreas (FATA) remained the most violent region in this regard, where violence and suicide attacks on schools, hospitals, military installations and low intensity conflicts with the armed forces and Law Enforcement Agencies (LEAs) are reported from all the seven agencies including Bajur, Mohamand, Khyber, Orakzi, Kurram, South Waziristan and North Waziristan. In December 2005, the militants punished with death some two dozen alleged criminals under their own established judicial system and left their bodies hanging for days in

the Parliamentarians to lauch a sweeping operation in North and south Waziristan Agencies. See Sajjad Malik, “Joint Palimentary session today: Military to brief MPs on War against Terror”, October 8, 2008, Pakistan Defence,www.defence.pk/threads/joint-palimentary-session-today-military-to-brief-mps-on-war-against- terror.14983/. After the terrorist attack on Mehran Base Karachi, the Defense Committee of the Cabinet, headed by Prime Minister Yusuf Raza Gilani reimposed confidence on the Armed Forces to couter terrorism and protect national security; and asked them to eliminate terrorists and their sancturies. See “Military asked to wipe put terror and sancturies”, May 25, 2011, www.dawn.com/news/631691/military-asked-to-wipe-put-terror-and- sancturies. See also "PM postpones high level meeting to discuss security issues." The News Tribe, April 1, 2014, http://www.thenewstribe.com/2014/04/01/pm-postpones-high-level-meeting-to-discuss-security-issues/, accessed on April 16, 2016. 22 Ibid. 23 Ibid. 24A recent report published by Centre for Research and Security Studies (CRSS) reveales encouraging results. See “40 pc reduction in violence-related casualities in second quarter of 2016”, DAWN Islamabad, July 28 2016, p. 19 25See for exemple: Afreen Baig, “War on Terrorism in Pakistan’s National Interest”, June 23, 2008, http://presidentmusharraf.wordpress.com/2008/06/23/war-on-terrorism-in-paksitan-national-interest/, accessed on April 11, 2016. 63

the centre of Mirenshan area of North Waziristan. That was the beginning of the Taliban like movement in Pakistan which swept to other parts of the KP and struck terror in the heart of the general public.26 This movement culminated in secret meeting of 40 militant commanders who unified themselves and established TTP in December 2007,27 with intent to pool the resources and manpower to fight in self defence against the armed forces of Pakistan and extend help to Afghan Taliban fighting against American and International Security Assistance Forces (ISAF) troops in Afghanistan.28 Until December 2015, a total of 59,697 fatalities relating to terrorism had been reported during 2003-2015. This includes 20,877 civilians, 6,370 security personnel and 32,447 terrorists or insurgents, breakdown of which is appended below:- Table 2.1 - FATALITIES IN TERRORISTS VIOLENCE IN PAKISTAN (2003-2015) YEAR CIVILIANS SECURITY TOTAL TERRORISTS/ TOTAL FORCES OF INSURGENTS PERSONNEL 2+3

1 2 3 4 5 6 2003 140 24 164 25 189 2004 435 184 619 244 863 2005 430 81 511 137 648 2006 608 325 933 538 1,471 2007 1,522 597 2,119 1,479 3,598 2008 2,155 654 2,809 3,906 6,715 2009 2,324 991 3,315 8,389 11,704 2010 1,796 469 2,265 5,170 7,435 2011 2,738 765 3,503 2,800 6,303 2012 3,007 732 3,739 2,472 6,211 2013 3,001 676 3,677 1,702 5,379 2014 1,781 533 2,314 3,182 5,496 2015 940 339 1,279 2,403 3,682 Total 20,877 6,370 27,247 32,447 59,697”

Source: South Asian Terrorism Portal Database at www.satp.org

26Zahid Hussain, “Are We Loosing the War Against Militancy”, NEWSLINE, 15 July 2008; available at www.newslinemagazine.com/2008/07/are-we-loosing-the-war-against-militancy/, accessed on 29 August 2011. 27KiranFirdous, “Militency in Pakistan”, Institute of Stretegic Studies, Islamabad, 2014, www.issi.org.pk/wp- content/uploads/2014/06/1299825170_97247252.pdf;Pakistan : Countering Militency in FATA, Crisis Group Asia Report No 178, 21 October 2009, International Crisis Group, Brussels, Belgium, www.crisisgroup.org/~/media/files/asia/south-asia/pakistan/178_pakistan__countering_militency_in_fata.pdf, accessed on April 26, 2016.“Profile: Tehrik-i-Taliban”, http://www.historycommons.org/entity.jsp?entity=tehreek _e_taliban1, accessed on 29 August 2011. 28“Tehreek-e-Taliban Pakistan (TTP)-Incedents and Statements Involving TTP”, South Asian Terrorism Portal Database at www.satp.org/satporg/countries/pakistan/terroristoutfits/ttp.htm, accessed on March 24, 2016. 64

2.2 Resurgence of Militancy The WOT proved a watershed in the international relations, which changed the global scenario, and redefined world and regional politics. Pakistan was forced to jump into the war, combat terrorism and hunt the remnants of the Taliban and Al-Qaeda network as a frontline state partner in the American policy agenda.29 While declaring unconditional support to America, President Musharraf announced measures against the hard-line religious outfits in the country.30 Religious seminaries were directed to reform and widen the scope of their curricula by including the subjects of Science, Computer and English etc. and not to admit foreign students unless permission certificates from their respective countries are produced and they are properly registered with interior ministry of Pakistan. On 14 August 2001, he ordered a nation-wide crackdown on the sectarian militants and subsequently imposed ban on their organizations, in the wake of a series of attacks on Shia mosques, churches and attack on Indian Parliament on 13 December 2001. The banned outfits included “Jaish-i- Mohammad”, “Siph-i-Sahaba”, “Lashker-i-Jhangvi”,“Lashkre-i-Taiba”,“Tehrik-i-Nifaz-i- Shariat-i-Mohammadi”(TNSM), Tehrik-i-Fiqa-e-Jafriya”,“Tehrik-i-Taliban Pakistan (TTP), “Sipha-i-Mohammad”and Harkatul-Mujahedin.31 Since these groups were outlawed and their survival became doubtful, they went under ground, based their camps in Afghanistan, while their dissidents formed their own groups and engaged themselves in countless anti- state and terrorist activities.32 The government made utmost efforts to curb religious extremism but the pattern of disturbing events continued unabated. Lal Masjid operation in July 2007 is said to be the culminating point of such efforts; however, it had the adverse

29Afreen Baig, “War on Terrorism in Pakistan’s National Interest”, June 23, 2008, http://presidentmusharraf.wordpress.com/2008/06/23/war-on-terrorism-in-paksitan-national-interest/; David Sykes, "Is the War on Terror Transforming Contemporary Politics?" (2009), E-International Relations Students, Lancaster University, 22 June. Rana Eijaz Ahmad, “War Against Terrorism or War for Terrorism” (2007), The Journal of Political Studies, Vol. 11. 30 Hassan Abbas, Pakistan’s Drift into Extremism: Allah, the Army and America’s War on Terror, (New Delhi: Pentagon Press), 2005, p. 222. Dr. Razia Mussarat, “US War on Terrorism and its Impact on South Asia”, pp. 9- 13, available at pu.edu.pk/images/journal/pols/currentissue-pdf/RAZIA-pdf , accessed on 24 March 2016.

31Ibid. Dr. Noman Omar Sattar, “War against Terrorism: Implications for Pakistan”, National Development and Security, Rawalpindi, Vol XII, No.4 (Summer 2004) as cited by Dr Razia Musarrat op. cit. 32Farhan Zahid, “The Successes and Failures of Pakistan’s Operation Zarb-e-Azb,” Terrorism Monitor, Volume 13, Issue 14, The James Town Foundation, Washington DC, July 10, 2015, http://www.jamestown.org/programs/tm/single/?tx_ttnews[tt_news]=44144&cHash=d4281630e5ad104ab60bd5 f3bbf9f#.VwNz10cTXIU; “FATA Assessment-2015”, South Asia Terrorism Portal, 2015, http://www.satp.org/ satporgtp/countries/pakistan/Waziristan/index.html; Pakistan urges Afghanistan to prevent terrorists from ‘escaping’, Dawn.com, November 2015, http://www.dawn.com/news/1219877, all accessed on April 5, 2016. 65

effect on the security of Pakistan.33 It sparked fresh waive of suicide bombings, reprisal killings and helped reorganize the destabilized militant organizations.

2.3 Drone Attacks

The drone attacks34 are considered as the direct challenge to the sovereignty and integrity of Pakistan, which has left the government with no justification to the people of Pakistan and their representatives.35 The resolution of the Parliament against the drone strikes and other American activities in Pakistan did not bear fruit as the same were termed as beating about the bushes. On the other hand, America continued launching drone attacks in Pakistan, rather with move intensity; thus widening the gulf between the government and people of Pakistan, urging the government to disassociate itself from the partnership in the WOT. It may be recalled that the number of drone attacks in FATA increased gradually and considerably from one in 2004 to 128 in 2010 and 26 in 2011 under Obama Administration, which intends to bring the WOT to an end and withdraw American Forces from Afghanistan. Of the total number of drone strikes during 2004-07, 100 were targeted in North Waziristan; 62 against Haqqani Network, 33 against Abu Khashael Iraqi and 32 against Mehsud. With the increase in the number of drone strikes, the number of casualties also increased from 100 deaths during 2004-07 to 1327 in 2010 and 197 in 2011, including 960 innocent civilian

33102 people were killed in Red Mosque incedent. “2001-2014: A Timeline of Terror Attacks in Pakistan”, December 16, 2014, http://www.haaretz.com.world-news/1.632169, accessed on 30 November 2015. 34 There had been studies and theories which suggest that the drones attacks had destroyed terrorists networks and reduced the quantum of terrorism. Simultaniosly there are theories which argue that the drone attacks had multiplied the instances of terrorism. For a comparative study, see Patrick B. Johnston and Anoop K. Sarbahi, “ The Impact of U.S. Drones Strikes on Terrorism in Pakistan”, Research and Development Corporation,USA, April 21, 2015, www.patrickjohnston.info/materials/drones.pdf accessed on May 5, 2016. America killed Taliban leader Mullah Mansour in the drone attack on 22 May 2016 and threatened the Taliban leadership that they will meet the same treatment, if they did not come to the diologue. However, response by the Taliban leadership and their sympathizers was retributive. Post-Mullah Mansour period observed many instances of fighting and attacks by the Taliban in Afghanistan, which were acknowledged in the 2nd quarter 2016 report of the US Special Inspector General for Afghanistan Reconstruction (SIGAR) submitted to US Congress. See Ismail Khan, “New Taliban leader rejects peace talks” and Kalbe Ali,” Violence will surge under Haibatullah, warns Samiul Haq”, “Carnage in Kabul”, Anwar Iqbal, “Mansour’s death has exacerbated fighting in Afghanistan: US report” DAWN Islamabad, May 26 and 31, July 25 and 30, 2016, pp.1, 3,5, 8 and 16. 35Andrea Germanos, “UN: US Drone Strikes Violate Pakistan’s Sovereignty”, commondreams.org, March 15, 2013, available at http://www.commondreams.org/news/2013/03/15/un-us-drone-strikes-violate-pakistans- sovrereignty, accessed on 5 April 2016. “US drone attack voilation of Pakistan sovereignty: says PM” and “Army chief says drone attacks threats to country’s integrity”, DAWN Islamabad, May 23 and June 2, 2016, pp.1 and 5. 66

causalities during 2004-11,36 which caused severe reaction and uproar by the religio-political parties and even civil society. Notwithstanding the innocent civilian causalities, exact and authenticated figure of which may not be available, a number of Taliban and militant leaders including Mullah Mansour, Taliban Amir and successor of Mullah Omar37, , Head of TTP, Ibn-e-Amin, Al-Qaeda linked Taliban militant from Swat, Mustafa Abu Al-Yazid, Nek Mohammed, TTP Chief, Abu Laith Al Libi, Tahir Yuldashev, Head of Islamic Movement of Uzbekistan were killed during the said drone attacks.38 Killing of the said militant leaders ignited the sentiments of their followers who in revengeful pursuit intensified armed attacks on the Armed Forces of Pakistan, suicide bombing in the peaceful cities and settled areas, resulting into deaths and severe injuries to innocent people. The masses lost confidence on the law-enforcing agencies, who despite having employed huge amount of human and material resources, suffered heavy causalities and failed to control the menace of terrorism and militancy.

2.4 Economic and Political Debacles

It is generally believed, and true as well, that in the aftermath of 9/11 attacks, the sanctions imposed on Pakistan after the nuclear test were lifted, military regime of President was Musharraf legitimized and international support influxed in Pakistan.39 However, the WOT ultimately had adverse effects on the fragile economy of Pakistan and its security. The government of Pakistan was left with no option except to concentrate and spend on

36See FATA Research Centre site at http://www.frc.com.pk/linke/otherContent/6, See also South Asia Terrorism Portal at http://www.satp.org/satporgtp/countries/pakistan/, which has different statistics, bothaccessed on August 29, 2011. See also Zakia Rubab Mohsin, “The Crisis of Internally displaced Persons (IDPs) in the Federally Admininstered Tribal Areas of Pakistan and their Impact on Pashtun Women”, FATA Research Centre, 2013 http://www.frc.com.pk/wp-content/uploads/2013/07/6.pdf , accessed on May 7, 2016. 37 Mullah Akhtar Mansour was assisinated in the Dalbandin district of Balochistan province of Pakistan on 22 May 2016 in the drone attack while he was travelling back from Iran into Balochistan. He was carrying fake in the name of Wali Muhammad. America claimed that he had been killed as he was working against American and Afghan interests and was a hurdle in the way to the multi-national diologue process for peace in Afghanistan; and that America would “continue striking terrorists posing threats to American Forces”. Pakistan condemned his death in the drone attack being against the sovereignty of Pakistan and conducted on misconceived notion that he was against diologue; instead he was in favour of diologue and his death would breed more violence. See Ismail Khan, “Air strike targeting Mansour occurred in Balochistan” and “US drone attack voilation of Pakistan sovereignty: says PM”; Anwar Iqbal, “Mansour’s death message for Taliban, says Obama”; Iftikhar Khan, “Mansour not against talks, says Nisar” and “US reapects Pakistan’s sovereignty: official”, DAWN Islamabad, May 23, 24 and 25, 2016, pp. 1,3 and 5. 38FATA Research Centre site and South Asia Terrorism Portal op. cit. See also Center for Research & Security Studies. 2016. "Annual Security Report 2015," available at http://crss.pk/story/annual-security-report-2015-2/, accessed on April 23, 2016. 39“Ten Years On”, DAWN Islamabad, September 11, 2011, pp. 9, 12. 67

operations against militants, terrorists and insurgents, mobilization and maintenance of its troops in the tribal areas, maintenance and rehabilitation of Internally Displaced Persons (IDPs) or, as are also known,Temperoralily Displaced Persons (TDPs),40 and for ‘doing more’. As a result thereto, the unproductive and security related expenditures increased manifold; foreign debts multiplied from 30 billion in 2001 to 60 billion dollars in 201141 with decreasing debt servicing capacity; corruption, misappropriation and criminal breach of trust noticed at the highest level; agricultural, manufacturing and industrial sectors experienced great set back; level of poverty and unemployment increased; direct foreign investment considerably decreased with flight of capital; abnormal depreciation and inflation; and poor stock-exchange performance was experienced. The dismal performance of Pakistan economy with 2% growth rate per annum during 2008-10 haunted the economists and financial advisors. The annual cost of WOT to Pakistan was estimated at 2.669 billion dollars in 2001- 02 with the hope that major war will conclude by December 2011; however, it reached to 17.83 billion dollars in 2010-11; thus the total loss to the economy of Pakistan due to the said war so far may be calculated at 67.926 billion dollars.42 Against the cost of Pakistan’s sufferings so for, Pakistan received only 17-18 billion dollars on account of military and economic assistance including 8.2 billion Coalition Support Fund (to be returned to NATO/Allied Forces). Response of the Friends of Democratic Pakistan also remained lukewarm who neither realized their pledges for assistance to Pakistan nor preferential treatment to Pakistani goods had been accorded by America and European Union. The magnitude of the effect of WOT on the Pakistan economy may be calculated from the fact that 4 billion dollars were spent on security related and civil defence operations; while one billion dollars had been spent due to displacement and rehabilitation of 3 million IDPs since 2007. Obama Administration has also proposed to the Congress 3.1 billion dollar assistance for Pakistan on account of economic and security assistance, and diplomatic operations in Pakistan for 2012, commencing from 1 October, 2011. However, the mode of its transfer and

40Ibid. Imtiaz Gul, "The NAP, IDPs and Refugees." Center for Research and Security Studies, December 29, 2015, available at http://crss.pk/story/the-nap-idps-and-refugees/, accessed April 23, 2016. 41“Ten Years On” op. cit. 42 An e.mail interview with Prime Minister op. cit., p.12. There are other sources also which provide information/data on the cost and economic effects of the WOT, but with varying figures. For Example: Pakistan Economic Survey (2010-2011); available at Ministry of Finance Portal at www.finance.gov.pk/suvey_stml; Ministry of Foreign Affairs Joint Ministerial Group and IPP, the calculated cost of which has been attached as Appendix B to this desertation. 68

execution has observed many ups and downs. Congressional Research Service (CRS) report, America declined to reimburse 300 million dollars to Pakistan on account of military expenditures due to its alleged refusal to act against Haqqani network. Security and economic assistance (1.3 and 1.2 billion dollars) to Pakistan in 2011 under the Coalition Support Fund also declined to 73 and 53 percent (343 and 561 million dollars) respectively in 2015.43 It may nevertheless be highlighted that the cost of terrorism paid by Pakistan is much more than the Coalition Support Fund, which was only “one-fifth of Pakistan’s total military expenditures” during 2002-2014.44

2.5 Humanitarian and Internally Displaced Persons (IDPs) Issues The humanitarian and IDPs issues fetched much attenction in the WOT, in terms of its escladating cost and human sufferings, especially to the old people, children and women. Male population of FATA and PATA generally remain away from homes for earning their livelihood and pursuit of higher education in cities. The WOT also provided a job opportunity to the unemployed youth in terms of their engagement first in jihad against the American Forces in Afghanisatn and then terrorism against Pakistan. They were heavily paid in cash or kind for causing casualities and fatalities to the Armed Forces and LEAs as well as opponents of the TTP or other militant groups. The youth was lured in for terrorist attacks against the Armed Forces and LEAs operating in the tribal and settled areas of Pakistan. In the given scenario, the most affected population was children, women and the old malemembrs of the family/community, who suffered the maximum hardships of displacement. While the exact figures of IDPs/TDPs since ensuring the WOT in September 2011 remain uncertain due to double registration in the TDPs camps or lack of interest in registration due to adjustment with relative, their hardships and sufferings shall also remain incalculable.The rate of infants mortalities, deaths during pregnancies, due to malnutrition and inadequate medical care and poor hyegene living condition, increased manifold.

43The report was prepared for the American Congress, cited by American News service THEWIRE. See Abheet Singh Sethi, “Strains in US-Pakistan Ties Mirrored by 73% Decline in Security Aid”, THE WIRE, August 2, 2016, http://thewire.in/60417/will-diminishing-us-military-bring-pakistan-closer-to-china/, accessed on August 28, 2016 and “US security assistance to Pakistan declines by 73 pc: report”, DAWN Islamabad, August 23, 2016, p.5. This was fall out of the trust deficit between the two countries after assassination of Osama bin Laden in Abbottabad and American air strike on Salala check post which killed 24 Pakistani troops. The amount of 300 million dollars was compensation form Coalition Support Fund, “for permission to use its seaports, airfields and deploying more than 100,000 troops along the Afghan border”. Pakistan was paid about 14 billion dollars on this account since 2002. 44 Ibid. 69

Missing, kidnapping and abduction of women and children for begging, sexual abuses, rapes had also been reported.45 Maintenance and administration of the IDPs and their rehabilitation also costed the government enormously.46 The lauch of Zarb-i-Azb operation on 14 June 2014 also resulted in huge displacement of the prople of North Wazristan Agency. According to FATA Disaster Management Authority (FMDA), 6,98,436 persons of 53,819 families had been registered at Bannu, Saidgi and other registration points in Peshawar unitl 5 July 2014.47 Each family had been paid a subsistence allowenace of Rs 12,000/- each after verification of particulars from National Database and Registration Authority (NADRA). Those who had not got themselves registered with NADRA remained handicapped to rerceive subsistence allowance or had to wait till the registration formalities were completed.48 According to the “State of Human Rights in 2015”,49 more than two million people had been dispalced since the launch of military campaign to hunt the terrorists from their dens in North-Waziristan tribal areas. Although the report did not relate and restricted these figures to the WOT, yet highlighted that during 2015, 939 women were sexually assaulted, 143 became acid victims,

45Umar Farooq, "The displaced in Bannu: IDP survey reveals domestic violence, early marriages." April 5, 216, available at http://tribune.com.pk/story/1078735/the-displaced-in-bannu-idp-survey-reveals-domestic-violence- early-marriages/; United Nations Office for the Coordination of Humanitarian Affairs, (OCHA), "FATA Return Weekly Snapshot." April 18, 2016, available at https://www.humanitarianresponse.info/en/system/files/ documents/files/ocha_pakistan_weekly_return_ snapshot_18_apr_2016.pdf; Mehran Ali Khan and Irfan u Din, "Impact of War on Terror on Maternal Mortality in FATA." FATA Research Centre, November 2, 2014, available at http://frc.com.pk/wp-content/uploads/2014/11/2.pdf, all accessed April 23, 2016. Zakia Rubab Mohsin, “The Crisis of Internally displaced Persons (IDPs) in the Federally Admininstered Tribal Areas of Pakistan and their Impact on Pashtun Women”, FATA Research Centre, July 2013,http://www.frc.com.pk/wp- content/uploads/2013/07/6.pdf, accessed on May 7, 2016. 46 Ibid. 47“IDPs registration: 13000 rejected for duplication”, DAWN Islamabad, July 6, 2014, p. 7. According to the FDMA statistics as on 3rd day of May 2016, the number of NADRA verified TDPs was 447544; whereas the number of verified and unregistered returnees was 302055 and 104714 respectively. Hence a total of 145489 TDPs were still in the camps and awaiting return back to their homes. For updated statistics of TDPs, see www.fdma.gov.pk/tdps-statistics-as-of-22-03-2016, accessed on May 7, 2016. 48 Ibid. 49It is the annual report issued by HRCP on the 1st of April 2016 and is available at www.hrcp-web.org/ hrcpweb/hrcp-annual-report-2015/, accessed on May 7, 2016. Also see Umar Farooq, "The displaced in Bannu: IDP survey reveals domestic violence, early marriages." April 5, 216, available at http://tribune.com.pk/story/1078735/ the-displaced-in-bannu-idp-survey-reveals-domestic-violence-early- marriages/; United Nations Office for the Coordination of Humanitarian Affairs, (OCHA), "FATA Return Weekly Snapshot." April 18, 2016, available at https://www.humanitarianresponse.info/en/system/files/documents/files/ocha_pakistan_weekly_return_snapshot _ 18 _apr_2016.pdf; Mehran Ali Khan and Irfan u Din, "Impact of War on Terror on Maternal Mortality in FATA." FATA Research Centre, November 2, 2014, available at http://frc.com.pk/wp- content/uploads/2014/11/2.pdf, all accessed April 23, 2016. ZakiaRubabMohsin, “The Crisis of Internally displaced Persons (IDPs) in the Federally Admininstered Tribal Areas of Pakistan and their Impact on Pashtun Women”, FATA Research Centre, July 2013,http://www.frc.com.pk/wp-content/uploads/2013/07/6.pdf, accessed on May 7, 2016. 70

while 833 were kidnapped. Numerous other instances of sexual abuses against women and children, on the authority of Ministry of Human Rights and Aurat Foundation were also documented. 777 women committed or tried to commit suicide, 1096 females and 170 minors were also reportedly subjected to honour crimes.50 This state of criminality agianst women and children is directly or indirectly induced by the WOT. When the police is committed in fight against terror, it is natural that its routine duties of mainteancne of law and order in the society shall be affected. Resultantly, the weak and fragile members of the society i.e. the women and children, who are dependent on male members of the society, become more prone and victim to the advances of the criminals of the society.51

2.6 Allegations of Human Rights Violations

Pakistan remained under constant threat of UN intervention and accusations for violations of Human Rights and International Humanitarian Law (IHL), after Pakistan initiated strategic and specific steps to naturalize the indiscriminate terrorist and anti-state activities of militants throughout the country.52 Magnitude of the Armed Forces operations against the militants and their reaction or resistance was such, that some factions of the international communityand the human rights groups termed the situation in Pakistan as ‘non-international’ armed conflict, so as to invite UN for ‘peace-keeping’ / ‘peace support’ and ‘peace enforcement’ operations53 to enforce its obligations under IHL.54 Even Barrister

50 Ibid 51An exclusive interview dated May 7, 2016, with Miss Zarina Iqbal, Advocate , Lahore. 52In this regard, even annual reports of the Human Rights Commission of Pakistan (HRCP) may be cited as a reference. “State of Human Rights in 2015”, the 2015 report of the Commission is available at www.hrcp- web.org/hrcpweb/hrcp-annual-report-2015/ , accessed on May 7, 2016. The report, however, highlighted that after the APS attack on 16 December 2014 and launch of National Action Plan, the incidents of terrorist and suicide attacksin 2015 had reduced in comparion with 2014. In contrast to 7622 terrorism related deaths in 2014, 4612 people suffered fatalities in 2015. On the contrary, the 2015 report highlighted that 2108 people were subjected to extra-judicial killings in police encounters in 2015; while 65 people were killed or died in prisons. See also “Suicide attacks, sectarian killings dropped in 2015, says HRCP”, DAWN Islamabad, April 2, 2016, p. 3. However, the beginning of 2016 experienced number of suicide attacks claiming colossal human loss. For example: on 13 January 2016, 15 people including 13 policemen and an FC soldier deployed at a polio vaccination Centre in were killed. On 20th day of January 2016, at least 18 students and Bacha Khan University staff were murdered. Similarly, a suicidal attack in Shubqadar Family Courts premises on 7th of March 2016 claimed 16 lives including six women. The attack in the Gulshan-e-Iqbal Park Lahore on 27 March 2016 also claimed 72 lives and injuries to 300 innocent people, mostly children and women. The details of these and other incidents have been given in the subsequent pages of this chapter. 53 The term ‘peace operation’ is used for conflict prevention and peace-making, peace keeping and peace building operations authorized under Chapter VI of the UN charter, based on the consent of the belligerent parties; whereas ‘peace enforcement’ operations are authorized under Chapter VII of the UN Charter, wherein forcible military intervention by one or more states into a third country in the garb/with clear intent to maintain 71

Zafarullah described the situation in Karachi during 2011so devastating that it might cause interference by the UN Forces. He also described calling the Armed Forces in aid of civ power to control law and order situation in Karachi as violative of Articles 55 and 56 of the UN Charter and resolutions of the UN General Assembly.55 However, the Chief Justice did not agree to this contention. Dr Niaz A.Shah has also been crtical of the human rights violations in Pakistan during the WOT and described them “War Crimes in the Armed Conflict in Pakistan.”56

Although the fallacy of UN intervention did not turn into reality, yet the foreign forces especially the western and NORDEFCO countries57 succeeded in de-seating Pakistan from membership of United Nations Human Rights Council (HRC) by foiling her efforts for re-election, in the name of human rights violations, enforcement of death penalty, blasphemy laws and alleged persecution of minorities and its principle stance on drones and “Islamophobia.”58 Amnesty International reports “The Hands of Cruelty-Abuses by Armed Forces and in Tribal Areas”, “Torture in 2014” and “A bullet has been chosen for you” also portray an oblique picture of human rights issues in Pakistan especially the tribal areas of Pakistan where military operations are continuing to hunt and eliminate terrorists and anti-state elements.59 The 2014 report declared Pakistan amongst the countries with

and restore peace and security, bring the violent conflict to an end in that state is authorized. See for example; the penal on United Nations Peace Operation, Report of the Penal on United Nations Peace Operation, delivered to the Security Council and General Assembly, UN Doc A/55/305, S/2000/809 (Aug 21, 2000); Katharina P. Caleman, International Organization and Peace Enforcement (Cambridge University Press, 2007), available at http://www.cambridge.org/us/academic/subjects/politics-international-relations/international- relations-and-international-organisations/international-organisations-and-peace-enforcement-politics- international-legitimacy# contentsTabAnchor, accessed on March 31, 2016. 54The Hague and Geneva Conventions as well as other customary international laws are the main sources of modern IHL; while in practice, multiple branches of IHL constitute a body of law which govern an ‘armed conflict’ as observed by the International Court of Justice in legality of the threat or use of ‘nuclear weapons’, Advisory Opinion, 1999 I.C.J. 226, 256 (Jul 8) declaring that “two branches of the law applicable in armed conflict have became so closely inter-related that they are considered to have formed one complex system”, available at https://www.icrc.org/fre/assets/files/other/droit-coutumier-article-bugnion.pdf , accessed on March 31, 2016. 55 See Watan Party v Federation of Pakistan (PLD 2011 SC 997) p.1098. 56Niaz A. Shah, “War Crimes in the Amed Conflict in Pakistan”, Studies in Conflicts and Terrorism, 33:283- 306, 2010, available at http://dx.doi.org/10.1080/1057/6100903582535 . This article is part of Niaz A. Shah, Islamic Law and the Law of Armed Confilct: the Conflict in Pakistan (London: Routledge-Cavendish, 2010). 57NORDIC Defence Cooperation (NORDEFCO) Countries include Denmark, Finland, Iceland, Norway and Sweeden. They have also formed Norwegian Defence International Centre (NORDIC). 58Baqir Sajjad Syed, “Defeat in UN body prompts introspection”, DAWN Islamabad, November 1, 2015, p.1. 59The Hands of Cruelty was published in 2012 and is available at https://www.amnesty.org/en/latest/news/2012/12/report-exposes-hands-cruelty-pakistan-s-tribal-areas/. The 72

endemic and rampant incidents of torture on human rights activists, lawyers, journalists, missing persons and people in detention cell or under interrogation. This was declared to be a case for violation of “UN Convention against Torture and Other Cruel, Inhuman and Degrading Treatment orPunishments.” Amnesty International stressedupon the need to investigate custodial deaths, incidents of torture, ill-treatment and enforced disappearances, need to maintain and update centralized register/data of all detainees and bring the perpetrators of human rights violation and abuses in the tribal areas to justice. However, it did not support the punishment of death even to such perpetrators.60 On the other hand, the Law Enforcement Agencies and the Armed Forcesdescribed the Amnesty International reportsexaggerated, out of context and based on limited data; hence cannot be termed as conclusive. They were of the opinion that the Armed Forces and the Law Enforcement Agencies were following rule of law and striving for protecting the human rights and ensuring national security. Their operations were targeted and limited so as to avoid collateral damage of innocent civilians and protect human and material assets. It is for that reason that the death toll and number of casualties of the soldiers had exceeded beyond imagination.61

2.7 Missing Persons Syndrome

There had also been allegations of enforced or involuntary disappearances of human rights activists, journalists and ordinary people by the security and law enforcement agencies.62 In certain cases, such illegal arrests and arbitrary detentions were made on the behest of American spy agencies. Their magnitude and frequency increased minified after

report was followed by a letter no TG ASA 33/2012. 016 dated 20 December 2012 of Mr John Dalhuisen, Senior Director Research of Amnesty International, to Prime Minister Raja Pervaz Ashraf, highlighting human rights violations in tribal areas and criticizing Actions (in Aid of Civil Power) Regulations 2011, for giving legal protection and impunity to Armed Forces for violation of human rights during the military operations in tribal areas. “Torture in 2014” is available at http://www.amnesty.org/en/library/asset/ACT40/004/2014/ en/96fde57f-61d9-487b-90de 7da21c6c505d/act400042014en.pdf. , accessed on March 31, 2016. 60 Ibid letter to the Prime Minister. 61 An exclusive interview dated 25 July 2015 with the condition of anonymity for security reasons, with a Survey Commander, who had been conducting and monitoring intelligence based operations in the tribal areas of FATA and PATA during 2012-2014. 62According to “State of Human Rights in 2015” issued by the Human Rights Commision of Pakistan on the 1st day of April 2016, 1390 cases of enforced disappearances were pending before the Inquiry Commission for Recovery of Missing Persons headed by Justice (Retired) Javaid qbal; while 151 cases were reported only in Balochistan during January-November 2015,available at www.hrcp-web.org/hrcpweb/hrcp-annual-report-2015/, accessed April 25, 2016. See also “Suicide attacks, sectarian killings dropped in 2015, says HRCP”, DAWN Islamabad, April 2, 2016, p. 3. 73

Pakistan started playing an active role in the WOT. Such detainees were also interviewed and interrogated by American Federal Bureau of Investigation (FBI) agents.63 Some of the enforced disappearances were committed by the Pakistani intelligence agencies under the American “ program”, under which the suspected terrorists were secretly shifted to American military bases in Pakistan or Afghanistan or other countries with history of torture or poor human rights standards. Such people were also not allegedly provided access to counsel and allowed family visitation. Their locations or whereabouts were also not shared even with the courts, when any of the aggrieved family had approached the courts for a writ of habeas corpus.64

In this regard, cases of Zain and Kashan, both Pakistani brothers of American citizenship, a British and Dutch citizen, Hayatullah Khan, a journalist who reported against American missile attack in North Waziristan on 1 December 2005 which claimed 6 lives, and Mr Khalid Khawaja, who was sympathizer of Taliban and twice abducted in 2007, became more pronounced.65 This was the time when President Musharraf was in power. Enforced and involuntary disappearances were allegedly committed for both political and security resons. Taliban sympathizers from the province of KP, Baloch insurgents and Sindhi nationalists, all were included in the missing persons but their exact figure was not known. According to Nonviolence International Southeast Asia Report for 2007, the total number of arrested Baloch was 4000, while details of others were not known.66

It may be high lighted that extraordinary renditions were authorized by President George W. Bush in September 2001. He authorized the CIA to establish “black sites” on the

63 See President Musharraf, In the Line of Fire: A Memoir, (New York: Free Press, 2006), wherein he had admitted of handing over 369 out of 689 captured Al-Qaeda manhunts to America CIA. Such people included Abu Zubeida, Shaikh Khalid and other people for whome CIA had awarded millions of dollars. See also Human Rights Watch, “Pakistan: U.S. citizens tortured, held illegally”, Human Rights News, 24 May 2005, available at http://www.hrw.org/english/docs/2005/05/24/pakist11005.htm, accessed on 22 March 2016. 64See Jane Mayer, “Outsourcing Torture: the secret history of America’s ‘extraordinary rendition program”, The New Yorker, February 14, 2005. See also Advance Unedited Version of “Report of the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms While Countering Terrorism” (A/HR/22/52) submitted to the Human Rights Council of the European Parliament in March 2013, pp. 5-7, available at http://www.hrw.org/english/docs/2005/05/24/pakist11005.htm, accessed on 22 March 2016. 65See Human Rights Watch, op.cit. 66Amreen Choudhury and Yeshua Moser-Puangsuwan, “Justice disappeared: Exploring the Links of Armed Trade, Impunity, and Political Disappearances in Asia” (Bangkok: Nonviolence International Southeast Asia, 2007), pp. 44-49, available at http://www.nonviolenceinternational.net/images/stories/Justice%20Disappeared%20Final%20 layout-s.pdf , accessed on 22 March 2016. 74

territories of Lithuania, Morocco, Poland, Romania and Thailand. It has also surfaced that at least 49 countries had allowed CIA to use their airspace or airports for rendition flights. 67 Such disappearances and extraordinary renditions offend human rights and are cognizable in terms of “International Convention for the Protection of All Persons from Enforced Disappearance2006.”68 However, despite sufficient proof, no state except Italy has ever tried any public official for the said violations. It was 4 November 2009, when the Milan Criminal Tribunal conducted absentia trial of 22 CIA officials along with Milan Station Chief, and sentenced them for extraordinary rendition. They were alleged to have abducted Hassan Mustafa Osama Nasr, a dual Egyptian-Italian national, from Milan, on 17th of February 2003, and rendered him to Cairo, where he was kept in secret detention, humiliated and tortured for 14 months.69

67See Report of the Special Rapporteur, op.cit. Extraordinary rendition refers to clandestine transfer of detainees at a different place or state, without recourse to formal extradition or expulsion, and their interrogation whilst they are in formal custody of another state. See "Globalizing Torture, CIA Secret Detention and Extraordinary Rendition”, Open Society Justice Initiative, 5 February 2013, p. 15, available at https://www.opensocietyfoundations.org/reports/globalizing-torture-cia-secret-detention-and-extraordinary- rendition ,U.S. Department of States “South Asia: Pakistan, Country Reports on Human Rights Practices 2004 and 2005” dated 28 February 2005 and 8 March 2006 respectively available at http://www.state.gov/g/drl/rls/hrrpt/2004/41743.htm and http://www.state.gov/g/drl/rls/hrrpt/2005/61710.htm. See also Amnesty International, “Pakistan: Further Information on Possible ‘Disappearance’/Fear for Safety: Hayatullah Khan (m), journalist”, Urgent Action, ASA/33/009/2006, of 4 April 2006, available at http://web.amnesty.org/library/Index/ENGASA330092006?open&of=ENG-344. UN Committee Against Torture had censured American officials for enforced disappearances, torture and other inhumane treatments and the impunity enjoyed by them. The committee recommended through probe and action against the defaulters. See Committee Against Torture, “Concluding Observations on United States”, UN doc. CAT/C/USA/CO/2, dated 25 July 2006, Para 25, https://books.google.com.pk/books?id=o8UtCgAAQBAJ&pg=PA142&dq=%22concluding+observations+on+u nited+states%27+25+july+2006&hl=en&sa=X&ved=0ahUKEwj- 6qL5wOjLAhXIJpQKHdYhBz8Q6AEIHzAB#v=one page&q=%22concluding%20observations%20on%20united%20states'%2025%20july%202006&f=false, all accessed on 22 March 2016. 68International Convention for the Protection of All Persons from Enforced Disappearanceof December 20, 2006, available at https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV- 16&chapter=4&lang=en, accessed March 31, 2016. 69Tribunale di Milano, proc. num. 3553/2007, Sentenza n. 12428, 4 November 2009, / Tribunal of Milan, . case n. 3553/2007, Judgment n. 12428, 4 November 2009, as cited in Advance Unedited Version of “Report of the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms While Countering Terrorism” (A/HR/22/52) submitted to the Human Rights Council of the European Parliament in March 2013, p. 7, available at http://www.hrw.org/english/docs/2005/05/24/pakist11005.htm, accessed on 22 March 2016. 75

It may also be worthwhile to refer to the report of the UN Working Group on Enforced Disappearances, who visited Pakistan during 10-20 September 2012.70 The Working Group,highlighted different instances of enforced and involuntary disappearances and stressed upon the government of Pakistan to ratify “International Convention for the Protection of All Persons from Enforced Disappearances 2006.”The Group also emphasized the government to endorse the Rome Statute, which established “International Criminal Court” and recognize enforced disappearances as a crime against humanity. The Group also recommended that persons deprived of liberty be placed on officially recognized places of detention, jurisdiction of superior judiciary be extended to FATA and officials, even the military personnel, involved in enforced disappearances be suspended and tried by ordinary courts. The existing preventive detention laws be amended to protect human rights violations and an independent crime of enforced disappearances be incorporated in the penal laws. The Working Group also seeks follow up reports from Pakistan.

Some of the contents of the report are encouraging in the sense that it had highlighted the issue of missing persons but the report is deficient of the causes of enforced disappearancesandseriousness of the allegations leveled against the persons deprived of liberty. Similarly, some of the recommendations of the Working Group are ambiguous andarebased on insufficient information or knowledge of laws applicable in Pakistan. It may be appreciated that despite the fact that Pakistan has not ratified the 2006 convention, sufficient provisions already exist in its laws which provide protection against enforced disappearances and actions against perpetrators of the said crimes. Reference in this regard may be made to Articles 9 and 10 of the Constitution, which guarantees right to personal liberty and provides safeguards as to arbitrary arrest and detention, respectively. PPC Sections 339-348, which stipulate and describe punishments for the offences of wrongful confinement and wrongful restraint and Sections 359-369, which specifically provide for different kinds of kidnappings and abudctions including kidnapping with intent to secretly and wrongfully confine any person, may also be cited as substantive references. The Supreme Court of Pakistan has also upheld this legal position while protecting rights of the

70The report along with its recommendations was posted on the Office of the High Commissioner for Human Rights, (OHCHR) website on the 1st day of March 2013 and is available at http://www.ohchr.org/documents/hrbodies/hrcouncil/regularsession/session22/a-hrc-22-52_en.pdf, accessed on March 31, 2016. 76

missing persons.71 PAA 1952 and the Police Order 2002 also contain sufficient provisions to monitor, investigate, suspend and punish their officials for any violation of human rights or commission of the offences of enforced disappearances or any breach of law.72 In view thereof, ratification of the 2006 International Convention for Protection of All Persons from Enforced Disappearance” may be desirable but not sine qua non. On the other hand, promulgation of new laws and trial of Army personnel by ordinary courts for any of the alleged violations is not workable. Such proposal, if implemented, shall create ambiguity and duplicity in law.It shall also undermine sanctity of the special laws andraise the issues of jurisdiction of criminal and special courts, which are already shrouded with such issues. Nevertheless enforced disappearances shall remain a challenge and human rights issue, which is required to be resolved by strictly adhearing to the law and compensating the aggrieved families, being a civil liability of the government.73

2.8 Application of International Humanitarian Law International Humanitarian Law (IHL), also known as the Law of Armed Conflict or the Law of War, is a blend of certain rules, which strive to limit and minimize the effects and sufferings of the armed conflicts, purely on humanitarian grounds. Its main subjects are persons not engaged in hostilities and armed conflicts; while it aims at “restricting the means and methods of warfare.”74 The history of IHL is deep rooted, and has co-existed with the human atrocities, brutalities and war crimes. Humanitarian laws have been an important facet of divine laws and subject of religious teachings. Though the basics of the humanitarian law remained the same, it has developed with the development of civilization. Today it exists in the form of the four Geneva Conventions of 1949, two Additional Protocols of 1977 and Additional Protocol III of 2005.75 The four Geneva Conventions of 12 August 1949 respectively are: Geneva Convention for the Amelioration of the Condition of the Wounded

71See judgment of the Supreme Court in Yaseen Shah/HR Case No 29388-K of 2013 (PLD 2014 SC 305). See also Dr. Tariq Hassan, “Supreme Court of Pakistan: The Cases of Missing Persons” Criterion, Vol 4, No. 3 of 15 February, 2011, available at http://ssrn.com/abstract=1861044, accessed on 22 March 2016. 72Provisions of PAA Section 51 may be attracted against military officials for “Irregular Confinement”. Otherwise also the above mentioned provisions of the PPC are applicable to even military and police officials who may be treid and pnnished for such offences, if proved guilty. 73Dr. Tariq Hassan, op.cit. 74ICRC, “What is International Humanitarian Law”, http://www.icrc.org/web/eng/siteeng.nsf/html/ humanitarian-law-factsheet.law, accessed on April 10, 2016. 75ICRC, “Treaties and customary international humanitarian law”, http://www.icrc.org/Web/Eng/ siteeng.nsf/html/section_ihl_treaties_and_customary_law, accessed on 10 April 2016. 77

and Sick in Armed Forces in the Field, Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Geneva Convention Relative to the Treatment of Prisoners of War and Geneva Convention Relative to the Protection of Civilian Persons in Time of War. The two Additional Protocols of 8 June 1977 are: Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims of International Armed Conflicts (Protocol I) and Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II).The third protocol of 8 December 2005 has been described as Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the Adoption of an Additional Distinctive Emblem (Protocol III). 76 According to the IHL, certain persons and properties are protected. Such persons include those who are neither engaged in war nor in any espionage activity. Generally the civilians not participating in war, sick, wounded, prisoners of war, shipwrecked, persons deprived of liberty, civilians and armed forces personnel rendering exclusively medical and religious services, persons committed in relief operations and humanitarian organizations etc are included in the protected persons categories.77 These people are required to be treated humanely, their life is protected and no action detrimental to their life and liberty may be taken except in accordance with the relevant provisions of the Geneva Conventions and Additional Protocols. International Committee of the Red Cross (ICRC) is the custodian and protector of the IHL and had raised an “Advisory Service on International Humanitarian Law” in 1996 to help the nations in implementation of IHL. However, the ultimate

76For detail commentary see Commentaries on I, II, III and IV Geneva Conventions (Geneva: ICRC, 1958).For details of Additional Protocols, seeYves Sandoz. Christophe Swinarshi and Bruno Zimmermann, Commentary on the Additional Protocol of 8 June 1977 to the Geneva Conventions of 12 August 1949, (Geneva: ICRC, 1987). For full text of Protocol III, seehttp://www.icrc.org/ihl/INTRO/615, accessed on 11 April 2016. Additional Protocol III suggests a “third protocol emblem” i.e. Red crystal as a distinctive emblem, which may be applied by the people of the Armed Forces rendering religious and medical services during the war or hostilities, in addition to their own emblem, so as to enhance their security and protection. See Articles 1 and 2 of the Protocol III.Pakistan has ratified all the four conventions and is under an obligation to abide by these conventions and act accordingly. However, Pakistan has only signed the the two Protocols on 12 December 1997 but has not yet ratifiedthem; whereas it has neither signed nor ratified the Additional Protocol III of 2005. See ICRC, “Treaties, state position and commentries” at http://www.icrc.org, accessed on April 12 2016. 77Ibid. ICRC, “Protected Persons and Property and International Humanitarian Law”, http://www.icrc.org/Web/Eng/siteeng.nsf/htmlall/section_ihl_protected_persons_and_property, accessed on 10 April 2016. 78

responsibility of IHL is domain of the nations who have ratified these conventions and protocols.78 It may not be out of context to appreciate that the application of IHL, which alsoregulates the conduct of hostilities amongst the warring factions, is triggered by “armed conflict”, which has been defined as “the resort to armed force between states and protracted armed violence between government authorities and organized armed groups or between such groups in a state.”79 In this realm, formal declaration of any ‘armed conflict’ is not a necessity for application of IHL; hence if the WOT as launched by Pakistan Armed Forces against the militants was categorized as such ‘armed conflict’, the provision of IHL would have ipso facto governed the conduct of hostilities in Pakistan, had Pakistan signed and ratified Additional Protocol II. Such categorization and application of IHL would have compromised sovereignty, respect, identity and security of Pakistan, a desire of her foes. Although IHL traditionally had been concerned with international armed conflicts only, yet it also covers non-international armed conflicts,80 provided they meet “minimum level of intensity.” This has been recognized in Additional Protocol II, whichspecificallyaddresses the issues relating to the protection of victims of non-international armed conflicts. However, non-international disturbances, riots and isolated or sporadic acts of violence and hostilities generally do not attract IHL.81 Non-international armed conflicts are primarily regulated by common Article 3 to the 1949 Geneva Conventions, which, inter alia, ordains prohibition against torture and the principles of proportionality, necessity and distinction in the use of force. Additional Protocol II to the Geneva Conventions also applies to the said conflicts,

78National Implementation of International Humanitarian law (IHL) and the ICRC Advisory Service, http://www.icrc.org/Web/Eng/siteeng.nsf/htmlall/advisory_service_ihl, accessed on 10 April 2016. 79 Decision of the International Criminal Tribunal for the former Yugoslavia (I.C.T. Y) on the DefenceMotian on interlocutory appeal on jurisdiction in the Prosecutor v Tadic, IT-94-1-T, 70 (October 2, 1995), available at http://www.icty.org/x/cases/tadic/acdec/en/51002.htm , accessed 31 March, 2016. 80 IHL draws a distinction between international and non-international armed conflicts, such as American invasion and its conflict with Afghanistan after 9/11, the conflict between Taliban and respectively. However, when a foreign power intervenes in a non-international conflict, it becomes ‘internationalized’ such as American intervention in Afghanistan. See also “Nicargua v United States”,1986 I.C.J. 14, 114 (Feb 20), military and paramilitary activities by America in and against Nicaragua were assailed; and it was ruled that conflict between the contras and the Government of Nicaragua forces was of non- international character, whereas actions of the United States in and against Nicaragua fell within the domain of international conflicts. 81“How is the term “Armed Conflict” defined in International Humanitarian Law?”, International Committee of the Red Cross (ICRC) Opinion Paper, March 2008, available at http://www.icrc.org/eng/assets/files/other/opinion-paper-armed-conflict.pdf , accessed on May 7, 2016. 79

provided the concerned state had ratified the same,82 and the international customary law, which derive its strength from “the established customs, principles of humanity and dictates of public conscience.”83

Since IHL is based on the objective test of the level of violence and not the moral status of the parties, there were lobbies working against the integrity and security of Pakistan, who intended to intrude in Pakistan, by making a justification of the highest “level of violence.” Accordingly, a strategy to “do more” and criticize alleged “violence of human rights” was adopted, which though worked, but did not succeed due to the national integrity and robust stance of the Armed Forces of Pakistan to maintain their sovereignty. For this thousands of innocent civilians and brave soldiers had to lay their lives, while minimizing the collateral damage.84

Notwithstanding the fact that violations of IHL are adjudicated in national courts, 85 the intent was to humiliate, destabilize and demoralize the Pakistani leadership and nation; and describe the operations against militants as genocide of a national, ethnical, racial or religious group. Since the operations against the militants were not a case of genocide, rather a legitimate attempt to restore peace and continuation of militants’ hunt who had established

82 See “Additional Protocol II to the Geneva Conventions of 12 August 1949, relating to the Protection of Victims of Non-International Armed Conflicts” of June 8, 1977 op. cit. 83 It has been a considered opinion of scholars that most of Additional Protocol II is customary in nature, as it prohibits attacks on civilians; emphasizes for respect and protection of medical and religious personnel, medical units, transports and medical duties; prohibits starvation and attacks on objects indispensable to the survival of the civilian population; guarantees respect for fundamental rights of civilians, non-combatants; protects the wounded, sick, shipwrecked, the dead persons deprived of their liberty; prohibits forced movement of civilians; and ensures protection of women and children. See for example: Jean-Maria Henckaerts and Louise Doswald- Beck, Customary International Humanitarian Law, Volume 1: Rules,(Cambridge University Press/ICRC, 2009), p.3, available at http://www.icrc.org/eng/assets/files/other/customary-international-humanitarian-law-i- icrc-eng.pdf. See also Jean-Maria Henckaerts, “Study on Customary International Humanitarian Law: A Contribution to the Understanding and Respect for the Rule of Law in Armed Conflict”, International Review of Red Cross, Volume 87, Number 857 March 2005, pp.176-198, available at http://www.icrc.org/eng/assets/files/other/irrc_857_Henckaerts.pdf, both accessed on May 7, 2016. 84An exclusive interview dated 25 August 2015 with Brigadier Muhammad Amin (Retired), ex Judge Advocate General Pakistan Army. 85 Such provisions are also included generally in the disciplinary codes and Status of Forces Agreements between UN and the host countries wherein peace-keeping forces are deployed. In the context of sexual violations by UN peacekeeping staff, it is specifically provided that the troops contributing countries should take the lead in punishing the abuse. See also Simons Chesterman, Thomas M. Franck & David M. Malone, Law and Practice of the United Nations, (Oxford University Press, 2007), www.elibrary.kiu.ac.ug:8080/jspui/bitstream/1/147/1/The%20Law%20 and%20Practice%20of%20United%20Nations.pdf and “Accountability of International Organizations, Final Report of the Berlin Conference 2004” International Law Association, pp.164-196, www.ila- hq.org/download.cfm/docid/ 6B708C25-4D6D-42E2-8385DADA752815E8, accessed on May 7, 2016. 80

sanctuaries and hide outs in Pakistan and areas adjoining Pak-Afghan border, the collective wisdom and support of international community prevailed; while the anti-Pakistan forces failed in their nefarious designs.86

It has been argued that torture as an act is not only an offense as per United Nation’s Convention on Torture and other international practices, but Islam as a religion also prohibits such practices and teaches to respect personal dignity and values. Constitution of Pakistan embodies the teachings of Islam and all such practices against the Human Rights are strictly prohibited while the Constitution enshrines fundamental rights to every citizen of Pakistan in all circumstances. Armed Forces and intelligence agencies of Pakistan, being well conversant with these laws, do follow the same strictly within the boundaries of law. Incidents of attack on journalists and lawyers as mentioned in the report are based on mere hearsay, while no substantial evidence has been provided to support their stance. It may be highlighted that Armed Forces are operating in the troubled areas of FATA/PATA under the Constitutional obligations, as authorized by the federal government, while a comprehensive legal framework has been provided for these operations. Any violation by any individual member of Armed Forces is strictly dealt with, in accordance with the laws. Cumulative effect of the Amnesty International reports is that theypresent a gruesome picture of rule of law in Pakistan. Such reports do not only tarnish the image of Pakistan on the world canvas, but also document unsubstantiated evidence against the state, Armed Forces and intelligence agencies for violation of Human Rights andUnited Nation Conventions, which may be used at alater stage, for a larger case against thestate and the Armed Forces.87

2.9 Effects of WOT on Criminal Justice System in Pakistan

The WOT deteriorated law and order, promoted extremism, militancy and terrorism, created rift in the state organs especially the executive and judiciary, compromised national security and led the country in the state of emergency declared by General Pervez Musharraf on the 3rd day of November 2007, which was followed by the Lawyers Movement for restoration of Chief Justice Iftikhar Muhammad Chaudhry, who along with other judges of the superior judiciary was ousted as a consequence of the said emergency. In order to portray

86Brigadier Muhammad Amin, op. cit. 87Ibid. 81

the scenario at that time, it is important to refer to the letter written by Prime Minister to the President on the same day before he, in the capacity of Chief of the Army Staff, issued the proclamation of emergency.88 The Prime Minister depicted the prevalent national security situation and dangers confronted by Pakistanin the following substance:-

“2. The Government has made serious and sincere efforts to revive the economy, maintain law and order and to curb extremism and terrorism in the country. In the last few months, however, militancy, extremism and terrorist activities have been in ascendance, particularly in some districts of NWFP where the writ of the government is being eroded and non-State militants are apparently gaining control. There have been a number of bomb blasts and suicide attacks in other parts of the country including the recent suicide attack on a political rally in Karachi on 18th October, 2007. During the last ten months, 1322 precious lives have been lost and 3183 persons have been injured. Details of executive measures taken against extremist elements to contain militancy and terrorist activities have, on a number of occasions, been called into question by some members of the judiciary making effective action impossible.” 89 “6. A large number of hardcore militants, extremists, terrorists and suicide bombers, who were arrested and being investigated have been released. The persons so released are reported to be involved in heinous terrorist activities, resulting in loss of human life and property. Militants across the country have, thus, been encouraged while law enforcement agencies subdued.” 90

President/Chief of Army Staff General Pervez Musharraf, in his address to the nation also highlighted that extremism and terrorism had reached to the climax, in view of continuous suicidal attacks and waive of terrorism throughout the country. He referred to the bomb blasts on the convoy/rally of Mohtarma Benazir Bhutto on 18th day of October 2007 which claimed deaths of 143 and injuries to 350 people, followed by suicide attacks in Rawalpindi, Sargodha and the incident of ‘Red Mosque’ in Islamabad to highlight that the impact of terrorism had reached to the settled areas of the country; whereas the officials of LEAs and police were being humiliated or petitions of the apprehended terrorists being

88For contents of the proclamation of emergency, challenges to the national security, details of the law and order situation prevalent in the country, address of the President to the nation, the ensuing legal battle culminating to the upholding of the emergency and removal of the judges of the superior judiciary, see Tikka Iqbal Muhammad Khan v General Pervez Musharraf (PLD 2008 SC 178). The judgment was authored by Justice Abdul Hameed Dogar, who was appointed as the Chief Justice after the ouster of Mr Iftikhar Muhammad Chaudhry. 89Tikka Iqbal case op. cit., pp. 204-205. For detail of criminal cases registered during April-October 2007, see ibid pp. 206-233. 90Ibid 82

accepted, even in suomoto cases, which may not be invoked for redress of individual grievances and had demoralized them.91 The Supreme Court concluded that “we had found that in the recent past the whole of Pakistan was afflicted with extremism, terrorism and suicide attacks using bombs hand grenades, missiles, mines, including similar attacks on the armed forces and law enforcing agencies, which reached climax on 18th of October 2007 when in similar attack on a public rally, at least 150 people were killed and more than 500 seriously injured. The extremists/terrorists resorted to abduction of foreigners, which badly impaired the image of Pakistan in the comity of nations, and adversely affected its economic growth. The situation in Islamabad and various places in NWFP, Balochistan and tribal areas was analogous to ‘a state within the state’. Unfortunately, no effort by the government succeeded in curbing extremism, terrorism and suicide attacks.”92

The report presented by Chief Secretary Sindh before the Supreme Court in Watan Party/Suo Moto case also depicted the reasons for deteriorating law and order situation in Karachi in the following words:-

“After 9/11, the phenomenon of international terrorism emerged in which bomb blasts and beheading of foreigners attracted world attention. The terrorist groups targeted US diplomats and carried out suicide attack at US consulate thrice. The French engineers were killed outside the Sheraton Hotel, even Muharram processions and shrines were not spared, besides suicide attack at CID building.” 93 Briefing to the Chief Justice also pointed out that, after the military operations in North and insurgency in Balochistan, certain criminals and anti-state elements with smuggled arms and ammunitions, in disguise of internal displacement had shifted to Karachi, who were being supported by hostile intelligence agencies. The Supreme Court was also presented a list of high profile cases in Karachi during 2004-2007 as under:-

91Ibid, pp. 233-234, 237, 244, 267. 92Ibid, p. 295. 93 The case was heard in August-September 2011. It is cited as “Watan Party v Federation of Pakistan” available at PLD 2011 SC 997, pp.1031-1032. Most of the observations are linked with the deteriorated law and order situation in Karachi during 2011, unless specified otherwise. 83

Table 2.2 - LIST OF HIGH PROFILE CASES (2004-2007)

S.No Police Station Incidents No of No of deceased injured 1. Mithadar 2004 Bomb blast in Haidery Masjid 23 98 situated inside the compound of Sindh Madrasatul Islam 2. Brigade 2004 Bomb blast in Imambargah Ali 22 29 Raza 3. Boat Basin 2004 Corps Commander motor cade 10 13 firing incident at Clifton Bridge 4. Site 2004 Bomb blast at Binoria restaurant 10 44 5. Soldier Bazar Bomb Blast at Nishtar Park 55 125 2006 6. Various PSs 2007 12 May 2007, arrival of Chief 40 127 Justice in Karachi 7. Bahadurabad2007 Bomb Blast in the welcome 119 353 procession of Ms Benazir Bhutto at Karsaz, Main Shahrah-e- Faisal 8. Preedy 2009 IED explosion in Ashoora 17 39 procession near Light House traffic signal, M.A. Jinnah road, Karachi 9. Saddar 2010 IED explosion parking area in 16 19 front of emergency JPMC Karachi 10. Ferozabad 2010 IED explosion ramp Shahrah-e- 11 24 Quaideen Nursery Bridge

Source: Watan Party Case (PLD 2011 SC 997) pp. 1031-1032

The Advocate General Sindh also shared with the apex court that during 2008, 2009, 2010 and 2011 (till 31 August), 1142, 1083, 1484 and 1311 persons had been killed in Karachi.”94 The Supreme Court also observed that violence in Karachi was no more “ethnic” but a “turf war” amongst various interested groups and political parties in a bid for “tit for tat” and to maintain their hold. The apex court observed that the “violence in Karachi represents unimaginable brutalities, bloodshed, kidnapping and throwing away dead bodies and torsos in bags” with a toll of 306 lives in one month and 1310 lives during 2011. Detection of torture cells, bhatta collection, land grabbing, drug mafia, destruction of

94Ibid, pp. 1034 and 1103. 84

moveable and immovable property also suggest that government had failed to protect fundamental rights to life and liberty of the people; thus “failure to protect the lives and property of the citizens may cause unprecedented disaster.”95

2.10 Major Terrorism Incidents during 2007-2015

The aftermath of 9/11 is filled with countless instances of lawlessness, militancy and terrorism, which challenged the criminal justice system of the country. Some of the incidents are narrated below:-

i. Red Mosque Incident. In the stand off during 3-11 July 2007, at least 102 people were killed in Red Mosque Incident, which kept the whole nation and international community in Islamabad in a state of shock, trauma and mourning for months.96 ii. Attack on ’s Camp in Rawalpindi. On 17 July 2007, Peoples Party camp in Rawalpindi established to express solidarity with ousted Chief Justice of Pakistan was attacked which claimed lives of 17 individuals and injuries to 50 including Dr. Israr Shah, a leader of the party who was incapacitated of both legs.97 iii. Assassination Attempt on Mohtarma Benazir Bhutto’s Rally in Karachi. On 18 October 2007, in the face of death threats from terrorists and alleged hostility of President Musharraf, when Mrs Benazir Bhutto returned Karachi and was being driven to the Mausoleum of Quaid-e-Azam, her vehicle and rally suffered a suicide attacked, which resulted into deaths of over 100 supporters and innocent citizens.98

95Ibid, pp.1129 and 1132. 96Pakistani Forces Storm Mosque, Killing More Than 40 Militants.",www.haaretz.com, July 10, 2007, available at http://www.haaretz.com/news/pakistani-forces-storm-mosque-killing-more-than-40-militants-1.225220 and “2001-2014: A Timeline of Terror Attacks in Pakistan”, December 16, 2014, http://www.haaretz.com.world- news/ 1.632169, For detail analysis of the incedent, see Dr. Noor ul Haq and Miss Farhat Akram, Lal Masjid Crisis, IPRI Factfile, October 4, 2007, http://pakistansocietyofvictimology.org/userfiles/IPRI,%20Factfile,%20Lal%20Masjid %20operation%20in%20pakistan.pdf , accessed on April 23, 2016. 97“Violence, terrorism againstcountrys courts judges”,http://www.thenews.com.pk/Todays-News-2-236189- Violence-terrorism-against-countrys-courts-judges, accessed on November 24, 2015. 98“Law and Order Situation of Pakistan”, December 27, 2010http://laosop.blogspot.com/2010/12/benazir- bhutto-profile.html, accessed on November 24, 2015. 85

iv. Assassination of Mohtarma Benazir Bhutto. On 27 December 2007, Mrs Bhutto was attacked and killed in a suicidal attack on her vehicle, when she left Liaqat Bagh Rawalpindi after addressing a public gathering.99 v. Attack on Naval War College Lahore. On 4 March 2008, 2 suicidal bombers attacked Naval War College Lahore and caused death of 4 Naval employees and injured 21 others.100 vi. Attack on Federal Investigation Agency (FIA) Headquarters Lahore. On 11 March 2008, an explosive-filled pick up with suicide bombers was blown up inside the FIA offices on Temple Road Lahore. This caused death of 26 people including 5 school children and FIA officials.101 vii. Islamabad Marriott Hotel Bombing. On 20 September 2008, a truck laden with explosives was exploded in front of Marriott Hotel, which resulted into death of 54 people including 5 foreigners and injuries to 266.102 viii. Attack on Danish Embassy Islamabad. On 3 June 2008, in a car bomb explosion outside the Danish Embassy, 8 people were killed and more than 25 injured.103 ix. Attack on Sri Lankan Cricket Team. On 3 March 2009, the bus carrying Sri Lankan Cricket Team near Gaddafi Stadium/Liberty market area Lahore was attacked. 6 policemen and a driver were killed while the players wounded.104 x. Attack on Manawan Police Academy.On 30 March 2009, about 12 terrorists, some of them dressed in police uniforms and armed with automatic weapons, hand grenades and rockets,attacked Manawan Police AcademyLahore. A total of

99Ibid. “Benazir Bhutto assassinated”, December 27, 2007, http://edition.cnn.com/2007/WORLD/ asiapcf/12/27/pakistan.sharif/index.html, accessed on November 24, 2015. 100“First suicide attack on naval institution: Two bombers strike war college in Lahore”, March 5, 2008,http://www.dawn.com/news/292299/first-suicide-attack-on-naval-institution-two-bombers-strike-war- college-in-lahore, accessed on December 7, 2015. 101“Bombers sow terror - target FIA: Lahore takes second hit in one week, five children among 26 dead”, March 12, 2008,http://www.dawn.com/news/293359/bombers-sow-terror-target-fia-lahore-takes-second-hit-in-one- week-five-children-away-26-dead, accessed on May 9, 2016. 102“Islamabad Marriott Hotel Bombing”,http://en.wikipedia.org/wiki/islamabad_marriott_hotel_bombing, accessed on November 29, 2015. 103“Blast rocks Danish embassy in high-security area: 8 Killed”, June 2, 2008, http://www.dawn.com/news/ 305791/blast-rocks-danish-embassy-in-high-security-area-8-killed, accessed on 7 December 2015. 104“2001-2014: A Timeline of Terror Attacks in Pakistan”, December 16, 2014,http://www.haaretz.com.world- news/1.632169, accessed on November 30, 2015. 86

8 persons including 5 trainees, 2 instructors and a passer-by were killed in the attack.105 xi. Attack on Civil Lines Police Headquarters Lahore. On 28 May 2009, 5 terrorists sitting in an explosive laden van broke the barrier near the ISI office Lahore and started indiscriminate firing on the police officials of the Civil Lines Headquarters near the Rescue 15 office. The terrorists also exploded the van. Resultantly, 24 people including 14 police officials and 10 civilians were killed while 328 injured besides causing severe damage to the adjacent ISI offices and a petrol pump.106 xii. GHQ Attack. On 10 Oct 2009, the terrorists including a military deserter, wearing military uniforms, attacked GHQ and kept the officers and soldiers’ hostage for hours; they killed 16 persons including 2 officers and injured 21 persons.107 xiii. Attack on National Bank Rawalpindi. On 3 November 2009, in a suicide attack outside a National Bank branch in the vicinity of GHQ, at least 35 persons, including women and children, were killed and 63 injured.108 xiv. Attack on Parade Lane Mosque. On 4 December 2009, the terrorists attacked on the mosque in Parade Lane Army residential colony during Friday prayers, which claimed lives of 40 officers, soldiers and children and caused severe injuries to 86 innocent people.109 xv. Moon Market Attack. On 7 December 2009, at least 48 people were killed during two bomb blasts in Moon Market Lahore.110 xvi. Attack on ISI offices, . On 9 December 2009, a pickup carrying explosives was blown up near ISI office Multan and killed 12 persons while injured 47.111

105 “2009 Lahore police academy attacks”, https://en.wikipedia.org/wiki/2009_Lahore_police_academy_attacks, accessed on November 24, 2015. 106 http://www.geo.tv/important_events/2009/lahoreblast/pages/english_news.asp, accessed on November 24, 2015. 107“One year earlier - The day TTP attacked GHQ -10October 2009”,www.defence.pk/threads/one-year-earlier- the-day-ttp-attacked-ghq-10-october-2009.76025, accessed on November 24, 2015. 108“Punjab Timeline 2009”, http://www.satp.org/satporgtpcountries/Pakistan/punjab/timeline/2009. htm, accessed on May 16, 2016. 109 Shakeel Anjum, “40 killed in Pindi mosque suicide attack”, THE NEWS, December 5, 2009, http://e.thenews.com.pk/tp_details.asp?id=25910, accessed on 24 November 2015. 110 “2001-2014: A Timeline of Terror Attacks in Pakistan”, December 16, 2014,http://www.haaretz.com.world- news/1.632169, accessed on November 30, 2015. See also Sabir Shah, “30 major terror attacks in Lahore since 2004”, www.thenews.com/print/24698-30-major-terror-attacks-in-lahore-since-2004, THE NEWS, February 18, 2015, accessed on May 16, 2016. 87

xvii. Data Darbar Attack. On 2 July 2010, in a suicide attack, on Data Darbar Shrine Lahore, at least 47 were killed, besides injuring several.112 xviii. Attack on Volleyball Ground. On 1st day of January 2010, an explosive laden truck was exploded during a volleyball match in Lakki Marwat, which caused death of at least 97 innocent people.113 xix. Attack on Darra Adam Khel Mosque. On 5 December 2010, at least 67 worshipers were killed in a suicide attack during Friday prayers in Darra Adam Khel Mosque.114 xx. Mehran Naval Base Attack. On 23May 2011, 15 to 20 terrorists inretaliation of Osama bin Laden’s killing attacked Mehran Naval base which resultedin deaths of 15security personnel of Navy and causing colossal loss to two Naval surveillance aircrafts and equipments.115 xxi. Attack on Zaereen Bus in Quetta. On 29 June 2012, a bus carrying 60 to 65 Shia Zaereen to Taftan from Quetta was attacked by the terrorists, who killed 26 people and severely injured 30.116 xxii. Attack on Military Camp on Chanab River. On 10 July 2012, militants attacked a camp established by the military to recover dead bodies of the officers and soldiers drowned at the bank of river Chanab in a heli crash. Resultantly, 7 officers/soldiers and apoliceman were killed.117

111“12 die in attack on ISI offices in Multan-47 hurt in attack; Taliban claim responsibility”,THE NEWS, December 9, 2009, http://www.thenews.com.pk/TodaysPrintDetail.aspx?ID=25975&Cat=13&dt=12/8/2009, accessed on November 24, 2015. See also Institute of Peace and Conflict Studies (IPCS), an Indian based think tank, web site at http://www.ipcs.org/news/pakistan/12-die-in-attack-on-isi-offices-in-multan-47-6232.html, which reports and analyses terrorism related incedents in South Asia, accessed on May 16, 2016. 112“2001-2014: A Timeline of Terror Attacks in Pakistan”, December 16, 2014,http://www.haaretz.com.world- news/ 1.632169 , accessed on November 30, 2015. 113Ibid. 114 Ibid. 115JahanzaibHaque, “Navy says PNS base under control after attack”, THE EXPRESS TRIBUNE, May 23 2011,www.tribune.com.pk/story/173888/blast-on-dalmia-road, accessed on November 24, 2015. 116“26 killed as pilgrims’ bus attacked in Quetta”, September 20, 2011, http://www.pakistantoday.com.pk/2011/09/20/page/5/, accessed on May 16, 2016. 117Waseem Ashraf Butt, “Army camp near Wazirabad attacked; seven soldiers killed”, DAWN, July 10, 2012, http://www.dawn.com/news/733013/army-camp-near-wazirabad-attacked-seven-soldiers-killed, accessed on 24 November 2015. 88

xxiii. Attack on Wagah Boarder. On 2 November 2014, at least 60 people out of those gathered to witness flag hoisting ceremony on Wagah Boarder crossing were killed in a suicidal attack.118 xxiv. Attack on Foreign Mountaineers at Nangaparbat. On 23 June 2013, 9 foreign mountaineers and a local guide were killed on the base camp of Nangaparbat mountain, by the terrorists.119 xxv. Attack on Peshawar Church. On 22 September 2013, a suicidal attack on Church in Peshawar claimed lives of at least 85 people of Christian community.120 xxvi. Attack in Qissa Khawani Bazar Peshawar. On 29 September 2013, at least 37 innocent persons including children and women were killed and 80 injured in a bomb blast near Khan Raziq police station in Qissa Khawani bazar.121 xxvii. Attack on Khushal Khan Khattak Express. On 16 February 2014, terrorists allegedly linked with Balochistan Liberation Army targeted Khushal Khan Khattak Express with a remote controlled bomb blast in the vicinity of Tangwani area of Kashmore. Resultantly, 4 bogies of the train overturned while 8 persons died and 50 received injuries.122 xxviii. Quaid-e-Azam International Airport Attack. On 9 June 2014, ten terrorists, in security forces uniform and equipped with automatic weapons, attacked Quaid-e- AzamInternational Airport Karachi and caused deaths of 24 individuals including ASF staff, during hours of seize.123 xxix. Attack on Quaid-e-Azam Residency Ziarat. On 15 June 2014, the miscreants attacked and destroyed the historical Quaid-e-Azam residency in Ziarat with the hand grenades. Destruction of the residency, where Quaid-e-Azam had spent his

118“2001-2014: A Timeline of Terror Attacks in Pakistan”, December 16, 2014,http://www.haaretz.com.world- news/ 1.632169 , accessed on November 30, 2015. 119Zahir Shah Sherazi, “Gunmen kill nine foreign tourists and their guide in Nanga Parbat”, DAWN, July 24, 2013,http://www.dawn.com/news/1020142, accessed on November 24, 2015. 120Zahir Shah Sherazi, “Special sevices offered for victims”, DAWN, September 21, 2014, http://www.dawn.com/news/1133398, accessed on November 24, 2015. 121“37 Killed, 80 Injured in Peshawar QissaKhawani Bazzaar”, Pakistan News Express,http://pakistannewsexpress.com/story/37-killed-80-injured-in-peshawar-qissa-khawani-bazaar/, accessed on November 24, 2015. 122“Seven killed as blast hits Khushhal express in Jacobabad”, DAWN, Feburary 16, 2014, http://www.dawn.com/news/1087431, accessed on 24 November 2015. 123“TTP Claims attack on Karachi airport”, DAWN, June 9, 2014, www.dawn.com/news/1111397, accessed on November 24, 2015. Also see“2001-2014: A Timeline of Terror Attacks in Pakistan”, December 16, 2014, http://www.haaretz.com.world-news/1.632169 , accessed on November 30, 2015. 89

last days not only mourned the entire nation but also demonstrated cynic approach of the militants.124 xxx. Planning Attack on Prime Minister near Raiwind. On 17 July 2014, the Police and in LEAs raided a house in the suburbs of Raiwind and thwarted the plan to assassinate Prime Minister Nawaz Sharif. Two security forces personnel died in the encounter with militants, while explosive materials and detonating bombs were also recovered from the house.125 xxxi. Assassination of Molana Dr Khalid Mehmood Sumroo. On 29 November 2014, in a target killing event, Dr Khalid Sumroo, a Senator and regional chief of Jamiat-e-Ulma-e-Islamwas shot dead, when he was leaving the mosque in after offering Fajr prayers.126 xxxii. Army Public School Attack. On 16 December 2014, the terrorists who were being commanded and instructed from Afghanistan, attacked APS Peshawar and killed 145 and injured 113 innocent children and school staff. Subsequently the death toll reached 151 with almost equal number of injured.127 xxxiii. Shikarpur Imambargah Attack. While the nation had not recovered from the shock of 16 December catastrophe, another explosion took place on 30th January 2015, whereby an Imambargah near Laki Gate, Shikarpur district of Sindh was attacked, minutes before the Friday prayers, which claimed lives of atleast 53 and injuries to a hundred.128

124Syed Ali Shah, “Bomb attack destroys Quaid’s residency in Ziarat”, DAWN, June 15, 2013,http://www.dawn.com/news/1018372, accessed on November 24,2015. 125“Terrorists wanted to attack PM residence in Raiwind- Punjab Law Minister”, The Nation, July 17,2014, www.nation.com.pk/nationAL/17-jul-2014/terrorists-wanted-to-attack-pm-residence-in-raiwind-punjab-law- minister See also “Plot to attack Prime Minister’s House in Raiwind unearthed”, 17 July 2014, available at video link tune.pk/video/4232382/plot-to-attack-prime-minister-house-in-raiwind-unearthed-17-july-2014-, accessed on May 16, 2016. 126“JUI-F Sindh secretary general shot dead in Sukkur”, DAWN, November 29, 2014, http://www.dawn.com/news/1147694, accessed on November 24, 2015. 127Ismail Khan, “Taliban massacre 131 schoolchildren: Principal among 141 dead in attack on Army Public School, Peshawar” DAWN, December 17, 2014, www.dawn.com/news/1151361 accessed on May 16, 2016. 128 “Sectarian outrage in Shikarpur; 53 dead”, DAWN Islamabad, January 31, 2015, pp. 1, 5. 90

xxxiv. Sabeen Mehmood Murder. On 25 April 2015, Sabeen Mehmood, a human rights activist and director of The Second Floor (T2F), was shot dead by the terrorists linked with Safoora Goth incident.129 xxxv. Safoora Goth Carnage. On 13 May 2015, a bus carrying people from Ismaili community was attacked near Safoora Goth, Karachi. The assailants armed with weapons killed 45 persons (including 27 males and 18 females) and injured 8.130 xxxvi. Badbher Air Base Attack. On 18 September 2015, the base was attacked by 11- 13 terrorists, who killed 29 and injured 28 airmen and staff, while offering Fajar prayers and performing normal duties.Subsequently two injured also died, which increased the number of dead to 31.131 xxxvii. Attacks on other Imambargahs. Despite taking preventive and security measures for Muharram processions, the terrorists manage to sneak and break security arrangements and caused suicide attacks on an Imambargah and Muharram procession in the beginning of Muharram, 1437.The first blast was caused in a local bus carrying passengers to Sariab mills areas of Quetta on 19th day of October 2015. Although this terrorist attack was not sectarian specific but killed 10 and injured 22 people.132 The second suicide attack which took place in Bagh, district Bolan of Balochistan, on 22 October 2015, caused death of 11 and injuries to 12, when they were offering Maghrib prayers.133 The third suicide attack took place on 23 October 2015 at Lashari Muhallah of Jacobabad tehsil of Sakkur, when the suicide bomber exploded himself in the Muharram procession which had concluded peacefully. The explosion claimed 22 lives and injuries to more than 40 innocent mourners, mostly children.134 xxxviii. Attack on NADRA Office Mardan. On 29 December 2015, a suicide bomber exploded himself at the National Database and Registration Authority (NADRA)

129“Director T2F Sabeen Mahmud Shot dead in Karachi”, DAWN, April 25, 2015, http://www.dawn.com/news/1177956, accessed on 24 November 2015. 130“45 killed in attack on Ismaili community bus in Karachi” THE NEWS” May 13, 2015,www.thenews.com.pk/article-184601-45-killed-in-attack-on-Ismaili-community-bus-in-karachi, accessed on November 24, 2015. 131Mateen Haider, “Army captian among 29 killed in TTP-claimed attack on PAF camp in Peshawar”, DAWN, September 18, 2015, www.dawn.com/news/1207710 , accessed on May 16, 2016. 132Saleem Shahid, “Terror attack shakes Quetta”, DAWN Islamabad, October 20, 2015, p.1. 133SaleemShahid, “Suicide attack on Imambargah claims 11 lives”, DAWN Islamabad, October 23, 2015, p.1. 134 “Suicide attack on Muharram procession claims 22 lives”, DAWN Islamabad, October 24, 2015, pp.1, 5. 91

office Mardan and caused death of 26 and injuries to 56 people.The office was targeted on the plea that NADRA was playing an important role in defeating the WOT, claimed spokesperson of the TTP splinter group, who claimed the responsibility.135 xxxix. Attack on Polio Security Team in Quetta. A suicide bomber wearing a suicide jacket, on 13 January 2016, blew himself near vehicle of the security forces personnel deployed at a health centre, committed in polio vaccination campaign. 13 policemen, an FC soldier and a driver died as a result of the suicide attack.136 xl. Bacha Khan University Charsadda Massacre. At about 0830 hours on 20th day of January 2016, four militants scaled boundary wall of the university and started indiscriminate firing on students. As a consequent of the attack, at least 14 students, a faculty member, a driver and 2 security guards were killed while 11 wounded. Most of the deaths were caused in the dormitory block of the students. All the assailants were killed in the operation launched by the military and security forces. Like the APS attack, responsibility for this carnage was also claimed by Khalifa Omar Mansoor, head of a splinter group of TTP, who was operating from the sanctuary in Naziyan district of Afghanistan. This was a replica of APS Peshawar attack and presumably a backlash of the Pathankot Air Base attack by 5 militants on 2 January 2016, attack on Indian Consulate in Mazar-i-Sharif city of Afghanistan which were alleged by India as linked with Jaish-e-Muhammad of Mr. Masood Azhar and ISI. The role of Afghanistan’s National Directorate of Security (NDS) and Indian Intelligence Agencies in a tit- for-tat doctrine could not be ruled out as not only Pakistan Consulate in Jalalabad was attacked by a suicide bomber on 13 January 2016 but also the terrorists’ attacks had multiplied in Balochistan and KP provinces during 1st three weeks of January 2016.137

135 Muhammad Jamal Hoti, “26 die as suicide bomber hit Nadra office in Mardan”, DAWN Islamabad, December 30, 2015, pp.1, 8. 136Saleem Shahid, “15 die as suicide bomber strikes polio security team”, DAWN, Islamabad, January 14, 2016, pp. 1 and 5. 137 “Pakistani consulate attacked in Jalalabad”, DAWN, Islamabad, January 14, 2016, pp. 1 and 3. Manzoor Ali and Faiz Muhammad, “Militants storm university, massacre 20”, Ismail Khan, “New year unleashes fresh waive of violence” and “Intelligence gathered to identify terrorists”,DAWN Islamabad, January 21, 2016, pp.1 and 92

xli. Shabqadar Courts Attack. On the 7th day of March 2016, a suicide bomber exploded himself in the Family/Sub-District Courts of Shabqadar, a town in the Charsadda district of KP. The explosion killed 16 people including two police officials and six women litigants and injured at least 20 persons in the court premises.138 xlii. Gulshan-i-Iqbal Park Lahore Shambles. In the Sunday evening of 27 March 2016, a suicide bomber exploded himself at the gate of Gulshan-i-Iqbal Park Lahore which was packed with the families, mostly children and women. The explosion was so powerful that it caused death to at least 70 innocent people and injuries to more than 300.139 The massacre was linked with the apprehension of a RAW agent KulbhushanYadav, an ex Indian Navy officer from Chaman, a district of Balochistan province near Iranian border, on 25 March 2016. The agent was allegedly involved in terrorism, separatist movements, subversive and anti-state activities. He had been operatiang in Pakistan directly and entered into Pakistan through Iran on a valid Iranian visa.140 The disclosure was made a day before the Iranian President visited Pakistan on 26 March 2016. The Lahore massacre mourned the country. It also demonstrated nefarious designs of the terrorists who may deceive the LEAs and carry out subsersive activities without caring for innocent and harmless children and females. xliii. Massacre of Lawyers in Quetta. On Monday, 8th day of August 2016, Advocate Bilal Anwar Kasi, President Baluchistan Association, was killed by two motorcyclists. When his dead body was taken to Civil Hospital Quetta and the lawyers gathered to mourn his death, a suicide bomber exploded himself at the

5.Also see BaqirSajjad Syed, “Islamabad shares attack evidence with Kabul” and“Khattak blames RAW”,DAWN Islamabad, January 22, 2016, pp. 1and 7. 138Faiz Muhammad Khan, “16 killed in suicide blast at courts in Shabqdar” and “Shabqadarboming”, DAWN Islamabad, Mach 8, 2016, pp. 1 and 8. 139Asif Chaudhry, “Terror strikes families in Lahore park; at least 70 killeld in suicide blast” and “US call it cowardly attack”, DAWN Islamabad, March 28, 2016, pp. 1 and 5. See also KhawajaDaud, “LahoreBlast: Toll rises to 74, over 300 injured”, Daily Pakistan, March 27, 2016, www.en.dailypakistan.com.pk/headline/60- dead-over-250-injured-in-bomb-blast-in-lahore-public-park/ , accessed on May 16, 2016. 140Baqir Sajjad Sayed, “Indian envoy summoned to receive demarche over RAW agent’s arrest”, DAWN Islamabad, March 26, 2016, pp. 1 and 5. See also “Pakistan team in India for Pathankot attack probe”, DAWN Islamabad, March 28, 2016, pp. 1 and 5. India had alleged Jaish-e-Muhammad, a proscribed organization in Pakistan, of attacking an air base in Pathankot on 2nd day of January 2016; and the team had moved on 27 March 2016 to India to collect evidence and establish nexus of the proscribed organization with the alleged attack. 93

enterence of the Hospital’s Emergency. The attack claimed lives of atleast 70 people including 55 lawyers and wounded 112 innocents.141

The above is just a gist of some occurrences which depicts the growing trends of terrorism in the settled and peaceful areas. The occurrencesof direct attacks and ambushes on the Armed Forces in the areas where they had been conducting operations against militants and terrorists,kidnappings, tortures, men slaughtering and mutilation of dead bodies of the soldiers and the locals suspected to be supporting the military campaigns against the terrorists are enormous and countless. Exact number of such instances and the causalities thereby may not be available or shared due to security and tactical reasons.

Grievances of the Prime Minister and the President as well as observations of the Supreme Court may be visualized in the backdrop of the above incidents. They were not based on any spontaneous development or deterioration of law and order but had nexus with the developments since the launch of WOT, consequences of which are still continuing. This has been reflected in the preambles of the laws introduced after 9/11 including the 21st Constitutional Amendment and the Pakistan Army (Amendment) Act 2015.Their manifest intent and objective to ensure “defence of the integrity and security of Pakistan” suggest that the danger imposed by the militants and terrorists is not only gruesome and associated with acts of physical violence but has also compromised life and liberty of the innocent people, neutralized efficacy of the LEAs, threatened the existence and sovereignty of Pakistan. The data presented by the Attorney General for Pakistan before the Supreme Court in 21st Constitutional Amendment case regarding human and economic losses suffered by the nation since 2002 suggests that 50,000 innocent citizens including 4879 soldiers (of whom about 400 are officers) lost their lives in the fight against terrorism. The civilians killed in the terrorist attacks include 400 journalists, 230 lawyers and 321 doctors. More than 1000 schools, mosques and worship places have been attacked and destroyed by the terrorists in FATA, Swat and other areas of KP and the country.142 The cost of military operations and fight against terrorists has exceeded US$ 100 billion. In nutshell “the nation has paid a huge price in terms of human life, economic losses, erosion of state writ and authority and

141“Quetta in daze after massacre”, DAWN Islamabad, August 9, 2016, pp. 1 and 5. 142“District Bar Association Rawalpindi v Federation of Pakistan” (PLD 2015 SC 401), Paras 12-13 of Justice Bandial’s Judgment. 94

continuous flight of capital and skilled human resource owing to the growing insecurity and lawlessness that has beleaguered the state.”143 The grievance of the Attorney General in the 21st Constitutional Amendment case was challenges to the national security and criminal justice in Pakistan. He dismayed that except trials of few abettors of the terrorism before the Anti-terrorism Courts in the settled areas, hardly any terrorist fighting war against the Armed Forces and law enforcement agencies had been prosecuted. And even those tried by the special or Anti-terrorism Courts were mostly acquitted. During 2008-Jun 2014, 17,596 criminal cases were tried but only 7,565 cases were decided by the Anti-terrorism Courts, out of which 77% i.e. 5,841 cases culminated into acquittal of the accused. This phenomenon represents firstly, handicap of the investigating and prosecuting agencies in collection of sufficient incriminating evidence; secondly, continued combat of the terrorists, who escape punishment, with the Armed Forces and law enforcement agencies, waging war against Pakistan and hostilities against innocent civilians; and finally, violence against the witnesses, investigators, prosecutors and judges that has weaken the fibers of the criminal justice system.144

2.11 Conclusion

Ever since the creation of Pakistan, certain amendments were introduced, amongst others, in the penal, procedural and evidence laws of the country including the Anti-terrorism law. Despite inherent weaknesses and incapacity of the investigating/prosecuting agencies, these laws to a greater extent helped in maintaining law and order in the country.145 However, the WOT not only compromised sovereignty of Pakistan but also badly affected good governance and performance of its state organs. Pakistan was pitched in a strange situation which demanded to ‘do more’ at the cost of its national security and sovereignty, for the sake of American hegemonic designs, which have no limits. Despite pursuing militants at the dictates of America, Pakistan was described as a failed state and dubbed as a country with high rate of human rights violations. Failure of the police to maintain law and order and control internal disturbance became evident; attacks on the Armed Forces acting in terms of

143Ibid. 144 Ibid. 145Ms Sitwat Waqar Bokhari, “Pakistan’s Challenges in Anti-terror Legislation”, Centre for Research & Security Studies, Islamabad, October 2013, available at http://pgil.pk/wp-content/uploads/2014/04/Pakistan- Chalanges-in-Anti-Terror-Legislation.pdf, accessed on April 5, 2016. 95

Article 245 of the Constitution, heavy casualties to their men and material resources including killings and slaughter of uniform personnel and attack on military installations became order of the day; life and liberty of the civian populace, including innocent children and women, became hostage of fear and brutality of terrorist attacks and drone strikes; military operations in FATA added to the plight of women and children and created IDPs issues; the nation experienced political, economic and socio-moral instibity; the issue of missing persons became a contentious subject between the judiciary, human rights activists, security and LEAs and cause of lawlessness.146 Resultantly the cost of pubic security, law enforcement and justice magnified, beyond the capacity of Pakistan.147 The efforts and resources which could have been utilized to redress the grievances of the dissident forces in Balochistan and bring them in the main stream politics, restore law and order, and administer free, fair and expeditious justice through the courts were exhausted for the security and integrity of the nation. Economic welfare and administration of justice are the most important dimensions of state responsibility and public policy which guarantee national security, unity and sovereignty; but collective efforts and resources were placed to “restore peace” and “writ of the government” which had been eroded in the background of WOT. Increase in the number of courts, judges, administrative staff, investigating officials, police stations, interrogation barracks, judicial lock ups, prisons and the administrative facilities added to the cost of justice, besides contributing to the legal complexities and making administration of criminal justice so complex as it was never before.

146See for example: Human Rights Commission of Pakistan, “State of Human Rights in 2015”, (Lahore: HRCP, 2016). 147“Impact of terrorism on Pakistan", Khyber Pakhtunkhwa Public Service Coordinators, available at http://www.kppsc.com.pk/pages/?Impact_of_terrorism_on_Pakistan, accessed on April 24, 2016.

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CHAPTER 3

THE CRIMINAL JUSTICE SYSTEM OF PAKISTAN - DIMENSIONS AND PARAMETERS VIS-À-VIS TERRORISM

Being a former British colony, Pakistan had inherited its criminal justice system from the Great Britain. The penal, procedural and prisons laws under the Government of India Act 1935 were adopted to form the basis of criminal justice system in Pakistan. It is otherwise agreed that “principles of modern criminal law have been assimilated fromthe ultimate ideas of Western civilization.”1 Historically and practically, criminal justice refers to “the structure, functions and decision process of those agencies that deal with the management and control of crimes and criminal offenders - the police, courts and corrections.”2 In a criminal justice system, the three main agencies of the state i.e. police, courts and prisons, operate separately but not exclusively or independently of the other. Though they operate in their own respective spheres but in a coordinated and coherent manner to prevent, control and manage the crimes and the criminals. Their ultimate object is peace, tranquility and order in the society but their subjects are crimes and the criminals - both potential and the actual. Strictly speaking, criminal law “deals with the offences committed against the safety and order of the state” and “actions that threaten the welfare of society as a whole” and it is for this reason that “in criminal cases, the government brings actions against the accused.”3 However, in recent developments, victim of the crime has also found a place as a subject in the Western and modern criminal justice systems, though victim has always been a subject and equal partner in the criminal justice system of Islam. Now it is no more the society or the state alone which is the aggrieved party but victim has also emerged and been recognized as an aggrieved and interested party.Previously crimes, though committed against an individual or group of individuals, were presumed by law to have been committed against the state, being the custodian of the “life, liberty and property” of its subjects. But now the victim has equal right to prosecute or request for discharge of a criminal case purely of personal nature or

1Jerome Hall, General Principles of Criminal Law (Indiana: The Bobbs-Marril Company Inc., 1960) p.vi. 2“US President Johnson’s Commission on Law Enforcement and Administration of Justice” defined ‘criminal justice’ as such in 1965, as referred by James A. Inciardi, Criminal Justice (Florida: Academic Press Inc., 1984) pp. 20, 118, 167. 3 James A. Inciardi ibid, p. 55. 97

limited to the victim, who may even pardon the accused or condone theoffence. 4 American justice system also places much reliance on plea-bargaining.5 But anti-terrorism laws of Pakistan do not recognize waiver or compounding of offences or plea-bargaining.

This chapter explores parameters and dimensions of the criminal justice system of Pakistan with specific reference to terrorism. In this context, role of police, criminal courts and prisons, nature and extent of crimes or offences as acts of terrorism and terrorists as criminals shall be discussed. The chapter also scrutinizes in general different theories of crimes andpunishments, application of municipal andnatural lawsas well as international legal standards in criminal and terrorism trials in Pakistan.

3.1 Broad Parameters of Criminal Justice System in Pakistan

The criminal justice system is a complex and integrated system wherein police, judiciary and prisons, conveniently described as three organs of the criminal justice system, though entrusted with distinct and separate responsibilities, are dependent on each other. They operate in a vicious cycle wherein input from one organ affects the output and performance of the other. They augment and supplement efforts of each other for a common goal of criminal justice. The courts cannot and must not apprehend or investigate a criminal or imprison him. The courts deal with only those who are apprehended by the police and challaned before them; while the prisons may receive, imprison and reform only those who are delivered and committed with them by or under orders of the courts. The success of the prison in the reformation of the convicts will be determined by their response and conduct in the society, after completion of their term of imprisonment. If they become subject of police, the success of prisons’ will remain questionable and the courts would find justification for awarding severe sentences to such criminals. Simultaneously performance of the police shall remain subject of the courts’ security and determined by their decisions.6 In this scenario, not only performance of one organ of the criminal justice affects performance of the other but

4See for example: CrPC Section 345 and PPC Sections 309, 310, 338E which deal with compounding/waiver of a number of offences including the offences of murder (qatl-i-amd), homicides and hurts etc. 5James A. Inciardi, op. cit., pp. 20, 55, 118, 167.In the American judicial system, plea bargaining refers to a plea of guilty by the defendant of an offence or charge with a lesser degree and gravity in the hope of lenient punishment. After an agreement is arrived, the prosecutor does not object to such plea of guilty. Such an approach is said to screen the offenders of heinous crimes. Similarly, though it adds to the efficiency of the police but encourages the offenders to escape commensurating sentence. See also Baryan A. Garner, Black”s Law Dictionary,( USA: Thomson, 2004) p. 1190 6 Ibid p. 55. 98

also reformation or reorganization of one organ may necessitate reformation or reorganization of the other. But the beauty of this criminal justice system is that neither the sequence of the events or process may be changed nor the duties of the organs modified to overlap or intrude upon the domain of the other. Criminal justice system is not a “hodgepodge of random actions” but a “continuum” of events.7 Thus in an efficient criminal justice system, neither anyone may be arrested unless he is reasonably suspected or accused of having committed an offence or crime nor may he be convicted without a trial by a court of competent jurisdiction; nor may he be committed in prison merely on the order or desire of the police or without order of the court. This process is universally recognized and itself determines parameters of any successful criminal justice system. But where the unity of objectives and coordination amongst the said three agencies or organs of the criminal justice system is non-existent or marred with mistrust, inefficiency, incompetence, incapacity and inefficacy, the system becomes a ‘non-system’ and not only compromises fundamental rights of the citizens but also challenge the whole of criminal justicesystem. In order to address such an eventuality, monitor, review and improve the criminal justice system, seek cooperation and maximum output from the three organs of the criminal justice system, Police Order 2002 envisages constitution of Criminal Justice Coordination Committee in every district. The committee is to be headed by the District and Session Judge with District Police Officer, Public Prosecutor, Superintendent Jail, Probation Officer, Parole Officer and Head of Investigation (as the Secretary) of the district as its members. The committee is to held its meeting at least once in the month.8 The role of prosecution and defence attorneys and lawyers, being important and independent players, in the effective and efficient criminal justice cannot be overlooked, as they may help maintain the system or contribute to its deterioration.

3.1.1 Role of Police, Law Enforcement and Prosecuting Agencies Police has the dominating role in any criminal justice system, as it is entrusted with the maintenance of law and order and prevention of crime in the society. However, when it comes to the issues of national security, organized and political crimes, other security agenciesalso play their role. For example: the role of American CIA and FBI, MI-10, RAW,

7President’s Crime Commission report as cited by James Inciardi op. cit., pp. 20 and 175. 8Articles 109-111 of the Police order, 2002. 99

ISI, MI, IB, FIA etc to investigate and prosecute hardened criminals cannot be undermined. Even within the umbrella of police, specialized branches, e.g. Counter Terrorism Department (CTD), Quick Response Force and Elite Force are established for special handling of special cases. In order to help eradicate terrorism, the government also decided to raise an anti-riot and anti-terrorism unit consisting of 2000 policemen under the Islamabad police.9 The notion of establishing special units is associated with proactive approach to prevent crimes rather than a reactive approach i.e. to respond to an offence after its commission. The proactive strategy by creating special units, quick response and anti-riot units, police commandos, elite force may help reduce the crime rate, pursue and apprehend the criminals but “create friction amongst the competing law enforcement agencies”, disparity even amongst the ranks and files of the police due to different perks and privileges and “undermine efficiency and quality of the remaining police service.”10 Simultaneously, another disadvantage with this strategy is that not only the innocent citizens are trapped but also life of the police officials is put at risk. It is for such reasons that competence, capacity and performance of police and the said agencies, which are also described as intelligence, security or law enforcement agencies, has always been subject of criticism. Their admiration and good performance in the respective field aside, they are criticized for abuse of authority, violation of fundamental and human rights, breach of personal liberties and involvement in torture and brutality, corrupt practices and excessive use of discretion. This is not limited to Pakistan, even in American, where crime rate is at the top, England, Germany, India or any country of the world, the police is mostly characterized with such attributes, but with varying degrees. There have been debates regarding professional grooming of officials of the three organs of criminal justice but studies have shown that mere professional training in colleges does not improve performance of the officials; rather non-professional officers with on job training, less professional experience and dedication delivered good results and earned public appreciation.11 Highhandedness of the police, law enforcement and security agencies becomes more

9Iftikhar A. Khan, “Anti-riot force being raised for Islamabad: Nisar”, DAWN Islamabad, March 17, 2015, p. 17. For roles and functions of other agencies under the control of federal government, see for example:- Federal Investigation Agency (FIA) Act 1974, FIA Rules 1975, FIA (Inquires and Investigations) Rules 2002, Rangers Ordinance 1959, Frontier Corps Ordinance 1959, Pakistan Special Police Establishment Ordinance 1948, Anti-Corruption Establishment Ordinance 1961. 10 Ibid; James P. Levine, pp. 194-195. 11James P. Livine ibid, pp. 148-151. 100

pronounced when it is associated with regular violations of international human rights standards, which are mostly recognized by the national laws as well.

The police force in Pakistan was raised under the Police Act 1861; which was repealed through the Police Order 2002. The order was issued by General Pervez Musharraf, in the capacity of Chief Executive of the country, on 14 August 2002, in a bid to bring reforms in the police cadre, recruit professionally competent officials and ensure effective maintenance of law and order, which is the main function of the police. The Order was further amended vide Police Order (Amendment) Ordinance (XLIV) of 26 November 2009 to meet administrative requirement and make up deficiencies in the investigation system and improve discipline of the police. It had been appreciated and recognized as an affective legal instrument, which might bring uniform reforms in police throughout the country and even in Federally Administered Tribal Areas (FATA), Gilgit Baltistan (GB) and Azad Jammu and Kashmir (AJ&K).12 However, it is unfortunate that the Order could not receive universal acceptance and implementation in the country. It is only in Punjab and Khyber Pakhtunkhwa where it is being implemented in a modified form that suite the concerned governments. The Punjab Government amended the Order though the Punjab Police Order (Amendment) Act 2013; whereas the Sindh Government repealed the Order through the Sindh (Repeal of the Police Order, 2002 and Revival of the Police Act, 1861) Act 2011. Similarly, Balochistan Government also replaced the same with Balochistan Police Act 2011, which in fact is revival of the Police Act 1861 with minor adjustments. The Order was never introduced or implemented in Islamabad, FATA, GB and AJ&K, where the 1861 Act still carries the field.13 The Police Order 2002 or the Police Act 1861, as the case may be, mainly provided for organization of the police while Criminal Procedure Code 1890 described its role in prevention of crimes and maintaining law and order in society. The latter also stipulates the

12Muhammad Shoaib Saddle, “In Obstacle to Reform, Stabilizing Pakistan through Reforms”, Asia Society (2012), p. 40. Administration, peace and good government in FATA and GB are dealt under Articles 247 and 258 of the Constitution, respectively. 13Kamran Adil, “Police Laws in Pakistan; Present State of Affairs”, PLD 2015 Journal 9 (pp. 15-16). Punjab Police Order (Amendment) Act 2013 is published in PLD 2013 Punjab Statute [Supplement] 496. Through this amendment, Articles 7, 18 and 21 of the 2002 Order were modified and an additional Article 18 A inserted, to create room for induction of sub-inspectors as well and quota for departmental promotion. The amendment also provided for separation of investigation from administrative and other functions. As regards Balochistan, it is segregated into A and B areas, which are policed by regular police and levies. Interestingly, A area is 5 percent of the province. 101

nature and extent of its power in the investigation and prosecution of crimes.14 Punjab Police Rules 1934 which have been mutatis mutandis adopted by all the provinces also provide for the legal framework under which the police force is obliged to operate and discharge its obligations. Explosives Act 1884, Arms Ordinance 1965 and Anti-terrorism Act 1997 are some of other statutes, which bestow certain powers in the police to achieve the desired objectives of eradicating the menace of crimes and terrorism from the country.15

Without going into further intricacies of the Police Order, it is highlighted that Inspector General (IG) of police is the head of police in a province. He is assisted by Additional Inspector Generals (AIGs), Deputy Inspector Generals (DIGs), Assistant IGs or Senior Superintendents of Police (SSPs), Superintendents of Police (SPs), Deputy Superintendents of Police (DSPs), Inspectors, number of Sub-Inspectors and other staff. Station House Officer (SHO), generally with the rank of Inspector, has a pivotal role in the maintenance of law and order. Protection of life, liberty and property of the citizens, preservation and promotion of public peace, prevention of crimes and public nuisance, collection and communication of intelligence to maintain public peace and prevent crimes, detection, apprehension and bringing the accused to justice, ensure coordination and availability of witnesses, compliance of search and production warrants are some of the duties of police. Community service, such as assistance and rescue to the victims of traffic accidents, natural calamities, protocol and traffic duties, railways, motorways etc are also responsibilities of the police. In the discharge of their duties police is obliged to remain courteous, vigilant and dutiful. Police was reorganized on the bases of branches such as investigation, intelligence, crimes prevention, legal affairs and other administrative branches.16

14See generally Part III (Chapters IV-XIV) i.e. Sections 42-176 of the CrPC. 15See for example:- Section 13 of the Explosives Act 1884, which invests the police with power of arrest. Sections 6-9, 10, 11B, 21-24 of the Arms Ordinance 1965 authorize the police to check unlawful keeping, carrying or display of arms and ammunitions, their search and seizure and deposit with police. Sections 10, 11EE, 11M, 11R, 19A, 21A, 21B and 21E of the ATA also entitle the police to conduct search and seize hate literature, seek security of good behaviour from persons whose names are included in Schedule IV, investigate and help in prosecution of terrorism cases. 16See generally Articles 3 and 7 of the Police Order 2002. 102

Although law and order is a subject of Ministry of Interior yet the ultimate responsibility to maintain order in the society is domain of the provincial governments,17 who discharges this obligation through the police and at times by calling the Civil Armed Forces e.g. Rangers and Frontier Corps, or the Armed Forces, to act in aid of civil power in terms of Article 245 of the Constitution or under Section 4 or 5 of the Anti-Terrorism Act (ATA) 1997. However, Anti-terrorism campaign of the government introduced substantial institutional changes to effectively fight terrorism. Anti-terrorism campaign of the government gave a new dimension to the roll of police, who raised special security andpolice commando units, quick reaction force and established Counter Terrorism Department (CTDs) under the Provincial Police. Federal government also desired to raise an anti-riot and anti-terrorism unit under the Islamabad Police. National Counter Terrorism Authority (NACTA) was also established in 2009, to coordinate and receive intelligence from all intelligence agencies, share real time intelligence amongst all law enforcement, security and intelligence agencies, devise and executive counter terrorism policy of the government. NACTA was created as an independent entity with an executive committee chaired by Interior Minister and responsible to the Prime Minister. Although the authority had the legislative support in terms of NACTA 2013, yet its formation and functioning is still shrouded with mystery in the intelligence supremacy game or lack seriousness of the government to activate NACTA. Despite being also entrusted with the responsibility to monitor implementation of National Action Plan (NAP), it is unfortunate that not a single meeting of NACTA has been convened so far, despite the fact that convening of the meeting of its Board of Governors headed by the Prime Minister is an essential pre-requisite for its activation, empowerment and providing visionary approach.18 The Federal Government in an attempt to strengthen NACTA, disbanned National Crises Managemetn Cell (NCMC), popularlyknown as the Federal Central Room and operating udner the Ministry of Interior, and posted all of its officials in NACTA.19 92 of its officials were transferred to NACTA but they refused to join on the pela that they were civil servant while NACTA is under the Prime Minister’s office, whose employees were not

17However, in view of Article 142(b) of the Constitution amended through the 18th amendment in 2010, law making with respect to “criminal law, criminal procedure and evidence” has become shared domain of both the federal and provincial governments and so is execution of the laws. Ministry of Interior, besides overseeing law and order in the country, also helps the provincial governments in restoring peace. 18Tariq Parvez, “NAP: The right questions”. DAWN Islamabad, December 28, 2015, p .8. 19NCMC was established in 1947, recognized in October 2000 and dissolved through a notification on 15 January 2016. 103

civil servants. They invoked jurisdiction fo the Isalamabad High Court to challenge dissolution of NCMC and their transfer. NCMC had been entrusted with maintenance of crimes data, verification of NADRA records including finger prints and facial recognitions, and dealting with other matters connected with security and maintenance of law and order. Seemingly its duties and functions overlapped with other intelligence and LEAs.20 According to Mr Balighur Rehman, Minister of State for Interior, NACTA is still deficient of funds as the Finance Division had allocated Rs 1.066 million against its demand of Rs. 1.886 billion.21 Seemingly, it is in limbo, but it is functioning with couple of officers pooled up on adhoc basis.

In the settled areas, it is the police which is performing the duty of maintenance of law and order, prevention of crimes, apprehension of criminals, collection and preservation of evidence, maintenance of liaison with witnesses, prosecuting, security and intelligence agencies, attendance of witnesses and accused in the courts, follow the case till it reaches finality. In the areas wherein the Armed Forces are engaged in operation against terrorists and enemy combatants, the police is playing dormant role so far as maintenance of law and order is concerned; but responsibility to process and pursue the cases against the terrorists in the court of law is still being discharged by the police. Role of the Civil Armed Forces or Armed Forces is secondary, supportive and monitory, in some situations.

3.1.2 Role of Courts Courts in Pakistan are creation of the 1973 Constitution, Article 175 of which envisages a Supreme Court, , a High Court for each Province and Islamabad Capital Territory and “such other courts as are established by law.” Judges of the superior judiciary are appointed by the President after the recommendations of Judicial Commission and Parliamentary Committee constituted under Article 175A. Judges of the subordinate judiciary are appointed through public service commission and by the government in concurrence with the Chief Justice of the concerned High Court, in accordance with the provisions of relevant law, e.g. Code of Criminal Code (CrPC), ATA and Protection of Pakistan Act (POPA) 2014. Article 175 of the Constitution also provided for

20Malik Asad, “92 NCMC officials refuse to join Nacta”, DAWN Islamabad, March 3, 2016, pp. 17 and 19. Malik Khalid, “Legal Wrangles Hit Nacta’s Revival”, DAWN Islamabad, April 6, 2014, pp.1and 5. 21See Amir Waseem, “NACTA is functioning without formal staff, Senate told”, DAWN Islamabad, November 12, 1015, p. 3; “NACTA Revival”, DAWN Islamabad, November 13, 2015, p. 8. 104

progressive separation of judiciary from the executive, within a period of fourteen years, which limit has already lapsed. Accordingly, the executive magistrates, formerly Deputy Commissioners and their subordinates, were separated and distinguished from judicial magistrates and brought within the ambit of judicial hierarchy. However, through the 21st Constitutional Amendment, a proviso was added under Article 175(3) whereby an exception was created to establish military courts for trial of terrorists using the name of religion or a sect. Restricting the scope of discussion to the criminal justice system, it is obvious that all criminal courts are subordinate and subservient to the concerned High Courts. Although the ATCs and special courts established under the special laws, e.g. Suppression of Terrorists Activities (Special Courts) Act 1975; Terrorist Affected Areas (Special Courts) Act 1992, Special Courts for Speedy Trials Act 1992, were placed out of control and superintendence of the High Court, yet the decisions of the Supreme Court in Mehram Ali and Sh Liaquat Hussain cases22 not only restored judicial control and superintendence of the High Court over special courts but also foiled any attempt in future to establish any criminal or military court out of the corpus of Article 175 and superintendence of superior judiciary. It is in this context that the government in concurrence of the political parties amended Article 175(3) to create space for the military courts within the ambit of judiciary. The ordinary hierarchy of criminal courts in a province stems from the Code of Criminal Procedure, which recognizes two classes of criminal courts i.e. Courts of Sessions and Courts of Magistrates, in addition to the High Court and courts established under any special law.23 The province is divided into sessions divisions consisting of a single district or more than one; and each sessions division has a sessions court consisting of a Sessions Judge appointed by the provincial government who may also appoint Additional and Assistant Session Judges. Magistrates are designated as District Magistrates 1st Class, 2nd Class and 3rd Class; however, in the province of Baluchistan, the Magistrates have been further classified as judicial and executive magistrates. The magistrates in the district are appointed by the provincial government. In some areas of Provincially Administered Tribal Areas (PATA) of Khyber Pakhtunkhwa (KP) Province, the provincial government has bestowed upon Senior Civil Judges/Aala Illaqa Qazis and Civil Judge/Illaqa Qazis, the powers of Magistrate 1st class who may try any

22The cases are reportrd in PLD 1998 SC 1445 and PLD 1999 SC 504 respectively. 23See Chapter III (Sections 6-25) of the CrPC. 105

offence, except an offence punishable with death. For example:- Aala Illaqa Qazi and Illaqi Qazis in Malakand Division and Kohistan District have been vested with the powers of Magistrate 1st Class. Qazi courts were also established in other tribal areas of PATA of KP under the Sharia’h Nizam-e-Adl Regulation 2009, which also extended application of 1997 ATA to these areas.24 A High Court and Sessions Court including an Additional Sessions Court may try any offence and award any sentence including death; while an Assistant Sessions Judge and a Magistrate 1st class may, if so empowered by the provincial government under CrPC Section 30, try any offence except an offence punishable with death. Sentence of death awarded by a Sessions or Additional Sessions Court is subject to confirmation by the High Court, while an Assistant Sessions Judge and Magistrate 1st class when powered under CrPC Section 30 read with Section 34, may award imprisonment upto 7 years. Ordinarily Magistrate 1st, 2nd and 3rd class may award imprisonment upto 3 years, 1 year and 1 month respectively. In addition to these criminal courts, ATCs and Special Courts established under the 1997 ATA and the 2014 POPA respectively are also delivering criminal justice in Pakistan.25

A brief hierarchy of Criminal Courts in Pakistan is depicted through the following table:-

24However, the overall criminal justice in KP and PATA in general is administered by the ordinary criminal courts or the ATCs. 25The Deputy Commissioners (Assistant Political Agents) and Commissioners (Political Agents) in FATA are also discharging judicial functions under the FCR 1901. Action in (Aid of Civil Power) Regulation 2011 for FATA has also provided trial of accused under the FCR, ATA or CrPC. 106

Table 3.1 - Hierarchy of Criminal Courts in Pakistan

Supreme Court of Pakistan

Federal Shariat Court

5 High Courts (One each in the 4 Provinces & Capital Territory Islamabad)

Ordinary criminal courts * Anti-terrorism Courts (ATCs) ** Special Courts under POPA *** Session Court/Judge  1 or 2 in each territorial area Sitting or retired Sessions or (in each district) specified by High Court. Additional Sessions Judge or an  Sitting or retired High Court/ advocate with 10 years’ practice if so Sessions/ Additional Sessions appointed as judge Judge or Magistrate 1st class or an Additional Sessions Judges advocate so appointed to act as (in each district depending upon judge for a period of 2½ years population size

Assistant Sessions Judge

Magistrate 1st class

Magistrates 2nd and 3rd class

Notes

* Statutory appeal against decision of the ordinary criminal court lies in the hierarchy upto High Court and even to the Federal Shariat and Supreme Court. ** Statutory appeal against decision of the ATCs lies before a division bench of High Court, whose decision is final and not subject to further appeal. ***Statutory appeal against decision of the Special Court under Protection of Pakistan Act 2014 (which is valid for two years and would lapse on 8 July 2016) lies before the High Court, whose decision is final and not subject to further appeal. # Since courts martial under the services laws and courts of Deputy Commissioners/Assistant Political Agent or trial through the Council of Elders under the FCR are not in direct superintendence of the superior judiciary, the same have not been included in this hierarchy.

Source: Judicial Hierarchy-Supreme Court of Pakistan (Annual Report April 2010-December 2011), 1973 Constitution of Pakistan, Code of Criminal Procedure 1860, Anti-terrorism Act 1997, Protection of Pakistan Act 2014.

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3.1.3 Role of Prisons The role of judiciary does not extinguish after the verdict of acquittal or award of sentence. The judiciary more specifically, a Sessions Judge, is also obliged to regularly visit the prisons and address minor grievances of the prisoners as well as coordinate with jail authorities to facilitate and ensure that the under trial prisoners are produced before the courts on each hearing of trial.26 The prisons have been established under the Prisons Act 1894 and being governed by Prisons Rules 1894. The Prisoners Act 1900 and Pakistan Prisons Rules 1978 also provide an insight into the operation of the prisons, conduct and discipline of the prisoners and the wardens as well as welfare and rehabilitation of prisoners. There are other legal instruments as well such as the Prohibition of Offenders Ordinance 1960 and Rules of 1961 framed thereunder, the Punjab Borstal Act 1926, Juvenile Justice System Ordinance 2000 and Rules of 2001 framed thereunder, Prisons (NWFP) (Amendment) Act 1986, which deal with the issues concerning the prisoners. Before the partition of Pakistan in 1971, remissions were regulated under the West Pakistan Prison (Remissions and Sentences) Rules 1965. However, in 1976, the provincial governments adopted the Jail Manual issued by the Federal Government for the sake of uniformity as the Pakistan Prison Rules, chapter 6 of which deals with remissions. There had been observations and concerns of the superior judiciary regarding welfare of the prisoners and their rights during the execution of sentence. The Federal Shariat Court had addressed different issues raised by the prisoners and others in Dr Muhammad Aslam Khaki v the State.27 Earlier in Abid Hussain v Chairman Bait-ul- Mal,28 Justice Asif Saeed Khosa of the Lahore High Court had also dilated upon the issue of payment of diyat to the legal heirs of deceased; and ruled that it is unfair to keep the convicts in jail merely on the ground that they cannot pay the amount of diyat due to poverty. He directed the government to amend the law accordingly and utilize the Zakat and Bait-ul-Mal funds to rescue such prisoners. In Dr Muhammad Aslam Khaki case, the Federal Shariat Court, inter alia, ordered that female and juvenile prisoners should be accommodated and placed in separate custody of female and male wardens respectively. The court appreciated efforts of the Punjab and KP governments to provide facilities to the prisoners for exclusive family visitation and permission to live with wives in separate blocks constructed in prisons

26See Article 109-111 of the Police Order 2002 and Dr. Muhammad Aslam Khaki case at PLD 2010 FSC 1. 27PLD 2010 FSC 1. 28PLD 2002 Lahore 482. 108

for limited time. The court expressed hope that facility for “conjugal orientated parole” would also be extended to the prisoners. In Shah Hussain v the State,29 the Supreme Court carried out an exhaustive analysis of CrPC Section 382-B and concluded that the trial courts are under an obligation to take into consideration pre-conviction period of detention and grant remission for corresponding duration. Refusal of the trial court to grant remission equal to the pre-sentencing period of arrest would be illegal especially where the convict had been awarded life imprisonment as it would amount to sentencing him beyond the quantum of maximum sentence prescribed by law i.e. life imprisonment plus period spent in custody before conviction and sentence. The court also directed that all convicts, except those convicted of offences under the NAB Ordinance 1999 or ATA 1997 and offence of Karo Kari etc where the law itself prohibits any remission, shall be granted benefit of CrPC Section 382-B and entitled to all remissions granted by any authority during “the pre- sentence and post-sentence detention period.” The Supreme Court also reiterated that the President also enjoys unfettered powers to grant remissions under Article 45 of the Constitution.30

Deterrence and reformation are two important modes of controlling the crime and criminal behavior. Deterrence aims at the potential offenders outside the dock; whereas reformation focuses on the actual criminals before the bench. Grant of remissions to the convicts under the Jail Manual or by the President in terms of Article 45 of the Constitution are intended to reform the convicts. Such special remissions are permissible to the convicts who are not involved in heinous offences, such as murder, rape, dacoity, kidnapping, karokari, siakari, abduction, espionage and anti-state activities, offences under the ATA 1997 and NAB Ordinance 1999. The Federal Government/Ministry of Interior has also formulated a policy which provides for guidelines and remissions permissible to different categories of convicts and circumstances wherein special remissions on the occasion of Eidain and Pakistan and Independence Days are granted.31 The policy was formulated in

29PLD 2009 SC 460. 30Ibid, pp. 490-491. See also Section 10(d) of the NAB Ordinance 1999, Section 21F of the ATA 1997, CrPC Section 401(1), and Section 214A read with Section 201(a) of the Pakistan Prion Rules 1978, which deny remissions to the convicts under the said laws/for the said offences.

31Ministry of Interior letter number D.2792/2009-DS (Admin.) dated the August 2009, reproduced in Nazar Hussain v the State [PLD 2010 SC 1021 (1034-1036)]. 109

consultation with Law and Justice Division, the Chief Justice of Pakistan and approved by the President; and is being practiced by the prisons. Special remissions are granted to those who had undergone 2/3rd of their terms of imprisonment; however, in cases of males and females of the age of 65 and 60 years respectively and juvenile convicts (under 18 years of age), total remission of sentence is granted if they had completed 1/3rd of their term of imprisonment. The Supreme Court has also validated this policy and ruled that the said classification of convicts for remissions has been made on intelligible criterion which is not against Article 25 of the Constitution.32

3.1.3.1 Offence or Crime The words offence and crime are generally considered as synonym and overlap. However, crime has been defined as “an intentional act or omission in violation of criminal law, committed without defense or justification, and sanction by the state as a felony or misdemeanor.”33 A distinction between the two may be drawn in the sense that offences are acts or omissions minor and petty in nature; whereas crimes are acts or omissions which are heinous in nature, involve element of violence, compromise security of state and are punishable with severe punishments.34 Severity of punishment is one of the determining factors to bring an offence, which may be a procedural irregularity or violation of a commercial or cyber law, within the precinct of crime, as the legislature in its collective wisdom is not expected to prescribe severe punishments for ordinary offences or peccadillos. However, the penal laws generally do not draw any such distinction. Penal laws of Pakistan describe “anything, act or omission made punishable by any law for the time being in force” as an offence35 and prescribe punishments for the offences rather than crimes. Therefore, in the ensuing discussion, though the focus shall be on offences and crime shall denote offence, yet while describing different delinquent acts or behaviours, the words “crime and criminals” shall be used as employed by the psychologists, criminologists and jurists.

32Nazar Hussain v the State (PLD 2010 SC 1021), pp. 1047. 33Paul W. Tappan, Crime, justice and correction (New York: Mc Grew-Hill, 1960), p.10 as quoted by James A. Inciardi op. cit., p. 50. 34Lewis Mayers, the American Legal System (New York: 1964), p.11 as cited by Imran Ahsan Khan Nayazee, General Principles of Criminal Law (Western and Islamic), (Islamabad: Advanced Legal Studies Institute, 2010), p.18.

35See for example: PPC Section 40 and CrPC Section 4(o). 110

3.1.4 Nature and Extent of Offences or Crimes as Acts of Terrorism in Pakistan The offences are distinguished by their nature and character; while their severity is determined by the punishments prescribed for them. In disregard to other offences, the offence of terrorism is not an offence in itself; rather gravity and magnitude of the previously determined and existing offences convert them into “terrorism” or “terrorist acts.” For example: culpable homicide amounts to murder or qatl-i-amd when associated with premeditated and brutal killing. Murder or qatl-i-amd, an offence punishable under Section 302 of the PPC, has been described as an act of terrorism when committed against public servants or an individual or group or associated with mass-killings, creating fear, terror and insecurity amongst the general public. Similarly, “waging war against Pakistan or overawe the government or any attempt or abetment thereto”, though offenses prescribed under Sections 121 and 121-A of the PPC, when became recurrent in the tribal and settled areas against the armed forces, Law Enforcement Agencies (LEAs) and general publicwere described as “terrorist acts” and amounted to terrorism. Abetment of mutiny in the Armed Forces or assaulting public servants, offences under Sections 131-134 and 152 of the PPC, when became a routine with intent to challenge writ of the government and impede the “Armed Forces to act in aid of civ power” to restore peace in the designated areas, were redefined, rephrased and termed as ‘terrorist acts’.36 This is how the offences, with the exception of few, already existing in the PPC or other penal laws were gradually described acts of terrorism and subjected to trials by the Anti-terrorism Courts (ATCs) established under the 1997 ATA.

The 1997 Act precisely defined “terrorism” to include, inter alia, acts or threats designed to coerce, intimidate or overawe the government, general public or a section thereof or any community or sect or a foreign government or population or an international organization, create fear or insecurity in the society, or any such threat, act or action intended to advance the cause of any religious, sectarian or ethnic group or intimidate and terrorize the public or social sector, media persons, business community or attacking civilians, government officials, public servants, security forces or LEAs (including looting and arson of property or installations). The section further explained that actions causing death, grievous

36See Section 6 of the “Anti-terrorism Act (ATA) 1997” as amended and modified by “Anti-terrorism (Amendment) Acts” of 2002, 2013 and 2014. 111

violence, bodily injury or harm to any person or grievous damage to property or any action likely to cause death or endanger human life shall fall within the pale of terrorism or terrorist acts. Similarly, the offences relating to kidnapping for ransom, hostage taking or hijacking, use of explosives or bomb blasts, enticing hatred or contempt on religious, sectarian or ethnic basis to agitate violence or internal disturbance, firing on places of worship or religious congregations, forceful taking over of mosques / places of worship, disturbing trade, business or disturb civil life, burning of vehicles or other serious arsons, bhatta collection, violence against members of police, Armed Forces, Civil Armed Forces or public servants were also included in the territory of terrorism; while any person committing or concerned with any of the above acts or actions could be described as a terrorist.37 Any such person committing an act of terrorism, if convicted, is punishable with death in case death has been caused and, in other cases, with imprisonment of varying terms and upto life imprisonment.38 From the scheme of the ATA, it is evident that in view of threats to the security and safety of the people, the offences mostly existing in the statutes were termed as terrorist acts with severe or greater penalty. The Protection of Pakistan Act (POPA) 2014 though did not describe any of the offences contained in the schedule to its Section 2(1) as a terrorist act yet explained their gravity by declaring the said offences as punishable under the POPA, if committed with intent to wage war or insurrection against Pakistan or threaten its security.

37Ibid, Section 6 which initially was simple and described terrorist acts. However, on 15 August 2001, the same were replaced with ‘terrorism’ and more acts were included and described as constituting ‘terrorism’ which used to be improved after each amendment, included in 1998, 1999 and 2000, 2002, 2013 and 2014). Section 6 was also amended to included sub-section (d) relating to illegal bhattavide “Anti-terrorism (Amendment) Ordinance 2000” (PLD 2001 Central Statute I). Also notification to declare different weapons as the fire arms under Section 6(a) was issued on 19 October 2000 and is available at PLD 2001 Central Statutes 407. Subsequently, the section was amended to further include a foreign government or population or an international organization and intimidating media etc vide “Anti-terrorism (Amendment) Acts (XIII and XX of 19 & 26 March) 2013.” 38Ibid, Section 7. Offence of hijacking, which is an offence under Section 402a and 402B of the PPC, was described as the offence of terrorism and made punishable under the ATA with death or life imprisonment after the hijacking case against Mr Nawaz Sharif, when Section 6 and 7 ibid were substituted by Ordinance (XXXIX of 14 August) 2001 (PLD 2002 Central Statutes 107). Later the sentence for hijacking, kidnapping for ransom was modified with 10 years or more and forfeiture of property vide Anti-terrorism (2nd Amendment) Act 2013). Third Schedule was also added to include abetment or attempt of any of the above described offences punishable under this Act. Initially there was only one Schedule containing offences under PPC Sections 302, 295-A, 298-A, 364, 364-A, 365, 365-A, 392 to 402 and associated with terrorism, Zina etc. 112

3.2 Theories of Crimes

Seen in this context, the alleged offenders of murder, hijacking, waging war against Pakistan, abetting mutiny, committing assault on the public servants, use of arson, bombs, violence, hostage taking, kidnapping, killing against the security forces, public at large, dignitaries and government functionaries and other similar offences when committed in the circumstances striking terror and insecurity in the general public etc would be termed as terrorists. The criminologists generally had not used this approach to describe criminals and delinquents; as the element of “threat to the safety and disorder of the state” and “welfare of the society as a whole” is inherent in all crimes.39 Rather they ascribed the criminals on the basis of causes of crimes and developed different theories to describe the crimes and criminals.

3.2.1 Biological Theories Biological, psychological, social-psychological and sociological theories of crimes are commonly employed to explain crimes and criminals. But due to complex and varied nature of crimes and criminals, no theory can exclusively justify or explain to the hilt the crimes or criminal behaviuor of the delinquents. For example: “the rotten egg theory”, which is specie of biological theories, suggests that there are people who are born criminals; shapes of their skulls, facial bones and eyes determine their criminal nature and behaviours. This biological theory of Cesare Lombroso, who classified criminals as “born criminals, insane criminals, criminals by passion and occasional criminals”, was falsified in 1913 when the British scientists did not find any empirical data or substantial difference in the skulls of convicts, soldiers, students and patients. However, Lombroso’s theory was not denied at all. 40 Rather William Sheldon developed the theory and concluded that “mesomorphic” i.e. people carrying muscular bodies are proned to be criminals. Similarly, IQ level syndrome theory has also been employed to determine criminal behaviour but it depends upon the nature of crime, as the white collar, cyber and even terrorism related crimes are considered to be the domain of the intelligent people with high IQ level. Biological theories had been even employed to reform the criminals in prisons. Those considered “immoral by heredity” and “chronic

39James A. Inciardi op. cit., p. 55. 40James P. Levine, Michael and Dannis, Criminal Justice – A Public Policy Approach (New York: Harcourt Brace Jovanovich Inc., 1981), pp.73 and 111. 113

offenders” had been sterilized in America so as to prevent transformation of “defective genes” to their children until 1942 when the Supreme Court of America declared this practice to be violative of constitution.41

3.2.2 Psychological and Socio-psychological Theories Psychological theorists canvass that criminals are emotionally sick people, who may be conveniently cured rather than changing their genetics. Their criminal behaviour is influenced by hostile feelings against the authorities who tend to tame and control their conduct. Their emphasis is on personal characteristics or impulsive behaviour of the delinquents which produce criminal behaviour but they disregard role of the society in breeding such behaviour. Though such people, with impulsive and irresponsible emotions, were described as “psychopaths” but owing to “their negative and hostile attitude towards society and its laws”, they were more appropriately termed as “sociopaths.”42 But giving them different description does not cure their emotions or hostility towards the society, which in itself contributes to the criminal behaviuor. In the given context, socio psychological theories become more attractive, which focus on motivation to refrain from crime and mechanism to prevent and control crimes. Crimes and delinquencies according to the proponents of these theories are instinctive unless controlled through societal, social, moral and legal sanctions. Hence, the fear of being caught in the presence of active police and deterrent punishment being executed may help reduce the number of crimes, except murders, which generally are “committed in the heat of passion” and without consequences.43

3.2.3 Sociological Theories Sociologists believe that certain amount of crime will always exist in the society as a matter of “innovation, social change” and “an alternative, when legitimate channels of social mobility are blocked.” They argue that broken homes, poverty, minority or ethnic group or lower class status add to criminal behaviours and violent crimes. Such people are alienated, frustrated, tough and violent, believe in fate, influenced by sub-culture, strive for authority,

41“Skinner v. Oklahoma”, quoted by James P. Livine ibid, pp.73 and 111. 42Ibid, p. 74. 43Ibid, pp. 75 and 76. 114

repulse insult and love danger.44 However, it is also observed that not all poor or lower class people even with broken families demonstrate criminal behaviuor.

3.2.4 Crime-specific Theories The above theories of crimes obviously do not and cannot anlayse a vide range of criminal behaviour except with ifs and buts and partial negation of the other. In view of this handicap and variety of human beings with complex behaviour, no definite explanation may be offered to the criminal behaviour and causes of crimes. In order to address the issue, criminologists resorted to co-relate crimes with different theories. Marshall Clinard and Richard Quinnery have categorized crimes on the basis of pattern or types of crimes committed, while Don Gibbons, in the reverse order, has determined crimes on the basis of criminals. The said categories or typologies, strictly speaking, are not theories in themselves. Neither they predict the expected pattern and number of crimes nor the conditions which would produce a specific type of crime, so that remedial and corrective measures may be taken. Simultaneously it is also important that a single theory can neither explain the crimes nor criminals; hence the crimes or criminals specific theories may help understand the criminals’ behaviour.45 Amongst the eight types of crimes propounded by Marshall “violent personal crimes”, which involve physical injuries and murders, and “political crimes”, which involve “illegal activities during protests or in a bid for regime change, overawe or replace the government”, are of significant for the present discussion. The violent criminals are irrational and generally engaged in murders, assaults, robberies, rapes, child abuses, kidnapping etc. Political crime has been precisely defined as “attempts to change or harm the existing political system by force or violence”, whereas “political criminals are (1) those who are regarded as subversive by government, (2) religious or philosophical sectarians whose behaviour is contrary to existing law, and (3) nonconformists who persist in outlawed behaviour.”46 The irony is that political criminals do not regard themselves as criminals and resort to “violence even terrorism” as a means to achieve their political objectives. “The goal of terrorism is to increase general strife and bring down the government.” On the other hand, there is a reverse side of political crimes as well, which are committed by the state and its

44Ibid, pp. 76-78. 45Ibid, pp. 78-80. 46George B. Vold, Theoretical Criminology (Newyork: Oxford University Press, 1958), pp. 299-300, as cited by James P. Livine ibid, p.109. 115

agencies, the government and its functionaries. Corruption and personal gains by the politicians and abuse of government authority e.g. “assassinations, surveillance, illegal wiretappings, trespassing and harassment of the opponents” are included in these crimes. 47 Thus political crimes manifest not only crimes against the states i.e.high treason and seditions, acts of violence and terrorism, to overawe or destabilize the government and create disorder in the society but also crimes committed the government in the nature discussed above. Crime-specific theories have their own advantages and disadvantages. From the government point of view, the nature of existing “pure crimes” and the corresponding sentences may be enhanced to “terrorist crimes” and deterrent sentences. This has been done by the government as discussed earlier in the chapter under the heading “Nature and Extent of Offences of Crimes as Act of Terrorist in Pakistan.” The manifest intent is to make the stakeholders in the criminal justice system realize the underlying brutality and criminality in the purported offences against the government and public at large, so that they take the alleged criminals and crimes seriously. It also expects high rate of convictions with severe punishment so as to create deterrence amongst the terrorists and rebels. The terrorists’ approach and practical manifestation is somewhat different. Firstly, ‘terrorism’ being a political crime and terrorists being political criminals always find favour for relief and amnesty, especially when the government strives for reconciliation and restoration of peace, strikes deals or truces with the rebels, saboteurs and anti-government forces. Secondly, perception of the general public is not manifestly charged. Despite being regarded and punished as terrorists, the general public associates the political criminals with their political, religious, ethnic or nobelcause. The case of Mumtaz Qadri, who assassinated former Governor Salman Taseer for alleged blasphemic remarks and was executed on 29th day of February 2016 for being a ‘terrorist by definition’ would always be fantasized and remembered for his cause and love for the Holy Prophet. In the existing scenario, if ordinary crimes are dubbed as “terrorists acts” and their actors are described as terrorists, the term would also lose its significance. It is for this reason that the terms such as “”, “Muslim terrorists”, “state terrorism”, “secular terrorism”, “American terrorism” have emerged and are frequently used to balance the score and describe the opponents are

47Ibid, pp. 110-111. 116

terrorists. If the criteria is brutality, large-scale massacre and mass-killings, former President Qaddafi of Libya, President Bashar-ul-Asad of Syria, former President Hoosni Mubarak and Moorsi of Egypt, former President Bush of America, former Prime Minister Toni Blair of UK, all may be described as ‘terrorists’ or ‘war criminals’ and subjected to trial by International Criminal Court for War Crimes at Hague. However, if the criterion is religion, then Muslims belonging to ISIS (Islamic States of Iraq and Syria), Al-Qaeda and Taliban or otherwise, if committing crimes against their governments or any non-Muslim or western society or citizen, all are terrorists. Such an approach of terrorism is required to be reconciled and criminals should be treated as criminals, irrespective of labeling them “terrorists” or “political criminals.” This may result in miscarriage of justice either by way of severe punishments for ordinary crimes or by way of acquittals or remissions for heinous crimes. This has been experienced in the war-ravaged countries during initial days of insurgencies when fight against the rebels is at its peak and when a process of reconciliation commences. 48 Even in UK, during 1980s, members of the Irish Republic Army fighting against the British Army in Northern Ireland were described as terrorist criminals and awarded severe punishments. However, in a subsequent move, they claimed themselves to be “political criminals”, striving for their legitimate rights, and went on for hunger strike, which claimed ten lives. Prime Minister Margrate Thacher’s government had to accept demands of the Irish Republic Army and recognized its crimes as “political crimes”, which were subsequently condoned. On the other hand, the ordinary criminals remained in the prisons to undergo terms of their imprisonments and execution of their sentence.49 In this perspective, it is important to appreciate this aspect of describing ordinary crimes as terrorist acts and ensuing effects on criminal justice in the country.

3.3 Theories of Punishment

The award of punishment to the guilty criminal is an important and decisive aspect of any criminal justice system. Trial without punishment to the proven guilty perpetrator of crime is a futile exercise, which cannot be afforded. Criminal justice system is based on a

48An exclusive interview dated 6 March 2010 with Mr. Khamas Khan Panni who had been Force Legal Advisor in Sudan during 2011-2012. 49District Bar Assoiation Rawalpndi case (PLD 2015 SC 401), Para 79 of Qazi Faez Isa judgment; Robert Fisk, “Is there really any difference between a terrorist and an ordinary criminal”. DAWN Islamabad, December 14, 2015, p. 13. This article had been published in The Independence and reproduced in DAWN. 117

rational and prudent approach to determine innocence or guilt of the alleged criminal brought before a court of competent jurisdiction. The innocents are required to be acquitted; and in case of frivolous or baseless accusations or prosecution are entitled to compensation or action against the accusers. On the other hand, those proved guilty after fair trials are entitled to punishment which should commensurate with the gravity of the crime and as such prescribed by the law. The law though prescribes sentences for the crimes but gives a wide discretionary power to a judge to award the sentence. The judges while awarding the sentence are guided by various factors and different theories of punishment, which in fact are moral justifications for inflicting severe or lenient punishments to a delinquent. Sir Rupert Cross is not inclined to use the term “Theories of Punishment” as one theory is bound to falsify and exclude the other and justify its correctness. However, reference to the theories has become so popular and assertive that there is no escape except employing them. Jurists have developed and described theories of punishment in different ages, in a variety of ways, applying different parameters. Retribution, deterrence, prevention, reformation, rehabilitation, restoration, incapacitation, expiation to name a few, some of which also overlap. In the concise purview, there are two theories of punishments viz:-utilitarian, which aims at reducing the crime either by way of deterrent, reformative or preventive approach, and retributive, which intend to punish the criminals because they deserve so and that they are required to be returned in the same coin.50 However, on the descriptive canvas, the theories may be discussed independently, rather than in groupings.

3.3.1 Theory of Retribution

The theory is based on the philosophy of “revenge for an injury”, “just deserts” for the criminals, “tit for tat” and qisas i.e. inflicting similar punishment to a delinquent as a matter of divine or natural law.51 The gravity of offence determines moral guilt of the offender and the corresponding sentence. However, it is difficult to measure and calibrate

50Rupert Cross, The English Sentencing System (London: Butterworts, 1981), pp.120-121, 128, as quoted by Imran Ahsan Khan Nayazee op. cit., p. 44. 51See K.S. Chabra, “Theories of Punishment” in K.D. Gaur, Criminal Law, Criminology and Criminal Administration, as cited in Liaquat Hussain case {(PLD 1999 SC 504) (pp. 705-708)}; “Theories of Punishment”,available at www.clifnotes.com/more/subjects/criminaljustice/sentencing/theories-of-punishments; and “Punishment-Theories of Punishment”, available at www.law.jrank.org/pages/9576/punishment-theories- punshment-hml, accessed on 11 January 2015. Also Al-Qur’aan, Chapter 2, Surah Al-Baqarah, verse 178; Chapter 6, Surah Al-Ma’edah, verse 45. 118

moral guilt or pain caused by the crime and the corresponding punishment to the criminal to satisfy the agony caused by him to the victim. In the ordinary circumstances, “life for life, eye for eye, nose for nose, ear for ear, tooth for tooth and corresponding wound for wound” is justifiable, as it is proportionate to the severity of offence. However, when aspect of mens rea or moral blame-worthiness lacks in the crime, the whole edifice of retribution falls to the ground. It is for this reason, Muslim jurists do not regard the retributive theory a mechanism of retribution, but regard it a means of deterrence; and where the mens rea is not proved and even in cases where it exists, the divine recommendation in cases of qisas is forgiveness, pardon, remission and gratefulness rather than transgression in retribution.52 Hence retribution in Islam is not absolute but is associated with concept of expiation, repentance and forgiveness in cases directly affecting body, mind or reputation of the victim. Expiation (kaffarah) helps pacify and repair loss of the victim by way of condolence, acts of grace, and compensation to the victim, who had long been neglected in the modern criminal justice system, where the focus was either the accused or the punishment. Philosophy of expiation tends to do away the crimes generated through revenge and compensation to the victim. However, where society at large is affected and the criminal is financially strong to compensate the crime in kind or cash, mere expiation is not a workable philosophy. 53 Nevertheless notion of “simple retribution” does not find universal recognition and is criticized for having inherent element of vengeance.

3.3.2 Theory of Reformation and Rehabilitation The proponents of reformation theory believe that man is not born criminal. He is by nature innocent and may be reformed through training, rehabilitation and by neutralizing the social, economic and environmental factors which contribute to criminal behaviour. Youthful offenders, mentally deranged drugs and chemical dependents are the main subjects of this theory, who if inculcated skill and training may be re-adjusted in the society.54 However, this theory is criticized on the plea that main purpose of the criminal justice is deterrence and prevention of crime not the reformation, which is the responsibility of the family and society.

52Imran Ahsan Nayazee op. cit., pp. 45-53; Al Qur’aan, Chapter 2, Surah Al-Baqarah, verse 178. Ibid. Mathew Johnson, Theories of Punishment: 5 Ways to Keep Society Together, available at http://blog- undmycom/theories-of-punishment/, accessed on 11 January 2015. 54Mathew Johnson ibid. 119

3.3.3 Theory of deterrence

The deterrence theory aims at controlling criminal behaviour and crime through the medium of deterrence by prescribing and inflicting harsh punishments; and thereby making the convict an example for the like-minded. This is how the theory creates general deterrence among the public and induce them not to commit crime and specific deterrenceby inflicting harsh punishment on the criminals. Deterrence theory is described as specie of utilitarian philosophy of punishment, which envisages peace in the society as a consequence of punishment; and that the corresponding benefits to the society should be more than the evil of punishment.55 This theory has been criticized in the context that deterrence is not effective against violent, professional and political cum terrorism criminals whose conduct is influenced by spontaneous and erratic behaviours; and sometimes motivated by greater economic and political gains as well as strong religious and ethnic motivations. Historically, mere execution of harsh and incompatible sentences did not prove to eliminate crime. As for instance, during the reign of Queen Elizabeth I, death penalty was prescribed for pickpocketing; however, right at the time of execution of death, the pickpockets had been busy in pickpocketing in the crowd gathered to witness the executions. The deterrent philosophy is also condemned in the pretext that severe punishments are inflicted to cover up deficiencies in the investigation and prosecution machinery. This in turn breads grudge and resentment against the society and organs of criminal justice.56 Sir Leo Page described the phenomenon by delineating “violence is the child of violence and that useless punishment produces in the offender, not a spirit of meek contribution but one of implacable hostility which, by making his reformation more difficult injuries not only him but the whole community.”57 Islamic jurisprudence also supports deterrent theory of punishment in the form of qisas and hudood, which though have the attributes of vengeance or retribution but prevents and protects the society from the harm. The deterrence in Islamic jurisprudence is

55See K.S. Chabra, “Theories of Punishment” at cited in LiaquatHussaincase op. cit., p.706-707; “Punishment- Theories of Punishment” at www.law.jrank.org/pages/9576/punishment-theories-punshment-html, accessed on 11 January 2015; Sir Rupert Cross has described specific deterrence as the individual or primary deterrence; while general deterrence as the secondary deterrence, in The English Sentencing System, pp. 145-143, as quoted by Imran Ahsan Khan Nayazee op. cit., pp. 55-57. 56Ibid; JaanSootak, “Theories of Punishment and Reforms of Criminal Law (Reforms as a change of Mentality)”, Juridica International. Law Review, University of Turtu (1632), pp. 68-73, available at www.juridicainternational.eu, accessed on 11 January 2015. 57Quoted in K.D. Gaur, Criminal Law, Criminology and Criminal Administration, cited by the Supreme Court in LiaquatHussain case (PLD 1999 SC 504) pp. 706-707. 120

two-fold i.e. curse and wrath of Allah, the Exalted, besides the painful punishment in the life hereafter; and the severe incapacitative sentence with humiliation in this world. However, before execution of sentence, Islam lays down strict parameters and higher standards of evidence for conviction i.e. truthful witnesses and untainted confession at a fair trial before the competent court, which if retracted may exonerate the criminal.58

Although criminologists and jurists have propounded different theories yet the ultimate view which emerges out of experience and practical difficulties is that none of the above or other theories of punishment may exclusively reach the desired goals of peace and security in the society. An integrative and inclusive approach is more effective to achieve the ultimate objects of prevention of crime and protection of society.59

3.4 International Legal Standards

International legal standards with reference to the administration of criminal justice find their roots in the legal and human rights philosophies enshrined in the British and American constitutions, which were historically influenced by the principles of natural laws, which have also undergone transition with the evolution of civilization and better understanding of divine laws. “Natural law refers to a body of principles and rules that are considered to be uniquely fitting for and binding on any community of rational beings.” 60 Natural law has also been described as the divine law, “identified with Bible and teachings of the Catholic Church and the fathers.”61 Natural law is synonymous with “higher law” and generally considered as binding. Natural law with biblical proscription was assimilated in English common law and Original Criminal Code of 1976 and became the source of British criminal law; while American Constitution of 1787 provided a fresh sources to the criminal law in America, which, inter alia, provided for criminal due process in terms of fifth and fourteenth constitutional amendments i.e. “no person shall be ------deprived of life, liberty, or property, without due process of law; nor shall any state deprive any person of life, liberty,

58An exclusive interview with Molana Muhammad Tufail dated 5 December 2015, a religious scholar, at Lahore; Imran Ahsan Khan Nyazee, Islamic Jurisprudence (Rawalpindi: Federal Law House, 2013), pp. 58-60. 59Jerome Hall, General Principles of Criminal Law (Indiana: The Bobbs – Merril Company Inc; 1960), pp. 307- 308. 60James A. Inciardi op. cit., p.43. 61Ibid. 121

or property, without due process of law.”62 Interestingly, the actually history of “due process of law” is very painful and connected with torture and brutality. Arthur Sutherland in 1965 had claimed that precise meanings of “due process” were not even known to the authors of the said amendments. During the Middle Ages (sixteenth century), “due process” was nothing but adherence to the law of the land; and use of torture to elicit confessions or ascertain guilt of the accused was not only common practice but sanctioned by existing law. Commencing from “strappado” – stretching of tied hands and legs through a pulley, “Spanish boots” – thumb and shin screwing, “spiked barrels and cradles” and the “iron maiden” i.e. a statute with spikes inside which would pierce through the eyes and body on closing the vessels and cause definite death.63 A comparatively less horrific illustration of “due process” may be visualized in the case of Ashford v Thornton.64 Ashford swore and charged Thornton of rapping and drowning his sister. The latter pleaded not guilty and demanded trial by battle, the recognized procedure for death cases. Ashford expressed his inability to fight with Thornton and requested the king’s justices to dispense with the procedure and decide the case on merit. But they ruled that the “due process”, would follow; and Thornton was set escort free.

The modern concept of American “due process” as emanated from Magna Carta of 1215 and its commentaries in 1354, though subservient and synonymous to the law of the land, not only guarantees protection of life, liberty and property but also obliges the government not to deprive of any citizen of these rights arbitrarily or without following “due process.” The said and other principles of British and American constitutions became the cornerstone of human rights and international humanitarian laws; and recognized as such international legal standards.

The principle of “due process of law” guarantees both “substantive and procedural due process.”“Substantive due process” envisages protection against “unreasonable, arbitrary or capricious laws or acts of the government; and that criminal law shall not be vague or uncertain that “men of common intelligence must necessarily guess at its meanings and differ

62During June 1789, a dozen amendments were presented by James Madison, who later became the forth American President, out of which about ten were approved by the congress. These are known as Bill of Rights. See James A. Inciardi ibid, pp.159-161. 63James A. Inciardi ibid, pp. 159-161. 64CharlesRembar, the Law of the Land: the Evolution of our Legal System (New York: Simon and Schuster, 1980), pp. 18-23, cited by James A. Inciardi ibid, pp. 159-191. 122

as to its application.” This has been described as “void-for-vagueness doctrine.”65 On the other hand, procedural due process requires that the accused should have prior notice of hearing i.e. a formal charge-sheet; he must be given proper opportunity of hearing and present his defence through a counsel of his choice; and he must be heard or prosecuted before an impartial judge or tribunal in a fair and free atmosphere; and that he shall not be inflicted cruel and unusual punishments.66 The said procedural due process guarantees have been given in the American Constitution through the Sixth and Eighth Amendments included through the Bill of Rights. The issue of capital sentence being a cruel and unusual punishment or otherwise has been debated since long not only in the superior courts of America but also in the world. Human rights groups and European Union has been critical of death penalty. However, the presenter of the eighth amendment and the Congress had not considered death penalty as cruel or unusual, as the said sentence had been inflicted in the Eastern and Western societies, mostly in cases involving murder and rape. They had in fact intended to prevent revival of mutilation of human body and organs, torture and brutality in the nature of thumb and shin screwing, iron maiden and sentences which did not commensurate with the gravity of offences. For example: O’Neil was incarcerated for 55 years for 307 times illegal selling of liquor; while Weems was sentenced to hard labour with chains for 15 years for making false entries in official record. Otherwise in 1958, the American Supreme Court had ruled that “depending upon the enormity of the crime, even execution may be made.” It may be recalled that during 1930s decade only, more than 1500 people were executed in America. It was in 1967, the President’s Commission observed discrimination in the award of death sentences which were mostly “executed against poor, Negros and people of unpopular groups, who had been systematically victimized by death sentence.”67 As a consequence thereto, execution of 500-600 prisoners on discriminatory and legal grounds came to a halt in the succeeding years; but death sentence, as a matter of punishment, was neither abolished nor set aside by the Supreme Court, except in mitigating circumstances, or when the sentence was discriminatory or not condign, in exercise of judicial review power. American States courts were also legally competent to award death sentence against murder convicts if the

65Peter W. Lewis and Kenneth D. Peoples, The Supreme Court and the Criminal Process – Cases and Comments. (Philadelphia: W.B. Saunders, 1978), p.92, as cited by James A. Inciardiibid, pp. 165-166). 66Ibid, James A. Inciardi pp. 162, 165-166. 67Ibid, pp. 525-529. 123

laid down parameters, pre-requisite for award of capital sentence were fulfilled.68 It was at a subsequent time in 1990 that through a further protocol in the American Convention on Human Rights, states parties to the convention were suggested and encouraged to abolish death penalty, not to re-establish capital sentence once abolished and award death only in serious offences after compliance of due process and fair trial.69 But death sentence is still a recognized punishment in America and is being awarded in different states of America. America is amongst the nine countries throughout the world wherein death sentence was carried out every year during 2009-2013. During 2015 and 2014, 28 and 35 condemned prisoners were executed in America.70 In contrast to America, European Union had already abolished death penalty through “European Convention for the Protection of Human Rights and Fundamental Freedom 1950 (entered into force on 3 September 1953), which was followed by another “Convention Against Torture and other Cruel Inhuman or Degrading Treatment or Punishment 1984, which had effect from 26 June 1987. The above said provisions of American Constitution and the British common law, as well as values of Western Europe became foundation of “human rights and fundamental freedoms proclaimed in the “Universal Declaration of Human Rights 1948”, and “Convention for the Protection of Human Rights and Fundamental Freedoms (1950).”71 The human rights articulated in the said international instruments overlap and are complementary to each other. How far Pakistani laws have assimilated these rights, with specific reference to the administration of

68See also Gregg v Georgia (1976), Coker v Georgia (1977), Godfrey v Georgia (1980) which deal with exhaustive debates and rulings on the issue of death penalty, cited ibid, pp. 525-542, 567. 69See Article 4 of the American Convention as amended vide 1990 Protocol and available at https://www.google.com.pk/#q=american+convention+on+human+rights+1969+pdf, accessed on January 3, 2016. 70See Amnesty International report “Death sentences and Executions 2014” available at http://www.amnestyusa.org/news/press-releases/georgia-scheduled-to-execute-kelly-gissendaner-0; “Annual Number of Reported Executions, Executions in 2015 to date (last updated on December 22, 2015)” available at http://www.deathpenaltyworldwide.org/country-search-post.cfm?country=united+states+of+america and “List of offenders executed in the United States in 2015”available at https://en.wikipedia.org/wiki/List_of_offenders_executed_in_the_United_States_in_2015, all accessed on January 1, 2016. There had been substancial increase in the execution of death sentence during 2015, which witnessed a total of 1634 exections, out of whom 977 people were executed in Iran, while 320 and 158 were executed in Pakistan and Saudi Arabia. See Amnesty International report “Death sentences and Executions 2015” available at https://www.amnesty.org/en/latest/research/2016/04/death-sentences-executions-2015/, accessed on August 6, 2016. 71Amended by Protocols No. 3 of 21 September 1970, 5 of 20 December 1970, 8 of 1st January 1990 and 11 of 1st November 1998. 124

justice and are in sink or conflict with them may be visualized with the help of the following table:-

Table 3.2 - Comparative Analysis of International Legal Instruments

S.N Universal International Convention for the 1973 European American o Declaration Covenant on Civil Protection of Constitution of Convention Convention of Human and Political Human Rights and Pakistan/Relevan for Human on Human Rights Rights 1966@ Fundamental t Laws Rights Rights 1948* Freedoms 1950# 1950% 1969& A B c d e F G 1. Article 3 Article 10 suggests Article 2 guarantees Article 4 provides Article Article 4(1) guarantees “persons deprived “right to life except protection against 1guarantees provides for “right to life, of liberty be treated in the execution of any “action right to right to life, liberty and with humanity and death sentence detrimental to the property. and prohibits security of respect.” awarded by court or life, liberty, body, arbitrary Articles 2 persons” in the course of reputation or deprivation of Article and 5 minimum use of property of any life. 9(1)guarantees guarantee force in right of person.” Article 7 “right to liberty and right to life, defence against provides security of person” Article 9 & 24(1) liberty and violence, to effect personal subject to ordainthat “no security of lawful arrest or liberty and procedure person shall be person. prevent escape from security. established by law. deprived of life or lawful custody to liberty as well as Article 6(1) quell a riot or property except in recognizes insurrection.” accordance with “inherent right to law.” life” and prohibits Article 5(1) protects

“arbitrary “right to liberty and deprivation of life.” security of person, except arrest or detention in execution of court order or to bring accused to justice or prevent escape from law. 2. Article 5 Article 7 prohibits Article 3 prohibits Article 14(2) Articles 1 Article 4(2)- prohibits “torture, cruel, “torture, inhuman or “prohibits torture and 2 (6)suggest “torture, inhuman or degrading treatment for the purposes (Modified abolition of cruel, degrading or punishment.” of extracting by Protocol death penalty

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inhuman or treatment or evidence.” 6) prohibits and prohibit degrading punishment.” death its re- PPC Section 306 treatment or penalty in establishment Article 6(2) guarantees that punishment.” time of in countries prohibits “death death shall not be peace. which have penalty, except in enforced against a already most serious crimes minor offender. Article 3 abolished it; and subject to final Juvenile Justice guarantees no death in judgment by the System Ordinance freedom political court. 2000 ordains that from torture offences, juvenile offender and Article 6(4) entitles against shall not be inhuman or death convicts to juveniles and awarded death. degrading seek pardon or above 70 treatment or commutation; and years old punishment. that death shall not convicts; may be enforced on be imposed juvenile i.e. below only in 18 years. serious crimes after final judgment of court; convicts have right to apply for mercy, pardon, amnesty and commutation. Article5 provides freedom from torture and inhumane treatment or punishment; and guarantees dignity of man even during custody.

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3. Article 9 Article 9(1) Article 5(2)-(4) Article 10(1)- Article 2 Article 10 forbids prohibits “arbitrary guarantees prompt (3)provides safe (Modifiedb provides for “arbitrary arrest or detention.” information of guards as to arrest y Protocol compensation arrest, charges against and detention; 7) provides Article 9(2)-(14) for detention or arrested/detained recognizes right of for right to recognizes right of miscarriage of exile.” person, his prompt the arrested appeal in the arrested or justice. production before person to know criminal detained person to judge for trial within the ground of cases. know the charges reasonable time to arrest and consult against him, to be Article 3 determine his guilt counsel of his promptly produced (Modifiedb or release in choice, to be before a judge ‘for y Protocol accordance with law. produced before a trial/determination 7) magistrate within of his or innocence. Article 5(4) entitles guarantees 24 hours. victim of unlawful compensati Article 9(5) arrest or detention Article 10(4) on for recognizes “right of right to permits preventive miscarriage compensation for compensation. detention for of justice. victim of unlawful period of three arrest or detention.” months only against the persons acting against integrity, security, defence or external affairs of Pakistan, public order or maintenance of supplies etc subject to review by a Review Board consisting of judges of the superior judiciary.

CrPC Section 50 authorizes award of compensation against false accusation or frivolous complaint.

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4. Article 11 Article Article 6(1) Article Article 4 Article 8 and guarantees 14(1)guarantees guarantees fair and 10Aguarantees (Modifiedb 9 “presumption “equality before public trial, by an “fair trial and due y Protocol guaranteeright of innocence courts and independent and process.” 7)provides to fair trial by until proved tribunals, fair and impartial tribunal, for“protecti Article 11 an guilty, public public hearing by within reasonable on against prohibits independent trial, right to ‘independent and time, with right of double “retrospective trial already defence, and impartial tribunals the court to exclude jeopardy.” punishment.” established by protection established by press and public in Articles 6 law, against law”; with right to the interest of Article 13 and presumption retrospective exclude press and justice, public order, guarantees 7guarantees of innocence, punishment. public from trial national security or “protection “right to fair right to proceedings in the private life of against double trial and engage interest of justice, parties; and public punishment and protection counsel of public order, announcement of self against own choice, national security, judgment. incrimination.” retroactivity right to appeal but such judgment Article 6(2) - (3) CrPC Section 403 of criminal and freedom to be made public.” “guarantees protects second law.” from ex post Article 14(2) – presumption of trial of any facto criminal (3)ensure innocence, right to acquitted or law. “presumption of be informed of the convicted person innocence until charge sufficient for the same proved guilty in time/opportunity for offence or on the accordance with preparation of basis of same set law”; recognizes defence and to be of facts. right of the accused defended in person Article 45 to be promptly or through “legal provides right of informed of nature assistance” of his appeal/mercy and cause of charge choice or provided petition to and expeditious free of cost; to President. trial, sufficient time produce defence PPC Section 309, and facility to witnesses, cross- 310 and 338E prepare defence examine the recognize right to and communication witnesses and compromise or with counsel of his assistance of waiver by the choice, to be tried interpreter”. aggrieved party. in his presence and Article 7 gives provided “legal “protection against assistance”, if he retrospective or cannot afford legal heavier punishment, assistance of his

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choice; right to except the act or cross examine omission which was witnesses, produce criminal, when defence and not to committed, be compelled to according to the confess his guilt. general principles of law recognized by Article 14(5) civilized nations.” recognizes right of appeal or review by a higher tribunal ‘in accordance with law’.

Article 14(6) recognizes right to compensation or miscarriage of justice or conviction based on false grounds; and provides protection against double jeopardy.

Article 15 protects from retrospective or graver punishments, than the one provided at the time of offence. 5. Article 12 Article 17 prohibits Article 8 respects for Article 14(1) Article 8 Article 11 and prohibits “unlawful “right of family and “recognizes protects 17 recognizes “arbitrary interference with private life, home, dignity of man “rights to respect for interference privacy.” correspondence and privacy of respect for privacy and with except in the interest home.” private and family life. privacy.” of national security, family life, public security, for home and prevention of corresponde disorder or crime, nce.” health, morale and freedom of others.”

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Sources:

Universal Declaration of Human Rights 1948 came into force on 18 July 1978. The convention is available at * https://www.google.com.pk/#q=text+of+universal+declaration+of+human+rights+1948, accessed on January 3, 2016.

@ International Covenant on Civil and Political Rights 1966available at https://www.google.com.pk/#q=international+covenant+on+civil+and+political+rights+1966+pdf, accessed on January 3, 2016.

# Convention for the Protection of Human Rights and Fundamental Freedoms 1950, available at https://www.google.com.pk/#q=Convention+for+the+Protection+of+Human+Rights+and+Fundamental+Freedo ms+1950, accessed on January 3, 2016.

% European Convention available at https://www.google.com.pk/#q=text+of+european+convention+on+human+rights, accessed on December 15, 2015. The Convention came into force on 3 September 1953; and was followed by 7 Protocols (in 1952, 1963- 1994) to include more rights. & American Convention adopted on 22 November 1969 came into force on 18 July 1978; and was followed by 2 Protocols (in 1988 and 1990) to extend the rights. The Convention is available athttps://www.google.com.pk/#q=american+convention+on+human+rights+1969+pdf, accessed on January 3, 2016.

The above legal instruments, in the first instance, suggest that there had been gross violations of human rights throughtout the world which necessicated reinforcement of these rights through the said conventions.72 Secondly, right to fair trial and due process is one of the cordinal principles of criminal justice in all the societies. Pakistan had assimilated these rights in Articles 4 and 9 of the Constitution and reinforced them after the 18th Amendment by incorporating Article 10A in the Constitution. Fair trial would mean presumption of innocence, public trial by independent and impartial tribunal, right to counsel and meetings in privacy, right to cross-examin witnesses, producedefencewitnesses and present argument, and seek mercy.

Comparative analysis of the above legal instruments suggests that except award of death penalty, Pakistan has assimilated and adopted almost all international legal standards in its laws; and it is true at least to the extent of theory. However, specific instances of violation of international legal standards are a matter of argument and debate which may be discussed in the discussion and analysis portion. In addition to the above legal instruments, 3rd and 4th

72Sayed Ali Zafar, “Fair Trial-Prospects and Implementation” (PLD 2014 Journal 54, p. 56). 130

Geneva Conventions of 1949 relative to the Treatment of Prisoners of War and Protection of Civilian Persons in Time of War respectively are also attracted in the context of WOT.73 Article 4A of the 3rd Geneva Convention defines Prisoners of War (POWs) and suggests that, amongst others, members of the armed forces and other militia or volunteer corps including those forming part of organized resistance movements, whether forming part of such forces or otherwise, shall be termed as POWs if they have a command and control structure with someone responsible for them; they have fixed recognizable signs; they openly carry arms and conduct operations in accordance with laws and customs of war. Article 4B of the Convention further suggests that any of the above mentioned persons ‘interned’ or intended to be ‘interned’ may also be termed as POW. Article 5 of the Convention conveys that in case of doubt as to the status of any person having allegedly committed any “belligerent act”, he shall be treated as POW and enjoy the protection available to POWs. Article 13 envisages humanely treatment to POWs and regards death or serious injury during custody, due to any unlawful act or omission, as a serious breach of the convention. Article 14 guarantees respect for persons and honours of the POWs. Articles 21-24 deal with their rights and obligations during internment and possibility of release on parole or promise; while Articles 39-42 deals with their discipline. Article 99 gives protection against retrospective punishments, coercive, induced or forced confessions and guarantees right to counsel of choice; whereas Article 102 permits trial and sentence by the courts martial, following the procedure applicable to the subjects of Armed Forces laws of the detaining power. Articles 3 and 4 of the 4th Geneva Convention provide human rights protection to the non-combatant civilians termed as protected individuals, in the captivity of the occupying state or powers in the time of war;however, its Article 5 creates an exception for those civilians who are either spies or saboteurs or are engaged in activities prejudicial to the security of the occupying power or against whom definite suspicion of such hostile or prejudicial activities exists. Such persons do not enjoy the protection of trial by regular courts and may be tried by non-political military courts in terms of its Article 66. However, such persons shall have protection against retroactivity of law or punishment, right to know the charges against them, present defence

73Commentary III Geneva Convention and Commentary IV Geneva Convention (Geneva: ICRC, 1958). Pakistan has ratified both the conventions and is under an obligation to abide by these conventions and act accordingly; however, it did not ratify Additional Protocols of 1977 to these conventions which are not of significance to this discussion. 131

witnesses and evidence in their favour, assistance of an advocate and free communication with him as well as right to appeal, as provided under its Article 67 and 71-73.

3.5 Conclusion

The existing criminal justice system of Paksitan is akin to the criminal justice system of the western countries and international legal standards in terms of its broad contours. Role of police, law enforcement, intelligence and prosecuting agencies, lawyers’ community, courts and prisons cannot be undermined, as these organs constitute a whole criminal justice. Efficiency of one organ affects performance of the other organs and vice-a-versa. To the extent of theory, criminal justice system of Pakistan is compatible with many countries of the West and America. It meets the international legal standards, with the exception of few rights e.g. imposition of death penalty, which is also in vogue in many American States, Asian and Gulf countries. However, violations of the rights enshrined and protected under the constitution as the fundamental rights have been observed in practice by none else but the said organs of the state. Such violations are overlooked as individual acts or in the name of secutity but definitely contribute to the deterioration of the system. Instead of having check and balance on the other organ, a culture of impunity, exenoration and formal overlooking of such violations has cropped up. For example, the law permits arrest and detention of any person accusd of an offence. It also makes obligatory on the arresting authority to convey him the grounds of arrest, provide him access to counsel of his own choice and produce him before a magistrate without 24 hours of his arrest. The only exception to the said right is in the case of preventive detention of a person acting against the integrity, security or defence of Pakistan, which shall not exceed three months.74 However, this right is flagrantlyviolated. The persons arrested generally are not given access to counsel and are kept in unlawful custody before effectuating and recording formal arrests. This is common both in ordinary criminal and terrorism cases. The allegations become more glaring in the garb of fight against terrorism, which observed prolonged and enforced disappearances. Though the same have been regularized through the Protection of Pakistan Act 2014 (POPA) yet the issue of missing persons highlighted violation of the fundamental rights. The commission for rrecovery of missing persons headed by Retired Justice JavaidIqbal and the Supreme Court

74Article 10 of the Constitution. 132

observed this violation and provided some relief to the aggrieved families. However, neither the law could be implemented in its true essence nor all the aggrieved received the prompt and efficacious relief. Hence there is a need to abridge this gap in theory and practice. If the law provides that no person shall be deprived of life and liberty except in accordance with law,75 no person should be arrested or detained unless sufficient incriminating evidence is available, collected and produced against him. Deprivation of life and liberty on the basis of mere suspition leads to deprivation of another right i.e. right to counsel, as the apprehending agency would tryto delay access to counsel and extract more and more evidence before allowing meeting with the counsel. Delay or denial of right to counsel firther compromises another right, which is right to fair trial. In view thereof, if the apprehending agency had collected sufficient evidence, they would be acting in accordanc with law, protecting at least the said three rights and adding to the efficiency of other organs of the criminal justice system.

75Article 9 of the Constitution. 133

CHAPTER 4

HISTORICAL EVOLUTION OF CRIMINAL JUSTICE SYSTEM AND PRESENT STATE OF SECURITY/ANTI-TERRORISM LAWS IN PAKISTAN

The dimensions and necessities of national security and related laws have undergone a transition in the wake of fight against terrorism. Terrorism is no more the game of mere muscles and bravery. It is a demonstration of covert and overt violence just like the combat operations in the war gaming. The terrorists now utilize all modern technological and scientific skills to demonstrate expertise in terrorism.1 Cross border terrorism and cyber crimes while sitting at far distance and safe places, providing funding, motivating suicide bombers and using modern means of communications to target the intended object has become a known practice in terrorism. The terrorists are intelligent enough to escape punishment by taking a simple plea of alibi. On the other hand, there is a general perception that criminal justice system of Pakistan is not compatible to fight terrorism and bring the terrorists to justice. Neither the police nor the intelligence agencies have the capacity and competence to apprehend and prosecute the perpetrators of terrorism. The judiciary, in the pretext of personal security and legal voids, also evades punishing the terrorists, who are otherwise treated as the blue eyed babies of law. Is this perception based on hearsay or supported by ground realities? Is it based on inherent weakness of law or is a recent phenomenon? Such issues may be analyzed by tracing back history of the criminal justice system in Pakistan and establishing a nexus between the past and the future.

This chapter reconnoiters the historical development of security and anti-terrorism legislation in Pakistan and articulates substance of the relevant laws, in three phases viz: post independence to separation of East Pakistan (1947- 1971), emergence of new Pakistan to ouster of Benazir Bhutto (1972- 1996), and Nawaz Sharif and President General Pervez Musharraf regimes in the pre and post 9/11 tragedy (1997- 2015). The manifest intent to

1With the increase in the number of internet users to over 3 billion, the risk for cyber terrorism and cyber warfare has increased manifold. That is why the need for developing a robust cyber warfare strategy and capacity under a legal framework is always emphasized. See for example: Uzair Younus, “The threat of cyber terrorism”, DAWN Islamabad, March 21, 2016, p.8. The government has also promulgated the Prevention of Electronic Crimes Act 2015 (PLD 2016 Federal Statutes), which was promulgated by the President on 13 August 2016. 134

carry out this historical survey is to establish nexus of the existing security and anti-terrorism laws with the past and provide a basis to evolve future anti-terrorism legal strategy, based on the previous experiences.2 The historical account will also help in analyzing the amendments in the anti-terrorism laws in the post 9/11 scenario on the touchstone of constitutional guarantees and international legal standards. Effects of the amendments on combating terrorism and internal security of Pakistan shall also be discussed on this basis of this historical account, in a bid to analyze the general perceptions. The study in this chapter will also assist in scrutinizing if the amendments introduced in the security and anti-terrorism laws in the post 9/11 scenario are in conflict or in consonance with the constitutional guarantees and fundamental rights. Simultaneously the study in this chapter will facilitate in investigating the extent of adequacy and effectiveness of existing laws regarding terrorism.3

4.1 Security and Anti-terrorism Legislation in the Post Independence to Separation of East Pakistan (1947-1971)

This is the first phase of Security and Anti-terrorism legislation for Pakistan and encompasses the period from post-independence to 1971, when East Pakistan (now Bangladesh) was separated. Pakistan had inherited its legal and judicial systems from the British masters in terms of the Indian Independence Act 1947,4 which not only established two independent dominions of India and Pakistan but also provided that the governments of the new dominions shall be governed as nearly as may be in accordance with the Government of India Act 1935, until new constitution is framed by Constituent Assembly of each dominion. The Governor General was empowered to modify or adopt the Government of India Act 1935 or promulgate other laws/orders till March 31, 1948, whereafter this power would be exercised by the Constituent Assembly.5 Accordingly, the Governor General promulgated the Pakistan (Provisional Constitution) Order 1947, whereby the Government of India Act 1935, the Indian Independence Act 1947, and other Orders promulgated and Acts

2 Future anti-terrorism legal strategy will be suggested in chapter 7. 3 The analysis, effects and adequacy of the existing terrorism laws are subject matter of chapter 7, which is dedicated for analysis and resolution of different hypothesis and research questions. 410 & 11 GEO VI, Chapter 30. See also Government of India Act 1935 (26 Geo V, Chapter 42), (Lahore: PLD Publishers, 1952), which also contains the said 1947 Act. 5See generally Sections 6-9 of the Indian Independence Act 1947. However, this period was extended for another year till March 31, 1949 vide the Indian Independence (Amendment) Act 1948, whereafter the Governor General had added Section 92A to the 1935 Act, whereby he could authorize Governor of any province to make laws for that province. 135

passed by the Governor General and the Constituent Assembly/Legislature, as the case may be, served as the Constitution of Pakistan till October 1954, when Governor General Mr Ghulam Muhammad dissolved the Constituent Assembly with Moulvi Tamizuddin Khan as its President.6 By virtue of the said interim arrangement for governance of the newly independent state of Pakistan, inter alia, a number of legal instruments/laws, applicable before independence, were adopted mutatis mutandis.7 Some of the said laws which, though have undergone a transition but are applicable even today, were relevant to the maintenance of public order, peace and tranquility, helped curb criminal anti-national and espionage activities, are enlisted as under:-8

 Evidence Act 1872, which was later amended/re-arranged as Qanun-e-Shahadat 1984  Code of Criminal Procedure (CrPC) 1898  Indian Penal Code 1860, subsequently described and assimilated as Pakistan Penal Code (PPC) 1860  Explosives Act 1884  Explosive Substances Act 1908  Frontier Crimes Regulations 1901  Prevention of Seditious Meetings Acts 1911  Punjab Restriction of Habitual Offenders Act 1918  Official Secrets Act 1923  Registration of Foreigners Act 1939  Foreigners Act 1946

The above mentioned statutes directly or indirectly laid the foundation of the criminal justice system, security and anti-terrorism laws in Pakistan, whereby the criminals were

6For reasons of dissolution of the Assembly and the ensuing legal battle which had far-reaching effects on the politics and fate of the country, see Federation of Pakistan v Moulvi Tamizuddin Khan (PLD 1955 FC 240). 7Section 18 of the Indian Independence Act 1947, inter alia, provided that laws of British India and of the several parts thereof existing immediately before the appointed day shall as far as applicable and with the necessary adaptation, continue as the law of each of the new Dominions ------until other provision is made by laws of Legislature of the Dominion. See also Adaptation of Existing Pakistan Laws Order 1947 (PLD 1951 Central Statutes 482), whereby the laws applicable/existing before 1947 were also adopted by Pakistan with minor adjustments/ replacement of place, designation etc. 8In view of relevance of the research, only the criminal/penal laws have been listed while reference to the civil laws has been avoided. 136

punished for committing any crime or violence, breaching the peace and tranquility in the society and involvement in anti-state or espionage activities; while the like-minded had been deterred. All the above laws are still operative and provide the basic structure for the criminal justice system of the country. In order to understand the nature and extent of each law and intent of the framers of law, it may be highlighted that the said laws are procedural and penal in nature.

4.1.1 The Evidence Act, 1872 (now Qanun-e-Shahadat 1984)9 provides for the mode and manner of collecting, recording and appreciating the evidence by the police and the courts to determine the fate of the case, while applying the principles of evidence including the relevancy, admissibility, and exclusion of evidence, burden of proof, admission and confession of crimes and the like. 4.1.2 Similarly, the Code of Criminal Procedure (CrPC) 189810 provides for the uniform procedure to be followed by the police and the courts for investigation and trial in criminal cases, which does not only protect legal rights of the accused but also suggest the parameters within which the investigating agencies and the courts in all tiers are to operate. The Code also provides for arrest, detention, warrant, investigation, remand, bail, right to counsel etc. 4.1.3 The Indian Penal Code 1860 which was later adopted as the Pakistan Penal Code (PPC)11 describes as to what acts, omissions or delinquencies shall constitute the offences and prescribes punishments for the same. However, the Code applies neither to the services personnel for punishing the offences of mutiny and desertion punishable under the respective services laws nor repeals or affects the provisions of any special law.12 The Code amongst other includes Chapter VI relating to the offences against the state including waging of war or conspiracy to commit such offences, collecting arms with intent to wage war, concealing existence of design to wage war, assaulting or wrongfully restraining or using criminal force to President or Governor of any province with intent to induce or compel them to exercise or refrain

9Iqbal Mahmood Awan, The Qanun-e-Shahdat (Order X of 1984), (Lahore: Mansoor Book House, 2013). 10Ahsan Sohail Anjam, Code of Criminal Procedure (V of 1898), (Lahore: Mansoor Book House, 2012). 11Shahid Hussain Qadri, Pakistan Penal Code (XLV of 1860), (Lahore: Mansoor Book House, 2012). 12PPC Section 5. Section 5(2) of the CrPC also contains similar provisions whereby the said Code has not been made applicable to offences to be investigated, tried and dealt with under special laws. 137

from exercising their lawful power.13 In order to deal with crimes against public tranquility, offences such as unlawful assembly, rioting and rioting armed with deadly weapons, assaulting or obstructing public servants, promoting enmity between groups, inducing students to participate in politics and affray had also been included in Chapter VIII.14 The Code also describes, creates and prescribes punishments for the offences of criminal conspiracy, condemnation of creation of Pakistan and advocacy of abolition of its sovereignty and sedition and defiling national flag.15 The Code also penalized attempt or abetment of mutiny or seduction in the Armed Forces or assault by the services personnel on any superior officer.16 While the offences of murder, hurts, kidnapping/abduction, robbery, dacoity, extortion, fraud, forgery, trespass/house breaking, wrongful restraint, wrongful confinement, wrongful confinement in secrets, kidnapping and abduction were also included in the Code.17 Sufficient provisions had also been incorporated for proper administration of justice and the acts or omissions against public justice were made punishable. Such offences included, among others, giving or fabricating false evidence, screening offenders intentional omission to give information of offence to police/other public servants, dishonestly making false claim in court, false charge of offence made with intent to cause injury to anyone, harbouring offenders, false information to public servants to use public authority to the annoyance of another person.18 4.1.4 The Explosives Act 188419 defined ‘explosives’, inter alia, to include gunpowder, nitroglycerine, fulminate of mercury, chemical compounds, fog signals, fireworks,

13See generally PPC Sections 121-124. 14See generally Chapter VIII (PPC Sections 141-160). Section 153A and 153B were subsequently added during 1973 and 1962 respectively to discourage and penalize promoting enmity between groups and inducing students in politics. 15The provisions such as Sections 120A and 120B, 121A, 123A and 123B and 124A were added by the British to protect their rule in the background of 1857 War of Independence, as the Indians described. Section 124A, which created the offence of sedition, has otherwise been described as an “archaic charge” and “relic of the British colonial area”. Despite that in India, the cases of “sedition” are framed against “the political opponents with frenzy”. As per the National Crime Records Bureau”, during 2014, 47 sedition cases were registered. See also A.G. Noorani, “Archaic charge”, DAWN Islamabad, March 12, 2016, p. 9. However, Sections 123A and 123B related to condemnation Pakistan and defiling its flag were added by the Government of Pakistan in 1950 and 1984 respectively, when the roots of communism were being sowed in the country and instances of defiling national flag in the Province of KP, Sind and Balochistan were reported by the nationalist movements. 16 Chapter VII (Sections 131-140) of the PPC. 17 See generally PPC Sections 300-302, 319-337, 359-365, 383-402, 444-462, 463-471, 441-462. 18 See generally, PPC Sections 182, 191-201, 202 read with CrPC Section 44, 209-221. 19M. Farani, Criminal (Local & Special Laws) Minor Act (Lahore: Law Times Publications, 2005), pp. 520-527. 138

detonators, cartridges, ammunitions of all descriptions etc. and prohibited either absolutely or subject to condition, their manufacturing, possession, use, sale, transformation and importation, except under a license or permission by the Federal Government; and penalty of any breach thereof may extend to rupees thirty thousands.20 The Act also authorized the Federal Government to make rules for entry and inspection by an authorized officer of any place where the said activities relating to explosives are being carried out; and search, seize, forfeit, detain, remove or destroy any explosive found therein, subject to the adherence of the relevant provisions of the Code of Criminal Procedure. The Act prescribed a fine of five thousand rupees or imprisonment for three months for failing to given notice of accident relating to explosive; and empowered the police to arrest without warrant persons committing dangerous offences like causing explosion or fire at the place where explosives are manufactured, stored or transported for trial under any other relevant law.21 4.1.5 As opposed to the Explosives Act, the Explosive Substances Act 190822 is a strict penal law which prescribed the punishment of death or life imprisonment for unlawfully and maliciously causing explosion by any explosive substance which endangers life or causes serious injury to property; whereas any attempt or conspiracy to commit any such offence was ordained to be punishable with life imprisonment or rigorous imprisonment not less than seven years. The Act also prescribed rigorous imprisonment upto fourteen years for making or possessing explosives under suspicious circumstances and forfeiture of the whole property. The Act placed a restriction of trial of the said offences by any court except with the consent of the provincial government.23 4.1.6 Frontier Crimes Regulation (FCR) 1901 Frontier Crimes Regulation (FCR) 190124 is not a penal law in itself. It is mainly a procedural law applicable in tribal areas as a substitute for CrPC. Ever since its

20Sections 4-6 of the Explosives Act 1984. 21Ibid, Sections 7-10, 13 and 16. 22M. Farani, Criminal (Local & Special Laws) Minor Act (Lahore: Law Times Publications, 2005), pp. 527-528. 23Sections 3-7 of the Explosive Substances Act 1908. Section 5A was added by Act XL of 1975, which authorized forfeiture of property. 24 Kazi Muhammad Ashraf, Punjab Laws (Volume I) (Lahore: Mahmood & Company, 1964). 139

promulgation, FCR 1901 had been applied by the British for “suppression of crimes in certain frontier districts”, mainly Hazara, Mardan, Peshawar, Kohat, Dera Ghazi Khan and Bannu; and applied on Pathans and Biluchis. It had even been extended to the Mianwali district of Punjab. However, after the independence, it was initially extended to the whole of West Pakistan. In addition to the said districts, it was also extended to Quetta and Kalat divisions and districts of Lasbela, Nasirabad sub- division of Jacobabad, and Sargodha. However, in 1963, the extent and application of the FCR was limited to Pathans and Biluchis and such classes/persons in the specified districts as the Provincial Government may declare by notification.25 However, subsequently, FCR was limited to Federally Administered Tribal Areas (FATA) only.26 The provisions of the Regulation have overriding and concurrent effect; hence may take effect, notwithstanding anything contained in any other enactment; and the powers given there under may be exercised in addition to the powers conferred under any other law.27 The Regulation provided a mechanism for resolution of civil and criminal disputes or cases through the “Councils of Elders”or Jirga, as is commonly known, nominated by the Deputy Commissioner/ Political Agent.28 He may refer any dispute (likely to cause blood-feud, culpable homicide/murder, mischief or breach of peace) for settlement or determination of

25 See Sheru Dharana v M.A. Bajwa, Deputy Commissioner (PLD 1962 Lah 990) and Masud Ahmad v The State (PLD 1962 Lah 878) which validated extension of the Regulation to Sargodha, despite its confined application to Frontier Districts as explained in its preamble. For historical development of FCR, see Dr. S.M Hyder “Evolution of Frontier Crimes Regulation” (PLD 1967 Journal 41 - 47) and Paras 33, 46-47 of Abdul Bari case (PLD 2014 Peshawar 132), pp. 149-150, 154-155. For issues relating to the jurisdiction of superior courts in tribal areas, see Masud Ahmed, “Constitutional Position of the Tribal Areas of West Pakistan”(PLD 1967 Journal 100-140), Sar Khan v The State (PLD 1967 SC 149-153) and Abdul Bari v Director Livestocks, Dairy Development, FATA Secretariat (PLD 2014 Peshawar 132-170). 26Vide Frontier Crimes (Amendment) Regulation, 2011 (PLD 2012 Federal Statutes 1-24), Section 1 of the FCR 1901 was substituted to describe FATA, as may be notified by Governor KP under Article 145 of the Constitution and as specified in the Third Schedule, which now include, tribal areas adjoining the districts of Peshawar, Kohat, Bannu, DeraIsmail Khan, LakkiMarwat and Tank; and Bajur, Orakzai, Mohmand, Khyber, Kurram, North Waziristan and South Waziristan Agencies. 27“Frontier Crimes Regulations 1901”, Section 3. 28The words Deputy Commissioner and District Magistrate were subsequently substituted with “Political Agent, District Coordination Officer or Assist Political Agent, as the case may be, vides the Frontier Crimes (Amendment) Regulation 2011(PLD 2012 Federal Statues 1-25), promulgated by President Asif Ali Zardari on the 25th day of August 2011, under Article 247(7) of the Constitution. The 2011 amendment provided immunity from arrest to women, children ( under 16 years) and old persons (above 65 years); established a two-members “FATA Tribunal” with a retired judge of the High Court as Chairman and District & Sessions Judge or equivalent an ex cadre officer as Appellate Authority; appointed “Joint Council of Elders” by Governor KP to settle disputes between different agencies or Frontier Regions; and maintenance of accounts regarding disposal of money/ fines collected or received under the FCR and their audit through the Auditor General Pakistan. 140

guilt or innocence of any person(s) accused of any offence (as mentioned in the second schedule and include waging war against the government, sedition, mutiny, unlawful assembly, rioting, murder, kidnapping, dacoity, robbery, house breaking etc.) and decision of the said council/jirga regarding his trial by a civil or criminal court.29 On receipt of the finding of the council/jirga, the Political Agent may remand the case back to the same council/jirga, refer the case/question to another council/jirga, convict the accused as per the finding of guilty by the council with three-fourth majority, or pass a decree or declare that further proceedings are not required if the dispute/case referred was civil in nature. If the case is of criminal nature, the Political Agent may convict the accused and award punishment or acquit or discharge him who shall not be re-tried on the same facts after the expiry of two years of such discharge or acquittal.30 In case of punishment, the imprisonment may extend to fourteen years depending upon the nature of offence, even in case of murder for which the sentence described in the PPC is death or imprisonment for life or rigorous imprisonment which may extend to 25 years. However, if the offence is murder or dacoity with murder, immovable property of the accused shall also be liable to forfeiture to the government.31 The Commissioner or Political Agent may convict and sentence any accused before commencement of the trial in the Court of Session or in case of an inferior court, at any time before an order of conviction or acquittal is made. And for doing so, at any time before commencement of trial or conviction, as the case may be, the public prosecutor may request the court for withdrawal of prosecution, for reference to the Council of Elders.32 However, the Political Agent shall not convict or sentence any accused or pass any decree unless he is satisfied that the accused or the parties had been explained the charge/afforded due opportunity of hearing and defence.33 The Regulation also authorized blockade or sanctions, fines or forfeiture of public emoluments and remission in revenues on frontier tribes, communities and their

29Ibid, Sections 8-11. 30Ibid, Section 11. 31Ibid, Section 12. 32Ibid, Sections 14-15. 33Ibid, Sections 18 and 20. 141

members who had been acting in a manner hostile or unfriendly to the government, had connived or abetted commission of offences or harboured offenders or failed to extend assistance for arrest of the alleged offenders and failed to prevent murders or other heinous crimes in their areas. The Regulation also authorized demolition of buildings used by robbers and other criminals, and arrest of criminals by any private person.34 Similarly, the Political Agent may on the recommendation of the “Council of Elders/Jirga” or after conducting an inquiry or at the time of his conviction, require any person convicted or suspected to commit or abet murder or culpable homicide or disseminate sedition, to execute bond, with or without sureties, for maintaining good behavior or keeping peace in the area. The families or factions of the persons involved in the cases of likely blood-feud may also be required to furnish such bonds.35 It is worthwhile to highlight that massive amendments were introduced in the FCR vide Frontier Crimes (Amendment) Regulation, 2011. Preamble of the FCR was substituted to provide “for maintenance of peace, law and order and good governance in FATA.” FATA were re-designated as “tribal areas adjoining the districts of Peshawar, Kohat, Bannu, DeraIsmail Khan, LakkiMarwat and Tank; and Bajur, Orakzai, Mohmand, Khyber, Kurram, North Waziristan and South Waziristan Agencies.”36 The amended FCR provided a mechanism of appeal before FATA Tribunal and Appellate Authority, created as a substitute for ‘High Court’ and ‘Sessions Court or Sessions Judge’ respectively. It provided right to appeal before the Commissioner and Additional Commissioner, if so authorized by Governor KP, against the decision of the Political Agent or the District Coordination Officer, within 30 days of his decision.37 The Commissioner or Additional Commissioner, being the Appellate Authority, may enhance the sentence, after having given notice to the convict, but are not obliged to set aside finding of the Council of Elders accepted by the Political Agent or District

34Ibid, Sections 21-29. 35Ibid, Sections 34, 38 and 39. 36See Section 1 of the FCR 1901 substituted vide Frontier Crimes (Amendment) Regulation 2011 to describe FATA, as may be notified by Governor KP under Article 145 of the Constitution and as specified in the Third Schedule. 37Sections 47 and 48 of the FCR as amended vide Frontier Crimes (Amendment) Regulation, 2011. 142

Coordination Officer, except in exceptional circumstances to advance the cause of justice.38 However, the Appellate Authority may not review its own decision.39 The Regulation, however, vested in the FATA Tribunal the power to review any of its own order, decision, judgment, advice or sentence and those passed by the Appellate Authority, on the application of any aggrieved person.40 The FATA Tribunal is to consist of Chairman (who has been a grade 21 civil servant) and two members (one of whom to be qualified as judge of High Court and the other grade 20 civil servant having experience in FATA administration).41 The amended Regulation maintained the custom/rewaj of collective responsibility. The whole village community shall continue to be responsible for any murder or death or attempt thereof and liable to pay fine, except if the village community justifies that they did not find the opportunity to prevent crime or they help bring the accused to justice.42 The Regulation not only ousted jurisdiction of any other court but also did not provide any appeal against any decree or sentence etc passed under the Regulation except a revision by the Commissioner who may call record of any proceedings and revise the sentence or decree etc., tender pardon to an accused or exercise powers of an appellate court and enhance the sentence.43 Even jurisdiction of the superior judiciary in FATA, the areas where jurisdiction of FCR is extended, has been explicitly ousted vide Article 247(7) of the Constitution. Accordingly the superior judiciary has been exercising restraint to interfere in matters related to tribal areas.44 FCR has been generally regarded as violative of human rights on different grounds45 and described as “obnoxious to all recognized modern principles

38Section 50 of the FCR as amended vide Frontier Crimes (Amendment) Regulation, 2011. 39Section 54 of the FCR as amended vide Frontier Crimes (Amendment) Regulation, 2011. 40Section 54 and 55AA of the FCR as amended vide Frontier Crimes (Amendment) Regulation, 2011. 41Section 55A of the FCR as amended vide Frontier Crimes (Amendment) Regulation, 2011. 42Sections 21 to 27 and 41-45of the FCR as amended vide Frontier Crimes (Amendment) Regulation, 2011. 43Ibid, Sections 48-50 and 60. For tender of pardon, see CrPC Section 338; and for powers of Criminal Appellate Courts, see CrPC Sections 195, 423, 426-428. 44Reference in this regard is generally made to “Ch Manzoor Elahi v Federation of Pakistan” (PLD 1975 SC 66), “Qaum Bangash v Qaum Turi” (1991 SCMR 2400), “Shoukat Khan v Assistant Political Agent” (PLD 2002 SC 526), “Munawar Khan v Political Agent Khyber Agency Station” [2012 MLD 503 (Peshawar)] and Additional Chief Secretary (FATA) v Piayo Noor” (2014 SCMR 17), decided on 23 May 2013. 45There have been debates to do away with FCR and provide the people of FATA a judicial system which is at par with the judicial system for rest of the people of Pakistan. See for example:- I. A. Rehman, “Shadow of the 143

governing the dispensation of justice” and termed as “discriminatory, un-Islamic and illegal.”46

4.1.7 Prevention of Seditious Meetings Act 1911 Prevention of Seditious Meetings Act 191147 was intended to control and prohibit ‘public meetings’, whether in public or private premises or for general public or any specific class or portion of the public, intended to promote and discuss issues which may cause unrest and excitement in public or exhibit or distribute any written or printed matter so as to advance the said cause. The Provincial Governments were accordingly authorized to notify any area as the ‘proclaimed area’ for a maximum of six months at one time, which may be extended with a further notification.48 During the continuation of the said notice, no ‘public meeting’ could be held with such intent unless a three days prior notice has been given to the District Magistrate or Magistrate 1st Class and permission for convening such meeting had been accorded. The concerned Magistrate may order one or more police officers to attend the meeting who shall not be denied attendance or access to the meeting, so that they may report if the meeting could promote sedition, disaffection or disturb peace and tranquility in the public, either as a consequence of any written or verbal expression. If any person convenes any meeting and commits or causes to commit any act in violation of the conditions of the permission accorded or the provisions of this Act; or delivers any seditious or provocative address, speech, sermon or literature, which may compromise peace and tranquility, he could be awarded imprisonment upto six months or fine or both by the said Magistrate.49 This law is applicable even today.50

FCR”, DAWN Islamabad, June 30, 016, p. 8, which speaks of vires of the “collective punishment” and decision making on the basis of rivaj (customs) under the FCR, violation of due process and human rights. 46It was so observed by A.R.Cornolius in Sumandar v State (PLD 1954 SC 228) and , and quoted as such in Abdul Bari case Ibid, pp. 155. 47Pakistan Code (Vol VI) 1966, p. 51. 48Prevention of Seditious Meetings Act 1911, Preamble and Sections 1-3. 49Ibid, Sections 4-8. 50It is evident from Schedule III to Section 17(2) of the Actions (in Aid of Civil Power) Regulation 2011 (PLD 2012 Federal Statutes 46) wherein all offences punishable under this Act have also been made punishable under the Regulation. 144

4.1.8 Punjab Restriction of Habitual Offenders Act 1918

Punjab Restriction of Habitual Offenders Act 191851 authorizes a Magistrate to issue an order of restriction (not exceed three years) against a habitual offender if such a person fails to execute a bond or security of good behavior or satisfy the Magistrate.52 By virtue of such an order, the habitual offender or a convict after the expiry of his sentence may be required to report himself before the officer-in-charge of the police station at the time and place and in the manner specified in the order. The Magistrate may issue such order only if he is satisfied that the person so restricted has sufficient means of earning his livelihood in the restricted area; else he shall change the area of restriction and shift him there. In case of breach of order of restriction, the accused on conviction by the Magistrate may be punished with imprisonment of either description which may extend to one, two and three year(s) on first, second and third convictions respectively, or with fine.53 During the period of restriction, the restricted person may be issued a pass and allowed to proceed on leave; and may also be required to present himself before the village headman or officer-in-charge of the police station of the visiting area. In case of any violation/overstaying leave, the pass may be withdrawn. Sentences/penalties under the said Act are subject to appeal before the District Magistrate.54

4.1.9 Official Secrets Act 1923

Although the Penal Code is the basic and most important legal instrument, which ordains offences and punishments; yet the Official Secrets Act 192355 also contains significant provisions to protect official secrets and guard against espionage. In

51M. Farani, Criminal (Local & Special Laws) Minor Act (Lahore: Law Times Publications, 2005), pp. 1282- 1285. The Punjab government has planned to amend Punjab Restriction of Habitual Offenders Act 1918 to restrict movement of criminals by declaring them proscribed persons and requiring them to wear “electronic surveillance gadgets.” See Intikhab Hanif, “Punjab plans to restrict habitual criminals’ movement”, DAWN Islamabad, July 25, 2016, p.3. 52See generally sections 3-4, 8-9, 11 and 17 of the Act. Chapter VIII (Sections106-126) of the CrPC also authorizes a court to require a convict or any person disseminating seditious matter or a vagrant or a suspected person and a habitual offender to execute bond or surety or security for keeping peace and good behaviour; and provides procedure for achieving the desired objectives. 53Ibid. 54See generally Rules 6-9 and 12-13 of the Rules under the Habitual Offenders (Punjab) Act, 1918. 55 M. Farani, Criminal (Local & Special Laws) Minor Act (Lahore: Law Times Publications, 2005), pp. 807- 815. 145

order to achieve the desired objectives, collection, obtaining and communication of any plan, model, password, sketch, record, document etc relating to the Armed Forces, works of defence56 and official secrets, which may be prejudicial to the safety or security of the country, to an enemy, his agent or any foreign agent had been subjected to trial and punishments by a court of a Magistrate 1st Class of Additional Sessions Judge or a Sessions Judge specially empowered in this behalf by the government or a court martial convened under the services laws.57 The Act originally had provided a maximum of fourteen years imprisonment for the offences of spying; however in 1968 when the proclamation of emergency, imposed by President Field Martial Muhammad Ayyub Khan on the 6th day of September 1965 when India attacked Pakistan and the war broke out between the two countries, was still in force, the maximum sentence for spying was enhanced to death.58 The Act further provided that any member of the Armed Forces would be obliged to arrest and hand over to the concerned magistrate, any person who approaches or is found in the vicinity of any ‘prohibited place’ or against whom reasonable complaint has been made, credible information received or reasonable suspicion exists about his involvement in spying. Similarly, any interference, obstruction, impeding or misleading any police officer or member of the Armed Forces engaged on guard or patrolling duty in relation to or in the vicinity of the ‘Prohibited Place’ had been subjected to punishment. The Act also obliged every person to give information relating to the offences punishable therein to the officials of the police and the Armed Forces; authorized the court to award the prescribed punishments including the sentence of death and exclude general public from the trial proceedings.59 Application of the Official Secrets Act was subsequently extended to the tribal areas with minor amendments or exceptions vide Tribal Areas (Official

56See Works of Defence Act 1903 available at Manual of Pakistan Military Law (Volume II), (Rawalpindi: Government of Pakistan, Ministry of Defence, 1987), pp. 1295-1315. 57 See Defence Services Laws (Amendment) Ordinance 1967 and Defence Service Laws (Second Amendment) Ordinance 1967, (PLD 1968 Central Statute 8 and 9 respectively). For detail of espionage cases tried by courts martial and issues related to jurisdiction of courts, see Major Hafiz Zafar Iqbal, “Resolving the Issue of Concurrent Jurisdiction of Courts Martial and Criminal Courts” (PLD 2007 Journal 55 and PLJ 2007 Magazine 77). 58The Official Secrets (Amendment) Act 1968 (PLD 1968 Central Statutes 1 and 87). For Proclamation of Emergency, see PLD 1965 Central Statute 261. 59See generally Sections 3-9 and 12-15 of the Act. 146

Secrets Acts) Regulation 1963, whereby the sentence of death prescribed under Section 3 of the 1923 Act for any offence of spying was omitted. As a consequent thereto, a maximum of fourteen years imprisonment could be awarded for spying under the said Regulation.60 4.1.10 Registration of Foreigners Act 1939 and Foreigners Act 1946 In order to monitor activities of the foreigners, the Registration of Foreigners Act 193961 provided for registration of their entry, continued stay and departure from the country. The Act also prescribed the Rules,62 whereby the foreigners were required to report their arrival and departure, get their address/place of residence registered and disclose the purpose of their visit and produce proof of their identity. In case of violation of any provision of the Act, the convicted foreigners could be punished by imprisonment which might extend to one year or with fine upto one thousand rupees or both. Similarly, while the said Act and Rules are still in vogue, the Foreigner Act 194663 conferred upon the Federal Government certain powers in respect of all or specified foreigners, including prohibition, regulation or restriction of their entry and presence or departure from Pakistan. In particular, the Federal Government, by order ‘shall’ arrest, detain or confine for a period of two months any foreigner, in the interest of the security of Pakistan. Any detention beyond the period of two months was required to be authorized by a Board consisting of a judge of the Supreme Court and senior officer in the service of Pakistan to be nominated by the Chief Justice and President of Pakistan respectively. Detention of

60The Regulation was made by the President in terms of the powers conferred upon him under Article 223 of the 1962 Constitution of Pakistan. (Available at PLD 1964 Central Statutes 43). Similar provisions also exist in Article 247(4) of the 1973 Constitution of Pakistan, whereby he is competent to make regulations, in respect of matters within the legislative competence of the Parliament, for the peace and good governance of tribal areas. 61Arif Ali Mir, Manual of Foreigners Laws in Pakistan, (Lahore: Irfan Law Book House, 2005), pp. 46-48. 62By virtue of Section 3 of the Act, the federal/central government also made the Registration of Foreigners Rules 1966 to give effect to the provisions of the Act. See generally, Rules 5-6, 9, 12-16 of the ibid Rules; and Paragraphs 15-16 of the Foreigners Order 1951. See also Exit from Pakistan Order 1955 (PLD 1965 Central Statute 537), Exit from Pakistan (Control) Ordinance 1981 and Exit from Pakistan (Control) Rules 2010. 63Manual of Foreigners Laws op cit, pp. 1-24; Section 16 of the Foreigners Act does not bar application of the said Registration of Foreigners Act, as both may have concurrent operation. 147

such person shall also be governed by the provisions of Sections 6(2) and 6A of the Security of Pakistan Act 1952.64 The Act further provided that such foreigners shall be described as ‘internees’ or ‘persons on parole’ (if on parole) and detained or confined in such place or residence set apart under supervision of a number of foreigners or conditions as shall ensure maintenance of their discipline; and prohibit or restrict entry or movement in or from such places or residences. The federal government may also determine punishments and subject them to such punishment on committing offences or breach of discipline; and prohibit that no person shall assist escape of any internee or person on parole or harbour him or interfere, prevent and hinder his apprehension.65 The Act also prohibits the foreigners to change their names or business or trade after entry into Pakistan; while the carrier companies i.e. vessels/aircrafts, keepers of the hotels or premises are obliged to furnish particulars of the foreigners accommodated therein to the concerned police officials.66 The Act also ordained that any person who contravenes, attempts or abets to contravene any provision of the Act or any order made thereunder may be penalized by imprisonment which may extend to three years and fine; and if the offence is illegal entry into Pakistan, the punishment may extend to ten years and fine upto ten thousands rupees.67 Subsequently, in 2000, Section 14 A to 14 D were added to restrict release of the illegal immigrants in Pakistan on bail; however, they could be deported pending trial or sentence. The amendment also required illegal immigrants to get themselves registered with the Alien Registration Authority.68 In pursuance of the powers bestowed under the Foreigners Act, the Federal Government issued Foreigners Order 1951,69 whereby foreigners were prohibited to visit, enter or reside in the ‘prohibited places’ or ‘protected areas’ except with the permission of

64See preamble and section 3(2)(g) and (4) of the Foreigners Act; and Paragraphs 15-16 of the Foreigners Order 1951. Section 2 of the Foreigners Act was amended to give the said effect vide Preventive Detention Amendment Act 1962 (PLD 1962 Central Statutes 630). 65Ibid, Section 4. 66Ibid, Sections 5-7. 67Ibid, Section 14. 68Added by Foreigners (Amendment) Ordinance 2000. 69This Order also superseded the Foreigners Order 1939 (published vide Notification No 21/84/39 Poll dated 26 August 1939). 148

the competent authority; and may be removed from the cantonments, while their employment or movement may also be controlled or restricted. The internees or the persons on parole may be removed from their place of residence for appearing in the civil or criminal court for recording evidence or conducting their trial, if so required, in the courts.70 In addition to the above mentioned inherited laws, political scenario and anti- government campaigns compelled the government to promulgate following national security and anti-terrorism laws71 as well. It is important to dilate upon these important legislations as well, as they provide the basis for the existing anti- terrorism laws:- 4.1.11 Rawalpindi Conspiracy (Special Tribunal) Act 1951 It was 1951, when Major General Akbar Khan was alleged to have hatched a conspiracy against government of Prime Minister Liaqat Ali Khan.The conspiracy is generally known as Rawalpindi Conspiracy Case; which was apparently backed by left-wing intellectuals, politicians and Communist Party of Pakistan. A total of four civilians, including renowned poet Faiz Ahmad Faiz and Syed Sajjad Zaheer, Secretary General of the Communist Party of Pakistan, and eleven military officers led by Major General Akbar Khan, Chief of General Staff of that time, and Air M.K. Janjua, then Chief of the , were booked in the conspiracy.72 The main cause of the intended coup was to express reservations on Pakistan’s joining the SEATO (South East Asian Treaty Organization) and CENTO (Central Eastern Nations Treaty Organization) and to prevent Pakistan of becoming a satellite state of America. Major General Akbar was a Brigadier at the time of independence and had led the 1947 war between Pakistan and Indian on annexation

70See Paragraph 16 of the Foreigners Order 1951 and for doing so, relevant provisions of sections 37-38, 40-47 of the Prisoners Act 1900 and Chapter XL of the CrPC regarding recording of evidence through commission shall apply. 71There are other laws as well which are used for maintenance of peace, check on the anti-national and criminal activities. Such acts include Ordinance 1959, Pakistan Arms Ordinance 1965, Pakistan Coast Guards Act 1973, Federal Investigation Agency (FIA) Act 1974 and Airports Security Force Act 1975. However, they are not being discussed here as the discussion would extend the scope of dissertation. 72Ex Captain Zafarullah Poshni, Zindagi Zinda dili ka nam hai (), available at http://tribune.com.pk/story/712677/down-memory-lane-the-last-survivor-of-the-rawalpindi-conspiracy-recalls- the-events-and-imprisonment/, accessed October 24, 2014. Poshni is the only survivor accused of the conspiracy with 88 years of age, who launched the said book and disclosed facts of the case at the Readers Club Karachi on 23 May 2014. 149

of Kashmir. He was successful in occupying only some area of Kashmir, because General David Gracy, Commander-in-Chief (C-in-C) of the Pakistan Army, had agreed a cease fire.73 He was disappointed on the cease fire and had been openly expressing his concerns about the domestic and foreign policy of the government, especially on Kashmir issue. He was ambitious to be the C-in-C and felt that he had been unfairly superseded to elevate General Ayyub Khan as the C-in-C.74 In this background, on 22 February 1951, Major General Akbar arranged a meeting at his residence to finalize the plan, which was attended amongst others, by Major General Nazir Ahmad, Air Commodore M.K. Janjua, Faiz Ahmad Faiz, Mrs Naseem Akbar Khan (wife of General Akbar) and Captain Zafarullah Poshni. However, the meeting was dismissed as the participants did not reach a consensus. According to the plan, Prime Minister Liaqat Ali Khan and Governor General Khawaja Nazamuddin were to be arrested; and the latter was to suspend the Prime Minister and his government. General Akbar was to form the new government, which was to conduct elections wherein the Communist Party was also to be allowed to participate. One of the confidents of General Akbar, however, informed the government, who foiled the conspiracy by arresting all the participants. At that time, General Ayyub Khan was C-in-C while Major General Iskandar Mirza was Secretary Defence, who remained faithful to the government.75 On 9 March 1951, the government announced that it had foiled the coup; whereas on 16 April 1951, the Constituent Assembly passed Rawalpindi Conspiracy (Special Tribunal) Act 1951,76 whereby a special tribunal was set up which tried the accused persons and convicted them with varying sentences. The special tribunal consisted of three members, including a president, out of the judges of the Federal Court or a High Court The tribunal was required to return and express its verdict in terms of the

73Robert Wirsing, Kashmir in the Shadow of War: Regional Rivalries in a Nuclear Age, (London: M.E. Sherpe, 2003) pp. 173-75. 74Sabir Shah, “Conspiracies, communal riots and terror in Rawalpindi”, THE NEWS, November 20, 2013. 75S.M. Ahmad, A Lucky Pilot: Memories of Retired Wing Commander, Lucky Ahmad (Lahore: Ferozsons, 2001); M. K. Janjua, Privileged Witness.Also see http://historypak.com/rawalpindi-conspiracy-1951/ , accessed on October 24, 2014. 76PLD 1951 Central Statutes 289. Also available at http://pakistanpace.triped.com/achieves/51raw2.htm, accessed on October 24, 2014. 150

decision of the majority.77 The Act also ousted jurisdiction of any other court into the matter even the jurisdiction of a court martial. The Act explicitly provided that the special tribunal shall have jurisdiction to try alleged offences of the accused even if the same were exclusively triable by court martial or any ordinary court. The Act also retained subjection of the Army officers to the Army Act, pending or during the continuation of their trials. The Act also obliged the Central Government to initiate the list of formal charges against each accused with the relevant provisions of law, for indictment and the list of witnesses. The special tribunal was to follow the procedure of criminal trial before a High Court, and observe reasonable speed to conclude the trial proceedings and articulate its verdict. The tribunal was however not allowed to admit any accused to bail.78 The Act also allowed the tribunal to record special finding and convict any accused of any offence under any law if from the evidence it appeared that he had committed such an offence, irrespective of the fact if it was a minor or major offence than the offence charged, even if he was not charged of such an offence.79 The tribunal was to conduct its proceedings at the places appointed by the government; while its proceedings were not open to the public. Instead any person, whether a witness or an officer of the tribunal, who would disclose or communicate any document or information in his possession or knowledge and connected with the case to any person, except the persons officially connected with the case or the communication between the accused and their counsels, was deemed to be guilty of an offence of wrongful communication of information entrusted to him in confidence by the government or any other offence punishable under Section 5 of the Official Secrets Act 1923.80 Later on, this restriction was also extended to communication of any order, judgment or sentence; however, the central government was not barred from publishing any such order, judgment or sentence, if so desired.Simultaneously, the accused/convicts were also forbidden copy of any such order or judgment etc; but they or their lawyers had been allowed to see them for making any memorandum to

77Rawalpindi Conspiracy (Special Tribunal) Act 1951, Sections 1-2. 78Ibid, Sections 3-5. 79Ibid, Sections 5(2). Similar provisions are also contained in CrPC Sections 237 and 238; as well as PAA Section 111(4)-(6). 80Ibid, Section 6. 151

petition the Governor General for pardon or reprieve under Section 11 of the Act.81 The Act also prohibited adjournments even if the accused is absent, except if expedient in the interest of justice. In the event of any deliberate absence of the accused or his counsel or where he behaves in such a manner or absents himself to impede the proceedings, the Special Tribunal would take necessary steps to appoint an advocate for his defence and proceed with the trial.82 Overriding any provision of the Evidence Act or the CrPC, the Act permitted the tribunal to admit any statement recorded by a magistrate of any person who at the time of the trial had died or whose attendance could not be procured without an amount of reasonable delay or expense. Similarly, the tribunal could accept any statement recorded by an accused or a witness during the course of investigation before a police officer.83 The special tribunal was empowered to award any sentence punishable under the relevant provision of the law/sections under which the accused were charged. However, neither any order, judgment or sentence awarded by the tribunal was subjected to any appeal or revision nor any court could release any accused by issuing any direction in the nature of a habeas corpus, or grant any pardon or reprieves except the Governor General.84 The trial commenced on 15th day of June 1951 in Hyderabad Jail and concluded on 22 November 1952; but the decision was announced in January 1953. A K Brohi conducted the prosecution while Huseyn Shaheed Suharwardy led the defence. Major General Akbar was awarded fourteen years imprisonment while the civilians including Faiz Ahmad Faiz and other military officers were each awarded four years imprisonment with fine. As the luck would have it, Mr Suharwardy became the Prime Minister of Pakistan in 1957 and managed exoneration for most of the convicts. Subsequently, General Akbar joined politics, and when Mr Zulfiqar Ali Bhutto became the Prime Minister in 1971, he was appointed chief of national

81Sub-sections (4) and (5) added to ibid Section 6, vide Rawalpindi Conspiracy (Special Tribunal) (Amendment) Act 1952. 82Ibid, Sections 7 and 12. 83Ibid, Section 8. 84Ibid, Sections 9-11. Also see CrPC Sections 491 and 401-402. 152

security; while Mr Faiz joined National Council of the Arts.85 Although Liaqat Ali Khan survived the coup but he was later assassinated by an Afghan during a public meeting in Rawalpindi during October 1951. This was followed by a subsequent coup by General Muhammad Ayyub Khan against President General Iskandar Mirza in 1956. General Ayyub assumed the power and reined the government until 1969, when he relinquished presidency.86 4.1.12 East Bengal, Punjab and North Western Frontier Province Disturbed Areas (Special Powers) Act 1951 In order to control law and order in the country, carrying of weapons and prohibit unlawful assemblies, the Central Government had promulgated the above said three Acts in 1951 whereby certain areas of East Bengal, Punjab and North Western Frontier Province (now Khyber Pakhtunkhwa) were declared disturbed areas and special powers were granted to the Armed Forces. Subsequently, President Ayyub also promulgated Disturbed Areas (Special Powers) Ordinance 1962 for the avowed purpose.87 The Ordinance repealed the said Acts, authorized the provincial governments to declare certain areas experiencing law and order situation as the ‘disturbed areas’. It also granted special powers to the Magistrates, police officers, Armed Forces and Civil Armed Forces officers including Junior Commissioned and Non-Commissioned officers to fire upon or use force against such persons who are disturbing the law and order in the ‘disturbed area’, constituting unlawful assembly of five or more persons or carrying weapon; and even their death if they do not disperse or abide by the law after having been given prior warning. The Armed Forces or Civil Armed Forces officers were also authorized to arrest without warrant any such person who has committed or against whom there are reasonable apprehensions that he is likely to commit any cognizable offence. Such officers were also permitted to enter and search any premises and recover any person unlawfully detained or restrained as well as any stolen property or weapon.88 The

85Hassan Zaheer, The Times and Trial of the Rawalpindi Conspiracy 1951: The first coup attempt in Pakistan, (Karachi: Oxford University Press, 1998) pp. 210-215, available at http://www.thenews.com.pk/Today-News-6- 248775-The-Raalpindi-Conspiracy-1951-%97-The-First-Coup-Attempt-in-Pakistan, accessed October 24, 2014. 86Ibid. 87PLD 1962 Central Statutes 608. 88Disturbed Areas (Special Powers) Ordinance 1962, Sections 2-4 and 6. 153

Central Government granted protection to the said officers against any prosecution, suit or legal proceedings except if the Central Government in the case of Armed Forces and Civil Armed Forces officers, and Provincial Government, in the case of Magistrate and Police officials, so permits. 4.1.13 Security of Pakistan Act 1952 It was 5th day of May 1952 when the Governor General assented the Security of Pakistan Act 1952,89 which provided special measures to deal with those persons who were/would be acting in a manner prejudicial to the defence, external affairs and security of Pakistan, or the maintenance of supplies and services to the community, or for maintenance of public order.90 The Act was extended to the whole of Pakistan and initially was to remain in force for three years. However, this date was repeatedly extended in the subsequent years in 1956, 1958, 1960 until the period of limitation was done away in 1961. Since then the Act has become in force for an indefinite period. Similarly, maintenance of supplies and services and public order was also brought out of the purview of the Act and made subject of West Pakistan Maintenance of Public Order Ordinance 1960, which shall be discussed subsequently. However, despite having omitted maintenance of public order from the purview of the preamble of the Security of Pakistan Act 1952, still there is room for detaining any person for breach of public order, in terms of the proviso added to Section 3(b) and substituted in 1962 and 1975.91 The Act nevertheless authorized the Central/Federal Government to order any person (who is not a citizen of Pakistan) to move himself from Pakistan within a given time frame, on the specified route and in the manner suggested in the order, so as to prevent him from acting in a manner prejudicial to the defence, external affairs or security of Pakistan or any part thereof.92 This any person may be a foreigner, diplomat or enemy alien or member of any association. The government may also order detention of any person in the security of Pakistan. The original Act did not provide for the period of detention; thus the detenue could be kept in detention for an indefinite period of time.

89PLD 1952 Central Acts 288. 90Preamble of the Security of Pakistan Act 1952. 91Hamid Ali, the Security of Pakistan Act 1952, (Karachi: The Ideal Publishers, 1982) pp. 1-3. 92The Security of Pakistan Act 1952, Section 3. 154

However, subsequently the period of detention was limited to a maximum of eight months (within a period of twenty four months) if the said person was acting “prejudicial to public order.” On the contrary, if he is an enemy alien or a spy or member of an association who is engaged in anti-national activities or working against the integrity, security or defence of Pakistan or his act or conduct is calculated to be prejudicial within the said parameters, he may be detained for a maximum period of twelve months (within a period of twenty four months).93 The detenue however shall be detained at a place, including even a prison, determined by the Review Board constituted, in terms of Article 10 of the 1973 Constitution of Pakistan. The detenue is also allowed only personal hearing before the Board, whose proceedings shall be secret. The government may also direct such person to remain or not to remain or reside in a specified area/place; not to enter or leave the specified area or place without the permission of the government or its authorized officer; require him to notify his movement or present himself before the designated authority/officer at the specified time and in the specified manner; direct him to behave in a particular manner or abstain from certain acts; or prohibit him from using any specific article. Notwithstanding any power of the government as discussed above, the government may order temporary release of a detained person for a specified period with or without any condition, including a bond for performance of the terms of his release, require him to surrender himself whenever so required at the specified place and date; and if he fails to surrender, he may be punished with imprisonment upto two years or fine or both. Similarly, the government was permitted to photograph any person against whom any detention, restraining, prohibition or other order under Section 3(1) in the nature as explained above had been issued, take his finger or thumb impressions, specimen handwriting and signatures; and direct him to appear before designated officer or authority at a specified time and place. In case of any contravention, he is entitled to imprisonment upto six months or fine or both.94 The Act further authorized the government to control activities of any subversive

93Proviso added/substituted to Section 3(b) of the ibid Act, vide Section 2 of the Preventive Detention Laws (Amendment) Act 1975 (PLD 1975 Central Statutes 168). 94See generally ibid, Sections 3A to 3C and 4. 155

association i.e. which is acting or may be used against the defence, external affairs or security of Pakistan or any part thereof. In order to achieve this goal, the government may direct the association to suspend its activities for a maximum of three months, enter and search upon its premises, take possession of any documents, freeze its accounts, suspend claims of its members and prohibit them to manage or assist in managing the association, promoting its cause or operation in any manner during the period of suspension.95 The government may also control flow or communication of any information, document, news, report etc which is likely to endanger the defence, security or external affairs of Pakistan. Accordingly, the government may order the concerned publisher, editor, printer etc to share the source of such information, his name and address, prohibit him from publishing of such news etc; besides delivery or forfeiture of such document or any publication or copy made thereof to the government or the specified authority or police official. The government may, in the interest of the defence, external affairs and security of Pakistan, impose censorship and require the editors, publishers, printers etc to submit before publication any matter relating or affecting the said interests to a specified authority for review/approval within seventy two hours. Any adverse order prohibiting the publication may be subjected to appeal before a District Judge, within a period of seven days, whose decision shall be final.96 The government may also take possession of any undertaking, remove its owners/directors, appoint its managing director and even transfer or sell it, if its activities are prejudicial in the terms specified above.97 The Act prescribed varying punishments including imprisonment upto three years and fine or both for breaches and violations of different provisions of the Act. The Act ousted jurisdiction of any other court in respect of any order or direction issued or damage or loss caused thereby or against any person acting in good faith under the said Act, except an appeal against every conviction and sentence passed under the Act.98

95Ibid, Section 10. 96Ibid, Sections 11 and 12. 97Ibid, Sections 11A to 11C added by Preventive Detention Laws (Amendment) Act 1975. 98Ibid, Sections 13-17. 156

In order to give effect to the objectives of the Act, the Central Government promulgated (Security) Detention Rules 1954,99 which, in addition to the Jail Rules, are applicable to any detenue or ‘security prisoner’, and prevail over the Jail Rules, in case of any conflict between the two. It has also been clarified in the Rules that the detenues or security prisoners shall not be entitled to any remissions as are permissible under the Jail Rules.100 However, the detenue shall be entitled to know the cause of his detention within a period of one month of the detention order. He shall be entitled to clothings, beddings etc at the government expense and have interview with his family or relatives, if so permitted. Similarly, he may participate in games and exercises, besides permission to initiate and receive correspondence, which may be subjected to scrutiny and censorship.101 4.1.14 The West-Pakistan Maintenance of Public Order Ordinance (MPO) 1960 In addition to the above described statutes, there had been other legal instruments to help the government/public functionaries to ensure safety and security of the public. Such laws included Sind State Prisoners Regulations 1827, Khairpur Public Order and Detention Act 1954, State Public Security Act 1944, Baluchistan Public Safety Regulations 1947, North-West Frontier Province Public Security Act 1948, Punjab Public Safety Act 1949 etc. However, except certain provisions of the Baluchistan Public Safety Regulations, all the said laws were repealed by Section 28 of the West-Pakistan Maintenance of Public Order Ordinance (MPO) 1960,102 which carried the field for preventive detention and control of persons and publications connected with the maintenance of public order.103 This Ordinance had been subsequently amended in 1964, 1999 and 2008, which amendments were mostly Punjab specific.104 The Ordinance, being preventive in nature, authorized the government to order for arrest and preventive detention of any person for a specific

99PLD 1954 Central Acts 146. 100(Security) Detention Rules 1954, Rule 2. 101Ibid, Rules 18-39. 102PLD 1961 W.P. Statutes 30. The Ordinance was promulgated in pursuance of the Presidential Promulgation of 7 October 1958. 103Preamble of the W.P. Maintenance of Public Order Ordinance 1960. 104See generally, W.P. Maintenance of Public Order (Amendment) Act (V of) 1964 (PLD 1964 W.P. Statutes 139); W.P. Ordinance VIII of 1964; Act I of 1999 (PLD 1999 Punjab Statute 66); Punjab Maintenance of Public Order (Amendment) Ordinance 2008 (PLD 2008 Punjab Statutes 220 & 282, as the ordinance was promulgated one after another) Punjab Act II of 2009 (PLJ 2009 Pb. Statutes.67). 157

period, which may be extended from time to time for a maximum of six months at a time, so as to prevent such a person from acting in a manner prejudicial to the public safety or maintenance of public order, if the government is satisfied or has reasonable ground that he is likely to act in such a manner. The amendment introduced by adding Explanation II in Section 3 of the Maintenance of Public Order (Amendment) Act (V of) 1964, explained that any person who is or who remains or becomes a member of any association or its executive committee which has been declared unlawful under any law in force shall be deemed to be acting in a manner prejudicial to the public safety and maintenance of public order. Certain orders of the government have also been subjected to representation before a Board consisting of a judge of the High Court and senior officer of the government.105 However, in the subsequent developments, the period of detention at first instance was limited to a maximum of three months; while composition of the ‘Review Board’ was changed into three persons including a Chairman, from amongst the sitting or retired judges of the High Court, to be nominated by the Chief Justice of the High Court. However, the government was required to immediately refer the case to the ‘Review Board’ when so constituted only if it intended to detain any person beyond the period of three months; and before the expiry of every period of three months, place the material before it, except if the secretary to the Government, Home Department certified that it is not in the public interest to present the requisite documents. In case the Board does not find sufficient cause for detention of the individual and reports for his release, the government shall be obliged to rescind the detention order but may execute the release on the expiry of the period of three months.106 The powers of the government with regard to the determination of any person acting or likely to act in a manner prejudicial to the public safety or maintenance of public order were also delegated, with certain limitation, to the District Coordination Officer. Any detention order of the government had also been

105Ibid, Section 3. Initially period of detention was specified 3 months, which was enhanced from 3 to 6 months vide Ordinance XVIII of 1964. See also West Pakistan Public Order Detenue Rules 1962 (PLD 1962 Central Statutes 473). 106See Punjab Maintenance of Public Order (Amendment) Ordinance 2008 (PLD 2008 Punjab Statutes 220/282). 158

subjected to representation to the government within fifteen days.107 The government may further control such suspected persons by an order restricting, limiting or forbidding their entry, move or residence to specified area(s) or direct them to conduct themselves in a manner specified in the order or abstain from certain acts, which may be against the public safety or interest; and furnish bonds or sureties for compliance of government orders in this behalf. Such persons are also obliged to let themselves to be photographed, give their finger prints or thumb- impressions, and furnish their specimen signatures and handwriting.108 Similarly, the government may combat or prevent any activity of the said prejudicial nature or kind through censor or control of publications i.e. by prohibiting printing, requiring security, restricting communication etc of any material which may be prejudicial to the maintenance of public order or public security. In order to further achieve the objects of the Ordinance, a District Magistrate may also depute a police official to attend any public meeting so as to secure information and report any matter discussed or communicated in such public meeting, whether in public or private place, and the convener of such meeting shall not deny access or entry to the designated official.109 The Ordinance also allowed the government to forbid dissemination of rumours, in any form either by spoken or written words, or signs or audio-visual representations etc., possession or conveyance of any classified or prohibited document; wearing, possessing of displaying of such uniforms, emblems, flags, banners etc. signifying association with any movement prejudicial to the public safety or maintenance of public order or promotion or propagation of any such movement.110 The Ordinance also prohibited tempering with public servants i.e. inducing or attempting to induce them to disregard or fail in their duties, and sabotage activities i.e. impair efficiency or impede working of any building, machinery, railways, rolling stocks of railways, sewage, mine or factory etc. The Ordinance prescribed varying penalties i.e. upto three years imprisonment or fine or both for breach of its provisions or any order issued by the government; described

107Ibid. 108Ibid, Section 4. 109Ibid, Sections 5-8. 110Ibid, Sections 16-18. 159

the offences under the Ordinance as cognizable and non-bailable and subjected them to the jurisdiction of the magistrates who were to follow the ordinary procedure of trial of summon cases given under Chapter XX of the CrPC.111 Maintenance of Public Order Ordinance had been frequently applied to suppress anti-government and anti-state activities by some of the religious, political and proscribed organizations as well as control, limit or check the print and electronic media, which was further augmented by the Print and Electronic Media Regulatory Authority (PEMRA) Ordinance 2007. Many politicians, religious leaders and journalists/editors had been booked under the Maintenance of Public Order Ordinance over a period of time; who had invoked the jurisdiction of the superior courts. Some of them were released before the court passed any order while some of them continued to suffer preventive detention whereby their efforts or moves calculated to be prejudicial to the public safety or maintenance of public order were frustrated. The cases of Molana Maudoodi, Nawabzada Nasrullah Khan, Abdul Wali Khan, Sardar Akbar Ali Bugti, Abdul Ghaffar Khan, Molana Mufti Mahmood may be cited as examples.112 4.1.15 Enemy Foreigners Order 1965 The Federal Government also made the Enemy Foreigners Order 1965,113 whereby ‘enemy foreigners’ were interned in the ‘internment camps’, their movement and departure from Pakistan and carrying gold or other property was controlled and subjected to certain restrictions such as that they would be registered and leave Pakistan with the conditions of the permit and shall declare the property being carried by them while embarking from Pakistan.114The ‘enemy foreigners’ were further prohibited to possess any explosive or material which may be used to manufacture any explosive, inflammable liquid, motor vehicles, any photographic

111Ibid, Sections 19-22. 112 See details in Saiyyid Abdul A’la Maudoodi V Government of Pakistan/West Pakistan (PLD 1964 SC 673), Nawabzada Nasrullah Khan v the District Magistrate Lahore (PLD 1965 Lahore 642) and Islamic Republic of Pakistan v Abdul Wali Khan (PLD 1976 SC 57). 113PLD 1965 Central Statutes 462. Manual of Foreigners Laws, op. cit., pp. 268-273. 114This order was extended to the whole of Pakistan and those tribal areas to which the Foreigners Act 1946 was made applicable for the time being. Paragraph 2(c) of the Enemy Foreigners Order 1965 defines ‘enemy foreigner’ as ‘a foreigner who possesses the nationality of a state at war with Pakistan or having possessed such nationality at any time, has lost it without acquiring any other nationality. See generally Paragraphs 3-8 ibid. 160

or wireless apparatus, telephone, maps or nautical charts or other documents which are used by the armed forces. The federal government was also obliged to establish ‘internment camps’ and appoint their commandants. Any enemy foreigner (only male not less than the age of sixteen) arrested was required to be surrendered the Commandant of the internment camps as soon as may be, to be interned there until the federal government so directed. The civil authority was obliged to arrest any enemy foreigner reasonably suspected to have assisted enemy, acted or likely to be acted in a manner prejudicial to the public safety, any building or machinery; and surrender him to the internment camp. Pending their surrender to the camp commandant, they could also be detained or confined at some suitable place. In any case, their temporary detention or confinement or internment was to be carried out in a manner not more rigorous to the one provided to the persons arrested and detained or confined in police custody.115 They could also be moved for appearance in the civil or criminal courts for answering a charge of any offence, as the case may be, in accordance with the relevant provisions of the Prisons Act 1900 for appearance of ordinary criminals.116 4.1.16 Internees (Discipline and Offences) Regulations 1965 In line with the powers conferred under Section 4 of the Foreigners Act 1946, the Central Government made the Internees (Discipline and Offences) Regulations 1965,117 whereby safe custody of the internees, responsibility for maintenance of discipline and disposal of offences committed by the internees was entrusted to the Camp Commandant.118 The Camp Commandant was empowered only to try the camp offences i.e. the orders issued by the Camp commandant or conduct prejudicial to maintenance of discipline among the internees including escape from camp or any such attempt or abetment thereto. In case of conviction, the internee could be awarded detention for a maximum period of 28 days, confinement to quarter for a maximum of 14 days, fatigue duties and forfeiture of 50% subsistence allowance and suspension of privileges, for a maximum period of one month.

115See generally Paragraphs 9-12 ibid. Chapter V (Sections 46-67) of the CrPC provides the mode and the safeguards as to arrest and detention of a person. 116Ibid, Paragraphs 14-15. 117PLD 1965 Central Statutes 467. 118Internees (Discipline and Offences) Regulations 1965, Rules 1-3. 161

The internees were, however, entitled to the privileges provided under Article 125 of the International Convention Relative to the Protection of Civilian Persons in Time of War established at Geneva on the 12th day of August 1949.119 The accused internee could file a petition or sent an application complaining the conditions of his internment. On the other hand, if an internee has committed a criminal offence, he might be surrendered to the police or/and segregated from other internees; but would neither be released on bail nor remanded to police custody out of the camp. Similarly, he would be tried within the camp premises and provisions of Article 117 to 126 of the ibid Geneva Convention would apply during his judicial proceedings. The said provisions suggest, inter alia, that an internee shall not be subjected to double jeopardy; the courts shall not be unduly strict in awarding sentence to such internees merely being foreigners; the internees shall be liable to discipline punishments if they desert and are apprehended; the internees shall have reasonable opportunity to defend himself and produce defence witnesses; they will not be shifted to prisons for undergoing discipline punishment; they shall be allowed time for exercise, open air stays and correspondence with family.120 The internee could send a petition or complaint with reference to the condition of his imprisonment awarded for committing a criminal offence. The internee had also been protected against double jeopardy.121 4.1.17 Control of Property (Internees and Persons on Parole) Order 1965 In order to control and allow the internees and the persons on parole to dispose of their moveable and immovable property, the Central Government issued Control of Property (Internees and Persons on Parole) Order 1965.122 The said order authorized the Central Government to appoint a custodian of Enemy Property for Pakistan so as to control, monitor and account for the said property. The internees or persons on parole could dispose of their moveable property at their own and in the case of any immovable property and securities or stocks in trade with the permission of the

119The Article provides that the internees convicted for violation of camp discipline shall be permitted exercise, stay in open air, medical examination, facilities for reading, writing, initiating and receiving letters and the like. However, their parcels and money orders may be withheld until completion of sentence. International Committee of the Red Cross, the Geneva Conventions of August 12, 1949, (Geneva: ICRC, 2007) p 202. 120 Ibid Conventions, pp. 199-202. 121Ibid Regulations, Rules 12-13. 122PLD 1965 Central Statutes 457. 162

custodian; and deposit the sale proceeds in the bank approved by the custodian. They were obliged to inform the same within a period of seven days to the custodian; and could withdraw the money as per the instructions of the custodian or subject to countersignatures on the cheque by the Camp Commandant.123 4.1.18 Defence of Pakistan Ordinance 1965 On the 6th day of September 1965, when war broke out between Pakistan and India, the President, amongst others, promulgated emergency and the Defence of Pakistan Ordinance 1965, so as to ensure public safety, security, interest and defence of Pakistan as well as trial of certain offences.124 It was extended to the whole of Pakistan and the Tribal Areas. It was applied to all and sundry including members of the Armed Forces, their followers and attached or accompanied persons.125 The Ordinance authorized the Central Government to make Rules, inter alia, for ensuring safety, security and welfare of the Armed Forces personnel and their assets, weapons etc, preventive detention, control of exit and entry of foreigners in Pakistan, prohibition and regularization of explosives, explosive substances, prevention of disclosure of official secrets and internment of enemy aliens.126 The Ordinance also temporarily enhanced the sentence of transportation to life or imprisonment to death in respect of certain offence; e.g. waging war against Pakistan and spying, as well as established Special Tribunals for trial of offences punishable with death or transportation for life or imprisonment upto seven years. The Special Tribunals, though had to follow the procedure of trial before an Additional Sessions Judge but they was not under any obligation to write the evidence in detail, except in the cases of death and transportation for life, or grant adjournments, except in the interest of justice, recall the witnesses or record the

123Ibid, paragraphs 2-9. 124PLD 1965 Central Statutes 262. 125Section 1 of the Defence of Pakistan Ordinance 1965; and Defence of Pakistan Ordinance 1965 (Application of Ordinance to Tribal Areas) issued by the President under authority of Article 223 of the 1962 Constitution of Pakistan and available at PLD 1965 Central Statutes 462. 126Ibid Section 3; Defence of Pakistan Rules 1965, (which are 207 in total) are also available at PLD 1965 Central Statutes 279 and 276 (Schedule). Malik Ghulam Jilani, Nawabzada Nasrullah Khan and other leaders of the opposition parties were detained in the wake of protests in Lahore against the Tashkent (Russia) Declaration, signed by President of Pakistan and on 11 January 1966, under the Defence of Pakistan Ordinance 1965 read with Section 32 of the Defence of Pakistan Rules. The Supreme Court upheld detention of Malik Ghulam Jilani but set aside detention order of NawabzadaNasrullah Khan. For details see, Malik Ghulam Jilani and Nawabzada Nasrullah Khan V Government of West (PLD 1967 SC 373). 163

evidence afresh in the event of charge of its members. It was also permitted to exclude the general public from the trial proceedings and required to announce its decision on the basis of majority, which was subject to appeal before the High Court of competent jurisdiction.127 In the exercise of powers conferred under the said Ordinance, the Central Government made the Defence of Pakistan Rules 1965 and certain other Rules and Orders to give effect to the objects of the Ordinance. Control of Property (Internees and Persons on Parole) Order 1965 issued under authority of Rule 38 of the Defence of Pakistan Rules 1965 may be cited as an example. 4.1.19 Foreigners (Parolees) Order 1965 The Federal Government also issued Foreigners (Parolees) Order 1965,128 which established ‘Parole Centres’ to accommodate ‘parolees’ for enforcement of parole order. The parolees were limited to the parole centres/camps and subjected to such restrictions on visitation, communication, attendance receipt of articles etc. imposed by the Commandant.129 A similar order was also issued after the 1971 War and dismemberment of East Pakistan and emergence of an independent state of Bangladesh. The order also declared the Bangalis as the foreigners, provided for their registration and restriction of movement, and established internment camps for internment of such Bangali foreigners acting in a manner prejudicial to the safety or interests of Pakistan.130 4.1.20 Criminal Law Amendment (Special Tribunal) Ordinance 1968 In view of the deteriorating law and order situation in the country beyond the capacity of the civil government to control, President Ayyub promulgated emergency on the 6th day of September 1965.131 While the emergency was in force,

127Ibid, Sections 7-13. 128PLD 1965 Central Statutes 470; Manual of Foreigners Laws, op. cit., pp 73-76.The order was made in the exercise of power conferred by Sections 3 and 12 of the Foreigners Act 1946. 129Ibid, Paragraphs 3-8. 130See Enemy Foreigners Order, 1971-74 SRO 603(1)/74, issued under the authority of Section 3 of the Foreigners Act 1946.See also Foreigners Order 1951 (Amendment);Registration of Foreigners (Exemption) Order 1966; Foreigners Act 1946(Order under Section 3); Foreigners Order 1951 (Non-application of the Provisos). All available at PLD 1974 Central Statutes 264-265, whereby the provisions of the relevant Orders/Act were also applied to the Bengalis. 131PLD 1965 Central Statutes 261. 164

he promulgated Criminal Law Amendment (Special Tribunal) Ordinance132 on the 6th day of June 1968 which was extended throughout Pakistan. The Ordinance provided for establishment of special tribunal for trial of offences of conspiracy to wage war against Pakistan or any attempt or abetment thereof and abetment of mutiny by Armed Forces personnel or any attempt to seduce any such person from his allegiance or duty, punishable under Sections 121A and 131 of the PPC; regardless of the fact whether the said offences were committed exclusively by the civilian(s) or Armed Forces personnel or anyone of the later was a party or an accomplice or an abettor or a conspirator to the offence. Initially, the offences were made triable by the special tribunal only if any Armed Forces personnel was one of the parties or accomplices in any manner. However, by subsequent amendment, jurisdiction of the tribunal was extended to all and sundry, if commit an offence punishable under Section 121A or 131 of the PPC.133 The Ordinance was in fact given overriding effect on all other laws including the services/Armed Forces Laws, in respect of the said two sets of offences.134 The Special Tribunal was to be set up by the Central Government and to consist of a Chairman, who is or had been judge of the Supreme Court, and two members, who are or had been judges of a High Court. The Special Tribunal was to continue the trial on day to day basis, after the arraignment, even in the absence of the accused/his counsel(s), if atleast two of its members were present.135 The tribunal was not required to record the evidence afresh or recall any witness after a fresh member had been appointed by the government. Any decision or order of the tribunal was to be announced and expressed in terms of majority view.136 The trial proceedings were to be initiated by the Central Government by sending statement of the case along with list or particulars of the accused and a formed charge sheet as well as the list of prosecution witnesses. The government could appoint one or two counsels for

132PLD 1968 Central Statutes 92. 133See Sections 3-4 of Criminal Law Amendment (Special Tribunal) Ordinance 1968 which was amended vide Criminal Law Amendment (Special Tribunal) (Amendment) Act 1968, PLD 1968 Central Statutes 96. 134Ibid, Section 13. 135Ibid, Section 11. 136Ibid, Sections 4, 7 and 11. 165

conducting the prosecution, who would be treated as public prosecutors.137 The Chairman of the Special Tribunal was empowered to make necessary administrative arrangements for conduct of its proceedings; however, the tribunal was to follow the procedure of criminal trial before a High Court. Although the provisions of the CrPC with minor changes were to govern the procedure of trial, yet neither the tribunal was authorized to admit bail to any accused nor could their sentences be suspended.138 However, it was competent to award any sentence including death or imprisonment prescribed for the said offences under the PPC. The trial proceedings and substance of evidence were to be recorded by one of the members of the tribunal or under its direct supervision by a shorthand/steno typist. Although the Act permitted that any order, proceedings or evidence may be authenticated by at least two members but the final judgment was to be signed by all three of them. The Act, through special provisions, permitted the tribunal to admit in evidence any statement recorded by a magistrate, during investigation of any person who is dead or whose presence at the trial cannot be procured without an amount of reasonable expense or delay; or statement of any witness or accused recorded by a police officer during investigation. However, subsequently statement before police was made inadmissible, but any document or property taken into custody during investigation could be admitted in evidence, while the adverse party was denied to raise any objection on any such admission.139 In view of gravity of the offences, the Act stipulated that pending finalization of the trial, the accused persons including those who had been tendered pardon shall remain in the ‘military custody’; but they shall have reasonable opportunity to have access to their counsels.140 The Act recognized exclusive and absolute jurisdiction of the Special Tribunal into the case tried by it. As a consequent thereto, no appeal or remedy lie against any order, judgment, finding or sentence passed by it, with the conclusion that judgment or sentence etc of the tribunal was final.141

137Ibid, Section 11. 138Ibid, Sections 6 and 9. For grant of bail and suspension of sentence, see CrPC Sections 496-502 and 401-402 respectively. 139Ibid, Section 11 as amended. 140Ibid Sections 4-8. 141Ibid Section 12. 166

4.1.21 Defence of Pakistan Ordinance 1971 It was March 1969, when the country was overtaken by political and economic debacle with threats of external aggression and internal disorder beyond the control of President Field Martial Muhammad Ayyub Khan, he decided to relinquish as President. On 24 March 1969, he invited General Agha Muhammad Yahya Khan to discharge his legal and constitutional duties i.e. to defend the country against the said threats and disorder. On 25 March 1969, Field Martial General Ayyub Khan declared to relinquish the office of President; while General Yahya Khan promulgated Martial Law, assumed himself as the Martial Law Administrator and issued Martial Law Regulations and Orders; and on 31st day of March 1969 appointed himself as the President. On 14 April 1969, he also issued Provisional Constitutional Order and abrogated the 1962 Constitution, which had been in force since 8th day of June 1962.142 Interestingly, his actions before the 4th April were not considered in consonance with Articles 12, 16 and 30 of the Constitution which stipulated that the President may resign to the Speaker of the Legislative Assembly who would act as the President until elections of the new combat within 90 days or military would have been called to act in aid of civil power, to quell the internal disturbance and restore law and order. Instead of playing any constitutional or legal roll, General Yahya usurped power and issued Martial Law Orders to achieve the desired objectives, including todetain and silent the political and anti-government elements.143 In the wake of the political chaos in the country, threats of external aggression and outbreak of 1971 Pakistan-India war, on 23rd of November 1971, the President promulgated the Defence of Pakistan Ordinance 1971.144 In order to secure maintenance of public order, efficient conduct of military operations, maintain essential supplies and services to the community, ensure safety and welfare of the

142For promulgation of Martial Law of 31 March 1969 and Assumption of the Office of President; Provisional Constitutional Order of 4 April 1969, Martial Law Regulations and Orders (whereby Deputy Chief Martial Law Administrators were appointed, offences created and punishment prescribed for violation of orders, summary military courts were established whose proceedings were to be finally reviewed by the Judge Advocate General’s Department and cases transferred from ordinary criminal courts to military courts), See PLD 1969 Central Statutes 41, 42, 44, 55, 58 and 62. 143For detailed legal battle, see Miss Asma Jilani v Government of Punjab (PLD 1972 SC 139). 144PLD 1972 Central Statues 31. 167

Armed Forces and their subjects for the time being, prevent prejudicial communication with enemy and spread of rumours or false reporting which may be prejudicial to the security, public safety, interest or security of Pakistan and its relations with foreign powers, to apprehend or detain any person acting or likely to act in the said prejudicial manner, or restrict or prohibit his entry or residence in any area, the Ordinance empowered the Central Government to make Rules. 145 Accordingly, the Central Government made and issued the same day the Defence of Pakistan Rules 1971,146 which were detailed and comprehensive containing 213 Rules. The Ordinance alsotemporarily amended/modified certain laws and enhanced punishments of certain offences to death. The Ordinance also authorized the government to constitute special tribunals consisting of three members out of the Sessions or Additional Sessions Judges, or District or Additional District Magistrates, out of whom at least one should have been qualified to be a judge of the High Court. The tribunal could also conduct proceedings in the absence of any member or chairman, who may even join before final decision.147 The tribunal could award any sentence including death and conduct its proceedings at the place and time to be notified by the government. Judgment of the special tribunal was subjected to appeal before the concerned High Court.148 After a subsequent amendment in 1976, the tribunal was also authorized to punish any person for its contempt and related offences, for impeding the process of court/trial or causing prejudice to any party to the trial proceedings, by imprison upto six months or with fine or both.149 In line with the Ordinance, the Rules, amongst others, also defined prohibited or protected areas and places, penalized secret or prejudicial communication with enemy and imposed censorship.150 Restrictions were also imposed on foreigners,

145Defence of Pakistan Ordinance 1971, Section 3. 146PLD 1972 Central Statues 206, 336, 337 and 90. 147This was added by the Federal Government in terms of Section 10 of the Defence of Pakistan Ordinance 1971 and Special Tribunals (Sittings and Procedure) Rules 1976 (PLD 1976 Central Statute 198). 148Ibid Ordinance, Sections 8-13. 149Defence of Pakistan (Fourth Amendment) Ordinance 1976 (PLD 1976 Central Statutes 603), which was followed by the Defence of Pakistan (Fourth Amendment) Act 1976 (PLD 1977 Central Statute 22) for the same effect and repeal of the former. 150Seen generally ibid, Rules 16-26, 29, 42, 47-50. 168

while their carriers/ accommodating hotels/individuals were required to report their particulars to the nearest police/judicial officials. The Rules also provided for restriction on movement of suspected persons and authorized the government to photograph such persons and order for control or wind up of such organizations who are under foreign influence and are working against the security, interest or defence of Pakistan or public safety or maintenance of public order. Accordingly, the Governor of Punjab issued an order for detention/custody of Malik Ghulam Jilani, under the provisions of Rule 32(1)(b) read with Rule 213 of the said Defence of Pakistan Rules. Mr Ghulam Jilani was taken into custody on 20th day of December 1971 in compliance of the said order, which described that it was desirable to prevent him from acting in a manner prejudicial to the security, public safety, interest and defence of Pakistan. On 23 December 1971, Miss Asma Jilani filed a writ of habeas corpus and challenged detention of her father; whereupon the Lahore High Court issued notice to the Governor for 31st day of December 1971. However, a day earlier on 30th December, the Governor rescinded the order issued on 20 December; and being Martial Law Administrator Zone ‘C’, issued another order under Martial Law Regulation 78, whereby Mr Ghulam Jilani was detained in his house on the same set of allegations, so as to restrain him from making seditious speeches and utterances prejudicial to the security or defence of Pakistan. He was also obliged not to meet anyone except with the permission of the District Magistrate. The petitioner modified the petition which came up for regular hearing on the 15th day of January 1972. However, Mr Justice Shafiur Rehman dismissed the petition while relying on State v Dosso’s case,151 on the ground that jurisdiction of the High Court and the Supreme Court had been barred by the Jurisdiction of Courts (Removal of Doubts) Order 3 of 1969. Aggrieved by the decision of the High Court, the petitioner invoked the appellate jurisdiction of the Supreme Court, who allowed the appeals and ordered for setting Mr Jilani at liberty. The Supreme Court also overruled the doctrine of necessity based on the Kelsen’s theory, which legitimized successful revolutions and recognized as such in Dosso’s case, which had also recognized the assumption of powers by General Ayyub Khan.

151PLD 1958 SC (Pak) 533. 169

Finally, the Supreme Court declared proclamation of Martial Law and assumption of power by General Yahya Khan as unconstitutional and illegal. Notwithstanding the fact that the dictum of Supreme Court in Miss Asma Jilani case152 did not touch upon the vires or otherwise of the 1971 Defence of Pakistan Ordinance, yet it became a yardstick to evaluate any law (including Martial Law), order and action on the touchstone of the constitution, disregarded the law of necessity and recognized the right to exercise judicial review by the superior judiciary.153

4.2 Security and Anti-terrorism Legislation after the Emergence of New Pakistan till Ouster of Mrs Benazir Bhutto (1972-1996)

This is the second phase of security and Anti-terrorism legislation, which starts with the emergence of new Pakistan and carries till 1996 when Prime Minister Mrs Benazir Bhutto was removed from her office by President Farooq Leghari. After the fall of Dhaka, dimension of the national security and anti-terrorism laws changed to a certain extent. The law and order situation and security issues had been haunting the country even after the Government of Mr. Zulfiqar Ali Bhutto was successful in adopting a unanimous constitution in 1973. The fragile and volatile political scenario, compromising peace and security of the country, necessitated amendments and promulgation of certain new laws. Thus in addition to the above discussed laws, following legislations were also promulgated in the second phase:-

4.2.1 Prevention of Anti-National Activities Ordinance 1973/Act 1974 In the backdrop of Pakistan-India war of 1971 which culminated in separation of East Pakistan and emergence of Bangladesh, other anti-Pakistan movements also surfaced in Balochistan and Khyber Pakhtunkhwa (then N.W.F.P). Since West Pakistan was in the reorganization phase and the Government of Pakistan was being run under the interim Constitution of 1972 which was passed by the National Assembly and came into force on the 21st day of April 1972, it was expected that after the 1973 elections and the passage of the 1973 Constitution of Pakistan, the separatist and anti-national movements in the country will die down; and their leadership or the remnants would join the political process. However, the situation remained in the doldrums, leaving the government with no substitute but to take

152Miss Asma Jilan v Government of Punjab (PLD 1972 SC 139). 153Defence of Pakistan Ordinance1971, though still in existence as the same had been validated by the Parliament, yet is sparingly used. 170

more effective preventive measures to curb anti-national and treasonable activities, despite the fact that Article 17 of the 1973 Constitution had guaranteed freedom of association. Since the freedom of association given in the constitution is not absolute but subject to reasonable restrictions imposed by law, the President promulgated the Prevention of Anti- National Activities Ordinance in 1973.154 Subsequently, the Parliament passed the Prevention of Anti-National Activities Act 1974 which received the assent of President Chaudhry Fazal Elahi on the 9th day of February 1974.155 The Act defined ‘anti-national activity’ as anything done by any individual or association, with intend to secede any territory from the Federation of Pakistan or which is intended to disrupt sovereignty or territorial integrity of Pakistan. Similarly, activities of any person, in the nature explained above, to encourage or incite any public or group to establish any front or ‘mahaz’ on the basis of race, language, ideology or other consideration to disrupt unity of Pakistan were also brought within the pale of ‘anti- national activities’.156 The idea was to discourage any nationality or unity on the basis of any province or language and recognize only one nationality or unity on the basis of Pakistan; and integrate Pakistan on the basis of Federation. The Act empowered the Federal Government to declare by notification any organization or association as ‘anti-national association’, if it is satisfied that it is or has engaged in ‘anti-national activities’.157 The government shall refer the notification to the ‘Anti-National Activities Prevention Tribunal’ to adjudicate if there is sufficient cause to declare any association as ‘anti-national association’. The tribunal may require the members or office bearers of the association to show cause and hold any inquiry, to determine and declare the sufficiency or otherwise of the case within a period of six months of the date of notification. Decision of the tribunal is final but is subject to appeal before the Supreme Court.158 The notification for declaration of ‘anti-national association’ shall remain in force until the government withdraws and cancels it or it is not confirmed by the tribunal. Where the government had prohibited any person, including any bank company, corporation, other

154PLD 1974 Central Statutes 64. 155PLD 1974 Central Statutes 151. 156Prevention of Anti-National Activities Act 1974, Sections 1-2. 157Ibid, Sections 3-9. 158Ibid, Sections 4-6. The tribunal will also follow the procedure given in CPC, for summoning of witnesses, calling or production of documents or record from any court or office, receiving evidence on affidavit or issuing commission for examination of witnesses, as the proceedings of the tribunal shall be considered as ‘judicial proceedings’ in terms of PPC Sections 193 and 228. Also see CrPC, Sections 476-487. 171

association, etc, from making any payment, delivery or transfer of any money or security or credit to the ‘anti-national association’ and served him an order to this effect, such aggrieved person maymake an application to the District Judge to rebut the government claim and justify lawful use of such money, sureties or credit; and request him to decide the issue. Similarly, where the government had notified any place as the ‘notified place’ due to activities of any declared/alleged ‘anti-national association’, the District Magistrate may take into possession any moveable property recovered from such place, in the presence of two respectable witnesses and prohibit use of any item recovered there from which may be used for ‘anti-national activities’. He may also prohibit entry or continued stay therein of any person in the said place except the residents or near relatives or subject to search. If any person is aggrieved by the said orders, he may submit an application to the District Judge to set aside the order/notification. The decision of the District Judge and the tribunal shall be appealable before the High Court concerned and the Supreme Court respectively within a period of ninety days.159 The Act also penalized every person who, after issue of notification of ‘anti-national association’ remains associated with such association, as its member, attends its meetings, collects, contributes or requests any contributions for the said association, with imprisonment which may extend to two years and fine. On the other hand, any person who despite having served an order prohibiting use of funds, securities etc or an order in respect of ‘notified place’ contravenes any such order, he may be imprisoned upto three years and one year with fine, respectively.160 Similarly, the Act ordained that any person, who participates in any anti-national activity, or advocates, abets or attempts any such activity shall be liable to imprisonment which may extend to seven years and fine.161 The provincial government may also with prior approval of the Federal Government make any order regarding use of funds or ‘notified place’.162 The provisions of the Act or any Rule or order issued thereunder were given overriding effect on all other laws or legal instruments. The Federal Government was also empowered to make Rules and provide for procedure to be followed by the Anti-National Activities Prevention Tribunal.163

159Ibid, Sections 7-9, 15. 160Ibid, Sections 10-12. 161Ibid, Section 13. 162Ibid, Section 19. 163Ibid, Sections 19-21.Prevention of Anti-National Activities Rules, 1974 are also available at PLD 1974 Federal Statutes 279. 172

4.2.2 High Treason (Punishment) Act 1973 Similarly, the Parliament enacted High Treason (Punishment) Act 1973.164 The Act ordained death or life imprisonment as the punishment for a person who is found guilty of high treason or any act of abrogation of the constitution. The Act was passed in the backdrop of successive attempts in the past to abrogate the constitutions, including the 1956 and 1962 Constitutions and create deterrence against any misadventure to abrogate the Constitution of 1973 or a coup. It may not be expressed with certainty if the deterrence bore fruit or any of the governments could not pick up the courage to try any person who had abrogated the previous or existing constitution as their coup had been validated by the Apex Court. 165 However, as the misfortunate would have it for both Prime Minister Nawaz Sharif and ex President General Pervez Musharraf, who had ousted seven judges of the Supreme Court including the Chief Justice and abrogated the constitution on 3rd day of November 2003, that the former decided to indict the latter under the said High Treason (Punishment) Act, for abrogating the 1973 Constitution and overthrowing the Chief Justice of Pakistan and judges of the superior judiciary, in compliance of the Supreme Court’s judgment in Bar Association case.166 Accordingly, the Federal Government constituted a Special Court headed by Justice Faisal Arab of the Sindh High Court and consisting of Justice Syeda Tahira Safdar of the Balochistan High Court and Justice Yawar Ali of Lahore High Court which commenced trial proceedings in January 2014. The Special Court indicted the ex president on five counts under Article 6 of the Constitution read with Sec 3 of the High Treason (Punishment) Act 1973; while the trial was to be conducted under the provisions of the Criminal Law Amendment (Special Court) Act 1976.167 The court was to conduct the trial proceedings without unnecessary adjournments. However, the legal controversies on the constitution and jurisdiction of the court, indictment of the accused/former President on high treason charges without charging his accomplices or abettors caused significant delay in finalizing trial proceedings, which finally culminated in a sketchy order (not the final judgment) handed down by the special court on the 21st day of November 2014against an

164PLD 1974 Central Statutes 34 165See for example: Maulvi Tameezud Din Khan case (PLD 1955 FC 240), Nusrat Bhutto v Chief of Army Staff (PLD 1977 SC 657), Benazir Bhutto case (PLD 1988 SC 416), Syed Zafar Ali Shah v General Pervez Musharraf (PLD 2000 SC 869). 166PLD 2009 SC 879. 167PLD 1976 Central Statutes 189. 173

application by the accused President. The upshot of the order is that the ex President neither stood convicted nor acquitted. The court while accepting plea of the accused, directed the government to include ex Prime Minister Shoukat Aziz, ex Law Minister Zahid Hamid and ex/defecto Chief Justice Abdul Hameed Dogar as the co-accused/abettors of the ex President. The government though in a fix to decide the options available with it in the backdrop of the 126 days sits-in by Mr in Islamabad since 14/15th day of August 2014, trust deficit between the government and the military leadership and confidence-building measures between the two, ultimately decided to file an appeal in the . The position so far is that all the three alleged co-accused and ex President of the Lahore High Court Bar Association have filed petitions in the Islamabad High Court challenging the order of the special court on various grounds including that the special court did not have the jurisdiction to pass such an order but to try the accused, it is prerogative of the government whether to indict the abettors or not, neither the alleged abettors had abetted the ex-President for abrogating the constitution or dismissing the judges nor there is any order in the SindhHigh Court Bar Association judgment of 31st July 2009 which implicate them as the accomplices. The government has also requested for constitution of larger bench consisting at least of three members, while the matter is subjudice.168 Ex-Presedent Musharraf has proceeded abroad after the Supreme Court order; while the Special Court has issed warrant of his arrest and confiscation of his property for continued absence. 4.2.3 Private Military Organizations (Abolition and Prohibition) Act 1974 It may also be highlighted that in the backdrop of the escalations and separatist movements, some loosely defined armed organizations were also operating in both the East and West wings of Pakistan. Some of them were pro-Bengalis, pro-Pakhtuns and pro- Balochis; while some of them were pro-government fighting side by side against the separatists’ movement sponsored by India in East Pakistan (now Bengladesh). Such organizations included private and tribal lashkars engaged in anti-state and sabotage activities and demanding the right of self determination for Pakhtuns and Baluchis. They continued their activities even after the Pakistan-India war was over. Some other anti-

168See Senior Counsel Challenges Order against Musharraf’s abettors’, DAWN Islamabad, December 3, 2014, p 19; Dogger challenges special court verdict, DAWN Islamabad, December 11, 2014, p 5; Government seek larger bench to hear pleas against special court order, DAWN Islamabad, December 13, 2014, p17; PM appeals against special court order, DAWN Islamabad, December 21, 2014, p18. 174

national and nationalist organizations based on language, race etc had also formed their military wings or converted themselves into such organizations capable of functioning as military organizations. Some of which were also named as such e.g. Baluchistan Liberation Army existing even today. Hence there was a need to formally disown and disband such organizations. Accordingly, not only formation of any such organization was prohibited but their existence was also declared illegal, in terms of Article 256 of the 1973 Constitution of Pakistan. Simulteneously, the President promulgated the Private Military Organizations (Abolition and Prohibition) Ordinance on 27th day of October 1973.169 Later on the 2nd day of January 1974, it was promulgated as the Private Military Organizations (Abolition and Prohibition) Act 1974.170 The Act empowered the Federal Government to abolish any organization which is capable of functioning as a military organization. The Act also prescribed punishment of imprisonment upto five years and fine for forming any private military organization, joining such organization as member, participant or adherent, training or equipping such organization. 4.2.4 Suppression of Terrorist Activities (Special Courts) Act 1975 In the same realm and with intent to suppress acts of sabotage, subversion and terrorism, the Federal Government decided to constitute special courts through the Suppression of Terrorists Activities (Special Courts) Ordinance 1974 which was amended by the Suppression of Terrorists Activities (Special Courts) (Amendment) Ordinance 1974.171 This is for the first time that government had used the term terrorism in any legislation. Earlier, the reasons and justifications for constitution of special courts or tribunals were related to the prevention and trial of offences relating to waging war against Pakistan, mutiny, seducing any person from his allegiance to the Government of Pakistan or anti- national, anti-government, anti-state or treasonable activities. Since the anti-national activities were transformed into sabotage, subversive and terrorist activities, the government had to change its perception of anti-national activities and transcribed them in clear words and phrases. In the meantime, the government succeeded in promulgating the Suppression of Terrorists Activities (Special Courts) Act on the 1st day of February 1975, which repealed the

169PLD 1974 Central Statutes 50. 170PLD 1974 Central Statutes 93. 171PLD 1975 Central Statutes 3 and 53. 175

said ordinance and carried the field.172 The Act provided for constitution of special courts, who were vested with exclusive power to try the offences as mentioned in the schedule and to include the offences of waging war against Pakistan; criminal conspiracy; collecting arms and concealing designs for the said offences; defiling national flag; assaulting president or governors; sedition; kidnapping or abduction of woman to compel for marriage; belonging to gangs of dacoits; hijacking or harbouring hijackers; mischief by injury to public roads and bridges etc; murder and culpable homicide not amounting to murder, dacoity, robbery, mischief by fire or explosive substance while carrying/using explosive substance, cannon, grenade, bomb, rocket, machine gun, Kalashnikov, G-3 rifle or any other automatic weapon; other offences punishable under Section 13-A/B of the Pakistan Arms Ordinance 1965, Sections 126-128 of the Railways Act 1890, Section 25 of the Telegraph Act 1885, Rule 29 of Aircraft Rules 1937, Rule 43 of the Defence of Pakistan Rules and Section 13 of the Anti- National Activities Act 1974.173 The officer-in-charge of the concerned police station was competent to prepare and produce within fourteen days, challan/report under Section 173 of the CrPC of the case before the special court, unless the court is satisfied and extends the time for good reasons. Any police officer connected with the case and causing delay in investigation or submission of the requisite report was considered to have committed ‘willful disobedience’ of the special court and liable to be dealt with in accordance with law. 174 The special court was to conduct the trial on day to day basis and could try the accused in absentia,after compliance of Section 87 of the CrPC and appointment of a defence counsel at the government expense.175 However, if the accused surrendered or was apprehended within a period of sixty days of his conviction and even thereafter and justified his absence for good reasons, the special court could set aside his conviction and proceed with the trial afresh. The decision of the court was subject to appeal within 30 days before a division bench of the concerned High Court who was to decide the appeal within a period of three months.

172PLD 1975 Central Statutes 89. The Act was repeatedly amended vide Suppression of Terrorist Activities (Special Courts) (Amendment) Ordinances of 1987, 1988 1989, 1990 and 1991. 173Sections 1-4A read with Schedule to Section 2(b) and 11 of the Suppression of Terrorist Activities (Special Courts) Act 1975 and Suppression of Terrorist activities (Special Courts) (Amendment) Ordinance 1987 (PLD 1987 Central Statute 65) whereby Sections 302 and 307 of the PPC were also added. 174Ibid, Section 5 which was amended to this effect vide Suppression of Terrorist Activities (Special Courts) (Amendment) Ordinance 1990 (PLD 1990 Central Statutes 59). 175The Supreme Court had refused to interfere in the matter of bail and proclamation against MPA Mumtaz Bhutto. See Mumtaz Ali Khan Bhutto v Court of Judge Special Court No. 2 (1997 SCMR 1107). 176

However, neither the special court nor any other court was competent to grant bail to any accused tried before it nor any court could issue any order of habeas corpus or suspend the sentence pending decision of the appeal.176 The issue of bail came up for determination before a Division Bench of the Karachi High Court headed by Justice Durab Patel during appeals filed by one of the convicts under Section 7 of the instant Act.177 Justice Patel, having examined the Act in its entirety, observed that Section 7 of the Suppression of Terrorists Activities (Special Courts) Act 1975 has been clumsily drafted with ambiguity; while second part of it had been almost copied from Section 26 of the Special Criminal Courts Ordinance 1942, which had excluded interference of any other court with reference to any sentence or order of the courts established under the ibid Ordinance. Justice Patel concluded that notwithstanding anything contained in ibid Section 7 or the Act, the Division Bench of High Court shall have power to hear bail applications and grant bail in a fit case.178 The Court also observed that an appellate authority has an impliedly inherent right to provide inter-locutory relief in any ancillary or incidental issue while hearing the appeal.179 In yet another case180 where the respondents were charged for committing/abetting murder of MQM workers were granted bail by the Sindh High Court on medical grounds, the Supreme Court did not interfere into the matter and upheld the decisions of declaring that both the special court and the High Courts were competent to grant bail on medical grounds. The Act also indemnified all acts done in good faith by any person under the Act and had overriding effect on other laws.181 The Act remained in force until 15th day of August 2001, when it was repealed by Section 39-B of the Anti-terrorism Act 1997.182 4.2.5 Criminal Law Amendment (Special Court) Act 1976 Political chaos and challenges to the sovereignty, integrity and security of Pakistan coupled with offences in the nature of high treason in the country more specifically Balochistan and NWFP (now Khyber Pakhtunkhwa) provinces coerced the government of Prime Minister Zulfiqar Ali Bhutto to establish special court for trial of certain offences. This

176Ibid, Sections 5-7as amended/substituted by the ibid Ordinances of 1990. 177Mirza Jawad Beg v State (PLD 1975 Karachi 628). 178Ibid, pp 634, 635, 638. 179Ibid, pp 636, 637.Reliance was also placed on the dictum of Justice Yaqub Ali in Commissioner Khairpur v Ali Sher Sarki (PLD 1971 SC 242). 180State v Syed Qasim Ali Shah and State v Shah Nawaz Khan Junejo, 1992 SCMR 2192. 181Ibid Sections 9 and 10. 182 Added by Anti-terrorism (Amendment) Ordinance 2001 (PLD 2002 Central Statutes 107). 177

objective was achieved through the Criminal Law Amendment (Special Court) Ordinance 1975,183 which was repealed by the Criminal Law Amendment (Special Court) Act 1976. The Act stipulated that the offences of waging or attempting to wage war against Pakistan or any abetment or conspiracy to commit the said offences, collecting arms or ammunition with intent to wage war against Pakistan, concealing design to wage war so as to facilitate waging of war, condemnation of the creation of Pakistan or endangering sovereignty of Pakistan, high treason or abrogation of constitution would be exclusively triable by the special court established under the Act.184 The special court would consist of three judges of High Courts.185 The federal government shall act the prosecutor and on behalf of the prosecution send a complaint (stating therein brief statement of the cases) to the special court together with particulars/number of accused persons and the charge sheet of offences(s) allegedly committed by each of them and the list of prosecution witnesses.186 The federal government may also appoint prosecution counsels who shall be reckoned to be public prosecutors. 187 In the conduct of its proceedings the special court is obliged to arraign the accused on the formal charges as soon as he appears before the court and record his plea of guilty or not guilty. In case the accused pleads guilty to the charge(s), the special court in its discretion may find him guilty of the charge. However, if he pleads not guilty or refuses to plead, the court shall record evidence for the prosecution, examine the accused in terms of Section 342 of the CrPC, whereafter evidence of all defence witnesses shall be recorded. The parties then shall be afforded the opportunity to advance their arguments, which shall follow the pronouncement of the final judgment of the court.188 Although the Act does not provide for the quantum of punishment yet the court is competent to award the sentence prescribed in the relevant section of the PPC and the High Treason (Punishment) Act 1973. The court is also required not to unnecessarily adjourn the proceedings and may proceed even in the absence of the accused after arraignment, if he is represented by a defence counsel or such counsel

183PLD 1975 Central Statute 54. The ordinance was further amended vide Criminal Law (Special Court) (Amendment) Ordinance 1976, PLD 1976 Central Statutes 155, 196, 532. 184Sections 1-3 of the ibid Act of 1976 and PPC Sections 121, 121A, 122, 123, 123A and offences under the High Treason (Punishment) Act 1973. 185Ibid, Section 4. 186Ibid, Section 5. 187Ibid, Section 11(1). 188Ibid, Section 6. 178

has been appointed at the expense of the government. 189 The parties shall have the right to appeal to the Supreme Court against the final judgment within a span of 30 days.190 The Act has been given overriding effect over any procedure/provision contained in the CrPC, Evidence Act (now Qanun-e-Shahadat 1984) or any other law in force.191 But despite this restriction there had been instances when the parties beseeched jurisdiction of the superior courts on one or the other legal pretext. Recent example is the high treason case against ex President General Pervez Musharraf, who was tried by the special court constituted under the said Act of 1976. The special court instead of returning the verdict of guilty or not guilty on the charges preferred against General Musharraf ordered that accomplices of the accused should also be charged and impleaded. Aggrieved by the decision of the special court, the federal government and alleged abettors of the offence of high treason namely ex Prime Minister Shoukat Aziz, ex defecto Chief Justice Abdul Hameed Dogar, ex Law Minister Zahid Hamid moved the Islamabad High Court against the said decision, which ultimately ordered for re-investigation of the high treason case with equal opportunity to the main accused and the alleged abettors to produce evidence in their defence.192 Pending finality of the case, ex President Musharraf proceeded abroad as a result of judgment of the Sindh High validated by the Supreme Court, which ordained that its previous order to place name of the ex President on Exit Control List was “an interim order”, which had lost its validity.193

The second phase of national security and anti-terrorism legislation experienced anti- Bhutto campaign in the name of Tahreek-i-Nizam-i-Mustafa launched by Pakistan National Alliance (PNA) which ultimately resulted into ouster of Prime Minister Mr Zulfiqar Ali Bhutto and imposition of Martial Law by General Muhammad Zia-ul-Haq. General Zia also established military courts by adding Article 212-A in the Constitution. Subsequently, when the government of Mrs Benazir Bhutto was installed, she also established special courts for

189Ibid, Section 9 and Section 11(2). 190Ibid, Section 12. 191Ibid, Section 13. 192Malik Asad, “Decision in Musharraf treason case, ‘win-win’ for all sides”, DAWN Islamabad, November 11 2015, p. 17. The Special Court had decided the case on 21 November 2014 after a prolonged hearing of months, rather than deciding in the stipulated time frame. 193See Federation of Pakistan v General (R) Pervez Musharraf (PLD 2016 SC 570). Removal of his name from the ECL was an arrangement to restore civil-military relations, provide safe exit to General Musharraf and provide opportunity to his legal team to frustrate judicial process of his trial in the high treason case. However, this deal culminated in the sacrifice of office of the Attorney General for Pakistan by Salman Aslam Butt. 179

trial of heinous crimes in July 1991 by adding Article 212-B in the Constitution.194 However, when Mr Nawaz Sharif took over reins of the government, he did not resort to constitutional arrangement; rather he relied on subordinate legislations. The following were important legislations in the post-General Zia Martial Law:-

 Special Courts for Speedy Trial Ordinance/Act 1987and Special Courts for Speedy Trial Act 1992  Surrender of Illicit Arms Act 1991  Terrorist Affected Areas (Special Courts) Act 1992  Code of Criminal Procedure (Amendment) Ordinance 1992

4.2.6 Special Courts for Speedy Trial Ordinance/Act 1987 and Special Courts for Speedy Trial Act 1992

While Suppression of Terrorists Activities (Special Courts) Act 1975 and Criminal Law Amendment (Special Court) Act 1976 were carrying the field, on 23rd day of July 1987, President General Muhammad Zial-ul-Haq promulgated Special Courts for Speedy Trial Ordinance 1987,195 whereby special courts for expeditious trial of certain offences (which could create panic or fear, anxiety or outrage in public or any segment thereof) and execution of deterrent punishments were established. The ordinance was given overriding effect while the provincial governments were permitted to established special court(s) consisting of a judge of the High Court concerned or a person so qualified. The special court was required to conduct the trials on day to day basis unless inexpedient in the interest of justice; while officer-in-charge police station was required to complete the investigation within 14 days.196 Any laxity in conduct of investigation would amount to disobedience of the orders of the special court; hence cognizable by it. The court could also try any accused in absentia.197 This ordinance was repealed in November 1987 by Special Courts for Speedy Trials Act 1987,198 which assimilated the above said provisions. However, the provisions of absentia

194Chapter 6 has been dedicated to discuss military courts and courts martial. 195PLD 1987 Central Statutes 66; Special Courts for Speedy Trial Act 1987 is available at PLD 1988 Central Statute 11. 196Ibid Ordinance, Sections 1-8. 197Ibid, Section 8. 198PLD 1988 Central Statute 11. 180

trials were omitted in the subsequent legislations.199 Although the Ordinance/Act did not specify the offences triable by the special court or prescribed any enhanced sentence against any offence but its manifest object was to award deterrent punishments prescribed against the offences in the relevant statutes; and execute the sentences in a manner and at such places which might have deterrent effects on the criminals and pacify the aggrieved party, besides building confidence of the people in the judicial and investigative organs of the state. 200 The government and people were ambitious to create and see the effects of this Act, until the convicts of Pappu, a child of tender age who was kidnapped for ransom, sodomized and killed, were tried and executed in public outside the Kotlakhpat Jail in Lahore.201 The open execution in public though received negligible criticism of the philanthropists, intellectuals and legal fraternity of that time, yet created deterrent effects which lasted for many years and the crime rate was reduced to a considerable extent. But like the fate of other legislations, speedy trials and execution of punishments lost momentum and efficacy slowly and gradually, especially after the demise of the President on 17th August 1988, despite the fact that such laws in more stringent forms still exist. In this realm, a young boy who had kidnapped a boy of 10/12 years of Samanabad () for ransom, sodomized and thrown him in the canal after strangulation was tried and sentenced to death by the special court for speedy trial on 20 January 1992. The decision of the special court created deterrence. However, owing to the convict being a juvenile offender, the Supreme Appellate Court (Justice Naseem Hasan Shah) reduced his sentence to life imprisonment.202

President and the successive governments kept on promulgating the said/similar ordinance afresh after lapse of four months with omissions or additions of some provisions203 until the same was passed as an act of Parliament in terms of Special

199See Special Courts for Speedy Trial Ordinance 1990 (PLD 1991 Central Statutes 144), whereby Sub-Sections (4)-(6) were omitted from Section 8. 200Ibid, Sections 5(4) and 9. However, subsequently vide Special Courts for Speedy Trial Ordinance 1990 (PLD 1991 Central Statute 144), a schedule was added to the definition of the word ‘offence’ contained in Section 2(c) to include offences described under Sections 161-163, 302-303, 354, 454A, 363, 369, 396, 397, 403, 404, 406-409, 417-420, 465-468, 471, 471A and 503 of the PPC; any attempt, abetment and conspiracy of such offences; and offences under Prevention of Corruption Act 1947. 201This scholar had also the opportunity to witness the execution. 202Muhammad Nadeem v State (1992 PCrLJ 1520). 203See for example: Special Courts for Speedy Trial Ordinance of 1990, 1991 and 1992 (PLD 1991 Central Statutes 144, 450 and 487, PLD 1992 Central Statutes 48 and 159). 181

Courts for Speedy Trial Act 1992.204 The Act assimilated the said provisions of the ordinance(s) and, amongst others, required the provincial governments to determine terms and conditions of judges of the special courts, if not sitting judges of the High Court; authorized the special courts to directly take cognizance into any case like a magistrate of first class, issue orders for detention and temporary custody of accused with police, if could not be produced within 24 hours and conduct the proceedings in open court; increased composition of the appellate court from single judge of the Supreme Court to the Supreme Appellate Court consisting of a Supreme Court judge as chairman and two judges of High Courts; and determined that the trial before the special court would have precedence over other courts. The Act also included other offences contained in the “Arms Act 1978”, “Telegraph Act 1885”, “Explosive Substance Act 1908”, “Anti-National Activities Act 1974”, “the Drugs Act, “Surrender of Illicit Arms Act 1991”etc in the schedule of offences triable by the special court. This Act was subsequently repealed by “Special Courts for Speedy Trials (Repeal) Act 1996.”205

Simultaneously, the government of Mr Nawaz Sharif considered it necessary to take further steps to control law and order situation in the country and suppress acts of terrorism, subversion and other heinous crimes in the terrorist affected areas, more specifically Sindh, where operations against dacoits were being conducted. Accordingly, on the 1st day of July 1991, Surrender of Illicit Arms Ordinance 1991206 was promulgated, which was followed by the Terrorist Affected Areas (Special Courts) Ordinance 1991207 promulgated on 8th Jul 1991. The later ordinance was promulgated afresh208 after each lapse until both of them were respectively passed as “Surrender of Illicit Arms Act 1991”209 and “Terrorist Affected Areas (Special Courts) Act 1992.”210At the same time, on 19th July 1992, the President promulgated

204Act IX of July 1992, PLD 1992 Central Statutes 229. 205Act XI of 1996, Gazette of Pakistan Extraordinary, Part I, 15 August 1996, available at Zia-ul-Islam Janjua, Criminal Major Acts (Lahore: Law Times Publications) 1998, p.1243-44. 206PLD 1991 Central Statutes 282. For date of enforcement in different areas/provinces, see notification at PLD 1992 Central Statutes 3. 207PLD 1991 Central Statutes 438. This Ordinance and the 1992 Act was replica of the (Indian) Terrorist Affected Areas (Special Courts) Act 1984. The main difference was that 1984 Act, available at http://www.satp.org/satporgtp/countries/india/document/actordinances/terroristsaffectedact.htm, accessed August 5, 2015. 208See at PLD 1991 Central Statutes 475. 209PLD 1992 Central Statutes 43. 210Act X of 18 July 1992 (PLD 1992 Central Statutes 235). 182

“Code of Criminal Procedure (Amendment) Ordinance 1992”,211 which was given retrospective effect from 28th day of May 1992; whereby Section 131-A was inserted in the CrPC. Section 131-A obliged the Federal and Provincial Governments to seek assistance of the Armed Forces to ensure security of public, protection of their life and property, maintenance of law and order as well as public peace. The Ordinance though permitted officers of the Armed Forces to exercise power of search, arrest, pursuit of offenders etc and use force to achieve the desired objectives when so requisitioned; however, they were not given the powers of a magistrate.

4.2.7 Surrender of Illicit Arms Act 1991

Surrender of Illicit Arms Act 1991212 ordained that anybody having in his possession or control any illicit weapon would surrender the same to the designated/concerned Deputy Commissioner, Assistant Commissioner or officer-in-charge of the police station within the specified time period, failing which he would be liable to different degrees of imprisonments including life imprisonment, forfeiture of moveable and immovable property as well as the illicit arms to the federal government, having regard to the antecedents (substitute find) of the accused and nature/caliber of the illicit arms.213 The government was also authorized to conduct search for illicit arms and scrutiny of licenses and, if considered desirable for maintenance of public peace, law and order, cancel license of any person to keep arms or/and ammunition and direct him to deposit the same. Failure to present the license would make such person liable to suffer rigorous imprisonment from 3 to 10 years and confiscation of the arms and ammunitions.214 The Act also encouraged the general public to provide information about possession or transportation etc of the illicit arms and if any recovery was effected as a consequent thereto, the informer was to be suitably rewarded corresponding to the nature and quantity of recovered illicit arms.215

211PLD 1992 Central Statutes 227. 212Provisions of the Act had effect in addition to any other existing law and without undermining or conflicting any corresponding law. 213Surrender of Illicit Arms Act 1991, Sections 4 and 7. 214Ibid, Sections 11 and 12. 215Ibid, Section 10. 183

4.2.8 Terrorist Affected Areas (Special Courts) Act 1992

It may be recalled that the Terrorists Affected Areas (Special Courts) Act 1992 was promulgated on the same day i.e. 18 July 1992 when Special Courts for Speedy Trial Act 1992 was promulgated. However, the provisions of the former Act had been in vogue in the forms of Terrorists Affected Areas (Special Courts) Ordinance 1992 side by side with the Special Courts for Speedy Trial Ordinance 1992.216 It appears as if the federal government was not satisfied either with the performance of the provincial governments especially the Sindh government for maintenance of law and order, especially in Karachi where curfews were frequently imposed due to Muhajir (now Muttahida) Qaumi Movement’s (MQM) activities turning the cities into battlefields, or outcome of the special courts established under the Special Courts for Speedy Trial Ordinance(s). Hence the federal government decided to take the charge and eliminate “terrorism, subversion, sectarian and ethnic target killings, and other offences by declaring the areas most affected by the said menace as the terrorist affect areas and establishing special courts in the said areas of zones.” Although the Ordinance/Act was extended to the whole of Pakistan but the focus remained deteriorating law and order situation in Karachi. The Ordinance/Act and the scheduled offences were similar to the provisions and offences of Special Courts for Speedy Trial Act 1992. However, some of the provisions were significantly different and amended or added. For example: in the Special Courts for Speedy Trial Act 1992, the federal government could delegate its powers to the provincial governments but in the Terrorists Affected Areas (Special Courts) Act, powers of the federal government could be delegated to anyone without specifying the provincial government.217 The Act also authorized the magistrates specifically designated in the terrorist affected areas(s)/zone(s) on the direction to the federal government, “to call, use and order the police or civil armed forces to carry out search and apprehend harbouring criminals; recover kidnapped, abducted or wrongfully confined persons; seize or recover illicit arms, ammunitions, explosive substances and case or crime property; destroy hide outs or fortified positions and shelters of criminals who open fire or attack the police, civil armed force and innocent citizens.” The Act also authorized the special court to conduct its proceedings in camera, is so required and at any place within the province, if peace and

216Both these ordinances were promulgated by President Ghulam Ishaq Khan on 7th and 8th day of July 1992 respectively. 217Sections 14 and 21 respectively of the said Acts. 184

security in the zone or safety of the accused, witnesses, persecutors or officials of the court could be compromised.218 Similarly, in case of transfer of a case or the judge, the court was not required to record the evidence afresh but to proceed ahead as in the normal course of criminal trials. The government could also appoint public prosecutors or special public prosecutor and try the accused in absentia after publishing a proclamation of abscondance.219 The Act also provided indemnity against any suit, prosecution or other legal proceedings for anything done or intended to be done in good faith.220

While the government was confronted with deteriorated law and order situation, President Mr Ghulam Ishaq Khan, on 18th day of April 1993 dissolved the National Assembly, dismissed Prime Minister Mr Nawaz Sharif and his cabinet on the charges of mal- administration, corruption, nepotism, subverting authority of Armed Forces (in the wake of allegation of Begum Nuzhat Asif Nawaz, leading to his death) and the government machinery. However, his government was restored by the Supreme Court, though Mr Nawaz Sharif had to go for fresh elections as a result of the compromise whereby President Mr Ghulam Ishaq Khan had also resigned.221 In the following elections, Pakistan People’s Party installed the government with Mrs Benazir Bhutto as the premier. She followed the then existing anti-terrorism laws. However, her government was dissolved by President Leghari on 5 November 1996.222 This political instability in the country gave a severe blow to the criminal justice system in Pakistan as the administrative machinery remained committed with the political issues with no check and balance on the crimes.

4.3 Security and Anti-terrorism Legislation during Mr. Nawaz Sharif and General Pervez Musharraf Regimes in the Pre and Post 9/11 Tragedy (1997-2015)

This is a critical phase which covers pre 9/11 period scattered over three regimes in the credit of Mr. Nawaz Sharif and a crucial phase of WOT initiated and fought by President General Pervez Musharraf in his own autocratic style followed by the government of People’s Party with Mr Asif Ali Zardari as the President of Pakistan and co-chairperson of

218Ibid, Sections 6-8. 219Ibid, Sections 9-13. Also see CrPC Sections 492 and 87-88 for appointment of Public Prosecutor and declaring an accused as proclaimed offender. 220Ibid, section 27. 221For details of the case, see Muhammad Nawaz Sharif v President of Pakistan (PLD 1993 SC 473). 222 For background and details of the case, see Benazir Bhutto v President of Pakistan (PLD 1998 SC 4273). 185

the party. This phase is continuing with Mr Nawaz Sharif once again in reins and fighting the menace of terrorism with the support of the military leadership and political backing. The most important anti-terrorism legal instrument of this period is Anti-terrorism Act 1997, which has been frequently amended over the period of time. This era also includes 21st Constitutional Amendment and Pakistan Army (Amendment) Act 2015, whereby civilians committing terrorism in the name of religion or sect had been subjected to trials by courts martial. However, these legislations are not being discussed here, as chapter 6 has been dedicated for trial of civilians by military courts or courts martial. Some of the other important security and anti-terrorism laws223 are enumerated as under:-

 Anti-Terrorism Act 1997  Shari Nizam-e-Adl Ordinance 1999 and Sharia’h Nizam-e-Adl Regulation 2009  Actions (in Aid of Civil Power) Regulations 2011  Investigation for Fair Trial Act 2013  Protection of Pakistan Ordinance 2013 and Protection of Pakistan Act 2014

4.3.1 Anti-terrorism Act 1997

Mr Nawaz Sharif remained seized of the law and order situation in the country which did not improve during Mohterma Benazir Bhutto’s premiership despite her desire. Having taken over the government for the second term, Mr Nawaz Sharif launched a fresh move to improve the existing anti-terrorism laws, which culminated into promulgation of Anti- terrorism Act 1997, on 16th day of August 1997, with intent to take significant measures to prevent sectarian violence and ensure speedy trial of heinous crimes. Although the Act did not specify ethnicity or ethnic violence in its preamble or objects yet it included the same in the definition of terrorism given therein.224 It may be recapitulated that Anti-terrorism Act

223 In addition to the laws being discussed here, there are others enactments as well which may be invoked to control the menace of terrorism. For example:-Federal Investigation Agency Act 1974, NWFP Suppression of Crimes Ordinance 1978; Exist from Pakistan (Control) Ordinance 1981;Punjab Youthful Offenders Ordinance 1983; Control of Narcotics Substances Act 1997; Anti-money Laundering Ordinance 2007; Prevention of Electronic Crimes Ordinance 2008; Exist from Pakistan (Control) Rules 2010. However, discussing these laws, which are not exclusively anti-terrorism, would be beyond the scope of the study. 224Zia-ul-Islam, Criminal Minor Acts, (Lahore: Lahore Law Times Publications, 1998), pp. 1221-1234. Anti- terrorism Act 1997, Preamble and Sections 1, 2(e) and 6(1) (c). The Act was also extended to PATA of NWFP (now Khyber Pakhtunkhwa) vide Home and Tribal Affairs Department Notification No. 1/75-SOS-II (HD/2002) of 5 December 2002, available at Ishfaq Ali, Commentaries on Anti-terrorism Act 1997 (Lahore: 186

1997 has undergone series of amendments and transitions before and after the incident of 9/11.It has been amended after the Supreme Court struck down many of its provisions in “Mehram Ali case”225 and its decision against the trials of civilians by the military courts 226 before Mr Nawaz Sharif was ousted in November 1999. President General Pervez Musharraf had also frequently amended the Act before and especially in the aftermath of 9/11.227 Similarly, though the Act contains certain provisions of a substantive law (creating or describing new offences and prescribing enhanced sentences) yet it is primarily a procedural law; hence may have retrospective effect. This view had been taken by the Supreme Court in Mumtaz Ali case.228

The Act defined ‘terrorism’ to include, inter alia, acts or threats designed to coerce, intimidate or overawe the government, general public or a section thereof or any community or sect or a foreign government or population or an international organization, create fear or insecurity in the society, or any such threat, act or action intended to advance the cause of any religious, sectarian or ethnic group or intimidate and terrorize the public or social sector, media persons, business community or attacking civilians, government officials, public servants, security forces or LEAs (including looting and arson of property or installations). The section further explained that actions causing death, grievous violence, bodily injury or harm to any person or grievous damage to property or any action likely to cause death or endanger human life shall fall within the pale of terrorism or terrorist acts. Similarly, the offences relating to kidnapping for ransom, hostage taking or hijacking, use of explosives or bomb blasts, enticing hatred or contempt on religious, sectarian or ethnic basis to agitate violence or internal disturbance, firing on places of worship or religious congregations, forceful taking over of mosques / places of worship, disturbing trade, business or disturb civil life, burning of vehicles or other serious arsons, bhatta collection, violence against members of police, Armed Forces, Civil Armed Forces or public servants were also included in the territory of terrorism; while any person committing or concerned with any of the above acts

Imran Law Book House, 2014), p.108; and Northern Areas vide Northern Areas Anti-terrorism Order 2000 (PLD 2001 Central Statutes 61). 225PLD 1999 SC 504. 226Liaquat Hussain v Federation of Pakistan case (PLD 1999 SC 504). 227Such amendments were introduced in 1998, 1999, 2001, 2002, 2013 and 2014. The same are available in Federal Statutes of the PLD. 228Mumtaz Ali Khan Rajban v Federation [PLD 2001 SC 169 (174)]. 187

or actions could be described as a terrorist.229 Any person committing an act of terrorism, if convicted, is punishable with death in case death has been caused or the offence relates to hijacking and, in other cases, with imprisonment of varying terms and upto life imprisonment.230

The Act also created an offence of “civil commotion” i.e. to create internal disturbance in violation of law, illegal strikes, go-slows, lock outs, vehicles snatching or lifting, destruction of public or private property, firing to create panic, bhatta collection and illegal qabza),and prescribed punishment of rigorous imprisonment for the same, which may extend to seven year. The said offence was subsequently repealed and re-defined to include “any call for action or shut down, imposed through the use of threats or force resulting in damage or destruction of property or injury to any person, to intimidate citizens and prevent them from carrying out their lawful trade or business activity”, with a punishment of imprisonment between 5 to 10 years.231

The Act also prohibited acts intended or likely to stir up sectarian hatred and prescribed for them a sentence of imprisonment which may extend to 5 years with fine and forfeiture of any material or recording (including any storage device or form of data, FM

229Ibid, Section 6 which initially was simple and described terrorist acts. However, on 15 August 2001, the same were replaced with ‘terrorism’ and more acts were included and described as constituting ‘terrorism’ which used to be improved after each amendment, included in 1998, 1999 and 2000, 2002, 2013 and 2014). Section 6 was also amended to included sub-section (d) relating to illegal bhatta vide Anti-terrorism (Amendment) Ordinance 2000 (PLD 2001 Central Statute I). Also notification to declare different weapons as the fire arms under Section 6(a) was issued on 19 October 2000 and is available at PLD 2001 Central Statutes 407. Subsequently, the section was amended to further include a foreign government or population or an international organization and intimidating media etc vide Anti-terrorism (Amendment) Acts (XIII and XX of 19 & 26 March) 2013. 230Ibid, Section 7. Offence of hijacking, which is an offence under Section 402a and 402B of the PPC, was described as the offence of terrorism and made punishable under the ATA with death or life imprisonment after the hijacking case against Mr Nawaz Sharif, when Section 6 and 7 ibid were substituted by Ordinance (XXXIX of 14 August) 2001 (PLD 2002 Central Statutes 107). Later the sentence for hijacking, kidnapping for ransom was modified with 10 years or more and forfeiture of property vide Anti-terrorism (2nd Amendment) Act 2013). Third Schedule was also added to include abetment or attempt of any of the above described offences punishable under this Act. Initially there was only one Schedule containing offences under PPC Sections 302, 295-A, 298-A, 364, 364-A, 365, 365-A, 392 to 402 and associated with terrorism, Zina etc. 231(Ibid, Section 7A and 7B were added to create and prescribe punishment for civil commotion vide Anti- terrorism (Amendment) Ordinance (IV of) 1999 but deleted through Anti-terrorism (Amendment) Ordinance XXIX of 2000. Subsequently, the offence was redefined by adding Section 11X and sentence enhanced through Anti-terrorism (Amendment) Act (II of 11 January) 2005. 188

Radio Station etc) connected with the case. Similarly, officials of the police, Armed Forces or Civil Armed Forces were permitted to enter any premises to search any hate material.232

In order to achieve the desired objectives, on 14th day of August 2001, President Musharraf further amended the Act by adding Sections 11A to 11X.233 The amendment brought substantial improvements in the Act whereby the federal government was empowered to proscribe any organization concerned in terrorism in any manner, either with the same or a different name, by listing the same in the First Schedule. However, such organization may file a review application to the federal government within a period of thirty days of its proscription with a right of appeal before the High Court. The federal government may also place any organization, likely to be concerned in terrorism, under observation for six months which may be extended, by placing its name in the Second Schedule. The federal government may seal the office, freeze accounts, seize literature, publications etc of any proscribed organization, include names of their office bearers in the Fourth Schedule, require them to furnish surety or execute bond for good behavior before the District Police Officer, failing which he may be detained and produced within 24 hours before a court for appropriate order, require them to seek permission before leaving the specified area and report back after arrival to the Officer Incharge of the Police Station concerned, restrict or prohibit their entry to any educational institution or public place and check their personal or family assets. Any person who violates the said instructions or terms of his surety bond may be punished with imprisonment upto 3 years or fine or both. The government may also arrest and detain any such person from time to time but with a maximum period of twelve months, while his detention would be governed under Article 10 of the Constitution. 234 The Act also prohibited membership, support and meetings relating to any proscribed organization, wearing, carrying or displaying any uniform or insignias e tc of any such organization and fund raising, using or possessing money for terrorism, making funding arrangements and money laundering. The Act obliged all persons to share and disclose to police information

232Ibid Section 8-11, Anti-terrorism (2nd Amendment) Act 2013. 233Ibid, Anti-terrorism Amendment Ordinance (XXXIX of 14 August) 2001. 234Ibid; The provisions regarding security for good behaviuor and powers of arrest and detention of suspected persons were added through Section 11EE, and 11EEE which were added on 15 November 2002 through Anti- terrorism (Amendment) Ordinance (CXXV of 15 November) 2002 (PLD 2003 [Supp (Part I)] Federal Statutes 1014). Also available at Ishfaq Ali op. cit., pp. 569-572. See also Section 11B modified by Anti-terrorism (2nd Amendment) Act 2013. 189

regarding any terrorism related activity and cooperate with the police in this regard, failing which they may be punished with imprisonment between 5 to 10 years.235

In order to further augment goals of the Act, Sections 21A to 21M were also added 236 whereby any police officer of the minimum rank of Deputy Superintendent of Police (DSP) or a member of the JIT was authorized to order for cordon of any area for terrorist investigations for 14 to 28 days. The Act prohibited training in terrorism including use of fire-arms, explosives, chemical or biological weapons, by any person to any person including children; prohibited bails in terrorism cases except by the Anti-terrorism Court, High Court or the Supreme Court; allowed remand of accused to police or any investigation agency for a period of 14 days which may be extended to 30 days; prohibited any remission in sentence of convicts of any offence under the Anti-terrorism Act 1997; provided for exclusive jurisdiction of Anti-terrorism Court to try offence under the Anti-terrorism Act 1997, permitted conditional admissibility of confessions, in the discretion of court, made before an officer of the minimum rank of DSP during the course of investigation, by the accused without duress provided the police official renders a certificate on the lines rendered by a magistrate while recording confession udder CrPC Section 164; penalized aiding / abetting of offences and harbouring terrorists; and provided for punishment of absconder and joint trial. The Act also authorized the government to carry out the sentences in the manner and at the place best suited to create deterrent effects.237

Being cognizant of the threats and security of the judicial and other persons connected with the trials, the Act also authorized the federal government to order and the provincial government to secure, by requesting the federal government, presence of the Armed Forces or the Civil Armed Forces or posting of its units or personnel in any area and use them to prevent, control and punish terrorism, terrorist acts or offences given in the third schedule annexed to Act. They may, after giving requisite warning, also use force to achieve the set objectives, order fire or fire on the suspected terrorists, arrest them without warrant, enter in any premises for search, arrest or recovery of suspects or fire-arms etc. They were

235Ibid, Section 11F-11N as amended/modified by Anti-terrorism (Amendment) Act (XXXIX of 14 August) 2001. 236Anti-terrorism (Amendment) Ordinance (XXXIX of 14 August) 2001 (PLD 2002 Central Statutes 107). 237Ibid, Section 22. Confession before police officer was added from the very onset in Section 26 ibid but continued to be improved with certain conditions and rank of the police officials. 190

also given benefit of Section 132 of the CrPC which gives protection against prosecution for anything done in good faith by members of the Armed Forces when so requisitioned. 238 However, these powers and exception are not absolute but subject to check and balance. Notwithstanding this protection, it has been observed that the Supreme Court while taking suo moto notice after seeing a live incident on news channels ordered trial of Rangers personnel who had shot a person after apprehension while carrying a weapon and begging for mercy. The accused were tried and convicted but subsequently granted pardon by the bereaved family.

The ATC shall consist of a person who is or who has been a judge of a High Court, a Session or an Additional Session Judge, or a Judicial Magistrate of 1st Class or an advocate having at least 10 years practice at a High Court, who shall be appointed in consultation with 1 the Chief Justice of the concerned High Court for a period of 2 /2 years which period may be extended at the discretion of the government, who may also removed him before completion of his term in consultation with the Chief Justice.239 It may be recapped that in the wake of 9/11, President Musharraf, on 31 January 2002, ventured to change composition of the Anti- terrorism Court to three, by including an officer of the Pakistan Army with minimum rank of Lieutenant Colonel and a judicial Magistrate as members of the court along with the presiding officer. The court with this composition was to function till 30 November 2002 unless the federal government extended the period.240 However, this attempt failed without setting up any court with such composition or trial of any accused thereunder, whereafter the existing composition was approved.241 Anti-terrorism court may sit at any place specified by the government including the place of occurrence or a mosque and even in cantonment areas or jail premises.242

238Anti-terrorism Act 1997, Section 4 and 5. These provisions were included in the Act from the beginning and are still intact. 239Ibid, Section 14, which was also amended/substituted to the instant effect through the said amendments. 240Section 14 was amended through Anti-terrorism (Amendment) Ordinance (VI of 31 January) 2002 (PLD 2002 Federal Statutes 202) to achieve the set objective. 241This was done through Anti-terrorism (2nd Amendment) Ordinance (CXXXIV of23 November) 2002 (PLD 2003 [Supp (Part I)] Federal Statutes 1070). 242Ibid. The provisions for cantonment areas and jail premises were added by amending Section 15 through the ibid Anti-terrorism (Amendment) Ordinance 2002. 191

As regards competence of the ATC to try a juvenile after enactment of the Juvenile Justice System Ordinance 2000, diverging views have been observed. It has been held that the Anti-terrorism Court is competent to try all accused except a child who was of less than 18 years age at the time of commission of the offence who is to be tried by a court established under the Juvenile Justice System Ordinance 2000243 and given the requisite protection of separate trial in the presence of parents and exclusion of general public and to be assisted by a counsel and benefit of no death sentence in case of conviction. 244 However, Justice Asif Saeed Khosa of the Lahore High had ruled that ATC has overriding effect over all laws including the 2000 Ordinance; hence may try even a juvenile accused of terrorism, in view of the provisions of Sections 2(d), 21-C (5), 21-C (7)(e) & (f) and 21-F and the fact that judge of the ATC is more qualified than judge of the Juvenile Court.245 However, in order to resolve the issue for good, the federal government designated all the ATC to exercise powers of the Juvenile Courts in their respective area of jurisdiction.246 On the other hand, despite exclusive jurisdiction of the ATC to try terrorism-related offences, courts of Zila Qazi or Izafi Zila Qazi established under the Sharia’h Nizam-e-Adl Regulation 2009 were declared to be ATCs and could try terrorism cases if so assigned to them by the Administrative Judge.247

The ATC is to be assisted by a proficient diligent and professionally competent public prosecutor or law officer or a special prosecutor. The offences are to be investigated by a Joint Investigation Team (JIT) consisting of a police officer of the minimum rank of an inspector and an officer of any other investigating or intelligence agency or such authority or agency specifically entrusted a case by the federal government. The JIT was invested with the powers of an SHO and required to complete the investigation within a period of thirty days of the recording of the FIR; and submit an interim report to the court within next three days. Any default or laxity in the investigation by any person connected with the

243PLD 2000 Central Statutes 385. 244Ghulam Mustafa Shah v State (PLD 2003 Pesh 138) and another case reported at 2005 MLD 1028. 245Muhammad Din v Muhammad Jahangir (PLD 2004 Lahore 779). 246Exercise of Powers of Juvenile Courts by Anti-terrorism Court, S.R.O 572(1) of 2012, Gazette of Pakistan, Extra-ordinary, Part II of 30 May 2012, Ishfaq Ali, Commentaries on Anti-terrorism Act 1997, p. 805. 247Proviso to Section 21-G added by Anti-terrorism (2nd Amendment) Act 2013. 192

investigation or delay in timely submission of the challan/report shall be deemed as contempt of court and punished accordingly.248

The ATC is required to decide the case within seven days, not to give more than two consecutive adjournments during the trial and appoint a state counsel with seven days preparation, if the defence counsel does not appear on two consecutive hearings. In case the ATC judge does not comply with the said provisions, an application may be submitted to the administrative judges who may order expeditious disposal of the case or a disciplinary action may be initiated against him by the High Court. It may also try any accused in absentia after publication of the requisite proclamation in three dailies and appointment of a counsel at state expense.249

The Act also provided protection to judges, counsels, public prosecutors, witnesses and persons concerned with court proceedings; and for this purpose, the court may held the proceedings in camera, prohibit publication of names of the said persons and give protection to the witness and his family, identifying the accused. The government may also take necessary steps and extend necessary protection; while the Armed Forces shall also be bound to provide comprehensive protection and security to the said persons/officials.250

The Act provided for appeal before the High Court against the decision of the ATC within a period of 7 days of the decision in case of the convict and 15 days in case the government so intends, direction to provide the convict and the public prosecutor a gratis copy of the judgment and transfer the trial proceedings to the High Court within three days. Any complainant or victim of the offence or his family may also file an appeal against the acquittal or sentence with a period of thirty days. The appeal shall be heard and decided within seven working days by not less than a Division Branch who shall not grant more than

248Ibid, Sections 18 and 19 which have been substantially improved to the existing statutes vide Anti-terrorism (Amendment) Ordinance (VI of 31 January) 2002 (PLD 2002Central Statutes 202) and Anti-terrorism (2nd Amendment) Act 2013 (PLD 2013 (Supp) Federal Statutes 468). 249Ibid, Section 19. The provisions regarding absentia trial and proclamation were substituted vide Anti- terrorism (Amendment) Ordinance (IX of) 1998. Similarly, the provisions regarding application to the administrative judge for expeditious disposal of case has been done away by amending/inserting Sections 8, 8a and 8b by Act II of 2005 (PLD 2005 Federal Statues 82). 250Ibid. Section 21 has been substituted as it is through Anti-terrorism (Amendment) Ordinance (XXXIX of 14 August) 2001 (PLD 2002 Central Statutes 107).This was reinforced in the following Ordinance of 31 January 2002. 193

two consecutive adjournments. Decision of the appellate court shall be final and not subjected to further scrutiny or appeal; while the accused shall not be entitled to bail pending appeal.251 The Act also provided that ATC or a High Court may punish an investigation officer, with imprisonment upto 2 years or fine or both, if he is found guilty of defective investigation.252 ATC is also empowered to punish any person committing its contempt with imprisonment which may extend to six months or fine.253

The Act had taken care of the principle of retrospective punishment.254 The Act also indemnified all acts done in good faith and repealed the Pakistan Armed Forces (Acting in Aid of Civil Power) Ordinance 1998 and the Suppression of Terrorist Activities (Special Courts) Act 1975.255

4.3.1.1 Legislation Introduced after 9/11 Tragedy and in the Wake of WOT

In the wake of the momentum escalating against the war on terror and launch of operation Zarb-e-Azb, the Anti-terrorism Act 1997 was further re-enforced through the Anti-terrorism (Amendment) Ordinances,256 which were later approved by the Parliament as the Anti-terrorism (Amendment) Act (VI of 15 June) 2014 and Anti-terrorism (2nd Amendment) Act (VII of 20 June) 2014).257 Through the said amendments, it was intended not only to make up the deficiencies in the existing law, give pre-dominant role to JITs, intelligence or other investigation agencies including FIA, in the investigation process, tighten the noose against the terrorists and control the menace of terrorism but also to pacify different stakeholders and meet international obligations in the fight against terrorism. Accordingly, scope of the terms terrorism, terrorist act, terrorist property, terrorist

251Ibid, Section 25 and 31. The provisions regarding right of appeal to the victim or his legal heirs and hearing of appeal before a Division Bench and consecutive adjournments were added by adding sub-clauses (4-A), (4- B), (9) and (10) to Section 25 vide Anti-terrorism (Amendment) Act X of 30 November 2004 and Anti- terrorism (Second Amendment) Act (X of 11 January) 2005. 252Ibid, Section 27. This is substantive provision which was included in the initial Act and is still intact. 253Ibid, Section 37. It was so modified vide Anti-terrorism (Amendment) Ordinance (IX of) 1998 (PLD 1999 Central Statutes 143). 254Ibid, Section 38. 255Ibid, Section 39, 39-A and 39B, which were added through the Anti-terrorism (Amendment) Ordinance (IV of) 1999 (PLD 1999 Central Statutes 289) and (XXXIX of) 2001 (PLD 2002 Federal Statutes 107. 256Ordinance VII and VIII of (10 and 12 October) 2013 (PLD 2014 [Supp-Part II] Federal Statutes 172 and PLD 2014 Federal Statutes 37 respectively). 257PLD 2014 Federal Statutes 134 and PLD 2014 [Supp-Part II] Federal Statutes 203. 194

investigation, role of the intelligence agencies in investigation was stretched, more specifically:-258 a. Resources of any terrorist or organization concerned in terrorism were included in ‘terrorist property’.259

b. Any action to intimidate or terrorize any public or social sector, media personsand business community or law enforcement agencies including damage, looting or arson of property or installations was described as ‘terrorism’.260

c. An individual concerned in facilitating and funding of acts of terrorism was also categorized as ‘terrorist’ even if the offence of terrorism was committed before commencement of the Act.261

d. Actions such as possession or having concerned with any explosive substance without lawful authority, taking the law in own hand, awarding punishment by any organization, group or individual not authorized by law of the land to do so and armed resistance against Law Enforcement Agencies were also termed as actions constituting ‘terrorism’.262

e. Any organization controlled by any terrorist or a terrorist organization or acting on his/its direction or behalf shall be considered as concerned in terrorism.263

f. The federal government may designate any officer or direct, on the request of a foreign government or otherwise, to freeze or detain any property suspected to be concerned with terrorism or belonged to a terrorist or terrorist

258Anti-terrorism (2nd Amendment) Act (XX of) 2013. 259Section 2, as amended ibid. 260Section 6, as amended ibid. 261Section 6, as modified ibid. 262Ibid. 263Ibid. 195

organization for a period of 15 days. Refusal to effect freeze or seizure shall be punishable with fine upto five million or imprisonment upto 5 years.264

g. Any action in violation of the international conventions as specified in Fifth Schedule to Section 6(3A), including conventions relating to prevention and punishment of crimes against diplomats and internationally protected persons and suppression of terrorist bombings, shall also be categorized as ‘terrorism’.265

h. No office bears, activist, member or associate of any proscribed organization, if found engaged in the activities of the said organization shall be issued passport or extended any loan or financial assistance by any bank or financial institution or issued arm license and if issued previously shall be deemed to have been cancelled.266

i. The federal government may order detention for a period of thirty days of any person suspected or involved in any offence relating to national security or sectarianism for the purposes of inquiry by at least a Superintendent of Police (SP) or a Joint Interrogation Team (JIT) or an inquiry officer or officer of an other agency with powers under Section 5 of the Federal Investigation Agency (FIA) Act 1874. The detention period may be extended to ninety days by the ATC or District & Session Judge or the Magistrate appointed under the Sharia’h Nizam-e-Adl Regulation 2009, who shall not extend such detention beyond thirty days at one time. The investigating officer or JIT shall have the police powers of search, arrest, seizure of property and may prohibit disposal of property connected with the inquiry. The accused shall be produced before the presiding officer of the court in camera but placed in the detention centre, which may be visited by the judge of the court.267

264Section 110, as amended vide Anti-terrorism (Amendment) Act (XIII of) 2013. 265Fifth Schedule as modified ibid. 266Section 11E as amended vide Anti-terrorism (2nd Amendment) Act 2013. 267Section 11EEEE and 11EEEEE as added ibid. 196

j. The SP or an officer of the equivalent rank of the security forces when acting in aid of civil power on the request of the JIT may call for any information, document or record including of accounts, bills, calls, CNIC etc. connected with the investigation from any person including banks, financial institutions or other departments; and such officer shall not be refused access.268

k. A court of Zila Qazi or Izafi Zila Qazi constituted under Sharia’h Nizam-e-Adl Regulation 2009 were also categorized as ATC and may try cases assigned to them by the Administrative Judge of the ATC.269

l. It shall be on the person having possession of any explosive substance to justify its possession in accordance with law; otherwise it shall be presumed that he was possessing the substance to commit terrorism.270

Despite the said Amendments, the desired dividend could not be achieved and the government had to resort to further legislation, in terms of Anti-terrorism (Amendment) Act 2014 and Anti-terrorism (2nd Amendment) Act 2014. Upshot of both the enactments is as under:-

a. An officer of BPS-17 or equivalent grade of the Law Enforcement Agencies, Civil Armed Forces and Armed Forces personnel may order opening of fire, when requisitioned by the government, as a last resort when there is reasonable apprehension of death or grievous hurt to be caused by the accused. In case any death or grievous hurt is caused as a result of the fire by the member, the same shall be subject to review by internal inquiry committee constituted by the concerned Law Enforcement Agency.271

b. The government or the Armed Forces or civil Armed Forces when called under Section 4 of the Act may issue order for preventive detention, upto a period of three months, for the purposes of inquiry of any person concerned in

268Section 21EE inserted ibid. 269Proviso to Section 21E added ibid. 270Section 27A ibid. 271Ibid Anti-terrorism (Amendment) Act (VI of 15 June) 2014. The objective was achieved by amending Section 5 (2) and appending provisos thereunder. 197

any offence relating to the security or defence of Pakistan or any part thereof, public order, maintenance of supplies or services, kidnaping for ransom, target killing etc.However, this arrangement has been made for a period of two years i.e. upto 14 June 2016.272

c. Every inquiry or investigation shall be conducted by an officer or police officer of the rank of inspector or equivalent; while the JIT shall consist of five members with a police officer of the minimum rank of SP (BPS-18) as the president and officers of the similar rank from Armed Forces, Civil Armed Forces or intelligence agencies as the members. The investigation is to be concluded within thirty working days and the challan under CrPC Section 173 duly signed submitted before the court. In case the investigation remained inconclusive or incomplete, within a period of three days of expiry of thirty days, the investigating officer shall submit an interim report and the court shall decide to proceed with the trial or otherwise.273

d. Where the Armed Forces apprehend an accused while preventing acts of terrorism and acting under Section 5 of the Act, they shall handover the accused to the designated investigating officer of the police.274

e. The court shall decide the case within seven days, failing which the matter shall be reported to the Chief Justice for appropriate direction.275

f. The court is also empowered to impose exemplary fine on the defence counsel if he does not appear for two consecutive hearings and replace him by appointing a counsel on state expense.276

g. The prosecutor is obliged to deeply scrutinize the case file and ensure that pre- trial formalities have been fulfilled to ensure trial on day to day basis.277

272Sub-section (1) and (2) of Section 11EEEE substituted ibid for a period of two years wef 15 June 2014, the date of promulgation of the Act. 273Section 19(1) substituted ibid. 274Section 19(1A) added ibid. 275Section 19(7) substituted ibid. Similar provisions existed after the 1999 and 2001 amendments. 276Section 19(8) amended ibid. 198

h. In order to ensure protection of judges, witnesses, prosecutors etc and without prejudice to the provisions of Qanun-e-Shahadat 1984 or any other law, the court may take measures such as use of screens to shield judges, witnesses and prosecutors from ‘public view’ and may conduct the trial in jail or through video link; while the provincial government shall ensure that the prisoners in jails are denied access to cell phones.278

i. The officer conducting successful investigation shall be rewarded through an ‘incentive systems’ by the provincial government; and those dishonestly and falsely implicating, involving or arresting any (innocent) person may subject to approval of the government, be tried and awarded with imprisonment which may extend to two years or fine.279

j. The court, if convinced of the genuineness of the evidence, may convict any accused on the basis evidence available because of modern devices or techniques in terms of Article 164 of the Qanun-e-Shahadat 1984.280

k. The government may, in the interest of justice and to ensure protection of judges, witnesses, prosecutors etc request the Chief Justice of the concerned High Court to transfer a case or investigation to another place or court in Pakistan.281

l. The federal government may proscribe any organization or a person on ‘ex parte’ basis listing or including its/his name in the First and Fourth Schedule respectively, if concerned in terrorism. Such an organization or person may file within thirty days a review application to the federal government, who shall decide it within ninety days. If his review application is refused, it/he may within thirty days file an appeal before the High Court.282

277Section 19 B inserted ibid. 278Section 21(2) and (4) amended/inserted ibid. 279Section 27(2) and 27 A inserted ibid. 280Section 27 B inserted above. 281Section 28(1 A) and 28(3)-(5) were inserted ibid. 282Section 11 B, 11 C, 11 CC, 11 D, 11 E and 11EE modified, inserted or substituted by Anti-terrorism (2nd Amendment) Act 2014. 199

m. Any person knowingly or willfully makes money or property or provides any service to the benefit of any proscribed person or organization shall commit an offence under the Act.283

n. The money or property owned, controlled or derived or generated by any proscribed person or organization shall be frozen or seized. However, if satisfied on application or proof by the affected person or organization, the government may defreeze the money or property.284

o. ATC may order attachment of any terrorist property pending investigation or forfeiture of such property on conviction or after having given audience to a person claiming to be the owner or interested in such property.285

p. The federal government may de-proscribe any person or organization at any time or after three years of proscription or refusal of a review application if satisfied that the grounds for proscription no more exist; and on de- proscription, the frozen or seized money or property shall also be released.286

4.3.2 Shari Nizam-e-Adl Ordinance 1999 and Sharia’h Nizam-e-Adl Regulation 2009

There had been increasing demands for enforcement of shariah laws in the PATA of NWFP (now Khyber Pakhtunkhwa) especially Kohistan District.287 Accordingly, the Governor promulgated Shari-Nizam-e-Adl Ordinance 1999,288 whereby the courts in the Kohistan Division were required to perform their duties and decide the cases according to the injunctions of Islam as laid down in the Holy Qur’aan and -e-Nabavi (Sallallaho alaihe Wassallam). The District and Sessions Judge and Additional District and Sessions Judges, Senior Civil Judge and Civil/Judicial Magistrate were re-designated as Zila Qazi,

283Section 11 J – modified ibid. 284Section 11 O and 11 OO substituted/inserted ibid. 285Sections 11 P and 11 R substituted ibid. 286Section 11 U substituted ibid. 287Pata includes all the six districts of Malakand Division (Swat, Shangla, Upper Dir, Lower Dir, Malakand and Chirtal), Indus Kohistan of Kohistan district, Allai of Battagram district and Tor Gar district including the former state of Amb. In order to know quick geographical, legal and annexation issues of PATA, see also A. Rauf Khan Khattak, “Merger with Pata”, DAWAN Islamabad, October 29, 2015, p. 9. 288(Ordinance 1 of 16 January 1999; PLD 1999 N.W.F.P Statutes 20. Pata falls under the administrative control of the Chief Minister of Khyber Pakhtunkhwa in term of Articles 246(b)(i) and 247(1)(2)(3)(4) of the Constitution. 200

Izafi Zila Qazi, Aa’la Illaqa Qazi and Ilaqa Qazi; and were to be assisted by Muavin-e-Qazis out of the list of A’alim Wakeels, to be nominated by a committee consisting of Chief Justice, a judge of the Federal Shariat Court and four other members. The ordinance provided for resolution of disputes through arbitration by referring a case to a musleh, appointed by the Qazi court in concurrence of the parties, and assisted by Muavin-e-Qazi. However, cases under hudood laws and against the government were kept out of the purview of musleh. The ordinance also provided for appointment of District, Additional and Sub-Divisional Magistrates who were required to establish peace and prevent crimes as a collective responsibility. The governor NWFP also issued Shari-Nizam-e-Adl Regulation 1999289 to establish sharia’h through the courts in the PATA of Malakand Division and tribal areas of Kohistan District of NWFP. The courts were to act and be assisted in the manner prescribed in the Shari-Nizam-e-Adl Ordinance 1999. The 1999 Ordinance and the Regulation made thereunder did not keep the pace to maintain ‘peace and good governance’ in the designated areas of operation; hence were not re-enacted after the lapse.

Islamization in Afghanistan during Taliban era was considered a model by overwhelming people in the PATA of NWFP Province who wanted administration of justice through Sharia’h as an alternative for restoring peace in the areas affected by remnants or sympathizers of Taliban and Al-Qaeda groups. President Musharraf as a last ditch effort to bring peace in PATA of NWFP concurred to establish Qazi courts and Dar-ul-Qaza as desired by the people of the area.Accordingly, on the demand of the people for enforcement of Sharia’h and resolution of disputes in accordance with the Islamic injunctions, the Governor promulgated Sharia’h Nizam-e-Adl Regulation 2009 for Nifaz-e-Nizam-e-Shariah through courts in PATA of KP Province. However, the tribal areas adjoining Mansehra District and former state of Amb were kept out of the reach of the 2009 Regulation. 290 The Regulation provided for establishment of Qazi courts consisting of judicial officers who had done ‘Sharia’ courses. The Qazi or Executive Magistrate was required to seek guidance from Qur’aan Majeed, Sunnah-e-Nabvi (Sallallaho alaihe Wassallam),Ijma and Qiyas for procedural conduct of proceedings and resolution of cases; and decide the same in

289PLD 1999 N.W.F.P Statutes 27. 290Regulation I of 16 April 2009, promulgated by the Governor with the approval of the President in terms of Article 247(4) of the Constitution is available at PLD [2009 -Supp - Part II] 2004-2009 Unreported NWFP Statute 169). 201

accordance with Sharia’h and with the assistance of Musleh. The Regulation also provided two tiers of appeals to the Dar-ul-Qaza and Dar-ul Dar-ul-Qaza; and extended the operation of 94 laws including Anti-terrorism Act 1997 in the said areas, with some amendments to achieve the objectives of the Regulations.291 The procedure for submission of challan by the police was generally the same but the investigating officer was to submit three copies of the case file. The Regulation fixed a period of six and four months for disposal of a civil suits and criminal cases respectively. In case of intentional delay in disposal of the cases, the Qazi or the Executive Magistrate was liable to displeasure and disciplinary action and even removal from the post. If the number of pending cases at a time exceeds 150 and 200 in the court of a Zila Qazi or a Aa’la Ilaqa Qazi respectively, the government shall be obliged to establish a new court to ensure disposal of cases within the given time.292

The mechanism though in operation satisfactorily but could not bring significant or distinctive improvement in the administration of justice and restoration of peace. Although the Qazi courts are required to seek guidance from the Holy Qur’aan and Sunnah in deciding the cases brought before them and they do seek the requisite guidance but practically Qazi courts are following the procedure and rules of evidence laid down in CrPC and Qanun-e- Shahadat 1984 as the same are also applicable in PATA. Similarly, the Police Act applies to PATA except the district of Malakand where policing duties are entrusted to Levies.293 Nevertheless the Qazi courts are functioning satisfactorily and in view of their efficacy, they have been entrusted to try terrorism offences and cases if assigned by the administrative judge.

4.3.3 Actions (in Aid of Civil Power) Regulations 2011

During 2008, radicalization, militancy and terrorism gained momentum in Khyber Pakhtunkhwa especially in the PATA and FATA; and so were the combat operations by the Armed Forces against the militants and terrorists. The government had to call the Armed

291Ibid, Paras 1-6. 292Ibid, Para 8-11. 293Levies had been operating in Malakand and Dir districts under the Frontier Irregular Corps (FIC) Rules, 1962, which have been replaced by Federal Levies Regulation 2012 and Rules made thereunder in 2013. Levies are funded by the Ministry of States and Frontier Regions and fall under the command of Deputy Commissioner. Their highest ranking district officer is of the rank of Subedar Major who is equal to the DSP in BPS-17. 202

Forces under Article 245 of the Constitution to act in aid of civil power; while in some of the affected areas the Armed Forces continued to perform their duty to eliminate terrorism, restore peace, establish writ of the government and regain control of the areas lost to the miscreants and anti-state elements, without explicit sanctions or requisitions. In order to achieve the targets, the Armed Forces launched different successful operations in the name of Rah-i-Rast, Rahi-i-Nijat and Al-Mizan in Swat, Malakand, Buner, Chitral and other parts of South Waziristan Agency. However, the unprecedented threat to the territorial integrity and sovereignty of the state continued, with voices raised against the military operations being conducted without the authority of the government, human rights violations and enforced disappearances. In order to address the said issues,the government had to seek refuge and protection of the law i.e. Actions (in Aid of Civil Power) Regulation 2011, in terms of Article 247(4) and (5) respectively and separately for PATA and FATA.294

The necessity and objects of the two Regulations, which are verbatim copy of each other except the territorial or jurisdiction variation, is evident from their preambles. There had been direct threat to the territorial integrity, solidarity and sovereignty of Pakistan posed by the violent non-state actors who had gone astray from the path of unity, faith, discipline and were playing in the hands of enemies of Pakistan from within and abroad. Simultaneously, there had been complaints against the Armed Forces for acting without the authority of law or in conflict with law, though such complaints were hardly specific but generalized accusations. However, the government sought to address the issue and pacify the complainants by promulgating the said Regulations, which were given retrospective effect from the 1st day of February 2008. In contrast to the Protection of Pakistan Act 2014 and Pakistan Army (Amendment) Act 2015, operation of Actions (in Aid of Civil Power) Regulations was limited to PATA and FATA but without any restriction of a sunset clause. 295 The Regulations obliged the federal government to requisition the Armed Forces to conduct operations in aid of civil power to combat miscreants, terrorists and natural calamities, maintain law and order, and conduct enforcement operations; and for this purpose to mobilize and station the Armed Forces in any specific or general areas of PATA and FATA.

294President Asif Ali Zardari promulgated Regulation F. No. 11(5) P/L/2011 for PATA and Regulation F. No.11(6) P/L/2011 for FATA, published in Gazette of Pakistan Extraordinary, 566 and 567 of 27 June 2011 at pages 241-257 and 259-275. The FATA Regulation is also available at PLD 2012 Federal Statutes 46. 295Ibid, Section 1. 203

The said requisition once made shall remain in force unless specifically withdrawn.296 The Regulations prescribed the rules of engagement for the Armed Forces Any violation or misuse of force by the military personnel shall be subject to investigation and punishment in terms of the Armed Forces laws.297 The Regulations authorized the military or civilian officials to enter into any premises for search and custody of any suspected miscreant or terrorist or arms and ammunitions likely to be used for terrorist activities or seize such weapons.298 The Regulations authorized the interning authority, to issue an internment order in respect of any person who obstructs operations of the Armed Forces or is likely to support or strengthen the miscreants. Any internee or his family may approach the interning authority, who may withdraw the internment order with or without any condition or surety/guarantee by the family, jirga or community, or direct handing over the internee to the LEAs for formal prosecution after conclusion of the action in aid of civil power.299 The internment order may last until withdrawn or till continuation of the requisition and shall not affect or condone criminal liability of the internee for the offences committed under the Regulations or any other law.300 The Regulations prohibited inhuman or degrading treatment or torture against the internees and obliged the Oversight Board, consisting of two military and civilian officials each, to take cognizance of any inhuman treatment or torture or violation of human rights standards or law relevant to the actions in aid of civil power and recommend departmental action against the defaulters.301

The Regulations also described acts challenging the authority or writ of the government, asserting to gain control of any territory of Pakistan, waging war against the state, threatening peace, safety and defence of Pakistan, violating fundamental rights, committing terrorism or sabotage, obstructing actions in aid of civil powers by the Armed Forces, threatening peace and tranquility of any area, joining any private army or armed group or insurrectional movement against Pakistan as the offences triable under Frontier Crimes Regulation (FCR) 1901, Anti-terrorism Act 1997, CrPC or any other applicable law, after the withdrawal of internment order, and punishable with death, life imprisonment or

296Ibid, Section 3. 297Ibid, Sections 4-5. 298Ibid, Sections 6-7. 299Ibid Sections 9-11. 300Ibid, Sections 12-13. 301Ibid, Sections 14-15. 204

imprisonment upto 10 years with fine and forfeiture of property, or as specified in the relevant law. Many other offences specified in the enactments tabulated in Schedule III, attacks on protected persons such as diplomats, using human shields, espionage, use of uniform or emblem of any bona-fide organization or obstruct implementation of UN Security Council Regulations under Chapter 7 of the UN Charter, supporting, financing and harbouring of such offenders was also brought within the ambit of the Action (in Aid of Civil Power) Regulations. Such accused persons may be investigated and prosecuted by any agency anywhere in the PATA, FATA or settled areas.302

The Regulations provided that the information collected, received or prepared by the interning authority or designated officials shall be admissible in evidence and sufficient to prove the relevant facts or facts in issue.303 The Regulations also provided for psychological and religious counseling of the internees, transfer of internees from one Centre to another even in the settled areas. The Regulations also indemnified any thing done in good faith by any person, provided over-riding effect to its provisions; and validated anything done in any manner from the 1st day of February 2008 until the promulgation of the Regulations.304

In order to give effect to the provisions of the Regulations, the Government of Khyber Pakhtunkhwa notified Khyber Pakhtunkhwa Internment Rules 2011; while the governor also prescribed Provincially Administered Tribal Areas Internment Procedure, 2011.305 The Internment Rules described duties of the officer incharge internment centre; provided for separate internment of the adult males, females and juveniles, scales of their diet etc and permissible articles as class ‘C’ prisoners in terms of Chapter 20 of the Prison Rules; procedure for release of internees, issues connected with death or escape or transfer of internees, interviews and letters, internment centre discipline and punishments for proved offences, prohibited articles, prohibition of torture, attendance in court, wearing of fetters and record/register to be maintained. The PATA Internment Procedure 2011 also emphasized on

302Ibid, Sections 16-18. 303Ibid Section 19. 304Ibid Sections 20-26. 305Both the rules and procedure were prescribed on the authority of Sections 22 and 9(7) of the Actions (in Aid of Civil Power) Regulations 2011, vide two different Notifications with same No. SO (FATA) HD/I- 60/CPR/2011 and date i.e. 8 September 2011. 205

well being of the internees, provision of food, medical care, performance of religious obligations, visitation and property or financial management.

4.3.4 Investigation for Fair Trial Act 2013

It was 20th day of February 2013 when the President assented Investigation for Fair Trial Act 2013.306 The intent and object of the Act was to authorize collection of evidence by means of modern techniques and devices so as to prevent and deal with terrorist activities under the Private Military Organizations (Abolition and Prohibition) Act 1974 and Pakistan Nuclear Regulatory Authority Ordinance 2001 and offences under the Prevention of Anti- National Activities Act 1974, Anti-terrorism Act 1997 and National Command Authority Act 2010 (to the extent of Anti-terrorism Act 1997 only). The Act also intended to prevent arbitrary exercise of powers by the intelligence and law enforcement agencies and bring their conduct subject to law and superintendence of the executive and judicial authorities. The Act permitted covert surveillance, human intelligence, property interference, wire taping, communication interception etc so as to neutralize or prevent commission of terrorism or terrorist activities.307 The Act was made applicable to all persons, whether residing in or out of Pakistan and transactions initiated or concluded within or outside Pakistan.308 Accordingly, any authorized officer not below BPS-20 of the applicant i.e. Director General ISI, the three Services Intelligence Agencies, IB and Police may apply through the Minister of Interior to the concerned High Court for a warrant of surveillance or interception. Unless the Minister is satisfied and permitted in writing, the application may not be processed in chamber to the judge who, subject to his satisfaction, may issue the appropriate warrant for 60 days, which may be re-issued for another period of sixty days at a time.In case of misuse of warrant, the judge may recommend departmental action against the authorized officer. 309 The service providers shall also be obliged to extend cooperation and ensure confidentiality or execution of the warrant.310 Any person who breaches confidentiality or does not ensure secrecy of the warrant or process of surveillance or interception shall be liable to punishment

306PLD 2013 (Sup) Federal Statutes 45. 307Investigation for Fair Trial Act 2013, Preamble and Section 16. National Command Authority Act 2010 is available at PLD 2010 Federal Statue 542. Earlier it was introduced as National Command Authority Ordinance 2007 and is available at PLD [Vol LXI 2009 -Supp (Part-I)] 2004-2009 Federal Statutes 138. 308Ibid, Sections 1-2. 309Ibid, Sections 2-15. 310Ibid, Sections 17-21, 31-32. 206

which may extent to five years or fine upto ten million rupees or both.311 Any person aggrieved of the misuse of the warrant may file a complaint to the judge, who may order the concerned applicant (ISI, IB, Police etc) to transfer the investigation to another investigating officer and initiate departmental proceedings against the concerned investigation officer.312 The Act also established a Review Committee consisting of Ministers of Defence, Interior and Law to oversee reports on the warrants and administrative issues on six monthly basis and issue appropriate instructions to the concerned applicants or intelligence agencies for remedial measures.313 The Act ordained that any person carrying out unauthorized surveillance or interception shall be liable to imprisonment upto three years and fine.314

4.3.5 Protection of Pakistan Ordinance 2013 and Protection of Pakistan Act 2014

Despite having brought substantial improvements in the Anti-terrorism Act 1997 and launch of the military campaign against the anti-state elements and terrorists, threat to the security and integrity of the nation persists and at times aggravated as a back lash in the background of the military campaign and targeted operations against the terrorists. The government was confronted with the issue of legal disposal of the militants, non-state actors and the terrorists arrested during the search and cordon operations and languishing in the custody of the military, LEAs and the interment centres, as the competence, willingness and fear of the ATC judges and the deficiency in quality of requisite evidence remained a big hurdle in the trial of such cases under the Anti-terrorism Act 1997. The LEAs and the prosecutors had either to resort to disposal of such cases under the FCR or concoct the evidence, which ultimately led to their acquittal at the appellate stage. In order to combat this handicap, the government came up with a new legal instrument in the form of Protection of Pakistan Ordinance 2013.315

The Ordinance provided for protection against waging of war or insurrection against Pakistan and prevention of acts threatening the security of Pakistan as well as speedy disposal of the offences committed therewith. Resultantly, the offences of killing,

311Ibid, Section 26. 312Ibid, Sections 28-30. 313Ibid, Section 27. 314Ibid, Sections 33-35. 315PLD 2014 Federal Statutes 42. On 5 December 2013, the federal government, in terms of Section 20 of the Ordinance, also made and promulgated Protection of Pakistan Rules 2013 (PLD 2015 Federal Statutes 5). 207

kidnapping, extortion, assault or attack on members of the Parliament, judiciary, executive, employees of Pakistan including Armed Forces and LEAs, destruction of government property, use of bombs, suicide bombs, nuclear and biological weapons, crimes against ethnic and religious groups etc were brought within the purview of the Ordinance. The cases triable under the Ordinance were required to be investigated by a JIT and tried in the special courts.316 The Ordinance expired on the 8th day of February 2014, whereafter it was further extended for 120 days by a resolution of the National Assembly. In the meantime the Ordinance was challenged in the Supreme Court; however, on the 9th day of July 2014, the government succeeded in promulgating the same as the Protection of Pakistan Act 2014.317

The Act was extended to the whole of Pakistan for a period of two years until 8 July 2016.318 The Act defined, amongst others, an ‘enemy alien’ as a militant whose identity as a Pakistani is not ascertainable from the oral or documentary evidence; whereas a ‘militant’ was described as any person who wages war or insurrection against Pakistan, raises arms against Pakistan, its citizens or Armed Forces, Civil Armed Forces, takes up, advocates or encourages the said war or violent struggle against Pakistan or in any manner, threatens the security, integrity or defence or Pakistan or commits, abets or aids, conspires or attempts a scheduled offence in Pakistan or an act which is an offence under the law of another state, if the offence is committed outside Pakistan, using the soil of Pakistan.319 The Act gave an exhaustive definition of militant and included in the schedule almost all heinous and even ordinary offences affecting security of state, life and property as contained in various enactments including the PPC. Such offences and provisions in one or the other context already existed and were made punishable under other recent laws and the Anti-terrorism Act 1997. The Act also authorized use of bare minimum force as a last resort, so as to prevent any schedule offence’ or in the right of self defence; and in case any death or grievous hurt is caused as a result of the use of force, a departmental or internal inquiry will follow, which may be subject to further review by a judicial inquiry constituted by the federal

316Ibid, Preamble, Section 5 and Schedule annexed to the Ordinance. 317PLD 2014 [Sup (Part II)] Federal Statutes 177. 318On the expiry of two years, the government tried to fetch support of the political parties for its extension but it did not succeed. 319Ibid, Section 2 (d) and (f). 208

government.320 The Act provided that all investigations of offences committed and triable thereunder shall be conducted by a JIT.The government may order for preventive detention of any accused for a period of ninety days, if acting against the integrity, security or defence of Pakistan, any part thereof or external affairs of Pakistan, public order or maintenance of supplies and services. However, the restriction of ninety days shall not apply to an enemy alien. In addition, the Armed Forces or Civil Armed Forces, when called under Article 245 of the Constitution or Section 4 or 5 of the Anti-terrorism Act 1997 may detain any militant or enemy alien in designated internment camps, who may be handed over police or any other prosecuting agency for formal investigation and prosecution. All the said detentions shall be subject to Article 10 of the Constitution. Any person arrested or detained in respect of any offence which also constitutes an offence under the Act before its promulgation shall be deemed to have been legally arrested or detained.321 This is how the government managed to give legal protections to the arrests and detentions of persons kept in the internment centres.The Act also provided for establishment of ‘special courts’,in concurrence of the concerned Chief Justice, who may take cognizance of only those cases, in which the JIT report has been submitted before them.322

The Act also permitted that for security reasons, the investigation and trial of any accused may be conducted anywhere in Pakistan. The government, the JIT or the Armed Forces shall not be bound to share or disclose the location and particulars of the militant accused or enemy alien, detainee or internee or the detention/internment centres to anyone except the High Court and the Supreme Court who shall determine whether or not such information is privileged. The special court shall be competent to try the accused in camera, conduct joint trial and award him imprisonment upto twenty years unless the offence charged already contains a graver sentence. The convict may also be liable to fine, confiscation of property and deprivation of citizenship if acquired through naturalization. The sentence shall be appealable before the High court within a period of thirty days of the judgment, copy of which is to be provided to the parties the same day.323

320Ibid, Section 3. 321Ibid, Section 5-6). 322Ibid, Section 8. 323Ibid, Sections 10, 14, 16 and 19. 209

The Act further ordained for establishment of an independent prosecuting agency to be headed by a prosecutor general, security and protection of judges of the special courts, special judicial magistrates, investigators, prosecutors and witnesses; establishment of high security prison with court rooms anywhere in Pakistan.324 The Act attached special provisions for presumption of engagement in war or insurrection against Pakistan by a militant or an enemy alien. If charged on the basis of reasonable evidence with any scheduled offence, he is required to prove his innocence of the accusation of waging war. Similarly, any person found in possession of any weapon or instrument connected with the crime shall be presumed to have committed or abetted the alleged offence.325 The Act was given overriding effect and in case of conflict with any other law, it provisions were to prevail, except where specified otherwise by the federal government. The Act also authorized the federal government to make rules to achieve purposes of the Act, include or delete any offence from the schedule through a Gazette Notification. The Act finally validated all inquiries, proceedings, actions, sentences etc passed from 6 June 2014 i.e. between the date of expiry of Protection of Pakistan (Amendment) Ordinance 2014 and commencement of the instant Act; and condoned all acts done or to be done in good faith by members of the Armed Forces, courts, police or any other in pursuance of the Act.326

4.4 Conclusion

The detailed survey of the national security and anti-terrorism laws in the historical perspective suggests that subsequent legislations were replica and re-enactment of the earlier legislations, with modified or improved versions. Pakistan had inherited host of national security and anti-terrorism laws from the British. These laws were improved and re-enforced by successive governments either through fresh enactments or amending the existing laws. However, all these laws in their pith and substance had been national security centric, anti- national or anti-government activities targeted and anti-violence specific, may that be political, criminal or armed violence. It was in 1974, when the term terrorism was first used by the government of Mr Zulfiqar Ali Bhutto to describe sabotage, subversive and anti-

324Ibid, Sections 11-13. 325Ibid, Section 15. Such presumptions though clarified in the Act, are generally attached while evaluating the evidence by the courts in terms of Article 129 of the Qanun-e-Shahadat, 1984. 326Ibid, Section 20-26. 210

national activities in the Suppression of Terrorist Activities (Special Courts) Ordinance 1974, which was converted into an Act on the 1st of February 1975. Terrorism as a matter of law is not a crime but different crimes, depending upon their gravity and impact on general public, had been described as acts of terrorism. This term was frequently used and improved in the Terrorist Affected Areas (Special Courts) Act 1992 and Anti-terrorism Act 1997 by Mr Nawaz Sharif and General Pervez Musharraf governments.

Pre-9/11 anti-terrorism legislation was mostly aimed at controlling sectarian or ethnic violence and separatist movements in the country, especially in Karachi and Balochistan. Post 9/11 anti-terrorism laws pre-dominantly targeted Taliban factor, whose terrorism was based on religious belief and tribal culture of vengeance, self-retribution and breading enmity. The post 9/11 anti-terrorism laws relaxed the standards of evidence required for conviction; permitted prolonged detentions without warrants or custodies for investigation; allowed covert surveillance, human intelligence and wire-taping to prevent acts of terrorism; introduced mechanism of joint investigation and trial of terrorists, militants and enemy aliens by anti-terrorism or special courts; and provided for more protection of judges, witnesses, investigators etc. However, despite these amendments and enhanced sentences, the governments did not succeed in controlling the menace of terrorism, ensued in the wake of 9/11 attacks.

There are two apparent reasons for this failure. The first reason is that the new or improved legislation was a blend of those laws which had either failed to deliver in the past or been criticized for violation of constitutional protections to the citizens. Hence response of the judicial organs of the state had been lukewarm, with hardly any ownership or sense of responsibility and overwhelming fear of personal security, witnesses’ protection, poor investigations and enforced adjournments. The other reason is that in some cases, the legislature passed the laws merely for an eye wash or face-saving in the party politics or under influence. The parliamentarians themselves were not convinced with the significance and effectiveness of the legislation or the law was passed to correct a wrong. Protection of Pakistan Act 2014 may be cited as an example, which other than validating prolonged custodies and arrests in internment centers hardly established “special courts” with significant convictions. The ultimate responsibility to administer justice remained on the ATC judges or the court martial convened under the Pakistan Army (Amendments) Act 211

2015. Similarly, the amendment introduced by President Pervez Musharraf in January 2002 in the Anti-terrorism Act 1997 to include a serving Army officer of the rank of Lieutenant Colonel as a member of the ATC also put working of the ATCs to a stand-still position until 30th of November 2002, when this date was not extended and the idea of revised composition of the ATCs died down.

In this backdrop, with half hearted commitment of the legislature and the judicial organs of the state, the level of desired success in eradicating terrorism cannot be achieved. A well thought-out legislation based on previous experiences, with honest commitment of all the judicial organs of the state and full backing of the nation as well as fear of accountability is inescapable to achieve the target of restoring peace and eliminating terrorism from the country. Mere legislation may not restore peace and eradicate terrorism, unless implemented in letter and spirit.

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CHAPTER 5

TRIALS OF CIVILIANS BY MILITARY COURTS IN HISTORICAL PERSPECTIVE AND THEIR ROLE IN CRIMINAL JUSTICE SYSTEM

Administration of justice is an exclusive domain of judiciary, which is very possessive about its jurisdiction. Judiciary has always been reactive and repelled any attempt to intrude upon its area of responsibility.1 On the other hand, Armed Forces of Pakistan have also never been interested to take over or supplant the judiciary or perform judicial functions except within the scope of the services laws. The main subjects of courts martial have been the men in uniform or those attached with the Armed Forces or troops when on active service and engaged in operation.2 Going by the tradition and history, violence against public, attempts to overawe the government, anti-state or anti-government and anti-national activities used to be controlled by sub-ordinate legislations and through ordinary laws/courts. However, there had been instances where special/extra-ordinary measures were adopted and amendments had been introduced in the military laws and Constitution of Pakistan as well to achieve the said objectives. Such amendments were intended to target both the political and security objectives. The respective governments of General Ayyub Khan, Mr Zulfiqar Ali Bhutto, General Zial-ul-Haq, Miss Benazir Bhutto, Mr Nawaz Sharif and General Pervez Musharraf, all amended the military laws to control law and order situation deteriorated as a result of political struggle against their governments. They also made endeavours to tame and keep the opposition leaders and political workers within their remit. However, their efforts were jeopardized by the judiciary where the aggrieved parties and individuals moved the courts. The judiciary had been proactive in most of the cases and declared the amendments ultra vires the fundamental rights. However, there had been instances when the judiciary upheld the amendments introduced in the services laws, whereby civilians acting against the public peace and sovereignty of the state were brought within the pale of the military laws.

1Article 175 of the Constitution lays down the hierarchy of judiciary. The words “such other courts established by law” used in the Article are interpreted to include courts martials as well within the corpus of judiciary. However, the superior judiciary had not recognized this assertion except in the 21st Constitutional Amendment case by the majority judgment. In this background, when the amendments in the ATA 1997 were introduced to given judicial role to the military and military courts were established in Karachi during 1998, the Supreme Court repelled these attempts and declared the same as ultra vires the Constitution in Mehram Ali and Liaquat Hussain cases (PLD 1998 SC 1445 and PLD 1999 SC 504) respectively. 2PAA Section 2(1) (a) and (c), PAF Act Sections 2(a)-(d) and PN Ordinance Sections 2(1) and (2). 213

The last of such verdicts may be referred in the case of 21st Constitutional Amendment and Pakistan Army (Amendment) Act 2015.3

This chapter traces back history and necessity of the amendmentsin the Constitution and military laws whereby civilians accused of different anti-government and anti-state offences were subjected to trial by military courts or courts martial.4 Such offences were gradually converted into terrorism, which aredescribed as the worst kind of heinous and political crimes.5 The chapter also analyses as to how the successive governments impliedly expressed their lack of confidence on judiciary and confidence in the military courts or the courts martial. The chapter further examines the role of courts martial vis-à-vis criminal courts in combating terrorism, as an interim measure under the superintendence of the superior judiciary. Finally the chapter analyses significance of the Supreme Court’s judgment in 21st Amendment case on the criminaljustice system in the wake of WOT.

5.1 President Ayyub Khan Amends the Army Act

In the wake of Pakistan-India wars of 1965 and 1971, amongst others, “Defence of Pakistan Ordinance 1965”, “Enemy Foreigners Order 1965”, “Internees (Discipline and Offences) Regulations 1965”, “Foreigners (Parolees) Order 1965”, “Defence of Pakistan Ordinance 1971”, “High Treason (Punishment) Act 1973” and other laws had been introduced. In some of the legislations, role of the Armed Forces/military personnel in the execution phase was dominant. But judicial functions had never been entrusted to the Armed Forces except during Martial Law. It goes to the discredit of General Ayyub Khan who promulgated the first Martial Law in the country and established summary military and special military courts to try and punish the civilians accused of ordinary offences, which otherwise fell in the jurisediction of ordinary criminal courts.6 It was also President

3District Bar Association Rawalpindi v Federation of Pakistan (PLD 2015 SC 401). 4The courts established under the military laws are described as courts martial; whereas military court is not a recognized term under any of the military laws. It is loosely described and generally used by the public as a synonym for courts martial and courts established under the martial laws, which follow procedure of trial similar to courts martial. Courts martial and military courts have been used as synonymous to each other. However, this distinction has been maintained, in the dissertation wherever so required. 5For nature of terrorism as political crime see, George B. Vold, Theoretical Criminology (New York: Oxford University Press 1958), pp 299-300. 6 Special military courts may include a magistrate first class or a Sessions Judge as one of its members. See for example:- Proclamation of Martial Law of 7 October 1958 and Martial Law Regulations of 4 December 1958 at PLD 1958 Central Statutes 499 and 504-507, as well as Martial Law (Confirmation of Sentence) Ordinance 1962 (PLD 1962 Central Statutes 661 and 703). 214

Ayyubwho for the first time amended the military laws to try and punish the civilians through courts martial.Accordingly, after thedeclaration of emergency by him, civilians accused ofseducing or attempting to seduce any military personnel from his duty or allegiance to the government of Pakistan or having committed any offence under “the Official Secrets Acts 1923” and having nexus with the Armed Forces or works of defence were made subject to “the Pakistan Army Act (PAA) 1952.”7 The virus of the said amendment had been challenged in the case of Brigadier (Retd) F.B Ali,8 who was charged, amongst others, under Section 2(1)(d)(i) read with Section 31(d) of the PAA, with the offence of seducing the serving officers of the Pakistan Army from their duty or allegiance to the government. The Supreme Court validated the amendment and trial of the retired officer under the PAA. Also in AsifMehmood case9 wherein civilian Tufail Khan was taken into custody by the Army authorities under PAA Sec 2(1)(d)(i) for his alleged involvement in anti-state and terrorist activities as well as acting in a manner prejudicial to the defence of Pakistan; and thereby attracting the provisions of the said Section of the PAA read with “Security of Pakistan Act 1952”, the Lahore High Court refused to entertain the writ petition for habeas corpus, inter alia, on the ground that the detenue had been (rightly) arrested under the PAA.

5.2 Prime Minister Bhutto Amends the Army Act Subsequently, it was after the March 1976 elections, when the demonstrations by Pakistan National Alliance (PNA) against the alleged rigging turned into violent movement/protests, the President on the advice of Prime Minister Zulfiqar Ali Bhutto promulgated emergency in the country on April 21, 1977. Armed Forces were called in for the first time under Article 245 of the Constitution,10 to act in aid of civil power; and curfew imposed in different parts of the country including Karachi and Lahore. In order to punish the violent demonstrators and control the internal disturbance, Section 2 of “the Pakistan Army

7This was done by adding Section 2(1) (d (i) and (ii) in the PAA by “the Defence Services Laws (Amendment) Ordinance, 1967” (PLD 1968 Central Statutes 8). Sub-Section (dd) and (3) were also added in Section 2 each of the PAF Act 1953 and PN Ordinance 1961 respectively to give similar effects in the said laws. 8“F.B. Ali v State” (PLD 1975 SC 506). 9“Asif Mehmood v Federation of Pakistan” (PLD 2005 Lahore 721). 10This Article was amended vide “the Constitution (7th Amendment) Act 1977”, which mainly provided for a referendum as to the vote of confidence in the Prime Minister and whereby jurisdiction of the High Court was ousted in the areas where the Armed Forces had been called. 215

Act (PAA) 1952” was amended by inserting sub-clause (iii) in clause (d) and adding clause (dd) thereunder in the following terms, as distinguished in italics:-

(d) “Persons not otherwise subject to this Act who are accused of:-

(i) seducing or attempting to seduce any person subject to this Act from his duty or allegiance to Government, or

(ii) having committed in relation to any work of defence, arsenal, naval military or air force establishment or station, ship or aircraft or otherwise in relation to the naval, military or air force affairs of Pakistan, an offence under the Official Secrets Act, 1923.”11

(iii) “an offence punishable under Section 123, 123A, 124A, 143, 144, 147, 148, 152, 153A, 188, 193, 224, 225, 283, 302, 304, 307, 325, 326, 332, 342, 353, 364, 366, 376, 392, 395, 396, 397, 431, 435 or 436 of the Pakistan Penal Code (Act XLV of 1860) or the Pakistan Arms Ordinance, 1965 (W.P. Ordinance XX of 1965), or the Explosive Substances Act, 1908 (VI of 1908), or the Defence of Pakistan Ordinance, 1971 (XXX of 1971),or (i)any rule made thereunder or the High Treason (Punishment) Act, 1973 (LXVIII of 1973), or the Prevention of Anti -National Activities Act, 1974 (V11 of 1974), or an attempt or conspiracy to commit, or an abetment of, any of the said offences.”12

(dd) “persons not otherwise subject to this Act who are accused of having done any act with intent to impair the efficiency or impede the working of, or to cause damage to:-

11(Sub-clause (i) and (ii) had been added by “the Defence Services Laws (Amendment) Ordinance, 1967” with effect from the 25th September, 1967; but reproduced here for the sake of better understanding the context and construction of the Section. 12Inserted by “the Pakistan Army (Amendment) Act, 1977 (X of 1977)”. The Act/Amendment was subsequently repealed by “Federal Laws (Revision and Declaration) Ordinance 1981” (PLD 1982 Central Statutes 10 (Page 26, serial 378). 216

(i) any building, vehicle, machinery apparatus or other property used, or intended to be used, for the purposes of the State or any local authority;

(ii) any railway as defined in the Railways Act, 1890 (1X of 1890), tramway, road, canal, bridge, culvert, causeway, port dockyard, lighthouse, aerodrome, or any telegraph, telegraph line or post, as defined in the Telegraph Act, 1885 (X111 of 1885), or any wireless installation;

(ii) any vessel or aircraft or rolling stock of a railway or tramway;

(iv) any building or other property used in connection with the production, distribution or supply of any essential commodity, any sewage works, mine or factory; (v) any prohibited place or protected place that is punishable under any rules made under the Defence of Pakistan Ordinance, 1971 (XXX of 1971), or an attempt or conspiracy to do, or an abetment of any such act.”13

5.2.1 “Pakistan Army (Amendment) Act 1977” and Jurisdiction of Courts Martial over Civilians Challenged

By virtue of the said amendments, ordinary civilians committing the said offences punishable by ordinary courts were subjected to the PAA and trial by courts martial. Advocates Niaz Ahmad Khan and Darvesh M. Arbey, among others, challenged validity of the martial law, subjection of civilians to the PAA and vires of the amendments, in the Karachi and Lahore High Courts, respectively.14 The events which led to the above cited amendments have been narrated in detail in the said cases. In short, the law and order situation in the country, after the boycott of Provincial Assemblies elections scheduled on the 10th day of March 1977, following the allegations of mass-scale rigging in the 7th March 1977 elections, more specifically in Lahore, had gone beyond the control of the Provincial

13Ibid. 14“Niaz Ahmad Khan v Province of Sind” (PLD 1977 Karachi 604); “Darvesh M. Arbey v Federation of Pakistan” (PLD 1980 Lahore 206). 217

Government.15 On April 21, 1977 Armed Forces were called to act in aid of civil power, which was challenged in a number of petitions in the High Court. In the meantime, the Parliament amended Article 245 of the Constitution, as it is today, as well as PAA Section (2)(1), whereby exclusive jurisdiction was conferred on the courts martial to try, convict and sentence the civilians on the above cited offences. Consequently, jurisdiction of the ordinary criminal courts of Lahore was ousted to try them for the said offences unless any case is transferred to them by the authorized Army officer. Having examined the vires of the amendments, the Lahore High Court, on 2nd day of June 1973, declared that the Armed Forces called in aid of civil power could not suppress or replace the civil power.16 Consequently, neither the civil population could be tried by courts martial nor jurisdiction of the ordinary courts ousted. Hence any such intent would be fraud on statute. Chief Justice, MrAslamRiazHussain, thus declared the impugned amendment in the PAA as invalid for being contrary to and beyond the scope of Article 245(1), which suggests that Armed Forces may called in for a limited purpose i.e. to restore law and order only.17

Although in the judgment of Niaz Ahmad Khan, the implications of employment of Armed Forces under Article 245 of the Constitution had been discussed at length but no authoritative pronouncement on the legality of the trials and ouster of jurisdiction of criminal courts in Karachi was made except in the said manner. After protracted legal discussion, the court suspended the petition for want of jurisdiction in terms of Article 245(4).18 Notwithstanding suspension of the petition, the Karachi High Court also gave anxious hearing to the petition of Niaz Ahmad; and on 21st day of May 1977 pronounced its verdict through a short order. The High Court held that the constitutional limitations under Article 245 bind the Armed Forces to ‘act in aid’ of civ power, which expression means to ‘assist’ the established civil authorities in the discharge of its functions, rather than to supersede or supplement the said authority.19 He held that Article 245 impressed upon the Armed Forces to act subject to law and their duties while acting in aid of civil power were limited to the maintenance of law and order and security, for which they needed to be equipped with

15Ibid. 16Darvesh Arbey ibid, pp. 232, 233, 289, 290. 17Ibid. 18Niaz Ahmad ibid, p. 674, para 12. 19Ibid, p. 666. 218

powers of the police to search, arrest and apprehend those who disturbed peace and tranquility; who should exercise such powers justly, fairly and not arbitrarily.20 These limits did not empower the Armed Forces to try the apprehended persons as they were to be tried by the ordinary courts. He concluded his judgment by placing a responsibility on the Armed Forces to exercise self-restraints and act in accordance with law and the limitations laid in Article 245(1) read with Article 190 of the Constitution i.e. to act in aid of civil power. His precise verdict was “the Armed Forces symbolize the unity of the Nation and our survival depends upon its preservation as an institution within the framework of the constitution and subject to its limitations.”21

Unlike the above judgment, the Lahore High Court had been very assertive to declare that a parallel system of military courts may not be established under the pretext of Article 245 of the Constitution when the civil judicial system too is functional. The Chief Justice asserted that even an Act of Parliament would not enable the Armed Forces to perform such judicial functions unless scope of Article 245 was enlarged or amended for the said purpose. Justice KaramElahiChauhan, in an unambiguous term, declared that Article 245 did not “authorize a political government to rule through Armed Forces and to clothe them with such powers and jurisdiction as to replace civil power”; therefore, Armed Forces could neither be deployed as a machinery for running government through them nor martial law imposed for the said purpose’.22

Since the parties in the case did not invoke jurisdiction of the apex court, the ibid provisions of sub-clause (iii) of PAA Section 2(1)(d) and sub-section (dd) thereto stood invalidated and are a dead law which does not permit any further trial by courts martial of civilians accused of offences enumerated therein, as also the said amendment had been subsequently repealed by “the Federal Laws (Revision and Declaration) Ordinance 1981.”23

20Ibid, p. 675. 21Ibid. 22DarveshArbeyop. cit., 246. 23PLD 1982 Central Statutes 10 (Page 26, serial 378). 219

5.3 General Zia-ul-Haq Promulgates Martial Law and Establishes Military Courts or Tribunals by Amending the Constitution

When the protests and demonstrations further escalated and the political chaos turned into a dead lock with seemingly political debacle, General Muhammad Zia-ul-Haq promulgated Martial Law on July 5, 1977 and took over reins of the country with a promise to hold free and fair elections within 90 days.24 However, the needful was not done as promised and General Zia continued to rein the country. In the meantime, ex Prime Minister MrZulfiqar Ali Bhutto was executed in Rawalpindi on April 4, 1979 for his involvement in homicide of Nawab Muhammad Ahmad Khan. After the execution of Mr Bhutto, his followers turned violent, committed arsons and attempted/ committed suicide in public. In order to control the violence, on 16 October, 1979, General Zia amended the Constitution by adding Article 212-A,25 whereby military courts and tribunals had been established, to try the offences punishable under Martial Law Regulations/Orders or any other law. The amendment ousted jurisdiction of all courts including a High Court in respect of any matter subjudice before the said tribunals, except an appeal to the Supreme Court.26 Accordingly, many people were tried and convicted by the summary military courts. Some of them including Aizaz Nazir, who were charged for offences under the Martial Law Regulation, PPC and other laws, challenged their trials and convictions and assailed Article 212-A being violative of the manifest tenors of the Constitution. The Sind High Court declared addition of Article 212-A as violative of the Constitution and asserted that the court shall continue to exercise its power of judicial review even though its jurisdiction had been ousted.27 However, effect of the said and other judgments on the issue was neutralized by adding clauses 3A-3C to Article 199, which were subsequently omitted by “Revival of the Constitution of 1973 Order 1985.”28

24“Proclamation of Martial Law” and “Chief Martial Law Administrator’s Order 1 of 1977 (Laws Continuance in Force) Order 1977”, both published in Gazette of Pakistan Extra Ordinary, Part I, dated 5th July 1977 (PLD 1977 Central Statutes 327). 25Added by “Constitutional (Second Amendment) Order 1979”and given retrospective effect from 5th July 1979.

26The courts remained functional for 7 years, 5 months and 21 days, when the Article was omitted by S.R.O. No. 1278 (1) 85 dated 30 December 1985, read with “Proclamation of Withdrawal of Martial Law dated 30 December 1985”. 27“Aizaz Nazir v Summary Military Court Sukkur” (PLD 1980 Karachi 444). 28PLD 1985 Central Statutes 456. 220

5.4 Prime Minister Benazir Bhutto Amends Constitution to Establish Special Courts for Trial of Heinous Crimes

In the wake of significant increase in the number of crimes which were gruesome, brutal and sensational in character or shocking to public morality in July 1991, Benazir Government further amended the Constitution by adding Article 212B.29 The Federal Government or any authority/person authorized by it could constitute such courts, consisting of an existing or former judge of the High Court or a person eligible for such judgeship, in consultation with the Chief Justice of the concerned High Court. In order to ensure impartiality and security, Article also guaranteed that judges of the special courts, except the judge of the High Court, shall hold the office till the Article remains in force i.e. July 26, 1994; and shall not be removed except in the manner provided for removal of the judged of the superior judiciary i.e. through the Supreme Judicial Council. The Article also provided for appeal before Supreme Appellate Court consisting of a judge of the Supreme Court as the chairman and two judges of the High Courts who all were to be by the Federal Government in consultation with the concerned Chief Justice. The cases at each tier/court were required to be decided within thirty days; while jurisdiction of all other courts was also ousted in respect of any proceedings, order or sentence passed the said courts. However, the Article had the life of three years wef 27 Jul 1991, whereafter it stood repealed and ceased to be part of the Constitution.

5.5 Prime Minister Nawaz Sharif Establishes Military Courts through “the Pakistan Armed Forces (Acting in Aid of Civil Power) Ordinance 1998” to Try Civilians

During 1998, the law and order situation in Karachi had deteriorated to the worst extent, claiming lives of thousands of innocent civilians and affecting not only business in Karachi but also economy of the whole country. While the judgment of the Lahore High Court in “Niaz Ahmed Khan” was operative in the field, the government of Mr Nawaz Sharif made another attempt to bring the civilians within the pale of the military trials courts

29Added by “Constitution (Twelfth Amendment) Act, 1991” (PLD 1991 Central Statutes 461), which was to remain in force for three years till 26th day of July 1994. 221

established in Karachi. Accordingly, on the 28th day of May 1998, the President promulgated emergency in the wake of threats to the security of Pakistan.30

In pursuance of the proclamation of emergency and order dated 30 October 1998, issued under Article 232(c) of the Constitution, the federal government directed Governor Sindh to assume powers and functions of the provincial governmrnt.31 Simultaneously, the President on 30th day of October 1998, promulgated “the Pakistan Armed Forces (Acting in Aid of Civil Power) Ordinance, 1998”,32 which enumerated powers and duties of the Armed Forces while acting in aid of civil power.The Ordinance initially was limited to the Province of Sindh but subsequently its jurisdiction was extended to the whole of Pakistan;33 and it authorised trial of absconding accused as well. However, no trial in absentia was conducted, as such trials are not recognized under the military laws, though provided under Section 19(1) of the “Anti-terrorism Act 1997” and Section 13(1) of “the Terrorist Affected Areas (Special Courts) Act 1992.”34 Through the said Ordinance, the Chiefs of Staff of the Armed Forces or any officer of the rank of Brigadier or equivalent could convene trial courts or the courts of appeals to try and punish any person accused of any offence of terrorism as defined in Section 6 of the of the Anti-terrorism Act 1997 and the schedule thereto including the offences of qatl-i-amd or attempt thereof and hurt of serious nature i.e. itlaf-i-udw or itlaf-i- salahiyyat-i-udw, if committed with a cannon, grenade, bomb, rocket or a light or heavy automatic weapon, or if committed against any member of the police, armed or civil armed forces or a public servant, or if there were more than one victim or the victim was subjected to cruelty, brutality, torture or burning.35

Malicious acts of outraging religious feelings; use of derogatory remarks against holy personage; kidnapping or abducting with intent to murder or secretly/wrongfully to confine a person for ransom; robbery, dacoity and related offences; gang rapes; criminal conspiracy; terrorist acts and acts intended to stir up sectarian hatred as defined under the “Anti-terrorism

30 Armed Forces were called under Article 245 of the Constitution in Karachi through a Notification by Ministry of Interior on 20 November 1998. Also see Liaquat Hussain case (PLD 1999 SC 504, pp. 681-683). 31PLD 1999 Central Statute 202. 32PLD 1999 Central Statutes 156. The Ordinance was further amended by “Pakistan Armed Forces (Acting in Aid of Civil Power) (Amendment) Ordinance 1998” (PLD 1999 Central Statute 160). 33PLD 1999 Central Statute 241. 34PLD 1999 Central Statutes 229. 35Sections 3 and 4 read with the schedule, which describe the offences triable by the military courts. 222

Act 1997” and the offences under “the Pakistan Arms Ordinances 1965” were also subjected to the jurisdiction of the “trial and appellate courts.” These courts were to follow the procedure of courts martial/military courts of appeals given in the respective services laws, and to decide the assigned case within a period of seven days.36 These offences were made punishable under the Ordinance and their investigation could be supervised by the Armed Forces; while pending cases transferred to the military courts.37 Interestingly, the cases were prosecuted by the public prosecutor; while the accused were entitled to the services of defending officer and the defence counsel at his expense as permissible before courts martial under the Military Laws; while the court proceedings were open.38

Sequel to the promulgation of the 1998 Ordinance, military trial courts were established in Karachi which commenced the trial proceedings in December 1998, awarded death sentence to five convicts and varying degree of rigorous imprisonment to four others, who were accused of gang rapes, murder of police/officials, abduction and ransom, car snatching and possessing arms/ammunition. Out of the five convicts awarded death, one was later recognized of the age of fourteen, who was acquitted by the Court of Appeals after ossification test and determination of his age and when additional evidence to his innocence was brought before the Appellate Court. There were other convicts as well including a female whose death/rigorous imprisonment were commuted by the Court of Appeals to the lesser degree of rigorous imprisonment and even acquittal of another convict.39 Though the Ordinance provided three days (which were subsequently extended to seven days) for completion of trial, yet it took an average of about 7-12 days to complete the trial proceedings due to procedural compliance, fear/laxity shown by the public prosecutors and lengthy cross-examinations by the defence counsels. While the trials and convictions by the military trial courts were being criticized and appreciated by different segments of the society and two condemned prisoners had been executed, the issue of the military trial courts became subjudice before the Supreme Court in “Sheikh Liaquat Hussain case”,40 who finally

36Ibid. “Pakistan Armed Forces (Acting in Aid of Civil Power) (Second Amendment) Order 1998” whereby the period during which the court was to conclude the case was extended from 3 to 7 days. 37Ibid, Sections 5, 8, 9, 11 and 13. 38Ibid, Section 4(2) read with PAA Rules 23, 67, 81-83, 85, 130 and Notes thereto. 39An exclusive discussion dated 15 March 2016 with Lieutenant Colonel Inam-ul-Rahiem (Retired), Advocate High Court. He had conducted number of military trials under the Ordinance and appreciated their transparency. 40“Sh Liaquat Hussain v Federation of Pakistan” (PLD 1999 SC 504). 223

declared the Ordinance of 1998 as unconstitutional, without lawful authority and of no legal effect. Accordingly, the court set aside the sentences awarded by the militarycourts and ordered transfer of pending cases to the Anti-terrorism Courts (ATCs), who were emphasized to adhere to the time of seven days each for trial and hearing of appeals, as envisaged under section 19(7) of the Anti-terrorism Act (ATA) 1997. Monitoring Cells of High Court and Supreme Court were also established; besides seeking aid and protection of the Armed Forces in terms of sections 4, 5 and 21 of ATA 1997 and Article 245 of the Constitution at all stages of trials including security of presiding officers/judges, prosecutors, defence counsels, accused, witnesses and other court officials.41 This judgment gave a severe below to the government’s efforts to restore peace in Karachi and bring the perpetrator to justice. Karachi had been converted into a city of violence where life and liberty of the citizens had been continuously at risk. Business activity was experiencing an extraordinary recession. Bhatta culture, murders of the opponents and throwing their torsos in bags to create terror, kidnapping for ransom and rapes, possession and use of arms and ammunitions without licence had became order of the day. Police force and the judicial officers were politically motivated and involved in corrupt practices; hence could not deliver justice. And those who were honest, professional and motivated to deliver justice were either sidelined or eliminated.42 Insecurity amongst the police and judicial officials as well as the witnesses discouraged them. They opted to remain indifferent from the deteriorated law and order situation. Despite clear instructions and guidelines by the Supreme Court, in Liaquat Hussain case, to the ATCs to finalize the pending cases within seven days, not a single case could be decided within the given period. Due to procedural lacunas and being seized of rights of the accused, the Monitoring Cells consisting of judges of the High Courtss also remained ineffective. Ultimately, initially restriction of 7 days was extended to 30 days and that too subject to certain exceptions. The delay in disposal of appeals before the High Courts and the Supreme Courts became a routine matter. This indifferent and casual conduct of judiciary, the main organ of the criminal justice system, encouraged lawlessness and a sense of impunity amongst the ordinary criminals and the terrorists. The deteriorated criminal justice

41Section 21 was substituted/amended vide “Anti-terrorism (Amendment) Act 2001”. Earlier the government had repealed 1998 Ordinance, by adding Section 39A in the ATA 1997 through “the Anti-terrorism (Amendment) Ordinance (iv of 27th April) 1999” and transferred all cases back to the ATCs. 42An exclusive discussion dated 8 March 2016 with Mr G.M. Chaudhry, Advocate Supreme Court of Pakistan. 224

system became more inefficient and less trustworthy when the government of President Musharraf joined the War on Terror (WOT) and launched military operations in the tribal areas of Khyber Pakhtunkhwa (KP). Neither the police nor the judiciary could help the law enforcement and intelligence agencies to bring the perpetrators of peace to justice. 43 Latersome of the miscreants and terrorists arrested by the armed forces and intelligence agencies during combat or intelligence-based operations and detained for interrogation to ascertain their alleged involvement in terrorist activities and attacks on the armed forces were released by the superior judiciary. The issues of missing persons and human rights violations became more perceptible and a bone of contention in the fight against terrorism, and created a gulf between the judiciary and the government.44

5.6 President Musharraf Promulgates “Pakistan Army (Amendment) Ordinance 2007” to Bring Civilians within the Purview of Army Act

November 2007 proved to be a culminating point of the tussle between the two organs of the state i.e. the executive and the judiciary. President Musharraf ousted the Chief Justice of Pakistan and other judges of the supriror judiciary. They did not surrender before the unconstitutional act of General Musharraf and launched the historic movement for restoration of judiciary. Simulteneously, another amendment was made in Pakistan Army Act Section 2(1) (d) by incorporating clause (iia)45 with retrospective effect from 1st January 2003. The said amendment was introduced by President General Pervez Musharraf, in the exercise of powers conferred upon the President under Article 89(1) of the 1973 Constitution of Pakistan read with “the Proclamation of Emergency of 3 November 2007” and “the Provisional Constitution Order (No. 1 of) 2007”, despite the fact that his intended or actual “Proclamation of Emergency” had been invalidated by a Supreme Court Bench headed by Chief Justice (as he then was) Iftikhar Muhammad Chaudhry, who had also been ousted through the said proclamation of emergency.46 Through the said amendment, all major offences committed against the defence and security of Pakistan or any part thereof or armed

43Ibid. 44For quick reference to human rights issues, see Tipu Salman Makhdoom, “Evolution of Human Rights: From Natural Rights to Postmodernism”(PLD 2015 Journal 76-84). 45Added by “Pakistan Army (Amendment) Ordinance 2007” (PLD 2007 (Supp-I) Federal Statutes 18). 46For details of the emergency and its subsequent validation by the Supreme Court headed by Justice Abdul Hameed Dogar, see Tika Iqbal Muhammad Khan v General Pervez Musharaf (PLD 2008 SC 178). 225

forces or any offence punishable under “the Explosive Substances Act 1908” or any act/conduct described as prejudicial under “the Security of Pakistan Act 1952”, any offence under “the Pakistan Arms Ordinance 1965” or “Prevention of Anti-National Activities Act 1974” or “the Anti-terrorism Act 1977”, besides the offences such as waging war or conspiring or attempting to wage war against Pakistan, collecting arms or concealing or facilitating any design to wage such war, assaulting or wrongfully restraining the president or governors, sedition, rioting, murder, assaulting or using criminal force against any public servant, abetment or attempt or commission of any of the said offences, which are punishable under Section 109, 117, 120B, 121, 121A, 123, 123A, 124, 124A, 148, 302, 353 and 505 of the Pakistan Penal Code, were made amenable to “the Pakistan Army Act.” The President intended to keep his opponents within their limit by introducing such amendments and creating deterrence to the effect that they might be tried by courts martial. However, it is difficult to calculate the level of deterrence created by the said amendment; but the fact remains that it fetched severe criticism, as was prevalent at that critical time. Hence, no trial was conducted under the said amendment despite the fact that it remained operative for about two years through successive promulgations. The emergency was followed by the Lawyers’ Movement, which culminated into restoration of Mr Iftikhar Muhammad Chaudhry as the Chief Justice of Pakistan. The Supreme revisited the judgment handed down in “Tikka Iqbal Muhammad Khan” case and on 31 July 2009, quashed “the Provisional Constitutional Order (PCO) I of 2007.”47 In consequence thereto, this amendment which had secured permanence through the said PCO stood reverted to the status of an Ordinance, which later lapsed as it could not seek approval of the Parliament as an Act. Despite efforts of the “National Assembly Standing Committee on Defence” sphereheaded by Secretary Defence, during May-November 2011, the desire for re-enactment/revival of the said Ordinance as a legislative act could not be materialized; hence, the said Ordinance lapsed and so is the fate of the said amendment.

47For details, see “Sindh High Court Bar Association cases” (PLD 2009 SC 879, PLD 2010 SC 1151 and PLD 2011 SC 671). 226

5.7.1 Prime Minister Nawaz Sharif Amends the Constitution and Pakistan Army Act in the Background of APS Peshawar Carnage

It was December 16, 2014, when the terrorists attacked Army Public School Peshawar and killed 151 innocent children and staff of the school. The government chalked out “National Action Plan (NAP)” to counter the menace of terrorism and extremism. All the stake-holders expressed their resolve to eliminate terrorism and militancy from the country. The government also decided activation of “National Counter Terrorism Authority (NACTA)” and simultaneously negotiated a consensus amongst the stake holders to establish military courts for swift disposal of cases pending investigation, adjudication and execution at different levels. Despite reservations of human rights groups, religious and political parties, the government managed to promulgate “Constitution (21st Amendment) Act 2015” and “Pakistan Army (Amendment) Act 2015” on 7th day of January 2015.48 Both the amendments with sun set clauses shall remain in force for two years only. Through the 21stConstitutional Amendment, “Protection of Pakistan Act 2014, the Pakistan Army Act 1952, the Pakistan Air Force Act 1953 and the Ordinance 1961” were brought out of the operation of Article 8 or the jurisdiction of the High Courts to issue writ for any violation. Also a proviso was added in Article 175, which provided that if any terrorist committing terrorism in the name of religion or sect is tried by a military court, the judiciary will not consider such trial or exercise of judicial functions by the military officers as intrusion in its jurisdiction. Section 2(1)(d)(iii) and (iv) were also inserted in “the Pakistan Army Act 1952” whereby certain civilians who were not otherwise subject to Pakistan Army Act but having allegedly committed the following offences were also brought within the purview of the Act:-

2. Persons subject to the Act:- (1)

“(d) Persons not otherwise subject to this Act who are accused of:- (iii) claiming or are known to belong to any terrorist group or organization using the name of religion or a sect: and

48PLD 2015 Federal Statutes 1 and 3 respectively. The enactments were described as Act I and II of 2015 respectively. The same are attached as appendix A and B respectively. 227

(a) raise arms or wage war against Pakistan, or attack the Armed Forces of Pakistan or law enforcement agencies, or attack any civil or military installations in Pakistan; or (b) abduct any person for ransom, or cause death of any person or injury; of (c) possess, store, fabricate or transport the explosives, fire-arms, instruments, articles, suicide jackets; or (d) use or design vehicles for terrorist acts, or (e) provide or receive funding from any foreign or local source for the illegal activities under this clause; or (f) act to over-awe the state or any section of the public or sect or religious minority; or (g) create terror or insecurity in Pakistan or attempt to commit any of the said acts within or outside Pakistan, shall be punished under this Act; and

(iv) claiming or are known to belong to any terrorist group or organization using the name of religion or a sect and raise arms or wage war against Pakistan, commit an offence mentioned at serial Nos. (i), (ii), (iii), (v), (vi), (vii), (viii), (ix), (x), (xi), (xii), (xiii), (xv), (xvi), (xvii) and (xx) in the Schedule to the Protection of Pakistan Act, 2014 (X of 2014): Provided that any person who is alleged to have abetted, aided or conspired in the commission of any offence falling under sub-clause (iii) or sub-clause (iv) shall be tried under this Act wherever he may have committed that offence: Provided further that no person accused of an offence falling under sub-clause (iii) or sub-clause (iv) shall be prosecuted without the prior sanction of the Federal Government.”49 “Explanation: In this clause, the expression ‘sect’ means a sect of religion and does not include any religious or political party regulated under the Political Parties Order, 2002.”

49Further Provisos have been added after this proviso through “the Pakistan Army (Amendment) Ordinance 2015” (Gazette of Pakistan, Extra-Ordinary No M-302/1-7641 dated January 15, 2015, as will be discussed in the subsequent paras. 228

(2) …………….. (3) ……………..

“(4) The Federal Government shall have the power to transfer any proceedings in respect of any person who is accused of any offence falling under sub-clause (iii) or sub-clause (iv) of clause (d) of sub-section (1), pending in any court for a trial under this Act. (5) Any proceedings transferred under sub-section (4) shall be deemed to have been instituted under this Act. (6) Where a case is transferred under sub-section (4), it shall not be necessary to recall any witness or again record any evidence that may have been recorded.”50

In order to give legal protection to the arrests, detentions and custody of people with the Armed Forces, Civil Armed Forces and Law Enforcement Agencies (LEAs), the Government further amended “the Pakistan Army Act 1952 through the Pakistan Army (Amendment) Ordinance 2015.”51 In a swift move, the government through “the Army Act 1952 (Extension of Functions to Gilgit-Baltistan) Order, 2015”52 extended the scope and functions of “the Army Act 1952” and the Rules/Regulations framed thereunder to Gilgit- Baltistan on the plea that law making relating to the “defence and security of Gilgit- Baltistan” is an exclusive domain of the Federal Government, within the competence of Article 47(3) of “the Gilgit-Baltistan (Empowerment and Self-Governance) Order 2009.” The application of the Army Act and Rules, Regulations, Orders, Notifications framed thereunder was made universal and permanent throughout Gilgit-Baltistan for all times to come; and any amendment therein shall have effect ipso facto as in Pakistan. Similarly, the Army shall be competent to act and discharge within the jurisdiction of Gilgit-Baltistan all duties as in Pakistan.

50“Schedule of the Protection of Pakistan Act 2014 as refered in sub-clause iv ibid include 15 offences which may be tried by the Courts Martial after the amendment. 51Gazette of Pakistan, Extra-Ordinary No M-302/1-7641 dated January 15, 2015. The Ordinance was subsequently promulgated as Act 19 of 2015 on 17 November 2015; and published in Gazette of Pakistan, Extra-Ordinary dated November 19, 2015. 52Order No.1 of 2015 published in the Gazette of Pakistan, Extra-Ordinary No M-302/1-7641 dated January 15, 2015. 229

There is no denying the fact that the terrorist activities of the miscreants did not remain restricted to tribal areas of KP or Balochistan. Ramanants and sympathizers of Taliban more specifically TTP and its splinter groups had spread and scattered throughout the country. Gilgit-Baltistan was also not an exception to their terrorist activities, hideouts and reorganization. Each group had its sympathizers, supporters and rivals. Incidents of identifying and killing people of Shiits or Ismaili community by the terrorists in the garb of Sunni and vice versahad been on the increase. Attack on Pakistan Rangers troops from an Imambargah in Gilgit city on 13 October 2005, killing of foreign mountaineers and their guide on 22 June 2013 on the base camp of Nangaparbat mountain andmurder of SSP Muhammad Hilal, Colonel Mustafa Jamal and Captain Ashfaq on 6 August 2013, who were investigating the attack on the mountaineers, may be cited as examples of growing terrorism and violence in Gilgit-Baltistan. This had badly affected soft image of the country and tourism industry in the area. Although jurisdiction of the PAA is not area specific and extends to the persons subject to it, wherever they may be53, yet the government issued the above order to make it abundantly clear to everyone that the Act shall have universal application. The Order paved the way for recommendation and approval for trial of cases of the terrorists involved in the said three and other offences by the courts martial established under the 2015 Act.54 Cases of the said terrorists were pending before the ATCs without progress, as the courts and the witnesses were scared of their lives and security. In the case of attack on Rangers even the evidence had been concluded and the court was to deliver the judgment after arguments by the counsels. However, the court did not do so until the case was transferred to the court martial.55 The terrorists involved in the said cases had been tried and awarded different sentences including death sentences. Their conviction within a short span of time has conveyed a message to all and sundry that courts established under the Army Act would administer justice without any favour, fear or discrimination. This has also created the requisite deterrence and helped reduce the number of terrorist activities in the area.

53PAA Section 93 read with PAA Section 2(1) (d). 54Record was perused with the courtesy of Ministry of Interior and Judge Advocate General’s Department. 55Exclusive discussion dated 1 June 2015 with Mr Rahim Gul, Secretary Law, Gilgit-Baltistan and Mr Hafeezullah, Sepcial Prosecutor, Gilgit-Baltistan.

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In order to avoid ambiguity and legal lacunas, application of “the Pakistan Army (Amendment) Act 2015” was also extended to Federally Administrated Tribal Areas (FATA) and Provincially Administered Tribal Areas (PATA) through the directive of the President and Governor of Khyber Pakhtunkhwa after the approval of the President in terms of Article 247 (3) of the Constitution.56

5.7.2 Reaction to 21st Constitutional Amendment and Pakistan Army (Amendment) Act 2015

These amendments were criticized by the legal and human rights people. Ex Chief Justice of Pakistan Mr Iftikhar Muhammad Chaudhary termed establishment of military courts as unconstitutional and against the basic structure of the constitution which guarantees independence of judiciary.57 He was of the opinion that execution of court orders and increase in the number of judges and court may help speedy disposal of cases against terrorists.58 Advocate Yasin Azad, ex President of the Supreme Court Bar Association was of the view that even after a constitutional amendment for the avowed purpose, such military courts would not be obliged to try civilians unless basic structure of the constitution is changed i.e. Articles 8 to 26 of the Constitution, which relate to the fundamental rights, are amended. He did not endorse the suggestion that Pakistan could also enact law on the pattern of “USA PATRIOT (Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism) Act 2001” to curtail civil liberties and try the civilians suspected of terrorism. He lamented that was not introduced to indict Americans but the foreigners, apprehended during Afghan war or extradited to America by other states. The PATRIOT Act did not limit liberty of her citizens but brought the foreigners accused of terrorism within the pale of US courts and that too outside American territory in Guantanamo Bay, after the civil society criticized the Act.59

The judiciary has never conceded to the idea that it had failed to deliver justice. Instead, the police, LEAs and the prosecuting agencies have been impeached for miscarriage

56See Statutory Notification (SRO) 151(I)/2015 of 13th February 2015 and Govt of KP, Home and Tribal Affairs Department, Peshawar, Notification No SO(Judi)/HD/9-1/2014 dated 26 March 2015. 57“Ex-CJ terms military courts unconstitutional”, www.dawn.com.news/1154157/ex-cj-terms-military-courts- unconstitutional, accessed on December 31, 2014. 58Ibid. 59“Military courts cannot try civilians”, DAWN Islamabad, January 3, 2015, p.19. 231

of justice and acquittals because of their indifference, inefficiency, corruption, and sluggish approach towards prosecution i.e. procuring attendance of witnesses and producing relevant incriminating evidence at the trial. Therefore, where the prosecution case is deficient of incriminating evidence, not only the conviction rate will be low but also the courts would be left with no option except to return a verdict of acquittal, despite being convinced that the accused was guilty of the charge. This had been accepted by Justice Salahuddin Mirza (Retired), who suggested the government “to establish a military prosecuting agency’ or ‘appoint military observers or advisers with the prosecuting agency in lieu of military courts, which may not address the issue.”60

The Human Rights Commission of Pakistan also articulated its reservation on the convening of military courts to try the offences of terrorism and agitated decision of the politicians to support the idea. The commission described establishment of military courts as unconstitutional and against the notion of independence of judiciary and rights of civilians to be tried by ordinary criminal courts. The commission also refuted that ‘speedy justice’ had neither been fair nor speedy in most of the cases.61

Mrs Asma Jahangir feared that judges of the Supreme Court might bear the public/establishment pressure in favour of the military courts, and surpass the said act having political and legal tinge. She opined that WOT may be won by respecting domain and autonomy of every organ of the state rather than intruding upon the sovereignty of each other; and if the resources are pulled out of WOT and re-directed to augment investigation, depoliticize prosecution, ensure security of witnesses and judges. She was critical and censorious of “the Protection of Pakistan Act 2014 and the Action (in Aid of Civil Power) Regulations 2011”, as the same were intended to legitimize forced disappearances and other state actions performed without lawful excuse. In an interesting move, Maulvi , Chairman Awami Himayat Tehreek, moved the Supreme Court to revisit its judgment in “Sh Liaquat Hussain case”62 handed down by a nine judges bench in 1999, which had declared the military courts established

60“Justice (R) Salahuddin Mirza, “setting up of military courts”, DAWN Islamabad, December 28, 2014, p.9. 61“HRCP concerned over military courts move”, DAWN Islamabad, December 27, 2014, p.3. 62PLD 1999 SC 504. 232

under “the Pakistan Armed Forces (Acting in Aid of Civil Power) Ordinance 1998”,63 as unconstitutional. While declaring setting up of the military courts as an attempt to supplant the judiciary established under Article 175 of the Constitution, the court also reaffirmed its judgment in “Mehram Ali case”64 and provided certain guidelines for the anti-terrorism courts established under “the Anti-terrorism Act 1997”, including but not limited to the following:-

a. Only one case at a time should be assigned to the court until the same is concluded.

b. The court should conduct the proceedings on day to day basis and decide the case within a period of seven days.

c. The challan should be submitted after necessary preparation to indict the accused has been made and attendance of witnesses before the court ensured.

d. The appellate court would decide the appeal within seven days of its filing.

e. Any laxity by the investigating and prosecuting officers shall necessitate and attract disciplinary action.

However, the said guidelines and provisions of the ATA 1997 had not been followed on one or the other pretext; and when the desire for establishment of military courts surfaced after December 16, 2014 tragedy, Chief Justice of Pakistan, Mr Justice Nasir ul Mulk also convened an extra ordinary meeting of the Chief Justices of the High Courts on December 24, 2014 and emphasized the need to accord priority and conduct trials of anti-terrorism cases on daily basis without resorting to unnecessary adjournments. Federal Judicial Academy also organized training workshop on 24 January 2015, for judges, prosecutors and investigators on the Legal Framework against terrorism. Justice Qazi Faez Isa suggested the participants to explore the tools available in the ATA at the discretion of “the judges, prosecutors and the investigators which are not available with the ordinary players of justice

63PLD 1999 Central Statutes 157. 64PLD 1998 SC 1445. 233

system.” He emphasized them to apply and interpret the law and the constitution, being the will of the people.65

5.7.3 Arches of Supreme Court Judgment in “21st Constitutional Amendment and Pakistan Army (Amendment) Act 2015” Case

Fifteen petitions challenging “21st Constitutional Amendment and Pakistan Army (Amendment) Act 2015” were heard by a full bench of 17 judges, who combined these petitions with twenty four petitions against 18th Constitutional Amendment pending since April 2010.66 On 5th day of August 2015, the Supreme Court with the majority of 11 to 6 decided the petitions in favour of “21st Constitutional Amendment and the Pakistan (Amendment) Act 2015.”67 At the conclusion of the hearing, the Chief Justice ruled that the Supreme Court did not have any jurisdiction to hear or determine the controversy of 18th or 21st Constitutional Amendment in view of bar contained in Article 239(5) of the Constitution and absolute powers of the Parliament to amend the constitution in terms of its Articles 238 and 239(6). However, it will have and exercise the powers of judicial review in respect of any decision of the government to select and refer any case for trial by courts martial and any order passed or decision taken or sentence awarded by such courts.68 Justice Iqbal Hameed- ur-Rehman and Justice Saqib Nisar also subscribed and endorsed judgment of the Chief Justice.

Justice Sh. Azmat Saeed wrote the majority judgment; while, amongst others, Justice Asif Saeed Khosa also wrote dissenting judgment. Analyzing rulings of the superior courts in different cases69 challenging trials of civilians by the military courts or courts martial, Justice Khosa deduced that the superior judiciary had declared establishment of the special or military courts as unconstitutional, unless the same are “founded on a constitutional provision.” In order to fill up this gap and give constitutional protection, 21st Amendment

65Nasir Iqbal, “Judge wants anti-terror law examined”, DAWN Islamabad, January 25, 2015, p. 1 and 5. 6618th Amendment which modified 97 Articles of the Constitution was passed on 19th day of April 2010. 67Decision of the Supreme Court on 18th and 21st Amendment of 5 August 2015, entitled as “District Bar Association Rawalpindi v Federation of Pakistan” is reported at PLD 2015 SC 401. 68Ibid. Para 73 of judgment of the Chief Justice. 69“Abdus Sattar Khan Niazi v the Crown” (PLD 1954 FC 187); “Darvesh M. Arbey v Federation of Pakistan” (PLD 1977 Lahore 846 and PLD 1980 Lahore 206); “Niaz Ahmed khan v Province of Sindh” (PLD 1977 Karachi 604); “Sh Liaquat Hussain v Federation of Pakistan” (PLD 1999 SC 504); “Brig (Retd) F. B. Ali v the State” (PLD 1975 SC 506). 234

was introduced, but it failed to serve the purpose.70 He also refuted the contention of the learned Attorney General that “Pakistan Army (Amendment) Act (II of) 2015” had preceded 21st Amendment and had become into existence at zero hour on 7 January 2015, on the basis of Section 5(3) of “the General Clauses Act 1897”; hence the former was protected by latter though both were passed by the Parliament and assented by the President the same date.71 He concluded that in the cases of Acts No. I and II of 2015, a contrary intention, as envisaged in section 5(3) ibid was evident when it had been provided therein that the said enactments would “come into force at once.” The words employed in Article 75(3) of the Constitution that a bill shall become a law or an Act of Parliament after the same is assented by the President suggest that neither Act II was existing or in force when Act I was passed/assented nor the later could extend any protection or immunity to the former from application or enforcement of fundamental rights. He also ruled that if contention of the learned Attorney General is accepted, it would offend the provisions of Article 12(1) which ensures protection against retrospective punishment.72 Thus a criminal law passed at 1100 hours, if given effect at zero hour the same day, would deemed to have given retrospective effect to the offence committed during the last eleven hours, which would violate the fundamental right under Article 12(I). He asserted that even if accepted for the sake of argument that “Pakistan Army (Amendment) Act 2015” had been validly included in the 1st Schedule, “Pakistan Army (Amendment) Ordinance 2015” cannot be deemed to be have ipso facto included in the 1st Schedule and amended the Constitution.He reiterated that both “Pakistan Army (Amendment) Act 2015 and Pakistan Army (Amendment) Ordinance 2015” are two different enactments and passed by a simple majority in separate sittings. If it is presumed that the ibid ordinance having become part of the “Pakistan Army Act 1952” shall stand included in the 1st Schedule, it would amount to amend the constitution by a simple majority without following the procedure given in Article 238 and 239 of the Constitution.73 Although Justice Khosa, while interpreting various provisions of the constitution and law relevant thereto returned a verdict against “the Pakistan Army (Amendment) Act, 2015” and declared 21st

70District Bar Association Rawalpindi case op. cit., Paras 60-62 of Justice Khosa’s judgment. 71Section 5(3) ibid reads:- “Unless the contrary is expressed, a Central Act or Regulation shall be construed as coming into operation immediately on the expiration of the day preceding its commencement”. 72District Bar Association Rawalpindi Case op. cit., Paras 65-69 of Justice Khosa’s judgment. 73Ibid,Paras 58, 65-69, 73 of Justice Khosa’s judgment. In para 70 of his judgment, he mentioned that the learned Attorney General, on his query on the issue, did not utter even a single word and kept quite. 235

Amendment as of no legal effect, yet he lost sight of intent of the Legislature i.e. to bring a specific group of terrorists within the pale of Pakistan Army Act and try them by courts martial; and given constitutional and legal protection to their trials, convictions, sentence and executions as well as any act or thing done to advance the cause of this intent, which he had recognized while rejecting the theory of basic structure.

Justice Khosa also drew a distinction between war and insurrection, by suggesting that external aggression or war and insurrection or rebellion are synonyms. War or insurrection refers to an armed struggle between two nations or states, may be exercising defecto authority over some territory and commanding army; while rebellion or insurrection does not constitute war in the legal parlance as it refers to an open and active opposition of citizens to their government; and a major insurrection may be recognized as a “civil war” unlike the external aggression which is regarded as a “public war.” He regarded use of the word “war on terrorism” and interpretation by the Attorney General of the word ‘war’ used in Article 245 (I) on the existing insurrection in the country as a non-specific, generic, journalistic and political use of the word.74 He concluded that in the absence of any direction by the Federal Government to the Pakistan Army to establish military courts for trial of civilians in the backdrop of “threat of war” contemplated under Article 245 (I), the Army could not try the civilians.75 He quoted verse 8 of Surah Al Maedah, Chapter 6, of the Holy Qur’aan76 and concluded that Allah Almighty has based balance of the universe on justice, which should not be upset to confront the temporary wave of terrorism. He also referred to the famous saying of Hazrat Ali (May Allah be pleased by with him) that a society can live with zulm (sic), which in fact is kufr i.e. under the reins of non-Muslims rulers but it cannot survive with injustice (zulm).77

Justice Dost Muhammad Khan, relying on verdict of the Supreme Court in Sindh High Court Bar Association and Nadeem Ahmad Advocate cases and exercising power of judicial review declared Article 175A, 21st Amendment and Pakistan Army (Amendment)

74Ibid,Para 62 of of Justice Khosa’s judgment. In order to draw the said distinction, he placed reliance on Corpus Juris Secundum and American Jurisprudence (2nd Edition) 1975. 75Ibid, Para62 of Justice Khosa’s judgment. 76Ibid. Translation by Ahmad Ali of the said verse reads:- “O you who believe, stand up as witnesses for God in all fairness, and do not let the hatred of a people deviate you from justice. Be just: This is closest to piety; and beware of God. Surely God is aware of all you do.” 77Ibid, Para 70 of Justice Khosa’s judgment. 236

Act 2015, beyond the authority of Constitution, inter alia, on the ground that formation of “Parliamentary Committee” to recommend/select the judges was itself against the principle of tricotomy of power and independence of judiciary.78 He validated requisition of the Armed Forces and its extension under Article 245 to counter the menace of brutal militancy.79 He cherished that during the short debate in the Parliament; no Parliamentarian attributed any omission or laxity of judiciary to meet the challenges of terrorism but lamented the government for not enhancing capacity and skill of the judicial stakeholders.80 He assumed that the trials of civilians by the military courts were conducted summarily and in secrecy where minimum standards of justice and due process were violated, because the Attorney General did not produce trial proceedings of the six convicts whose death penalties had been held in abeyance by the Supreme Court.81 He professed that “21st Amendment and Pakistan Army (Amendment) Act 2015”, are “imposed or coerced legislation and superimposed on the Parliament” as the same had been hurriedly passed by the members of the Parliament as a matter of party policy and apprehending fear of disqualification in terms of Article 63A of the Constitution. He opined that in the absence of any notification under Article 247(3), the said Act and Amendment shall not apply in FATA or PATA.82

5.7.4 Analysis and Significance of Supreme Court Judgment for Criminal Justice in Pakistan

The amendments created an exception to the enforcement of fundamental rights and Article 8 of the Constitution as well as with respect to the application of “the Pakistan Army Act 1952, Pakistan Air Force Act 1954, Pakistan Navy Ordinance 1961, and Protection of Pakistan Act 2014.” Similarly, Article 175 which deals with the establishment and independence of judiciary; and declares that it shall be progressively separated from the executive was amended, to create pace for courts martial, despite being part of the executive,

78“SHBA v Federation of Pakistan” (PLD 2009 SC 879), “Nadeem Ahmad Advocate v Federation of Pakistan” (PLD 2010 SC 1165), which had submerged the doctrine of necessity and recognized exercise of judicial review. Also see Paras 22, 24, 28-33, 52 of Justice Dost Muhammad’s judgment. 79Ibid, Para 43 of Justice Dost Muhammad’s judgment. 80Ibid, Paras 47-49 of Justice Dost Muhammad’s judgment. 81Ibid, Para 49 of Justice Dost Muhammad’s judgment. 82Ibid, Paras 54-55 and 62of Justice Dost Muhammad’s judgment. However, such notifications are available on record in the form of Statutory Notification (SRO) 151(I)/2015 of 13th February 2015 and Govt of KP, Home and Tribal Affairs Department, Peshawar, Notification No SO(Judi)/HD/9-1/2014 dated 26 Mar 2015; whereby application of “the Pakistan Army (Amendment) Act 2015” was also extended to FATA and PATA. 237

to try terrorism offences committed in the name of religion or a sect. The effect of the said amendment is that any person, wherever he may be, who is accused of committing any offence mentioned in Section 2 (1) (d) (iii) and (iv) of the PAA including the offences of similar and extended nature mentioned in the schedule of the Protection of Pakistan Act 2014, as amended, shall become subject to the PAA and be tried by court martial; provided he had committed the said offences in the name of religion or a sect and claims or is known to belong to any terrorist group using the name of religion or sect at the material time. However, for his subjection and trial by court martial, two conditions are precedent; firstly, the accused must claim or must be known to belong to any terrorist group or organization which is formed in or using the name of religion or sect and secondly, the Federal Government must sanction, either directly or through transfer of a case already subjudice, trial of such an accused by court martial. If the said prerequisites are fulfilled, the accused may be tried and punished with any sentence provided under Section 60 of the PAA or “any other law for the time being in force.”

The amendment was strange and ambiguous, may be designed to frustrate the objectives of amendment. The amendment created a class within ‘terrorism’ i.e. terrorism in the name of religion or sect and terrorism in all other forms and manifestations. However, who would determine if the offence was committed in the name of religion or sect or otherwise, if the accused refuses to belong to any religion or sect or he is not famous as such; and what is the justification for not bringing the offences of terrorism committed other than the name of religion or sect. This classification irked the religious parties but counseled all other ethnic, tribal or criminal groups engaged in mass-scale terrorism; hence compromised the guarantee of equality before law under Article 25 of the constitution. If the person accused of attack on Quaid-e-Azam Residency in Ziarat, leader or persons of the Sunni Tehreek in Karachi or attack on the Rangers, Police, LEAs and killing their officials in Karachi are recognized to belong to some ethnic or linguistic group and/or have been abetted by the foreign agencies, what may be the rationale for segregating them and trying them under the ATCs, whose alleged inefficient performance and incompetence to deliver justice had been made the basis of the said amendments. Similarly, the sanction of the Federal Government curtailed the initiative and independence of the Army to apprehend, prosecute and try the accused, irrespective of any handicap or limitations. The procedure for sanction

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on the one side may result into delayed prosecution/initiation of trials and on the other hand may oblige the Federal Government to exercise discretion.83 This perception has been ruled out by the Supreme Court when it declared that the trial of civilians committing acts of terrorism in the name of religion or sect was based on intelligible criteria and valid classification, as the insurgency, lawlessness and challenge to the writ of government was caused by the said terrorists.84

The amendment may also be examined on the ground that it did not have any retrospective effect and the provisions of the PAA had to take the requisite effect on the 7th day of January 2015 for a period of two years i.e. until 6 January 2017. The amendment did not provide for retrospective effect as in other laws/amendments. For example: “The Pakistan Army (Amendment) Ordinance 2007”85 was given retrospective effect from the 1st day of January 2003; “Actions (in Aid of Civil Power) Regulation 2011 for FATA” was made effective from 1st day of February 2008. It was argued that this omission or commission would remain shrouded with mystery whether the Federal Government intentionally intended to keep this ambiguity to prevail so that the operation of the amended PAA is not extended to the persons already in custody or if so tried by courts martial on the manifest/perceived pressure of the Army, they find a way out to challenge their conviction, sentence and escape punishment through a judicial/legal process. On the other hand, it was also contended that since the issue of missing persons and internment had been legally resolved in terms of “Actions (in Aid of Civil Power) Regulations 2011 for FATA and PATA” as well as “Protection of Pakistan Act 2014”, the Government intelligibly did not touch the issue of its retrospectivity so that the prolonged custody and trial of such persons or ‘transfer’ of their cases does not attract attention of the media and the legal fraternity. However, subsequent promulgation of the Pakistan Army (Amendment) Act (19 of 17 November) 2015” suggested that the government had to reconcile this omission or commission by legitimizing arrests, detentions and custody of the alleged terrorists and all acts done by the Armed Forces and LEAs in good faith.

83An exclusive interview dated February 25, 2015 with Brigadier Muhammad Amin (Retired), Former Judge Advocate General Pakistan Army. 84This is the majority view which has not been conceded by Justice Qazi Faez Isa, who ruled that the classification is not based on intelligible criteria. 85PLD 2009 (Supp I) Central Statutes 18. 239

This split judgment also contains rejoinders by the honourable judges against each other to justify their point of view and rebut or corroborate the verdict returned by the others. For example:- The Note by Justice Umar Ata Bandiyal is a rebuttal of the threat or caution made by Justice Asif SaeedKhosa with respect to the anticipated claim of rights by the terrorist militants as prisoners of war under the Geneva Conventions86 if the notion of imminent war or threat of war is accepted. Justice Bandiyal having analyzed the 3rd and 4th Geneva Conventions, being relevant to the insurgency in Pakistan, ruled out possibility of any claim for extra-ordinary protection under the said laws, except right to regular and fair trial, as the conditions laid therein do not attract to the terrorist militants subjected to the trials by courts martial under the Pakistan Army (Amendment) Act 2015. He justified trials of belligerent civilians, describing them unlawful combatants, under the Pakistan Army (Amendment) Act 2015, being the law of war and Pakistan being in the state of war declared by the terrorist militants.87 This judgment has opened up vistas of intellect, reasoning and interpretation of the Constitution while reconciling its different provisions, surrendering to the will of the people of Pakistan for peace, security and integrity of the nation. The minority views shall always be respected and remain a source of beacon but the decision of the majority shall prevail; and shall be binding on all courts in Pakistan which also include courts martial convened under the Pakistan Army (Amendment) Act 2015 or Pakistan Army Act 1952. Compliance of the Supreme Court ruling shall not be limited to courts but all executive and judicial authorities shall be bound by it.88

The decision of the Supreme Court in 21st Constitutional Amendment case is a land mark event in the constitutional ; which may have far reaching effects on the criminal justice system in Pakistan. It has cleared the mist on many ambiguous issues which were lurking under the carpet since long. This decision has paved the path for a sovereign Parliament, independent Supreme Court and a stable government for prosperous Pakistan. Its implications on the criminal justice may be summarized, amongst others, in the following terms:-

86For discussion relating to POWs, see Justice Dr. Nasim Hassan Shah, “Question of Prisoners of War under the Geneva Conventions” (PLD 1973 Journal 38-46)., 87Paras 18, 20-23 and 26 of Justice Bandiyal’s judgment. 88Article 189 and 90 of the Constitution. 240

a. The Supreme Court has impliedly recognized the principles of saluspopuliestsupremalex i.e. welfare of the people is the highest law, and derogation by legitimizing subjection and trials by courts martial of civilians accused of terrorism related offences.89

b. “Parliamentary supremacy” has been recognized with the right of the Supreme Court as custodian of the Constitution and final arbiter in any constitutional and legal controversy, through the exercise of judicial review power.

c. Despite severe criticism and pressure by the international community and human rights organizations, the Supreme Court did not strike down “21st Amendment or Pakistan Army (Amendment) Act 2015”; and thereby granted approval for trial of the civilians involved in terrorism by the courts martial.

d. Acceptance of military courts or courts martial has impliedly given credence to the view that current judicial system is irredeemable and incapable of fighting terrorism; hence needs to be reformed for the better.

e. Military courts, though not falling directly in the hierarchy of courts recognized in Article 175 of the Constitution have been accepted as an independent forum of trial even for the civilians with certain limitations.

f. Although the right to judicial review has been granted only in cases of corum non judice, without jurisdiction and mala fide yet practically each case tried by courts martial may be contested for judicial review on these grounds. This right has brought the courts martial at par with the ordinary courts, thus refuted allegations by the human rights organizations.

g. Classification of terrorists on the basis of religion and sect has been recognized and based on intelligible criterion, as the imminent threat to the security of Pakistan is imposed by the said terrorists.

89For detail of “supremalex” principle, see American Jurisprudence, 2nd Edition (1998), Vol 16A, Sections 322 and 323, p. 259, as cited in “Tikka Iqbal Muhammad Khan case” (PLD 2008 SC 178, pp.271-271). 241

h. Since the offences allegedly committed by the terrorists have direct nexus with the defence and security of Pakistan; hence justiciable by the courts martial.

i. The Supreme Court ruled that standard of proof required for conviction and due process shall not be compromised.

j. Maintenance of law and order is domain of the executive, while ensuring that the order is maintained through proper application of law and no injustice is caused in the pursuit of peace lies within the precinct of the judiciary, cautioned justice Khosa.

k. The military has been obliged to uphold confidence of the nation including the two main organs of the state i.e. Legislature and Judiciary. Thus while investigating cases and conducting trials, military officials are to ensure the cardinal principles of due process, fair trial and rule of law, which are abundantly enshrined in “Pakistan Army Act 1952”, lest the judicial review play the decisive role.

l. The decision provided a supportive judicial organ and an ‘alternative judicial model’ which shall be readily available after test trial for a re-launch in any other eventuality faced by the judiciary even after the lapse of two years period of the sunset.

m. The need for security of the ATC judges, witnesses, prosecutors, investigating officers, counsels etc has been re-emphasized.

5.8 Conclusion The history of Pakistan is replete with instances where the governments amended the constitution and the military laws, more specifically the Pakistan Army Act 1952, so as to try and punish the civilians by courts martial or military courts. In most of the cases, such amendments did not exclude jurisdiction of the ordinary or special criminal courts over the civilians but granted concurrent jurisdiction to the courts martial or military courts, as the case may be. All democratic, autocratic and dictatorial governments extended jurisdiction of the military courts or courts martial to neutralize political and opposite forces who

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challenged their writ or intended to destabilize their rule or overthrow the governments. On the other hand, the judiciary regarded extension of jurisdiction of courts martial or military courts to try the civilians as violation of the fundamental rights and independence of judiciary. However, where such jurisdiction was extended through constitutional amendments, the judiciary generally exercised restraint and decided the issues on case to case basis. The latest example of such restraint has been experienced in the District Bar Association Rawalpindi Case.90 The Supreme Court not only validated the trials by courts martial of the civilians accused of terrorism in the name of religion or sect but also expressed solidarity with the government and Armed Forces who are fighting against the menace of terrorism. This verdict of the apex court impliedly is a censure and lack of confidence over the subordinate judiciary especially the criminal courts including the ATCs and special courts of criminal jurisdiction. These courts could not deliver due to their incapacity, incompetence, insecurity, indifferent attitude and lack of cooperation from other organs of the criminal justice system. It also recognized role of the courts martial in the administration of justice in the extra-ordinary circumstances wherein the monsters of terrorism had waged war against the nation and made the entire nation hostage of fear, uncertainty and insecurity.

In the given scenario, the existing judicial system is required to be brought at par with the countries which have successfully fought terrorism through the efficient administration of criminal justice. Anti-terrorist courts are required to stream line and expedite their procedures. Regular meetings of the judicial committees may be convened to resolve the hurdles and intricacies in the trials by the Anti-terrorist courts. Courts martial and the Anti- terrorist courts may work in sink for the common goal of elimination of terrorism through justice. Nevertheless, the desired objectives may be achieved by reconciling and converting the theory and the provisions of law into action without which no law may deliver the desired dividends. The military judges are to falsify the perception that they are conducting summary trials of terrorists, without following due process of law. Similarly, the government and, in cases of its refusal, the judiciary itself is to ensure its security by calling the Armed Forces. In this regard, the judiciary may draw analogy from the maxim “equity helps the vigilant and not the indolent”; otherwise the inference would be that the judiciary is satisfied by passing

90PLD 2015 SC 401. 243

the bug on the government. If the three organs of criminal justice system, i.e. police along with investigation, both the civil and military judges are assissted by the lawyers of patriotic approach and following professional ethics, the improvement shall be manifest. If they strive in their respective domain, by implementing the provisions of “the Anti-terrorism Act 1997, Actions (in Aid of Civil Power) Regulations 2011 for FATA and PATA, Investigation for Fair Trial Act 2013, Protection of Pakistan Act 2014, the Pakistan Army Act 1952”, guidelines given in Mehram Ali and Sh Laiquat Hussain cases as well as the revised “Judicial Policy 2009”,91 it is hoped that the fight against terrorism may lead to a success in the given time and span. Obviously the prisons shall also be required to perform their duty of correction, rehabilitation and execution of sentences following the process of law instead of frustrating the law and the procedures for the benefit of the powerful and to the annoyance of the weak.

91PLD 2010 Journal 7.

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CHAPTER 6 DISCUSSION AND ANALYSIS

This chapter intends to discuss, analyze and resolve different research questions, which are offshoots of the subjects, information and data delineated in chapters 2 to 6. The discussion has been split in the sequence of the chapters for comprehensive analysis and understanding. Chapter 2 mainly raises two research questions i.e. is WOT justified on the touchstone of realism and is American rationale for initiating WOT and pursuit of military in Pakistan justifiable? In order to resolve these two questions, salient of the realism theory have already been discussed in chapter 2. Chapter 3 delineates effects of WOT on criminal justice system in Pakistan, besides its implications for internal security, resurgence of militancy, economic and political debacles and issues relating to violation of human rights, as the same have nexus with the national security and criminal justice of Pakistan. Chapter 4 discusses parameters and dimensions of the criminal justice system of Pakistan with specific reference to terrorism. In this context, role of police, criminal courts and prisons, nature and extent of crimes or offences as acts of terrorism and terrorists as criminals has also been discussed. The chapter also explores different theories of crimes and punishments, application of municipal and natural laws as well as international legal standards in criminal and terrorism trials in Pakistan. The discussion in chapter 4 raises a research question i.e. did the judicial organs play their role in combating terrorism and crime? Chapter 5 examines historical development of security and anti-terrorism legislation in Pakistan and articulates substance of the relevant laws, in three phases viz: post independence to separation of East Pakistan (1947- 1971), emergence of new Pakistan to ouster of Benazir Bhutto (1972- 1996), and Nawaz Sharif and President General Pervez Musharraf regimes in the pre and post 9/11 tragedy (1997-2015). The study in chapter 5 advances three issues i.e. what is the effect of different amendments introduced in the security and anti-terrorism laws of Pakistan after 9/11? Did the amendments introduced in the security and anti-terrorism laws of Pakistan after 9/11 improve, complicate or compromise criminal justice system in Pakistan? And do the legislations introduced after 9/11 conform or violate international legal standards? Chapter 6 deals with trials of civilians by military courts or courts martial in historical perspective and their role in criminal justice system of Pakistan. The chapter explores the role and necessity of courts martial in the historical and current perspectives, especially in the 245

aftermath of 21st Amendment. Contours of the Supreme Court judgment in 21st Amendment case and its effects on the criminal justice have also been discussed. The chapter nurtures two research questions i.e. do the trials of civilians before courts martial offend human rights? Are military courts an alternative mechanism for criminal administration of justice in terrorism cases? The said issues are being discussed in the succeeding paragraphs in the chronological sequence.

6.1 Is WOT Justified on the Touchstone of Realism? Analyzing on the touchstone of realism, the edict of Osama Bin Laden and address/declaration of President Bush when juxtaposed do not suggest that Osama Bin Laden had initiated any war against any country other than USA whom he considered to be infidel who had enslaved Arab rulers and grabbed the resources of Muslim Ummah. On the other hand, Bush followed the footsteps of Athenian envoys who offered Melians either to choose destruction or surrender and suggested them to forget any appeal to justice but only think of their survival. Similarly, US did not listen any logic or enter into negotiations or dialogue to find peaceful resolution of the dispute and punish the abettors and accomplices of 9/11 tragedy in accordance with the UN Charter and international norms of justice. American grievances and challenge to her sovereignty though genuinely justified, but the language used by Mr. Bush in his declaration did not leave any room for peaceful settlement of the issue. He directly charged Afghanistan and Pakistan for their support to Al-Qaeda and threatened them of grave consequences, if they did not respond to its demands. This is the crux of realism wherein ego, self-interests, anarchy and lust for unbridled power determine rules of the game. In fact, US was following the deterrence and realist approaches1 and pursuing its own agenda for a global hegemonic political order with America as the sole super power and arbiter in international disputes. This assertion finds corroboration from the pre- conceived Bush Doctrine which in its own discretion declared who were terrorists, rogue states or axis of evil possessing WMD and declared WOT. This doctrine was against the policy of Clinton Administration, which aimed at self-restraint and specific targeted actions

1For deterrence theory, see “Deterrence, the Spiral Model, and Intentions of the Adversary” in Robert Jervis, Perception and Misperceptions in International Politics (New Jersey: Princeton University Press, 1976) pp. 58- 61. For realist theories, see John J. Mearsheimer, “Realism, the Real World and the Academy”, in Michael Brecher & Frank, Realism and Institutionalism Studies, (Ann Arbor: The University of Michigan Press, 2000), pp. 23-33. 246

to save the world from disaster, and had the manifest goals of the Project for New American Century. It may be appreciated that American hegemonic designs are not a recent phenomenon; rather these are deep rooted and even enshrined in the preamble of her constitution of 1787, which speaks of their own liberty and common defence, rather than international peace and harmony, which are the predominant will of the people of other nation-states including Pakistan and the UN Charter. America preaches and advocates institutionalism and democratic peace theory but practices realism. The history reveals that America stands prominent amongst the nations who inspired by human instinct of revenge surpassed their suppression, gained power and in a revengeful pursuit dominated the world through bloodshed and carnage on one or the other pretext to maintain its supremacy, may that be at the cost of independence and sovereignty of other nations. America is considered to have emerged as a symbol of terror, which may exploit poverty, ignite feelings of hatred amongst various factions of a society or nation leading to internal disturbances, carnage and challenge the sovereignty of that nation as well as thrust the war on it. Americans are guided by their desire to remain dominant especially after the end of cold war and emergence of the uni-polar world and the manifest preamble of their constitution, may that be at the cost of subverting possible peaceful resolution of international disputes, resorting to bloodshed and intruding upon sovereignty of any nation. After the cold war era, US has also managed exorbitant media support and learnt the art of blaming the others for her overt/covert acts against the independence and sovereignty of the nation who is the subject of American suppression. Afghanistan, Iraq, Egypt, Syria and even Pakistan, who has been graded as a terrorist state by and on the behest of America, are the living examples of American interference, atrocity and hegemony in the recent and current history.

Pakistan despite having declared in the preamble and Article 40 of her constitution the manifest desire and resolve to promote international peace and security, foster good will and friendly relations among all nations, and encourage settlement of international disputes by peaceful means has been portrayed as a terrorist and failed state. This is so because Pakistan respect the liberty of others while contributing to the happiness of humanity, which instead of its strength, is regarded its weakness; political institutions in Pakistan are weak to the extent that President Musharraf even did not consider it desirable to have recourse to the Parliament before he decided to respond to the call of Collin Powel for unconditional

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cooperation in the WOT. It is in this backdrop and being a weaker nation confronted with serious threats from within and without that Pakistan submitted to the American will and compromised on American pursuits of militants in Pakistan whereas America continued to toe the doctrine of common defence and domestic tranquility which is associated with launching offensives and challenging the sovereignty of other nations, may that be at the cost of violation of United Nations Charter or managing UN resolutions2 in her favour and against the country who might cause any potential or hypothetical challenge to the American interests. The degree and frequency of such tactics and violations by America multiplied after the collapse of Soviet Unions and the incident of 9/11.

In the given circumstances, the desire for peaceful resolution of the issue and bringing the attackers or the abettors of 9/11 tragedy to justice in accordance with international law was only a wishful thinking, as America never wanted to punish the wrongdoers with a commensurating blow or exercise the right of self defence but eliminate and ruin them to the hilt, besides pursuing her hegemonic agenda to neutralize China, have check on Iranian nuclear program which stands still after Iran was forced to conclude an agreement with IAEA/UN3 and even contain and force Pakistan to abandon her nuclear program and missile technological advancement. Thus the American stance that her campaign in Afghanistan was an exclusive war against terrorism and the enemies of humanity will remain a doubtful proposition, in the wake of any independent corroborative evidence on this count. Rather declaration of WOT and American invasion in Afghanistan and Iraq were carried out in flagrant disregard to UN Charter and based on series of false claims propagated through media support, so as to pursue own interests and satisfy the ego hurt by 9/11 attacks, demonstrate her strength to eliminate the rivals and ensure absolute balance of power in her favour. This was all in line with the Project for the New American Century and for the advancement of its objectives, which are predominantly characterized by realism.

2 For example: UN Security Council Resolution No. 1269, 1373, 1535, 1540, 1625, 1805 and 1963. 3Report (Gov/2014/11 dated February 20, 2014) on “Implementation of the NPT Safeguards Agreement and relevant provisions of Security Council Resolution in the Islamic Republic of Iran” available at Thinkprogress.org/wp-content/uploads/2014/02/iaea-iranreport-02202014/pdf, accessed on April 14, 2014. 248

6.2 Is US Rationale for Initiating WOT and Pursuit of Militancy in Pakistan Justifiable?

A critical appreciation of the events leading to the WOT suggests that it was more characterized by retributive justice rather than a just cause war which has ethical grounds, ethical conduct and ethical post-war settlement. It does not fulfill the criterion of rational and prudent insight, as during the course of this war and pursuit of militancy, neither use of arms was restrained nor was it made humane or directed towards lasting peace. Rather indiscriminate mass destructive aerial bombings and use of heavy weapons causing irreparable loss to human and material resources were used till the leadership and government in Afghanistan and Iraq were dethroned and eliminated. This is was done in the name and pursuit of democratic regime change- a responsibility exclusively bestowed upon itself and assumed by America; while just war theory declares that the benefits intended to be achieved must outweigh the likely loss4 and cost; and that use of arms or force should be minimum5 and not excessive. America also denied utilizing alternative means to effective self defence or averting WOT, as war should only be waged as a last resort6 when no other alternative effective means to bring the culprits to justice or self defence is available. America’s refusal to accept Taliban’s offer of independent and fair trial for Osama Bin Laden for his alleged complicity in 9/11 attacks or his extradition negates its claim for a just WOT. Similarly, America’s denial to international law enforcement approach against the prospects of making, possessing or transferring WMD by Iraq to terrorist groups and recourse to a unilateral approach to retributive and unnatural justice, while it had the capacity to enact and enforce strategic military deterrence as an alternative, also undermined the notions of ‘responsibility to protect’ and ‘right of humanitarian intervention’,7 which became highly controversial in the wake of WOT.

4Jaggar, “What is terrorism, Why is it Wrong, and Could It Ever Be Morally Permissible?”, Journal of Social Philosophy 26, No. 2, Summer 2005, p. 214, available at http://se1.isn.ch/service engine/Files/ISN/57355/ichapter.sect 5Michael L. Gross, “Assassination and targeted Killing: Law Enforcement, Execution or Self-Defecse?”, Journal of Applied Philosophy, Volume 23, number 3, 2006, p. 325. 6Neta C. Crawford, “The Slippery Slope to Preventive War”, Ethics and International Affairs, Volume 17, Number 1, 2003, p. 31. 7“The Responsibility to Protect: Report of the International Commission on Intervention and State Sovereignty”, International Development Research Center, available at http://www.iciss.ca/pdf/Commission- Report.pdf, accessed on February 29, 2012. 249

The WOT may also be analyzed in the back drop of the hostilities between Al-Qaeda and America even before 9/11. The 1993 car bombing on the World Trade Centre, 1998 Fatwa of the World Islamic Front, 1998 bombings on American embassies in Kenya and Tanzania, 2000 bombing on the USS Cole, 1998 American bombing raid against Al-Qaeda targets in Afghanistan and indiscriminate missile attack on the Al-Shifa Pharmaceutical Factory, the leading source of Sudanese medicines allegedly linked with Al-Qaeda, may be cited as examples of such targeted hostilities, which provide just cause for self defence for both the parties, in their own estimation. Bush Administration deviated from the precedence of targeted strikes and special operations set by Clinton Administration, as Mr Bush was “tired of swatting flies.” According to Condoleezza Rice: “There is a question of whether or not you respond in a tactical sense or whether you respond in a strategic sense, whether or not you decide that you are going to respond to every attack with minimal use of military force----on a kind of tit-for-tat basis…. (or)…..not doing this tit for tat, doing this on a time of our choosing.”8

Accordingly, America waited for a time of its choosing, immediately claimed the just cause and retaliated against a covert and undefined enemy with unspecified and unlimited targets. The American rationale for WOT and pursuing militancy in states allegedly supporting and harbouring the terrorists under the Bush Doctrine, though supported by Israel, UK and but has been rejected by most of the nations including Spain, Germany and , being against the established norms of state sovereignty and moral standing of the axis of evil idea.

In the given circumstances, though America may claim to have a just cause for initiating WOT and pursuing militancy, but the same may not be termed as a sufficient cause for such a global misadventure at the cost of jeopardizing the unity, integrity and sovereignty of other states. America continued acting indiscriminately against targeted Muslim states, though some of them were not ethically its legitimate enemies, unnecessarily and disproportionately, even after its enemies had been neutralized, disarmed and punished to the hilt. Instead, this approach cropped up global terrorism and militancy in the world, integrated

8“National Commission on Terrorist Attacks Upon the United States, Testimony of National Security Advisor, Condoleezza Rice, April 8, 2004”, available at http://www.0-11commission.gov/archive/hearing 9/9- 11Commission Hearing 2004-04-08.htm, accessed on August 29, 2011. 250

disorganized militant and criminal groups, created hatred against America and compromised inter-faith harmony, giving rise to a direct animosity between Muslims and non Muslims. Therefore, by declaring WOT without identifying legitimate enemies, America committed a moral blunder and itself became an aggressor, giving just cause for the converted defender to repel in the exercise of right of self defence; and thereby jeopardizing international peace and security.

The American rationale of initiating the WOT on the authority of UN Charter and the Security Council resolutions also received legal and moral disapproval, similar to that of her just war rationale. Talking in terms of realist paradigm, the gigantic strikes of 9/11, followed by American anger, its winning capacity, manifest commitment for domestic tranquility and common defence (as reflected in the preamble of its constitution) and tacit intent for a global hegemonic order left the member states with no option except to extent sympathy and unquestionable cooperation in American pursuit as per its desire. America not only interpreted and enlarged the right of self defence as per its own convenience and intent; but also created deterrence for other states to remain indifferent of her global hegemonic strategy and balance of power designs.

American interpretation of right of self defence was not only against the recognized rules of statutory interpretation but also proved to be highly dangerous for international peace and security, as well as adversely affecting Pakistan. The interpretation that 9/11 attack by Al-Qaeda or its members was “an armed attack” by a “state”, assigned by implication the government of Afghanistan to Al-Qaeda and recognized them as a state; and consequently provided a justification for Al-Qaeda, who admittedly is neither confined into a single state nor has formed any government in any state including Afghanistan, to react in self defence against American, whose military campaign in Afghanistan may more conveniently fall within the ambit of “an armed attack” by a “state.” This notion of right of self defence, which used to be exercised with great care and caution and that too subject to approval of the UN Security Council, when exercised by America every now and then, also became a just cause for violation of international norms of peace by all and sundry.

As a consequent thereto, Al-Qaeda and Taliban used the same notion of right of self defence to justify their reprisal attacks and militancy, without any discrimination, against

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American, NATO, Afghan and Pakistan Armed Forces and innocent civilians. Taliban and Tehreek-i-Taliban (TTP), defunct Non-State Actors, exhibited alarming trends in the claim of right to self defence, when they claimed and reiterated that their suicidal attacks against the Armed Forces of Pakistan, Law-Enforcement Agencies (LEAs) and militant activities in the settled areas of Pakistan against the innocent citizenry were carried out and justified under the right of self defence.9 Israel also took refuge and legitimized Operation Cast Lead, a three-week indiscriminate attack on Gaza’s civilian infrastructure and massacre of non combatant civilians initiated on 27 December 2008, on the basis of just war philosophy and the exercise of right of self defence.10 The growing practical manifestation of this deviation from the recognized principle of refrain in international relations laid down in Article 2(4) of the UN Charter has been demonstrated by Iran in the recent history when it threatened to invade and enter its troops into Pakistan in pursuit of militants belonging to Jaish ul Adl, a recently emerged Iranian rebel group, who allegedly kidnapped five Iranian soldiers/border guards on 6 February 2014 and fled into Pakistan.11 Similar threats had also been used even by former Afghan President to attack and intrude into Pakistan in pursuit of Taliban, in the wake of their anti-Afghan government activities.12 The Indian threats of invasion into Pakistan, the former being a stronger nation than Pakistan, in the backdrop of Kashmiris’ struggle for right to self determination had been a regular feature of her diplomatic strategy, which led to wars and escalations between the two countries. But the increasing trends of threats of invasions in the name of right to self defence in the diplomatic traditions by the Non-State Actors against the established and recognized governments to demonstrate their muscles to the humiliation of such nation-states is an offshoot of the American ventures to isolate the thorns without saving the roses and nip the evil without caring for collateral damage to the neighbouring good.

9See for example: “Taliban claims responsibility for Karachi police bus attack” The Daily Dawn, February 14 2014, wherein TTP spokesperson Shahidullah Shahid reiterated “our defensive war will continue until an agreement is reached on a ceasefire”. 10Jerome Slater, “Just War Moral Philosophy and the 2008-09 Israeli Campaign in Gaza”, International Security, Vol. 37, No. 2 (Fall 2014) pp. 44-80. 11“Iran issues warning to Pakistan after abducted soldiers feared executed”, pakistannewstoday.com/iran-issues- warning-to-pakistan-after-abducted-soldier-feared-executed/, accessed on April 17, 2014; Pakistan also reacted in the same coin, which was followed by a high level meeting and formation of a joint committee to resolve the issue. Subsequently, four out of them were released on 4 April 2014 while one of them was killed; “Kidnapped Iran soldiers freed in Pakistan by militants, www.bbc.com/news/world-asia-26888975, accessed on April 17 2014. 12“Afghan President threatened to send forces into Pakistan”, The Guardian, June 15, 2008. 252

It may be recalled that exercise of right of individual or collective self defence recognized in Article 5(1) of the UN Charter is not absolute but subject to the fetters of Article 2(4) ibid and extinguishes the moment Security Council takes necessary measures to maintain international peace disrupted by challenges to the sovereignty of the state exercising such right. However, the culture cropped up after 9/11 and the ensuring American WOT is in disregard to the diplomatic norms and reliance on might is right, and to punish the wrong doers and take revenge without following the established norms of justice, equity and rule of law. This in fact is denial of diplomacy and peaceful settlement of disputes, and recognition of the notion of self-righteousness and retributive justice; which is a direct challenge to the collective wisdom of the comity of nations enshrined in the UN Charter. Pakistan has always demonstrated patience, followed the international norms and raised the issues with Afghan Government and NATO Commander in Afghanistan even after the APS and Bacha Khan University attacks on 16 December 2014 and 20 January 2016 respectively, which were directly handled and steered by TTP operatives from Afghanistan.13

The best option for America to bring the culprits to justice and maintain international peace was to have recourse to the United Nations Charter in the letter and spirit. According to the UN Charter, the member states are required to abstain from the use of force except in self defence preferably by means of collective security under Chapter VII of the UN Charter; while the Security Council is empowered to determine the existence of a threat to or breach of international peace and recommend or decide on measures to maintain or restore international peace;14 decide provisional measures and call upon the parties to comply with the same;15 get its decision implemented by employing non-forcible sanctions, including diplomatic and economic sanctions;16 and even by using the forces made available under special agreements.17 However, America did not invoke extensive powers available with the Security Council, for the universal collective security and resorted to the unilateral use of force in the name of self defence. Although there had been precedents of unilateral use of

13Baqir Sajjad Syed, “Islamabad shares attack evidence with Kabul”; Baqir Sajjad Syed and Anis Hanif, “ FO asks Kabul to stop blame game, seeks cooperation”; and Ismail Khan, “APS massacre mastermind killed in American drone strike (in Afghanistan)” DAWN Islamabad, January 22, July 10 and 12, 2016, pp. 1and 5. 14The UN Charter, Article 39. 15Ibid, Article 40. 16Ibid, Article 41. 17Ibid, Articles 42 and 43. 253

force by American and former Soviet Union but they did so by invoking ‘invitation’ to interfere from the concerned state in the name of collective security. The unilateral military actions by the former Soviet Union in Hungary and Afghanistan in 1980s by invoking ‘invitations’ from the concerned states, American invasions in Suez, Dominican Republic, Grenada, Libya etc in the name of extended notion of self defence including the protection of her nationals abroad may be cited as examples.18 However, after the end of cold war and complete solidarity demonstrated by the comity of nations with America, there was no room for such an adventure to the exclusion of the United Nations. The Security Council demonstrated great collective response through its Resolutions 1368 (on condemning the 9/11 attacks) and 1373 (which, inter alia, not only affirmed the individual and collective right of self defence of the states but also called upon the member states to criminalize various forms of terrorism, promote global cooperation and combat terrorism by working together as well as established a Counter-Terrorism Committee (CTC) to monitor its implementation). In the given circumstances, American rationales for initiating WOT and pursuit of militancy in Pakistan may not be justified on the grounds of just war theory and right of self defence.

American invasion in Afghanistan and Iraq gave a severe blow to cooperative environment in the Security Council after cold war and the solidarity expressed by the rest of the four veto powers after the 9/11 terrorist attack; and consequently other member states also started toeing their own lines. For example: America itself held off and resisted UN pressure for cease fire in South Lebanon, when hostilities broke out there in 2006, and Gaza, which was disproportionately attacked by Israel in 2009. Russia and China also exercised their prerogative in their conflicts with Georgia in 2008 and Tibet respectively; as well as maneuvered to hold in stalemate the UN actions against Burma, Zimbabwe and Sri Lanka.

Following the footsteps of American political, diplomatic and strategic support to the uprisings in Libya, Syria, Egypt etc. and her democratic regime change policy, Russia also entered its troops in Crimea on 2 March 2014, assuming “responsibility to protect” Russian- speaking populace in eastern part of Ukraine, after Pro-Moscow President Viktor Yanukovich of Ukraine was ousted and pro-Western government was installed in Ukraine

18Rosalyn Higgins, “Peace and Security Achievements and Failures”, 6 EJIL (1995) 445-460, availableat http://www.ejil.org/pdfs/6/1/1306.pdf; pp. 446, accessed on August 10, 2011. 254

capital Kiev.19 Russia vetoed UN Security Council resolution on territorial integrity of Ukraine on 15 March 2014, managed referendum in Crimea on the following day, which culminated in Russia’s annexation of Crimea. This was followed by demand of Pro-Russia Donetsk activists demanding another referendum for ‘Donetsk Republic’ before the scheduled Presidential election in Ukraine on 25 May 2014,leaving Ukraine’s government and her allies striving to retain control of rest of the eastern region of the country.20Prior to the Russian invasion in Crimea and its accession to Russia, the later had gone all out to support or muster support for President Bashar-ul-Asad of Syria to keep him in office and fight against the rebel groups supported by external powers privy to American policies. While Russia also expressed her intent to veto any move to oust him, President Bashar-ul- Asad is still in office and fighting for his survival, which lead to carnage and massacre of hundreds of thousands of civilians, militants and soldiers.21 Russia did not restrict itself to the political interference in Syria but factually intruded in Syria through continuous airstrikes in support of President Bashar and against the anti-Bashar militants including ISIS. Russian military campaign in Syria during September-December 2015 is said to have killed hundreds of innocent civilians and may constitute war crimes.22 This re-emerging trend whereby sensitive issues were kept aside and activities of the Security Council on important issues were rendered nugatory, besides intruding upon sovereignty, independence and territorial integrity of other nation-states by American and Russia, is alarming and indicates growing distrust among the five veto powers with re-assertiveness of Russia and rise of politically motivated China with sustainable growth rate of 8-9 percentage and possessing

19Peter Apps, “Ukraine crisis gives Nato, West no good options”; “Russian troops flood into Crimea”; Masood Haider, “Echoes of cold war at UN meeting on Ukraine” and “US tries to counter Russia with aid to Ukraine”, DAWN Islamabad, March 4 and 4, 2014, pp. 13, 14and 16; 20“Security Council fails to adopt text urging member states not to recognize planned 16 March referendum in Ukraine’s Crimea region” Security Council, 7138th Meeting (AM) – SC/11319; However, UN General Assembly adopted Resolution 11493 (dated April 9, 2014) on “Territorial integrity of Ukraine”, Resolution adopted by the General Assembly on 27 March 2014 (Sixty-eighth session). “US Warns Russian of tougher economic sanctions” and “Ukraine struggles to control eastern parts”, The Daily DAWN, April 9 and 13, 2014, pp. 12, 14 and 16. 21“Syrian Army advancing on rebel town near Lebanon”, The Dailly DAWN, March 5, 2014, p. 14. 22Amnesty International also accused Russia of using the banned “cluster munitions and unguided bombs” against civilians including children and women in the populated areas. The ratio of killings was 200 civilians versus a dozen militants in Homb, Idlib and Aleppa provinces. There are many other incidents of similar nature; but Russia denies such reports. See “Russian raids in Syria may amount to war crimes: Amnesty”, The Daily DAWN, December 24, 2015, p. 14. 255

intercontinental missiles to hit any American target;23 which may jeopardize the sanctity and solidarity of the Security Council minted after the cold war.

6.3 Did the Judicial Organs Play their Role in Combating Terrorism and Crime?

The role of judicial organs of the state in combating terrorism and crimes has always been a matter of controversy, criticism and blame game. Each organ tries to take credit for the success and achievements but attempts to shift the burden of any failure or poor performance on the other. However, the important aspect to realize is that criminal judicial system is a whole; while police, LEAs, prosecution, lawyers, courts and prisons are integral parts of this whole. Failure or weakness of one organ or agency may result into failure of the other organs and ultimate collapse of the whole system. Deteriorated performance of the judicial organs became more manifest during WOT. Chief Justice of Pakistan, Justice Irshad Hasan Khan observed weakness of the criminal justice system and suggested remedial measures in the following terms:-

a. Writing of police dairies (zimnis) on numbered pages rather than on loose sheets and submitting the FIRs and zimnis to the concerned Superintendent of Police (SP).24

b. Submission of challans within the stipulated period of 14 days and disciplinary actions against investigating officer responsible for defective or mala fide investigations. Federal and Provincial Committees headed by Secretary Interior and respective Home Secretaries with IGs/DIGs and others as members of the committee to hold monthly meetings to monitor progress and ensure compliance.25

c. Establishment of prisons in the newly created districts so as to ensure safe, timely and convenient production of the accused in the courts.26

23David Hannay, “Effectiveness and Ineffectiveness of the UN Security Council in the Last Twenty Years: A European Perspective” (Documenti IAI 09/28-November 2009), pp. 5-6, available at http://www.iai.it/pdf/DocIAI/iai0928.pdf, accessed on February 29, 2012. 24 Suo Moto Case No.3 of 2001 decided on 10 August 2001 (PLD 2001 SC 1041, p.1046) 25 Ibid, pp. 1045-1046 26 Ibid, pp. 1044. 256

d. Proper maintenance of death cells and construction of separate cells for juveniles and women and ensurance of their wellbeing/health.27

The above shortcomings were also observed and remedies suggested in the National Judicial Policy 2009.28 In order to dilate upon the subject research question, it is important to refer to the Policy,which provided guiding principles for different organs of the criminal justice system so that they play an effective role in building a scenario for peace through justice in Pakistan.29 Failure and inefficiency of different organs of the judicial system is inherently reflected in the said policy. It may be recapitulated that all executive and judicial authorities are subservient to the Supreme Court and supposed to yield to its commandments. National Judicial Policy Making Committee (NJPMC),30 as charged with preparation of judicial policy for all subordinate courts and tribunals, and its implementation, after exhaustive session, inputs and discussions with all the stakeholders, presented the Judicial Policy on 24 October 2009. The committee highlighted that a total of 172552 cases were subjudice before the superior judiciary; while 1395206 cases were pending adjudication in the subordinate judiciary. In order to ensure swift disposal of criminal cases, the committee, amongst others, suggested following recommendations:-

a. The process of bails be relaxed and, being a statutory right of accused, bails be granted in terms of CrPC Sections 496 and 497, within 3-7 days at all tiers.

b. In case of refusal of bail, the case be decided swiftly to avoid application for cancellation of bail, which should also be decided by the High Court within 15 days.

c. Challan/police report be submitted within 14 days as required under CrPC Section 173 and as directed in Hakeem Mumtaz Ahmed v State (PLD 2002 SC

27 Ibid, p. 1048. 28 Available at PLD 2010 Journal 7-51. The policy was based on the input from 284 participants representing all organs of the judicial system from top to bottom, in the first conference on the implementation of the National Judicial Policy. 29Islam and justice are dissoluble, as the foundation of Islam is based on justice. Peace through justice or peace through Islam have the same connotation. See Justice Hamoodur Rehman, “Peace through Religion” (PLD 1977 Journal 238-252) 30It is a statutory body with Chief Justice of Pakistan as its Chairman and Chief Justices of the Federal Shariat Court and the five High Courts as its members; while Secretary Law and Justice Commission is its designated secretary. 257

590); failing which action be taken against the concerned police/investigation officer. d. District Police Officers (DPOs) to ensure completion of investigation and submission of challan within 14 days; and treat such Station House Officers (SHOs)/investigating officers as inefficient in terms of Police Order 2002. e. District and Sessions Judges to visit the prisons on monthly basis to hear complaints of prisoners and address their grievances as well as coordinate their production before the courts on due date. f. All criminal cases punishable with imprisonment upto 7 years be decided within 6 months; and those which involve imprisonment beyond 7 years and death be decided within one year. g. In order to ensure timely disposal of cases, on receipt of challan, the court shall fix date of hearing and issue production warrants; ensure that on first appearance that the accused is provided with all relevant statements and documents required under CrPC Section 241 C and 265 C; he is cautioned to secure attendance of his counsel on the next date of hearing; and the investigation officer to ensure availability of all witnesses. If no case is made out, the accused be acquitted under CrPC Section 249-A or 295K. h. The court to avoid unnecessary adjournmentsand take strict action against witnesses or parties, lawyers, police, prisons causing delay in conduct of trial. i. Preventive detention cases under CrPC Section 107 read with Section 157 be decided at the earliest in terms of CrPC Sections 112, 117 and 118. j. In case of dishonest investigation, misuse of authority, negligence and inefficiency, the complaint may be made to Police Complaint Authorities and District Public Safety Commission. Such police officer, if found by the court to have intentionally delayed forwarding the case to the court, may be awarded imprisonment upto one year in terms of Article 157 of the Police Order 2002.

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k. No judicial remand be granted unless the accused is produced before the court.

l. List of advocates be readily available with the Chairman Legal Aid Committee for the concerned Bar Council for representing the accused, who cannot afford a counsel; and necessary funds be allocated for payment of fees to such advocates under the Legal Practitioners and Bar Council Act 1973.

m. The bar councils are obliged to provide free legal aid to the poor and destitute litigants; and allocate funds for the said purpose.31

n. Heavy costs, compensations and penalties be imposed under CrPC Section 250 for false and frivolous litigations as well as wasting time of the court who, while acquitting the accused, may order the complainant to compensate the accused with an amount not exceeding rupees 25,000.

p. In order to help the convicts, who are languishing in prisons due to non- payment of diyat, arsh etc, the Provincial Chief Secretaries to take steps for payment of diyat under the Diyat, Arsh and Daman Fund Rules 2007 or through Bait-ul-Mal or charity.

q. In order to ensure early disposal of cases under the ATA, judges of the High Courts and Supreme Court be designated to monitor and ensure compliance of guidelines given in Sh Liaquat Hussain case.

r. As a long-term strategy, the Committee also suggested administrative and capacity building measures in the following terms:-

(1) Judges of the High Courts to periodically inspect prisons to ensure compliance of Prison Rules and provide relief to the prisoners.

(2) Vacant posts of judges and administrative staff be filled in; and additional court rooms and lawyers chambers constructed.

31See Section 9(2) and 13(I) of the Legal Practitioners and Bar Councils Act 1973, Free Legal Aid Scheme 1988 and Rules for Guidance of Provincial Bar Councils (S.R.O 1292(I)/85 of December 29, 1985. 259

(3) Specious judicial lockups (Bhakhshi Khanas) be constructed in court premises.

In line with the above observations/recommendations of the National Judicial Policy, the Supreme Court, in Muhammad Bashir case,32 also observed certain inconsistencies and irregularities in the criminal justice system of Pakistan. The Supreme Court further reiterated their commandments in Haider Ali case.33

The focus of Chief Justice Jawwad S. Khawaja was inefficiently, incompetence and incapacity of the police, prosecutors and lawyers which together with political and administrative apathy had led to failure of the criminal justice system. He emphasized that “failure to address individual grievances causes frustration, which contributes to lawlessness.” He highlighted weaknesses in registration of FIRs, conduct of investigation, prosecution and trial as well as lack of accountability and transparency in the judicial system. In order to address the issues and improve criminal judicial system, the Supreme Court ordained as follows:-34

a. A Universal Access Number (UNA) be provided and a website launched for registration of FIR by the aggrieved parties.

b. No police officer would investigate any case without registration of an FIR under CrPC Section 154.

c. Cases be registered against the complainants under PPC Sections 182 and 211 for making frivolous, false and vexatious complaints.

d. Specialized training of investigating police officials be ensured and sufficient funds provided for training in investigation, development of forensic and allied facilities.

32Muhammad Bashir v SHO Okara (PLD 2007 SC 539).Also see Syed Muhammad AkhtarNaqvi/Anita Turab v Federation of Pakistan (PLD 2013 SC 195), which deals with observations of the Supreme Court regarding rights and obligations under Civil Servants Act 1973 and arbitrary transfer/postings of the civil servants. 33Haider Ali v DPO Chakwal (PLD 2015 SCMR 1724). The case was heard by a 3-members bench on 4 September 2015, in the aftermath of Supreme Court decision in the 21st Amendment/military courts case, with last date of hearing on 26 June 2015. 34Ibid, pp. 1736-38. 260

e. Police officers would not be transferred or made OSD, except in accordance with the principles laid down in Anita Turab case.35

f. The Attorney General and the respective Advocate Generals to formulate SOPs/ guidelines to ensure cooperation between the police and prosecution, provision of funds for training/development of public prosecutors, their hiring, accountability and compensation.

g. Measures be taken and funds made available for protection of witnesses.

h. The courts to hear criminal cases on daily basis. Bar Councils also to take actions against the lawyers and the courts to impose costs on such lawyers, who seek adjournments to cause delay in finalization of proceedings.

i. The Attorney General, respective Advocate Generals and IG Police to initiate complaint and accountability mechanism and take action on complaints against police officials. The said mechanism should also be made public for benefit of general public.

j. Budget of police and their functions, annual performance reports be made known to the general public.

k. Efficacy and constitutionality of policing regimes in Sindh and Balochistan under Police Act 1861 and Balochistan Police Act 2011 be evaluated to organize a politically independent police.

l. Law and Justice Commission of Pakistan to prepare and submit a fresh report suggesting “improvement in the criminal justice” before the Supreme Court, with a copy each to the National and Provincial Assemblies for appropriate legislation.

The above said reports were required to be prepared, consolidated and submitted or made public within a period of 1-3 months. However, progress on all such reports and actions taken are not yet verifiable from authentic sources.

35Syed Muhammad AkhtarNaqvi/Anita Turab v Federation of Pakistan (PLD 2013 SC 195), 261

It may not be possible to carry out detailed analysis of every observation raised and guidelines given in the judicial policy and the above referred judgments. But the nature and extent of role played by different organs of the criminal justice system in combating terrorism and other crimes may be examined in the light of the judicial policy and ratio of the Supreme Court judgments in the following paragraphs.

6.3.1 Role of Police, Law Enforcement and Security Agencies There are different approaches to control criminal behaviour and reduce crimes. Grant of excessive powers to police and predominant role of intelligence, security and law enforcement agencies, deterrent punishments through special courts are debated as the most suitable mechanism to eradicate terrorism and militancy and bring the criminal behavior to the lowest possible level. However, the human rights activists and lawyers’ community and even judiciary are critical of this approach and generally avoid to endorse this policy by their actions and conduct. There is no difference of opinion that police has to perform a multiple of political and social functions besides the duty to maintain law and order, and prevent crime. This necessarily involves protocol and security duties with government officials, political and economic elites, processions on Muharram, Milad-un-Nabi and other occasions, election duties, prevention of vices and ethical crimes such as sheesha smoking, use and business of narcotics, gambling, video shops, guest houses and Qahba Khanas. They are also charged with patrolling, searches, pursuit of crimes and criminals, collection of evidence and preservation of crimes scenes, arranging and coordinating autopsies, apprehension and investigation of criminals, liaise with witnesses and public prosecutors, protection and production of accused and witnesses before the court of law until the trial attains finality after the verdict of the final appellate court. Their performance, however, is determined and measured on the basis of “crime prevention and apprehension of criminals.”36

This approach not only undermines the quality of police service but also inculcates the practice to make unnecessary arrests and illegal detentions in the garb of suspicions and a bid to prevent crimes.37 This approach not only attracts appreciations for the police from the media, politicians, government officials and ordinary citizens but also help them earn

36James P. Levine, Michael and Dannis, Criminal Justice - A Public Policy Approach (New York: Harcourt Brace Jovanorich Inc., 1981) pp.166-167. 37Haleem Ahmad, “Excesses of Police in Criminal Justice Administration and its Remedies” (PLD 2012 Journal 42-53) 262

monetary or gallantry awards and claim more budget. This non-professional and un-ethical approach breeds revenge against victimization and instead of controlling crime and taming criminals contributes to criminality, militancy and terrorism, as the professional criminals, violent non-state and state actors exploit their victimization, provide them logistics and training to satisfy their revenge. The role of other intelligence and security agencies may also be measured on the same parameters. They have the initiative and drive to apprehend the persons suspected of any crime but lacks the courage and decision-making capacity to release such a person if found innocent during interrogation or investigation.

Perusal of Safoora Goth case file, in which 45 people of Ismaili community were killed on 13 May 2015, revealed that three respectable persons who had no connection with the occurrence were challaned in the case as they were handed over by Civil Armed Forces to the police merely due to their political affiliation and interaction with one of the accused; whereas one accused was challaned as his brother was one of the main accused but absconded. In another incident, an MQM activist Aftab ahmad was tortured to death during 90 days custody with Rangers. Though the Chief of Army Staff General Raheel Sharif and Director General Sindh Rangers took notice of his death, suspended and arrested the personnel investigating the deceased, yet his death raised alarms regarding the practice of custodial killings of many missing persons and recovery of their dead bodies at deserted places.38 Such approach of investigation and criminal prosecution is disappointing and is required to be discouraged, with no impunity. Rather the law laid down in the Pakistan Penal Code (PPC), Criminal Procedure Code (CrPC), Protection of Pakistan Act (POPA) 2014 and the Anti-terrorism Act (ATA) 1997 for disciplinary and punitive actions for making false charge of an offence and compensation or false accusation or frivolous complaint, should come into force.39 But on the contrary, there is no dearth of professional and dedicated officials of police, intelligence and law enforcing agencies who are burning their mid night oil for the safety of the people and security of the nation, who are asset and proud of the nation, whose efforts in the fight against terrorism are required to be appreciated. Their

38 See Zahid Hussain, “Murders most gruesome” and “Five Rangers men held in custodial death case”, DAWN Islamabad, May 11, 2016, pp. 8 and 4 respectively. In response to the public criticism, DG Rangers ordered the inquiry. However, simultaneously Rangers claimed that it had arrested over 800 target killers accused of killing more than 7000 people in Karachi since the launch of operation in September 2013. 39See for example: PPC Section 211 and CrPC Section 250. 263

coordinated efforts and real time intelligence-sharing, disregarding credit and blame game, may help control the menace of terrorism and bring the culprits to justice. Simultaneously, there is a need to reform the police through a uniform Police Order, as it was originally conceived. It should be implemented throughout the country either by way of consensus or legislative competence of the Parliament to enact laws with respect to “criminal law, criminal procedure and evidence.” This will also help improve the performance and unity amongst the police officials which has been marred by out of turn promotions.40

6.3.2 Role of Lawyers and Attorneys

The police and law enforcement agencies have an important role to maintain and restore order in the society, prevent crime and control terrorism in the country. On the other hand, the lawyers have a dual role to support the police and built prosecution, being a public prosecutor, and defend the criminal, being a defence counsel. In this scenario, lawyers are said to be cunningly or by profession supporting the goods and bads; they are promoting order and crime both. They have been termed “by nature an evil breed” and “depart enormously from the myth of idealistic seeker of truth and justice.” Whether a corporate or business lawyer, serving the rich and powerful, or a criminal lawyer, defending the poor, they have “common concern for money and have their own interests to protect.”41 Shakespeare, through his rebel character Dick in Henery VI, Part II, and John Keats had respectively suggested “the first thing we do, let’s kill all the lawyers” and “I think we may class the lawyer in the natural history of monsters.”42 It is a common satire in Urdu Paida hoay wakeel to shaitan ney kaha; lo aaj hum be sahib-e-aulad ho ga’ay, i.e. when the lawyers were born, the satan rejoiced by claiming that he had also become a parent. The above narrative and discussion with those who had ever engaged a lawyer suggest that the general public have negative impression about the lawyers’ community. This impression became more pronounced after the Lawyers’ Movement in 2007 when the rights of the clients were blatantly infringed by the lawyers due to non-appearance in the courts to pursue their cases, boycotts of court proceedings, lock-outs of court rooms and even

40There had been litigations against out of turn promotions in the police, which were set aside by the Supreme Court. However, the Punjab Government had been reluctant to implement the decision in the letter and spirit. See Asif Chaudhary, “Police ‘prefer pedigree’ to court order”, DAWN Islamabad, February 29, 2016, p. 2. 41James P. Levine op. cit., pp. 199-200. 42Ibid. 264

restraining and detaining judges in the court rooms, as they were not inclined to extent undue favour to the concerned lawyers, who even claimed to be representatives of the lawyers community.43 Misconduct of the lawyers with the clients and in the courts including the apex court, uncalled-for adjournments, absence from courts on the dates of hearing, sending the juniors or clerical staff to manage dates, non-preparation of cases, dragging the courts in irrelevant discussions, maligning the judges, avoiding direct replies to the law points and other tactics of similar nature have become a routine practice and professional trait amongst the lawyers.

In the given conditions, the desire to achieve the goals of free, fair and swift justice by sifting the truth from the lies shall remain a myth. The mechanism of appeal after appeal at different tiers and before the highest forum is being used as a tactic to mint money from the rich and the poor alike, and frustrate the process of justice. The ultimate loser in this professional mockery is the state, who fails to provide justice to the aggrieved, who lost their life, liberty and property in hand of none else but the defenders of the law and the justice i.e. the lawyers and the judges. The lawyers continue to fetch more clients and defendants; while judges continue to claim more perks and privileges at the cost of acquittals of the criminals in the name of due process, fair trial and human rights,44 and adding to the frustration and vengeance of the aggrieved, who lost confidence in judicial system and follow retributive approach. The fumes and heat of this vicious cycle and mockery of law affect the whole society through disorder and chaos amongst the aggrieved and general public.

This perception of legal professionals’ aside, it is the lawyers’ community who help in the administration of justice, who fight for the rights of the poor, the innocent and the helpless aggrieved. M.D Tahir, Habib-ul-Wahab Al-khairi, Mrs Asma Jahangir are amongst

43 Lahore High Court Chief Justice Mansoor Ali Shah, after taking oath, constituted a disciplinary committee under the Legal Practitioners and Bar Council Act 1973. He warned the lawyers that they would not be allowed to lock up the courts and harass the judges, especially the women judges, to get favourable decisions. He also made 30 judges OSD and announced strict accountability of judges. He stressed upon them to work hard and made it abundantly clear that those working hard would be rewarded; while those involved corrupt practices and professional misconduct would be dealt with an iron hand. He announced that complains against the judges would be decided within 15 days. For details, see Wajih Ahmad Sheikh, “New LHC CJ introduces reforms on first day in office” and “CJ’s strict warning to lower judiciary, lawyers”, DAWN Islamabad, June 29 and 30, 2016, pp. 2. 44For comparative analysis of due process of law and rule of law in America, England and Pakistan, see for example: Syed Raza Hosssain Shamsi,“Due process of law - A Study of the concept and application of the Principle” (PLD 1973 Journal 51-60) and Zaka-ur-Rehman Khan Lodi, “Extension of the Rule of Law” (PLD 1967 Journal 27-37) 265

some of the lawyers who are known for striving for rule of law, human rights and enforcement of constitutional rights.45 It is the lawyers’ community whose stalwarts rise the exalted position of judges, legislators, statesmen, prime ministers and the presidents. About 25 American Presidents had been lawyers; Mr Barak Obama, American President, British Prime Minister Mr Tony Blair, Pakistani President Mr Rafique Tarar and father of the nation Quaid-e-Azam as well as national poet Allama Muhammad Iqbal were also lawyers by profession. Chairman and Speakers National Assembly, Mr Waseem Sajjad, Mr Raza Rabbani, Mr Fakher Imam, Mr Raja Zafar ul Haq, even Prime Minister Zulfiqar Ali Bhotto and Mr Nawaz Sharif were either practicing lawyers or law qualified. It is the lawyers who trapped the highest government officials, politicians and the bureaucrats and rescued them. Mr Z.A. Bhutto, Mr Asif Ali Zardari and his wife Mrs Benazir Bhutto, ex-President General Pervez Musharraf and sitting Prime Minister Mr Nawaz Sharif, all have been fixed and freed in collaboration, expertise and jugglery of lawyers.

It is a tribute to the lawyers on the one hand and curse to the legal profession on the other hand. If they helped trap the innocents, they committed a moral wrong and if they rescued an innocent, they must be obliged for a professional duty. But the irony is that lawyers, with the exception of a few, are not concerned with the moral and ethical values; they are trained to prove an innocent a guilty soul, and an incorrigible criminal as the most harmless creature. In this professional game of lawyers, the best critics are the public and the clients. But neither the existence nor role of the lawyers in the administration of justice may be denied. More specifically in the criminal and terrorism cases, which are mostly committed by the poor and lower middle class, the role of efficient and professional lawyers who strive for human rights but have concern for national security may not be underestimated. Since there is dearth of criminal lawyers as compared to civil or corporate lawyers who are well paid and well of, their level of competence, interest and response is also lukewarm, as they are less paid and less respected. They have issues of status, finances and security as well for their own persons and families. If their requisite needs are fulfilled and political pressure removed from them, they are likely to prove good public prosecutors with the assistance of

45G.M. Chaudhry, “Essay on Law, Justice, Human Rights and Legal System, “Role of Bar in Maintaining Rule of Law and Independence of Judiciary” (Rawalpindi: Federal Law House, 2009) p. 146-147. 266

dedicated police and concerned law enforcement agencies officials who have investigated the case. If they prepare well, produce the requisite evidence, examine and cross-examine the witnesses, avoid adjournments, stress upon the courts to conclude trials within the stipulated time frame, it is expected that the courts would be able to deliver fair and swift justice.

The public prosecutors, defence counsels and the courts may be guided by the relevant provisions of the CrPC, ATA and POPA. For example: CrPC Section 485 suggests that any witness who refuses to answer or produce any document before the court may be awarded imprisonment or contempt proceedings initiated against him.46 CrPC Section 195 suggests that criminal proceedings may be initiated against absconders, those who furnish false information, fabricate and furnish false evidence, commit forgery or cause disappearance of evidence, refuse to answer or sign statement etc. for contempt of lawful authority of public servants and offences against public justice.47 The attorneys may invoke the said provisions for remedial measures. Laxity to agitate implementation of law breeds corrupt practices, fabrication and production of false evidence and unjust acquittal or convictions, which is not at all the object of the criminal administration of justice. Even if the attorneys do not come forward to help the courts to make just decisions and inflict condign sentences, they may be proceeded for contempt of court for intentional laxity or their matters referred to the concerned bar councils for determination of their guilt. The Bar Councils should also ensure observance of legal ethics by the lawyers as envisaged in the Legal Practitioners and Bar Council Act 1973. “Continuous Professional Development” of the members of legal fraternity and practicing lawyers should also be taken seriously by the concerned Bar Councils.48

6.3.3 Role of the Criminal Courts

The criminal courts have the most important and sacred duty to perform. The judges have a lien for the society and their conscience.49 They cannot blame the police or the prosecution for failing to assist them in the administration of criminal justice. Prolonged list

46CrPC Section 485 read with Sections 480 and 482; Order XVI, Rule 3 and Order XVII, Rule 1 of the CPC suggest for tender of expenses for witnesses and cost of adjournment on the party. CrPC Section 544A and 545 also oblige the criminal court to award fine so as to compensate the aggrieved party for the loss of life, hurt, injury and expenditures incurred on prosecution. 47See CrPC Section 195 read with PPC Sections 193, 196, 200, 205, 206-211. 48Ahmad Nazir Warraich, “The Legal Frame Work to Inculcate CPD in Pakistan” (PLD 2014 Journal 38). 49Justice M. Mahboob Ahmad, “Role of Judiciary in an Islamic State” (PLD 1987 Journal 133-140) 267

of pending cases, increasing number of acquittals and multiplying crime cannot be attributed to poor investigation or fabricated evidence. According to an estimate, in 1.7 million cases were pending in the courts, with 20000 in the Supreme Court, after the backlog of 80000 cases in 2009 was reduced to this figure in 2013. This was possible under the “Access to Justice Project”, sponsored by Asian Development Bank in 2011, with a soft loan of 350 million dollars.50

The Legislature does not leave any vacuum which may not be filled in within the bonds of law and applying the statutory provisions. The defence or prosecution attorneys, though very shrewd, intelligent or professional, cannot deceive the law if the judges are vigilant, professional and committed to their oath to administer justice. They can kill two birds with one stone provided they are willing and upcoming. They can defeat the black sheep and businessmen in the name of lawyers and uphold the norms of justice, which will not only earn respect for the judiciary but also promote public peace and order, as well as national security and unity.51 For example: the criminal proceedings before the courts in Pakistan are adversarial in nature; but the judges are not supposed to sit like idles and just hear the evidence. They have been charged to conduct the trial and deliver justice. Law does not require the judge to be good listener but a good administrator as well who takes care that any party does not bulldoze justice because of its authority or influence. If accused is the blue eyed baby of law, victim is the client of justice; if state is the aggrieved party, court is the ultimate remedy; and if the remedy is ineffective, disasters is inevitable.

How the courts can maintain a balance and justify their decision is to have recourse at least to Chapter X (Articles 130-161) of the Qanun-e-Shahadat 1984, more specifically Article 161, which authorizes “the judge to ask any question, in respect of any fact whether relevant or irrelevant, in any form, at any time, from any witness to discover proof of any relevant fact or illicit truth, or may order the parties to produce any document.” This Article together with Article 164, whereby the courts have been obliged to permit and admit any evidence which has become available because of modern devices, envisages a decisive role

50 See Irfan Husain, “Justice delayed”, DAWN Islamabad, March 12, 2016, p.9; Mohammad Asif Mian, “Pakistan First National Project of Access to Justice”, available at admin.umt.edu.pk/Media/Site/.../reports/Access%20to%20Justice%20System.docx , accessed July 17, 2016. 51An exclusive interview dated 30 Nov 2015 with Miss Naeema Sadaf, Advocate Lahore High Court. 268

for the judge in the real administration of criminal justice. The judges have the legal and administrative authority to steer the proceedings in the right direction and without allowing to sway from the cause of justice. It is a wrong perception and practice to malign a judge for partiality if he resorts to his legal duty in the aforesaid terms. The judges may also invoke the provisions contained in the ATA to take measures to ensure their security, security of witnesses and the accused through the Armed Forces, hold the proceedings in jails and even in cantonment areas. While doing so, they should not fall prey of media hypes and opinions. They should shun media reports as the same may prejudice their minds and frustrate the object of fair trial.52

The return of the verdict of acquittal or guilty and award of any sentence within the four corners of law is an exclusive domain of the court. The law has bestowed upon the courts sufficient flexibility and latitude to award condign punishments which should serve the cause of justice. The decisions of the courts in favour of the accused are influenced by the level of sincerity of legal assistance provided by the counsels for the parties, insufficient or weak incriminating evidence, lack of cooperation from the victim to pursue the case and appear for testimony, due to compromise, peers pressure, insecurity and misinterpretation of law. On the other hand, the determination of quantum of sentence is influenced by the gravity of offence and the effect created in the society. Previous criminal record of the convict, his conduct and demeanour during the trial proceedings, factor of repentance or remourse, prevailing security and law and order environment in the society, the cost of incarceration in terms of finances and chances of character building or its deterioration, the facilities available in the prisons and most importantly the bracket and nature of sentence prescribed by the legislature for a particular offence in the given, mitigating or aggravating circumstances of the case also influence the judge. At times natural bias of the judge and his personality traits, whether kind hearted or a strict disciplinarian or lacks rational decision making or possesses erratic behavior, his social, economic, political and security (human and job) concerns also play a decisive role in determining the quantum of sentence. The judges are also guided by the precedence and dictum of the superior courts and different theories of punishment. But the ultimate decision to award what sentence is

52Sayed Ali Zafar, “Fair Trial - Prospects and Implementation” (PLD 2014 Journal 54, p. 59). 269

inherently discretion of the judges, due to the ambiguity or leverage given the penal provisions of law, their biases, self-interests, and conflicting public and political interests. In the given circumstances, the award of sentence becomes a highly discretionary and personalized business of the courts. Not only decisions of a similar judge in two cases of similar nature may vary but also different judges may tend to render different judgments in a same case. This phenomenon is described as difference of opinion and independence of judiciary alike. But this legal discretion is required to be exercised to advance the cause of justice and security of nation.

6.3.3.1 Discretion of the courts and theories of punishment Discretion of the courts in the award of sentences is recognized by law and as such deliberately provided in the penal laws including the terrorism-related laws. However, when it comes to terrorism-related offences involving death, kidnapping for ransom, hijacking etc., the discretion has been limited to the awarded of death or life imprisonment and in other cases extended upto 20 years imprisonment with a lower limit from 2 to 10 years depending upon the nature of offence.53 However, the said provisions of law still provide sufficient leverage to the judge to pronounce discretionary sentences. In the ordinary criminal cases, the judges have the tendency to follow a reformatory approach but in terrorism-related cases they tend to award deterrent sentences. Which of the reformative, retributive or deterrent approach is key to control the menace of terrorism is debatable and has its own merits and demerits.54 However, in terrorism cases, deterrent sentence may be the rule while reformative sentence may be an exception.

6.3.4 Role of Prisons Delay in dispensation of justice also adds to the influx of under trial prisoners in jails, which are estimated to be 2/3rd of the prisons’ population and disturbs their administrative and financial mechanism.55 The plight of prisoners and role of prisons in damaging character and personality of the inmates rather than their rehabilitation has been depicted by Justice Syed Afzal Haider in Dr Muhammad Aslam Khaki case.56 Prolonged deprivation, hostile

53See PPC Section 302, ATA Section 7 and POPA Section 16. 54 The merits and demerits have been discussed in chapter 4. 55 This was observed by Chief Justice Irshad Hasan Khan in Suo Moto Case No.3 of 2001 decided on 10 March 2001 and reported as PLD 2001 SC 1041(p.1044) 56PLD 2010 FSC 1. 270

atmosphere, lofty walls of the prisons with steel barracks, denial of conjugal rights with wives, fear of homosexuality, company of hardened criminals, over population, poor and unhygienic living conditions, sub-standard food, insufficient medical care, supply of narcotics and drugs, illicit arms, deprivation of family visitation, least vocational training and education facilities are some of the curses which deprive the prisoner of self-respect, put him in continuous depression and prone him to further criminality, instead of rehabilitation and reformation. Cruel and inhuman behaviour of jail staff and torture in the name of jail discipline, especially against poor prisoners who cannot afford to pay bribe for excuse of hard labour, also add to their agonies.57 The prisoners are worse than animals in the zoo, who do not have bar-fetters inside their cages and are provided good food and facilities in comparison with prisoners, some of whom are deprived of sun light and fresh air for days, and are even helpless to relieve themselves in the cells, in the presence of other prisoners, when they are confined in the cells as a consequence of violation of jail discipline or are under wrath of jail staff. They are kept ignorant of their rights, laws and available remedies. 58 The prisons staff is deficient of modern arms, ammunition and security apparatus to ensure security and safety of prisoners and prisons. They themselves are frustrated and dejected due to their meager salary and opportunities for corrupt practices in comparison with regular police. Their disappointment and exasperation also add to the misfortunes of the prisoners especially the poor, women and juveniles. The main cause of failure of the prisons to play their role in the reformation and rehabilitation of prisoners is overcrowding due to delayed disposal of cases pending adjudication at trial and appellate stages. For example: out of 32 prisons in Punjab, 30 prisons are over-crowded, with District Prison Multan housing 807 prisoners against the authorized strength of 229 and Central Prison committing 4,481 prisoners against the capacity of 913. Out of 59,965 prisoners committed in the Punjab prisons, 6674 were condemned prisoners whose appeals were pending in the High Court and Supreme Court, 999 were juveniles and 856, women; whereas out of the said total, 41,505 were under trial prisoners. Out of 6,674 condemned prisoners, appeals of 5,974 and 658 were

57Ibid Dr. Aslam Khaki case, pp. 132-135. 58This pity and pathetic conditions of the prisoners in the Central Prison Karachi was described by 18 Judges of the Karachi High Court, who had visited the prison on 30 December 1993, in Majeeda Bibi v Superintendent Central Jail Karachi (PLD 1995 Kar 1) and quoted as such in Dr. Aslam Khaki case, pp. 134-135. 271

pending the High Court and Supreme Court respectively; while rests were mercy petitions. 59 Delay in disposal of appeals and mercy petitions of condemned prisoners, if make them tense and put them in more incarceration, also provide them some relief and expectancy for life for some more time, especially to the mercy petitioners. However, the scenario changed after 16 December 2014, whereafter within a span of one year only, 312 condemned prisoners were sent to the gallows and no mercy petition was pending with president.60

In order to help improve criminal justice system of Pakistan and convert the prisons as reformative and rehabilitation centres, instead of dens and stables of criminals, vocational, educational, religious, medical, psychological, recreational and sports facilities should be provided to the maximum. Pakistan Sports Board, Pakistan Olympic Association, different Sports Federations, Allama Iqbal Open University, Virtual University, Technical Education and Vocational Training Authority, Wafaqul Madaris, public and private TV channels, Psychology and Sociology Departments of universities may play a positive role in this regard. Human Right groups, Bar Councils, lawyers community and law colleges, instead of giving lip services and merely raising issues of human rights issues, should come forward and volunteer to provide free legal aid to the under-trial prisoners, especially the first time offenders, juveniles and females. Their services may be recognized through rewards and awards especially when they compete for the slots of judgeship, may that be for appointment of Additional District and Sessions Judges or in the superior judiciary. Free legal service to the suppressed and depressed classes may be part of the internship program for the graduates of Law Colleges, before they get license to practice law. They may invoke the provisions regarding bail, parole, probation, compromise and waiver in cases affecting human body such ‘qatl’ i.e. homicides and ‘hurts’. Simultaneously, the government should establish judicial lock-ups in the courts premises or other suitable places in the vicinity of the courts to lodge under-trial prisoners to ensure their security and hassle-free attendance in the courts. This will not only shrink burden on prisons but also reduce the cost of transportation and security. Proposal for open jail in Bahawalnagar scattered over an area of 200 squares and other provinces may also be materialized. Long term prisoners with good conduct, along with

59These figures were taken from office of the Inspector General Prisons Punjab as on 31 December 2008 and cited in Dr. Aslam Khaki case op. cit., pp. 131-134. 60The figures are upto 15 December 2015 as provided by Ministry of Interior, which includes 247 executions under PPC; whereas 65 executions were made under the ATA 1997. 272

their families may be employed for cultivation of crops and “agricultural therapy”, so as to reform and rehabilitate them. The concept of open jails has been successfully implemented in America, Great Britain, British Commonwealth and Scandinavian countries. Necessary guidance may be sought from The Swedish Prison Code 1994 and English Criminal Justice Act 1948, which has been amended accordingly. Establishment of rehabilitation, correction and training centres, introduction of prisons industry in the nature of cottage industry, free legal aid, religious motivation, remissions for more good deeds, liberal approach for bail, parole, probation and expeditious disposal of cases are other suggested measures, which if implemented may help achieve the desired objectives.61 The issue of execution of death sentence, though a controversial human right issue, seems to have been settled in view of government’s stance taken against the voices raised in favour of moratorium on capital sentence. The concerns raised by human rights activists regarding fair trial and due process, if based on facts and not merely on hearsay, surmises and conjectures, are required to be addressed on case to case basis, but without compromising on execution of death penalty, which has been adopted as a matter of deterrent policy. This is not only in line with the law laid down in the Holy Qur’aan and Sunnah of the Holy Prophet but also have the constitutional and legal backing.62 In order to maintain deterrence in the mind of criminals of either description, maintain rule of law and ensure equality before law,63 unless the policy of execution of sentence passed by the courts is implemented in letter and spirit, the challenges faced by the criminal justice may not be met.64

The above discussion when juxtaposed with the National Judicial Policy recommendations and decision of the Supreme Court in District Bar Association Rawalpindi case suggests that not only judiciary but all other organs of the criminal justice system have failed to play an effective and meaningful role to combat terrorism; hence requires drastic overhauling and checks. Despite the fact that failure of the criminal justice system cannot be attributed to judiciary alone, as there is no empirical data or substantial evidence to malign or accused the judiciary alone for this failure, yet it is to face the brunt being the chauffeur of

61Reference in this context may also be made to the dictum and recommendations of the Federal Shariat Court in Dr. Aslam Khaki case. 62Justice Dr. Tamzil-ur-Rehman, “Justice in Islam” (PLD 1987 Journal 8-18) 63See Muhammad Amin Butt, “Rule of Law and Curbs on the Powers of Court” (PLD 1987 Journal 98 - 101) 64 For execution of death sentence, see Colonel Hafiz Zafar Iqbal, “Need to Resolve the Issue of Moratorium on Capital Sentence” (PLJ 2015 Magazine 252-260) 273

the chariot of the criminal justice system, of which police, LEAs, lawyer and prisons are the wheels. Right did Chief Justice say that “our time-tested judicial system has no defects”65 but our implementation and execution mechanism no doubt is faulty. Caution of the Lahore High Court Chief Justice Mansoor Ali Shah to the lawyers and officials of the subordinate judiciary that he would neither tolerate harassment of the judges by the lawyers to get favourable decisions nor would he spare the corrupt and incompetent judges66 is a positive approach to steer the judiciary on the right path.

6.4 What is the Effect of Different Amendments Introduced in the Security and Anti-terrorism Laws of Pakistan after 9/11?

General effects of WOT on the national security and criminal justice system of Pakistan have already been discussed in chapter 2. In order to analyze specific effects of important security and anti-terrorism legislations introduced in the post 9/11 scenario, it is important to recapitulate pre-9/11 anti-terrorism legislation measures and response of the superior judiciary viz-a-viz Anti-terrorism Act 1997.

6.4.1 Effects of Anti-Terrorism Act 1997 in the pre- 9/11 Scenario

It will be beneficial to recap ratio decidendi of the Supreme Court in Mehram Ali case, wherein vires of the Anti-terrorism Act 1997 had been challenged, inter alia, on the grounds of independence of judiciary and violation of fundamental rights.67 Petitioner Mehram Ali was tried and convicted on 15 September 1997 by a Anti-terrorism Court in Lahore for causing death of 23 persons and injuries to 55 persons by exploding a detonating device fixed in a motor cycle through a remote control in the District Courts Lahore when Molana Zia-ur-Rehman Farooqi and Molana Azam Tariq, leaders of the defunct Sipah-e- Sahaba Pakistan were brought to the court. His appeal and petition before the Appellate Tribunal and a full bench of the Lahore High Court respectively were dismissed. He challenged the Lahore High Court order of 9 March 1998. Although the Supreme Court validated constitution of the ATCs, subject to the supervision and control of the High Courts,

65 See Irfan Husain, “Justice delayed”, DAWN Islamabad, March 12, 2016, p.9 66 For details, see Wajih Ahmad Sheikh, “New LHC CJ introduces reforms on first day in office” and “CJ’s strict warning to lower judiciary, lawyers”, DAWN Islamabad, June 29 and 30, 2016, pp. 2. 67Mehram Ali v Federation of Pakistan (PLD 1998 SC 1445, pp. 1461-1465).Short order was issued on 15 May 1998; while detailed judgment was announced subsequently and reported as such. 274

and the death sentence awarded to the petitioner yet it declared certain provisions of the Act as ultra vires the constitution and suggested suitable amendments therein, including the following:-

a. Opening of fire or order to open fire by officers of the Police, Armed Forces or Civil Armed Forces, when entrusted with duty to prevent terrorism or terrorist acts in terms of Section 5(2)(i), ‘without being fired upon’ by the accused be suitably amended.

b. Unbridled powers given to officials of the Police, Armed Forces etc of search and entry into any premises may be restricted by giving the persons concerned reasons and grounds, in writing, for conducting the search.

c. Absentia trial of the accused for misbehaviour in the court is violative of Article 10 of the Constitution.

d. Appeal to an Appellate Tribunal other than the High Court is against independence of judiciary as envisaged under Articles 175 and 203 of the Constitution; hence Appellate Tribunal be replaced by the High Court.

e. Confession before police official instead of a Magistrate is inadmissible in evidence, being violative of Articles 13(b) and 25 of the Constitution.

f. Only those offences mentioned in the schedule which have nexus with the objects and reasons of the Act may be tried by the ATCs.

g. Judges of the courts be provided security of their tenure of service rather than remaining under fear of posting or transfer at the mercy of the government.

The government amended the Anti-terrorism Act 1997 in terms of the directions of the Supreme Court in Mehram Ali case. However, it did not find the amended Act so potent to tame the terrorists operating in Karachi in the disguise of ethnicity and sectarianism with more destructive approach and lethal weapons. The government chose the option of establishing military courts under the Pakistan Armed Forces (Acting in Aid of Civil Power) Ordinance 1998. Although the military courts functioned for couple of months and created

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deterrence but the achieved effect was doomed down when the Supreme Court declared the military courts and the convictions handed down by them as unconstitutional and of no legal effect; and ordered transfer of pending cases to the ATCs.68 The Supreme Court delivered short order on the 17th day of February 1999, inter alia, in the following terms:-69

a. Terrorism related cases be entrusted to ATCs.Only one case be assigned to the ATC at one time until it is finalized and judgment announced. b. The ATC should conclude the trial within 7 days; and the same shall be the fate of the appeal i.e. will have to be decided within 7 days. c. Challan be presented after full preparation and the witnesses be made readily available before the court

d. Any laxity by the investigating or prosecuting agencies shall be liable to disciplinary action under the relevant law.

e. The Chief Justice of Pakistan and the concerned High Court shall nominate one or more judges to monitor and ensure timely disposal of the cases, appeals and petitions at the relevant forum.

f. The Armed Forces may be called in aid of civil power under Sections 4 and 5 of the Anti-terrorism Act 1997 and Article 245 of the Constitution including for security of presiding officers, counsels, witnesses, investigators, except for the process of judicial adjudication of guilty and sentence.

The federal government amended the Anti-terrorist Act 1997 to reconcile the above said observations of the Supreme Court but the amendments to enlarge the scope of “terrorists acts”, creating offence of “civil commotion”, prohibiting go-slows, strikes and lock-outs, powers of the government to amend rules, the extent of use of fire by the armed forces to prevent terrorism and similar other issues were considered as violative of the

68Sh Liaquat Hussain case (PLD 1999 SC 504). He was sitting MNA from MQM at that time, and was represented by Mr Muhammad Akram Sheikh, Advocate. Dr Abdul Basit and Mr Aitzaz Ahsan represented MQM and Nisar Khoro respectively. Details of the cases (5x writ petitions filed by MQM and its Legislators) and various contours of Supreme Court judgment have also been discussed in the chapter 6 relating to subjection of civilians under military law. 69PLD 1999 SC 504, pp. 549-552. 276

constitution.70 Jamaat-i-Islami and MQM challenged the amendments in the Supreme Court who,having carried out an in-depth analysis of the Amendments introduced in the Anti- terrorism Act 1997 vide Ordinances IV and XIII of 1999 viz-a-viz guidelines provided in Mehram Ali case,71 finally declared and suggested in the following terms:-

a. Powers of the Armed Forces, Civil Armed Forces or the police to fire or order fire to the extent of taking the life of any person is against Article 9 of the constitution which guarantees that “no one shall be deprived of life or libertysave in accordance with law”; and transgressing the limits prescribed in the PPC for right of private defence.72

b. The offence of civil commotion and terrorist act, including strikes, lock-outs, go-slows etc of the labourers and workers, with certain limitations, are permissible under the Industrial Relations Ordinance 1969. Therefore, the same may be suitably amended to have nexus only with terrorism and terrorism-related activities or acts.73

c. Powers to make rules be vested only to the High Court; while government shall be obliged to notify the same.74

Anti-terrorism Act 1997 was subjected to enormous changes and improvements for effective and successful investigation by acquiring more powers of arrests, detention, search, freezing of accounts of proscribed organizations or persons. At times the superior judiciary was also instrumental in effectuating the changes in the name of human rights, independence of judiciary or curtailing the role of executive in judicial process. But the fact is that the role of the intelligence agencies, Armed Forces and the Civil Armed Forces in the apprehension and investigation of the terrorists dominated while the role and efficiency of the police, who is the main pillar of investigation and entrusted with maintenance of law and order, gradually started shrinking to alarming ebb. The police started shirking the responsibility as the credit

70 The amendments were effectuated through the Anti-terrorism (Amendment) Ordinance (IX of 24 October) 1998 and Anti-terrorism (2nd Amendment) Ordinance (XIII of 27 August) 1999, which further amended the Act. 71 Jamaat-i-Islami Pakistan v Federation of Pakistan (PLD 2000 SC 111). 72Ibid, pp. 148-159, 164, 167 and 177. 73Ibid, pp. 155-164 and 172-178. 74Ibid, pp. 163-164. 277

would be the fate of Armed Forces or intelligence agencies. There had been occasions when police was so disgruntled that it tried to ditch the Armed Forces to embarrassment by disclosing plans for raids on terrorists and hardened criminals. The result is that capacity of the police has not been built to the desired standard; rather lethargy and sense of shifting the responsibility inculcated in police. Notwithstanding this phenomenon, some of the police officials work in a competitive environment side by side and even in some case better than any other LEA in apprehending, investigating and prosecuting the terrorists to the hilt.75

6.4.2 Effects of Anti-terrorism Act 1997 in the post-9/11 Scenario Details of the legislation in the pre and post-9/11 period have been given in chapter 4. However, post-9/11 era amendments in the Anti-terrorism Act 1997 extended role of the Armed Forces and Civil Armed Forces in the nature of “policing”,76 provided for discretionary or prolonged arrests and investigations of the alleged accused on the basis of suspicion for a period of 90 days and even beyond, encouraged pre-dominant role of intelligence agencies in the JITs though these are required to be headed by police officers. It declared confession during investigation by police officer of the minimum rank of DSP as admissible in evidence. It also permitted wire-tapping to prevent acts of terrorism and tighten the noose against the proscribed organizations with proactive approach, ensure strict monitoring so as to bring facilities of terrorism within the ambit of “terrorists.” The post 9/11 amendments also designated ATC judges to try juvenile offenders and permitted fire to shoot at sight. The worst effects of post 9/11 legislations were the issues of missing persons, human rights violations and direct confrontations between the intelligence agencies or Armed Force and the judiciary in the name of protecting national security and human rights.

6.4.2.1 Issues of missing persons and Anti-terrorism Act 1997

There had been occasions when the LEAs and the judiciary were confronted against each other. But in the end, both had to forego some of their rights in favour of the other by following a reconciliatory approach. The cases of Dr Niaz Ahmad and Mufti Abdul Basit

75 Amendments in the anti-terrorism Act 1997 in the post-9/11 have been discussed in chapter 5. 76 Policing role of Rangers in Sindh, more specifically in Karachi, has become a permanent feature. Federal government desires to continue this whereas Sindh government is generally reluctant to requisition Rangers. See Imran Ayyub, “Rangers have mandate to operate in Karachi, not whole province: CM”, DAWN Islamabad, July 20, 2016, pp. 1, 4 and 5. 278

may be cited as an example. Sections 11-EE and 11-EEE were added to the Anti-Terrorism Act 1997,77 whereby the federal and provincial governments were authorized to require any person suspected to be involved in terrorism or sectarianism or whose name is included in the Forth Schedule to the Anti-terrorism Act 1997 to furnish security for good behaviour or order preventive detention of such person for a specified period, which may from time to time extend to twelve months. Vires of the said provisions were challenged in a number of cases. However, the cases of Dr Niaz Ahmad and Mufti Abdul Basit78 are of significance. Both the petitioners along with seven others were challaned and tried under various sections of the PPC, including sections 302, 120-A, 120-B, section 7 of the Anti-terrorism Act 1997, by an Anti-terrorism court in Rawalpindi. At the conclusion of the trials which lasted for a year, the court acquitted the petitioners on 26 November 2009 and 8 April 2010; but before they could be released, the DCO issued their preventive detention orders for 30 days under the Maintenance of Public Order Ordinance 1960, which were further extended to 90 days in terms of Section 11-EEE ibid by the Secretary Home Department Punjab during the pendency of their petitions. The respondents contended that the detenues were members of terrorist organizations, had been instigating the public to launch protests and take out processions against the government; whereas the petitioners denied the allegations, amongst others, on the ground that during the period in question, they had been in jail for about two years, while their names were also not included in the terrorists list as they were not terrorists as such. Hence they could not instigate any one as alleged. Justice Kh. Imtiaz Ahmad having given anxious hearing to the parties and relying on the dictum of the Supreme Court in Umat- ul-Jalil Khawaja case ordered for release of the petitioners while setting aside orders for their preventive detention.79 The outcome of the Supreme Court judgment is that “(i) a preventive detention order, inter alia, must satisfy each ground of detention and if any ground is bad, non-existent or irrelevant, the whole order shall stand invalid, (ii) burden to prove legality of the preventive detention order lies on the detaining authority, (iii) the detaining authority is required to place

77Added by Anti-terrorism (Amendment) Ordinance (CXXV of 15 November) 2002. 78Dr Niaz Ahmad and Mufti Abdul Basit v Secretary Home Department, Punjab (PLD 2014 Lahore 516). 79Ibid, pp 523-526, 529-530. The judicial consensus arrived in “Federation of Pakistan through Secretary Ministry of Interior v Umat-ul-Jalil Khawaja” (PLD 2003 SC 442) was based on the Supreme Court verdicts in “Abdul Baqi Baloach v Government of Pakistan” (PLD 1968 SC 313) and “Government of West Pakistan v Begum Agha Abdul Karim Sorish Kashmiri” (PLD 1969 SC 14) cases. 279

the whole material before the court, without any privilege of secrecy, (iv) habeas corpus petition is a constitutional remedy against any matter relating to illegal confinement, especially when detention of a person cannot be justified in law (v) the presumption is that every imprisonment without trial and conviction is, prima facie, unlawful.”80 Despite May 28, 2010 order of the learned judge of the High Court, the petitioners/detainees were not released from the jail. Instead Superintendent Adyala Jail on that day handed over allegedly custody of 11 persons including the petitioners/ detainees to ISI/MI officials who took them to some unknown places.

The petitioners invoked jurisdiction of the Lahore High Court but they were directed to approach the Commission for Inquiry on Enforced Disappearances (CIED) constituted by the Supreme Court and headed by Justice Javed Iqbal (Retired) for recovery of missing persons. Mst Rohaifa, mother of Mufti Abdul Basit, moved the Supreme Court, amongst others, for producing her three sons and eight other missing persons/detainees and their meetings with the families.81 Raja Muhammad Irshad, Senior Advocate Supreme Court, appearing for Army and ISI denied the allegations and contended that the Army and ISI are subservient to the constitution and has respect for Supreme Court. He also stated that it was not the ISI or any other LEA but some people disguised in civvies who in the garb of officials of some agency took the petitioners to some operational area so that their expertise may be utilized for terrorist activities. But after the court notice, they were recovered after extensive search operation and taken into military custody in terms of Section 2(1)(d) of the PAA, while their S of E had been ordered; and they would be treated in accordance with law having due regard to the right to fair trial and protection against double jeopardy.82 The Supreme Court ordered for regular meetings of the surviving petitioners with their families; 83

80Ibid. 81Mst Rohaifa v Federation of Pakistan & others (PLD 2014 SC 174, pp. 180-181). During pendency of the instant petition, Mst Rohaifa died and her three detained sons along with other detained persons were impleaded as the petitioners. 82Ibid, pp.181-183, 186-188. Brigadier Naubahar Hussain, Judge Advocate General, Pakistan Army reiterated compliance of Articles 10A and 13 of the Constitution and contended that in case of insufficient evidence, the detenues/petitioners would have fair chances of acquittal. 83Four of the detainees had died during the detention and causes of their death were also shared with their families who refused to get their post-mortem as per the report submitted in the Supreme Court. Hence, no order was passed by the Supreme Court regarding the alleged torture or poison administered to the dead detenues and culpability of any agency on those counts. 280

while the respondents’ counsel assured that the detenues would be treated in accordance with law.

Simultaneously, in a writ petition filed by Mufti Abdul Basit in Islamabad High Court, parawise comments were filed by MI Dte claiming that the petitioner and his two brothers had been interned in FATA under Actions (in Aid of Civil Power) Regulations 2011 for FATA. The same stance was taken before the Supreme Court with a disclosure by Brigadier Naubahar Hussain, Judge Advocate General, Pakistan Army that the court martial lacked jurisdiction into the matter as the 2007 Ordinance permitting trial of civilians accused of attacking the Armed Forces of Pakistan had elapsed. During the proceedings, the Supreme Court was further conveyed that the internment orders in respect of the petitioners had been withdrawn and they had been handed over to the Political Administration of Orakzai Agency where they were tried and punished under the FCR for offences under sections 121, 122B, 365, 400-401 of the PPC and section 4-6 of the Explosive Substances Act read with Section 11/40 of the FCR. On 2 May 2013, Assistant Political Agent awarded them different terms of RI and they were committed to Central Prison Kohat, which is a settled area. They were given benefit of CrPC section 382B, whereby their RI was reckoned to commence from 22 March 2013 i.e. the date when they were taken over by the Political Administration, Orakzai Agency from the Internment Center. According to the Respondents’ counsel, the seven surviving petitioners were arrested on November 25, 2010 from Lawara Mela, Orakzai Agency when they were fleeing along with weapons, ammunitions, suicidal jackets, after attacks on the Armed Forces committed by their accomplices. These offences were different from the offences of attack on Hamza Camp, RA Bazar etc of which they were acquitted by the Anti-terrorism Court, Rawalpindi.

The Supreme Court disposed of the petitions by holding that, it may not take cognizance into the matter or sit in appeal to decide if the Assistant Political Agent had rightly assumed jurisdiction or his conviction order was justifiable or otherwise, as not only the parties resided in the tribal areas at the time of alleged offences but also the cause of action and subject matter of the case had arisen therein.84 Accordingly, the Supreme Court restricted itself to the orders of family meetings with detenues and to proceed in accordance

84Ibid, pp. 203-204. 281

with law. Similarly, it did not initiate any contempt proceedings against the Army or ISI or any LEA for defiance of court orders after explanations and compliance of court orders, though not to their real essence, by the respondents. However, Supreme Court while tracing back history of bar of Superior Court’s jurisdiction under Article 247(7) of the Constitution in tribal areas determined that the superior courts shall have jurisdiction, notwithstanding the said ouster clause, in tribal areas, in the circumstances wherein the corpus in dispute is located or parties to the dispute reside or cause of action has arisen or the offence has taken place or the arrest is made or any effective action or step is taken or performed outside the tribal area.85 The Supreme Court did not pass any order regarding habeaus corpus of the detenues as their custody could not be described illegal after declaration of the respondents, especially when the controversy of their taking over from Adyala jail and/or arrest from tribal areas could not be determined in the absence of positive evidence; while they were also not tried under the PAA but under the FCR. Similarly, the Supreme Court did not rule about the vires of PAA Section 2(1)(d) and the Actions (in Aid of Civil Power) Regulations 2011 for FATA/PATA as the counsels for the petitioners did not argue or press upon these issues after the above discussed developments in the case. This judgment was followed by another judgment on 10 December 2014, wherein the Supreme Court ruled that enforced disappearance is not only recognized as crime against humanity but also against the provisions of Article 10 of the Constitution.86

6.4.3 Effects of Actions (in Aid of Civil Power) Regulations 2011

The Actions (in Aid of Civil Power) Regulations 201187 provided a mechanism to incapacitate and restraint the miscreants or the like-minded to commit or abet the acts of terrorism, sabotage, subversion and other offences compromising unity, integrity, security and sovereignty of Pakistan. The objective was to ensure de-radicalization and hand over the accused of menial offences to their relatives, guarantors through Jirga and put the hardened criminals to trial for condign sentences with the evidence of reduced quality and quantity. However, due to operational commitment of the military personnel and move or rotation of

85Ibid, pp 198-199. 86Human Rights case, PLD 2014 SC 305. This also includes the case of Yaseen Shah, which will be discussed in the following pages. 87 An analysis of the historical development of security laws suggests that the KP Internment Rules 2011 and PATA Internment Procedure 2011 were borrowed from the Internees (Discipline and Offences) Regulations 1965 and the Control of Property (Internees and Persons on Parole) Order 1965. 282

troops, the documentation and maintenance of registers and books required under the Regulations and the Rules could not be ensured to the hilt. The officials concerned with the internment were also not well conversant with the rules of evidence, nature and gravity of offences in the legal parlance. Troops were more concerned with fighting a successful military expedition, gaining and retaining control of the territories earlier lost to the miscreants, ensuring evacuation and rehabilitation of the innocent civilians and maintaining their battle worthiness.

In this back drop, collection of evidence was a gigantic responsibility, which required intelligence sharing, investigative skill and prolonged stay at the station or in the vicinity of the places of occurrence. This natural handicap necessitated enactment for acceptance of evidence based on the information or data collected or acquired from the accused, government departments and agencies. Despite the fact that outcome of the investigation with circumstantial evidence connecting such accused are admissible piece of evidence but still the conviction rate is not encouraging. There are two propositions for failure of the prosecution either the detaining or interning authority and internment centre in charge or designated officials are least interested in the prosecution and conviction of the accused; hence they do not collect or produce the requisite evidence before the trial courts. The other proposition is that most of the internees are either juveniles or not hardened criminals who had committed the alleged atrocities. They were inspired, influenced and got associated with the Taliban and Al-Qaeda fighters who fought against American forces in the name of Islam. They were over-powered by the notion of Islam propagated by them and disregarded respect for human life, loyalty to the state and obedience to the persons in authority.

In the given circumstances, a concerted effort is required to be put in to collect the requisite evidence against the proved enemies of Islam, humanity and accused of terrorism. Simultaneously, those who are innocent agents or sympathizers and are in custody in the internment centres since long, if rehabilitated and de-radicalized be released and handed over to the families or tribes through jirga and on furnishing surety or guarantee of good conduct in terms of the Regulations. Both the propositions had been conceded by the military commanders who conducted the military and intelligence operations in the said areas. They frankly admitted that in the heat of battle, collection and preservation of evidence is neither

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the target of the troops nor is logical or possible; nor they had anticipated trials of the captured miscreants and terrorists, with the quality of evidence required under Qanun-e- Shahadat 1984.88 Even the main objective of the Regulations was to regularize and legalize the detention of captured enemy combatants, miscreants and terrorists, and incapacitate them to raise arms against the Armed Forces or continue war against the state, by way of interning them during the period of insurgency. Their formal investigation and presentation through the LEAs was generally pended and conceived after the termination of ‘action in aid of civil power’. Whereas all actions done by the Armed Forces and their members in the affected areas from the 1st day of February 2008 till enforcement of the Actions (in Aid of Civil Power) Regulations 2011 have been condoned and validated.89 Regardless of the tacit or explicit intent of the Legislature, no opportunity should be missed to prosecute and convict the proved criminals with the available evidence of the interrogators and the accused, provided the same is true, trustworthy, convincing and capable of sustaining the test of scrutiny at the appellate stage. As a substitute, the other remedies in term of withdrawal of the internment order and release of more internees who are in prolonged custody and have repentance with guarantee of the family, jirga or the community.90

6.4.4 Effects of Investigation for Fair Trial Act 2013 The Act has been criticized and admired for both secrecy and confidentiality of the warrant, data and evidence gathered through the surveillance and interception, excesses to the right of privacy. It has also been criticized for having element of politicization of the warrant by the Minister by permitting surveillance or interception of his rivals and denying against own friends or party members. Interestingly, the decision of the Interior Minister to deny surveillance or interception is not subject to challenge before the court, whereas decision of the judge is subject to appeal before a division bench, which is against the norms of justice and bestowing absolute authority to the executive.91 On the other hand, it may be appreciated that unless the secrecy is maintained, it is highly improbable to acquire the required evidence and information to arrest the criminals and defeat their attempts to consummate their

88An exclusive discussion with the concerned military commanders on 15 October 2015, with the understanding of secrecy and anonymity. 89See for example:- preamble of the Regulations, Sections 2(8), 10(3)(b), 18 and 28. 90Ibid, Section 10(1) and (3) (c). 91Ch. M. Mahmood-ul-Hassan, Politicization of the investigation for Fair Trial Act 2012 (sic) (PLJ 2013 Magazine), available at http://www.pljlawsite.com/2013art29.htm , accessed on July 17, 2016. 284

activities into the offence of terrorism. The secrecy also helps to maintain morale of the investigating officials while maintaining discipline within the bounds of departmental disciplinary code. Seen in this context, the Act is comprehensive in nature as it not only permitted and institutionalized surveillance and interception by the intelligence and LEAs, but also provided a mechanism of check and balance on the arbitrary exercise of powers by the officials of the intelligence agencies and misuse of data, information or evidence collected thereby.

However, there is no such data available which may suggest as to how many warrants had been issued or refused against how many applications; and the number of service providers or officials of the intelligence or law enforcement agencies or other persons have been charged, punished or disciplinary actions initiated against them for breach of the provisions of the Act. It is also confidential as to how many warrants led to the successful investigations or prosecution of terrorism related offences and activities. There are three speculations; firstly, the applicants are satisfied with the powers given to them in the Act and exercising them without facing any resistance from the service providers or the aggrieved persons and processing the applications to the Minister for Interior for issue of the warrant by the judge; secondly, the applicants are aware of the powers and discretion of the judge and while processing the warrants are exercising self-restraint and take the relevant provisions into consideration whereby the misuse has been reduced; and thirdly, that an implied understanding has been arrived amongst all the stake holders to adhere to the provisions of law, while the judges also understand the necessity of the surveillance or interception having been recommended by an authority less than the Minister generally issue the warrant, subject to their satisfaction. Since the application form given in the 2 nd Schedule is comprehensive, encompasses the necessary details to satisfy the judges and in the absence of any thing to the contrary, it is more convincing to believe the third proposition, which ensures the objects and intent of the legislation. Absence of data regarding the number of applications processed and warrants issued, being classified in nature, may not be a sufficient ground to disbelieve positive conduct of the stakeholder, as envisaged under the Act. The success in apprehending the facilitators, abettors and surviving accused and their foreign links in Kamra Air Base and

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APS Peshawar carnage may be associated with the liberty of action and protection given under the Act.92

There is a dire need to maintain the pace of multi thronged policy of the government to fight terrorism through decisive fight i.e. ‘operation Zarb-e-Azb’ which should continue not till elimination or banishment of terrorists but until the seeds of terrorism are un- ploughed, the weeds are routed out and the field is leveled for sowing the seeds of fraternity, peace, justice, rule of law, respects for human rights, dignity of man, national security and integrity, and sovereignty of the state which grow into trees with deep rooted and strong trunks, protecting them from termite and viruses, converting the fields into an orchard and a garden blossoming with sweet fragrances and tasty fruits of the sowed seeds. These seeds and the trees would require sprays of a strong intelligence sharing mechanism, saving them from the weeds and wilds of remnants of terrorists intended to engage themselves into terrorist activities or commit acts of terrorism by arresting them before they execute any offence; and finally maintaining their security by preserving the budding and sprouting leaves and trimming the branches in the off-seasons of extending terrorism by awarding the terrorists with punishments commensurating with the gravity of their offences. This is how the government may maintain the previous garden of peace, ensure national security and meet the challenges faced by the gardener of criminal justice in Pakistan.

6.4.5 Effects of Protection of Pakistan Act 2014

A careful analysis of the POPA reveals that it was promulgated to validate the arrests, detentions and internments of the individuals in the custody of the LEAs and the Armed Forces without being brought to the justice. Such persons who are 6000-8000 in number were described as missing persons with either no substantial or very weak evidence to prove their culpability or sustain conviction in accordance with the recognized rules of evidence and principle of fair trial. Through the said Act, the Parliament has impliedly validated not only their arrests, detention, internment and condoned the persons responsible for their unlawful arrests and detention, or anything done in good faith by any person connected with

92An exclusive interview dated 20 August 2015 with an investigating officer linked to the cases. 286

their cases, as the Act had also been given retrospective affect.93 The Act reduced the quality of evidence required for conviction and accepted the report of the JIT as admissible in evidence. However, the Act did not describe the JIT report as a conclusive or sufficient evidence to secure conviction under the Act. The admissibility of JIT report in limited and at par with the challan or report of the police officer in terms of CrPC Section 173, which describe particulars of the accused, his existing status, whether on bail, arrested in judicial lock up or at large, facts of the case, the number of witnesses available to prove the occurrence or the charge.94 Since the JIT is to be produced before the ‘special court’ through the public prosecutor, it provided relief to the investigators and in the ordinary course exempted them from appearing before the court so that they may concentrate on investigation of other cases. However, the ultimate responsibility to prove guilt of the accused shall lie with the prosecution except few presumptions as to the commission of the offences in the case of enemy aliens and other militants.

Despite the liberty of action given in the Act, including preventive detentions, indemnity of actions done in good faith and validation of previous arrests, detentions etc efficiency of the investigating and judicial officials is still a question mark. The authentic number of cases prosecuted by the public prosecutors and decided by the special courts as well as under investigation or subjudice in the country is not known. It is also not ascertainable if these special courts are in fact functional after the establishment of military courts or are lying/placed in the dormant; or the real objective of validating the arrests and detentions in the backdrop of missing persons’ syndrome has been successfully achieved. The last proposition seems to be more convincing and find support from the fact that the law was valid for only two years and lapsed on 8th day of July 201695; the Act established the special courts for speedy disposal of cases but did not provide any time span for disposal of the cases by them; the special courts are obliged to take cognizance in only those cases which are assigned to them; except the offences at serial iv, xiv, xviii and xix of the schedule, all offences have been made punishable by the military courts established under the Pakistan

93An exclusive interview dated 6 September 2015 with Brigadier Muhammad Wasif Khan (Retired), ex Judge Advocate General, Pakistan Army. See also ibid Sections 6(5) and 20. 94Ibid, Section 7. Under CrPC Section 173, it is also the public prosecutor who produces the police officer’s report in the court. 95 The Act lapsed on 8 July 2016 and the government could not fectch political support to re-enact the same . 287

Army (Amendment) Act 2015; and finally, the Act obliged the prosecutor general to request the special courts to discharge or acquit any accused, if so desired.96

According to the data collected from Ministry of Interior and Ministry of Law, 26 special courts were designated under the POPA in the country and 86 cases were subjuice before them as on 14th day of December 2015. However, none of the cases had reached finality, inter alia, for the reasons that either the accused were absconder or the JIT was not established by the government or the judges were deficient of administrative staff and facilities to perform judicial functions. Out of the 26 special judges, 21 judges were in fact ACTs judges who were designated as special judges under the POPA as well.97 As per the data updated as on 20 November 2015 and available at Ministry of Law website, only five judges (one each in the 4 provinces and Islamabad Capital) had been appointed as special judges under the 2014 POPA, for a period of two years. 3 were appointed in January 2015; while one each for Karachi and Islamabad were appointed in May and September 2015. Interestingly, life of POPA was expiring on 8 July 2016 but they were to continue till 2017 in the months they were appointed. Number of cases assigned and decided by them is not available. According to Mr. Tariq Mahmood Butt, Regional Prosecutor General Quetta, 12 cases under the POPA were pending in Baluchistan (1 in ATC-I Quetta, 4 in ATC Naseer Abad (Dera Murad Jamali) and 7 in ATC Jaffar Abad (Dera Allah Yar), as on 20 November 2015. In those cases, the accused were absconders; hence neither any JIT was constituted nor the case moved ahead. It is evident that the special courts are sitting idle and jobless; while the cases were subjudice before the ATCs, who were also designated as special courts under the POPA.

In view of the above facts, questionable existence and performance of the special courts on adhoc basis with no conviction, the implicit and tacit intent of the government becomes more manifest when the number of courts and their performance may not be determined through the corroborated evidence.

96 For criticism on POPA, see also Reema Omer, “POPA: an ineffective law”; and “HRCP urges govt not to revive POPA”, DAWN Islamabad, July 19 and 23, 2016, pp. 8 and 2 respectively. 97 This is evident from the Ministry of Law, Justice and Human Rights Notification No. 31(7)/2013-AV dated 31 March 2014, whereby the Federal Government, in pursuance of Section 8 of the POPA 2013 established 21 courts (3 in Punjab, 5 in Sindh, 6 in KP and 7 in Baluchistan). On 26 December 2014, the Federal Government vice office order No. F. 31(7)/2013-AV appointed Mr. Zafar Ali Khoso, a retired District & Sessions Judge as special judge under POPA; and placed assets and resources of Accountability Court II, Quetta at his disposal. 288

It may be highlighted that after the establishment of military courts, the federal government had desired that the cases pending with ATCs and at the final stage of adjudication should be decided by the ATCs. Accordingly, the federal government, while approving cases for transfer from civil to the military courts, issued specific instructions to the provincial governments that until the accused is physically handing over of to the military authorities, his trial will continue in the concerned court/ATC. And pending/awaiting formal handing and taking over of the accused, neither the trial proceedings shall freeze nor operation of law in the courts who having already taken cognizance into the matter shall cease.98 But the ensuring results are not encouraging. Even the cases at the final stages of adjudicating in ATCs were processed to the federal government for transfer. In some of the cases, the prosecution had concluded and the judge was to deliver the judgment after arguments by the counsels; while in some other cases, formal witnesses of recovery were to be produced to conclude the trial. However, the proceedings in such cases were stayed to shift the responsibility to the military courts. When approached, the concerned prosecution departments and the police officials straight away denied to continue prosecution in civil on the pretext that the prosecuting officials, counsels, judges, and witnesses do not feel secure or comfortable to proceed with the trials, as not only the convictions would be doubtful but set aside by the High Court in appeals. Despite persuasion, specific instructions and directions by the government, they did not move an inch ahead.99 This was the greatest challenge in the wake of establishment of the military courts that instead of complementing each other, the responsibility was avoided and shifted to the temporary military courts, either in view of the confidence on military courts or to malign them for ‘hurried and buried justice’.

The offshoot of above analysis is that post-9/11legislation was overwhelmingly national security and anti-terrorism specific.It provided unbridled powers to the LEAs/Armed Forces and legitimized their actions in the heat of battle against the terrorists. However, their collateral damage to the human rights and constitutional guarantees, which was obvious, could not be controlled, as the judiciary was not geared up to play the lead and effective role in the criminal administration of justice. Ultimate effect of the post-9/11 legislation is that

98An exclusive interview dated 25 August 2015 with an Additional Secretary of the Ministry of Interior, while sharing contents of a latter initiated on the same date. 99An exclusive interview dated 10 September 2015 with an official who is privy to such development. 289

judiciary succumbed to the legislature and accepted trial of the civilians accused of terrorism in the name of religion and sect by courts martial and find a refuge in these legislations. While terrorism is still ongoing, the military is in the hunt of terrorists with its combat and judicial organs.

6.5 Did the Amendments Introduced in the Security and Anti-terrorism Laws of Pakistan after 9/11 Improve, Complicate or Compromise Criminal Justice System in Pakistan? Analysis of the security and anti-terrorism laws discussed in the post 9/11 scenario reveals that these are either replica of the previous legislations or have been adopted mutatis mutandis with new names and few adjustments in the legislations introduced to fightterrorism. The Official Secrets Act 1923 deals with espionage cases, which are prejudicial to the safety or interests of the state. This legislation is applicable till todate and is invoked directly and indirectly, against the spies.100 Explosives Act 1884 and Explosive Substances Act 1908, Prevention of Seditious Meetings Act 1911 are also applicable and carry the field.101 Substance of the Prevention of Seditious Meetings Act 1911 which intended to prevent and punish (the offence of) public or private meetings, intended to promote sedition or disturb public peace has also been included in the Security of Pakistan Act 1952, the West Pakistan Maintenance of Public Order (MPO) 1960 and Anti-terrorism Act (ATA) 1997. The difference is that the 1911 and 1952 Acts provided for preventive detention of such persons whereas the MPO 1960 and the ATA 1997 described such acts as offences and made them punishable.102 Similarly, the 1952 Act targeted persons (including the foreigners) acting against “the defence, external affairs; and security of Pakistan” and provided for their preventive detention even upto 12 months and their exit from Pakistan. The Act also provided for restricting move of such persons, their temporary and conditional release and control of communication and publication prejudicial to the defence, security and external affairs of Pakistan.103 These provisions of the 1952 Act and the MPO 1960 relating to preventive detention (upto six months) of persons acting or likely to act in a manner

100 For example: Any person accused of spying may be tried by a Magistrate designated under Sections 12-15 of the Official Secrets Act 1923 or by courts martial convened under the Services Laws. See PAA Section 2(1)(d) and 59 and Section 17 read with Schedule III thereto of the Actions (in Aid of Civil Power) Regulation 2011. 101 Ibid. 102 See for example: Explanation II to Section 3 and Sections 4-8 of the MPO 1960 and Section 11E, 11EE of the ATA 1997. 103 Preamble, Sections 3, 6A and 10 of the 1952 Act. 290

prejudicial to public safety or maintenance of good order, restricting their movement and requiring them to provide surety bonds for good behavior and compliance of restraining order have also been included in the ATA 1997.104

The provisions regarding preventive detention have also been incorporated in the POPA 2014 for the purposes of investigation and preventive detention of preventive detention of “militants” and “enemy aliens” for 60 and 90 days respectively.105 Such persons no doubt may be presumed to be acting in a manner prejudicial to public peace and safety, disturbing maintenance of law and order and could be conveniently brought within the pale of the already existing laws, rather than introducing legislation after legislation.

It is interesting to note that the CrPC which is the basic procedural law relating to crimes has dedicated a complete chapter for measures to prevent crimes and ensure peace and good behaviour from criminals or persons acting in a manner prejudicial to public safety, national security and maintenance of peace and, order.106 The CrPC also authorizes a court to require a convict or any person disseminating seditious matter or a vagrant or a suspected person and a habitual offender to execute bond or surety or security for keeping peace and good behaviour; and provides procedure for achieving the desired objectives.107

Punjab Restriction of Habitual Offenders Act 1918 also contains such provisions. The Act authorizes a Magistrate to issue an order of restriction against a habitual offender if such a person fails to execute a bond or security of good behavior or satisfy the Magistrate as to why an order of restriction should not be passed against him. While making an order of restriction, the Magistrate is required to follow the procedure given in CrPC108; and the terms of restrictions shall not exceed three years.109 By virtue of such an order, the habitual offender or a convict after the expiry of his sentence may be required to report himself before the officer-in-charge of the police station at the time and place and in the manner specified in the order. The Magistrate may issue such order only if he is satisfied that the person so restricted has sufficient means of earning his livelihood in the restricted area; else he shall

104 See Sections 4-8 of the MPO 1960 and ATA 1997 Sections 11 E, 11 EE, 1 EEE and 11 EEEE. 105 Sections 2, 5 and 6 of the POPA 2014. 106 See CrPC Chapter VIII (Sections 106-126). 107 Ibid. 108 The procedure is given in CrPC Sections 112-117, 123(3) and 565. 109 See generally sections 3-4, 8-9, 11 and 17 of the Act. 291

change the area of restriction and shift him there. In case of breach of order of restriction, the accused on conviction by the Magistrate may be punished with imprisonment of either description which may extend to one, two and three year(s) on first, second and third convictions respectively, or with fine.110 During the period of restriction, the restricted person may be issued a pass and allowed to proceed on leave; and may also be required to present himself before the village headman or officer-in-charge of the police station of the visiting area. In case of any violation/overstaying leave, the pass may be withdrawn. Sentences/penalties under the said Act are subject to appeal before the District Magistrate.111

Registration of Foreigners Act 1929 and Foreigners Act 1946 provided a mechanism to check entry, stay, movement and activities of foreigners in Pakistan as well as control their exit from Pakistan. These laws are still operative in Pakistan. Any foreigner in Pakistan may be arrested, detained or confined, for a period of two months in the interest of security of Pakistan.112 Such persons shall be described as “internees” or “persons on parole”, if on parole. If foreigner is an “enemy foreigner”, he would be interned in the “internment camp”,113 subject to camp discipline 114 and privileges under Article 125 of the Geneva Convention Relative to the Protection of Civilians in Time of War 1949. The provisions relating to internment contained in these and other foreigners laws have been generally assimilated in the Actions (in Aid of Civil Power) Regulations 2011 for FATA and PATA, the Rules and procedure made thereunder.115 However, the irony is that the “internees” defined in the 2011 Regulations and Rules were not exclusively foreigners. In these Regulations and Rules, any person described as “miscreant” and against whom the internment order had been issued would be termed as internee116 and kept in the internment centre during the continuance of “counter insurgency” or “action in Aid of Civil Power”, as it

110 Ibid. 111 See generally Rules 6-9 and 12-13 of the Rules under the Habitual Offenders (Punjab) Act, 1918. 112 Section 3(2)(g) and (4) of Foreigners Act 1946 read with Paragraphs 15-16 of the Foreigners Order 1951 and Sections 6(2) and 6A of the Security of Pakistan Act 1952. 113 Paragraphs 2-8 of the Enemy Foreigners Order 1965, which is also applicable to tribal areas. 114 Internees (Discipline and Offences) Regulations 1965. 115 See also Khyber Pakhtunkhwa Internment Rules 2011 and Provincially Administered Tribal Areas Interment Procedure 2011, both issued separately vide Government of Khyber Pakhtunkhwa, Home and Tribal Affairs Department Notification No. SO (FATA) HD/1-60/CPR/2011 dated September 8, 2011 (of same number). 116 Rule 2(b)/e and (1) of the above mentioned Rules and Procedures of 2011. 292

was subsequently amended, so as to incapacitate him to commit any crime and restore peace in the areas of military operation.117

Although internment was a temporary phase but it continuing even after the operation in the described area have concluded and peace restored. Many of these internees were subsequently tried and punished by the courts martial established after promulgation of the Pakistan Army (Amendment) Act 2015.118 However, none of them was sent on parole which provision was even available to the “enemy foreigners” in terms of Foreigners (Parolees) Order 1965. In contrast thereto, the provisions for release from the internment centre have been provided in the 2011 Regulations. But no such remedy had been extended to the internees, most of them are Pakistani. Therefore, there is a need to reassess the cases of those languishing in the internment centres, with offences of lesser gravity, and mended their conduct, for release and handing over to the families and jirgas, as this option is also given in the 2011 Regulations.119 This will help built confidence of the locals, rehabilitate them and ensure lasting peace.

This research question may also be evaluated with the help of table 6.1 (Comparative Analysis of Anti-Terrorism and other Laws of Pakistan and placed as appendix C) which makes a comparison as to which of the offences already existing in PPC, ATA and other laws were included in the POPA and the PAA (after the 2015 amendments).

A careful analysis of the security and anti-terrorism legislations juxtaposed in appendix B suggests that no substantial improvement was made to remedy the sick criminal justice system. The successive governments, in the first instance, remained ignorant of the existence and efficacy of the existing laws in controlling crimes and the menace of terrorism; secondly they resorted to new legislations on the desire of the army, without political will and creative options; and thirdly, the judicial officers could neither properly understand nor apply provisions of the new laws.120 This phenomenon confused and compromised the criminal justice system. The criminals were already at the mercy of the police, who could

117 Rule 2(g) of the 2011 Regulation. 118 This was in line with Rule 10(3) (b) of the 2011 Regulation. 119 See ibid 13(3) (c). 120Reply to a Questionnaire by Mr Ahmer Bilal Sufi, Advocate Supreme Court of Pakistan, dated 7 December 2015. 293

charge them either under the PPC or the ATA, at its discretion. After the fresh enactments, not only the police and prosecution but also the judicial officers were confused how to charge and where to try the terrorism offences. Legislation after legislation and amendments after amendments did not provide sufficient opportunity and training to the police and judicial officers to understand and apply the law in letter and spirit. They remained submissive to the security and intelligence agencies, whose focus was only national security, and generally acted on their advice and dictation. Resultantly, despite proscribing strict punishments, establishment internment centres, extensive powers of arrest and detention, relaxed provisions for admissibility of evidence, shifting the burden of proof on the accused, neither conviction rate substantially increased nor did the issue of missing persons or human rights violations could be resolved. Thus the ultimate conclusion is that the security and anti- terrorism legislation of Pakistan after 9/11 generally confused and complicated criminal justice system. 21st Constitutional amendment and the amendment introduced in the PAA in 2015, though provided a distinctive forum of trial, yet was overlapping and confusing. The procedure for selection and approval of cases by the federal government for trial by courts martial was blend of exercise of administrative authority by the civil-military leadership.

6.6 Do the Legislations Introduced after 9/11 Conform or Violate International Legal Standards?

International legal standards are neither uniform nor have been verbatim adopted by all the states member to the United Nations Organization. They are suggestive in nature and are generally adopted by the nations who ratify the relevant conventions, covenants or declarations, by assimilating the same in their respective legal framework i.e. constitutions or subordinate legislations. Universal Declaration of Human Rights 1948, Convention for the Protection of Human and Fundamental Freedom 1950, European Convention for Human Rights 1950, International Covenant on Civil and Political Rights 1966 and American Convention of Human Rights 1969, though similar in nature, are not verbatim copy of each other. Universal Declaration of Human Rights 1948 provided minimum standards of human rights, whereas some of the nations gave more rights to their subjects and expected the other nations to adopt the same as compulsory human rights. For example: “right to life” is recognized in all the legal documents and has also been protected under 1973 Constitution of

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Pakistan as well. However, describing death penalty as cruel, inhuman and violative of “the right to life” is not universally accepted.

In America, Pakistan, India, Iran, Bangladesh, Saudi Arabia, Afghanistan and many other countries of the globe, death penalty is considered as an effective deterrence against heinous crimes, especially murder and terrorism causing death, and is being awarded. Except the European Convention, which was subsequently modified by Protocol 6 to prohibit death penalty during peace time, no other international legal document absolutely prohibits death sentence. The unanimous substance in all the international legal instruments is that death sentence should not be awarded in ordinary cases. It may be inflicted only in heinous and most serious crimes, after a fair trial by a court of ordinary criminal jurisdiction and which follows due process of law. Also the convict should not be executed unless he has exhausted the right to final appeal, mercy petitions and compromise or forgiveness by the aggrieved party. Anti-terrorism legislation introduced in Pakistan after 9/11 conforms to the international legal standard to this extent in theory at least. Except reservations regarding trial by ordinary criminal courts and fair trial in some cases, no convict has been executed in Pakistan unless he has invoked the appellate jurisdiction or judicial review powers of the superior courts and his mercy petition had been processed to the president.121 No incident has been reported where any condemned prisoner had been executed without processing his petition to the President.

Coming to the condition of trial by criminal court of ordinary jurisdiction and fair trial, the criticism is subject to debate. In the criminal justice system of Pakistan, trial of heinous crimes by special courts is recognized since the beginning. Trials by the special courts established under the Official Secrets Act 1923, Rawalpindi Conspiracy (Special Tribunal) Act 1951, Criminal Law Amendment (Special Tribunal) Ordinance 1969, Suppression of Terrorist Activities (Special Courts) Act 1975, Criminal Law Amendment (Special Court) Act 1976, Special Courts for Speedy Trial Act 1992 and Anti-terrorism Act 1997 had been conducted and recognized by the superior judiciary as an alternative arrangement in view of the nature and gravity of offences. The arrangements were never

121In the ordinary cases of murder and homicide, the accused/convict even has the right to seek compromise or waiver by the aggrieved party in terms of PPC Sections 309, 310 and 338E.S 295

mala fide but intended to conclude the trials with focused attention of the courts, which the ordinary courts could not pay due to enormous workload. The accused and the courts were also required special handling and security which could not be ascertained in the ordinary courts. In view of the recognized practice under the superintendence of the superior judiciary, special courts had been validated as ordinary criminal courts within the meaning of Article 175 of the Constitution. Therefore, trial by the ATCs or special courts established under the POPA and presided by serving or retired judicial officers or advocates shall be deemed to have been conducted by the ordinary courts of criminal jurisdiction. It may otherwise be mentioned that no special court established under POPA has so far convicted a single person what to talk of awarding death sentence to any accused.

The most crucial criticism is made against trial of civilians by military courts authorized under the Pakistan Army (Amendment) Act 2015 and protected by the 21st Constitution, followed by judgment of the Supreme Court in District Bar Association Rawalpindi case. As a matter of routine legal arrangement for trial of civilians, they are not amendable to trial by courts martial or military courts but the national laws and international legal standards provided an exception to this general principle. Article 5 of “the 4th Geneva Convention Relative to the Protection of Civilians in Time of War 1949” suggests that civilian spies, saboteurs or those engaged in prejudicial activities against the occupying state or suspected of so doing shall lose the benefit of trial by ordinary civil courts and could be tried by courts martial in term of Article 66 of the Convention. The 21st Constitutional Amendment approved by the Supreme Court had also validated trial of civilians accused of certain offences relating to terrorism committed in the name of religion or sect. In the given circumstances, death penalty awarded by the military courts to civilians accused of terrorism may also be executed and it had been done so against 8 convicts of courts martial in December 2015.122

Now the question arises if the accused being tried and convicted by courts martial had been given fair trial or a fraud had been committed in the name of court martial. Perusal of the courts martial proceedings of some of the cases revealed that procedure of trial under the PAA Rules has been followed. In almost all the cases, judicial confessions of the accused had

122This is in line with the data retrieved with the courtesy of Ministry of Interior. 296

been made part of the proceedings, they had been given services of a defending officer and they had volunteered statement in defence and mitigation of sentence, which were mostly inculpatory. They had also cross-examined some of the witnesses as well through their defending officers. The trial courts had been properly convened and charges framed in accordance with law. The courts also returned their verdict and awarded the sentence of death, where so applicable, in concurrence with all the members of the courts. Generally the trial proceedings were free from errors and omissions.123 The trial proceedings also contained stories of brutalities committed and admitted by them. One of the accused namely Fateh Khan, on 5 July 2014, at Akka Khel (Khyber Agency), had slaughtered Said Rasool, a village-mate, severed his head with hatchet, mutilated his dead body and dragged it behind the jeep so as to create terror amongst the locals assisting the LEAs. He also prepared a video of his brutal act which is part of the trial proceedings. Similarly, there are other incidents as well wherein tens of serving officers and soldiers of the armed forces and civil armed forces were kidnapped and slaughtered. Reference in this regard may be made to another case of Muhammad Qayyum Bacha, who along with his commander Mufti Meraj and other accomplices slaughtered Captain Junaid Khan, Captain Najam Riaz and two soldiers on 11 May 2009 in Paithom area. Murad Khan, Inayat Ullah, Muhammad Asghar, Haroon Rashid, Ahmed Ali were also charged and convicted for slaughtering the armed forces personnel in a different areas and time span. APS carnage on 16 December 2014 also cannot lose sight of the masses and so was the execution of its facilitators, including Hazrat Ali, Mujeeb Ur Rehman, Sabeel, Molvi Abdus Salam, Taj Muhammad and Ateeq Ur Rehman, who were executed during December 2015.124

The list of brutalities committed by the terrorists is very large, which includes raising arms or waging war against Pakistan, attacking the armed forces, kidnapping for ransom, killing and slaughtering armed forces personnel and civilians, attacking educational institutions, hospitals and police stations, using improvised explosive devices (IEDs) to cause loss to military and civil installations and human and material resources, collection of

123The record has been perused with the courtesy of Judge Advocate General’s Department of the Pakistan Army and Ministry of Interior, Government of Pakistan. 124Ibid. 297

ransom/extortion to advance the cause of terrorism, possessing, transporting and fabricating explosives and fire-arms, large scale violence etc.

On the other hand, some of the accused/convicts, their families and counsels had alleged at the appellate stage or during petitions that they were given perfunctory trials. They were produced before some officers for some proceedings and it was after their committal in the prisons that they had come to know that they were awarded death penalty or imprisonment. Such accusations cannot be straight away refuted but to prove them is the responsibility of the convicts, who are handicapped to support their claims. On the contrary, it is argued that if the military authorities are taking pain in collecting and recording evidence in the Summary of Evidences, holding trials after taking oath, why should they dispense with the procedure and convict the accused without following due process.

The general perception is that the convicts when they are committed to civil prisons and interact with inmates, they retract their confessions and concoct stories of innocence to gain sympathies. Such perplexed phenomena give rise to human rights issues. Especially, when the accused are not provided the liberty to engage counsels of their choice or they cannot afford to engage one or access to their family; their trials are conducted in closed courts i.e. without access to families or counsels; the judgment itself is not in the form of a speaking order; and when they are denied copy of trial proceedings. Although such allegations are mostly denied by the military authorities on the authority of law but such accusations make discharge of the “due process and fair trial” obligations doubtful for nothing. This state of affairs provide the human rights activists good cause to raise eyebrows in matters which could have been settled within the bonds of law and having recourse to law, without compromising security. This would have elevated stature of courts martial and demonstrated more transparency, which is shrouded with mystery and doubts.

End result of the above analysis is that the amendments introduced in anti-terrorism laws of Pakistan after 9/11 conform to international legal standards, with the exception of few provisions which are also recognized on the basis of the principle of derogation. However, trial by courts martial, being conducted in cantonments, have given rise to speculations for violation of “due process” and “fair trial” standards.

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6.7 Do the Trials of Civilians by Courts Martial Offend Human Rights?

There had been debates about the conduct of trials and justice delivered by the military courts or courts martial125 established and protected under the 21st Constitutional Amendment. Concerns of the human rights activists and legal fraternity seemingly and generally are appealing, and such grievance, if actual and existent, are awful and disastrous to the military justice system. However, it is important to examine and analyze grievances of the human rights people in theoretical and practical perspectives. The most common grievances are:-126

a. The procedure of selection and reference of a case to tender the accused, especially a juvenile offender, for trial by military courts and secrecy of location, place and time of trial are against the international standard.

b. Trials of civilians before military courts offend international legal standards and violate protection given under 3rd and 4th Geneva Conventions 1949.

c. Military courts do not cater for requisite incriminating evidence for conviction.

d. Military trials offend the requirements of fair, open, independent and impartial trial before the civil courts.

e. Trials of juvenile offenders by the military courts vitiate international and national standards laid in “International Covenant on Civil and Political Rights 1966 (ratified by Pakistan in 2010), UN Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules) and the Juvenile Justice System Ordinance 2000.

f. Since the military judges are part of the executives and they are not legally trained, they cannot protect rights of the juvenile offenders.

125 Courts martial are generally termed as military courts but both are different from each other. Military courts are generally established during martial law or emergency; whereas courts martial are convened under military laws. This distinction has been maintained, in the dissertation wherever so required. 126See for example:- Sameer Khosa, “Bleak Justice”, DAWN Islamabad, December 16, 2015, p.9; Reema Omer, “Children and military courts”, DAWN Islamabad, December 14, 2015, p.8. 299

g. Cases may be referred to military courts due to public pressure or on desire of influential government functionaries.

As a matter of strict law, no civilian is triable by a court martial or military court. He has a right to be tried by a criminal court established under Article 175 of the Constitution, which had been the basis for excluding courts martial or military courts, being part of the executive branch of the state, from the corpus of judiciary or “such other courts established by law.” The question of establishment and jurisdiction of “military courts” was determined by the Supreme Court in favour of the civilians in Sh Liaquat Hussain case. However, in the wake of collective will of the nation to fight terrorism and demonstrated as such in the 21st Amendment and Pakistan Army (Amendment) Act 2015, the apex court conceded to the collective desire of the nation in the compelling circumstances for limited period of two years ending on 6 January 2017. Accordingly, the trials of civilians by the “courts martial” were validated by the Supreme Court in District Bar Association Rawalpindi case, subject to exercise of judicial review powers of the superior judiciary, when so invoked, and direction to follow due process, act fairly and in accordance with law. The Supreme Court applied the criteria of “belligerent combatant”, “” and “enemy combatant”, as employed by the American Supreme Court in Ex Parte Quirin [317 US 1] (1942) and Hamdi v Ramsfeld [542 US 507] (2004), and upheld subjection and trials of terrorists using the name of religion or sect under Section 2(1)(d)(iii) of the Pakistan Army Act (PAA) 1952 as amended by the Pakistan Army (Amendment) Act 2015. While doing so the Supreme Court also critically examined relevant provisions of 3rdand 4th Geneva Conventions, more specifically Articles 4, 99 and 102 of the 3rd Convention and Articles 15, 66-67, 71-73 of the 4th Geneva Convention; and concluded that trials by military courts is a legally maintainable option for trial of terrorists who fall within the category of POW and “belligerent civilians engaged in spying or saboteur and other activities prejudicial to the security of the detaining state” within the meaning of Articles 4 and 5 of the 3rd and 4thConventions respectively. Such persons lose certain privileges including trial by regular courts and are amenable to courts martial.127 Since Supreme Court is the final arbiter in any legal controversy and all executive and judicial authorities are obliged to act in aid of the Supreme Court, this controversy is

127Paras 19-24 of Justice Bandial’s judgment in District Bar Association Rawalpindi Case. 300

required to be resolved in favour of decision of the Supreme Court and accepted in terms of legal fetters placed therein.

The issue of secret and perfunctory trials by the military courts as well as violation of due process has been examined in the light of relevant provisions of the PAA. Secrecy of trials, violation of due process, non-availability of contents of the charge sheet and record of trial proceedings to the general public are in fact issues or have been propagated as such issues are real concern of the military officials and the human rights groups. It is therefore desirable to have recourse to the theory and practice of trial by courts martial.

6.7.1 Mechanism of Trial before Courts Martial

A cursory glance on the PAA suggests that the accused is entitled to receive charge sheet and the Summary of Evidence at least 24 hours before commencement of his trial. 128 The charge sheet must contain specific accusation against the accused whereby he must understand and must be able to know the allegations against him;129 while the Summary of Evidence is a document which contains statements of the prosecution and defence witnesses. The accused is also competent to make any statement, if he so elects, and cross-examine any prosecution witness in the Summary but he can neither be compelled nor denied to do so. 130 The accused is also entitled to the “legal assistance” of the defending officer, who is a military officer and advice of the Judge Advocate at the trial, who is an officer of the Judge Advocate General’s Department.131 The latter is also required to ensure legality and correctness of the trials proceedings as per the laid down procedure of trial and obligation of his oath. The accused, the prosecutor and the court, all are entitled to his advice on points of law;132 while the accused is also entitled to engage a defence counsel of his own choice, at his own expense, and communicate with his counsel and witnesses.133 Generally the prosecutor and defending officer plead the case for prosecution and defence respectively but prosecution and defence counsels may also be appointed or engaged by the parties.134 Before the accused is arraigned on the charge, the court which consists of not less than three officers

128 PAA Rule 23 and 24. 129PAA Rules 19-23. 130PAA Rule 13. 131PAA Rule 81 and 89. 132PAA Rule 89. 133PAA Rule 23. 134PAA Rules 81-87. 301

generally of the rank of a Lieutenant Colonel and Majors, an interpreter and the Judge Advocate, who is a law qualified officer with sufficient service and experience to conduct trials, are administered oath.135 The accused has the right to object to any member of the court and his objection is disposed of in the absence of the member so objected. If the accused satisfies other members of the court of his objection or bias of the objected member against him, the member will retire and be replaced with a new member.136 Court Martial is an open court but has the inherent right like any other court to conduct the whole trial or any portion of it in camera if the circumstances so warrant.

The accused, on arraignment, may plead guilty or not guilty to the charge(s); and if the court considers that the accused does not understand the effect of his plea of guilty or there is anything in the Summary which is contrary to his plea of guilty or the offence is such that he is likely to received capital sentence, the court is legally bound to alter his plea and proceed the trial as on the plea of not guilty.137 The charge is read over and explained to the accused before he pleads and the prosecutor makes the opening address.138 The evidence of each prosecution witness is recorded on oath in the presence and hearing of the accused and the defending officer or defence counsel, if any, throughout the trial proceedings, as the military law does not recognize any absentia trial. The proceedings and evidence is recorded in English and read over the witness/accused in the language he understands; and he or his counsel may get same corrected. The parties have the right to inspect the proceedings and take notes for preparation of cross-examination and addresses. The accused, defending officer or the defence counsel has the right to cross-examine the prosecution witnesses raise any objection on law points, offer plea of no case or plea of bar, produce defence witnesses or tender the accused for making statement in defence subject to his free will, administration of oath and right of the prosecution to cross-examine.

Before the court closes for consideration of the finding on the charges, not only the parties are afforded the opportunity to address the court and present their arguments but also the judge advocate is obliged to deliver a summing up which contains brief, relevant and

135PAA Rule 28-37. 136PAA Rule 35. 137PAA Rules 42-44. 138PAA Rule 38. 302

martial evidence of the witnesses, as well as advice/explanation on legal points raised by the parties or connected with the case.139 Thereafter, the court deliberates on the charges, facts of the case and testimonies of the witnesses, addresses/arguments advanced by the parties and summing up by the judge advocate. During these deliberations, only members of the court are present; while the judge advocate, accused, prosecutor and defending officer or defence counsel are directed to leave the court. Having determined guilt or acquittal of the accused, the court is reopened, the accused, prosecutor, defending officer, defence counsel and judge advocate also rejoins. In case of acquittal, the court adjourns; while in case of a verdict of guilty, the court proceeds to call witness as to character and previous conviction, if any, of the accused. This witness is also subjected to cross-examine by the defence, whereafter the accused may make statement in mitigation of sentence. The court closes for deliberation of sentence but in the presence of the judge advocate, who guides the court by referring to the quantum of sentence i.e. the upper and lower limits, the procedure to be followed, as death sentence cannot be passed without concurrence of all the three members. Having recorded the sentence and recommendation for mercy in most of the cases, the court adjourns sine die.140

The proceedings are then transmitted to the convening authority through the Judge Advocate General’s Department. An officer of the independent Section of the Department critically reviews the proceedings and advises the convening authority either to confirm the findings, sentence and proceedings or suggests for revision of the proceedings i.e. finding or sentence or both, by recording additional evidence, if so required, to make up legal deficiency so as to meet the ends of justice. Should the convening authority, who is also the reviewing authority, agrees with the advice of the Department, he may issue a revision order highlighting the reasons for doing so. The court follows the mandatory procedure of trial if additional evidence is to be recorded. Otherwise the proceedings are conducted in the absence of parties. The court may revise the findings or sentence or adhere to the original findings or sentence. The proceedings are then resent through the same channel, whereafter the same are either confirmed or not confirmed and then promulgated to the accused, who is

139PAA Rules 46-47. 140PAA Rules 51-56. 303

committed to civil jail to undergo the sentence, if required to be carried out and executed there.141

The accused has a right to copy of trial proceedings except if the Chief of Army Staff (COAS) orders otherwise in the interests of the state. In such eventuality the convict or his counsel has a right to inspect the proceedings and take notes for preparation of appeal. 142 In case the accused is awarded simple dismissal or dismissal combined with death or imprisonment, which is to be undergone in civil prison, he has a right to appeal within 40 days before a Military Court of Appeal, which is presided over by an officer not less than the rank of Brigadier. In case of death or hadd punishment, the Special Court of Appeal consisting of at least a Major General and three Brigadiers with a judge advocate is constituted to hear the appeal, whose decision is final.143 However, the convict has the right to petition or mercy petition before the Formation Commander within a period of two years of promulgation of sentence or to the COAS.144 Death sentence is otherwise not valid unless confirmed by the COAS and the mercy petition is processed to him and the President. 145 In case of rejection of the mercy petition, the condemned prisoner is executed as provided in the Jail Manual, in compliance of the execution or black warrant issued by the COAS. During this whole process, the accused, though debarred under Article 199(3) of the Constitution, may invoke jurisdiction of the superior judiciary in the nature of a writ petition.146

The above procedure of trial before a court martial more or less is relatable with a jury trial and does not offend due process and fair trial; except that it does not make a speaking judgment, conduct the proceedings on day to day basis and avoids unnecessary adjournments and in some cases denies copy of proceedings to the convict. Trial by persons in uniform and not by an ordinary criminal court is considered its inherent violation of international legal standards and 3rd and 4th Geneva Conventions, which themselves create exceptions for POWs and “belligerent non combatants or citizens.” The above said deficiencies when viewed in the overall context of their impact on trial or rights of the

141PAA Rules 57-58. 142PAA Rule 130 and 224. 143PAA Sections 133A and 133B; and PAA Rules 221-224. 144 PAA Section 143. 145 AR (I) 319A and Article 45 of the Constitution. 146See generally PAA Rules 19-65, 221-230, PAA Sections 84, 128, 133A and 133 B, 134 and 143. 304

accused, with the exception of few circumstances, are not material enough to unhinge the whole procedure of trial before courts martial. The military judges may be handicapped to right reasoned judgment but, being rational and prudent persons with the obligations of oath and experience in quick decision making during war or war-like situations endangering their lives and those of their under command, they are not handicapped to make reasoned and right decision. The reasons, though not written, may be calculated from their verdict; and in case of doubt they may be called as witnesses and subjected to cross-examination and questions by the Military Court of Appeals, as is done in cases where the appellant brings mala fide or irregularities at the trials.147

The convict is only denied of trial proceedings that too with the approval of the COAS, if the charges relate to spying or such occurrences disclosure or publication of which may prejudice the security or institutional interests; but the convict is never denied the right to inspect the proceedings, take notes and prepare his defence. It is a misconception that trials before military courts are necessarily conducted in secrecy. Courts martial may not be convened in the ordinary courts premises. Obviously, the trial proceedings are to be conducted in some unit or place in the cantonment areas, which are not accessible to general public for security and administrative reasons, which is also one of the reasons for failure of criminal justice system in Pakistan. Even for security reasons, the ATA authorizes conduct of trials in prisons and other protected places,148 which may also include cantonment areas. Otherwise also the general public, media and human rights lawyers, with the exception of a few, are neither interested nor have any concern with such cases. They intend to serve their own purposes. No criminal has a right of media coverage of his trial. General public has no interest to know the exact location of units and particulars of the courts, while the media and human rights act as judges in the cases before complete evidence is recorded and the court delivers it verdict. The talks shows and comments in the electronic and print media instead of serving the cause of fair justice hamper the process of justice by making comments and reports on the trial and evidence, conduct of the judges and the witnesses, releasing stories of innocence and guilt of the accused, put the judges under pressure and attribute them of biased

147PAA Section 133B. 148 Anti-terrorism Act 1997, Section 21. 305

judgments, even though the judgment is based on merits of the case, the judges also tend to get influenced by watching the talk shows and reading news papers.149

In the given terrorism scenario, secrecy may be a necessity for protection of accused, witnesses, prosecution and even defence lawyers as well as the judges, which is being emphasized by the judiciary and the other stake holders.150 The best course for the human rights lawyers and groups is to volunteer and contest the cases of the accused whom they considered are not being given fair trial and in whose cases due process is being violated.151 With regard to the trials of accused under the Pakistan Army (Amendment) Act 2015, ISPR issues press release after the trial process is completed; brief particulars of the accused, charges against them and the punishments awarded are also made public. Even the death penalty is executed through prisons where they are executed and no secrecy is maintained. This is in compliance of UN Secretary General report on “Moratorium on the use of death penalty” wherein he suggested that no death penalty be carried out in secrecy.152 However, there had been reports and complaints by the families of the convicts that they were not provided opportunity of meetings and engaging defence counsels of their choice at the trials. Such reports and grievances, though not surfaced in all cases, are detrimental to the criminal justice being administered by the military court. Leaving the discussion open ended, there is a need to dispel the prevailing impression regarding violation of fair trial and due process under the Army Act as well as impression of secret trials or secret death executions.

No empirical and authenticated data is available to prove that military courts do not cater for requisite incriminating evidence. Perusal of record and the trial proceedings in the cases of persons being recommended and tried by the courts martial reveal that direct ocular account of events is neither available in 100% cases, especially in suicide bombings, bomb blasts or attacks on Armed Forces, police and public places, nor it is a legal necessity. Circumstantial evidence, judicial and extra-judicial confessions, testimonies of the available

149 See Sayed Ali Zafar, “Fair Trial - Prospects and Implementation” (PLD 2014 Journal 54). 150 Chief Justice Anwar Zaheer Jamali also observed that “Pakistan was passing through extraordinary time, which required exceptional measures for proper administration of justice.” He also referred the murder of Additional Sessions Judge Rawalpindi Tahir Khan Niazi during August 2015 and kidnapping of Barrister Awais Ali Shah, the son of Chief Justice Sindh High Court, Justice Sajjad Ali Shah. See Baqir Sajjad Syed, “Sindh CJ’s son recovered, three TTP militants killed in Tank”, DAWN Islamabad, July 20, 2016, pp. 1 and 5. 151An exclusive interview dated 15 December 2015 with Miss Naeema Sadaf, Advocate Lahore High Court. 152Para 72 of the report available as UN document A/65/280 dated 11 August 2010. 306

witnesses and aggrieved parties, call data record, forensic evidence, press and media reports etc are also used to help the court reach just conclusions. However, impression of fake and tutored confessions, if any, is required to be dispelled by the judiciary through the conduct and confidence in law and the magistrates recording confessions.

There is no disagreement on the proposition that public trials ensure transparency, check and balance, fair trial and due process. But the public trial as experienced in the criminal courts undermine respect and security of the judges, they are blackmailed and humiliated by the accused and their counsels, cause undue hindrances and adjournments, witnesses are reluctant to testify, media reporting change dimensions of the case rather than maintaining sanctity of the court. It is for these reasons that the judges tend to grant prolonged adjournments in the cases. Such open trials are a source of education for other accused, who learn the art to deceive justice, and a source of income for the counsels, who make a mockery of law to frustrate the cause of justice. The criminal trials as a matter of convenience and transparency should remain open to only to the concerned and limited people rather than a fruit market; where justice is being sold rather than administered.

The issue of trials of juveniles by the military courts is much publicized. However, not a single juvenile has been tried by the military courts so far. Rather one of the accused namely Wajid Rasheed involved in attack on a Muharram Chehlum Procession Ceremony in Rahimyar Khan Bahawalpur under FIR No 22 dated 15 January 2012 was identified as juvenile at the pre-trial stage during July 2015 by Judge Advocate General’s Department. The matter was referred back to the federal government for withdrawal of the case and his trial by the court established under the Juvenile Justice System Ordinance 2000. Another case of similar nature surfaced in Karachi. Th eaccused Muhammad Mavia, who was one of the three accomplices in a case under FIR No. 160/2013, which involved murder, attempt to commit murder, assault on public servants and other offences punishable under the ATA. He was identified by the military authorities as juvenile in December 2015 during the pre-trial stage; and his case was referred back for trial by the Juvenile Court. In fact in the cases, where the question of juvenility had arisen, the case files with police or the LEAs either did not specify the date of birth or according to the available record, the accused was not

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juvenile. It is for this reason that one odd case missed the test of scrutiny by the scrutiny committee of the Federal Government.153

There had been debates in favour of competence of the courts martial to try the juveniles under the 2015 Amendment Act, being special law provisions of which have overriding effects. The Additional Attorney General while contesting the case for the Federation before the in Haider Ali case,154 raised the same contention, while placing reliance on the judgments of superior courts.155 He canvassed that not only the court martial had jurisdiction to try accused Haider Ali but also he was not a juvenile. Although the Peshawar High Court dismissed petition of Hider Ali and Qari Zahir Shah but the military legal department did not borrow the idea to try any juvenile.156 Haider Ali was convicted by the military court for committing terrorism related offences i.e. attacking the Armed Forces, abduction and providing funds for terrorist organizations. The convict canvassed before the Peshawar High Court that he was a juvenile at the time of commission of the alleged offences; and was neither given fair trial nor allowed to engage counsel of his choice. However, the Peshawar High Court, having perused the trial proceedings, concluded that it did not observe any procedural non-compliance by the court martial in his case. Rather evidence was properly recorded and he was provided services of a defending officer. The High Court accordingly dismissed the petition, inter alia, on the grounds that it lacked jurisdiction to hear the petition on the ground of bar under Article 199(3) and overriding effect given to the Army Act, in terms of the proviso added to the PAA Sec 2(1)(d(iii) vide the 2015 Act. Mother of Haider Ali invoked appellate jurisdiction of the Supreme Court to contest her stance, on 27 October 2015; however the same was dismissed by the Court.157

Notwithstanding the issue of Haider Ali, Military’s legal department being cognizant of the Convention on the Rights of Child, which had been ratified by Pakistan in 1990 and which ordain that juvenile should not be tendered for trial by military tribunals, neither

153Discussion dated 15 December 2015 with concerned Additional Secretary, Ministry of Interior. 154Writ Petition No 2979-P of 2015 (Mst Anwar Bibi- mother of Qari Zahir) and Writ Petition No 2915-P/2015 filed by Mst Bacha Laiqa, mother of Haider Ali), both announced on 14 October 2015. 155Qamar Hussain Shah v State (PLD 2006 Karachi 331), Meraj Hussain v Judge ATC Northern Areas (2007 PCrLJ Northern Areas Chief Court 1011) and Asad Ullah alias Shakir Ullah v State (2011 PCrLJ 1022 Gilgit- Baltistan Chief Court 1022). 156An exclusive interview dated 15 December 2015 with Judge Advocate General, Pakistan Army. 157CPLA No 3331 of 2015, Mst Bacha Laiqa v Federation of Pakistan, dismissed along with 15 other petitions including CPLA No 842 of 2016 of Said Zaman Khan on 29 August 2016. (Not approved for reporting.) 308

desired nor ever recommended or tried any juvenile. No data is available which may prove trial of any juvenile by the military court; whereas the federal government has become more careful in the scrutiny of cases to ensure that no case of juvenile offender is recommended for trial by military court.158 The issue that military judges, being from executive branch of the state and not trained in law, cannot protect rights of the juveniles stands disposed off in the light of denial of the military Judge Advocate General of having tried any juvenile; rather he came to the rescue of the juveniles who by mistake of fact were referred for trial by military courts.

As regards the apprehension on politically-motivated, influenced-based or mala fide recommendations, no such case has been specified by the critics of the military courts or the procedure of recommendations. The government committee is working on self accountability basis with right of dissent available to every member. Cases of accused involved in attacks on Quaid-e-Azam Residency in Ziarat and Khushhal Khan Khattack express in Bahawalpur were not tried by military courts. Similarly, cases registered against Dr Tahir ul Qadri, Mr Imran Khan and their supporters during August-November 2014 sits-in in Islamabad, MQM people accused of Dr Imran Farooq murder, children sex/pornos scandal in Kusur during mid 2015 and many other cases of criminal and heinous nature were neither considered nor recommended for trial by military courts.159 Therefore, this apprehension of use of military courts is not well founded.

The desire of the general public or some segment of the society for trial of all heinous or terrorism related crimes irrespective of the clog of religious or sectarian based terrorism by military courts should be treated in the spirit that they have more confidence in the military courts than the ordinary or special criminal courts, which have not come up to their expectations and failed to deliver requisite justice. This fact places the criminal courts at disadvantageous position viz-a-viz military courts, who are gaining confidence of the aggrieved parties and the general public while the former are considered as the ultimate choice of the criminals and their lawyers. This is so because the criminal courts have political, social, economic and security considerations. They are trained and proned to act

158Interview with Judge Advocate General op. cit. and discussion with Additional Secretary concerned Ministry of Interior dated 16 December 2015. 159Discussion dated 16 December 2015 with the concerned Additional Secretary, Ministry of Interior. 309

within the legal fetters, which are accused-centric rather than justice-specific. The entire focus of criminal law and criminal lawyers is to protect rights of the accused and provide him every opportunity to escape punishment. The criminal lawyers are inherently and by profession biased in favour of the accused. Despite being officer of the courts and charged with the duty to help the courts in reaching fair decisions and deliver justice, they protect the rights of the accused.

In the given scenario, trial before the military courts neither suit the criminals nor the lawyers, who have less chances to influence the military judges except through law and manifest intent of the legislature; specially when a thoroughly investigated and well prepared case after a careful legal scrutiny at the pre-trial stage is presented before the military courts, the conviction rate becomes obviously higher than the acquittal.160 The handicap and pleasure of the ATC judges, criminal courts and the police may be calculated in the wake of their conduct that they stopped further investigation and conduct of trials in the cases which were being processed and recommended for trial by military courts despite the fact that the federal government had categorically directed that the trial proceedings in subjudice cases shall continue until the accused are taken over by the military authorities for trial and efforts be made to conclude the trial on day to day basis. They were at ease on transfer of cases to military courts as they could not bear the brunt of convictions and sentences to the hardened terrorists.161

Seen in the overall contexts, the courts martial do not necessarily violate and offend human rights; nevertheless sporadic instances have been pointed out but without substantial evidence. Some grievances are obviously inherent in the trials before courts martial viz-a-viz criminal courts. Such violations may also be pointed out when analyzing ATCs and specials courts established under the PPA and other laws, which provide some deviations from the CrPC.

160An exclusive interview dated 9 November 2015 with Brigadier (Retired) Wasif Khan, ex Judge Advocate General and Advocate Lahore High Court. 161Discussion dated 15 November 2015 with Mr Saleem Akhtar, Additional Prosecutor General Sindh and Rana Muhammad Ijaz Khan, Advocate Lahore High Court. 310

6.8 Are Military Courts an Alternative Mechanism for Criminal Administration of Justice in Terrorism Cases?

The analysis of the amendments in the constitution and services laws, more specifically the Army Act whereby civilians were subjected to trials by military courts or courts martial, reveals that this option had been chosen by the rulers to protect their governments and restore law and order, disturbed as a result of anti-government movements. However, establishment of “military courts” in Karachi during 1998 and subjection of civilians accused of terrorism to “courts martial” as a consequent of the 21st Amendment in 2015 is an exception in the sense that there was no anti-government movement during the said periods. The government was absolutely stable but the judicial system had failed to deliver in the compelling and deteriorating law and order scenario. The military courts undeniably delivered in Karachi during 1998 within a short span of months, until the Supreme Court intervened in Sh Liaquat Hussain case, which motivated the existing government to take a fresh risk and tender the civilians for trial by courts martial in 2015. The necessity and sanctity of the courts martial of civilians accused of terrorism based on religion or sect has been recognized and validated by the Supreme Court in District Bar Association Rawalpindi case and has been discussed in detail in Chapter 5.

Simultaneously, the Supreme Court recognized failure of the judiciary to deliver free, fair and swift justice, at least, in terrorism cases. Despite repeated guidelines and instructions given in various judgments more specifically Sh Liaquat Hussain case and reiterated in National Judicial Policy 2009, the ATCs failed to deliver requisite justice. Judiciary alone cannot be blamed for this disaster but it had to bear the brunt being on the driving seat of the vanguard of criminal justice. The subordinate judiciary instead of taming and steering other organs fell prey of their inefficiency, incompetence and lethargy. Resultantly the subordinate judiciary, more specifically the ATCs lost confidence and support of the superior judiciary, who voted in favour of trial of the civilians by courts martial. Efficiency and substitution of courts martial for ATCs is inherent in the Supreme Court judgment.

The question arises in fact is have the courts martial delivered so far to justify the confidence bestowed upon them by the judiciary and the whole nation. There had been debates on the procedure of trial by courts martial and alleged human rights violations but 311

hardly anyone has contested that the convicts of courts martial were innocent or had not committed the crimes. This is an important aspect which is being overlooked in the rhetoric of human rights violations by courts martial. The sentences awarded though severe and deterrent are also within the limits permissible by law.162 The performance of courts martial during 2015-16 may be evaluated from the fact that cases against 290 accused were assigned by the federal government to 11 courts, which decided cases against 125 accused during 2015-16, with a balance of 118 cases. All the accused brought before the courts martial were convicted, whereas cases against 47 accused were either dropped or returned to the concerned governments for disposal through the courts of ordinary jurisdiction. Amongst the 47 accused, 2 were juvenile offenders; while the other cases were dropped for want of sufficient incriminating evidence, jurisdiction of courts martial and other reasons. This is why the courts martial delivered verdict of guilty in 100% cases; but with varying sentences depending upon the nature and gravity of offences. Out of 125 convicts, 89 were awarded death sentence, 28 awarded life imprisonment and 8 were awarded rigorous imprisonments between 10-20 years. However, only 12 condemned prisoners were executed during until July 2016, while the balance 77 were at different appellate and mercy petition stages, some of whom had also invoked constitutional jurisdiction of the superior judiciary.163

The analysis of the convictions made so far and the reduced number of fatalities in 2015-16164 depict that courts martial have been successful in creating deterrence amongst the terrorists and consequently reducing the number of suicide attacks and acts of terrorism; hence they have provided an alternative for the ATCs. But to give them permanent role may not be desirable for the military and the judiciary. However, the terrorists’ attacks and acts of terrorism could not be extinguished so far. Similarly, grievances of the human rights groups and the convicts regarding violation of due process and fair trial are required to be addressed by evolving a mechanism of openness and transparency in the conduct of courts martial. But

162 This data has retrieved with the courtesy of Ministry of Interior, Judge Advocate General’s Department, ISPR Press releases and the news papers. Also reference is made to the discussion with Judge Advocate General, Pakistan Army, dated July 2, 2016. See for example, “PHC stays execution of militant convicted by army court”, DAWN Islamabad, July 27, 2016, p. 7. 163Ibid. 164See the report launched by the Centre for Research and Security Studies (CRSS), which suggests that the number of casaulities in second quarter 2016 had reduced in comparison with previous year. See “40 pc reduction in violence-related casualities in second quarter of 2016”, DAWN Islamabad, July 28 2016, p. 19 312

the fact stands established that the courts martial have emerged as a legal substitute viz-a-viz ATCs for trial of terrorists.

6.9 Conclusions

The hypothesis that WOT collapsed the whole edifice of criminal justice in Pakistan; and that if failed to meet the challenges of WOT and effectively control the menace of terrorism stands proved to a certain extent. However, the study does not prove that “the whole edifice of criminal justice system” has collapsed. Nevertheless it did not succeed in meeting the challenges of WOT and play its effective role in eradicating the menace of terrorism through justice. The system surrendered many of its rights and obligations to the Armed Forces and Civil Armed Forces in a bid to prevent its humiliation and avoid confrontation with the executive. Criminal justice system of Pakistan being a dependent variable remained shrouded with influence of the government, whose politics to fight terrorism were in turn manipulated by American strategies to fight WOT, the ultimate independent and intervening variable in this study. The above ultimate conclusion is fortified by the analysis and discussion carried so far, and conclusions drawn in the succeeding paragraphs.

9/11 was a great tragedy for America after Pearl Harbor, which challenged the sovereignty of America, who despite having conventional military superiority, failed to preserve its human security in the age of transnational terrorism. However, more devastating were the consequences of 9/11 and the declaration of WOT under the Bush Doctrine and the American National Security Strategy released in 2002, which created its own norms of international settlement of disputes and consequently endangered the whole world, by creating an inter-faith distrust and resurrection of sub-state terrorism. American war against Al-Qaeda had a just cause but it lost the ethical and moral standing when America extended this limited and targeted war against Taliban and Iraq in the wake of possessing WMD which claim remained unfounded. Although America succeeded in maneuvering UN Security Council resolutions on terrorism and WMD and legal justification for invasion in Afghanistan and Iraq, yet the WOT remained short of receiving a universal reorganization of a just war.

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Pakistan joined the WOT out of compulsion and owned the same as its own war; however, fate of the objectives set forth by President Musharraf for joining WOT remained in the stalemate. Pakistan became the prime subject of reciprocal violence and deliberate terrorism, but it was hardly trusted by America despite unmatched heavy casualties of its troops and innocent civilians.165 Instead it was accused of exporting terrorism, while the shadows of anti-Pakistan government in Afghanistan have not extinguished despite negotiations and utilizing diplomatic channels. During this period, India ensured its effective presence in Afghanistan, continued building pressure on Pakistan to abandon the Kashmir cause, increased the number of its embassies/ consulates manifold in Afghanistan and used them as sanctuaries for terrorists and anti-Pakistan elements including Baloch insurgents and a segment of the TTP; and launched them in Pakistan to fight against the Armed Forces and destabilize Pakistan.

In order to arrest the issue and curb the menace of terrorism, there is a dire need for America to analyse afresh and review its foreign policy and her National Security Strategy. Selected and targeted elimination of terrorists, with the consent of the concerned state and approval of UN, and negotiations with the moderate Taliban may be a viable option for honourable retrieval from the WOT, besides evolving an effective counter-terrorism strategy which may be implemented through legal modes of global governance. From the Pakistan perspective, both the government and the people will have to move forward in a coordinated manner, guiding, supporting and trusting each other. Phased withdrawal of troops from Afghanistan since 2014 and growing American interest in negotiation with Taliban forced the government to review its foreign policy, especially with neighbouring countries, including even Russia and India166 and counter-terrorism strategy, without deviating from its strategy of dialogue, deterrence and development.

While reviewing their strategies, both America and Pakistan must appreciate that neither uni-polarity is a permanent feature in the real world politics nor democracy is a

165 See for example: Anwar Iqbal, “Vicious criticism of Pakistan by US Congress penal”, DAWN Islamabad, July 14, 2016, pp.1 and 5. 166The shift in the foreign policy of Pakistan and her forced realignment is evident from the intended trade and investment ties with both Mascow and Dehli. Moscow is even willing to help Pakistan build Bhasha Dam. For further development in this regards, see for example: Positive turn in Pak-Russia Relations(2012), IPRI Journal XIV, no 11-12 November-December 2012, and Pakistan-India Peace Process (2011-2012), IPRI Journal XIII, no 9-10 (September-October 2012). 314

guarantee for lasting universal peace; while the balance of power once disturbed may be restored the other day. What the realist approach is? It is the state of war and struggle for balance of power, rather than the spread of democracy to eliminate war in the world. Therefore, instead of striving for maximum power, America may aim at appropriate amount of power, with power sharing strategy for international peace and security, while giving up double standards. If America may enter into dialogue with Taliban who were accused of harbouring terrorists, exporting terrorism and ruined to the hilt in the WOT, why not Pakistan? American support to promote end encourage Baloch insurgency, NATO massacre of Pakistani soldiers on Salala post, igniting sectarianism in Northern Areas and raising eyebrows on Iran-Pakistan gas pipeline to overcome her energy crisis is nothing but a demonstration of lust for absolute and unquestionable power.

American democratic regime change policy may help the suppressed liberate themselves from the atrocities of authoritative dictators and eliminate them, but may not guarantee absolute support to American hegemonic designs. Rather this exercise helped reunite the disintegrated Al Qaeda, its sympathizers and other non-state actors including IS against America and her strategic moves. On the other hand, support to China, Russia and even Japan is inevitable for Pakistan so as to create a balance of power and help establish a new bi-polar system as well as guard its nuclear assets, as these two factors may contribute to avert a destructive war in the regions and even the world. Nevertheless international peace may be maintained by creating a delicate balance of international and external restraints, while WOT may be won by following the command of Tommaso Palladini of Milan who perhaps said it best when he marched with his countrymen in Rome;

“You fight terrorism, by creating more justice in the world.” 167

The WOT is an offshoot of American hegemonic designs and pursuance of its project for the New American Century and doctrine of Pax Americanism. American invasion in Afghanistan was not justifiable under the international norms of justice and respect for sovereignty of state, despite the fact that it succeeded to fetch support and sympathies of the whole world and the United Nations. American invasion in Afghanistan and launch of global

167William Rivers Pitt, “The Project for the New American Century”, available at http://www.infomationclearinghouse.info/article. 1665.htm, accessed on March 2, 2012. 315

war on terror is a demonstration of realism which does not accept challenge to ego, self esteem and anarchy; and desires unconditional submission or alliance by the weak nations, for balance of power in her favour. America initiated WOT in the pretext of just war theory, right of self defence, Article 51 read with Article 2(4) of UN Charter and the Security Council Resolution 1373 of 2001. However, American WOT and pursuit of military in Pakistan was characterized with retribution and revenge, which exceeded the limits prescribed by theories of just war and self defence, as well as UN Charter and Security Council Resolutions. America though had backing of Security Council Resolution 1373 but lost the moral sanctity of her actions when it caused mass destruction in Afghanistan and endangered the world peace and security.

Seen in the realist paradigm, terrorism is an offshoot of political crimes, which are existing since decades and instead of declining, their frequency and magnitude with inherent terrorism and violence has increased. Need to understand essence of terrorism as a political crime is indispensible. It is generally believed that in contrast to violent criminals whose acts are mostly emotional and impulsive, political criminals are rational and calculative in their behaviour. Therefore, a carefully formulated and implemented public policy may help control political crimes but the pity is that the government and public officials themselves are not sincere in implementing such policy as their personal and political gains are connected with the existence and persistence of political crimes.168

Regardless of lack of requisite motivation, any criminal justice policy to sow the seeds of minimizing crimes must cater for at least three dimensions viz:- “(1) motivation of the criminals (2) perception of the general public about the crimes and criminals and (3) object of the crimes.”169 Motivation of the criminal may involve economic or political gains or his own rational perception or justification for the crime. Perception of the general public may refer to the seriousness or otherwise of the crime and the expected response by the government, different segments of the society and government, officials. And object of the crime may denote if it was motivated against any specific person or group, or intended to

168For nature of terrorism as political crime see, George B. Vold, Theoretical Criminology (New York: Oxford University Press 1958), pp 299-300, as cited by James P. Levine, Michael and Dannis, Criminal Justice - A Public Policy Approach (New York: Harcourt Brace Jovanorich Inc., 1981) pp.110-112. 169Ibid, pp. 80-81. 316

achieve a desired object. In the context of waive of terrorism in Pakistan and WOT, the terrorists claim to have justifications for their delinquent behaviour i.e. war against America and its allies; they do have economic and political benefits; perception of the general public and even different segments of the society is not absolutely against terrorist acts especially when committed after drone attacks; their crimes initially were targeted against the Armed Forces and LEAs, which were subsequently extended indiscriminately even against innocent and harmless people in revengeful aspersions, to create disorder, strike terror and destabilize the government. In this back ground, response of the government and the Legislature was that the scope and parameters of “terrorism” were extended to bring maximum of criminal behaviours affecting public peace and tranquility and writ of the government within the pale of “terrorist acts”, as defined under the 1997 ATA.

There had been voices for and against the “Internal Security Policy” and “National Action Plan” as well as competence and will of the government, security agencies, the politicians and even human rights activists. The present government of Mr Nawaz Sharif and the Parliament had been unanimous for resolution of the current impasse and crises through political process, but neither the security agencies nor the ground realities permitted an exclusive political resolution of the ongoing waive of terrorism. Some factions of the society and the stake holders dubbed the government, its allies and even some opposition parties and the security/intelligence agencies having links with some Taliban groups who were operating with impunity. The political parties especially MQM have been labeled as having their militant wings and directed by the Supreme Court in Watan Party case to disassociate and shun away from them. However, absence of absolute political will of the government to eradicate political crimes, when committed by criminals having impulsive and emotional behaviours, biological and sociological compulsions, instead of reducing the instances and gravity of terrorism, may bread terrorism. The biological, cultural, sociological environment of the terrorists who generally hail from Paktun, Baloch and tribal cultures with characteristics of revenge as well as minority, ethnic and religious affiliations of the political criminals cum terrorists are bound to aggravate rather than reducing the instances of terrorism. Terrorism, being a political crime in nature, is likely to exist may be in varied and reduced forms. Its consequences may be reduced and controlled through a public policy aimed at political restraints of regime changes, public welfare and implementation of judicial 317

policy with deterrent or inclusive sentences approach, as fits in the prevalent scenario. The terrorism scenario which has engulfed the country does not suggest an exclusively reformative or de-radicalization approach, as it has failed to deliver. The terrorists and hardened criminals, if proved guilty, are required to be awarded deterrent sentences, which are likely to create effect. Deterrent punishment should be the rule while inclusive or reformative punishments an exception.

The trials of civilians accused of terrorism related offences based on religion or sect, by military courts, which in fact are courts martial, have been accepted and concurred by the nation, judiciary and the military leadership out of necessity and within the scope of judicial review and superintendence of the superior judiciary. The 21st Constitutional Amendment and Pakistan Army (Amendment) Act 2015 have been promulgated with a sunset clause and as a mechanism to act in aid of judiciary to administer justice. The impression that the military intends to supplant the judiciary is not founded on any rationale and is created by those who intend to frustrate the process of justice in the name of rights of the accused and in derogation of rights of the victim and states obligations to ensure national security, maintain peace and tranquility and provide free, fair and swift justice. The judiciary is confronted with enormous challenges to the criminal justice system, especially in the wake of terrorism ensued after 9/11 and the declaration of WOT. The superior judiciary is cognizant of the challenges faced and the handicaps to meet the challenges. However, the remedial measures suggested and approved by it in the form of National Judicial Policy 2009 did not bear fruit. The main cause of failure of the judiciary to deliver justice and overcome the challenges is its own institutional weakness. The Judicial Policy 2009 reiterated conduct of terrorism trials within the time span and guidance provided in Sh Liaquat Hussain case. However, neither the time limits provided therein had been met nor any departmental disciplinary proceedings initiated against the police, prosecuting and judicial officers who contributed to the delay. Even the role of monitoring judges, if appointed by the Supreme Court and High Courts concerned, is dismaying. The state of pending cases and 80% acquittal rate in terrorism cases tried by the ATCs presented in the District Bar Association Rawalpindi (21st Amendment) case is awfully disastrous for the image of judiciary and the criminal justice system of Pakistan.

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In the criminal justice system of Pakistan, judiciary is the center of gravity; it has the constitutional and legal support of the executive and judicial authorities. Mere passing orders or interpreting laws is not sufficient to discharge judicial functions. Right did Chief Justice Anwar Zaheer Jamali canvass in the Senate that legislation without execution is of no avail. If the apex judiciary can call sitting Prime Minister and punish him for contempt of court, if it can disqualify all judges who had taken oath after the ouster of its Chief Justice by President Pervez Musharraf, it may also get its orders in Sh Liaquat Hussain case and reiterated in the judicial policy and District Bar Association Rawalpindi case executed either by religious monitoring at all tiers, or taking disciplinary actions against the judicial and executive officials contributing to the delay or as a last resort by overhauling the subordinate judiciary and ATCs. The judiciary is also obliged to ensure implementation of its judgments and execution of sentences in accordance with law, especially the sentences of death, after the condemned prisoners had exhausted all legal remedies.170 Stance of the government in execution of death penalty after the APS attack has helped convey a message that the sentences awarded shall be executed in accordance with law, so as to create deterrence and eradicate the menace of terrorism.

Attending to the allegations against the convictions and executions by the military courts, it is evident that death penalty, even if awarded by the military courts/courts martial, is executed in accordance with the Jail Manual by the jail authorities where the condemned prisoner is committed, after he has exhausted right of appeal and mercy petitions before the COAS and the President as well as remedies available in terms of constitutional petitions or judicial review powers of the superior judiciary. The family meetings are also arranged before execution. It is also manifest that no juvenile or female accused was tried or convicted by the military courts. The case of Haider Ali is based on doubtful identity and mistake of facts. He was not a juvenile, as per the record of NADRA, but this record was neither placed nor the issue of his juvenility contested before the federal government or the military courts during trial or appeal stage. Military as a matter of policy has decided not to try any juvenile or female through these courts. It is also established that the courts martial do not deliver

170In this regard, see Colonel Hafiz Zafar Iqbal, “Need to Resolve the Issue of Moratorium on Capital Sentence” (PLJ 2015 Magazine 252-260)

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speaking judgment, in certain cases the convicts are denial copy of trial proceedings and presumption of secrets or perfunctory trials. Except these deficiencies, the military courts do not violate fair trial or due process. Trials before courts martial are more transparent and akin to the jury trial. There is a need to dispel this impression by giving controlled access to the media and human rights activists to the court proceedings; while families and counsels may be given more free communication with the accused.

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CHAPTER 7

RECOMMENDATIONS

The monsters of terrorism may not be nipped in the bud unless a comprehensive strategy based on ownership of all the stake-holders is adopted. Each organ of the state will have to assist and augment the government’s efforts to evolve and implement the proposed legal strategy. It must be borne in mind that national security is not the subject of foreign policy alone or law and order phenomenon. It is also not the exclusive domain of judiciary or the Armed Forces or the LEAs. The legislature also cannot claim to have discharged its obligations towards national security merely be enacting the laws suggesting severe punishments for terrorism related offences. Media and human rights activists also cannot claim to have fulfilled their responsibility towards national security, merely by pointing out follies of the executives, judiciary, legislature or the human rights violation in their own perspective to the annoyance and intruding upon the rights of the others, may those be the majority or the minority or a specific segment belonging to any cast, creed, sect, race, belief or community. Religious and political leaders also may not claim to be the champion of politics, statesmanship and piety unless their efforts and activities are above party policies, ethnicity and sectarian-specificity. If they fail to steer and unite their followers for the welfare of humanity and against the odds of terrorism; if their teachings and policies do not bread tolerance, sacrifice, patience, forgiveness, equality, respect for law, unity of command and economic well being of the led, it is obvious that they lack the values of a charismatic and true leaders. It is also obvious that they have failed in accomplishment of their duty towards national security. If the judges fail to deliver free, fair, impartial and expeditious justice; if the delay in finalization of judicial proceedings is intentional and with malafide to help a corrupt litigant; if they shirk responsibility to write and pronounce timely judgments and delay judgment to pass time till posted out leaving the back log for the successors; if they resort to unnecessary and frequent adjournments and deliver sketchy judgments, it is understandable that the due process of law has been violated, principle of rule of law has been negated; and respect/sanctity of judiciary compromised, besides failure of the judicial system. If the media fails to strike a balance between journalism and national interests; if yellow journalism, irresponsible reporting, black mailing, blame-games and money making

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surpass professionalism, self-accountability and sense of responsibility towards the nation, it may be presumed that either the government has no rational policies or the same have been violated to compromise national security. If the human rights groups and the NGOs instead of guiding and suggesting the government remedial measures in a dignified manner are dictating their agenda or view points to the government which are neither appealable to the overwhelming majority of the masses nor within the framework of Constitution, law or morality; if they are rebuking and humiliating the uniformed, consistent and adopted through consensus policies of the government, it becomes doubtful if the said groups are working for the human rights or personal rights or against the human rights, national integrity and state sovereignty.

The theme of the recommendations or the proposed anti-terrorism legal strategy is that national security is associated and dependent on other securities such as economic security, human security, food security, water security and the like. Focus of the proposed anti-terrorism legal strategy is coordinated efforts of the main and supporting organs of the state, augmenting and supporting each other and suggesting the corrective measures; rather than merely criticizing or down grading the others. Criticizing for the sake of criticism and exaggerating the mistakes may offend and degrade the other, who might have acted in good faith and put in sincere efforts to accomplish the assigned tasks within the bonds of law or human limitation. Similarly, out of proportion appreciation or recognition of one organ/institution may undermine respect, contributions and efforts of the other. Therefore, while living within the scope of the study, an anti-terrorism legal strategy is proposed in the succeeding paragraphs.

7.1 Need to Understand the Genesis of Terrorism and its Root Causes

The background and causes of WOT have been discussed in detail in the second chapter. Mr George Bush described 9/11 attack on the World Trade Centre and Pentagon as an act of war against America; and declared war against Al-Qaeda and Taliban, alleging them the supporters of the former, as well as demanded Pakistan to extend logistic support, provide air operation facilities at the naval and air bases, intelligence sharing and disassociate itself from Taliban. In case of non-compliance of American demands, Pakistan was also to be declared a terrorist state and an ally of terrorists. Pakistan surrendered before the American

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pressure and then it is a history how Afghanistan was invaded and ruined, following the spread of American turned WOT into Pakistan and the ensuing consequences on the security, peace and tranquility, as well as deteriorated law and order situation and challenges for criminal justice in Pakistan.

All the successive governments of Pakistan and security institutions had been regarding the WOT as “our own war” and giving different justifications for joining the WOT; however, address of Chaudhry Nisar Ali Khan, the Interior Minister for Pakistan, at the International Institute for Strategic Studies London, gives an unambiguous and realistic overview of the facts connected with the menace of terrorism in Pakistan. “There were no incident of terrorism and suicide bombings before 9/11, except occasional cases related to sectarianism, but 9/11 brought a sea change.”171 He reiterated that despite the fact that the incident of 9/11 did not have any relation with Pakistan but the entire responsibility, reaction, backfire and fallout was set against Pakistan and Afghanistan. Pakistan itself became a victim of terrorism wherein 99.9% of the victims of terrorism were Muslims. He recalled that Pakistan was a peaceful democratic country when the WOT ensued; but since then the menace of terrorism had claimed more than 50000 people, besides insecurity everywhere at the market and public places, places of worship, schools and the like.172 The agonies and worries of Pakistan are multiple, not only existing but prospective as well. In his last address to the joint session of the Congress on the State of Union night on 12 January 2016, President Barak Obama forewarned that “instability will continue for decades in many parts of the world - in the Middle East, in Afghanistan and Pakistan, in parts of Central America, Africa and Asia.” He also identified a nexus between militancy and instability; and calculated that “some of these places may become safe heavens for new terrorist networks; others will fall victim of ethnic conflict, or famine, feeding the next wave of refugees.”173 This prediction of American President, which may be either based on authentic intelligence or his personal opinion being a statesman leading America or part of the 21st American Century Doctrine, is sufficient to calculate the past and future sufferings of Pakistan since it joined WOT until unspecified number of decades.

171“Nisar urges West to stop linking Islam with terrorism”, DAWN Islamabad, February 26, 2015, pp.1, 5. 172Ibid. 173Anwar Iqbal, “Pakistan among states that will face turmoil for decades: Obama”, DAWN Islamabad, January 14, 2016, p. 16. 323

A careful analysis of the WOT would suggests that Pakistan remained the best looser in the American WOT, as it suffered the maximum and gained the minimum in a war, which was never its own war but thrust upon it. Despite the maximum number of fatalities in the WOT, Pakistan received least respect or appreciation from the world, who always demanded it to “do more.”174 On the other hand, American and NATO troops are likely to stay in Afghanistan for indefinite period of time at least until 2020.175 In view thereof, there is a dire for Pakistan to revisit relations with America on the basis of Henry Kissinger’s quotation:-

“It may be dangerous to be America’s enemy, but to be America’s friend is fatal.”176

Pakistan must plan for phased but early disengagement from WOT and recourse to “the principles of policy” enshrined in the Constitution,177 keep the anti-Pakistan forces engaged in dialogue and reconciliatory process, and neutralize RAW factor, which is causing continuous threat to national security of Pakistan.178 In this regard, adherence to the principle of policy enshrined in Article 40 of the Constitution may be good receipe.

Seen in this context, unless the Islamophobia is not treated and the notion that Islam or the Muslims are cause of terrorism is not modified, as did President when he proclaimed “we must not connect Islam and terrorism” at the Summit attended by more

174See for example: Lieutenant “General Asim Bajwa’s Recent interview in Germany”, Pakistan World, who expressed Pakistan’s grievances against the world, available at http://youtu:be/Z70GdJXv20c , accessed on June 28, 2016. 175 “Nato makes fresh funding, troops pledge for Afghanistan”, DAWN Islamabad, July 10, 2016, p.16. 176 Henry Kissinger, American National Security Adviser and Secretary of the State during 1969-1977, had said so in November 1968, when he advised American President Richard Nixon, before he took oath, that fate of Nguyen Van Thieu (President of South Vietnam) be different from that of Diem; otherwise the nations would consider as the quote attributed. See William Frank Buckley, United Nations Journal: A delegate’s Odyssey, (New York: NY Putnam, 1974), p. 57. It has also been said that “Although it is dangerous to be America’s enemy, but it can be lethal to be America’s friend.” See George F. Will, “Fatal to be America’s friend?”, (Indiana: Gazette , 2002), p. 6. 177Articles 29-40 describe the principles of policy. Special emphasis is required on “promotion of unity and observance of Islamic moral standards”; “discouragement of parochial, racial, tribal, sectarian and provincial prejudices”; “protection of women, family and minorities”; “promotion of social justice and eradication of social evils”; “ensure inexpensive and expeditious justice”; “promotion of social and economic well being of people”; “participation of people in Armed Forces”; “strengthening fraternal relations among Muslim countries, promote international peace and security, and foster good will and friendly relations among all nations, and encourage resolution of international disputes through peaceful means. 178After the suicidal attack in Civil Hospital Quetta, in which atleast 70 people including 55 lawyers were killed and 112 wounded, the government and the Armed Forces are openly attributing role of foreign agencies, more specifically RAW, for causing terrorism and instability in Pakistan. See for example: Baqir Sajjad Syed, “ Threats emanates from India-managed Afghan soil, generals told”, “Anti-terror fight to focus on foreign agencies” and “India behind acts of terrorism in Pakistan, says Lt Gen Riaz”, DAWN Islamabad, August 10, 12 and 13, 2016, pp.1 and 5 respectively. 324

than 60 countries and hosted by Washington on February 18-20, 2015, the mind set and the reaction thereto may not be expected in the positive reconciliatory direction. America and her allies perforce had to change their perception in their own interests and to wind up the WOT which had discredited America and her allies for promoting terrorism by targeting and suppressing the Muslims without discrimination especially the government and people of Pakistan. America also engaged Pakistan to facilitate reconciliation between Afghanistan government and Taliban after President Ashraf Ghani had strengthened his hold in Afghanistan. Pakistan had been interested to reduce Indian influence in Afghanistan to ensure peace and security in Pakistan and the areas bordering Afghanistan and Iran. 179 However, Pakistan’s initiative to engage Taliban for reconciliation both in Afghanistan and Pakistan had been described as reestablishing or revisiting alliance with American enemies and against Indian interests. Ultimately Pakistan had to keep its cards close to its heart to save itself from the embarrassment and rage of the friends. But the stage is set once again for realignment of alliances, paradigm shift from war to diplomacy and inter-faith harmony as well as friendship against enmity especially in the South Asia. Pakistan has to play intelligibly and engage both the Taliban and the Afghan government so as to neutralize the factor of terrorism from Afghanistan for negotiating peace in Pakistan. He also claimed that the government had been successful in carrying the International Security Policy whereby a system of integrated security and improved intelligence sharing amongst the 33 intelligence agencies under the control of Ministry of Interior has been introduced to fight terrorism with a preemptive and farsighted approach.180

7.2 Need to Reconcile Security and Anti-terrorism Laws and Avoid their Multiplicity and Ambiguity

Prima facie, the governments, instead of resolving the issues with utmost sincerity of efforts, had been seeking refuge in the name of statutes/laws. It is to be noted that most of the laws providing for establishment of special courts or tribunals for trial of offences related to anti-state, anti-national, anti-government and treasonable activities had provided exclusive jurisdiction to such courts/tribunals to try the scheduled offences or the offences described

179Anwar Iqbal, “ISI Chief holds crucial talks in US”, DAWN Islamabad, February 26, 2015, p.1. 180“Nisar urges West to stop linking Islam with terrorism”, DAWN Islamabad, February 26, 2015, pp.1, 5. 325

therein. Interestingly not only the offences described in the Acts or schedule attached thereto were almost/generally the same with the addition or deletion of few of them but also had the concurrent jurisdiction in the sense that two or more than two laws had been existing and operational at the same time. For example: Suppression of Terrorist Activities (Special Courts) Act 1975 remained operative until 15 August 2001 when it was repealed by the Anti- terrorism (Amendment) Ordinance 2001 despite the fact that Anti-terrorism Act (ATA) 1997 had come into force on the 16th day of August 1997.181 It was Anti-terrorism (Amendment) Ordinance 2001 whereby Section 39B was inserted in the ATA 1997 which provided for transfer of cases not covered under the ATA 1997 or Suppression of Terrorist Activities (Special Courts Act) 1975 to the courts of Sessions; while the cases subjudice in the said two courts would continue to be adjudicated by the said courts under the said Acts until the cases attain finality.

The issue of concurrent jurisdiction of the special court under the Suppression of Terrorist Activities (Special Courts) Act 1975 and Anti-terrorism Court under the Anti- terrorism Act 1997 had come up for determination before the Supreme Court, who by way of harmonious interpretation ruled that both the courts shall have jurisdiction and can stand together. The apex court observed that despite the fact that there are certain offences which are common in both the Acts but objects of both are different. The 1975 Act is intended to suppress acts of sabotage, subversion and terrorism, besides speedy trial of offences; whereas the Act of 1997 conceives to prevent terrorism, sectarian violence and speedy trial. The Supreme Court upheld the trials under the Suppression of Terrorist Activities (Special Courts) Act 1975, inter alia, on the ground that the 1997 Act had not even impliedly repealed the former.182A similar question of law was also raised before the High Court wherein it was contended that in the existence of special courts under the 1975 Act, Anti-terrorism Court could not be established. However, the court repelled the contention and ruled that there is no

181Sections 121, 121-A, 122B, 123, 365-A, 402-A, 402-B, 302, 392, 395, 397, 398 of the PPC were common in both the 1975 and 1997Acts, making a mockery of law as Sections 4 and 12 respectively of the said Acts provided that the special court and the Anti-terrorism court shall have exclusive jurisdiction to try the said offences. 182Mumtaz Ali Khan Rajban v Federation (PLD 2001 SC 169). 326

bar on the competence of the Legislature to enact more than one laws to create special courts.183

Take another example of special court set up under Section 4 of the Criminal Law Amendment (Special Court) Act 1976, which shall have exclusive jurisdiction to try, inter alia, offences punishable under Sections 121, 121-A, 122, 123 and 123-A of the PPC. At least the offences punishable under Section 121 and 121-A of the PPC are common in all the three Acts while the ibid Act of 1976 is still operative side by side with the ATA 1997. It is agreed that unless the Federal Government sets up the special court under the 1976 Act and refers any case to this court, it will have neither any jurisdiction nor any subject/accused; but the legal presumption is that when established, provision of Section 4 of the said 1976 Act shall stand in parallel to Section 12 of the ATA 1997, which claims exclusive jurisdiction. Take yet another example of ATA 1997 and the Protection of Pakistan Act (POPA) 2014. The later was introduced and promulgated on July 9, 2014 with intent to provide for qualification, criterion and procedure for appointment of judges of the special courts. It may be appreciated that the criteria and procedure for appointment of judges and the courts established under Sections 14 of the ATA 1997 and Section 8 of the POPA 2014 respectively is almost the same. Both the courts have been given exclusive jurisdiction under Sections 12/21 and 8(7) respectively of the said Acts to try the offences prescribed therein.184 Sections 7, 9 and 38 of the ATA 1997 and 16 of the POPA 2014 respectively provide for the sentences of various offences committed under the respective Act, which offences and sentences are not drastically different from each other; rather the offences in both the acts are over-lapping. For example: Killing, kidnapping, extortion, crimes against religious and ethnic groups or minorities, use of explosives co-exist in both the Acts. The main difference is that POPA 2014 has explained and included some more offences in the schedule, which also contain the offences punishable under Sections 121 to 140 of the PPC, most of which were already punishable under the PPC and the Criminal Law Amendment (Special Court) Act 1976. Both the courts may award death, life imprisonment or any less term of imprisonment; notwithstanding that the powers of the special court under the POPA 2014 to award

1831998 MLD 1411.However, the government realized significance of the issue and the expected legal complications; and repealed the same in the above said terms. 184Sections 12 and 21 of the ATA 1997 and Section 8(7) of the POPA 2014. 327

imprisonment has been extended to 20 years, even if the substantive Act or law containing and describing the offence prescribe a lesser sentence for that offence.

The provisions of both the Acts have been provided over-riding effect notwithstanding anything contained in any other law; and in case of inconsistency provisions of the respective Act shall prevail to the extent of inconsistency.185 Similar over-riding effects have also been given to the Pakistan Army Act 1952 vide Section 4 of the Pakistan Army (Amendment) Act 2015. In the given circumstances, not only a lay man but also a legal person is confused how to reconcile this complex phenomenon. Police and law officers are confused how and where to indict the accused and which of the courts shall have and exercise jurisdiction over the offences. The result is that either the police officials book the accused under the Act best understood by them by way of practice and procedural convenience or under the Act carrying a graver sentence if a compromise is not arrived with the accused. Same has been the practice when the ATA 1997 was introduced. The police used to register the FIR under the ATA even in the ordinary offences punishable under the PPC, if the accused could not satisfy corrupt demands of the police officials.

Is this state refers to a situation where more than one members of the National Assembly claim to be the Prime Minister of Pakistan and establish the government simultaneously, that too on the authority of the Parliament; or more than one Prime Ministers have been elected by the Parliament and kept in the waiting to form the government to the exclusion of the other Prime Minister, the moment President in his discretion shall invite him to do so? Or does this phenomenon related to the claim by more than one women to be the guardian of a single child to the exclusion his own mother who despite her claim and desire to bring up her child is deprived of the child on the ground of poverty or illiteracy. The child was handed over to the other women, who nursed him as their own child but the child lost his identity while none of the women took the responsibility when the child drowned into a river, because the women were sharing the responsibility and not owning the responsibility. Nobody tried to help the mother to build her capacity. The issue of overlapping jurisdiction of courts, if visualized in the wake of the said crude propositions, becomes more complex in the current days of anti-terrorism campaign, which is required to be advanced by

185Section 32 of the ATA 1997 and Section 24 of the POPA 2014 respectively. 328

harmonizing, reconciling and consolidating current anti-terrorism laws into a single uniformed comprehensive code in unambiguous and clear terms, rather than confusing the public, interrogators, prosecuting officials and the judges as well.186 This scenario provides sufficient legal grounds for the defence counsels to exploit the law to the benefit of the accused and adequate opportunity for the criminals to escape punishment, which undoubtedly is neither intention of the law maker nor the nation can afford the ensuing consequences of the said ambiguity.

There is a dire need to analyze and reconcile existing security and Anti-terrorism laws, so as to seek clarity, avoid ambiguity, multiplicity, duplicity and overlapping, through a consolidated statute or law. This would also require simple and brief provisions of law rather than confusing and complicated phrases. This has been experienced in the case of POPA, which has been drafted to create ambiguity instead of clarity. Even the judges find it difficult to understand and implement some of the provisions of the legislations introduced after 9/11.187 Such laws would also require consistency, permanence and universal application, even in FATA/PATA and GB through the constitutional mechanism. The trend of amending the existing laws and enacting new laws in haste without giving the executing machinery time to fully understand and implement the existing laws is disappointing. Sufficient overlapping period and proper training be provided before execution of new laws which otherwise be enacted after due deliberations and input from all the stakeholders. The scenario built after the arrest of Dr Asim Hussain, former federal minister and Chairman Pakistan Medical and Dental Council (PMDC) who was arrested by Rangers in Karachi in the exercise of powers under Sections 4 and 5 of the ATA 1997 reflects clash of interests in the Civil Armed Forces and the political elites. Since he was known to be an aide of Mr Asif Ali Zardari and Rangers had extracted his confession which might be used to neutralize PPP factor in Sindh or could actually expose alleged involvement of the PPP leadership in corrupt practices, the Sind Assembly passed a resolution whereby powers of Rangers were curtailed and subjected to permission of the Chief Minister or Secretary Home Department Sind. Such

186Zulfiqar Hameed, “The Anti-terrorism Laws of Pakistan - Need for reforms” (PLD 2012 Journal 21-33). 187Response by Messrs Ahmer Bilal Soofi and G.M Chaudhry, Advocates Supreme Court, to a questionnaire dated 7 December 2015. 329

an approach or laws in the nature of National Reconciliation Ordinance 2007 are also required to be avoided, being against the principles of equality before law and rule of law.

Anti Terrorism Act 1997 is also required to be analyzed afresh, so as to exclude menial cases from the ambit of the ATA. This will reduce the burden of anti terrorism courts (ATCs) and place sufficient time and resources at their disposal to hear and conclude cases of real terrorists, involving brutality, suicide bombing and striking terror. Although there are legal provisions which empowers an ATC to transfer a case to the ordinary courts if it is satisfied that gravity of the offence is so less that it should be tried by the court. However, generally this prerogative is not exercised by the courts due to pressure by the aggrieved party/ prosecution or on the plea that the alleged offence is also legally triable under the ATA. A survey suggested that only fifteen percent i.e. 20 cases out of 130 cases pending before the ATCs in the twin cities of Islamabad and Rawalpindi were related to incidents of terrorism; while rest of the cases did not squarely attract terrorism in the real essence. Out of the ninety cases subjudice in the ATCs of Rawalpindi, only twelve were terrorism specific, while the others were related to kidnapping, aerial firing, using criminal force against public servants and other minor issues. Similarly, only eight cases relating to terrorism incidents were pending in ATC Islamabad. These included Mumbai attack case against Zakiur Rehman Lakhvi, Bhara Kahu Imam Bargah attack and the firing incident in Sector F/8 Islamabad District courts. Apart from the said cases, about ten cases had been registered in the jurisdiction of Rawalpindi and Islamabad ATCs against Mr Imran Khan, Molana Tahirul Qadri, Sheikh Rashid Ahmed, Shah Mehmood Qureshi and other leaders/workers of PTI and PAT for attacking the Parliament House, storming the PTV building and violence on Constitution Avenue during August- September 2014 sits-in. The cases attracting factual incidents of terrorism pending in Rawalpindi ATCs included ex Prime Minister Benazir Bhutto assassination on 27 December 2007, NATO containers attack, murder of police officer Raja Saqlain and attack on a seminary in Raja Bazar Rawalpindi during Muharram/ Ashura in 2013.188

188“ATCs too busy trying ‘terrorists’ like Imran Khan, Tahirul Qadri”, DAWN Islamabad, December 28, 2014, pp.17, 19. 330

7.3 Need to Introduce Judicial Reforms in FATA

At least two distinct forums of trials have been provided under the criminal justice system of Pakistan. One is through the ordinary or special courts of criminal jurisdiction. The courts of ordinary criminal jurisdiction include all courts established under the CrPC such as the High Courts and the Courts of Magistrates and Sessions.189 These courts may award varying sentences as provided in the PPC.190 However, the Sessions and the High Courts may award even death sentence.191 The special courts include the ATCs and the courts established under host of special laws, for example, POPA 2014, ATA 1997, the Official Secrets Act 1923, Criminal Law Amendment (Special Court) Act 1976, Explosive Substances Act 1908, and designated as such. Courts Martial convened under the military laws, being special laws, may also be described as special courts. These special and ordinary courts of criminal jurisdiction may award any sentence provided under the PPC or the special law, as the case may be, including the sentence of death to any person indicted and convicted by them. 192 In contrast to the said ordinary and special criminal courts, the second distinctive forum of trial is provided under the FCR 1901, for the people of FATA or those who commit the offences while in FATA or escape to FATA. The FCR suggests that an accused found guilty by the Jirga/council of elders may be awarded imprisonment upto a maximum of 14 years. However, if the offence committed is murder or dacoity with murder, the Assistant Political Agent while awarding imprisonment may also award the sentence of forfeiture of immovable property and demolition of building used by the robbers.193 Although massive amendments were introduced in FCR in 2011 in the name of “maintenance of peace, law and order and good governance in FATA”194, yet the same were predominantly administrative in nature. 195

189CrPC Sections 6-17, 28, 31-32. 190PPC Section 53. 191CrPC Sections 31-32read withPPC Section 53. 192See for example: PPC Section 53, CrPC Sections 31-32, PAA Section 60, ATA Section 7, POPA Section 16 and Official Secrets Act Section 3. 193FCR Section 12, 21-20. 194 See preamble to the Frontier Crimes (Amendment) Regulation 2011(PLD 2012 Federal Statues 1-25), promulgated by President Asif Ali Zardari on the 25th day of August 2011, under Article 247(7) of the Constitution, and published in the Gazette of Pakistan Extraordinary (Part I) dated 27 August 2011, pp.391-414. 195 This is not the first time that FCR has been amended. After independence, it had been amended in 1962, 1963, 1995, 1997, 1998 and 2000 as well. For an interesting discussion on FATA issues and reforms as well as implication of Peshawar High Court Judgment in Abdul Bari case and case law on FATA, see Kamran Arif and Muhammad Raza,“ Peshawar High Court Judgment and Analysis”, August 2014, available at http://fatareforms.org/2014/08/12/peshawar- high-court-fata-judgment-analysis/, accessed July 17, 2016. 331

The amendments substituted Deputy Commissioner with Political Agent or District Coordination Officer and District Magistrate with Assistant Political Agent. However, it protected rewaj i.e. the local customs and the system of collective responsibility; and did not provide for the sentence of death in clear words. It strengthened FATA tribunal as another tier of appeal against the decision of the appellate authority (Commissioner or Additional Commissioner) to whom the appeal lied against the decision of the Commissioner and Additional Commissioner.196 However, it did not extend appellate jurisdiction or judicial review powers of the superior judiciary to the people of FATA.197

FCR does not recognize separation of executive and judiciary as the Political Agent performs both the functions. The mechanism of appeal before FATA Tribunal and Appellate Authority as a substitute for ‘High Court’ and ‘Sessions Court or Sessions Judge’ respectively is regarded as a parallel system of courts, outside the judicial review control of the judiciary.198 The substituted Section 3 of the FCRinstead of clarifying the law, created ambiguity. Section 3(1) and (2) provided that provisions of the Regulation shall have precedence and may be exercised in addition to the power conferred by any other law. This means that if the Political Agent or District Coordination Officer intends to award 14 years rigorous imprisonment for the offence of murder or waging war against the government, he may do so; rather than awarding him the sentence of death.199 Even an offence punishable with life imprisonment is punishable only with 14 years rigorous imprisonment; 200 whereas the entire FCR (even the amended) is silent as to the award of death sentence. Similarly, Section 3(3) of the FCR 201 provided that the laws mentioned in the second schedule shall apply to FATA; but the list of laws specified in Second Schedule does not include ATA

196 Appeal to Commissioner or Additional Commissioner against the decision of Deputy Commissioner (Political Agent or District Coordination Officer) and District Magistrate (Assistant Political Agent) already existed in the FCR. Establishment of FATA tribunal consisting of a chairman and two members to be appointed by the Governor KP was effectuated through this amendment. See Sections 4, 5 and 48, 55 A and 55 AA, as amended vide the 2011 Regulation. Simultaneously, the amendment protected women and children from arbitrary arrests to effectuate arrests of absconders, introduced provisions of bails and inspection of prisons, Qaumi Jirga for settlement of disputes between tribes, persons/accused of tribal areas etc. 197 For history of judicial review and powers of the courts, see Dr. Justice , “The United States Constitution and the Doctrine of Judicial Review” (PLD 1987 Journal 101 - 109) and Lieutenant Colonel Hafiz Zafar Iqbal, “Judicial Review” (PLJ 2012 Magazine 173-186). 198Abdul Bari case op. cit. pp. 153 and 165. 199Section 3 read with Section 12 as amended vide Frontier Crimes (Amendment) Regulation, 2011. 200Section 13(a) as amended vide Frontier Crimes (Amendment) Regulation, 2011. 201As amended vide Frontier Crimes (Amendment) Regulation, 2011. 332

1997, which was existing at the time of promulgation of the Frontier Crimes (Amendment) Regulation 2011.

The Actions (in Aid of Civil Power) Regulations 2011 for FATA and PATA 202 provided an interesting setup. The Regulations ordained that persons accused of different offences including challenging writ of the government or asserting to gain control on any territory of Pakistan, waging war against the state, committing terrorism or sabotage, threatening peace, safety and defence of Pakistan, violating fundamental rights or obstructing action in aid of civil power may be tried and punished with any term of imprisonment or death. Such accused may be tried either under the FCR or the CrPC or the ATA or any other applicable law.203 This is a strange legal proposition that if a person is accused of any of the above offences or other offences under any of the 32 Laws enlisted in 3 rd Schedule of the Actions Regulations and placed in the Internment Centre, he may be punished with death even by the Jirga/Assistant Political Agent. While in the ordinary circumstances, the Jirga/Assistant Political Agent cannot award death sentence under the FCR to an person accused of committing murder or spying or other heinous offences which are punishable with death under the ordinary laws.204 This was irrespective of the fact whether the offence with committed in FATA or PATA or the accused was resident of these territories. But the reverse argument is that despite the fact that the Actions Regulations provided that death penalty may be awarded for the above mentioned offences under the Regulations but practically no person tried under the FCR could be awarded death sentence due to inherent clog on the powers of the Jirga/Assistant Political Agent, who cannot award sentence except the maximum of 14 years imprisonment. In the given situation, the accused if tendered for trial under the ATA or CrPC may be awarded death but if tendered for trial under the FCR may be punished for 14 years imprisonment only. This legal complexity will crop up avenues of corruption and miscarriage of justice; and provide excessive role to police in determining fate of the accused before he is formally put to trial before a competent forum.

It may also be emphasized that the first forum of trial provided for appeals before the appellate courts and the option for writ petitions before the superior judiciary; whereas the

202 PLD 2012 Federal Statutes 46. 203Sections 17-18, Actions (in Aid of Civil Power) Regulations 2011. 204Ibid. 333

second forum of trial provide for only revision of the sentence by the political agent. This dichotomy, though has been recognized in the constitution which has ousted jurisdiction of superior courts over the people of FATA,205 yet there is a need to reconcile this disparity, especially in the wake of WOT. The fight against terrorism may be won if a uniform system of justice is provided to all the inhabitants and citizens of the country. There is a need either to dispense with the FCR or introduce such reforms so as to bring it at par with rest of the criminal justice system of the country. Else not only jurisdiction of the superior judiciary but also the ordinary and special criminal courts may be extended to the people and territories of FATA. This will not only help protect their fundamental rights as enshrined in the constitution but also provide a system of criminal justice which ensures equality before law. It is unfair that people committing the offences of terrorism, spying and other heinous crimes in FATA206, which is the hub of terrorism and provide hideouts for terrorists, are awarded merely 14 years imprisonment; while the same offences committed in rest of the country even in PATA may be punished with death sentence. It is equally unfair and unjust that people of FATA have neither the formal right to appeal nor may invoke the jurisdiction of the superior judiciary to enforce their fundamental rights.

There have been efforts to bring about social and political reforms in FATA but such reforms may not bear fruit unless these are pre-dominantly criminal justice and welfare specific. Advice of the Peshawar High Court to the Parliament to amend Article 247(7) so as to protect and enforce rights of the people of FATA by invoking jurisdiction of the superior courts and equality before law provision in Article 25 of the Constitution may be taken seriously. 207 Similarly, suggestions of Justice Yahya Afridi for cessation of whole or part of Tribal Areas with KP or creation of a separate province, extension of jurisdiction of the High Court to FATA in terms of Article 192(2) of the Constitution and amendment in Section 55A of the FCR to the effect that FATA Tribunal is headed by a judge of the High Court may also be given serious consideration. 208 The success of Zarb-e-Azb and resolve of the political and military leadership to eliminate terrorism, rehabilitate the infrastructure, reintegrate the society and bring lasting peace would require legal and juridical reforms on permanent basis

205 Article 247 of the Constitution. 206 FATA is otherwise part of Pakistan in terms of Article 1 of the Constitution. 207Abdul Bari case op. cit., p. 157. 208Abdul Bari case op. cit., pp. 169-170. 334

in concurrence with the people of the FATA, who intend to break the shackles of the sardari system and tribal bonds for their legitimate human rights. Unanimous resolutions of the KP Provincial Assembly and Senate of Pakistan209 to amend Article 247(7) of Constitution to extend jurisdiction of the superior courts to FATA to protect to protect their rights, different judgments of the Supreme Court and Peshawar High Court210 may help move ahead for a decisive action in favour of the people of FATA.211

7.4 Need to Reconcile Difference of Perceptions

There is a dire need to understand and respect the domain of each other, reconcile the natural difference of perceptions, and move forward in a coordinated manner to eliminate terrorism through fair administration of justice, wherein neither any innocent be punished nor any criminal should escape punishment. If all the organs of the state start thinking and behaving alike; and their perceptions and the ensuring consequences are also expected or desired to be the same, then such a desire shall be termed to desire uniform behavior of mathematical exactitude and deny the system of checks and balances, which is inalienable in a progressing and prosperous nation. It is to be remembered that the life and conduct of human beings in this world is not similar to the life hereafter, following the day of judgment, as the Muslims and other believers conceive. Regardless of the religious believes, the life and human behaviour in this world is not tailor-made or mechanical; rather human behaviours are response to the reactions of the fellow human beings. Sometimes human reaction is negative but generally it is positive and in a civilized modern society within the bonds of code of conduct for a specific group or segment of the society. It is natural phenomenon which keep most of the human beings react in the positive direction. That is why the ratio of law-abiding

209 “Khyber Pakhtunkhwa FATA Resolution” was passed on May 7, 2012. Notification for Resolution No. 711 dated 8 May 2012 to this effect is available at http://fatareforms.org/2014/08/12/fata-resolution-of-the-khyber-pakhtunkhwa-assembly ; whereas Senate resolution was passed on 28 October 2014. See “Senate for extending superior court jurisdiction to FATA”, at http://fatareforms.org/2014/10/28/senate-for-extending-superior-court-jurisdiction-to-fata/ , accessed July 17, 2016. 210 For judgments of the courts on FATA, see for example Peshawar High Court Judgment in Abdul Bari v Director Livestocks and Dairy Developments FATA Secretariat and Kamran Arif and Muhammad Raza,“ Peshawar High Court Judgment and Analysis”, August 2014, available at http://fatareforms.org/2014/08/12/peshawar- high-court-fata-judgment-analysis/ , accessed July 17, 2016. 211Report of the Committee on FATA Reforms 2016 headed by Mr Sartaj Aziz, Advisor to the Prime Minister on Foreign Affairs submitted on 8 August 2016, is also a step in the positive direction. The Committee suggested phased reforms stretched over a period of 5 years and annexation of FATA with the Province of KP as well as extension of the superior court’s jurisdiction to FATA. 335

and relatively disciplined people is beyond 90 percent with the exception of minor errors and omissions which are humane.

Keeping the discussion within the legal parameters, it may be appreciated that the main responsibility to maintain law and order rests with the police who is trained and equipped with the requisite expertise. In the existing law and order fiasco, armed forces and other LEAs have also been assigned the responsibility to assist the police in restoring peace and tranquility. Having joined each other and assumed the collective responsibility to maintain law and order, apprehension of the criminals with any name as terrorists, miscreants, militants, anti-state elements etc, collection of legally admissible evidence and availability of witnesses before the court for securing their conviction also become the duty of the said LEAs. Despite their capability and dedication, it is less likely that they would be able to procure and produce 100% direct incriminating evidence against the accused. Perforce the police and the LEAs will have to rely on the circumstantial evidence and judicial and extra-judicial confessions of the accused and their accomplices. They are to connect the accused with the crime and complete the jixa puzzle of the crime with the available pieces of the puzzle. It may be kept in mind that officials of the police/LEAs are mostly not the eye witnesses of the occurrence; therefore, they take and act on the lead to bring the accused to the justice. Sometimes, they succeed in collecting the evidence of requisite quality and quantity; but mostly they rely and prosecute the accused with the available evidence, which may be deficient of the required standard.

In the given state of affairs, either the prosecution drops the actual or graver charges and opt to indict the accused on a charge with lesser gravity; and at times even drop the prosecution. Now comes the turn of the judge or the court who is to sift the chuff from the grains, but within the parameters of applicable procedural law. The court is obliged to ensure fair trial and follow due process of law; it has to take care of the rights of the accused, being the blue eyed baby of law and innocent by presumption; while the facts and the laws shall remain subject of his legal scrutiny and juridical wisdom. He is bound to satisfy himself as to the admissibility, credibility, reliability of evidence, witnesses and the confessions; he is under an obligation to satisfy himself as to the guilt of the accused beyond an iota of doubt; he is indebted to return the verdict of guilty and award the permissible/defined punishment, if

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satisfied that the accused had committed the offence; and in case of reasonable doubt, acquit the accused. This is not the end of story, the acquittal or conviction may both give rise to the right of appeal to either party i.e. the accused or the government acting for the public or the police/LEAs, who were acting on behalf of the government and public when prosecuting the case through the public prosecutor.

In the terrorism cases, the appeal generally lies to the High Court and then to the Supreme Court, with review petitions and miscellaneous applications at all tiers. At the appellate stage, the parties are afforded opportunity to present their case before a more experienced, qualified, considerate and independent forum, but with a limited scope. Generally, the accused/convicts get some relief at the appellate forum in one way or the other and on one or the other legal pretext. However, the cases in which death has been awarded by the trial court are always given due consideration. The sentence of death awarded by a court of ordinary criminal jurisdiction is not executable unless confirmed by the High Court.212It is, however, discretion of the appellate court to confirm the death sentence, commute or remit the sentence or annul the conviction or even acquit the accused/convict.213 In case the convict has exhausted all the remedies, it is the concerned sessions/trial court who is to issue order for execution of death sentence. Before the issue of execution order, the convict has the right to enter into compromise with the legal heirs of the victims/deceased, or get the offence of murder waived off, or file a mercy petition to the President under Article 45 of the Constitution, who may in his discretion tender pardon to the convict. Supposedly, if the courts keep on looking for an evidence in the nature of a video film or a documentary connecting the terror accused with the crime, disbelieving the investigators or the confessions discarding the strong circumstantial evidence or the police/LEAs officials even though they had seen the crime and apprehended the accused from the crime scene or while committing the crime or fleeing after the commission of crime, merely on the plea that they are interested witnesses, there will be hardly any conviction in terrorism cases. Adversely, if all the courts in the tier right from the trial court believe competence, professionalism and unquestionable honesty and loyalty of the police/LEAs officials to the state, and convict the accused without

212Section 374 read with Sections 379 and 381 of the CrPC. 213For example, see CrPC Section 376 in the case of appeal/reference for confirmation of death sentence by a High Court. 337

applying the applicable law and independent judicial mind and award the sentence, which is upheld at all appellate forums on the same notion of professionalism, competence, and loyalty, then there would be hardly any need and justification for establishing the courts or at least the appellate courts.

The High Courts and the Supreme Court, which is the custodian of the constitution and interpreter of law besides the emblem of justice, as well as the President, who possesses constitutional power to grant pardon, shall lose their efficacy, significance and role, leaving many constitutional and legal provisions redundant and nugatory.214 Such an interpretation of law or desire to believe the wisdom of the police/LEAs and act on the outcome/evidence produced by the interrogators, investigators or the prosecutors without testing the evidence and the witnesses on the touchstone of evidence law and in the manner suggested by law may not be acceptable to anyone. Such an approach may negate the element of bias or omission by the said officials, which is humanly impossible; it will militate the legal principle that no one may be judge in his own cause and encourage the notion of self righteousness. It will compromise the whole edifice of judiciary and the system of accountability.

There is no denying the fact that efficient and professional officials, who had collected the evidence endangering their lives and with intent to bring the terrorists to justice, may lose heart, if an hardened criminal escape punishment. But a counter argument is that such a criminal will provide them another opportunity to indict them on more serious crime for more severe punishment, if he did not repent or mend his ways. For such officials and the judges who strive for peace and justice with utmost sincerity and devotion, their reward is with Allah Almighty as they are required to follow the law. They may pacify themselves with the saying of the Holy Prophet (Peace be upon him), if any person who comes for adjudication before him but because of his verbosity or facile tongue or crookness gets any right or decision in his favour and against a righteous opponent, he shall bear the negative consequences due to his own conduct; he is advised not to take that right as it amounts to taking the fire in his hands.215 It has also been ordained that it is better to leave hundred

214See for example, Article 45, 184 and 186 of the 1973 Constitution of Pakistan and Al-Jehad Trust v Federation of Pakistan (PLD 1996 SC 324). 215Sunan-e-Nisa’ee, volume 3, Chapter Adabul Qaza, Tradition 1705 and Saheeh Al-Muslim, volume 3, Tradition 1980, available at www.easyquranwahadees.comm, accessed on November 10, 2015. 338

criminals rather than killing/sentencing an innocent, in haste or on the basis of sketchy, conflicting and contradictory evidence. But for those public and judicial officials who shirk the responsibility, intentionally delay the trial proceedings to the advantage or disadvantage of the accused or the state / public, keep him languish in the court for indefinite period, betray the trust of the public through their misconduct, avoid to give judgment to the best of their ability and capacity, and are involved in corrupt practices, the law should come into force. Chapter IX of the PPC i.e. sections 161 to 169 prescribe the offences by the public servants and ordain punishment for such delinquencies. The government or the aggrieved public may invoke the said provisions of law to address the issue and keep them within their limit.

The issue of reconciliation of perception may also be analyzed in a different perspective. The judiciary and legal fraternity has always been critical of the establishment of military courts mainly on the ground that military courts are not part of the judiciary established under Article 175 of the constitution; hence cannot substitute, supersede, replace or take over the judiciary.216 However, if the judiciary/legal fraternity perceive establishment of military courts not as an intent to ‘supplant’ the judiciary but as a constitutional mechanism, in compelling circumstances, to assist the judiciary in the administration of justice within the meanings of ‘action in aid of supreme court’ and ‘action in aid of civil power’, whereby executive and judicial authorities are to act in aid of supreme court; while the armed forces may be called in aid of civil power,217 they may not consider establishment of such courts as parallel judiciary. Similarly, the judiciary may also recall that it has inherent powers of judicial review which also extends to the military courts and the courts martial, notwithstanding ouster of jurisdiction of the High Courts or the Supreme Court under Article 199 and 184(3) of the 1973 Constitution. Therefore, such courts cannot escape the power of judicial review of their decisions. There is a need to understand and recognize the necessity for concurrent jurisdiction of terrorism cases at least involving attacks on Armed Forces causing loss of life and military property. The significance of courts martial may also be visualized if the stakeholders understand the nature, scope and procedure of trial at courts martial, which is similar to the trial by jury.

216See for example: Sh Liaqat Hussain case (PLD 1999 SC 504). 217Articles 190 and 245 of the 1973 Constitution. 339

7.5 Need to Understand Significance of Deterrent Approach and its Implementation

In the wake of growing terrorism, a deterrent approach is advocated to suppress the menace of terrorism. This involves increase in the number and presence of police, intelligence and security agencies and award of deterrent punishments including the death sentence. It is logical that expansion in the LEAs may deter the terrorists to commit crime due to fear of being apprehended by the omnipresent LEAs personnel. But the administrative cost of this approach is very high, as not only such agencies would require extra ordinary resources, but also the prisons would demand additional logistics to accommodate the apprehended accused, who may even gang up in the prisons to commit more serious crimes. On the other hand, mere presence of the LEAs personnel may deter the first time offenders but the professional and hardened criminal, being intelligent, find their way out. They create a lull period, delay their criminal activities or find a different turf to achieve their objectives. Take the example of Karachi and FATA/PATA, where the crime rate and frequency of terrorism reduces with the presence of Rangers and the Armed Forces, as the criminals and terrorists go into hibernation for their safety and on the advice of their handlers or patrons.

The disadvantage with this approach is that the national capital is placed at the maintenance of a huge law enforcement set up with less corresponding results, as the police in the recession of crimes and hostilities lose their interest in fighting crime, tend to be lethargic and inefficient. On the contrary, it is argued that if the momentum of deterrence is maintained, not only the crime rate is reduced but also peaceful environment is generated which gives boast to the economic activity and help compensate heavy cost spent on maintenance of large and omnipresent police and LEAs. But this would make the country a police or military state which offends the law abiding citizens by frequent checkings and put their lives on greater risk than the criminals and terrorists. For example:-Combined police and military check posts i.e. Nakas on the roads, where help monitor ingress and movement of the criminals, their apprehension and prevention of criminal/terrorist acts, are also a source of nuisance for the general public and provide easy lucrative targets for the suicide bombers/ terrorists, in the form of huge traffic jams and pile up of vehicles carrying large number of passengers, which may be easily blown up to cause colossal loss.

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The second aspect of deterrent approach is award of heavier and to the proven criminals. This approach has the effects of creating general and specific deterrence, with the notion of incapacitation, which may be for a temporary period, by way of imprisonment, or of a permanent nature i.e. elimination of cause and source of crime by awarding ultimate sentence of death or chopping off hand or foot and awarding other qisas sentences i.e. eye for eye, nose for nose etc recognized by the natural and domestic laws in some countries including Pakistan.

This approach is effective if the general public has confidence in the capacity and good performance of the organs and actors of the criminal justice system. When the people and the human rights activists would believe in the correctness and impartiality of the investigation and prosecution agencies, the judges would be comfortable to make right decisions and award deterrent punishments in fit cases. They would not fall prey of the jugglery of defense lawyers and obviously the conviction rate would increase in comparison with acquittals. Their sympathies with the criminals in the presumption of fake arrests and concocted evidence would turn to real administration of criminal justice and concerns with national security eroded by the terrorists. This would leave the judges with no option except to shed away their theoretical perception of innocence of the accused, as the confidence inspiring incriminating evidence would build their confidence to take bold and realistic decisions. This confidence of the judges administering criminal justice may be augmented by a transparent mechanism of execution of sentences, keeping the political consideration in the limbo. Unless executed in the letter and the spirit, mere award of sentence would not suffice to achieve the objectives of criminal justice.

It may be recalled that though the debate on execution of capital sentence has attracted attention of the human rights watchdogs, criminologists and jurists yet an overwhelming majority does not disagree with the award of death penalty against the offence of murder proved with the requisite standard of evidence and otherwise than in the peace time. Articles 1 and 2 of the European Convention for Human Rights 1950 modified by Protocol 6 thereto had also prohibited death penalty during peace time whereas Article 6 of the International Covenant on Civil and Political Rights 1966 suggested that death sentence may be awarded only in most serious crimes and subject to final judgment. Article 4 of 1966

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Covenant has also recognized the principle of derogation in the event of public emergency, though the exercise of option for award of death in the given circumstances does not require derogation. However, selection of competent and daring rather than mere philosophical professional judicial officers would also make the difference, as non-professional officers with on job experience and dedication deliver better than those having spent more time or trained in the training institutions.

Role of the prisons in the deterrent approach is execution of the sentence and reformation of convicts before they complete their terms of imprisonment or it is executed in case of the death or ultimate incapacitate sentence. Meaningful reformation strategy with employment of convicts on vocational and public welfare projects may help the society to receive remoursed, reformed and responsible citizens, who may find a respectable place in the society for rehabilitation. But if the prison officials provide them an atmosphere of criminal institution, where every inmate is a master of his trade, then instead of reformation of the criminals and the society, the jails would become a breeding place of criminals. Idleness and inactivity coupled with company of criminals would inculcate and groom criminal behaviour; segregating the first time and chance offenders from the hardened criminals and reformatory sessions may save them from converting themselves into hardened criminals.

The criminals are clever and persistent lot, who may not be conveniently deterred. They may refrain from crime only if they are sure of execution of punishments. Mere threats of severe punishment and increase in the strength of police or courts may not bear fruit. The only remedy is severe punishment with certainty of guilt, timely execution and no impunity or laxity.218 But in order to be effective, legal deterrence must be communicated to the criminals i.e. they must know what is the sentence for any specific crime; secondly, there must be higher degree of certainty regarding infliction of sentence i.e. if they commit crime, they shall be certainly punished; thirdly, punishment must be severe enough to create deterrence; fourthly, criminals must be inclined to avoid consequences of deterrent punishment; and finally there must be expeditious disposal of criminal trials and swift

218James P. Levine, Michael and Dannis, Criminal Justice - A Public Policy Approach (New York: Harcourt Brace Jovanorich Inc., 1981) p. 355. 342

executions, as “in order to be effective, justice must be swift.” Bottom line in the success of deterrent approach is “celerity, certainty and severity.”219

The effects of deterrent approach no doubt will vary from situation to situation and the motivation of the criminal, role of his family and the public at large as well as the organs of the criminal justice. The society cannot be reformed to the extent of crimeless and absolute peaceful environment but the coordinated and sincere efforts of the organs of the criminal justice system may create an environment of peaceful co-existence with obvious checks and balances on all and sundry. This is in line with the teachings of Islam and within the limits prescribed by the Holy Qur’aan and the Sunnah of the Holy Prophet (peace be upon Him) and as assimilated in the municipal laws.

7.6 Need for Capacity Building and Inculcating Sense of Responsibility and Ownership

A careful investigation conducted on professional lines by the trained and dedicated police officials is a key to successful prosecution and ultimate conviction of the criminals in terms of law.220The efficiency of the police may be enhanced by depoliticizing it and building its capacity through intensive training on modern scientific lines by giving them incentives. There is no dearth of competent, efficient, honest and hardworking officials in the police cadre but either they are side-lined or they choose to remain indifferent by remaining in the low profile or on sedentary appointments including in the UN Missions, where they perform better than officials of other countries. It is also a legal and administrative necessity that the orthodox approach of recording FIRs and conducting investigations on distorted, concocted and tainted facts and evidence is done away. Recording of commitment of the investigating officer or officer in charge police in a stereo-type manner reflecting in most of the cases that he was on mobile duty on the night when he received the call regarding the occurrence; he rushed to the place of occurrence, chased the fleeing accused persons, apprehend some of them in the encounter while the other managed to escape; the apprehended accused led to the recoveries after an interrogation or remain of so and so days

219Ibid James P. Levine, pp. 358 and 373. 220For necessity and significance of prosection in combating terrorism see, Justice Muhammad Kamran Khan Mulakhail, “Effective Prosecution and Trial of Terrorism Cases”(PLD 2015 Journal 27-32. 343

and such other fake facts, instead of supporting, destroy the prosecution case, being concocted and against the actual facts.

On the other hand, the judiciary failed to implement its own decisions and could not ensure compliance of its orders, rulings, directions and guidelines even from the subordinate judiciary. Judgments of the Supreme Court in Mehram Ali and Liaquat Hussain cases are cited as the judicial touchstone for independence of judiciary and to meet the challenges confronted by the criminal justice in Pakistan. However, it has been observed that neither the time limits given under the relevant laws or by the superior judiciary for the investigation, submission of challans, conduct and disposal of trials, appeals and petitions with the exception of hardly few cases, have ever been met nor any disciplinary case for misconduct, defective investigation or contempt of court proceedings initiated against any investigating, prosecuting or judicial official.221

In the absence of implementation of the applicable law and decisions of the superior judiciary, the desire for eradication of militancy and combating the menace of terrorism shall remain a fallacy and dream which may hardly come true. Ch. Muhammad Farooq, the Attorney General for Pakistan, in Liaquat Hussain case had pleaded for establishment of military courts as an extra-ordinary measure in the extra-ordinary circumstances, wherein 10,30,366 cases of all kinds were pending before all tires of judiciary consisting of 1754 judges sitting in the lower courts, High Court and the Supreme Court. However, against his argument, Justice Afrasiab Khan desired to double the strength of the judges, improve working conditions in the subordinate judiciary, provide them administrative and logistic support with substantial increase in salary, transport allowance, provisions of accommodation, job and personal security to clear the backlog and streamline the future course.222 But despite fulfillment of the basic and requisite demands, the judiciary could not improve the criminal justice system. This reminds me the contrary conclusions drawn by Mr Justice Irshad Hasan Khan (as he then was) in Mehram Ali case, wherein he indirectly held the judges, their conduct and capacity responsible for debacle of criminal justice in Pakistan.

221An exclusive interview dated 26 September 2015with Mr Zahid Saleem, Advocate Supreme Court of Pakistan, Lahore. 222PLD 1999 SC 504, pp. 865-876. 344

Delay in disposal of cases in courts is not a recent phenomenon but became more pronounced when the terrorists managed to frustrate the judicial process and not only escaped punishment but continued their mass-scale terrorist activities with glorifying effects. Justice Irshad Hasan Khan analyzed the issue of delay in disposal of the cases and concluded that it may not be necessarily resolved by appointing additional judges or creating additional courts. It is, in fact, concern and commitment of the judges, their capacity, efficiency and productivity, the amount of efforts put in by them and the output thereof, their ability to receive the heat from the lawyers on refusal to grant prerogative adjournment and efficient court management with personal strength of the judges which may create the difference.223 It is the judges who have to evolve a strategy to escalate the pace for expeditious disposal of the cases while maintaining a balance between the two well known maxims i.e. “justice delayed is justice denied” and “justice rushed is justice crushed.” They are confronted with the security issue, which is domain of the government, but the judges may also invoke provisions of the relevant laws,in the light of guidance provided in District Bar Association Rawalpindi case, to achieve this objective.

A culture of prerogative adjournments and shifting the responsibility and passing the buck to the relieving judges to author and deliver the judgments has cropped up in the judiciary. There are judges who are known for laxity and incapacity to write judgments. They are in search out for lawyers or counsels to write judgments for them and in favour of the party deserving a favourable or even adverse judgment. Such judges oblige the counsels by delivering the judgments in their favour or against the adversaries, without compromising bribery and other corrupt practices. No judge dares to ensure speedy disposal of the trials within the limits prescribed by law. They grant adjournments at the cost of the litigants, parties and the aggrieved party; and if an exceptionally honest and dedicated judge resorts to adherence to law and refuses adjournment, either he is humiliated or boycotted. In certain cases, such judge has to face even threats to his life, forced-locks of the court room by the lawyers, stopping the judge from performance of judicial functions, forceful eviction from

223Mehram Ali case, pp.1498-1499. See also Muhammad Ali Nekokara, “Rickety criminal justice”, which suggests confidence building measurers amongst the actors of criminal justice system, as no criminal justice system may operate in the absence of trust amongst its components. DAWN Islamabad, August 27, 2016, p. 8. 345

the court-rooms and ultimate transfer to some far-flung area or an administrative post.224 In the recent case, a civil judge was confined after a group of lawyers locked his court room, for not giving a favourable judgment. Chief Justice Manzoor Ahmad Malik rushed to the Model Town courts and rescued the judge which was followed by constituting a probe committee.225 The question arises why cases for attempt to commit qatl-i-amd, assault, wrongful confinement and intentional insult of the judge or interruption in judicial proceedings were not registered against such lawyers? Why the judiciary resorted to convening an inquiry or probe committee? Why disciplinary action was not initiated against the judge if he was found involved in corrupt practices and miscarriage of justice? Why the superior judiciary succumbed to the pressure of the lawyers’ community and compromised respect of the judge? Why was he transferred? Why a stern action was not ensured against the lawyers? What did the Bar Association or Council do with the lawyers?

There are thousands of cases pending before different Bar Councils against the lawyers for professional misconduct and criminal acts but the Councils, with negligible exceptions, have always favoured the lawyers against the clients and the judicial officers or delayed the action on one pretext or the other. This state of affairs is alarming, which reflects administrative weakness of the judiciary or a trend of self-righteousness in lawyers’ community. This may also amount to dis-functioning of the courts and hindrance in the judicial functions by none else than the lawyers and the judicial officers themselves, who are custodians of the human rights, charged with respect and independence of judiciary, rule of law and to keep the public and private authorities within their remit. In Darvesh M. Arbey case approved by the Supreme Court in Liaquat Hussain case, one of the reasons for not allowing trial of ordinary civilians by the military courts was that “the ordinary courts were admittedly open and functioning without any hindrance from ‘any section’ of the population.226

In the given situation and drawing analogy from the dictum of Justice Irshad Hasan Khan, it may be presumed that the courts are non functional just as a man who has suffered

224An exclusive interview dated 28 September 2015 with Rana Ijaz Ahmad Khan, Advocate Lahore High Court, Lahore. 225“Lawyers lock judge’s courtroom”, DAWN Islamabad, October 10, 2015, p.2. 226PLD 1999 SC 504, p. 862. 346

paralysis or has caused grievous hurt to himself in an attempt to commit suicide or has been stabbed by his own guard and is on ventilator. The doctors are hopeful of his recovery but until his recovery, he will remain dysfunctional, inactive and subject to intensive surgical and therapeutic treatment followed by rehabilitation care, anti-allergy treatment with strong anti- biotic and controlled visitation. In the intervening period, his relatives, attendants and well- wishers are committed to look after his health, family, business and other affairs; while no one expects and desires that he should act, behave and manage himself as before the ailment. His complete recovery and desire to lead a normal life is always subject to his will power, self confidence and personal commitment. This is what has been diagnosed and prescribed by Justice Irshad Hasan Khan for rehabilitation of the judiciary and the criminal justice system. Nevertheless in the intervening period, trial of the civilians accused of committing terrorism by the military courts is sine quo non as a supportive measure by those who love, care and respect the judiciary, the nation and the country and are readily available in their ‘aid’ as a constitutional and legal responsibility. However, the Armed Forces and the men in uniform committed to the investigation and trials of terrorism cases shall be required to ensure pre- operation management and post-operation care of the patient by ensuring impartial and professional investigations, free, fair and impartial trials with condign sentences. Since the military judges also have the legal acumen with obligation of their oath to administer justice in accordance with law and in the absence of any precedence according to their conscience, they may make up the deficiency and evaluate the ‘efficiency’ in the investigation and return their verdict for or against the accused. While returning the verdict of acquittal or awarding the sentence, the military judges must be guided by the principles of natural justice and the rulings of the Supreme Court which do not oblige the judge to acquit the accused merely on technical grounds or base the convictions on inadmissible piece of evidence. The observations of the Supreme Court in Riaz Hussain case227 that “mere technicalities unless suffering any surmountable hurdle should not be allowed to defeat the ends of justice and the logic of words should yield to the logic of realities” may help the judges to advance the cause of justice. In this regard, the provisions contained in the Pakistan Army Act 1952 and the Qanun-e-Shahadat 1984 may also provide the requisite guidance on the issues confronted during the conduct of trial and recording or evaluating the evidence. Nevertheless it shall

2272003 SCMR 181. 347

remain prerogative of the court martial to award expiative, retributive, deterrent, incapacitative, restorative or reparative punishments within the limits prescribed by law.228

The officers sitting at the courts martial and the Courts of Appeals should remain cognizant that subjection of the civilians to the jurisdiction of courts martial has been approved under the principle of derogation for a limited period. Their decisions and conduct of trials shall not only become precedence but also remain subject to judicial review by the superior judiciary. Any laxity on their part may lose confidence of the masses on the courts martial and provide an opportunity to the superior judiciary to set aside the convictions. In view thereof, a balanced approach is required to be followed in the administration of justice, wherein timely and expeditious disposal of trials with condign punishments may have more positive and reformative effects, rather than incapacitative, retributive and deterrent punishments which may bread retributive and reprisal reactions. Nip the evil in the bud and justice should not only be done but seen to have been done should be the cardinal principles for the investigations, prosecutors and the judges.

7.7 Need to Implement Policy of Reward and Punishment for Judicial and Police Officials

It may be appreciated that no system can survive and deliver dividend without check and balance, which may not be ensured by just promulgating laws or policies, but only through implementation. The words in the statutes books describing any delinquency or peccadilloes as an offence and prescribing deterrent punishments may not create the desired effects unless transferred into execution. This execution is not merely the apprehension of accused persons, their trial and pronouncement of a verdict of guilty but also execution of the sentence, which has been passed as a result of fair trial and following due process of law. Fair trial and due process of law are also not an eye wash or a cumbersome procedure of trial but a great responsibility and judicial virtue which should be demonstrated by the officials of police and law enforcement agencies, judges and the courts by maintaining an equilibrium in the discharge of their obligations towards the state, the aggrieved party and the accused. These virtues require the police or judicial officers to be judges of their own conscious, who

228For different theories of punishment, see for example: K.D. Gaur, Criminal Law, Criminology and Criminal Administration cited in PLD 1999 SC 504, pp. 705-709. 348

apply the law to ensure across the board justice. It is an old Arabic proverb with reference to Hazrat Ali (May Allah be pleased with him) that a Muslim nation may survive and flourish when subservient to non-Muslims; but it cannot survive under zulm i.e. cruelty, injustice or inequality.229

The cruelty and injustice become more pronounced when it is committed by persons charged with maintenance of law and order and administration of justice. When the police and law enforcement agencies commit high handedness, exploit the law to the disadvantage of poor, weak, suppressed and depressed; and to the advantage of privileged, rich and crafty, there will be hardly any security, peace and tranquility in the society. When the judiciary, who is entrusted with the divine virtue of justice without compromising fairness, mercy, firmness and deterrence, does not embrace and assume to itself the said virtues, and determine fate of the accused and the victims on the basis of concocted, tainted, irrelevant and inadmissible evidence, then how the decisions of such courts would receive willing acceptance of the society. When the officials engaged and entrusted with maintenance of law and order demonstrate incompetence, immorality, non-professionalism and are involved in misuse of power and government resources, corruption, favouritism, nepotism, hypocrisy and strive for reward and awards rather than service to the state and society, preventing crime and incapacitating criminals and establishing writ of the government, how would the people submit themselves before the law and willingly accept writ of the government?

There are two ways of addressing the situation and both are complementary to each other. The first is the inculcation of Islamic, human and legal values in the presiding officers of the courts and the judges. They must not only understand due process or rule of law and theories of natural justice but also apply the same in letter and spirit. They must not only know the dignity of man as the best creature but also respect and recognize human being, may he be an accused or a criminal. They must not only learn the techniques of judgment writing but also pronounce speaking judgments, which should clear the mist rather than creating ambiguity, confusion, chaos and uncertainty. They must not only know that justice is the hallmark of survival of the nations but also contribute to the national security, unity and

229 Justice Asif Saeed Khosa also cited this saying in Para 70 of his judgment in “District Bar Association Rawalpindi v Federation of Pakistan” (PLD 2015 SC 401). 349

fraternity by delivering expeditious and fair justice, may that the poor is acquitted and powerful is convicted on merit. The judiciary is always seized of Qur’aanic commandment and responsibility i.e. “Be just, it is more close to piety’ and ‘Decide between the people with justice”230, as it is reminded every now and then, whenever the judges enter the courts premises, but they do not generally deliver as is expected out of them. It is for this reason that neither the legal fraternity or the law enforcement agencies nor the civil society or the litigants/accused or victim are hardly satisfied with the performance of judiciary. Even the judiciary itself is not satisfied with its performance, as is evident from the Judicial Policy 2009,231 and failure to achieve the targets set by it, besides the public criticism. Federal and Provincial Judicial Academies are committed to the legal and professional training of judicial officers but moral and religious training for inculcating value of a true Muslim judicial officer is almost non-existent and unimpressive.

This weakness is required to be cured through the legal and punitive mechanism provided by the Legislature. Police and judicial officers as well as officials of the law enforcement agencies no doubt fall within the ambit of ‘public servant’. Specific provisions are contained in the PPC which deal with delinquencies and peccadilloes of the public servants and the offences against public justice. However, by commission and omissions, these provisions of law had been sparingly invoked by the state, the accused or the victim. Resultantly a stop gate mechanism provided by the Legislature failed to prevent misuse of authority or offences by the public servants or against the public justice.

The need for disciplinary actions and punishment for defective investigation, torture, unauthorized surveillance and other omissions has been re-emphasized in Section 27 of the ATA 1997, Sections14-15 of the Actions(in Aid of Civil Power) Regulations 2011, Sections 33-35 of the Investigation For Fair trial Act 2013. These provisions of law together with the relevant provisions of the PPC and CrPC as well as judgments of the Supreme Courts are required to be activated to ensure effective system of check and balance.

230 Al-Qur’aan, Chapter 6, Surah Al Maedah, verse 8 and Chapter 26, Surah Al Hujrat, verse 10. 231Available at PLD 2010 Journal 7-53. 350

7.8 Need to Reconcile and Resolve the Issues of Human Rights and Missing Persons

The issue of missing persons and alleged torture during prolonged custody had been haunting the conscience of the judiciary and all those concerned with the rights of the people and the rule of law. On the other hand, the intelligence and LEAs, in most of the cases, had been showing ignorance about the whereabouts of the missing persons and denying their custody with them unless the superior judiciary was moved. The intelligence and LEAs had to face brunt of the Peshawar High Court and Supreme Court in this regard, as there were growing complaints by the aggrieved families. The situation at times became tense as the LEAs and the judiciary remained seized to their responsibilities towards the security of the nation and protection of the fundamental rights in their respective domain.

After the promulgation of the Actions (in Aid of Civil Power) Regulations 2011 separately for FATA and PATA, it was expected that the situation would improve in line with the objectives of the Regulations but some omissions or commissions remained concern of the judiciary and bone of contention between the two state institutions. This controversy was observed in high esteem in the Human Rights case No. 29388-K of 2013 registered against the application submitted by Muhabat Shah for recovery of his brother Yaseen Shah, decided by the Supreme Court on 10th day of December 2013.232 The bench consisted of the Chief Justice Jawwad S. Khawaja and Justice Amir Hani Muslim; however, the judgment was delivered by Chief Justice Iftikhar Muhammad Chaudhry. Earlier judgment on 3 December 2014 in Rohaifa case was delivered by Justice through Iftikhar Muhammad Chaudhry, Chief Justice, was presiding over the Bench.

Grievances of the applicant were that his brother Yaseen Shah had been missing since 2010. He was reportedly interned in the Internment Centre Malakand but his family was not allowed to see him. The applicant requested for recovery and release of his brother. The military authorities/intelligence agencies denied custody/whereabouts of the detenue but Superintendent Judicial Lock Up Malakand in one of his correspondence submitted to the Peshawar High Court and the apex court had disclosed that 31 declared internees were kept in the Malakand Internment Centre; while 35 undeclared internees including Yaseen Shah had been shifted to some other place by the Army authorities, when charge of the Malakand

232 Human Rights/Yaseen Shah Case reported at PLD 2014 SC 305. 351

Internment Centre was taken over by Army on 4th day of February 2012. The Supreme Court took an exception to this state of affairs and ordered the Ministry of Defence/Army to produce the said person before it. However, despite interference and assurances by the Defence Minister, except 7 persons out of the 35 missing persons, no one else was produced on one or the other pretext. The Supreme Court exercised restraint and patience as well as avoided direct confrontation for face saving to the Army/Executive and itself. But observed that Actions (in Aid of Civil Power) Regulations for PATA and FATA of 27th day of June 2011 do not extend any authority to the Army, ISI, MI, IB, FC or Rangers to remove any person whether declared or undeclared internee from any Internment Centre and keep him in illegal custody, as the said regulations provide for action in aid of civil power; while Army, despite having power under Article 245 of the Constitution to control the internal and external aggression, was acting under the said regulations.233 The Supreme Court also observed that the issue of missing persons was not limited to Yaseen Shah or the 35 persons but there had been pending cases of at least 721 persons in the High Courts and Supreme Court. The Supreme Court dispelled the contention that its jurisdiction was ousted in the matter which fell within the territories of tribal areas. The Supreme Court held that since the matter was related to the enforcement of fundamental rights more specifically Article 10 which read with Articles 4 and 9 of the Constitution deal with life and liberty of the people and protection against enforced disappearance, it has jurisdiction and would exercise the same into the matter, as it had assumed and exercised jurisdiction, in relation to the enforcement of fundamental rights of the people of Northern Areas, who are admittedly citizens of Pakistan and the government of Pakistan had been exercising de jure administration and de facto control of the areas, besides many Pakistani statutes had been applied to the people of the said areas.234 The Supreme Court reiterated in clear terms that despite the fact that Pakistan had not ratified the International Convention for the Protection of All Persons against Enforced Disappearance 2006,235 it may apply the convention as not only enforced disappearance has been recognized throughout the world as crime against humanity but also enshrined in Article 10 of the Constitution, which provides direct

233Ibid, pp. 315, 316. 234See also ibid, p. 318; Al-Jehad Trust v Federation of Pakistan (1999 SCMR 1379). For ouster of jurisdiction of the superior judiciary in tribal areas, see Article 247(7) of the Constitution. 235Available at https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=IV- 16&chapter=4&lang=en, accessed on July 17, 2016. The convention came into force on December 23, 2010. 352

protection against enforced disappearance. Similar protection had been extended in the PPC against wrongful confinements and wrongful restraints236 and in the customary international law in the form of UN General Assembly Convention on Enforced Disappearance 1992.237

In this realm, the Supreme Court declared that Army had no legal excuse or authority to keep the said missing/undeclared persons in illegal custody; and consigned the federal and provincial governments to ensure that enforced disappearances are stopped, the missing persons are recovered within 7 days and the persons responsible for such crimes are dealt with strictly in accordance with law. The Supreme Court further observed that there was no law in the country except Khyber Pakhtunkhwa, which permits “un-authorized detaining of undeclared internees”; hence the government should legislate so as to have check on such crimes and ensure that enforced disappearances do not take place.238 Chief Justice of Pakistan Anwar Zaheer Jamali also expressed concerned over the issue of missing persons. According to Chief Justice Balochistan High Court Mohammad Noor Meskhanzai, during 2007-2015, 190 habeas corpus petitions were filed in Balochistan High Court, out of which 177 had been disposed of and 110 missing persons recovered.239 It may be highlighted that the Commission of Inquiry on Enforced Disappearances (CIED) headed by Justice (Retired) Javed Iqbal, with Justice (Retired) Dr Ghous Muhammad as its member, was set up in 2010, for resolving the issues relating to the missing persons and their recovery. The Commission work as single and division bench. Cases of missing persons are reported to the Commission by the concerned families, organizations and political parties. The Commission also keeps the UN Working Group on Enforced Disappearances informed about the progress and results of the proceedings. The Commission, on application for recovery of any missing person, also seeks reports from the police, intelligence agencies, Rangers, FC and the concerned Home Departments; and gives necessary directions for recovery of the missing persons. The Commission is instrumental in retrieving the missing persons, though not in all cases. Recently the Commission conducting proceedings for recovery of missing persons from Sindh and Balochistan was informed that 29 missing persons had returned home while 3

236Ibid; Human Rights/Yaseen Shah Case op. cit, p. 320; PPC Sections 339-348. 237Available at http://www.ohchr.org/EN/HRBodies/CED/Pages/ConventionCED.aspx , accessed on July, 17, 2016. 238 Human Rights/Yaseen Shah Case op. cit, p. 322 239Chief Justice vows to resolve issue of missing persons, DAWN Islamabad, November 24, 2015, p. 16. 353

were in custody of LEAs. On 21 January 2016, MQM also presented a list of its 150 missing workers and requested the Commission for their habeas corpus.240

Simultaneously, on the 21stday of January 2015, being cognizant of illegal advances and misuse of authority by the officials of the police and LEAs and with intend to bring the domestic laws in line with the UN Convention on Torture,241 Senate Committee unanimously adopted a draft “Anti-torture bill” recommending life imprisonment and a fine to the amount of rupees 3 million for the officials found guilty of custodial killing or rape and a minimum of five years imprisonment and fine upto rupees 1 million for torture.242 The proposed bill defined torture as “an act of inflicting physical or mental pain upon a person in custody to obtain information or confession or to harass and molest a woman for this purpose”, on the line of definition given in Article 1 of the Convention and criminalized “torture” as an offence, as required by its Article 4.

The bill also provided that no female would be detained to extract information regarding whereabouts of a person accused of any offence; a female could be taken into custody only by a female public servant and not by any male; complaints of torture might be filed either with the Federal Investigation Agency (FIA) or before a Session Judge against any person, may he be a public servant; investigation in complaints of torture would be completed within 14 days, whereas trial would be completed by a Session Judge, who shall have exclusive jurisdiction into the matter within a period of three weeks; appeal might be filed before the respective High Court within 10 days, which would be decided within 30 days; every offence under this law would be cognizable, non-compoundable and non- bailable.243 The bill also suggested that any complaint filed with mala fide intent would be punishable with imprisonment or fine upto one hundred thousand rupees. The bill also

240Imran Ayub, “Three of 32 missing persons in LEAs custody, others back home”, DAWN Islamabad, January 22, 2016, p.4. 241“Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment” is available at http://www.ohchr.org/EN/ProfessionalInterest/Pages/CAT.aspx, accessed on July 17, 2016. It was adopted and opened for signature, ratification and accession vide General Assembly Resolution 39/46 of 10 December 1984, and entered into force on 26 June 1987. Pakistan signed and ratified the convention in 2008 and 2010 respectively. 242 The bill was introduced to help the Federal Government to implement International Conventions and Treaties by virtue of Items No. 3 and 32 of the Federal Legislative List under the Constitution. 243 Iftikhar A. Khan, “Senate Panel okeys bill seeking life term for custodial killing”, DAWN Islamabad, January 22, 2015, p.5. 354

proposed that any public servant accused of torture would be suspended or transferred to a different location before initiation of the investigation. The bill also provided that state of war, emergency, political instability or an order of a superior authority shall not constitute a defence against the offence of torture; and also that the provisions of the proposed act, shall have overriding effect over all other laws and the rules framed by the Federal Government.244

In view of the factual and legal controversies, the issue of missing persons, alleged tortures and other human rights violations is required to be accorded priority; and resolved on humanitarian and legal grounds. Nevertheless, it may be kept in mind that “absolute and unrestricted individual rights do not exist in any modern State and there is no such thing absolute and uncontrolled liberty. The collective interests of the society, peace, and security of the State and the maintenance of public order are of vital importance in any organized society. Fundamental Rights have no real meaning if the State itself is in danger and disorganized. If the State is in danger the liberties of the subjects are themselves in danger. It is for these reasons of State that an equilibrium has to be maintained between the two contending interests at Stake, one the individual liberties and the positive rights of the citizens which are declared by the Constitution to be Fundamental and the other the need to impose social control and reasonable limitations on the enjoyment of those rights in the interest of the collective good of the society.”245

7.9 Need for Jail Reforms

It is important that the conditions of the prisons are improved to make them rehabilitation and correction centres rather than keeping them dumping places for the accused/convicts and providing them the opportunities to convert themselves into hardened criminals and gangsters. The jails are hardly a place or an institution for rehabilitation of the by-chance and first-time offenders. Even the educated people convicted of false and concocted crimes, baring few including doctors and lawyers fall prey of the jail culture of using slangs, abusive language, ill-discipline, forced labour and personal service rather than contributing to the rehabilitation of the inmates. They are so frustrated of the injustice caused by the judicial system and conduct of the jail authorities that they adopt the old proverb

244 Ibid 245 This was observed by Justice Muhammad Akram in Nawabzada Nasrullah Khan v the District Magistrate Lahore (PLD 1965 Lahore 642, p.653) 355

“while in Rome, do as the Romans do.” The prisons are dens of criminals from where they have opportunities and capacities to operate outside the prisons to promote and abet heinous crimes, terrorism and narcotic business, without being checked and with a strong defense of alibi.

The innocents are humiliated, employed on menial and hard labour and put to torture; while those who may bribe the prison staff, who are rich and gangsters, are respected and excused from humiliation and hard labour. They act as touts and middlemen between the prison staff and the convicts to negotiate deals for leniency or excuse of hard labour or punishment for breach of jail discipline, meetings with relatives, favours in the garb of medical treatment in the jail hospitals or any private or public hospital. Even the doctors and the imams have fixed rates for keeping the criminals or prisoners in the jail medical centres, issuing fake certificates for having learnt the Holy Qur’aan even to those who had already learnt to recite the Holy Qur’aan, so that they may claim remissions and manage early release, in connivance with the jail staff including the highest ranks. Fake certificates for remissions, use of mobiles, arranging sends off and receptions for the comrades and special prisoners are a routine matter in the jails. Getting release before completion of term of imprisonment or going on bunk to see family or for committing a crime and rejoining without being checked is not an illusion for those who may connive with the power of money.246

There must be difference in mere confinement or incarceration in the prisons and reformation in jail. The jails are serving as a source of support for retribution by the convicts and a means to continue crime. Most of the convicts lodged in the prisons either claim innocence or have been awarded punishments which do not commensurate with the gravity of their offences. Adversely, the murderers and offenders of heinous crimes either remain scot free or are punished for minor crimes. A convict who is a paid killer and a dacoit has never been convicted for the said offences and as per his claim, he never remained in the prison for more than 3-4 months except once when he was awarded 3½ years rigorous imprisonment for the offence of ‘munaqqilah’ i.e. causing fracture and dislocating knee joint

246An exclusive interview dated 5 October 2015 with Mr Mustafa, a military deserter, who was awarded rigorous imprisonment to be undergone in civil jail. 356

of his opponent.247 On the other hand, the doctor and the lawyer who are nephew and uncle respectively were held by a police official in a fake case of possessing narcotics. What is happening in the jails is that such people hire the criminals on heavy amount and get their opponents and oppressors eliminated or cause them heavy losses by way of mischief etc. This all is done in revenge and retribution. The first time offenders also establish and maintain relations with habitual offenders and hardened criminal either by joining them after the release or for self-protection, as the friendship and memories of incarceration are long lasting unless the inmates disassociate themselves and strive to lead a normal life, suppressing the instinct to retribution or balance the score.248

The prison officials, however, are not ready to concede the accusations disclosed by the prisoners. Mr Hasan, Deputy Superintendent Adyala Jail, Rawalpindi was of the view that such accusations are vague and exaggerated. Adyala jail is following the Jail Manual, it has separate barracks for women and juvenile offenders, which are next to the administrative block and away from the main barracks of criminals. This arrangement helps protect them against any abuse. He shared that family rooms are being constructed in the prison for family visitation and exclusive meetings/stay with the prisoners for 5-7 days after each three months, in the light of judgment of the Federal Shariat Court. Such facilities are already available in different prisons of Khyber Pakhtunkhwa. He conceded that the mechanism of release on payroll may be judiciously utilized to provide relief and rehabilitation opportunities to the convicts who had undergone major or significant portion of imprisonment. He also appreciated the Juvenile Justice System Ordinance 2000 whereby the juvenile offenders, except involved in terrorism, murder, dacoity and heinous crimes, are generally granted bail. Such a mechanism not only reduces the administrative cost of jails but add to reformation of convicts and the society.249

247Ibid. The offence of Munaqqilah is punishable with daman i.e. compensation determined by the court and rigorous imprisonment upto seven years, as provided by Section 337F (VI) of the PPC). 248An exclusive interview with Mr Zahid Mehmood dated 6 October 2015 who was falsely implicated by the police, some twenty three years back for causing death of his own brother and had to undergo the agony of losing the brother, humiliation and incarceration until a heavy amount of bribe was given to the police and a compromise deed effectuated with his own nephews, nieces and widow of his brother, being a legal necessity to seek discharge of the case on the basis of waiver or compromise. 249An exclusive discussion with Mr Hasan, Deputy Superintendent, Adyala Jail, Rawalpindi on 22nd day of October 2011. 357

The incidents of Bannu and Gilgit jail breaks may be quoted as examples, which reflect the height of coordination, communication and internal support to the accused and the convicts lodged in the prisons. The detail of the incidents are that ten foreigner mountaineers and a local guide were killed by the terrorists belonging to defunct Harkat-ul- on 22nd day of June 2013 at the base camp of mountain Nanga Parbat. Main accused have been declared as proclaimed offenders and are still at large. However, two out of the five accused lodged in the prison at Gilgit managed to escape on 27th day of February 2015, but one Hazrat Bilal was killed in encounter while fleeing; while the other escaped for good and is at large. This laxity left the prosecution for trial of only three accused, who in fact are not the main accused but facilitators or the one who had initially participated in the plan but refused to join hand in the execution phase. Resultantly, the hectic efforts put in by the police and LEAs were foiled by the terrorists in connivance with the prison staff.250 In Bannu prison break incident, the terrorists attacked on the prison with IEDs, rocket propelled grenades (RPG-7) and hand grenades, which damaged the main gate of the prison and created confusion, chaos and panic. Resultantly, the convicts and condemned prisoners in the ordinary and heinous offences including Junior Technician , who was awarded death sentence by a court martial held under the Pakistan Air Force Act 1954 in President General Pervez Musharraf assassination attempt case in Jhanda Chichi bridge Rawalpindi during 2003 along with other high profile terrorists belonging to terrorist organizations and accused of mass-scale killings and terrorism fled away and are at large. However, Tahir son of Mir Shah Jehan, one of the abettors and participants in the Bannu Jail break, was subsequently arrested and tried by the military court established under the Pakistan Army (Amendment) Act 2015 and awarded death sentence, which was also confirmed by the Chief of Army Staff on 2nd September 2015.251

Plight of the prisons and prisoners may be calculated from the facts disclosed by Mr Ehsan Khokhar, Senior Legal Adviser and Grievance Commissioner for Oversees Pakistanis, who had visited Quetta District Prison on the direction of the Supreme Court. According to

250An exclusive discussion dated 16 March 2015 with Mr Hafeez Ullah and Mr Rahim Gull, Special Prosecutor and Secretary Law Gilgit Baluchistan, respectively. 251An exclusive interview dated 15 September 2015 with Brigadier Muhammad Wasif Khan, ex Judge Advocate General Pakistan Army, Advocate High Court, Rawalpindi. See also “COAS confirms death sentence of six terrorists”, DAWN Islamabad, September 3, 2015, p.1. 358

Mr Khokhar, about 80000 prisoners have been lodged in 87 prisons throughout the country, while cases of 70% prisoners are subjudice in different courts of the country. Although the Supreme Court has taken cognizance into the matter and issued directives to improve conditions of the prisons, yet provisions of adequate basic facilities to the prisoners, improved infrastructure and effective security arrangements are inescapable.252 Similarly, there is a need to explore and enhance academics, vocational and technical faculties of the prisoners so as to help them rehabilitate themselves after their release. The role of Federal Ombudsman in this regard is encouraging who has signed a memorandum of understanding with Allama Iqbal Open University to provide free books to the prisoners, while the government is also striving to encourage the other universities to provide books and educational facilities to the prisoners.253 Recommendations of the “National Committee on Jail Reforms”, if implemented may also help reform conditions of the jails, reduce agonies of the prisoners and convert them in reformative centres.254

The directions of the Supreme Court and efforts of the government aside, unless the culture of the prisons is changed, through devoted, responsible and honest jail staff and authorities, the efforts may not bear fruit. It is in fact the jail staff and officers who may be instrumental in improving the culture and conditions in prisons as well as inculcating a positive behavioural change in the conduct and future of the prisoners as reformed citizens. The jail manual provides sufficient provisions for improving conditions and environment in prisons, rehabilitation of the prisoners, creating an atmosphere of welfare, discipline and reformation; but when it comes to practice, prison staff and authorities play the villain’s role. The option of release on bail and parole to the first time and by-chance criminals, if simplified and invoked especially in ordinary, petty and compoundable offences, will reduce the economic and administrative burden on the prisons, besides providing the criminals and their families opportunities for reformation of the prisoners and discharge of basic and societal responsibility. Similarly, the women and juvenile offenders be entitled to the benefit of law whereby the women are entitled to bail if their trial does not conclude within a period of six months and one year, if charged respectively with an offence not punishable with death

252Saleem Shahid, “Cases of 70 PC prisoners pending in courts”, DAWN Islamabad, October 17, 2015, p.5. 253Ibid. 254The Committee is headed by Mr Salman Faruqui, Federal Ombudsman and its specific recommendations are awaited. See Ikram Junaidi, “Women, children being used in crime”, DAWN Islamabad, August 6, 2016, p.18. 359

and punishable with death;255 while the juveniles be kept in separate barracks so as to avoid child abuses in the prisons. The military offenders are also required to be treated compassionately by the military authorities. Most of the military prisoners are convicted of the offence of desertion, which undoubtedly are not criminal but service offences. Sending such convicts in the jails to suffer imprisonment has its own inherent disadvantages, especially in the aftermath of WOT. Not only the soldiers and the military, as an institution, suffer humiliation in the prison barracks but also a sense of deprivation and retribution is inculcated in the soldiers. Those who had limited social circle and public interaction, when shoved into prisons for a simple offence of desertion not only lose self respect and means of livelihood for the family and other dependents but are more pruned to criminality.256

7.10 Need to Implement the Judgments of Supreme Court and National Judicial Policy 2009

According to Article 190 of the constitution, all executive and judicial authorities are bound to act in aid of the Supreme Court and implement its decisions in the letter and the spirit. However, it has been observed that either the said authorities disregard decisions and orders of the apex court or frustrate its authority by way of exercising their legislative or review powers. This attitude becomes more obvious when the disregard and disobedience is by none else but the subordinate judiciary and the authorities connected with the administration of justice. Restricting the discussion to the performance of criminal and anti- terrorism courts, the Supreme Court delivered three main judgments in Mehram Ali, Sh. Liaquat Hussain and Watan Party cases, with specific and clear directions to the police, prosecuting officials and the judges. But compliance of the said guidelines and instructions is still a matter of concern for the Supreme Court who has to reiterate obedience of the previous instructions in the fresh judgments. Strict compliance of the judgment in Mehram Ali case was reiterated in Liaquat Hussain case, acquiescence of which was reemphasized in Watan Party case, while adherence to the said judgments and parameters by the police, prosecutors and judges had been underlined afresh in 21st Constitutional Amendment case. The Supreme

255See provisos to CrPC Section 497 which deal with bails. See also Probation of Offenders Ordinance 1960 (PLD 1961 Central Statutes 65 and Prisoners Probation Rules 1926 (available at PLD 1962 Central Statutes 450 & 455). 256Interview with Mr Mustafa op. cit. 360

Court in Watan Party case had echoed, amongst others, the following guidelines to address the legal and administrative issues confronted in the administration of criminal justice:- a. De-politicized, committed, dedicated and zealous police, being the principle LEA, is the legal and administrative necessity to restore peace and writ of the government before withdrawal of the Armed Forces and civil Armed Forces from their duty to act in aid of civil power.257 b. Political and religious parties should denounce affiliation and shun with the criminals, who have transgressed deep in these parties, may that be MQM, for whose ban voices were raised by all the stake holders in Watan Party case, or any ruling or opposition parties, who have militant wings and protect and patronize such criminals to balance score against their opponents.258 c. Complete de-weaponization of Karachi and rest of the country from the illicit and illegal arms, except what are necessarily required for personal safety and security, which must be registered with NADRA. The defaulters should be dealt with strictly.259 The role of arms dealers, who promote illicit sale and purchase of weapons, should also be carefully monitored and penalized. The efforts made so far, though encouraging but are not sufficient to address the sale/purchase, possession and smuggling of illicit and prohibited bore arms and ammunitions. d. Strict monitoring of criminal cases through the administrative judges of the Anti- terrorism Courts as envisaged in the Anti-terrorism Act 1997, Sh. Liaquat Hussain judgment.260 e. De-politicized, impartial, independent and competent investigation officials, selected through a competitive and transparent procedure, be assigned investigation of criminal and terrorism cases with utmost fairness, honesty, impartiality, who should

257Watan Party case, also known as Suo Moto case No 16 of 2011 ( PLD 2011 SC 997), op.cit, p.1130. The Supreme Court headed by Iftikhar Muhammad Chaudhry also followed implementation of this case, which is cited as Implementation of Suo Moto case No 16 of 2011 and reported as PLD 2013 SC 443. The Supreme Court gave further directions to the Provincial Government, Rangers and Police to execute its orders. 258Ibid, Watan Party case, pp.1050, 1130-1131. 259Ibid Watan Party case, p.1031. 260Reiterated in Watan Party case, ibid, p.1132. 361

also provide protection to the witnesses for free and true depositions against the criminals and terrorists, so as to help the courts in making correct decisions in accordance with law.261 f. “Our country is not the only thing to which we owe our allegiance. It is also owed to justice and humanity. Patriotism consists not in waving the flag, but in striving that our country shall be righteous as well as strong.”262

Implementation of the above said guidelines is still a fallacy, which if brought to execution may help resolve the issue of free, fair and expeditious administration of justice, especially in the terrorism cases. Ex Chief Justice Iftikhar Muhammad Chaudhry had also constituted Law and Justice Commission of Pakistan (LJCP) to oversee implementation of the National Judicial Policy 2009; and suggested measures for capacity building and improvement in the administration of justice. The commission was mandated to critically and regularly examine/review the existing laws, suggest amendments and improvements so as to meet the challenges of modern society in the field of justice. It was also expected to reconcile federal and provincial laws, remove inconsistencies in various laws, and simplify the procedural law to ensure free, fair and speedy justice. However, outcome of the said efforts to address the issues of criminal justice are still awaited.263 In this regard advice of the Chief Justice Anwar Zaheer Jamali that “both the benches and the bar would have to practice ‘self accountability’ to fix the faults in the system”, if followed, may help to improve the judicial system.264

7.11 Need to evolve a strategy of winning the hearts and minds

The strategy to use force in the wake of WOT ultimately proved that coercion and force alone cannot help eradicate the menace of terrorism and violent extremism; rather it breads the seeds of revengeful pursuits. This method of dealing with terrorism may be equated with the scientific synthesis of the Neoton’s theory which suggests that every use of force has a reaction but in the opposite direction. The more you apply the forceful means,

261Ibid Watan Party case, p.1133. 262James Bryce as quoted by Chief Justice Iftikhar Muhammad Chaudhry in Watan Party case op.cit, p. 1134. 263National Judicial Policy 2009 is available at PLD 2010 Journal 7-51. 264“Chief Justice vows to resolve issue of missing persons”, DAWN Islamabad 24, 2015, p.16. 362

more forceful has been the reaction by the terrorists and violent non-state actors. Although carrot and stick policy is an effective means of neutralizing the forces contributing to terrorism and challenging writ of the government to a considerable extent, yet rule of law and protection of the fundamental rights, besides the strategy of winning the hearts and minds have proved to be a more effective means to achieve the desired objectives. After fighting a war against terrorism throughout the world, the comity of nations ultimately reached a consensus that use of force alone may exacerbate rather than help erode terrorism. In a three days ministerial meeting of more than 60 countries hosted by White House during 18-20 February 2015 and attended amongst others, by Pakistan, international organizations including UN, Arab League, OIC and EU arrived at the same conclusions and suggested a multi-faceted approach of winning the hearts and minds, promoting the rule of law and community based mechanism, compliance of international humanitarian law, human rights and the objectives of UN Charter, if the scourge of terrorism was desired to be eliminated. The Summit, which aimed at discussing and suggesting counter terrorism and violent extremism measures also expressed their resolve to stand against any discrimination based on religion and warned that excessive use or misuse of military force, LEAs, intelligence gathering may complicate the issue instead of resolving the same.265

The launch of Zarb-e-Azb operation was expected to have eliminated terrorists and substantially decreased instances of terrorism. But it did not deliver the desired dividends. Although it eliminated certain terrorists or they fled into Afghanistan or went underground, yet the fall out was also disastrous in terms of carnage in the APS School Peshawar, which was followed by series of suicide/bomb attacks including attack on Shikarpur/Lakki Dar Imambargah (Sindh) claiming about sixty lives and injuries to similar number, attack on Qasr-i-Sakina Imambargah, Faizabad (Rawalpindi) claiming lives of two guards, killing of the Ahl-i-Sunnat Wal-Jama’at (ASWJ) regional chief in Islamabad and Prof Dr Shahid Nawaz Malik, a renowned cardiologist, who was shot on February 14, 2015 in the head and scammed to the injuries a week later, attacks on Armed Forces/ LEAs officials and other

265Anwar Iqbal, “Force alone cannot eradicate extremism”, DAWN Islamabad, February 21, 2015, pp.1, 5. 363

incidents of similar nature.266 On May 3, 2015, about 50 people of Ismaili community were brutally killed in a bus in Safoora Ghot Karachi; while on August 16, 2015, Lieutenant Colonel (Retired) Khanzada, Home Minister Punjab, along with 18 others was killed in a suicide attack at his residence in .267 It was believed that he was killed in retaliation of Malik Ishaq, leader of Ahl-e-Sunnat Wal-Jamat or defunct Sipha-e-Sahabah, who along with his 2 sons and 10 followers was killed in a police encounter on early days of August 2015. The death of Colonel Khanzada was followed by air strikes in North Waziristan and Khyber Agency on 16 and 17 August 2015, killing more than 100 terrorists.268 Earlier death of TTP leaders was followed by an IED attack on convoy of Major General Sanaullah, who died with his 3 comrades on 15 September 2013.269 Much before that Baloch nationalist Akbar Bughti was killed in an operation by the LEAs during the reign of President Pervez Musharraf, which gave impetus to anti-national activities of Baloch Liberation Army, besides sympathies for the bereaved family. The hostilities of the Baloch insurgents and their foreign supporters escalated, until the Provincial Government headed by Chief Minister Dr in coordination with Lieutenant General Nassar Khan Janjua, Commander Southern Command, launched a massive campaign of reconciliation and winning the hearts and minds of the Baloch. Khan of Kala Bagh and other Baloch leaders who had been in self- exile for years were approached to join the mainstream politics and play their roll in brining the peace and stability back to Balochistan and allegiance of the insurgents to the state. Their efforts bore fruit and the ice broke to the extent that Brahmdagh Bughti, self-exiled grandson of Akbar Bughti, who is running a separatist and militant movement had to express his willingness to give up demand of independence and initiate talks with the government and military establishment to resolve the issues politically and through dialogue.270 The Chief

266Munawar Azeem, “Another imambargah attacked by terrorists”, DAWN Islamabad, February 19, 2015, pp. 1 & 5; “Dr Shahid laid to rest in Chakwa”, DAWN Islamabad, February, 22, 2015, p. 18; Saher Baloch, “Shikarpur tragedy: written security assurance from LEAs sought”, DAWN Islamabad, February 19, 2015, p. 2. 267Syed Irfan Raza, “Punjab loses minister in terrorist attack”, DAWN Islamabad, August 17, 2015, pp.1,5. 268“40 ‘terrorists’ killed in North Waziristan air strikes” and “air strikes kill 65 in North Waziristan Khyber Agency”, DAWN Islamabad, August 17 and 18, 2015, pp.1,5. 269His convoy was attacked in village Sabir Kallay of Upper Dir district near Pak-Afghan border after the Khyber Pakhtunkhwa government announced withdrawal of troops from Malakand division. News of his death and funeral issued vide ISPR press release no. PR140/2013-ISPR, available at https://www.ispr.gov.pk/front/main.asp?o=t-press_release&id=2370#pr_link2370, accessed on July 16, 2016 270Hassan Manzoor, “Brahmdagh ready to give up demand for independence”, DAWN Islamabad, August 27, 2015, pp.1&5; “Brahmdagh’s statement a break through: Balochistan Chief Minister”, DAWN Islamabad, 364

Minister also expressed desire to send a grand Jirga to initiate dialogue with them. He was seized of the history which suggests that earlier Baloch insurgencies and separatist movements in 1948, 1958 and 1973 were also settled through negotiations and dialogues. It may be recapitulated that the main political forces and militant groups in Balochistan i.e. Baloch Liberation Army (BLA), Baloch Liberation Front (BLF), United Baloch Army (UBA), Lashkar-e-Balochistan (LB) etc are offshoots of Baloch Student Organization-Azad (BSO) or inspired by it. Chief Minister Dr Abdul Malik Baloch, Lieutenant General (Retired) Abdul Qadir Baloch (Federal Minister), Dr Allah Nawaz and many others had been associated with BSO. There is a need to negotiate with the militants and political forces vying for greater autonomy, increased royalties from natural resources or demanding independent Balochitan; and make them realize the sufferings of militancy and benefits of joining mainstream politics for the future of Balochistan associated with Gawadar Port and China Pakistan Economic Corridor (CPEC).271

The state of continuing acts of terrorism, amongst others, is mainly because of the reprisal approach and tribal history of revengeful pursuits and breading enmity, besides a well thought strategy of the government not to launch a full-fledged operation to eliminate terrorists, so as to avoid collateral loss of innocent unarmed civilians and damage to infrastructure, places of worship and public utilities. It has been experienced in the war ravaged countries where UN, NATO or other forces are operating for peace making, peace keeping and peace building that ultimately such missions had to follow the mechanism of winning the hearts and minds of the people; and follow the policy of reconciliation.272 This is also in line with the Qur’aanic teachings which ordain that the punishment/retribution for any pain is limited to a similar pain not beyond the pain inflicted upon the aggrieved person. Those who forgive their right of revenge or retribution and strive for good will or corrective measures, their reward is with Allah, who surely does not maintain friendship with criminals, wrongdoers or those who exceed the right of similar or equal retribution. And if an aggrieved person takes the revenge similar to the crime committed or pain inflicted upon him, there is

August 28, 2015, p.1; Habib Kan Ghori, “Talks only way to resolve Balochistan issue, Malik”, DAWN Islamabad, August 26, 2015, p.5. 271Aziz Sanghur, “the Baloch Saga”, DAWN Islamabad, September 10, 2015, p.9; “Brahmdagh Bughti’s changed stance”, DAWN, Islamabad, August 28, 2015, p.8. 272An exclusive interview dated 15 June 2015 with Brigadier Shahid Iqbal (Retired) who had served as the Force Chief of Staff in the United Nations Missions in Darfur/Sudan during 2013-14. 365

no ground for blaming him for such an act, as his act neither carries any sin nor he commits any crime. Only those people may be blamed who commit atrocities on other people and create disturbance on earth or disturb peace and tranquility without any lawful excuse or justification. Such people will suffer painful punishment following the Day of Judgment. And whosoever demonstrates patience and forgiveness, surely he has done the acts of great courage and determination.273

In line with the Qur’aanic and Islamic teachings, a balanced approach of deterrent punishments to the proven convicts and rehabilitation to the by-change or minor delinquents and their families, besides those misconceived violent actors who had been brain-washed and regard the Army/LEAs as infidels, is required to be vigorously followed. Monetary compensations, job opportunities, soft loans to the families of innocents who died in drone attacks, cordon, search and other offensive operations in pursuit and elimination of terrorists may help regain their confidence and trust on the government. Recognizing the remnants of the terrorists and separatist movements, who have mended their ways, as the political identities and bringing them in the political arena to pursue their rights and objectives in accordance with the constitution and law of the land may also give them space for face saving and co-existence. The policy of building infrastructure, road networks, schools, hospitals recreational opportunities and sports, vocational training etc in the areas cleared from the miscreants and terrorists is a step in the positive direction. In order to eliminate this menace, there is a need to understand and evolve a strategy beyond intelligence based operations to eliminate the terrorists and their sympathizers so as to reduce the number of new coverts, continued to be attracted by militancy. Apprehension, detention and elimination of generation of militants, terrorists and their sympathizers may not deliver the desired dividend; rather the emphasis should be to save the next generation from being indoctrinated to militancy, terrorism, sabotage, retribution and rebellion.274

Limited amnesty to the Baloch militants laying their arms and understanding by the Provincial Apex Committee comprising the political and military leadership to search and release the missing Baloch are encouraging moves, which may help encourage the insurgents

273Al Qur’aan, Surah Al-Shura, Chapter 25, Verses 40-43. 274“Attock tragedy”, DAWN Islamabad, August 18, 2015, p.8. 366

grouped in the hills and the non-tribal leaders, who are driving a lot of militancy, to surrender arms.275

7.12 Need to Implement National Action Plan 2014

Since the outbreak of war on terror, the government had been striving to evolve a uniform policy to counter terrorism; however it failed to reach a consensus. President Musharraf’s initiative to join the war on terror and provide logistic support and intelligence sharing with ISAF and US Forces had neither been appreciated nor received a popular acceptance during his tenure and thereafter. Similarly, policies of President Zardari and the PPP government were also criticized, being a replica and continuation of the previous government policies. The government of Mr Nawaz Sharif slightly deviated from the previous government politics and tried to engage the Taliban in negotiation and peaceful settlement of the issue, after taking majority of the political parties into confidence and disregarding the advice or desire of the Armed Forces engaged in operations against the militants. However, there was no consensus on dialogue with Taliban at the cost of ceasefire or continued hostilities by the Taliban or their splinter groups or other militants in the guise of Taliban and supported by the friends and foes, who were working against the sovereignty of Pakistan. Resultantly, the non-state actors and militants continued to undermine authority of the Law Enforcement Agencies and challenge writ of the government. The deteriorated state of insecurity and challenge to the national security compelled the political government to redraft its national security policy and laws relating to terrorism, so as to bring the outlawed, criminals and terrorists within the purview of justice. After concerted efforts the government could draft, amend and enact different laws i.e. Investigation for Fair Trial Act 2013,276 National Counter Terrorism Authority Act 2013,277 Anti-terrorism (Amendment) Act 2013,278

275“Balochistan amnesty”, DAWN Islamabad, June 28, 2015, p.8; “Multi-dimensional strategy being used against terrorists” Chief Minister, DAWN, Islamabad, August 15, 2015, p.5; “Over 400 militants surrenders”, DAWN Islamabad, August 15, 2015, pp. 1 & 5. 276PLD 2013 (Supp-I) Federal Statutes 45. 277PLD 2013 (Supp-I) Federal Statutes 1199, 352. 278PLD 2013 (Supp-I) Federal Statutes 443. 367

Anti-terrorism (2nd Amendment) Act 2013,279 the Protection of Pakistan Ordinance 2013,280 the Protection of Pakistan Act 2014,281 Constitution (21st Amendment) Act 2015282 and Pakistan Army (Amendment) Act 2015.283 The last three are (initially) valid for two years from the dates of their enactment. The efforts of the government to bring a uniformed law though succeeded but the law itself did not succeed to deliver the desired results. The clash of interests amongst different organs of the justice and their laxity or handicap dominated the interests of the state and the society; which required efficient and professional investigation, collection and availability of credible evidence and witnesses, confident and non-shaky prosecution, fair trial following due process and rational, prudent, free, fair and fearless justice.

It may be recalled that the fortnight following the December 16, 2014 massacre of innocent children and staff of army public school Peshawar had been quite hectic and busy for the government functionaries in drafting and suggesting mechanism for National Action Plan (NAP) to counter the menace of terrorism, extremism and radicalization. All the stake- holders mainly from the ministries of defense, interior, information, parliamentary affairs, law and justice expressed their resolve to eliminate terrorism and militancy from the country. Besides activation of National Counter Terrorism Authority (NACTA) established since June 2014 under the authority of NACTA Act 2013, fifteen committees were formed to implement the 20-points National Action Plan which envisaged establishment of military courts for trial of terrorism suspects and which had been chalked out and unanimously adopted by all parties conference hosted by the Federal Government after the Peshawar massacre. The said committees consisted of ministers for interior, information, law and justice, DG ISI, DG MO, DG IB, MD PTV and different advisors to the Prime Minister, home secretaries and provincial police chiefs. Even the Prime Minister headed an umbrella committee with different ministers, Governor and advisor on foreign affairs, as its members, which was indebted to oversee and superintendent execution of the NAP against terrorism. The other committees included judicial system reforms committee to propose legislation to reform the

279PLD 2013 (Supp-I) Federal Statues 468. 280PLD 2014 Federal Statutes 42. 281PLD 2014 [Sup (Part II)] Federal Statutes 177. 282Gazette of Pakistan, Extraordinary, No F.9 (2)/2015 dated 8 January 2015. 283Ibid. 368

judicial system and consolidate anti-terrorism departments; militants committee which was responsible to counter hate speeches and radical literature; proscribed organizations committee to monitor and check reorganization and activities of the proscribed organizations; counter terrorism committee to oversee deployment of a dedicated counter terrorism force by 31st day of May 2015, religious persecution committee to suggest measures to control oppression, victimization and torture based on religion; madrassahs committee to ensure registration and regularization of the affairs of over 30,000 madrassahs; sectarianism committee to recommend remedial measures to curb sectarian terrorism; terror financing committee to suggest measures to suffocate financial networks and terrorist organizations; terror on internet committee to disrupt terrorists communication network, abuse of internet and social media; media curbs committee to suggest measures to ban and restrict glorification of terrorism and terrorist organizations through print and electronic media; Karachi and Punjab committees to monitor law and order situation in Karachi and counter militancy in some parts of Punjab, Afghan refugees and FATA reforms and IDP’s return committees also to deal with connected issue and requisite finances to implement the proposed measures within a week’s time.284 Unless the NAP is implemented in letter and spirit, the targets set may not be achieved.

284Khawar Ghumman, “15 Committees tasked with execution of action plan”, DAWN Islamabad, December 28, 2014 p.5. 369

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 Ch. Ghulam Muhammad v MianTufal Muhammad (PLD 1967 SC 175-178)  Darvesh M. Arbey v Federation of Pakistan (PLD 1977 Lahore 846 and PLD 1980 Lahore 206).  District Bar Association Rawalpindi v Federation (PLD 2015 SC 401).  Dr Muhammad Aslam Khaki v the State (PLD 2010 FSC 1).  Dr Niaz Ahmad and Mufti Abdul Basit v Secretary Home Department, Punjab (PLD 2014 Lahore 516).  Federation of Pakistan through Secretary Ministry of Interior v Umat-ul-Jalil Khawaja (PLD 2003 SC 442).  Federation of Pakistan v General (R) Pervez Musharraf (PLD 2016 SC 570).  Federation of Pakistan v Moulvi Tamizuddin Khan (PLD 1955 FC 240).  Ghulam Mustafa Shah v State (PLD 2003 Pesh 138)  Government of West Pakistan v Begum Agha Abdul Karim Sorish Kashmiri (PLD 1969 SC 14).  Haider Ali v DPO Chakwal (PLD 2015 SCMR 1724).  Islamic Republic of Pakistan v Abdul Wali Khan (PLD 1976 SC 57).  Jamaat-i-Islami Pakistan v Federation of Pakistan (PLD 2000 SC 111).  Krishna v the State (PLD 1972 SC 1).  Liaquat Hussain v Federation of Pakistan (PLD 1999 SC 504).  Majeeda Bibi v Superintendent Central Jail Karachi (PLD 1995 Kar 1).  Malik Ghulam Jilani and Nawabzada Nasrullah Khan v Government of West (PLD 1967 SC 373)  Masud Ahmad v The State (PLD 1962 Lah 878).  Maulvi Tameezud Din Khan case (PLD 1955 FC 240).  Mehram Ali v Federation of Pakistan (PLD 1998 SC 1445).  Meraj Hussain v Judge ATC Northern Areas (2007 PCrLJ Northern Areas Chief Court 1011).  Mian Khalid Rauf v Chaudhry Muhammad Saleem (PLD 2015 SC 353).  Mirza Jawad Beg v State (PLD 1975 Karachi 628).  Miss Asma Jilan v Government of Punjab (PLD 1972 SC 139)

378

 Mst Rohaifa v Federation of Pakistan & others (PLD 2014 SC 174, pp. 180-181).  Muhammad Bashir v SHO Okara (PLD 2007 SC 539).  Muhammad Din v Muhammad Jahangir (PLD 2004 Lahore 779).  Muhammad Nadeem v State (1992 PCrLJ 1520).  Muhammad Nawaz Sharif v President of Pakistan (PLD 1993 SC 473).  Mumtaz Ali Khan Bhutto v Court of Judge Special Court No. 2 (1997 SCMR 1107).  Mumtaz Ali Khan Rajban v Federation (PLD 2001 SC 169).  Munawar Khan v Political Agent Khyber Agency Station [2012 MLD 503 (Peshawar)].  Nadeem Ahmad Advocate v Federation of Pakistan (PLD 2010 SC 1165).  Nawabzada Nasrullah Khan v the District Magistrate Lahore (PLD 1965 Lahore 642).  Nazar Hussain v the State [PLD 2010 SC 1021 (1034-1036)].  Niaz Ahmad Khan v Province of Sind (PLD 1977 Karachi 604).  Nusrat Bhutto v Chief of Army Staff (PLD 1977 SC 657).  Piayo Noor and Mst Rohaifa cases (2014 SCMR 17 and PLD 2014 SC 174).  Qamar Hussain Shah v State (PLD 2006 Karachi 331).  Qaum Bangash v Qaum Turi (1991 SCMR 2400)  Saiyyid Abdul A’la Maudoodi V Government of Pakistan/West Pakistan (PLD 1964 SC 673).  Sar Khan v The State (PLD 1967 SC 149-153)  Shah Hussain v the State (PLD 2009 SC 460).  SHBA v Federation of Pakistan (PLD 2009 SC 879).  Sheru Dharana v M.A. Bajwa, Deputy Commissioner (PLD 1962 Lah 990).  Shoukat Khan v Assistant Political Agent (PLD 2002 SC 526),  Sindh High Court Bar Association cases (PLD 2009 SC 879, PLD 2010 SC 1151 and PLD 2011 SC 671).  State v Dosso (PLD 1958 SC (Pak) 533).  State v Syed Qasim Ali Shah and State v Shah Nawaz Khan Junejo (1992 SCMR 2192).

379

 State v Zia-ur-Rehman (PLD 1973 SC 49-98)  Sumandar v State (PLD 1954 SC 228).  Suo Moto case No. 3 of 2001 (PLD 2001 SC 1041)  Syed Zafar Ali Shah v General Pervez Musharraf (PLD 2000 SC 869).  The State v Zia-ur-Rehman (PLD 1973 SC 49).  Tika Iqbal Muhammad Khan v General Pervez Musharaf (PLD 2008 SC 178).  Usif Patel v Crown (PLD 1955 FC 387).  Watan Party v Federation of Pakistan (PLD 2011 SC 997).  Watan Party/Suo Moto case No. 16 of 2011 (PLD 2011 SC 997).  Yaseen Shah/HR Case No 29388-K of 2013 (PLD 2014 SC 305).

Secondary Sources Books  Abu Abdur-Rahman Ahmad bin Shu’aib bin Bahr An-Nasa ‘Sunan-e-Nisa’ee’, (Riyadh, Dar-us-Salam Publications, 2007)  Ahsan Sohail Anjam, ‘Code of Criminal Procedure (V of 1898)’ (Lahore: Mansoor Book House, 2012).  Al Qur’aan  Arif Ali Mir, ‘Manual of Foreigners Laws in Pakistan’ (Lahore: Irfan Law Book House, 2005)  Augustine, ‘The City of God’, translated by Bettenson (New York: Penguins Books, 1972).  Baryan A. Garner, ‘Black’s Law Dictionary’ (USA: Thomson, 2004).  Benazir Bhutto, ‘Reconciliation: Islam, Democracy and the West’ (London: Simon & Schuster Ltd, 2008).  Carl Boggs, ‘The Crimes of Empire: Rogue Superpower and World Domination’ (London, New York: Pluto Press, 2010).  Charles Rembar, ‘The Law of the Land: the Evolution of our Legal System’ (New York: Simon and Schuster, 1980).

380

 Dr Akbar Ahmad, ‘Thistle and Drone: American War on Terror or War on Tribal Islam’ (Lahore: Vanguard Books, 2013).  Dr. Shahid Ahmad Hashmat, ‘International Conflict Resolution: Role of UN and OIC’ (Islamabad: NUST Publishing, 2014).  Emmanuel Agius and Salvino Busuttil, ‘Future Generations and International Law’ (London, New York: Routledge, Taylor & Francis Group, 2013).  Emmanuel Zafar, ‘The Constitution of the Islamic Republic of Pakistan’ Volume I (Lahore: Irfan Law Book House, 1992).  G.M. Chaudhry, ‘Essay on Law, Justice, Human Rights and Legal System’ (Rawalpindi: Federal Law House, 2009).  Garner, ‘Black’s Law Dictionary’ (USA: Thomson West, 2004).  George B. Vold, ‘Theoretical Criminology’ (New York: Oxford University Press 1958).  Hamid Ali, ‘The Security of Pakistan Act 1952’ (Karachi: The Ideal Publishers, 1982).  Hans J. Morganthau, ‘Politics Among Nations’ (New York: Alfred A knopf, 5th edn, 1973 ("A Realist Theory of International Politics"))  Hassan Abbas, ‘Pakistan’s Drift into Extremism: Allah, the Army and America’s War on Terror’ (New Delhi: Pentagon Press, 2005).  Hassan Zaheer, ‘The Times and Trial of the Rawalpindi Conspiracy 1951: The first coup attempt in Pakistan’ (Karachi: Oxford University Press, 1998).  Howard E. Shuman and Walter R. Thomas, ‘The Constitution and National Security’ (Hawaii: University Press of the Pacific Honolulu, 1990).  Imran Ahsan Khan Nayazee, ‘General Principles of Criminal Law (Western and Islamic)’ (Islamabad: Advanced Legal Studies Institute, 2010).  Imran Ahsan Khan Nyazee, ‘Islamic Jurisprudence’ (Rawalpindi: Federal Law House, 2013).  Iqbal Mahmood Awan, ‘The Qanun-e-Shahdat (Order X of 1984)’ (Lahore: Mansoor Book House, 2013).

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 Ishfaq Ali, ‘Commentaries on Anti-terrorism Act 1997’ (Lahore: Imran Law Book House, 2014).  Ishfaq Ali, ‘The Anti-Terrorism Act, 1997’ (Lahore: Imran Law Book House, 2014).  James P. Levine, Michael and Dannis, ‘Criminal Justice - A Public Policy Approach’ (New York: Harcourt Brace Jovanorich Inc., 1981).  Jean-Maria Henckaerts and Louise Doswald-Beck, ‘Customary International Humanitarian Law,Volume 1:Rules’ (Cambridge University Press/ICRC, 2009).  Jerome Hall, ‘General Principles of Criminal Law’ (Indiana: The Bobbs - Merril Company Inc; 1960).  Justice S.B. Malik, ‘Compendium of Laws of Defence Services’ (Allahabad: The University Book Agency, 1991).  Justice Tassaduq Jilani, ‘Counter-terrorism, International Law and Practice’ (Islamabad: Oxford University Press, 2012)  Kazi Muhammad Ashraf, ‘Punjab Laws’ (Volume I) (Lahore: Mahmood & Company, 1964).  Laurence Boisson, ‘International Law, the International Court of Justice and the Nuclear Weapons’ (Cambridge: Cambridge University Press, 1999).  Lewis Mayers, ‘The American Legal System’ (New York: 1964)  M. A. Farani, ‘Criminal (Local & Special Laws) Minor Acts’ (Lahore: Lahore Law Times Publications, 2005).  M. Cherif Bassiouni, ‘The Islamic Criminal Justice System’ (London: Oceana Publications, Inc, 1982).  Michael Brecher & Frank, ‘Realism and Institutionalism Studies’ (Ann Arbor: The University of Michigan Press, 2000).  Muslim ibn al-Hajjaj al-Qushayri, ‘Saheeh Al-Muslim’, Volume 3, (Karachi, Qadimi Kutub Khanah, 1952).  Niaz A. Shah, ‘Islamic Law and The Law of Armed Conflict: The Armed Conflict in Pakistan’ (London: Rutledge, Taylor & Francis Group, 2011).  Nicolo Machiavelli, ‘The Prince’ (USA, Christoph Lymbersky Management Laboratory Press, 2009)

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 Noam Chomsky and Andre Vltchek, ‘On Western Terrorism From Hiroshima to Drone Warfare’ (London: Pluto Press, 2013).  Nurul Huda, ‘Shariah and Basic Human Rights Concerns’ (London: Koros Press Limited, 2012).  Omer Yousif Elagab, ‘International Law Documents Relating to Terrorism’ (London: New York: Cavendish Publishing Limited, 1997).  Patrick R. Anderson and Donald J. Newman, ‘Introduction to Criminal Justice’ (Florida: McGraw-Hill, 6th Revised Edition, 1998).  Paul W. Tappan, ‘Crime, Justice and Correction’ (New York: Mc Grew-Hill, 1960).  Peter W. Lewis and Kenneth D. Peoples, ‘The Supreme Court and the Criminal Process – Cases and Comments’ (Philadelphia: W.B. Saunders, 1978).  President Musharraf, ‘In the Line of Fire :A Memoir’ (New York: Free Press, 2006).  Rizwan Hussain, ‘Pakistan and The Emergence of Islamic Militancy in Afghanistan’ (England: Ashgate Publishing Limited, 2010).  Robert Jervis, ‘Perception and Misperceptions in International Politics’ (New Jersey: Princeton University Press, 1976)  Robert Wirsing, ‘Kashmir in the Shadow of War: Regional Rivalries in a Nuclear Age’ (London: M.E. Sherpe, 2003).  Roy Gutman and David Rieff, ‘Crimes of War: What the Public Should Know’ (New York, London: W.W. Norton & Company, 1999).  S.M. Ahmad, ‘A Lucky Pilot: Memories of Retired Wing Commander, Lucky Ahmad’ (Lahore: Ferozsons, 2001).  Shahid Hussain Qadri, ‘Pakistan Penal Code (XLV of 1860)’ (Lahore: Mansoor Book House, 2012).  Simons Chesterman, Thomas M. Franck & David M. Malone, ‘Law and Practice of the United Nations’ (Oxford University Press, 2007).  Sun Tzu, ‘The Art of War’ (e-artnow, 2012).  Thomas Hobbes, ‘Leviathan’ (Cambridge University Press, 1996).

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 Yves Sandoz. Christophe Swinarshi and Bruno Zimmermann, ‘Commentary on the Additional Protocol of 8 June 1977 to the Geneva Conventions of 12 August 1949’ (Geneva: ICRC, 1987).  Zafarullah Poshni, ‘Zindagi Zinda dili ka nam hai’ (Peshawar: Frontier Post, 1992).  Zia-ul-Islam, ‘Criminal Minor Acts’ (Lahore: Lahore Law Times Publications, 1998).

Reports/ Policies/ Manuals  “Accountability of International Organizations, Final Report of the Berlin Conference 2004” International Law Association, London.  “Annual Number of Reported Executions, 2017”, Death Penalty Information Center, USA  “Commentaries on I, II, III and IV Geneva Conventions” (Geneva: ICRC, 1958)  “Death sentences and Executions 2014” Amnesty International report, Georgia  “Death sentences and Executions 2015” Amnesty International report, UK  "FATA Return Weekly – Humanitarian Snapshot" (2016), report by United Nations Office for the Coordination of Humanitarian Affairs.  “Imperial Gazette of India 1907” Volume IV, Chapter XI as cited in ‘Manual of Indian Military Law 1937’ (Delhi: Defence Department, Government of India, 1937).  “Manual of Pakistan Military Law” (Volume II), (Rawalpindi: Government of Pakistan, Ministry of Defence, 1987).  “National Commission on Terrorist Attacks Upon the United States, Testimony of National Security Advisor, USA.  “Operation Neptune Spear: A watershed in war against terrorism”, Amna Yousaf Khokhar, The Institute of Strategic Studies, Pakistan.  “Pakistan: Further Information on Possible ‘Disappearance’/Fear for Safety: Hayatullah Khan (m), journalist”, (2006), Amnesty International, UK  “Pakistan: U.S. citizens tortured, held illegally” (2005), Human Rights Watch, USA  “Project for old American Century, New American Century”, by Kristol and Kagan, Washington DC.  “State of Human Rights in 2015” (2016), Human Rights Commission of Pakistan.

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 “Testimony Presented Before the United States House of Representatives, Armed Services Committee, Sub-Committee on Oversight and Investigations” by C. Christice Fair, USA  “The Hands of Cruelty” - Abuses by Armed Forces and Taliban in Pakistan’s Tribal Areas” (2012), report by Amnesty International, USA.  “The National Security Strategy of the United States of America” (2002), report by the executive branch of the government of the USA.  “The Responsibility to Protect: Report of the International Commission on Intervention and State Sovereignty”, International Development Research Center, United Nations.  “US: Hague Invasion Act Becomes Law” (2002), Human Rights Watch, USA  Advance Unedited Version of “Report of the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms While Countering Terrorism”, Human Rights Council, OHCHR, United Nations.  Committee Against Torture, “Concluding Observations on United States” (2006), United Nations Human Rights Committee.  David Hannay, “Effectiveness and Ineffectiveness of the UN Security Council in the Last Twenty Years: A European Perspective” (2009), Istituto Affari Internazionali, Italy.  Dr. Noor ul Haq and Miss Farhat Akram, “Lal Masjid Crisis” (2007), IPRI Factfile, Pakistan Society of Victimology, Pakistan.  Gerard Russell, “Maintaining International Peace and Security: A Summit Meeting of the UN Security Council” (2011), International Peace Institute, USA.  Mark Shaw “Drug trafficking and the development of organized crimes in post- Taliban Afghanistan”, United Nations Disarmament Commission, USA.  Mohammad Asif Mian, “Pakistan First National Project of Access to Justice”, University of Management and Technology, Pakistan.  United Nations Peace Operation, Report of the Penal on United Nations Peace Operation, delivered to the Security Council and General Assembly, (2000), UN Doc A/55/305, S/2000/809.

385

 Zakia Rubab Mohsin, “The Crisis of Internally displaced Persons (IDPs) in the Federally Administered Tribal Areas of Pakistan and their Impact on Pashtun Women” (2013), FATA Research Centre, Pakistan.

Journals/Research Articles  A.G. Chaudhary, “Unilaterial Military Intervention on Humanitarian Grounds in International law” (PLD 1973 Journal 105-113).  A.G. Noorani, “Archaic charge”, DAWN Islamabad, March 12, 2016.  A.K. Brohi, “Pacific Settlement of International Disputes” (PLD 1967 Journal 114- 125).  A.R Cornelius, Chief Justice, “Bring law and justice closer to understanding of people” (PLD 1967 Journal 21-26).  Abdul Jabbar A. Soomro, “Competent witness in Islam” (PLD 1973 Journal 96).  Afzal Shigri, “Legal Linkage with GB”, DAWN Islamabad, March 21, 2016.  Ahmad Nazir Warraich, “The Legal Frame Work to Inculcate CPD in Pakistan” (PLD 2014 Journal 38).  Ahmer Bilal Soofi, "Military Employment: Constitutional Provisions and Relevant Laws." Hilal 2013.  Ahmer Bilal Soofi, “International law & foreign policy”, DAWN Islamabad, July 25, 2016, p. 8.  Ambrish Dhoka, “Factoring Central Asia in China’s Afghanistan Policy”, October 2, 2013, Journal of Eurasian Studies.  Amir Waseem, “NACTA is functioning without formal staff, Senate told”, DAWN Islamabad, November 12, 2015.  Amir Waseem, “NACTA Revival”, DAWN Islamabad, November 13, 2015.  Amreen Choudhury and Yeshua Moser-Puangsuwan, “Justice disappeared: Exploring the Links of Armed Trade, Impunity, and Political Disappearances in Asia” (Bangkok: Nonviolence International Southeast Asia, 2007).  Andrew Hobbs, Brithney Gates and Kelsa Arnoid, “Blackwater (xe): The Secret US war in Pakistan”, July 24, 2012.

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 Antonio Cassese, “Terrorism is Also Disrupting Some Crucial Legal Categories of International Law”, EJIL, 12 (2001).  Antonio Cassese, “Terrorism is also Disrupting Some Crucial Legal Categories of International Law”, European Journal of International Law, Volume 12, Number 5, (2001).  Barrister Saadia Abbasi, “Anti-terrorism Laws and Way Forward in Dealing with Terrorists in Comparison with Contemporary Countries”, Pakistan Army Green Book 2014, (Islamabad: Crystal Printers, 2014).  Beard, “America’s New War on Terror: The Case for Self-defense under International Law’’ 25 Harvard Journal of Law and Public Policy (2002) 559.  Bradley L. Herling in “Machedicy, Or Just War Theory in an Age of Terror”, Existenz, Volume I, Numbers 1-2 (Fall 2006).  Brigadier Javed Iqbal, “Effects of International Terrorism on the Security of Pakistan”, USAWC Strategy Research Project, 2007.  Brigadier Raashid Wali Janjua, “Civil- Military Relations-The Impact of Internal and External Factors in Reshaping the Balance of Civil Military Relations”, NDU Journal, 2010.  Chris Allbritton, "Two Days After School Attack, Pakistan Court Lets Terrorists Walk Free", thedailybeast.com. December 19, 2014,  Colonel Hafiz Zafar Iqbal, “Need to Resolve the Issue of Moratorium on Capital Sentence” (PLJ 2015 Magazine 252-260).  Daniel Pipes, “The Justice Against Sponsors of Terrorism Act is Sham Legislation”, Middle East Forum, May 28, 2016.  David M. Malone, “US-UN relations in the UN Security Council in the Post-Cold War Era”, in Rosemary Foot & Michael Mastanduno, US Hegemony and International Organizations: The United States and Multilateral Institutions (Oxford: Oxford University Press, 2003.  Dr Mansoor Akbar Kundi, “Insurgency Factors in Balochistan”, Central Asia Journal, Number 64, Area Study Centre (Russia, China & Central Asia), University of Peshawar.

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 Dr Noman Umar Sattar, “War against Terrorism: Implications for Pakistan”, National Development and Security, Rawalpindi (Summer/2004), Volume XII, Number 14, pp.31-34.  Dr Razia Musarrat, “US War on Terrorism and its Impact on South Asia” (2007), Journal of Political Studies, Vol. 11, p2.  Dr. Justice Nasim Hasan Shah, “The United States Constitution and the Doctrine of Judicial Review” (PLD 1987 Journal 101 - 109).  Dr. Nasim Hassan Shah, “Question of Prisoners of war under the Geneva Conventions” (PLD 1973 Journal 38-46).  Dr. Noman Omar Sattar, “Terrorism: Dynamics of the new Wave”, Margalla Papers, 2009.  Dr. Noman Omar Sattar, “War against Terrorism: Implications for Pakistan”, National Development and Security, Rawalpindi, Vol XII, No.4 (Summer 2004).  Dr. S.M Hyder “Evolution of Frontier Crimes Regulation” (PLD 1967 Journal 41-47).  Dr. S.M Hyder, “Evolution of Frontier Crimes” (PLD 1967 Journal 41-47).  Dr. Tariq Hassan, “Supreme Court of Pakistan: The Cases of Missing Persons” Criterion, Vol 4, No. 3 of 15 February, 2011.  Eijaz Ahmad, “Security, Political Dimentions and Consequences of NATO Expansion in the Region”, South Asian Studies, Volume 25, Number 2, July- December 2010.  Eric Patterson, “Just War in the 21st Century: Reconceptualising Just War Theory After September 11,” International Polities (2005) Volume 42, 116-134.  Farhan Zahid, “The Successes and Failures of Pakistan’s Operation Zarb-e-Azb,” Terrorism Monitor, Volume 13, Issue 14, The James Town Foundation, Washington DC, July 10, 2015.  Fernando R. Teson, “Ending Tyranny in Iraq,” Ethics and International Affairs, Volume 19, No 2, 2005.  Galster, “Afghanistan, Lesson from the Last War, the Making of US Policy, 1973- 1990”, The National Security Archive, Volume II, October 9, 2001.  Gillian Brock, “Humanitarian Intervention: Closing the Gap between Theory and Practice,” Journal of Applied Philosophy (2006) 277-91, Volume 23, No 3. 388

 Globalizing Torture, CIA Secret Detention and Extraordinary Rendition, Open Society Justice Initiative, 5 February 2013.  Gretchen Peters, “How opium profits Taliban”, Peace Works, Number 62, US Institute of Peace, August 2009.  Haleem Ahmad, “Excesses of Police in Criminal Justice Administration and its Remedies” (PLD 2012 Journal 42-53)  I.A. Rehman, “How not to make a law”, DAWN Islamabad, August 4, 2016, p. 8  Iram Khalid and Zahid Yaseen, “Role of Military as the Guardian of ”, Journal of Political Studies, Volume. 22, Issue-1, 2015, pp.01-16.  J.K. Baral and J.N. Mahanty, “The US War Against Terrorism: Implications for South Asia”, Strategic Analysis, Vol. 26, No. 4, (The Institute for Defence Studies and Analysis, Oct-Dec 2002).  Jaan Sootak, “Theories of Punishment and Reforms of Criminal Law (Reforms as a change of Mentality)”, Juridica International. Law Review, University of Turtu (1632).  Jaggar, “What is terrorism, Why is it Wrong, and Could It Ever Be Morally Permissible?”, Journal of Social Philosophy 26, No. 2, Summer 2005.  Jane Mayer, “Outsourcing Torture: the secret history of America’s ‘extraordinary rendition program”, The New Yorker, February 14, 2005.  Jean-Maria Henckaerts, “Study on Customary International Humanitarian Law: A Contribution to the Understanding and Respect for the Rule of Law in Armed Conflict”, International Review of Red Cross, Volume 87, Number 857 March 2005.  Jerome Slater, “Just War Moral Philosophy and the 2008-09 Israeli Campaign in Gaza”, International Security, Vol. 37, No. 2 (Fall 2014).  John Faster, “Afghanistan and the new Great Game”, NWO Observer, August 16, 2009.  Jolyon Ford, Beyond the ‘War on Terror’, (Brooklyn Square (South Africa): Institute for Security Studies, 2009).  Jose E. Alvroz, “Hegemonic International Law Revisited”, Journal of International Law (97 A.J.I.L. 873).

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 Justice Dr. Nasim Hassan Shah, “Question of Prisoners of War under the Geneva Conventions” (PLD 1973 Journal 38-46).  Justice Dr. Tamzil-ur-Rehman, “Justice in Islam” (PLD 1987 Journal 8-18).  Justice Gul Muhammad Khan, “Role of Judiciary in the Development of Islamic Law” (PLD 1987 Journal 1-9).  Justice Hamoodur Rehman, “Peace through Religion” (PLD 1977 Journal 238-252).  Justice M. Mahboob Ahmad, “Role of Judiciary in an Islamic State” (PLD 1987 Journal 133 - 140).  Justice Muhammad Kamran Khan Mulakhail, “Effective Prosecution and Trial of Terrorism Cases” (PLD 2015 Journal 27-32).  Justice Tassaduq Jilani, “Impunity and the Emerging Patterns of International Justice” in Counter-terrorism, International Law and Practice (Islamabad: Oxford University Press, 2012).  Kamran Adil, “Police Laws in Pakistan: Present State of Affairs” (PLD 2015 Journal 9-17).  Kamran Adil, “Yemen Crises: Employing the International Legal Framework” (PLD 2015 Journal 87-90).  Kenneth N. Waltz, “Structural Realism after the Cold War”, International Security, Vol 25, No.1 (Summer 2000).  Kiran Firdous, “Militancy in Pakistan” (2009), Islamabad: Institute of Strategic Studies. pp. 112-129  Larry May, “Grotius and Contingent Pacifism” (2006), Studies in the History of Ethics, pp 1-21.  Laurie R. Blank &Benjanin R. Farley, “Characterizing US Operations in Pakistan: is the United States Engaged in an Armed Conflict”, Fordham International Law Journal, Vol, 34,  Lieutenant General (Retired) Ali Muhammad Jan Oarakzai, “Situation in FATA: Causes, consequences and the way forward”, Policy Perspectives, Volume 6, Number 1, January-June 2009, Institute of Policy Studies, Islamabad.,  Major Hafiz Zafar Iqbal, “Resolving the Issue of Concurrent Jurisdiction of Courts Martial and Criminal Courts” (PLD 2007 Journal 55 and PLJ 2007 Magazine 77). 390

 Marc Ambinder and David W Brown, “The story of US Special Forces infiltrated in Pakistan”, The Atlantic, February 15, 2012.  Maryam Azam, “Genesis of Militency in Pakistan”, IPRI Journal XIV, No. 1 (Winter 2014).  Masud Ahmed, “Constitutional Position of the Tribal Areas of West Pakistan” (PLD 1967 Journal 100-140).  Mearsheimer, “Realism, the Real World and the Academy”, in Michael Brecher & Frank, Realism and Institutionalism Studies, (Ann Arbor: The University of Michigan Press, 2000).  Mehran Ali Khan and Irfan u Din, "Impact of War on Terror on Maternal Mortality in FATA." FATA Research Centre, November 2, 2014.  Michael Byers, “Pre-emptive Self-defence: Hegemony, Equality and Strategies of Legal Change,” The Journal of Political Philosophy, Volume 11, Number 2, 2003.  Michael L. Gross, “Assassination and targeted Killing: Law Enforcement, Execution or Self-Defecse?”, Journal of Applied Philosophy, Volume 23, number 3, 2006.  Moed Yusuf, “ Two Pakistans” and “F-16s issue raised with Centcom Commander”, DAWN Islamabad, May 10, 2016.  Moeen Ahmed, “Punishment and State’s Criminal Law” (PLD 2015 Journal 47-54).  Muhammad Ali Nekokara, “Rickety criminal justice”, DAWN Islamabad, August 27, 2016  Muhammad Amin Butt, “Rule of Law and Curbs on the Powers of Court” (PLD 1987 Journal 98 - 101)  Muhammad Amir Rana and Rohan Gunaratna, “Al Qaeda Fights Back: Inside Pakistani Tribal Areas,” PIPS, Islamabad 2006.  Muhammad Shoaib Saddle, “In Obstacle to Reform, Stabilizing Pakistan through Reforms”, Asia Society (2012).  Munir Akram, “Chicken a’ la Kiev”; “Russia vetoes UN Resolution on Crimea; China abstains”; “US Warns Russian of tougher economic sanctions” and “Ukraine struggles to control eastern parts”, DAWN Islamabad, March 16, April 9 and 13, 2014.

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 Peter Symonds, “The Taliban, the USA and Resources of Central Asia” (2001) available at https://www.wsws.org/en/articles/2001/10/tal2-o25.html  Rukeyya Khan, “US declares an end to combat operations in Iraq” (2010) available at https://www.opendemocracy.net/security_briefings/010910 .  Syed Fazal-e-Haider, “Importance of Gawadar Port for China” (2008), available at http://www.pakistaneconomist.com/pagesearch/Search-Engine2008/S.E975.php  Syed Saleem Shahazed, “Pakistan: Taliban leader builds new links with Al-Qaeda” (2009), available at http://www1.adnkronos.com/AKI/English/Security/?id=3.0.3753470923  Tamie Harrison, “On the war against terror as a just war” (2009), available at http://userpages.umbc.edu/~jamie/html/on_the_war_against_terror_as_a.html  Umar Farooq, "The displaced in Bannu: IDP survey reveals domestic violence, early marriages." (2016) available at http://tribune.com.pk/story/1078735/the-displaced-in- bannu-idp-survey-reveals-domestic-violence-early-marriages/.  William Rivers Pitt, “The Project for the New American Century” (2003), available at http://www.informationclearinghouse.info/article1665.htm  World Islamic Front Statement “Jihad Against Jews and Crusaders” (1998), available at https://fas.org/irp/world/para/docs/980223-fatwa.htm.  Zhao Huasheng, “US Central Asia Diplomacy in Post Afghanistan War Era” (2014), China Institute of International Studies, available at http://www.ciis.org.cn/english/2014-06/25/content_7007638.htm .

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APPENDIX

397

Appendix A

(21st Constitutional Amendment)

398

399

400

Appendix B

(Pakistan Army Amendment Act, 2015)

401

402

403

404

Appendix C

Table 6.1 - COMPARATIVE ANALYSIS OF ANTI-TERRORISM AND OTHER LAWS OF PAKISTAN

S/ No Protection of Anti-terrorism Act 1997 Pakistan Army Act Pakistan Penal Code 1860 Other Laws Pakistan Act (ATA) 1952 (PPC) 2014 (PAA) (POPA) a b C d e f Offences in Offences described in Sec 6 Schedule to Sec and punishable under Sec 7 2(l)of POPA Sec 6(I)c. Using threat to Sec 153-A. Promoting 1 Crimes against advance a religious, sectarian PAA Sec 2(I) (d) (iii)(f). inciting or abetting enmity, ethnic, religious or ethnic cause. act to over-awe the state and political or any section of the hatred, ill-will, disharmony groups or public or sect or between different groups, minorities RI:-5 years– LI& fine religious minority; by spoken or written including words, signs, visible offences based on Sec 6(2)(f). Inciting hatred Death, LI, RI as per representations on the discrimination, and contempt on religious, PAA Sec 60 basis of religion, race, hatred, creed and sectarian or ethnic basis to place of birth, residence, race; stir up violence or cause language, caste, internal disturbance. community or any other RI:- upto 20 years ground. RI:- 2-5 years&fine RI:-upto5 years, fine or both Sec 6(2)(h). Firing on religious congregations, Sec 295-A. Deliberate and mosques, imambarghs, malicious acts intended to churches, temples and other outrage religious feelings places of worship, or random of any class by insulting firing to spread panic, forcible its religion or religious takeover of mosques or other beliefs. places of worship. RI:- upto10 years, fine or RI:- 5 years– LI& fine both

Sec11 X(3) Addressing a Sec 296. Disturbing meeting or gathering or religious assembly, delivering a sermon to lawfully engaged in religious gathering by any religious worship or means whether verbal, ceremonies. written, electric, digital or RI:-upto1 year, fine, or otherwise to incite religious, both. sectarian or ethnic hatred and contempt Sec 298. Uttering words, making sounds or RI:- 5-10 years, fine or both gesture etc., with deliberate intent to wound religious feelings of any person or making any gesture in the sight of that person or placing any object in the sight of that person.

405

RI:- upto1 year, fine or both

Sec 298-A Using derogatory remarks etc., in respect of Holy personages (Ummahatul Momineen, Ahal-e-bait, Khulfa-i- Rashdeen or Sahaaba)

RI:- upto3 years, fine or both

2. Use of arson, Sec 6(2)(c). Grievous damage PAA Sec 2(I) (d) (iii)(c). Sec 286. Rash or negligent Explosive fire-bombs, to public or private property, Possessing, storing, act or omission with respect Substance Act, suicide bombs, including school, government fabricating or to explosive substance as to 1908. biological premises, hospitals, by transporting the endanger human life or weapons, ransacking, looting, arson etc. explosives, fire-arms, likely to cause hurt or Sec 4. Attempt to chemical instruments, articles, injury to any other person. cause explosion or weapons, nuclear RI:- 10 years- LI& fine suicide jackets. making or keeping arms, plastic RI:-upto6 months, fine or both. explosive with explosives and Sec 6(2)(d). Doing anything Death, LI, RI as per that is likely to cause death Sec 435. Mischief by fire intent to endanger other materials PAA Sec 60 life or property. capable of or endanger a person’s life. or explosive substance with intent to cause damage to exploding or PAA Sec 2(I) (d) (iii)(d). any property. creating bombs RI:- 10 years – LI and fine Use or design vehicles RI:- 7 years - LI employed to kill for terrorist acts. or cause hurt to RI:- 2-7 years and fine persons or Sec6(2)(ee). Using explosive Death, LI, RI as per Sec 436. Mischief by fire destroy property; by any device including bomb PAA Sec 60 or explosive substance

blast. with intent to destroy any RI:- upto 20 years house or building, for worship, residence or RI:- 14 years - LI custody of property.

Sec 6(2)j. Burning of vehicles RI:- 3-10 years or fine or any other serious form of arson. Sec 437. Mischief with Intent to destroy or make RI:-5 years – LI& fine unsafe a decked vessel or one of twenty tons burden, with fire or explosive

RI:- up to 10 years or LI, fine 3. Use ofarson and Sec6(2)(a). Doing anything PAA Sec 2(I) (d) (iii)(c). Sec 435. Mischief by fire bombs on public that causes death; Possessing, storing, or explosive substance with Explosive places, fabricating or intent to cause damage to Substance Act, government LI / death transporting the any property. 1908. premises, sites of explosives, fire-arms, worship, instruments, articles, RI:- 2-7 years and fine Sec4. Attempt to historical places, Sec 6 (2) (ee). Using suicide jackets. cause explosion or business explosive by any device Sec 436. Mischief by fire making or keeping concerns, or other including bomb blast. Death, LI, RI as per or explosive substance explosive with places, and PAA Sec 60 with intent to destroy any intent to endanger risking or causing RI:- 14 years - LI house or building, for life or property. death or hurt to PAA Sec 2(I) (d) (iii)(d) worship, residence or any person use or design vehicles for custody of property. RI:- 7 years - LI therein; Sec 6(2)(d). Doing anything terrorist acts. that is likely to cause death RI:- 3-10 years or LI& fine

406

or endanger a person’s life. Death, LI, RI as per PAA Sec 60 Sec 437. Mischief with Intent to destroy or make RI:- 10 years, or LI & fine unsafe a decked vessel or one of twenty tons burden,

with fire or explosive.

RI:- up to 10 years or LI, fine 4. Killing, Sec 6(2)(a). Doing anything PAA Sec 2(I) (d) (iii)(b). Sec 302.Qatl-e-Amd i.e. Pakistan Arms kidnapping that causes death; Abduct any person for murder Ordinance, 1965 extortion, assault ransom, or cause death Sec 13-A. or attack on LI / death of any person or injury. Death, LI, RI upto 25 years Transports, sells or member of the keeps, offers or parliament, Death, LI, RI as per imports for sale, a judiciary, Sec 6(2)(b). Grievous PAA Sec 60 Sec 332 – 337. Causing cannon, grenade, executive, Media violence against a person or PAA Sec 2(I) (d) (iii) pain, harm, disease, launcher, missile, and other grievous bodily injury or (a). infirmity or injury to any machine gun, important harm to a person. Raise arms or wage war person or impair, disable ammo, dynamite. personalities or RI:- 10 years – LI& fine against Pakistan, or or dismember any organ any other person. attack the Armed Forces of body or part thereof. RI:-LI/death of Pakistan or law RI:- 2-14 years and arsh or Sec 6(2)(d). Doing anything enforcement agencies, or daman that is likely to cause death attack any civil or or endanger a person’s life. military installations in Pakistan. Sec364.Kidnapping or RI:- 10 years - LI & fine abducting for murder. Death, LI, RI as per Sec 6(2)(k). Extortion of PAA Sec 60 RI:-upto10 years, LI and money (“bhatta”) or fine property; Sec388. Extortion by RI:- 5 years - LI & fine threat of accusation of an offence punishable with death or life imprisonment etc RI:-upto10 years- LI& fine Sec 455. Lurking house- trespass or house-breaking after preparation for hurt, assault or wrongful restraint. RI:- upto10 Years & fine Sec458.Lurking house- trespass or house-breaking by night after preparation for hurt, assault or wrongful restraint. RI:- upto14 years, Fine or both 5. Killing, Sec 6(2)(a). Doing anything PAA Sec 2(I) (d) (iii) Sec152. Assaulting or kidnaping, that causes death; (a&b). obstructing public servant extortion, assault when suppressing riot, etc. or attack on RI:- LI / death (a) Raise arms or officers and Sec 6(2)(b). Grievous wage war against RI:-upto 3 years, fine or employees of violence against a person or Pakistan, or attack the both. Pakistan grievous bodily injury or Armed Forces of including armed harm to a person. Pakistan or law Sec 302.Qatl-e-Amd i.e. forces and law enforcement agencies, or murder- 407

enforcement attack any civil or agencies. RI:- 10 years – LI& fine military installations in Death, LI, RI upto 25 years Pakistan. Sec 6(2)(c). Grievous damage Sec 332 – 337. Causing to property. (b) abduct any pain, harm, disease, person for ransom, or infirmity or injury to any cause death of any person or impair, disable RI:- 10 years – LI& fine person or injury; of or dismember any organ of body or part thereof. Sec 6(2)(d). Doing anything Death, LI, RI as per that is likely to cause death PAA Sec 60 RI:- 2-14 years and arsh or or endanger a person’s life. daman

RI:- 10 years -LI& fine Sec 353. Assault or criminal force to deter Sec 6(2)(e). Involves public servant from kidnapping for ransom, discharge of his duty. hostage-taking or hijacking;

LI / death RI:- upto 2 years and fine

Sec 6(2)(k). Extortion of money (“bhatta”) or Sec 364.Kidnapping or property; abducting for murder. RI:- 5 years - LI &fine RI:- upto 10 years, LI Sec 6(2)(m). Serious coercion and fine or intimidation of a public servant in order to force him Sec 388. Extortion by to discharge or to refrain from threat of accusation of an discharging his lawful duties. offence punishable with death or life RI:- 5 years – LI& fine imprisonment etc Sec 6(2)(n). Serious violence RI:- upto 10 years - LI& against a member of the fine police force, armed forces, civil armed forces, or a public servant. Sec 455. Lurking house- RI:-5 years– LI& fine trespass or house-breaking after preparation for hurt, assault or wrongful restraint. RI:- upto 10 Years & fine Sec 458.Lurking house- trespass or house-breaking by night after preparation for hurt, assault or wrongful restraint. RI:- upto 14 years, fine or both 6. Killing, Sec 6(2)(a). Doing anything PAA Sec 2(I) (d) (iii)(b). Sec 302.Qatl-e-Amd i.e. kidnaping,extort that causes death; abduct any person for murder- ion, assault or ransom, or cause death attack on foreign LI / death of any person or injury; Death, LI, RI upto 25 years officials, officers, Sec 6(2)(b). Grievous of guests, tourists, violence against a person or Sec 332 – 337. Causing foreign visitors, grievous bodily injury or pain, harm, disease, or internationally harm to a person. Death, LI, RI as per infirmity or injury to any protected person PAA Sec 60 person or impair, disable 408

etc. or dismember any organ RI:- 10 years – LI& fine of body or part thereof.

Sec 6(2)(d). Doing anything RI:- 2-14 years and arsh or that is likely to cause death daman or endanger a person’s life. Sec 364.Kidnapping or RI:- 10 years, LIand fine abducting for murder.

RI:- upto 10 years, LI Sec 6(2)(e). Involves and fine kidnapping for ransom, hostage-taking or hijacking; Sec 388. Extortion by threat of accusation of an RI:- LI / death offence punishable with death or life Sec 6 (2) (k). Extortion of imprisonment etc money (“bhatta”) or property; RI:- upto 10 years - LI& fine RI:- 5year –LI& fine

Sec 452.House-trespass after preparation for hurt, assault or wrongful restraint. RI:- upto7 Years and fine Sec 455. Lurking house- trespass or house-breaking after preparation for hurt, assault or wrongful restraint. RI:- upto 10 Years and fine Sec 458.Lurking house- trespass or house-breaking by night after preparation for hurt, assault or wrongful restraint.

RI:- upto 14 years and fine

7 Killing, Sec 6(2)(a). Doing anything PAA Sec 2(I) (d) (iii((b). Sec 302.Qatl-e-Amd i.e. kidnaping, that causes death; abduct any person for murder- extortion, assault ransom, or cause death or attack on LI / death of any person or injury; Death, LI, RI upto 25 years social or welfare Sec 6(2)(b). Grievous of workers, violence against a person or Sec 332 – 337. Causing including health grievous bodily injury or pain, harm, disease, personnel, aid harm to a person. Death, LI, RI as per infirmity or injury to any workers and PAA Sec 60 person or impair, disable volunteers; RI:- 10 years – LI& fine or dismember any organ of body or part thereof. Sec 6(2)(d). Doing anything that is likely to cause death RI:- 2-14 years and arsh or or endanger a person’s life. daman

RI:- 10 years, LIand fine Sec 364.Kidnapping or abducting for murder.

RI:- upto 10 years, LI Sec 6(2)(e). Involves

409

kidnapping for ransom, and fine hostage-taking or hijacking; Sec 388. Extortion by LI / death threat of accusation of an offence punishable with death or life Sec 6 (2) (k). Extortion of imprisonment etc money (“bhatta”) or property; RI:- upto 10 years - LI& fine RI:- 5years – LI&fine Sec 452. House-trespass after preparation for hurt, assault or wrongful restraint. RI:-upto7 Years and fine

Sec 455. Lurking house- trespass or house-breaking after preparation for hurt, assault or wrongful restraint. RI:- upto 10 Years and fine Sec 458.Lurking house- trespass or house-breaking by night after preparation for hurt, assault or wrongful restraint.

RI:- upto 14 years and fine 8 Destruction of or Sec 6(2)(c). Grievous damage PAA Sec 2(I) (d) (iii) Sec 436. Mischief by fire Explosive attack on to property (a). or explosive substance Substance Act, communication Raise arms or wage war with intent to destroy any 1908. and interaction RI:- 10 years – LI& fine against Pakistan, or house or building, for lines, devices, attack the Armed Forces worship, residence or Sec 6(2) (ee). Using explosive Sec 4. Attempt to grids stations, or of Pakistan or law custody of property. cause explosion or systems etc. by any device including bomb enforcement agencies, or blast; making or keeping attack any civil or explosive with RI:-14 years - LI military installations in RI:- 3-10 years, LI and fine intent to endanger Pakistan; or life or property.

Sec 6(2)(l). Seriously interference or disruption with RI:- 7 years - LI communication system or Death, LI, RI as per public utility service. PAA Sec 60

RI:- 5 years – LI& fine

9 Destruction of or Sec 6(2)(c). Grievous damage PAA Sec 2(I) (d) (iii) Sec431. Mischief by Explosive attack on energy to property; (a). Injury to public road, Substance Act, facilities Raise arms or wage war bridge, river or channel 1908. including dams, RI:- 10 years – LI& fine against Pakistan, or power generating attack the Armed Forces RI:-upto5 years and fine Sec 4. Attempt to and distributing Sec 6(2)(ee). Using explosive of Pakistan or law cause explosion or systems including enforcement agencies, or Sec 436. Mischief by fire by any device including bomb or explosive substance making or keeping stations, lines and blast; attack any civil or explosive with poles; military installations in with intent to destroy any house or building, for intent to endanger Pakistan; or life or property. RI:-14 years - LI worship, residence or custody of property. RI:- 7 years - LI Death, LI, RI as per RI:- 3-10 years, LIand fine 410

PAA Sec 60

10 Destruction of or Sec 6(2)(c). Grievous damage PAA Sec 2(I) (d) (iii) Sec 436. Mischief by fire Explosive attack on to property; (a). or explosive substance Substance Act, aircrafts and Raise arms or wage war with intent to destroy any 1908. airports, attack on RI:- 10 years – LI& fine against Pakistan, or house or building, for flight crews with attack the Armed Forces worship, residence or Sec 4. Attempt to cause explosion or any weapon or Sec 6(2)(ee). Using explosive of Pakistan or law custody of property. endangering enforcement agencies, or making or keeping by any device including bomb explosive with human life by attack any civil or blast; RI:- 3-10 years, LIand fine intent to endanger means of military installations in weapons on Pakistan; or life or property. aircrafts; RI:- 14 years – LI Death, LI, RI as per RI:- 7 years - LI PAA Sec 60 11 Destruction of or Sec 6(2)(c). Grievous damage PAA Sec 2(I) (d) (iii) Sec 431. Mischief by Explosive attack on gas or to property; (a). Injury to public road, Substance Act, oil pipelines and raise arms or wage war bridge, river or channel 1908. liquid or natural RI:- 10 years – LI& fine against Pakistan, or gas facilities and attack the Armed Forces RI:- upto5 years and fine Sec 4. Attempt to other means of of Pakistan or law cause explosion or their transport Sec 6(2)(ee). Using of enforcement agencies, or making or keeping including tankers; explosive by any device attack any civil or Sec 436. Mischief by fire explosive with including bomb blast; military installations in or explosive substance intent to endanger Pakistan; or with intent to destroy any life or property. house or building, for RI:- 14 years – LI worship, residence or RI:- 7 years - LI Death, LI, RI as per custody of property. PAA Sec 60 RI:- 3-10 years, LI and fine

12 Destruction of or Sec 6(2)(c). Involves grievous PAA Sec 2(I) (d) (iii) Sec433. Mischief by injury Explosive attack on national damage to property. (a). to public road, bridge, river Substance Act, defense materials, Raise arms or wage war or channel Mischief by 1908. premises, RI:- 10 years – LI& fine against Pakistan, or destroying, moving or utilities, and attack the Armed Forces rendering fess useful a Sec 4. Attempt to installations Sec 6(2)(ee). Involves use of of Pakistan or law light house or sea-mark cause explosion or including check explosive by any device enforcement agencies, or making or keeping posts, prisons and including bomb blast; attack any civil or RI:-upto7 years and fine explosive with other fixtures; military installations in intent to endanger Pakistan; or life or property. RI:- 14 years – LI Sec 436. Mischief by fire

Death, LI, RI as per or explosive substance RI:- 7 years - LI PAA Sec 60 with intent to destroy any house or building, for worship, residence or custody of property.

RI:- 3-10 years, LI and fine

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13 Destruction of or Sec 6(2)(c). Involves grievous PAA Sec 2(I) (d) (iii) Sec 431. Mischief by Explosive attack on damage to property. (a). Injury to public road, Substance Act, educational Raise arms or wage war bridge, river or channel 1908. institutions, RI:- 10 years – LI& fine against Pakistan, or police stations attack the Armed Forces RI:- upto5 years and fine Sec 4. Attempt to and security Sec 6(2)(ee). Involves use of of Pakistan or law cause explosion or organizations etc. explosive by any device enforcement agencies, or Sec 436. Mischief by fire making or keeping including bomb blast; attack any civil or or explosive substance explosive with military installations in with intent to destroy any intent to endanger Pakistan; or house or building, for life or property. RI:- 14 years – LI worship, residence or custody of property. RI:- 7 years - LI Death, LI, RI as per PAA Sec 60 RI:- 3 years, LI and fine

14 Cyber crimes, - - Prevention of internet offences Electronic Crimes and other Ordinance, 2007. offences related to information Sec 17Cyber technology which Terrorism. Any facilitate any person, group, or offence under this organization, who Act. with terroristic intent utilizes, accesses, or cause to be accessed a computer or electronic network etc and knowingly engages in or attempts to engage in terroristic act, commits the offence of cyber terrorism.

RI:- upto 10 years – LI/ Death & fine 15 Wrecking, Sec 6(2)(c). Involves grievous PAA Sec 2(I) (d) (iii) Sec 431. Mischief by disrupting or damage to property. (a). Injury to public road, attacking mass Raise arms or wage war bridge, river or channel transport systems RI:- 10 years – LI& fine against Pakistan, or including trains, attack the Armed Forces RI:- upto5 years and fine buses, cars and of Pakistan or law their stations and enforcement agencies, or ports; Sec 6(2)(l). Is designed to attack any civil or Sec 432. Mischief by seriously interfere with or military installations in causing inundation or seriously disrupt a Pakistan; or obstruction to public communication system or drainage attended with public utility service. damage Death, LI, RI as per RI:-upto5 years, LI and fine PAA Sec 60 RI:- 5 years – LI& fine

Sec 436. Mischief by fire or explosive substance with intent to destroy any house or building, for worship, residence or custody of property.

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RI:- 3-10 years, LI and fine 16 Violence or Sec 6(2)(c). Involves grievous PAA Sec 2(I) (d) (iii) Sec 433. Mischief by attack against damage to property. (a). destroying, moving or maritime Raise arms or wage war rendering less useful a navigation, RI:- 10 years – LI& fine against Pakistan, or light-house or seamark. maritime fixed attack the Armed Forces platforms, of Pakistan or law RI:- 7 years& fine Sec 6(2)(l). Is designed to shipping and port enforcement agencies, or seriously interfere with or installations and attack any civil or seriously disrupt a Sec 437. Mischief with other maritime military installations in communication system or intent to destroy or make fixtures; Pakistan; or public utility service. unsafe a decked vessel or one of twenty tons burden. RI:- 5 years – LI& fine Death, LI, RI as per RI:- up to 10 years& fine PAA Sec 60

17 Violence against Sec 6(2)(c). Involves grievous PAA Sec 2(I) (d) (iii) Sec 436. Mischief by fire nuclear arms, damage to property. (a). or explosive substance sites or any other Raise arms or wage war with intent to destroy any related RI:- 10 years – LI& fine against Pakistan, or house or building, for installations; attack the Armed Forces worship, residence or of Pakistan or law custody of property. enforcement agencies, or attack any civil or RI:- 3-10 years, LI and fine military installations in Pakistan; or

Death, LI, RI as per PAA Sec 60 18 Hostage taking, Sec 6(2)(e). Involves PAA Sec 2(I) (d) (iii((b). Sec 365. Kidnapping or or attempting to kidnapping for ransom, Abduct any person for abduction with intent take hostage any hostage-taking or hijacking; ransom, or cause death secretly and wrongfully to person. of any person or injury; confine person. RI:- LI / death of RI:- upto 7 years and fine Death, LI, RI as per PAA Sec 60 19 Violence against Sec 6(2)(b). Grievous PAA Sec 2(I) (d) (iii((b). Sec 332 – 337. Causing national violence against a person or Abduct any person for pain, harm, disease, occurring outside grievous bodily injury or ransom, or cause death of infirmity or injury to any Pakistan. harm to a person. any person or injury; of person or impair, disable or dismember any organ RI:- 10 years – LI& fine of body or part thereof. Sec 6(2)(d). Doing anything Death, LI, RI as per that is likely to cause death PAA Sec 60 RI:- 2-14 years and arsh or or endanger a person’s life. daman

RI:- 10 years – LI & fine 20 Illegally crossing - Being civil offences, all - national these offences are triable Foreigners boundaries in under PAA, if committed Act,1946 connection with by military personnel, Sec scheduled subject to the Act. 3(2)(a&b).Prohibits offences. the foreigner not to enter or depart Pakistan except through a prescribed

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route or place.

RI:- upto10 years and fine

Sec 13 (a). Prohibits illegal entry or making arrangements for security or facilitate entry into Pakistan.

RI:- upto3 years and fine

Passport Act, 1974

Sec 3 & 4. Prohibits the citizens of Pakistan not to depart or arrive in the country except from designated places and with a valid passport.

RI:- upto 1 year or fine or both

21. Offences Sec 6(1)(b). Use or threat is Being civil offences, all Sec 121, 121A, 122, 123, punishable under designed to coerce and these offences are triable 123A, 123B, 124, 124A, PPC Sec 121, intimidate or overawe under PAA, if committed 125, 126, 127, 128, 129, 121A, 122, 123, Government or public or a by military personnel, 130, 131, 132, 133, 134, 123A, 123B, 124, section of public or subject to the Act. 135, 136, 137, 138, 139 and 124A, 125, 126, community or sect or create 140. 127, 128, 129, a sense of fear or insecurity in 130, 131, 132, society. 133, 134, 135, RI: 5-10 years & fine 136, 137, 138, 139, and 140. 22. Preparation, 3rd Schedule to Sec 2(t). Any Being civil offences, all Sec 107. Abetment (by way abetment, attempt attempt to commit, or any these offences are triable of instigation, conspiracy, or conspiracy to aid or abetment of, or any under PAA, if committed intentionally aids) of any commit any of conspiracy to commit, any of by military personnel, act or illegal omission. the offences the aforesaid offences. subject to the Act. specified in this RI: As of original offence Schedule. Sec 6 (7)(a & b). A person commits terrorism if he is Sec 120A. Criminal concerned in commission, conspiracy, when two or preparation or instigation of more persons agree to do or acts of terrorism. cause to be done an illegal RI: LI - death act or a legal act by illegal means RI: 2 years - LI – death

Sec 511. Attempting to commit offences punishable with imprisonment for life or for a shorter term.

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RI: One half of the longest imprisonment or daman/ fine or both.

Sources: Pakistan Penal Code 1860, Pakistan Army Act 1952, Anti-terrorism Act 1997, Protection of Pakistan Act 2014, Explosives Substance Act 1908, Pakistan Arms Ordinance 1965 and Protection of Electronic Crimes Ordinance 2007

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