Defining Terrorism: Its (Mis)Application and Implications in Pakistan.
Keywords: Anti-Terrorism Act 1997 (ATA), Pakistan Penal Code 1860, Mens-rea, Actus-reus, Anti-Terrorism Courts (ATCs).
Terrorism, which is easily one of the most used words of the Twenty-first Century, has been defined by various national as well as international law practitioners, jurists, law makers, and academics.1 Still, there is no consensus when it comes to defining it, owing to the complexities and connotations attached to it. Although Pakistan is one of the most terrorism-affected countries in the world. Its legislature and judiciary have remained indecisive in devising a comprehensive definition of 'terrorism'.2 In Pakistan, the statutory coverage to terrorism had already been given through statutes such as the Suppression of Terrorist Activities (Special Courts) Act, 1975; the Special Courts for Speedy Trial Ordinance, 1987; the Terrorist-Affected Areas (Special Courts) Ordinance, 1990; and the Terrorist-Affected Areas (Special Courts) Act, 1992. However, these laws were promulgated only to provide legal cover to the special courts for taking up the infrequent cases of terrorism.
Lack of comprehensive anti-terror legislation thus remained a challenge for the state. The Anti-Terrorism Act, 1997 (Act XXVII of 1997), hereinafter ATA,3 addressed this lacuna to some extent.4 The anti-terror legal regime of Pakistan is currently being governed largely by the ATA.5This statute has its own flaws. This paper argues that the broad definition of 'terrorism' given in the ATA makes its aim and scope ambiguous. This ambiguity sometimes allows this especially constituted statute, meant to deal with the cases of terrorism, to partly cover the scope of the regular penal law i.e. the Pakistan Penal Code (PPC).6 This overlap usually lets the investigation agencies and parties to considerably complicate the case in such a way that the court grapples with settling the question of jurisdiction first and later it proceeds with the original case. During this course, sometimes the especially constituted Anti-Terrorism Courts (ATCs) might take over the role of the Session Courts too.
The ATCs, therefore, are over-involved7 in routine cases, which do not fall within the purview of terrorism, thereby defeating their raison d'etre.8 Thus, despite enactment of a detailed and exclusive law to deal with terrorism, the courts still find it difficult to differentiate between 'common crimes' or 'acts of terrorism.' The confusion or misinterpretation by the judiciary leads to contradictory judgments and thus making this sensitive law somewhat unpredictable. The second part of this study elaborates the particular off-shoots of the statutory and judicial overlaps. The paper examines the need for special and separate legislation to deal with the acts of terrorism and discusses why the general legislation that deals with the criminal matters cannot take care of such offences as well.
Perplexity to Determine the Scope of the Terrorism
The preamble of the ATA describes its ambit as, 'an Act to provide for the prevention of terrorism, sectarian violence and for speedy trial of heinous offences.' However, the law does not elaborate the fundamental expressions, such as, 'heinous offences' in terms of its particular use under this Act. This term, except as given in the preamble, has not been defined in the whole Act which has widely broadened its scope. Similarly, the word 'sectarian' is used in the statute at several places such as under Section 2(u) and (v) and Section 6(1)(C) whereas Section 8 specifically discusses the prohibition of those 'acts' which are intended or are likely to stir up sectarian hatred. Nevertheless, no special criterion is discussed in either of these instances which can establish a link between an act and terrorism.
The specific definition of 'terrorism' is given in Section 6. Sub-section 6(1) says,
In this Act, 'terrorism' is defined as the use or threat of action where:
(a) The action falls within the meaning of sub-section (2); and (b); the use or threat is designed to coerce and intimidate or overawe the Government or the public or a section of the public or community or sect or a foreign government or population or an international organization or create a sense of fear or insecurity in society; or (c); the use or threat is made for the purpose of advancing a religious, sectarian or ethnic cause or intimidating and terrorizing the public, social sectors, media persons, business community or attacking the civilians, including damaging property by ransacking, looting, arson or by any other means, government officials, installations, security forces or law enforcement agencies. Provided that nothing herein contained shall apply to a democratic and religious rally or a peaceful demonstration in accordance with law.9
Sub-section 6(2) further lists down sixteen different actions or threat of actions to include under the definition of 'terrorism'. A combined reading of the two sub-sections, i.e. sub-section 6(1) and 6(2) clarifies that the first sub-section identifies a few decisive factors to term a crime as an act of 'terrorism'. At first, 'intimidation and fear' are described as two key factors to make the first sub-section operational. Therefore, if the actions falling within the scope of sub-section 2, leave the effect of 'intimidation and fear' in the minds of any segment of the society as mentioned in sub-section 6(1)(b)(c), those actions are fit to fall under the definition of 'terrorism'. Several crimes enlisted under sub-section 6(2) of the ATA have been discussed in the PPC too including, 'offences affecting human body' (chapter XVI) 'crime against property' and 'hijacking' (chapter XVII).
'Intimidation and fear' are the integral parts of these crimes too and certainly leave their impact on at least a particular segment of the society. The obvious difference between the 'acts' falling under the ambit of sub-section 6(2) of the ATA and the crimes discussed in aforementioned chapters of the PPC, lies in the terrorizing effect of 'intimidation' and 'fear' on particularly those segments of society discussed under sub-section 6(1). Therefore as maintained by numerous judicial decisions,1011 these two terms actually have a subjective effect. To avoid the subjectivity of these two terms, the ATA has not itself defined their meticulous effect with relation to this Section so that the 'act of terrorism' might be distinguished from a 'regular crime' on the basis of the distinctiveness of description. Therefore, this deficient explanation provides all reasons to interpret these terms as broadly as possible.
The second factor to determine the ambit of the ATA provisions is, 'design' which is defined in sub-section 6(1) (b). In effect the factor of 'design' paves the course towards the third factor that is the 'purpose' or the mens-rea12 behind commission of the 'act' given in sub-section 6(1)(c).
The fourth factor is 'actus-reus'13 which has been mentioned under sub-section 6(2). Principally, this fourth factor of actus-reus connected to terrorism should not be established in the absence of the first factor of 'fear and intimidation' that specifically leave the effect of 'terror' in the minds of common people. However, the judicial practices show that the 'act of terrorism' can be constituted when either all four factors are present or sometimes only one factor is also sufficient to constitute such an act.14 This single decisive factor can be the 'mens-rea' alone or sometimes even the 'actus-reus' alone can place the criminal act within the ambit of the ATA.
Furthermore, sub-section 6(3) says, 'The use or threat of use of any action falling within sub-section (2) which involves the use of fire-arms, explosives or any other weapon is terrorism, whether or not sub-section 1 (c) is satisfied.' The definition of 'fire-arms' and 'explosives' is given under Section 2(f)15 and (g)16 and 'weapon' is defined in Section 2(bb)17. Section 1 of the Terrorism Act, 2000, UK (TA) seems to be the source of inspiration in drafting the definition of terrorism for the ATA. Sub-section 1(3) of TA, UK includes the use of firearms or explosives to carry out specific actions, under the definition of terrorism. This definition, however, faced strong criticism within the United Kingdom (UK) especially for the wideness of its scope.18 And this definition later on changed with the inclusion of new amendments.19
Nevertheless the Pakistani legislature does not seem considerate of the fact that there is rampant proliferation of every type of illegal weapons in the country and commission of violent action is made easy with the use of firearms. The borrowed definition should have been adapted and modified at this point by the legislature keeping in view the local context. However, it was overlooked. Thus, the ATA can be applied to almost 99% of violent offences in Pakistan now.20 Resultantly regular crimes of abduction, kidnapping for ransom, killing for personal enmities etc. which are otherwise 'heinous offences', are not always carried out for spreading terror, are freely being dealt under this Act.21 Besides these complexities, by making the conditions of sub-section 6(1)(c)22 optional for classifying a crime as an act of terrorism, the ATA has opened up a plethora of cases for the courts by broadening its scope to include regular criminal cases.
It is this lacuna that leaves room for misuse of the legislation to the extent that even the routine misdemeanors are now registered under the ATA.
In the preliminary post-inception phase of the ATA, the courts, as a principle, used the Act in immensely restricted manner. This was perhaps because, firstly, the judicial offices were especially careful for the apt application of this exceptional law and secondly, because the scope of the law had not expanded too much. The Supreme Court observed in 1998 in Mehram Ali Alias Yawar Ali v. Federation of Pakistan and 4 Others,23 that the especially constituted courts under the ATA had limited jurisdiction for trial of persons charged with commission of terrorist acts only in those areas where declaration of intent had been issued by the Federal Government under Section 3 of the said Act.24 During this phase, the crimes committed to satisfy individual motives or personal vendetta could not be included within the scope of the ATA. Thus the assertion made by the court in Mehram Ali Case to exclude excessive litigation through the usage of this Act was apt.
Later on, the Lahore High Court, while dealing with an appeal against the decision of the ATC gave a narrow interpretation of the law by excluding the crime of Karokari (honor killing) from the ambit of the ATA in Ismat Naureen v. Additional Sessions Judge, Attock and Another.25 It was declared that:
"A court is not entitled to read words into an act of the legislature unless a clear reason for it is to be found within the four corners of the Act itself. Its duty is neither to add to, nor to take from a statute anything unless there are good grounds for thinking that the legislature intended something which it has failed precisely to express."26
In 2001, in the case of Bashir Ahmad v. Naveed Iqbal and 7 Others27 where the accused killed his wife through burning her by sprinkling spirit on her person, the Supreme Court observed that the offence committed was certainly most heinous in nature but it did not mean that it qualified to be a terrorist act under Section 6,7 and 8 or the third schedule (that deals with the scheduled offences) of the ATA. The apex court held that if an offence included in the schedule has no link with the above sections, in that event the inclusion of such an offence under the scope of the ATA would be ultra-vires.
However, this vigilant behavior suddenly was forced to take a paradigm shift in post 9/11 phase when Pakistan joined the United States (US) as an ally in its War against Terror in Afghanistan. Although a terrifying reactionary wave of terrorism was witnessed throughout Pakistan after this alliance, the legislature, law enforcement agencies and the people at large did not adopt a cautious attitude; instead ATA was invaded with new amendments after the occurrence of every new criminal incident.28 Consequently, overuse of 'terrorism' in the hands of the police and the parties/stakeholders to a particular case increased. Therefore, especially after 2001, the judicial jurisprudence on terrorism became more crystallized. The courts though tried to maintain difference between a regular criminal act and an act leading to terrorism, could not fully succeed, primarily because of statutory lacunas.
Nevertheless, the judiciary based its decisions on four decisive factors as given in Section 6 to include in or exclude a particular case from the ambit of ATA. The judicial point of view on these four factors is discussed below:
Factor of 'Purpose'
The statute places the factor of purpose (mens-rea) or intention behind commission of a criminal act as one of the crucial factors to term a crime as an act of terrorism under sub-section 6(1). The courts frequently have relied upon this one particular factor to seek jurisdiction under the ATA in both the pre 9/11 and the post 9/11 scenario.
For example, in 1999, in the case of Muhammad Afzal and Others v. S.H.O and Others,29 the Court required a proof of mens-rea to differentiate the regular crimes from the acts of terrorism owing to the fact that the criminal acts defined in Section 6 of the ATA were offences under many other penal statutes too, hence these ordinary penal offences could only be categorized as acts of terrorism when they were coupled with mens-rea, intention, aim or objective as mentioned in the definition of the ATA. Later in 2001, in Bashir Ahmad v. Naveed Iqbal,30 the Supreme Court again categorically declared establishing purpose or mens-rea as the decisive factor to determine the jurisdiction under the ATA. Mehram Ali v. Federation of Pakistan31 which emphasized the importance of motive for constituting the offence of terrorism was quoted as authority in Bashir Ahmad's Case.
Nevertheless, it is notable that all these judgments derived support from the very first definition of terrorism given in the ATA which was later amended.32 This definition required the use of bombs, dynamite or other explosive substances as an essential ingredient for concluding the commission of the said offence; thus making the circumstances completely plain for the court to determine the particularity of 'mens-rea' of the offender. The use of the said substances no longer remained a necessary ingredient of the offences given under sub-section 6 (2) of the ATA after repeal. Therefore, the previous easy practice to establish a link between the act done and to find out the essentials required under the law to determine the particular purpose behind the commission of the criminal act was abandoned and the new definition brought a plethora of complicated situations along with it.
In 2003, Mazhar v. The State,33 referred to this change of legislative intent brought about by the Anti-Terrorism (Amendment) Ordinance, 200134 which had also replaced the term 'terrorist act' with the word 'terrorism' in Section 6. This judgment established the principle that, only because a criminal act falls within the purview of the schedules of the ATA, it cannot determine the jurisdiction of the ATC; instead a clear proof of purpose to commit an act of terrorism is required to invoke such jurisdiction as specified in the amended Section 6.35 The judgment of this phase of changed legislative intent considered the 'purpose' as a significant factor to prove the commission of terrorism besides it treated the impact of the overt acts and surrounding circumstances as an indication of the object of the crime.
This was because the new definition broadened the scope of the law by replacing the requirement of proving the use of particular weaponry to constitute an act of terrorism with the use of general type of explosives and firearms. Also, in 2003, in State through Advocate General v. Muhammad Shafiq,36 the Supreme Court gave a new direction to the scenario where it virtually bypassed the scope of the PPC. This time, the cases of 'personal vendetta' were declared as the subject matter of the ATA. For this purpose, to term an act the 'act of terrorism', the Apex Court laid down the threshold which required that, a) the act was to cause panic, fear, terror and instability in any section of the society, b) the act was intentional, purposeful, designed and accompanied by mens-rea to commit terrorism on the part of the accused, c) the incident was falling under the ambit of the scheduled offences of the ATA.
However, since the Court did not establish a link among all three requirements, this threshold turned out to be extremely perplexing in essence. The first requirement was so broad that it could include all crimes, in one way or another, in the domain of ATA especially when the acts were related to personal enmities. The second requirement established no clear link between the mens-rea behind a criminal act perpetrated out of personal feud and terrorism except that such act could leave fear and insecurity in the minds of general public. The third pre-requisite was also vague in nature because nearly all the acts which are described as terrorism under the ATA are also the subject matter of the PPC as regular crimes. An attempt was made to remove these lacunas in 2004 in Basharat Ali v. the Special Judge, Anti-Terrorism Court II, Gujranwala.37 In its judgment, the Lahore High Court dealt with a case of personal vendetta.
Justice Asif Saeed Khosa, while excluding this particular class of cases from the ambit of the ATA, elaborated the requirement of 'intent' to prove 'terrorism' in rather clear words by relating its nexus with the design of the crime committed. The Judge explained that every crime leaves a certain level of feelings of 'fear and insecurity' in the minds of some segment of the society. But it does not mean that every crime can be branded as 'terrorism'. Thus, 'terrorism' is tested upon the litmus of motivation, object, design or purpose behind the act, he added. In Basharat Ali Case, the principle was developed that the 'relevant ideology' behind the commission of a particular act should be explored to find out the mens-rea which could distinguish an ordinary criminal from an act of terrorism. The judgment established that both the regular criminal and a terrorist can commit the same act with a different ideology and intent. Therefore, the results of the acts of both offenders can differ in nature.
For that reason, the criminal and terrorist are dealt under different laws. The Court discussed that the fear and insecurity in the society which results as a byproduct or an unintended consequence of a private crime falls outside the offence of terrorism under ATA. It is only when such a reaction by the public and consequence on society is intended by the perpetrator that an offence of terrorism can be said to have been committed. It was held in Basharat Ali Case that because a private blood feud had precipitated the occurrence, therefore, this case fell outside the purview of ATA. Despite being a precise and clear interpretation, the judgment was overruled in appeal by the Supreme Court in Mirza Shaukat Baig and others v. Shahid Jamil and others38 in a very strict language and the findings of the State through Advocate General v. Muhammad Shafiq,39 for the inclusion of personal enmity within the scope of the ATA were upheld by the Supreme Court.
In Mirza Shaukat Baig Case, the Supreme Court, somehow, intentionally or unintentionally overlooked the fact that the High Court actually interpreted the expression, 'terrorism' and in light of this interpretation, defined the scope of Section 6 and the particular acts which could fall within its domain. Thus the actual determining point was the extent to which the court could stretch the expression 'terrorism' in the context of Section 6. The Apex Court in Mirza Shaukat Baig Case further opined that it is the 'action' and not the 'intention behind that action'- which is the entire essence of Section 6 and creates a difference between regular crime and an act of terrorism. The same 'action-based' approach continued for a long time. In 2012, the Supreme Court again extended an identical verdict, without any jurisprudential reasons (discussed later).
In 2016, the Supreme Court issued the ruling in Shahbaz Khan Alias Tippu and Others v. Special Judge, Anti Terrorism Court No. 3, Lahore and Others.40 A good jurisprudential discussion on the concept of mens-rea was carried out in this case to level the principle that the basic difference of mens-rea between a criminal and a terrorist is of the 'purpose'. A criminal might be inspired of a number of purposes, but the mens-rea of a terrorist 'is not inspired by profit motives, or private revenge, but usually by some form of public ideal, however perverted.' Thus, apart from the obvious acts of the accused, the injuries caused by him or consequences ensuing from his actions and the surrounding circumstances of the case too are relevant to ascertain the design of the crime committed and the intention or mens-rea that instigated the offender to commit that crime.
It was observed in this case that intention is presumed when the nature of the act committed and the circumstances in which it is committed are reasonably susceptible to one interpretation. In such event, the rule of evidence that the natural and inevitable consequences of a person's act are deemed to have been intended by him is applicable. The judgment was overall a jurisprudential piece of explanation for the determination of an act as a regular crime or terrorism in the light of mens-rea specifically.
Factor of 'Design'
The term 'design' is usually associated with 'mens-rea' by the higher judiciary. Even in those few cases where the courts categorically discuss 'design' as a separately provable key aspect of the case, 'design' carries 'mens-rea' working in background of the commission of a particular act. Thus, sometimes the presence of mens-rea can be proved through finding out the relevant design of the offence and vice-versa. An ample discussion on this special factor was carried out in the Province of the Punjab through Secretary Punjab Public Prosecution Department and Another v. Muhammad Rafique and Others41 and in Kashif Ali v. The Judge, Anti-Terrorism, Court No. II, Lahore and Others.42 These two cases were also the consequence of a personal blood feud. In Province of the Punjab Case the Apex Court adopted the argument developed in Kashif Ali Case.
In the latter case, Barrister Aitzaz Ahsan presented the argument that, sub-section 6(1)(b) in its current form does not include the cases of personal vendetta in its ambit. And that 'the very object of the amendment and the insertion of the word 'design' in Section 6 was to draw a line between the cases of terrorism and the cases of personal vendetta'. He further elaborated that 'the legislature has deliberately used the term 'design' and not 'intent'. Therefore, effect must be given to the term 'design' to make the Act more efficient. Thus creating a sense of fear or insecurity in the society must be judged through 'design' behind the action to invoke the ATA. On this argument the Court was of the view that, 'a strictly narrow interpretation of the term 'design' in Section 6 of the Act is undoubtedly one where a premeditated plan to create terror is the object behind the said act.'
Therefore, the requirement to prove mens-rea to establish terrorism should be carried out in the light of the design prepared to commit the action. In Khuda-e-Noor v. The State,43 the Court made a more elaborated and clear discussion. It was opined that Section 6 is divided into two main parts: the first part is contained in sub-section 6(1)(b) and (c) of the said Act dealing with the mens-rea mentioning the 'design' or the 'purpose' behind an action, and the second part falling within sub-section 6(2) of the said Act specifying the actions which, if coupled with mens-rea would constitute the offence of 'terrorism'.44 Thus, the Court while excluding the act of 'honor killing' from within the ambit of the ATA feared that if the honor killing would be termed as terrorism, in that situation all cases of those persons taking law in their own hands were to be declared or accepted as the cases of terrorism but that surely was not the intention of the legislature.45
In the case of Malik Muhammad Mumtaz Qadri v. The State,46 Justice Asif Saeed Khosa repeated the same stance which he took in the case of Khuda-e-Noor. He said, 'It is the specified action accompanied by the requisite intention, design or purpose which constitutes the offence of terrorism under section 6 of the Anti-Terrorism Act, 1997 and the actual fallout of the action has nothing to do with determination of the nature of offence.' Accordingly, the Court connected the design with mens-rea and the creation of sense of fear and insecurity with actus-reus. Thus in view of the Court, it is vital to prove the existence of mens-rea and actus-reus both to establish an act of terrorism through the help of design and creation of fear and insecurity (respectively) within the minds of at least one segment of the society.
Primarily, the rule laid down in the cases of Basharat Ali, Bashir Ahmed, Khuda-e-Noor and Mumtaz Qadri of requiring the ascertainment of design, intention and mens-rea of an act for establishing the jurisdiction of an ATC rests on dicta given in Mehram Ali's case. However, the cases of Mehram Ali and Bashir Ahmed do not elaborate the ways and means to ascertain the particular design, intention or mens-rea to establish the assailant's 'guilty' state of mind. Whether the Court should mechanically consider the motive alleged by a complainant in the First Investigation Report (FIR) to be decisive or should it also scrutinize other aspects of an act to assess if the culprits had any design, intention or mens-rea to commit a terrorist act, requires an answer. In the majority of cases the nature of offences, the manner of their commission and the surrounding circumstances demonstrate the motive given in the FIR.
However, that is not always the case. When offences are committed disregarding the consequence or impact of the overt action, the private motive or enmity disclosed in the FIR cannot be presumed to capture true intent and purpose of the offender. In such cases, it is clear that action taken and offences committed are not instigated 'solely' by the private motive alleged in the FIR. Intention, motive or mens-rea refer to the state of mind of an offender and a particular state of mind cannot be proven by positive evidence or by direct proof. Therefore, the settled law is that the intention of an accused for committing an offence is to be gathered from his overt acts that he intended and through the inevitable consequences of his/her action.47 However, the question, what if the accused could not execute or convert his mens-rea into actus-reus, remained unanswered by these judgments.
Factor of 'Actus-Reus'
In the middle of the discussion on mens-rea being the decisive factor in determining the ambit of the ATA, the Supreme Court adopted another astonishing approach where it declared that the actus-reus alone can also become the decisive factor to establish the scope of the ATA in Mirza Shaukat Baig and others v. Shahid Jamil and Others.48 The contention was again repeated in Nazeer Ahmad v. Nooruddin case which was decided by the division bench of the Supreme Court in 2012.49 The verdict completely rejected the possibility of relevance of mens-rea to conclude a crime as an act of terrorism. Instead the Court declared the actus-reus as the only important ingredient to constitute the act of terrorism. The Court while applying the principle of strict liability affirmed that, 'Neither the motive nor the intent for commission of the offense is relevant for the purpose of conferring jurisdiction on the ATC.
It is the act which is designed to create sense of insecurity and to destabilize the public at large, which attracts the provisions of Section 6 of the AT Act.' The judgment itself does not provide proper reasoning for issuing such strict verdict. However, it was pronounced in 2012 when the terrorism maxed out in Pakistan. It is not clear from the decision whether it was the prevailing situation which convinced the Court to decide in such firm way for all the criminal acts or any other thing became the reason of this proclivity. In any case, this exceptional approach of the Apex Court allowed all those cases to fall under the ambit of this special law which were in any way touched by the ATA without indicating any particular standard.
Factor of 'Fear' and 'Intimidation'
If the design and mens-rea are coupled with actus-reus, consequently invoking fear and intimidation in common people, there is a greater chance that the relevant court would apply the provisions of the ATA. The Lahore High Court established the relationship of fear and intimidation factor with other three factors in Muhammad Abbas v. Special Judge ATC and 6 Others.50 While giving the details of components of 'terrorist act', the High Court discussed the question whether the element of personal vendetta or satisfaction of personal vengeance gives rise to terrorism or a terrorist act? The Court answered this question from the definition of sub-section 6(2)(a-n) of the Act. It was of the opinion that the 'purpose', 'motivation', 'actus-reus' and 'mens-rea' collectively constitute the components of terrorism.
If an action is designed to coerce or intimidate or to create a sense of fear or insecurity in society or to over-awe the government or the public or a section of public or community or sect or an act done with some religious, sectarian or ethnic motive, that shall constitute an act of terrorism. In this scenario, the High Court said that a regular crime which creates 'unintended' fright cannot be termed as an act of terrorism. The important, rather decisive factor to differentiate between common criminal act and an act of terrorism as highlighted by the Court was 'fright', intended (a terrorist act) or unintended (a regular crime), created in the minds of the public at large as the consequence of a particular act. Hence, as per High Court, mere gravity and the shocking nature of any offence, committed in pursuance of personal enmity was not by itself sufficient to brand an act as 'terrorist act'.
The cases like Bashir Ahmed v. The State,51 Basharat Ali v. The Special Judge, Anti-Terrorism Court-II,52 Muhammad Mushtaq v. Muhammad Ashiq and Others53 and Bashir Ahmed v. Naveed Iqbal and Others,54 it was maintained were not triable by the ATC because the motive for the occurrence was enmity between the parties on account of some previous murders. And the revengeful acts done in those cases left no such sense of fear and intimidation in the minds of locals which might terrorize them. In Muhammad Mushtaq v. Muhammad Ashiq and Others,55 the Supreme Court concluded that this is not the physical harm rather the psychological effect of an act which is conclusive to determine it as an act of terror.
Therefore, according to prevailing statutory and general judicial standards, to prove a particular criminal act as an act of terrorism, four elements must be included: firstly, it is imperative to establish a designed pattern of crime; as a second requirement a particular mens-rea behind the commission of an act of terrorism; thirdly, the establishment of actus-reus according to that designed mens-rea and intent; and fourthly there must be clear evidences available that the act left the element of fear and intimidation in the minds of general public as a consequent effect of an act of terrorism. However, this commonly defined chain can always be dented through different judicial interpretations. These variant interpretations which gather their validity from widely applicable and interpretable law actually create issues and capture the field of general penal law as well as affect the rights of the offenders.56
Consequence of Existing Ambiguities and Vacuum
On factual grounds, every terrorist act is a crime but all crimes are certainly not terrorist acts. Therefore, the ambit and scope of the general penal law and the special penal law must be clear, unequivocal and comprehensible that the court can, without any doubt, determine the specific areas of applicability of both types of laws. Nevertheless, the ATA gives an obscure picture of its scope through which the usual crimes can easily be categorized as acts of terrorism.
The negative effects of ambiguities lying in the statutory definition and judicial interpretations of terrorism can be seen at three levels. At first level, these ambiguities give a chance of exploitation to various sections of the society, such as, the police and the parties to the case. This is usually aimed and attempted by the prosecution to include the ATA provisions in FIR to intricate the case for the defendant. The ATA is an inflexible piece of law with strict provisions especially with reference to its procedures and penalties whereas the regular penal law offers several exceptions for the offender. For example, in most of the homicide cases decided by the regular courts, the culprits usually succeed in reaching a compromise under Section 309 or 310 of the PPC while no such compromise can take place under the ATA.
Therefore, the legal heirs of the victims try their utmost for the inclusion of anti-terror provisions in the FIR thus the culprit can suffer the most and does not escape from the penalty. The police also sometimes try to put the cases of serious offenders under the ATA to ensure their punishment and to avoid any kind of compromise by the guilty party. The ATA itself also puts no barrier on such practice of inappropriate inclusion of anti-terror provisions in the case rather it provides easy chances to refer it in nearly every criminal case. On emotional grounds, this trend sometimes appears to be justified because the crimes are usually committed in extremely barbarous manner, however, on legal standing this phenomenon is sabotaging and incapacitating the whole anti-terror regime through making many innocent people face its consequences.
At the second level, the High Courts get confused while deciding the question of the scope of this particular law. Quite often they go behind the satisfaction of those four factors which are described by Section 6 of the ATA (and in the earlier discussion) to constitute terrorism instead of finding out the right cases falling within the ambit of those factors. And despite putting all efforts to apply right jurisprudence, the courts might not derive consistent and uniform rules to relate the four decisive factors for applying this highly sensitive law in a particular case. The divided jurisprudence established by the higher judiciary descends towards the lower courts; resultantly, they decide regular crimes under the ATA which burdens the whole hierarchy of judicial institutions with piles of irrelevant cases and that certainly disturbs their original mandate.57
At the third level, the offender faces the ensuing results of all such ambiguities at pre-trial, trial and post-trial stages. The ATA being the special law does not offer those various legal guarantees which are included as an integral part in the regular criminal justice system. Therefore, those offenders who though commit regular crimes but are dealt through the ATA due to the vacuums lying in the law get deprived of those guarantees which are available to the regular offenders. These three levels of consequences are interconnected: the first two are grave because they in fact pave the way for the third one which is the most severe and long-lasting in nature. When a regular criminal is dealt under the ATA, its provisions directly usurp his legal rights and guarantees (which are otherwise provided to ordinary criminals under PPC) and put him under more serious penal effects.
'Therefore, when a law visits a person with serious penal consequences, extra care must be taken to ensure that those whom the legislature did not intend to be covered by the express language of the statute are not roped in by stretching the language of law.' 58
Spreading terrorism is one of the greatest challenges ever faced by Pakistan. This is ill-fated that a country which has been facing international and non-international terrorist activities carried out by proscribed and non-proscribed organizations, without being under state of war, is unable to clearly differentiate between 'terrorism' and the regular crimes. Practically the courts are bound by the existing law. The judges can, to the maximum, pronounce decisions by employing all their faculties. Nevertheless, they do not carry any mechanism which can stop exploitation of law by the law e nforcing agencies such as the police and sometimes by the parties to the case too. This study has thoroughly analyzed the statutory and judicial indistinctness of the definition of 'terrorism'. Thus it suggests that in order to resolve the major issue of determination of jurisdiction, the anti-terror regime must not be separated from the rest of the other criminal matters.
The provisions relating to the anti-terror cases must be included within the PPC through a separate chapter instead of having a full fledge statute to deal with such cases. The number of Session Courts should be increased to replace the Anti-Terrorism Courts. This will enable the regular Sessions courts, to deal with the cases of terrorism as well instead of wasting time in solving the question of jurisdiction. On the other hand, even without inclusion of the anti-terror provisions within the PPC, in critically serious cases, (as an alternative to the ATA provisions) Section 311 of the PPC59 might be applied to pronounce the highest penalty by the court on its own discretion even after a compromise would have already taken place between the parties under the rule of Fasad-fil-Ard (spreading mischief in the land). To serve this purpose, Section 311 might be amended with the insertion of an additional expression, 'terrorism' as coming within its scope.
Through taking this measure, the case might proceed without usurping the right of offender of a 'fair trial' which is generally denied under the ATA. However, if these steps are taken up as temporary arrangements to improve judicial decisions then the need for an amendment in existing laws would become more intensified. In this regard, the legislature and the judiciary must not disregard the two interconnected shields, i.e. the 'presumption of innocence' and the 'human rights' available to the offender against injustice and inequality.60 This is because the statute which would exclude these two shields would in fact exclude the justice and equality from its scope.
1 See for detailed study, Kai Ambos and Anina Timmermann, "Terrorism and Customary International Law," in Research Handbook on International Law and terrorism, ed. Ben Saul (Cheltenham: Edward Elgar, 2014); Andrew Silke, "Research on Terrorism: A Review of the Impact of 9/11 and the Global War on Terrorism," in Terrorism Informatics: Knowledge Management and Data Mining for Homeland Security, eds. Hsinchun Chen, Edna Reid, Joshua Sinai, Andrew Silke, and Boaz Ganor (New York: Springer, 2008); Ben Golder and George Williams, "What is 'Terrorism'? Problems of Legal Definition," UNSW Law Journal 27, no. 2 (2004): 270-295, http://www.unswlawjournal.unsw.edu.au/wp-content/uploads/2017/09/27-2-12.pdf;
Rosalyn Higgins, "The General International Law of Terrorism," in Terrorism and International Law, eds. Rosalyn Higgins and Maurice Flory (London: Routledge, 1997); and Richard R. Baxter, "A Skeptical Look at the Concept of Terrorism," Akron Law Review 7, no. 3 (1974): 380-387, https://ideaexchange.uakron.edu/cgi/viewcontent.cgi?referer=https://www.google.com/andhttpsredir=1andarticle=2222andcont ext=akronlawreview.
2 For a detailed discussion, see sections on Statutory Scope and Judicial Scope of this study.
3 Anti-Terrorism Act of 1997, No. XXVII (1997).
4 A detailed discussion is offered by Shabana Fayyaz, "Responding to Terrorism: Pakistan's Anti-Terrorism Laws," Perspectives on Terrorism 2, no. 6 (2008): 10-19, https://www.jstor.org/stable/26298353; Khursheed Iqbal, Defining 'Terrorism' in Pakistan's Anti-Terrorism Law-A Jurisprudential Analysis in the context of International Law and Certain Domestic Jurisdictions, report (Peshawar: Khyber Pakhtunkhwa Judicial Academy, 2015), https://kpja.edu.pk/sites/default/files/digitallibrary/Terrorism%20Definition%2024%20Aug%2015%20pdf.pdf.
5 See, RSIL, Human Rights and Pakistan's Counter-Terrorism Legislative Landscape, report (Lahore: Research Society of International Law, 2017; Naeem Ahmed, "Combating Terrorism: Pakistan's Anti-Terrorism Legislation in the Post-9/11 Scenario," Journal of the Research Society of Pakistan 52, no. 2 (2015), http://pu.edu.pk/images/journal/history/PDF-FILES/9.%20Naeem%20%20Ahmad_v52_2_15.pdf; JPP, Terror on Death Row: The Abuse and Overuse of Pakistan's Anti-Terrorism Legislation, report (Lahore: Justice Project Pakistan, 2014, http://www.tanqeed.org/wp-content/uploads/2014/12/Terror-on-Death-Row.pdf; and Fayyaz, "Responding to Terrorism: Pakistan's Anti-Terrorism Laws."
6 Pakistan Penal Code Act of 1860, XLV (1860).
7 The State vs Zaheer-ud-Deen,  MLD 314 (Pak.).
8 Afzal Ali Shigri, "A Flawed Anti-Terrorism Law," Dawn, December 23, 2016, http://www.dawn.com/news/1303938.
9 The Anti-Terrorism Act of 1997, XXVII (1997).
10 See for example, Muhammad Abbas v. Special Judge ATC and 6 others,  YLR 2702 (Pak.); Bashir Ahmed v. The State,  PLD SC 11 (Pak.); Basharat Ali v. The Special Judge, Anti-Terrorism Court-II,  PLD 199 (Pak.); Muhammad Mushtaq v. Muhammad Ashiq and others,  PLD SC 841 (Pak.); and Bashir Ahmed v. Naveed Iqbal and others,  PLD SC 521 (Pak.).
11 Abdul Rehman vs Mst. Shani Qayyum,  PCrLJ 422 (Pak.).
12 Mens-rea, a Latin term for 'guilty mind' refers to the intent behind a criminal act as a necessary element to prove a crime.
13 Actus-reus, a Latin term for 'guilty act' refers to the particular action or conduct of the accused opposite to his mental state which becomes the constituent element of a crime.
14 See the detailed discussion in segment 1.2 of this study.
15 As defined in the Explosives Act of 1884 IV (1884), Section 2(f) says, "explosives means any bomb, grenade, dynamite, or explosive, substance capable of causing any injury to any person or damage to any property an includes any explosive substance."
16 As defined in Arms Ordinance of 1965, XX (1965), Section 2(g) of ATA 1997 says, "fire-arms" means any or all types and gauges of handguns, rifles and shotguns, whether automatic, semi-automatic or bolt action, and shall include all other fire-arms.
17 As defined in the Surrender Illicit Arms Act of 1991, XXI (1991); Section 2(bb) of ATA 1997 says, 'weapon' means any item which can be used to injure or cause bodily harm, and includes any type of fire-arm, explosive, sword, dagger, knuckle-duster, stengun, bomb, grenade, rocket launcher, mortar or any chemical, biological thing which can be used for causing injury, hurt, harm or destruction of person or property, and includes 'illicit arms.'
18 Sudha Setty, "What's in a Name? How Nations Define Terrorism Ten Years After 9/11," University of Pennsylvania Journal of International Law, 33, no. 1 (2011): 1-63 (33-34).
19 See, The Anti-Terrorism, Crime and Security Act 2001, c.24 (2001); The Prevention of Terrorism Act 2005, c. 2 (2005); The Terrorism Act 2006, c. 11 (2006). The most recent legislation is The Terrorism Prevention and Investigation Measures Act 2011, c. 23 (2011).
20 Satu P. Limaye, Robert G. Wirsing and Mohan Malik, eds., Religious Radicalism and Security in South Asia (Honolulu: Asia-Pacific Center for Security Studies, 2004), 387-411 (390), https://apcss.org/Publications/Edited%20Volumes/Religious Radicalism/ReligiousRadicalismandSecurityinSouthAsia.pdf; and Shigri, "A Flawed Anti-Terrorism Law."
21 Tariq Parvez and Mehwish Rani, An Appraisal of Pakistan's Anti-Terrorism Act, report 377 (Washington, D.C.: United States Institute of Peace, 2015), https://www.usip.org/sites/default/files/SR377-An-Appraisal-of-Pakistan%E2%80%99s-Anti-Terrorism-Act.pdf.
22 Section 6(1)(c) says, 'In this Act, 'terrorism' means the use or threat of action where: The use or threat is made for the purpose of advancing a religious, sectarian or ethnic cause.'
23 Mehram Ali and Others v. Federation of Pakistan and Others  PLD SC 1445 (Pak.).
24 (Section 3 got omitted in 2001 through, Ordinance No. XXXIX of 2001)
25 Ismat Naureen v. Additional Sessions Judge, Attock and Another  PLD 275 (Pak.); see also Faisal Iqbal v. The State  PLD 371 (Pak.).
26 The High Court explained the principles of interpretation as discussed in Maxwell on interpretation of Statutes in these words, "the penal statutes are to be accorded strict construction in accordance with golden rule of litera-legis and that ordinarily courts are not authorized to supply omissions left by legislature. Although in exceptional circumstances, the court may fill up the gap if it is found that on account of omission, the underlying objective of legislature will be frustrated and statute will become wholly unworkable." For a detailed discussion see also, Zahid Pervaiz v. Special Judge, Special Court No.1 for Anti-Terrorism Bahawalpur and Another,  YLR1716 (Pak.); Dad Muhammad Khan v. Bassa,  PLD 77 (Pak.).
27 Bashir Ahmad v. Naveed Iqbal and 7 Others,  PLD SC 521 (Pak.).
28 During 1997 to 2000, the ATA was amended five times through, The ATA (Amendment) Act, 24 Oct. 1998, The ATA (Amendment) Ordinance, 27 April 1999, The ATA (Amendment) Ordinance, 27 August 1999, The ATA (Amendment) Ordinance, 2 Dec. 1999, and The ATA (Amendment) Ordinance, 24 July 2000.
29 Muhammad Afzal and Others v. S.H.O and Others,  PCrLJ 929 (Pak.).
30 Bashir Ahmad v. Naveed Iqbal and 7 Others,  PLD SC 521 (Pak.).
31 Mehram Ali and Others v. Federation of Pakistan and Others  PLD SC 1445 (Pak.).
32 The repealed definition given in Section 6 defined terrorism as, 'Whoever, to strike terror in the people, or any section of the people, or to alienate any section of the people or to adversely affect harmony among different sections of the people, does any act or thing by using bombs, dynamite or other explosive or inflammable substance, or fire-arms, or other lethal weapons or poisonous or noxious gases or chemicals or other substance of a hazardous nature in such a manner as to cause, or to be likely to cause the death of, or injury to, any person or persons, or damage to, or destruction of, property or disruption of any supplies of services essential to the life of the community or displays fire-arms, or threatens with the use of force public servants in order to prevent them from discharging their lawful duties commits a terrorist act.'
33 Mazhar v. The State,  PLD 267 (Pak.).
34 Anti-Terrorism (Amendment) Ordinance of 2001, XXXIX (2001).
35 Through the amending Ordinance the Schedule of the Act containing various offences to be tried under the said Act was done away with and the term 'terrorist act' with its definition contained in section 6 of the Act was substituted and replaced by the term 'terrorism' with the following definition thereof: "(1) In this Act 'terrorism' means the use or threat of action where: (a) the action falls within the meaning of sub-section (2), and (b) the use or threat is designed to coerce and intimidate or overawe the Government or the public or a section of the public or community or sect or create a sense of fear or insecurity in society; or (c) the use or threat is made for the purpose of advancing a religious, sectarian or ethnic cause."
36 State through Advocate General v. Muhammad Shafiq,  PLD SC 224 (Pak.).
37 Basharat Ali v. The Special Judge, Anti-Terrorism Court-II,  PLD 199 (Pak.).
38 Mirza Shaukat Baig and others v. Shahid Jamil,  PLD SC 530 (Pak.).
39 State through Advocate General v. Muhammad Shafiq,  PLD SC 224 (Pak.).
40 Shahbaz Khan Alias Tippu and Others v. Special Judge, Anti-Terrorism Court No. 3, Lahore and Others,  PLD SC 01 (Pak.). See also, Khuda-e-Noor v. The State,  PLD SC 195 (Pak.); Malik Muhammad Mumtaz Qadri v. The State,  PLD SC 17 (Pak.); Ahmed Jan v. Nasrullah,  SCMR 59; and Bashir Ahmed v. The State,  PLD SC 11 (Pak.).
41 Province of the Punjab through Secretary Punjab Public Prosecution Department and Another v. Muhammad Rafique and Others,  PLD SC 178 (Pak.).
42 Kashif Ali v. The Judge, Anti-Terrorism, Court No. II, Lahore and Others,  PLD SC 951 (Pak.). See also, Tahir Javed Khan v. The State,  MLD 1840 (Pak.).
43 Khuda-e-Noor v. The State,  PLD SC 195 (Pak.).
44 Same observation was given by the Supreme Court of Pakistan in Malik Muhammad Mumtaz Qadri v. The State,  PLD SC 17 (Pak.).
45 See also, Muhammad Akram Khan v. The State,  PLD SC 96 (Pak.); The State through Prosecution General v. Noor ud Din and Two Others,  YLR 618 (Pak.).
46 Malik Muhammad Mumtaz Qadri v. The State,  PLD SC 17 (Pak.).
47 The State v. Ataullah Khan Mangal,  PLD SC 78 (Pak.).
48 Mirza Shaukat Baig and Others v. Shahid Jamil and Others, [2005 PLD SC 530 (Pak.).
50 Muhammad Abbas v. Special Judge ATC and 6 others,  YLR 2702 (Pak.).
51 Bashir Ahmed v. The State,  PLD SC 11 (Pak.).
52 Basharat Ali v. The Special Judge, Anti-Terrorism Court-II,  PLD 199 (Pak.).
53 Muhammad Mushtaq v. Muhammad Ashiq and others,  PLD SC 841 (Pak.).
54 Bashir Ahmad v. Naveed Iqbal and 7 Others,  PLD SC 521 (Pak.).
55 Muhammad Mushtaq v. Muhammad Ashiq and others,  PLD SC 841 (Pak.).
56 At first instance, when the case is lodged under the ATA, it proceeds with its own special procedures particularly drafted to make it speedy; such as, the extremely difficult procedures of seeking bail (Section 21-D), the conditional admissibility of extra-judicially made confessions by the accused before District Superintendent of Police (DSP) (Section 21-H), the applicability of special provisions of Remand (Section 21-E) and trying the juvenile suspects under the ATA (in the course of application of Section 2(d), 21-C(5), 21-C(7)(e), 21-C(7)(f), 21-G, 21-F of the ATA instead of JJSA, 2018.
57 For example, The State through Prosecution General v. Noor ud Din and Two Others,  YLR 618 (Pak.), while relying upon the judgment of the Supreme Court of 2001, Muhammad Akram Khan v. The State,  PLD SC 96 (Pak.) put the incident of siyahkari (honor killing) or murders incidental thereto under Section 6(ii)(g) of the ATA with a purpose to make them an example for those who commit such acts and for not leaving any chance of compromise on issue between the parties (as possibly can happen in murder cases decided under PPC by the Court of Sessions through the application and execution of the rules of Diyat). The Court took such decision despite that the Apex Court had decided in 2007 in Mohabbat Ali and Another v. The State,  SCMR 142 (Pak.), against the inclusion of honor killing in the ambit of the ATA. In the same way Gul Muhammad v. The State,,  PLD
22 (Pak.), was decided in extraordinary manner by the Quetta High Court. The Court categorically admitted that the matter which arose in consequence of an incidence of honor killing though could also have been dealt under Section 311 of the PPC however it was decided through the application of the provisions of the ATA. Then the Peshawar High Court criticized the decision of the ATC to refer the case of abduction which happened in consequence of personal enmity and the incident of firing on Police force that reached to release that abductee, by the ATC to the Court of Sessions in appeal petition in The State through Advocate General v. Khaista Rehman,  MLD 1872 (Pak.). In this case the ATC had the contention that it fell short of jurisdiction to try the case. The High Court decided this matter through applying the ATA provisions.
In all these cases apparently the High Courts just satisfied the aforementioned criterion of establishment of 'four factors' to constitute the act of terrorism and pronounced the judgment under the ATA. The meaning of one High Court judgment in a common law state is that an array of judgments of the lower courts is in line to follow the same pattern under the rules of precedent. Hence what is imperative is to interpret these four factors with special reference to terrorism.
58 Dicta issued by the Supreme Court of India in, Usman Bhai Dawood Bhai Memon v. The State of Gujrat,  SCC 271 (Pak.).
59 Section 311 of PPC says, "Notwithstanding anything contained in Section 309 or Section 310, where all the wali do not waive or compound the right of qisas, or [if] the principle of fasad-fil-arz the Court may, having regard to the facts and circumstances of the case, punish an offender against whom the right of qisas has been waived or compounded with [death or imprisonment for life or] imprisonment of either description for a term of which may extend to fourteen years as ta'zir. Provided that if the offence has been committed in the name or on the pretext of honour, the imprisonment shall not be less than ten years.
Explanation: For the purpose of this Section, the expression Fasad-fil-Arz includes the past conduct of the offender, or whether he has any previous convictions, or the brutal or shocking manner in which the offence has been committed by him which is outrageous to the public conscience, or if the offender is considered a potential danger to the community or if the offence has been committed in the name or on the pretext of honor.
60 The importance of considering the "presumption of innocence" of the offender in a criminal case was discussed in the case of, Bahar Ali v. The State,  PLD 28 (Pak.). The Court notified that, "It is settled principle of administration of criminal justice that heinous nature of an alleged crime, alone, can never be a hauler to expose an accused to adversities, because in all eventualities, presumption of innocence of accused is enormously paramount." It further continued, "... Because innocent person, if involved, the only rescuer for him is the golden principle of innocence of accused and proof against him beyond shadow of doubt." Whereas in Noor Hassan v. Haji Muhammad Khan alias Turkey and Others,  YLR 1791 (Pak.), the Court opined that, "It is equally true that lack of legal knowledge of complainant or scanty legal knowledge of Investigating Officer cannot be a convincing excuse to hamper application of canons of safe administration of justice, in criminal cases.
In such circumstances, prosecution may sometime be the sufferer, but the robe of justice can allow no Court to forget the principles relating to innocence of accused, till his guilt is proved beyond doubt, and only in the case of availability of such a standard of proof, the heinousness of crime may add more in his sentence, at the end of trial, if required in the interest of justice, keeping in view the facts and circumstances of a particular case."
|Printer friendly Cite/link Email Feedback|
|Date:||Jun 30, 2019|
|Previous Article:||Human Security and Energy Security: A Case Study of Pakistan.|
|Next Article:||Hindutva Vigilantism and Muslims: Institutionalization of Violence.|