Shades of grey

Despite also being named in at least two attacks on foreigners in Pakistan, Malik Ishaq is a free man.

The frequency with which terrorists are acquitted by courts is considered one of the major failings of Pakistan’s judicial system. But where does the fault truly lie?

Fida Hussain Ghalvi’s long fight to put Malik Ishaq, the leader of banned militant outfit Lashkar-e-Jhangvi, behind bars appears to have been in vain. Despite having warded threats to his own life for several years and losing dozens of family members, today Ghalvi is resigned to the fact that Ishaq will walk free.

Fifteen years ago, Ghalvi was one of the four men who had boldly testified against Ishaq, under arrest for killing 12 members of Ghalvi’s family in a sectarian murder. Ishaq and several other accused men were on trial in 44 different cases for the murder of 70 people from the Shia sect and Ghalvi and others had been summoned for an identification parade. At long last, justice seemed to be at hand.

“At the very onset, all of us pointed to Ishaq [as the killer], but he appeared least perturbed,” recalls Ghalvi. “In the presence of the judge and the deputy superintendent of the jail, Ishaq brazenly turned to us and said: ‘Dead men don’t talk.’”

Despite this blatant threat and other, often violent pressure tactics, the four witnesses refused to back down. “Eight people — five witnesses and three of their relatives — were killed [during the trial],” says Ghalvi. “Ishaq unleashed his entire network against his opponents, killing witnesses, threatening judges and intimidating police, leading to the eventual collapse of all prosecution against him.”

“Over the course of the trial, which went on for a decade, we appeared at least a hundred times before the court,” recounts Ghalvi.

And yet, predictably but no less disappointingly for Ghalvi, Ishaq was acquitted despite the testimonies and identification. “He escaped conviction in every case due to ‘lack of evidence’ and was eventually released from jail,” says Ghalvi, with resignation.

Ghalvi’s resignation is perhaps borne out of what he went through after the case was closed. The vengeful militants were baying for blood and for his defiance, Ghalvi was in their direct line of fire. “Ishaq, with seven others, attacked a majlis that our family had organised for a deceased aunt in our native village of Kot Chaudhry Sher Muhammad Ghalvi. Twelve of my family members were killed in the attack,” he says.

Aggrieved he may be, but Ghalvi is clear about why Ishaq walks a free man and believes that there was a lack of cogent evidence in the case. “Poor investigation and prosecution as well as the case file lacking concrete evidence led to the acquittal,” he admits.

In July 2011, amid intense public outcry, the Supreme Court acquitted Ishaq after he had served 14 years in jail as an under-trial prisoner. Outside Kot Lakhpat Jail, Lahore’s central prison, Ishaq was given a hero’s reception by leaders of yet another outlawed militant group, the Sipah-e-Sahaba Pakistan (now operating freely as the Ahle Sunnat Wal Jamaat) and soon after his release, he went on a so-called ‘preaching’ tour throughout Punjab.

It was only after the September 2011 attack in Mastung, Balochistan, for which the LeJ claimed responsibility, that the Punjab government finally detained Ishaq under the Maintenance of Public Order Act. Ishaq was released in January after several stints in detention, during which his family was provided ‘sustenance’ by the Punjab government. Although under the watch of intelligence agencies, Ishaq attended a Jamaatud Dawa-Difa-e-Pakistan Council rally in Multan in February.

Today, Ishaq is a free man despite also being named in at least two attacks on foreigners in Pakistan — the Sri Lankan cricket team attack in Lahore in 2009, which he allegedly planned from within his jail cell, and the assassination of the Iranian cultural consul Muhammad Ali Rahimi in Multan in 1997.

But he is not the only known terrorist to have slipped through the cracks of Pakistan’s judicial system.

There is also the notorious Akram Lahori who, along with Basra and Ishaq, was one of the founders of the Lashkar-e-Jhangvi (LeJ).

Lahori, who is named in the killings of many Shias in Karachi as well as in the Gojra riots, has been under trial in various cases for years without a single conviction as yet. Even when we look beyond these admittedly high profile cases, we find that terrorism cases, in general, tend to fail in the courts. In the court of public opinion, this results in disdain for what is seen to be an overly politicised judiciary.

When sentences are handed down to politicians the question is always asked: why do the courts move so quickly in these cases but drag their feet when it comes to terrorists? A similar reaction was seen when the rangers accused in the shooting of Sarfraz Shah in Karachi were convicted and awarded punitive sentences. Once again the question was asked: why do the rangers get convicted while others like Malik Ishaq walk free? Well, it seems that the Punjab public prosecution department, counter-terrorism department and Punjab police have been asking this very question, and The Express Tribune has now obtained a copy of a report prepared by them to analyse just why terrorism cases tend to fail in court.

The report, which was prepared following mounting public criticism over court acquittals of terrorists contains some disturbing facts: it states that, between 1990 and 2009, out of 311 cases, 231 resulted in acquittals. That amounts to 74% of all cases during the 19 year period.

“While acquittals deny justice to the victims of terrorism, they also increase police problems, because the acquitted terrorists mostly recidivate to terrorism or join other organised crime gangs,” the report reads. An example of this is Ishaq’s vendetta attack on Ghalvi’s family.

The report analyses the judgments of 178 cases in which the accused were deemed not guilty to conclude that most cases end in acquittals due to defects in the registration of cases i.e. the lodging of the FIR at the relevant police station. Five of these cases were termed ‘doubtful’ by the court, simply because an FIR was registered with an unexplained delay. However, the leading reason for acquittals, the report says, is that the accused are often not even nominated in an FIR, an objection raised by anti-terrorism courts in 36% of the judgments. Even when suspects are named in the FIR, it is without a description of the accused or of the role that that person is believed to have played in an attack, rendering the report almost useless before the court.

“To ensure convictions in terrorism cases, there is a need for better infrastructure and skills enhancement, and also of combining prosecution with police. Prosecutors should be involved in the case right from the beginning, starting with the registration of the case,” says Chaudhry Muhammad Jehangir, chief prosecutor of the Punjab prosecution department. “A crime scene investigation unit should be established that consists of prosecutors, medical and forensic experts as well as the police,” he says.

Jehangir corroborates the findings of the report and says that in most high-profile cases that have ended in acquittals, faults in investigation have weakened the case. “Because the police did not consult prosecution officers [in these cases], evidence could not be collected properly from crime scenes, which were in turn not preserved properly, and witness statements were also not recorded correctly,” he says.

Further undermining the cases is the fact that in many instances, the actual attacker is a suicide bomber who dies in the assault thus complicating the process of finding out the attack’s financiers, planners, abetters and others who may have extended logistical help. “Such connections can only be proved in a courtroom when basic formalities regarding the preservation of crime scenes and collection of evidence have been fulfilled. Conviction is based only on investigation as well as admissible evidence but when the foundation of the case is this weak, prosecutors can do only so much before the court,” says Jehangir.

By the time prosecutors are brought on board, it is too late to take corrective measures that would make the evidence strong enough to prove guilt in court. “When the police is ready to submit the charge-sheet before an anti-terrorism court, there is no time to correct the errors in the recovery memo and other proof such as reports of DNA tests and finger and footprints etc,” Jehangir explains.

The capacity and competence of government officials to handle high profile cases is also questionable. A case in point is the Benazir Bhutto assassination case, where the Supreme Court issued orders to suspend senior police officials for hosing down the crime scene and possibly hampering investigations. And a logistical nightmare makes the process even more inefficient if a terrorist manages to cross one province’s boundary into another.

“Police and other law enforcement agencies are controlled by provinces but terrorist networks are spread across the country. So if a terrorist crosses over to another province, police and LEA personnel are unable to chase him as they require formal approval from the home department of the respective province,” says Mohammad Azhar Chaudhry of the Federal Investigation Agency who was the main prosecutor in the Benazir assassination case as well as the Mumbai attack case.

“Terrorism is a national issue and provincial governments are unable to deal with it. The entire cadre — investigators, prosecutors and judges — should be a federal subject,” says Chaudhry.

Perhaps due to his own frustrating experience with a long-drawn-out case like the Benazir Bhutto assassination case, Chaudhry lays special emphasis on training police investigators in dealing with terrorism. “Terrorism investigation is totally different from other cases so traditional police is unable to deal with it. A qualified and dedicated force needs to be established that will work only on cases of terrorism,” he says. “Because most evidence is circumstantial, the role of forensic evidence as well as intelligence is most important to ensure convictions in terrorism cases.”

But Chaudhry does not lay the blame squarely on investigators and believes that existing laws need to be strengthened as well. “Amendments need to be made to the Anti-Terrorism Act of 1997 as well as the Evidence Act of 1984. A witness protection programme should also be instituted and properly enforced,” he says.

The need for a strong witness protection programme is felt in police quarters too. “In various cases, witnesses have resiled due to fear or were forced to agree on a compromise with the accused,” says a senior police officer on condition of anonymity owing to his current direct involvement in a number of terrorism cases.

The report corroborates this claim: 27% of the cases ended in acquittals because witnesses changed their statements or struck an agreement with the accused. The number is almost as high as that of witnesses refusing to show up for hearings.

The report also recommends that instead of section 161 of the Criminal Procedure Code, under which witnesses are required to record statements before a police official, testimonies should be recorded under section 164 which requires witnesses to record a statement before a magistrate before a trial begins. This would make it difficult for witnesses to resile or change statements as the testimony will become a part of the legal record and the witness will be charged with perjury.

Nonetheless, says the officer, the police force is now seriously focusing on strengthening its investigation procedures, weaknesses in which he admits lead to acquittals, and on collaborating with the prosecution in high-profile terrorism cases.

But putting together a report is one thing and implementing its findings quite another. The filing cabinets of Pakistan’s bureaucracy are filled with similar well-meaning reports that have never seen the light of day and have little chance of ever being acted upon. Still, if the state is serious in fighting the terrorists that have killed tens of thousands of Pakistanis then immediate action is needed to finally close the loopholes that allow murderers to walk free.

Other cases, other acquittals

In most terrorism cases, suspects have been acquitted or released on bail by the Anti-Terrorism Courts and superior courts.

In the Sri Lankan cricket team attack case, apart from Malik Ishaq, Qari Ashfaq, Zaubai alais Naik Muhammad, Amanullah, Mohsin Rasheed, Abdul Rehman, Javed Anwar, Ubaidur Rehman  and Wahab were released on bail by the Lahore High Court and the Supreme Court.

Hijratullah, accused in the June 10, 2010 attack on the police training school in Manawan, Lahore, has been acquitted by the Anti-Terrorism Court.

On May 13, 2010, Muhammad Ilyas alias Qari Jameel, Osama Bin Waheed alias Hadayatullah and Muhammad Jameel were acquitted by the Anti Terrorism Court Rawalpindi in the case of the killing of Army Surgeon General Mushtaq Baig who died in a suicide attack on  Rawalpindi Mall Road in Cantt on February 25, 2008.

Malik Ishaq, Ghulam Rasool Shah, Usman alias Chota and others including Riaz Basra who were killed in an encounter in 2002 were previously acquitted by the Anti-Terrorism Court Gujranwala on May 20, 2010. Ironically, the same trial court had earlier awarded capital punishment to these persons for the murder of Senior Superintendent of Police (SSP) Gujranwala Ashraf Marth. The LHC upheld the sentence but when the SC remanded the case back to the ATC Gujranwala, the trial court acquitted the accused in the 11-year-old case due to missing evidence and resiling of witnesses.

Accused Muhammad Rizwan alias Shamsul Hassan, Muhammad Jameel, Osama Bin Waheed alias Hadayatullah, Ilyas alias Qari Jameel were also acquitted by the Anti Terrorism Court Rawalpindi in a case of a bomb blast near the Headquarters of the National Logistics Cell (NLC) in Rawalpindi in 2008 owing to inadequate evidence.

Alleged al Qaeda member and former Pakistan Army Major Haroon and two other co-accused who were imprisoned on charges of murdering Major General (retd) Ameer Faisal Alvi and his driver in 2008 were also acquitted in both cases.

Dr Niaz Ahmed, Mazharul Haq, Shafiqur Rehman, Mohammad Aamir, Syed Abdul Majid, Abdul Basit, Syed Abdul Saboor, Shafique Ahmed, Saeed Arab, Gul Roz and Tahseenullah, who had been arrested in 2008 in the cases of suicide attacks on ISI buses, firing anti-aircraft rounds at the plane of former president General (retired) Pervez Musharraf and firing rockets on the Kamra Aeronautical Complex were all acquitted.

Nine men have already been acquitted by an ATC in the case of the killing of Army Surgeon General Mushtaq Baig in a suicide attack in Rawalpindi on February 25, 2008 for want of evidence.

In 2009, an ATC acquitted the accused in the 2004 suicide attack on former prime minister Shaukat Aziz in Fateh Jang. The ATC-II judge Sakhi Muhammad Kahut in his judgment said that the prosecution had failed to prove its case. The government of the Punjab filed appeals in the LHC in June 2010 and the then LHC chief justice Khawaja Sharif issued orders to constitute a special bench to dealing with such high-profile appeals. Despite the lapse of more than two years, this special bench has not been constituted.

Published in The Express Tribune, Sunday Magazine, August 5th, 2012.