At a recent meeting between top civilian and military leadership, the sources said, the issue of increasing number of suspected terrorists securing easy acquittals from courts, mainly in the absence of adequate evidence, came up and it was decided to have a complete review of the law of evidence.
The meeting decided to review all laws relating to handling of accused terrorists, in particular the law of evidence should be carefully studied and loopholes be identified for amendment or where there was a need for addition or a new law, the matter must be decided on a priority basis by the ministry of law.
The military, the sources said, was particularly worried about those arrested since the launch of army operations in Malakand division and Fata, but eventually acquitted by courts.
However, Barrister Zafarullah Khan, a Supreme Court lawyer, found little wisdom in the suggestion for amending the law of evidence which, he said, was in practice in several countries and being successfully implemented.
Accepting the alarmingly low rate of conviction of terrorists, some of them caught red-handed by law-enforcement agencies, Khan said the problem wasn’t with the contents of law of evidence but with the prosecution department of police. And it’s a countrywide problem, not restricted to any particular province and area, he added.
Khan, who was a prosecution lawyer in the murder case of General (retired) Ameer Faisal Alvi who was killed in Islamabad in November 2008 and the accused were set free for lack of evidence, said that in the wake of increasing terrorist attacks in the country, law-enforcement agencies were facing problem at three different levels in securing judgments in terrorism cases.
One, he said, it was difficult to find an eyewitness in cases of suicide bombing or other terrorist activities. In legal terms, an eyewitness is considered an irrefutable piece of evidence. But eyewitnesses preferred to stay away for fear of reprisals from terrorist organisations involved in the crime, he added. Also in such cases there is always a joint investigation team comprising police, the FIA and intelligence agencies which although find causes of, and leads to a certain incident, provide little help in prosecuting an accused.
In the Marriot bombing case and Parade Lane Mosque attack, courts had to acquit the accused for lack of evidence, said Mr Khan. In response to a question, he said the government needed to pay special attention to prosecution departments of police. He said instead of appointing a government lawyer after investigation into a certain case, the prosecution should be involved from day one so that it could get hold of presentable evidence.
“What is happening at the moment, police although complete their investigation they don’t collect adequate evidence from court’s point of view. As a result, an accused easily manages to secure a favourable judgment,” said Mr Khan.
The failure of prosecution by police was also substantiated by a Supreme Court official involved in monitoring provincial anti-terrorism courts. The official, who preferred not to be named, said that in majority of cases in Khyber Pakhtunkhwa, the
province which had a dismally low conviction rate, police had hardly provided one pager statements. In some cases, he said, even FIRs were found missing. Hence the criticism of judiciary for lack of conviction of terrorists was highly misplaced.
Yes, it is a fact that in the absence of modern gadgetries, police cannot provide forensic evidence which in many cases can be used to convict terrorists. The government should pay special attention to the matter, said the official.
However, he agreed that there was a need of review of not only the law of evidence but also the entire legal set-up created in 1997 by the then prime minister Nawaz Sharif to counter terrorist activities.
Over the past 10 years or so, the official said, the country had faced different types of terrorist activities and, therefore, the legal system needed to be revised accordingly.