Effective Prosecution and Trial of Terrorism Cases

EFFECTIVE PROSECUTION AND TRIAL OF TERRORISM CASES * EFFECTIVE PROSECUTION AND TRIAL OF TERRORISM CASES * By Mr. Justice Muhammad Kamran Khan Mulakhail, Judge High Court of Balochistan Ladies and Gentlemen; today, we have assembled here to commemorate and recollect the everlasting memories of our departed friends, who lost their lives in different terrorist attacks, from the bench, the bar, as well as, associated staff. 1. Terrorism is a menace to society, and has got far reaching repercussions. The causes of terrorism are largely discussed at different forums; I will be talking about its effective prosecution and trial. 2. There is no denying that without effective investigation, effective prosecution cannot follow. An effective investigation is a condition precedent, which provides a concrete base to effective prosecution. The act of terrorism is made punishable under the Anti-Terrorism Act, 1997 ("the Act"). Section 19 though defines the powers of public prosecutor, but with limited scope, like, in respect of submitting an interim report, (an interim challan under section 173 Cr.P.C.) and placing a request before the court in case of discharging or committing accused to the police remand or judicial remand. Complete challan can be filed directly in the court without the intervention of the prosecutor. It is noticed that a challan/final report is a replica of the F.I.R., without mentioning the results of investigation like new discoveries/discovery of facts and evidence, which is a serious flaw but cannot be looked into if a challan is directly submitted to the court. The prosecutors are supposed to supervise the overall prosecution, but rarely do so. The prosecutors should examine the draft report and direct that the deficiencies of evidence therein need to be attended to. Public prosecutors must also play an effective role in analyzing, examining and evaluating the evidence collected by the investigation agency, but do not do so, which amounts to a glaring flaw of procedure. The prosecutor is a watch-dog and the leading character of all overall prosecutions and should implement the enshrined principles of effective prosecution. For successful prosecutions, prosecutors ought to consider the following principles enumerated here under: Whether the provision of Code of Criminal Procedure has been violated. If so, how to make the necessary rectifications? If the F.I.R. contains technical flaws, how to streamline the case during the investigation? Whether the investigation officer conducted the investigation as per law. If not, how might the case be improved upon? Do the oral, documentary and circumstantial evidence comply with the criteria laid down in the Qanun-e-Shahadat Order 1984? (With reference to law of precedents laid down by the superior courts). Whether the facts as reflected in the F.I.R. have been addressed in the challan (i.e. report under Section 173 of Cr.P.C.)? If not, how to plug the loopholes? Whether the challan has been submitted in court within the prescribed period as laid down in Section 173 of Cr.P.C.? Whether the accused's defence is plausible? If not, how to highlight and rebut the same before the court? 4. The principles of ethical dimensions regarding standard of professional responsibilities are essential for effective prosecution, including the following; The prosecutors must be independent in the performance of their function and should exercise their functions free of any extraneous influences, inducements, pressures, threats or interference, direct or indirect, from any quarter or for any reason. The prosecutors shall all times uphold the rule of law, the integrity of criminal justice system and the right to a fair trial. He/she shall at all times respect the fundamental rights of all human persons to be held before the law and abstain from any wrongful discrimination. He/she must not manifest by words or conduct any bias or prejudice. Give due attention to the prosecution of crimes of corruption, abuse of power, violation of human rights and other crimes recognized by law in particular offences, which may have been committed against the society and public at large. He/she shall not, through behavior and conduct compromise the actual or reasonably perceived, integrity, fairness or independence, in particular must not accept any gift, prize, loan, favour, inducement, hospitality or other benefit in relation to anything done or to be done or omitted to be done in connection with performance of duties. He/she shall not allow family, social or other relationship, improperly to influence his/her conduct as a prosecutor and not use or lend the prestige of his/her position as prosecutor to advance his/her private interest or those of a member of his/her family or of anyone else, nor shall he/she convey or permit others to convey the impression that anyone is in a special position improperly to influence him/her in the performance of his/her duties. He/she shall not use or disclose confidential information acquired in his/her capacity as a prosecutor for any purpose unconnected with the performance of his/her duty or the needs of justice. He/she shall remain unaffected by individual or sectional interest and public or media pressure having regard only to the public interest. He/she shall become disqualified from practising in any prosecution in which he/she is unable to act impartially or in which it may appear to a reasonable observer that such is the case. Prosecutors shall take reasonable steps to maintain and enhance knowledge, skills and personal qualities necessary for the proper performance of his/her duties, keeping themselves well informed of relevant legal developments. 5. The Act does not have Federal offences unlike the laws in the U.S. and U.K. i.e. those which cross provincial boundaries, for example, transportation of explosives and acts of terrorism across provincial boundaries. Therefore, it is not possible for investigators to take cognizance of the entire chain of events comprising the offences. 6. The perusal of the Act, further reveals that though it defines the abatement and aiding of terrorist organizations, including proscribed terrorist organizations, however, the necessary training, in respect of financial and cyber-crimes, is not provided. 7. Section 27-A of the Act, stipulates that any person in possession of an explosive substance with or without explosive devices without lawful justification shall be presumed, unless it is proved to the contrary, that the explosive substance was for purpose of terrorism. But, contrary to the said provision, cases of simple possession of explosive substance, i.e. those with or without explosive devices are wrongly transferred to the court of ordinary jurisdiction. This may be because the Act does not specifically mention suicide bombers, suicide trainers, suicide masterminds and suicide vests (suicide jackets). Whilst practising law on the criminal side, I had observed that even cases in which a huge quantity of explosives substances had been recovered the case had been transferred to the ordinary criminal courts. In an ordinary criminal court the said offences are governed by the Explosive Substances Act, 1908, wherein possession of explosive substances is punishable by imprisonment, which may extend to seven years. To prevent the misuse of this law, in my considered opinion, the Act should be amended to specifically include such offences. 8. Our traditional criminal law gives a lot of importance to the presence of the perpetrators at the scene of the crime; however in many cases of terrorism the perpetrator is not present at the scene of the crime. And, in the case of suicide bombing the main perpetrator, i.e. the suicide bomber, would have died in the act. The person or persons planning such acts of terrorism would be somewhere else and most probably not at the scene of crime; such persons would be the main accused in a case like this. In these circumstances there is a need to come up with a mechanism to do away with the requirement of the presence of the perpetrators on the scene of the crime. Instead the perpetrators could be attended through circumstantial evidence under the Qanun-e-Shahadat Order 1984. 9. It is also observed that the investigator and prosecutor both have become the prisoners of procedure, when they always look and try to dig for the direct evidence and do not bother to look for circumstantial evidence; although it is a well-defined principle of prudence that a conviction can also be recorded on the basis of circumstantial evidence. Article 164 of Qanun-e-Shahadat Order 1984, permits the use of modern devices and evidence detected thereon are admissible in evidence. 10. Another shortcoming in effective prosecution is that investigators generally do not procure the finger prints of the perpetrators, even the empty shells of bullets procured from the scene of the crime are not used to detect/match the finger prints of the perpetrators. 11. A data bank of perpetrators in respect of finger printing, blood grouping and DNA sampling, has also not been established. Modern devices like cell phones and internet modems could also be used. 12. Immediate duties of prosecutors are: To promote the cause of prosecution. To thoroughly scrutinize challans. To ensure the observance of conditions and restrictions of codes with reference to Police Rules. To ensure the observance of High Court directions with the object of expediting decisions and preventing abuses. To supervise the transmission of warrants and summons and to ensure that returns of such processes are made without delay. To guide the investigation officer to remove any lacunas in order to present the best evidence: To survey the pending investigations ensuring timely submission of challans in court as soon as the final report is received, to vet it and, if found not comprehensive, directing the investigation agency to resubmit it in the best manner. To timely prepare acquittal appeals and revision petitions, wherever so required. To prepare the cross-examination of the accused and witnesses of defence, if any. I 3. To achieve the object of successful prosecution of terrorism cases, the provincial prosecution service is required to frame prosecution rules, standard operating procedures of prosecution, the training of prosecutors and to put in place a mechanism of close surveillance by the prosecutors over the pending investigation of terrorist cases. The prosecutors should be appointed to a case simultaneously with entrustment of investigation to the investigating officers. 14. It is a grim and undeniable reality that our country is threatened by violent extremists, attacking our country and countrymen, killing our fellow citizens, and damaging or destroying important institutions and symbols. Confronting this threat is amongst the greatest challenges that we face as a nation. However, as we strive for a vigorous and effective response to terrorism, we should not lose sight of important tools that are already at our disposal. The existing criminal justice system is an established institution that has generally done a good job in handling cases on terrorism. We believe that the justice system deserves credit for the manner it has handled cases on terrorism. Many of the purported criticisms of the criminal justice system do not withstand scrutiny. Although the justice system is far from perfect, it has proved to be adaptable and has successfully handled a large number of important and challenging prosecutions on terrorism in the past without sacrificing the interest of national security and standards of fairness and due process. We should confidently make use of the criminal justice system, an existing and valuable resource that reflects many of the best aspects of our legal and cultural traditions; as one of the important tools in the campaign to eradicate terrorism. To conclude, a liaison between the prosecution and investigation agency could play a decisive role in overcoming these barriers to ensure that the perpetrators of crime can be successfully brought to justic