Karachi is not only said to be one of the most dangerous metropolises in the world, it is also a place where the effort to combat terrorism lawfully through the criminal justice system is at its worst. As the most important measure of this, Karachi has the highest caseload in terms of number of cases being heard in its Anti-Terrorism Courts (ATCs). With more than 17,000 cases only from 2014 pending at the five functional ATCs in Karachi, this pendency is 50 times higher than in other provinces, including Khyber Pakhtunkhwa. Even though Khyber Pakhtunkhwa has seen a fully-fledged insurgency in Swat, it has at least tried to keep its house in order with the lowest number of pending cases in its ATCs. Even Balochistan, decried as having a struggling criminal justice system, has a lower number of cases than Sindh.
With more than 11,000 cases in Karachi accounting for Sindh’s grand total of 17,000 in 2014, clearly Karachi leads the province in terms of pending terrorism cases. The reasons for these discrepancies between Karachi and the rest of the country are various. Sindh tried to set up an independent prosecution service in 2007, trying to take this monopoly away from the powerful clique of home or law departments. This was, however, abandoned presumably in the name of the 18th Amendment. The provincial government reverted to the status quo by attaching the prosecution wing to the law department with a special secretary prosecution overlooking its functioning, a post that currently remains vacant. With a prosecutor general theoretically heading this department but, in reality, subservient to the law department, the department remains a quintessential example of administrative chaos in Pakistan.
Heading a bunch of underpaid, overworked prosecutors, the prosecutor general’s department remains hampered by politicisation, lack of professionalism and inhuman workloads. With several ATCs in Karachi having a pendency of over 300 cases, it remains problematic or even impossible for prosecutors and judges to keep working efficiently in such conditions.
To add to the confusion, the vague definition of terrorism in Pakistan adds to the murkiness, whereby many political cases and other instances that are not terrorism cases at all are pushed into ATCs. Section six of the Anti-Terrorism Act 1997 defines terrorism, as does the schedule of offences that is annexed to the Anti-Terrorism Act. Together, these definitions are many pages long, which is unique, perhaps in the world. No other entity, state or non-state, has yet been able to come up with a definition of terrorism that is accepted by consensus internationally. Of course, sovereign states like Pakistan legislate their own definition of terrorism but these ‘definitions’ still lie somewhere between too short to serve the purpose or being too long and clogging the system with cases that are not ‘pure’ terrorism. Pakistan’s legal regime is an example of the latter.
Worse, prosecutors are not allowed in practice to exercise their ‘stop and drop’ powers, which implies filtering the number of cases so that they are not even prosecuted or sent back to the police to remove investigative defects (review), routine practices in most developed jurisdictions of the world. Pakistan is plagued by no evidence cases, which are cases in which evidence is extremely weak or nonexistent but they still languish in court for many years at times, only to be dismissed ultimately. If they were not allowed to go to court in the first instance, a lot of workload on the overburdened ATC criminal justice system would have been eased.
Karachi also sees its more endemic and perhaps indigenous type of terrorism. In this respect, perhaps extortion leads the way in Karachi’s brand of terrorism. But as many ATC personnel agree, extortion in most cases is not done by terrorist groups but by criminal gangs or those having some sort of a political tinge. In this context, is it right to cover all cases of extortion under the bundle of terrorism, especially when many such cases are clogging up the courts?
The other brand is kidnapping for ransom but here, again, the majority of such crimes are perpetrated by criminal gangs. Since criminal gangs operate for profit, these do not typically come under the ambit of terrorism. Terrorism is always for political motives, and crime for personal monetary gains should not be considered terrorism, which unfortunately is the case in Pakistan and Karachi.
Then, there is the popularisation of registering homicide cases under the anti-terrorism laws just to give them priority, a practice that is adding many ordinary murder trials to the ATC roster. This quest for sensationalism also results in much high priority politicised or other cases sent to the ATCs for speedy trial and often media attention, which does not help. What these officials do not realise is that the ATCs have a tremendously higher threshold of evidence to be adduced and this may actually result in the case being ultimately dismissed.
Meanwhile, as the Wali Babar case demonstrates, fear continues to pervade the personnel prosecuting terrorism cases in Pakistan. Assassinated journalist Wali Babar’s case has been transferred from one jurisdiction to the other, has seen witnesses being killed or intimidated into silence and generally represents the state of affairs in ATCs. Judges, witnesses, prosecutors and even police continue to be intimidated into silence and at best only short ranging safeguards are provided for their security. It was in this environment that Special Public Prosecutor Abdul Maroof of the ATC III in Karachi relocated to the US over security concerns, requesting asylum. Maroof had many times requested the provincial government to provide him with protection as he was appearing regularly in high-profile terrorism cases but nothing was done to allay his fears, even though terrorist threats to him were on record. Maroof represented the state in important cases such as the Daniel Pearl murder case, the Shahzeb Khan murder case and also the Wali Khan Babar murder case mentioned earlier, and had survived an assassination attempt.
The list of deficiencies can go and on but the important question remains: can counter-terrorism criminal justice in the most important city in Pakistan continue to be wantonly neglected as has been the case?
The writer is an inspector general of police and previous head of Pakistan’s National Counter Terrorism Authority