Row over release of terror suspects in Pakistan: Report

Officials associated with the anti-terrorism campaign attributed a recent surge in terror attacks in the northwestern Khyber-Pakhtunkhwa province to, among other things, the acquittal of militants by anti-terrorism courts, the Dawn newspaper quoted unnamed officials as saying.

After a "relatively long spell of quiet" in terrorist activities, militants "have struck back with a vengeance", the report quoted officials familiar with briefings given to the government and the military establishment as saying.

"We are heading for a paralysis," a senior unnamed official said. "The entire effort to catch these scum is going for a six. You catch them and the next thing you know is they are out and back in business," another frustrated official was quoted as saying.

Official figures revealed a spike in terrorist attacks in Khyber-Pakhtunkhwa from December last year to March 20. There were a total of 96 incidents that claimed almost 200 lives and maimed hundreds more, as against 101 acts of terror during last year.

"Everyone worth knowing we had arrested is out, fighting us again," a senior police official said. At a briefing on internal security last month, the government was informed that 695 of 1,443 arrested militants had been bailed out, mostly by appellate courts, while 48 more had been acquitted by anti-terrorism courts.

The acquittal rate was particularly high in Malakand, a stronghold of the Pakistani Taliban till 2009. The only conviction so far was delivered by an anti-terrorism court earlier this month whereby militant Noorani Gul was sentenced to 120 years in jail. The conviction rate in terrorist cases was five per cent, an official said.

The situation became so alarming that officials from Khyber-Pakhtunkhwa held a long meeting with senior military officials at the General Headquarters in Rawalpindi to find ways to overcome the problem.

Government officials cited several cases where they believed courts refused to accept the prosecution's evidence and set free "extremely dangerous terrorists". One such case involved the arrest of two would-be suicide bombers with a suicide jacket, 650 grams of high explosives, a detonating cord and a grenade in Peshawar.

The court in its judgement in November last year noted that any action must involve the use of explosives. "In the instant case, there is no allegation that the accused used the explosives or were caught while using it or they threatened to use the same.

"So the inference here is that so long as the terrorist did not explode his suicide vest and kill people, it does not constitute a crime," said a frustrated police investigator.

"And that the possession of a suicide vest does not mean that the bomber wanted to or threatened to use it. This is bizarre," the official said. The court in its judgement also said that explosives must be in the shape of a device and that the prosecution did not furnish any report to substantiate its case. "A suicide jacket with a primer and a hand grenade are explosive devices. Do we need a report from any expert to prove that?" the official asked.

The court also noted that there was no allegation of a bomb blast and therefore, no case could be constituted under the anti-Terrorism Act of 1997. "Does this by implication mean that the suspect should have been allowed to explode the bomb?" the official said. However, legal experts blamed police investigators and the prosecution for poor performance.

"They don't do their homework," an unnamed legal expert said. "The law requires them to submit examination report of explosives recovered and they don't do that," he said.
In another case, an anti-terrorism court in Nowshera acquitted a man captured during a police raid in which a suicide bomber had blown himself up.

The reason, according to police, was the failure of an official to appear before the court on account of his wedding. But the report said this might be just be the tip of the iceberg. Officials acknowledged that of more paramount concern is the trial of over 2,000 suspected militants rounded up following the military operation in Swat in May 2009.
The militants – 50 per cent of them having been declared as "black or extremely dangerous" – were captured by the military and continue to be in their custody.

"They were captured by the army, when the police was nowhere present in Swat," a senior military official said. There are many others who were seized by intelligence agencies and later handed over to police for legal requirements.

The problem, according to military officials and legal experts, is bringing the circumstance of the militants' capture on record to fulfil requirements of the Anti-Terrorism Act.

The law requires witnesses and incriminating evidence to convict the militants but officials said witnesses were usually too scared to come forward and testify in court.
The courts also do not accept confessions made by militants to police and intelligence officials.

In one case, a security official said, the accused in a bomb blast in Peshawar confessed to his crime and a copy of his video confession was submitted in court, but he was acquitted and a statement by a police officer on the veracity of the confession was not entertained.

At the root of the entire issue, legal experts said, was the failure of the federal government to incorporate suitable amendments in the Anti-Terrorism Act. An ordinance promulgated by President Asif Ali Zardari expired in May last year and a bill containing new amendments is still stuck in the Senate or upper house of parliament.

The Khyber-Pakhtunkhwa government has informed the army that it has no legal powers under the Constitution to amend the law on its own and that the federal government would have to push through proposed amendments in the law and introduce a new counter-insurgency law to back the army's role in the arrest, detention and transfer of militants to civil law enforcement agencies.