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Petitioner: Ghulam Hussain VS Respondent: The State, etc
Court Name: Supreme Court of Pakistan Judge(s):Ijaz-ul-Ahsan, Mushir Alam, Asif Saeed Khan Khosa, Syed Mansoor Ali Shah,
Manzoor Ahmad Malik, Sardar Tariq Masood, Mazhar Alam Khan Miankhel Title: Ghulam Hussain vs The State, etc Case No.:Criminal Appeals No. 95 and 96 of 2019, Civil Appeal No. 10-L of 2017 and Criminal Appeal No. 63 of 2013 Date of Judgment:2019-10-30 Reported As:PLD 2020 Supreme Court 61, PLJ 2020 SC (Cr.C.) 1, 2019 PSC CRI 969, 2019 SCP 356 Result: N/A Judgment Asif Saeed Khan Khosa, CJ. The meanings, scope and import of the term 'terrorism' defined in section 6 of the Anti-T errorism Act 1997, as amended from time to time, have been a subject of controversy in this Court for some time and different Honourable Benches of varying strength deciding different cases have differed with each other in the past and have understood and interpreted the said term differently . It is in this backdrop that the present Larger Bench has been constituted so as to put an end to that controversy . 2. The facts of the present appeals giving rise to the issue at hand are summed up as follows: Ghulam Hussain v The State (Criminal Appeal No. 95 of 2019) After a regular trial Ghulam Hussain appellant was convicted by the trial court on two counts of the charge under section 302(b), PPC for killing two minors and was sentenced to death on each count. He was also convicted on two counts of the charge under section 7(a) of the Anti-T errorism Act, 1997 and was sentenced to death on each such count. His appeal filed before the High Court was dismissed and all his convictions and sentences recorded by the trial court were upheld and confirmed. Leave to appeal was granted by this Court in order the reappraise the evidence and also to consider as to whether the provisions of the Anti-T errorism Act, 1997 were applicable to the facts and circumstances of the case or not. Muhammad Azeem and 3 others v The State (Criminal Appeal No. 96 of 2019) The appellants were convicted by the trial court for offences under section 302(b), PPC and section 7(a) of the Anti- Terrorism Act, 1997 and were sentenced to death each for committing the said offences besides having been
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convicted and sentenced for some other offences. The appellants filed a joint appeal before the High Court which was dismissed and all their convictions and sentences were upheld and maintained except their sentences of death on two counts of the charge which sente nces of death were reduced by the High Court to imprisonment for life each on each of the relevant counts of the charge. Leave to appeal was granted by this Court in order to reappraise the evidence and also to consider as to whether the provisions of the Anti-T errorism Act, 1997 were attracted to the facts and circumstances of the case or not. Tanvir v Prosecutor General Punjab, Lahore, etc. (Civil Appeal No. 10-L of 2017) In this case the investigating agency had deleted section 7 of the Anti-T errorism Act, 1997 from the FIR and the Anti-T errorism Court-II, Lahore had refused to treat the case as one of terrorism. A writ petition filed in that regard before the High Court succeeded and the case was ordered to be transferred to the Anti-T errorism Court for trial. Leave to appeal was granted by this Cour t to determine as to whether the provision s of the Anti-T errorism Act, 1997 were attracted to the case or not. Sikandar Hayat v The State (Criminal Appeal No. 63 of 2013) The appellant was convicted by the trial court for an offence under section 302(b), PPC read with section 149, PPC and was sentenced to imprisonment for life besides having been convicted and sentenced for an offence under section 148, PPC read with section 149, PPC. The appellant' s appeal was dismissed by the High Court and leave to appeal was granted by this Court in order to reappraise the evidence. 3. Before making an attempt to understand as to what the term 'terrorism' defined in section 6 of the Anti-Terrorism Act, 1997 denotes it may be advantageous to recapitulate how different acts, events, episodes and phenomena have from time to time been perceived or understood in different parts of the world as terrorism and distinct from ordinary and usual crimes howsoever heinous in nature. 4. History is full of instances where likeminded groups of people have resorted to violence as a tool for achieving political, ideological and religious ends. Jewish sects Zealots and Sicarii (or Sicarris), using small daggers called sicae hidden in their cloaks to stab peop le in crowds and then melting away in the throng, attacking the Roman occupiers of Judea and their allies in public places between 2 B.C. and 70 A.D.; the Assassins of Persia and Syria, Muslims belonging to the Ismaili sect who were called the Assassins because they were given hashish (hashishin) before being launched for terrorist acts, killing their targets and threatening the governments of several states between the 11 and 13 centuries; suicidal attacks carried out by different groups against the colonial rule in India, Indonesia and Philippines in the 18 and 19 centuries; Russian anarchists attacking members and supporters of the Tsarist regime with explosives at the end of the 19 century; Japanese Kamikaze pilots launching suicide attacks against American ships in the Pacific ocean during World War II, particularly in the Battle of Okinawa in April 1945 wherein some 2,000 Kamikaze pilots rammed fully fuelled planes into more than 300 ships killing about 5,000 Americans and about 2000 Kamikaze; Hizbullah supporters launching devastating attacks against the American and French forces in Lebanon in the year 1983; the Liberation Tigers of Tamil Eelam (LTTE) using hundreds of suicide bombers and killing thousands of people including Indian Prime Minister Rajiv Gandhi in the year 1991 and Sri Lankan President Premadasa in the year 1993; and the Marxist-Nationalist Kurdistan Worker's Party (PKK) carrying out many suicide attacks in Turkey against a range of targets during the end of the last century and beginning of the current century have all been universally perceived and acknowledged as terrorists indulging in acts of terrorism. 5. There are also many other instances in history where some individual acts or collective activity were, and are, perceived and accepted as terrorism and not just commission of normal, though heinous, offences. In the year 1881 anarchists killed the Russian Tsar Alexander II and 21 bystanders; in the year 1901 anarchists killed the US President McKinley as well as King Humbert I of Italy; World War I started in the year 1914 when anarchists killed Archduke Ferdinand of Austria; the British Raj referred to Bhagat Singh, Chand rasekhar Azad and many other Indian freedom fighters as terrorists; guerrilla fighters from Mao Zedong to Ho Chi Minh and Fidel Castro killed civilians during their revolutionary campaigns and they too were called terrorists until they triumphed; after Worldth th th th th
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War II some Jewish groups in Palestine, i.e. Haganah, Irgun and Stern Gang fought for the creation of a Jewish state, bombing hotels and installations and killing civilians and the British, who then governed Palestine, called those Jewish groups terrorists and many of those terrorists including Moshe Dayan, Yitzhak Rabin, Menachem Begin and Ariel Sharon later became leaders of the independent state of Israel and, ironically , those former terrorists then derided terrorism, applying this label to the Arabs, including Yasser Arafat, fighting for the very same nationhood that the Jews had fought for earlier; in Germany in the years 1968 to 1992 the Baader-Meinhoff Gang killed dozens, including the head of Treuhand, the German privatization agency; in Italy the Red Brigades kidnapped and killed Aldo Moro, a former prime minister, and the Japanese Red Army was an Asian version of that; Japan was also the home of Aum Shinrikyo, a Buddhist cult that tried to kill thousands in the Tokyo metro system using nerve gas in the year 1995; in Europe the Irish Republican Army has been a Catholic terrorist organization for almost a century; Spain and France face a terrorist challenge from ETA and the Basque terrorist organization; Lord's Salvation Army in Uganda and Boko Haram in Nigeria are universally acknowledged as terrorist outfits; the Afghan freedom fighters were called the Mujahideen (holy warriors) by the West when they were fighting the Soviet occupying forces but they are now branded as terrorists when they are fighting to oust the American occupying forces; the Muslim freedom fighters in the Indian occupied Kashmir, the Sikhs led and inspired by Bhindranwale in Punjab, the United Liberation Front and Bodo of Assam, militant groups in Tripura, Christian Mizos mounting an insurrection for decades, Christian Nagas waging a freedom struggle and the Maoist groups operating in no less than 150 out of India 's 600 districts are all termed by India as terrorists; and the savagery perpetrated by Talibans of different shades in Afghanistan and Pakistan for the last many decades is generally accepted and treated as acts of terrorism. 6. The historical context of terrorism given above shows that at different times in history terrorism has been resorted to for achieving different political, ideological or religious objectives. There are many explanatory theories about terrorism in modern times but the one advanced by David C. Rapoport, Professor Emeritus of Political Science at the University of California, Los Angeles, in the year 2004 (published in his journal Terrorism and Political Violence ) has received wide acceptance. The theory propounded by him is known as the 'waves of terrorism' theory and according to him modern terrorism can be divided into four waves which are Anarchists (1880s-1920s), Anti-Colonial (1920s-1960s), Left Wing (1960s-1990s) and Religious (1990 to date). He maintains that each wave came and died out and that these waves have at times overlapped also. The common factor in all those waves is that all the relevant acts of violence were and are universally recognized as terrorism because the unlawful use of violence was and is meant to achieve political, ideological or religious goals. By now the international community understands quite well that terrorism is a species quite distinct from all other usual and private crimes howsoever heinous or gruesomely executed. 7. In his book 21 Lessons for the 21st Century (published by Random House LLC, New York in 2018) the author Yuval Noah Harari has come up with a very interesting, and quite apt, analysis of how terrorists operate and succeed in their objectives. The following part of his analysis is quite enlightening: "Though the challenges are unprecedented, and though the disagreements are intense, humankind can rise to the occasion if we keep our fears under control and be a bit more humble about our views. Terrorists are masters of mind control...ter rorism is a military strategy that hopes to change the political situation by spreading fear rather than by causing material damage. In this respect, terrorists resemble a fly that tries to destroy a china shop. The fly is so weak that it cannot move even a single tea-cup. So how does a fly destroy a china shop. It finds a bull, gets inside its ear, and starts buzzing. The bull goes wild with fear and anger, and destroys the china shop. This is what happened after 9/11, as Islamic fundamentalists incited the American bull to destroy the Middle Eastern china shop. Now they flourish in the wreckage. And there is no shortage of short-tempered bulls in the world. Terrorism is a very unattractive military strategy, because it leaves all the important decisions in the hands of the enemy. Terrorists are so weak that they cannot wage war so they opt instead to produce a theatrical spectacle that they hope will provoke the enemy and cause him to overreact. By killing a handful of people the terrorists cause millions to fear for their lives.
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Terrorists don't think like army generals. Instead, they think like theatre producers. Because we intuitively understand that terrorism is theatre, we judge it by its emotional rather than material impact. Terrorists undertake an impossible mission: to change the political balance of power through violence, despite having no army. Every now and then a state loses its temper and reacts far too forcefully and publicly , thus playing into the hands of the terrorists. The legitimacy of the modern state is based on its promise to keep the public sphere free of political violence. Consequently , sporadic acts of political violence that kill a few dozen people are seen as a deadly threat to the legitimacy and even survival of the state. A small coin in a big empty jar makes a lot of noise. The theatre of terror generates visceral fear of anarchy , making people feel as if the social order is about to collapse. The state is driven to respond to the theatre of terror with its own theatre of security . So instead of acting quietly and efficiently , the state unleash es a mighty storm, which not infrequently fulfills the terrorists' most cherished dreams. How then should the state deal with terrorism. A successful counter-terrorism struggle should be conducted on three fronts: First, governments should focus on clandestine actions against the terrorist networks. Second, the media should keep things in perspective and avoid hysteria. The theatre of terror cannot succeed without publicity. The third front is the imagination of each and every one of us. The success or failure of terrorism therefore depends on us. If we allow our imagination to be captured by the terrorists and then we overreact to our own fears, terrorism will succeed. If we free our imagination from the terrorists and then we react in a balanced and cool way, terrorism will fail." This analysis also confirms that terrorists operate on a level different from that on which ordinary criminals operate, their operations and tactics are different and the offence of terrorism is more concerned with the object and design behind an action than with the action itself. 8. Since the year 1974 different laws have been introduced in our country in order to deal with the menace of terrorist activities and terrorism and the first serious attempt to understand the nature and scope of such an offence was made by a Division Bench of the Lahore High Court, Lahore in the case of Basharat Ali v Special Judge, Anti- Terrorism Court-II, Gujranwala and two others (PLD 2004 Lahore 199). In that case the history of terrorism was traced, different definitions of 'terrorism' adopted in the laws of different countries were mentioned, all the precedent cases available on the subject till then in Pakistan and India were referred to and all the relevant issues were exhaustively discussed. As all the ensuing discussion in the judicial and legal circles that followed that decision generally revolved around the judgment rendered in that case, therefore, some parts of that judgment are being reproduced here in extenso : "4. Terror and terrorism are concepts quite distinct from each other and the quintessence of the two notions is not difficult to distil. Terror as a manifestation of fright, dread, fear or insecurity is a consequential effect created by an act that may not necessarily be motivated to create such an effect whereas terrorism is an activity designed to create such an effect of terror. The critical difference between the two is the design and purpose understood in the criminal jurisprudence as mens rea. In the case of terror the act, or the actus reus, is not motivated to create fear and insecurity in the society at large but the same is actuated with a desire to commit a private crime against targeted individuals, etc. and the fear and insecurity created by the act in the society at large is only an unintended consequence or a fall out thereof whereas in the case of terrorism the main purpose is creation of fear and insecurity in the society at large and the actual victims are, by and large, not the real targets. Every crime, no matter what its magnitude or extent, creates some sort of fear and insecurity in some section of the society but every felony or misdemeanor cannot be branded or termed as terrorism. As against that an act of terrorism designed to create fear and insecurity in the society at large may or may not succeed in achieving the desired effect but nonetheless it can be accepted as nothing but terrorism because of the object or purpose behind such act. Thus, the real test to determine whether a particular act is terrorism or not is the motivation, object, design or purpose behind the act and not the consequential effect created by such act. In this context terrorism has to be understood as a species different and apart from terror, horror, shock, fear, insecurity, panic or disgust created by an ordinary crime. The history of recent terrorism in the world and an insight into how the world has understood
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and tried to define the same may be of significant help and of critical importance in appreciating the true meanings and import of the term 'terrorism'. 5. The history of terrorism as it is known today has essentially a political tone and background. 6. The question of a definition of terrorism has haunted the debate among States for decades. 7. The discussion made above shows, and shows quite clearly , that out of the various facets of the world view about terrorism one factor is constant and that is that in order to qualify as terrorism an act must be designed to achieve a political and a larger objective and the same is not primarily directed against the actual victims themselves who are treated merely as 'collateral damage'. It is also quite evident that the extent of the actual damage caused or injuries inflicted by the act is not the determinative factor in this regard. 8. Like its counterparts in rest of the world Pakistan has also been groping for the last many decades to find a suitable and appropriate definition of terrorism. Eversince the introduction of anti-t errorism laws in our country our legislature has constantly been in search of an apt definition of terrorism and in the process different laws have been enacted from time to time and different definitions of terrorism have been introduced at different occasions. In such definitions emphasis has been placed upon different aspects at different times. Although Suppression of Terrorist Activities (Special Courts) Act, 1974, Special Courts for Speedy Trials Ordinance, 1987, Terrorist Affected Areas (Special Courts) Ordinance, 1990, Special Courts for Speedy Trials Ordin ance, 1991, Special Courts for Speedy Trials Act, 1992 and many other laws were also enacted in this regard from time to time yet for the purposes of the present judgment we intend to focus mainly on the two major enactments in this field, i.e. the Suppression of Terrorist Activities (Special Courts) Act, 1975 and the Anti-T errorism Act, 1997. 9. The first major piece of legislation introduced in Pakistan specifically in the context of terrorism was the Suppression of Terrorist Activities (Special Courts) Act, 1975 It is of critical importance to point out here that although the word terrorism had been used in the Preamble of the said Act yet the same had not been defined in the Act at all and the Schedule of that Act created an impression that the word terrorism was to be understood in the context of any offence of serious and grave nature. 10. The Anti-T errorism Act, 1997 was a major step forward in Pakistan' s quest for dealing with the menace of terrorism and its Preamble provided as follows: "Whereas it is expedient to provide for the prevention of terrorism, sectarian violence and for speedy trial of heinous of fences and for matters connected therewith and incidental thereto." Section 12 of the Act conferred jurisdiction to try the scheduled offences exclusively upon the Special Courts constituted under the said Act. Section 6 of that Act defined a 'terrorist act' in the following terms: "Whoever , to strike terror in the people, or any section of the people, or to alienate any section of the people or to adversely affect harmony among different sections of the people, does any act or thing by using bombs, dynamite or other explosive or inflammable substances, or fire-arms, or other lethal weapons or poisons or noxious gases or chemicals or other substances of a hazardous nature in such a manner as to cause, or to be likely to cause the death of, or injury to, any person or persons, or damage to, or destruction of, prope rty or disruption of any supplies of services essential to the life of the community or displays fire-arms, or threate ns with the use of force public servants in order to prevent them from discharging their lawful duties commits a terrorist act." Section 7 of the Act specified various punishments for the terrorist acts mentioned in section 6, section 8 defined an offence regarding stirring up sectarian hatred and section 9 of the said Act provided for punishment for the offence under section 8. The Schedule of the said Act read as follows: "1. Any of fence punishable under this Act. 2. Any offence punishable under any of the following sections of the Pakistan Penal Code (Act XLV of 1860), namely:- (a) section 302, -- (i) if committed with a cannon, grenade, bomb, rocket or a light or heavy automatic weapon; (ii) if the victim is a member of police, armed forces or civil armed forces or is a public servant; (iii) if there is more than one victim; or (iv) the victim was subjected to cruelty , brutality , torture or burning; and
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(b) offences under sections 295-A, 298-A, 364, 364-A, 365, 365-A, 392 to 402 of the Pakistan Penal Code (Act No. XLV of 1860). 3. An offence punishable under sub-section (4) of section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (Ordinance No. VII of 1979). 4. Any attempt or conspiracy to commit or any abetment of any of the aforesaid offences." The core and essence or the pith and substance of a 'terrorist act' defined by this Act was striking terror in the people or any section of the people or alienating any section of the people or adversely affecting harmony among different sections of the people. The emphasis appeared to be on the gravity of the offence and its effect upon the general populace rather than on the actual motivation behind the act. 11. The above mentioned definition of a 'terrorist act' contained in section 6 was subsequently amended through the Anti-T errorism (Second Amendment) Ordinance, 1999 (Ordinance No. XIII of 1999) and the new definition read as follows: "A person is said to commit a terrorist act if he - (a) in order to, or if the effect of his actions will be to, strike terror or create a sense of fear and insecurity in the people, or any section of the people, does any act or thing by using bombs, dynamite or other explosive or inflammable substances, or such fire-arms or other lethal weapons as may be notified, or poisons or noxious gases or chemicals, in such a manner as to cause, or be likely to cause, the death of, or injury to, any person or persons, or damage to, or destruction of, property on a large scale, or a widespread disruption of supplies of services essential to the life of the community , or threatens with the use of force public servants in order to prevent them from discharging their lawful duties; or (b) commits a scheduled offence, the effect of which will be, or be likely to be, to strike terror , or create a sense of fear and insecurity in the people, or any section of the people or to adversely affect harmony among different sections of the people; or (c) commits an act of gang rape, child molestation, or robbery coupled with rape as specified in the Schedule to this Act; or (d) commits an act of civil commotion as specified in section 7-A." Through this amendment the focus on the effect of the action was extended to a potential or likely effect besides the actual effect of the action and the focal point still remained the effect of the action rather than the incentive or inspiration behind the same. 12. It is of vital importance to mention here that while providing in the amended section 6 that "in order to, or if the effect of his actions will be to, strike terror or create a sense of fear and insecurity in the people, or any section of the people, does any act or thing ---" the legislature never specified the motivation for that "act or thing" on the part of the perpetrator which propelled or prompted him to commit a terrorist act. Thus, the actus reus was itself considered to be determinative if the same was intended to create fear and insecurity, etc. in the public at large, had the effect of creating such fear and insecurity, etc. or had a…
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