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Petitioner: BASHARAT ALI VS Respondent: SPECIAL JUDGE ANTI-TERRORISM COURT-II, GUJRANWALA JUDGMENT
Court Name: Lahore High Court Judge(s): Asif Saeed Khan Khosa, M. A. Shahid Siddiqui Title:BASHARAT ALI vs SPECIAL JUDGE ANTI-TERRORISM COURT-II, GUJRANWALA
JUDGMENT
Reported As: PLJ 2004 Lahore 795 Result: Petition allowed. Judgment JUDGMENT Asif Saeed Khan Khosa, J.--Terror, as a manifestation of horror, shock or disgust, is known to human society and civilization since times immemorial but terrorism, as an 'ism' or an articulated pattern of thought and activity, is relatively of a recent origin. It is the distinction between the two that is the subject of the present judgment. 2. At about 8.30 p.m. on 24.4.2001 four persons were murdered and eight others were injured in village Behroopgarh situated in District Gujranwala in an assault carried out by one group of persons against another in furtherance of an on-going private enmity. FIR No, 103 was registered at Police Station Alipur Chatha, District Gujranwala at 10.15 p.m. during the same night in respect of the said incident for offences under Sections 302/324/452/436/148/149, PPC and the present petitioner was nominated therein as one of the perpetrators of the alleged offences. The motive set up in the FIR was an on-going murder-feud between the parties and a refusal of the complainant party to enter into a compromise with the accused party in a recent case of a murderous assault. After completion of the investigation a Challan was submitted in the said case before the Anti-Terrorism Court-II, Gujranwala Constituted under the Anti-Terrorism Act, 1997 for holding a trial. An application was submitted by the petitioner and another before the learned trial Court under Section 23 of the Anti-Terrorism Act, 1997 seeking transfer of the case to a Court of ordinary jurisdiction claiming that the case did not involve 'terrorism' as defined in Section 6 of the Anti- Terrorism Act, 1997 but that application was dismissed by the learned Judge, Anti-Terrorism Court- II, Gujranwala vide order dated 4.10.2003. The said order has been assailed by the petitioner before this Court through the present petition. The learned counsel for the petitioner has maintained that
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the circumstances of this case do not attract the definition of 'terrorism' contained in Section 6 of the Anti-Terrorism Act, 1997. As against that the learned counsel for the complainant, Respondent No, 2 herein, has argued that the offences committed in this case had created or had the potential of creating a sense of fear and insecurity in the society and, therefore, it is a case of terrorism triable exclusively by a Special Court constituted under the Anti-Terrorism Act, 1997. The learned Assistant Advocate-General appearing for the State has, however, maintained that mere gravity of an offence and its effect on the general public is no longer the criterion for determining its character as terrorism or not and according to the definition of 'terrorism' contained in Section 6 of the Anti-Terrorism Act, 1997 an action howsoever grave or serious cannot be termed as terrorism. unless the same is committed with the intentions and motives provided in the said section. According to him the facts of this case do not disclose the intentions and motives necessary for declaring the actions attributed to the petitioner's party as terrorism and, therefore, the State does not oppose this petition. 3. We have heard the learned counsel for the parties and have gone through the record of this case with their assistance. We have also carefully adverted to the precedent cases as well as the other material produced before us by the learned counsel for the parties. 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 ii 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 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. From the assassination of Arch Duke Ferdinand to the 'axis of evil' the world has witnessed development of a plethora of political rhetoric over the nature and proponents of terrorist acts highlighting the political nature of terrorism and with every incident of terrorism the scope and semantics of terrorism have been defined and redefined from time to time. The definition of terrorism has a history almost as long as the acts themselves. The original use of the word dates back to the French Revolution. Oxford Historian Norman Davies maintains that the original use of the word was to describe the French Government's brutally forceful suppression of the population. Thus, terrorism was originally understood as State-sponsored violence. Since then the definition of the word has evolved and in 1937 the League of. Nations (precursor to the modern United Nations)
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tried defining terrorism as "criminal acts directed against a State and intended or calculated to create a state of terror in the minds of particular persons or the general public." This definition implied that terrorism is carried out against the State and only non-State actors can perpetrate terrorism. In 1988 the State Department of the United States of America came up with its own definition of terrorism. It was described as "premeditated, politically motivated violence perpetrated against non-combatant targets by sub-national groups or clandestine agents, usually intended to influence an audience." However, one of the constants in the varying definitions of terrorism has been that it is used as a political tool. The history of terrorism reveals this to be quite true. The first major instance of terrorism in the 20th Century was the 1914 assassination of Arch Duke Ferdinand of the Austro-Hungarian Empire. The Arch Duke was gunned down. in Sarajevo by an extremist group known as The Black Hand whose aim was to rid the Balkans of the imperial influence. The Black Hand was allegedly sponsored by Serbia which also greatly resented the Austro-Hungarian influence in the region. This small act of terrorism was the precipitating cause of one of the deadlist wars the world has ever seen, the World War I. At the war's end the influence of the Austro-Hungarian Empire had diminished and Yugoslavia, an independent federation of the Balkan nations, was created. The next significant example of terrorism was the Nuremberg Laws of September 15, 1935. These laws formed the legal basis for forcing Jews out of Germany. Furthermore, they revoked the citizenship of Jews in Nazi Germany and forced Jews out of public offices. By removing powerful opposition to anti-Semitism Adolf Hitler used those laws to promote political gains. The Nuremberg Laws were a clear example of State-sponsored terrorism. On July 22, 1946 a bomb exploded at King David Hotel in Jerusalem. The bomb was detonated by Irgun, a Jewish terrorist group led by Menachem Begin. The goal of Irgun was to rid Palestine of British occupation and to create a Jewish homeland in Palestine to be called Israel. In 1948 Irgun's goal was achieved and the State of Israel was born. From 1948 to 1977 Begin was the leader of the Israeli opposition and in 1977 he became the Prime Minister of Israel. The bombing of King David Hotel is known as one of the major acts of modern terrorism and Richie Ovendale, a Middle East expert, advocates that Israel would not have become a nation without Irgun's terrorism. Likewise in 1948 South Africa enacted the Apartheid Laws which institutionalized racism. Those laws created reserves where 70% of the African population lived on 13% of the land. Many Africans were jailed for breaking those laws, among them was Nelson Mandela, the leader of the African National Congress Party. During Mandela's imprisonment some elements of the African National Congress party felt the need to resort to violence. Some African National Congress Party operatives exploded a bomb in a cafe in the port city of Durban that was frequented by police and army officers. The goal of the African National Congress Party was to end the brutal oppression of the Africans in South Africa, a cause many considered just. In 1994 South Africa held its first non-racial elections and Nelson Mandela won the presidency. Historian T.E. Vadney argues that the success of the African National Congress Party was in part a result of some of its extremist members' violence actions. So much for difference of perceptions and outlooks. However, the fact remains that the bombing of King David Hotel in Jerusalem in 1946 ushered in one of the most violent periods of human history. The violence between the State of Israel and the Palestinians has continued almost unabated since 1948. It was in 1968 with a series of aeroplane hijackings that Palestinian insurgent groups began employing 'terrorism' against Israel. During the thirty-six years that have since elapsed there have been numberous 'terrorist' attacks and hundreds of innocent people have died. In 1972, for example, eight masked gunmen raided the pavilion of the Israeli Olympic team in Munich killing the athletes and their coaches. Two years later three members of the Democratic Front for the Liberation of Palestine took over a school in Ma'alot, an Israeli town located near the Lebanese border. When negotiations broke down and the Israeli troops stormed the' dormitory the terrorists machine-gunned the children, killing 27 and wounding an additional 70. More recently,
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suicide bombers have replaced machine-guns. Between 1993 and 2003 hundreds of Israelis have been killed when the members of Hamas and Islamic Jihad have .exploded themselves in commuter buses, markets and other public places. The Israelis use State-sponsored terrorism to attack the Palestinians and to thwart attacks against Israel and the Palestinians counterattack with conventional terrorism and suicide bombings to try to achieve statehood for themselves. The tragedy of the twin towers of the World Trade Centre in New York on September 11, 2001 and its after math in Afghanistan and Iraq further highlight this conflict of perceptions according to which one man's terrorist is another man's freedom fighter. it is, therefore, not difficult to appreciate that when terrorism is defined by a State the definition implies that terrorisms can be perpetrated solely by non-State actors but the 'non-State actors extend the definition to State-sponsored terrorism as well. The struggle being waged by the Kashmiri and Chechan freedom fighters, the Palestinians, the Basque Separatists, the Tupac Amaru and the likes of them all over the globe is a case in point. 6. The question of a definition of terrorism has haunted the debate among States for decades. As mentioned above, the first attempt to arrive at an internationally acceptable definition was made by the League of Nations through a draft convention in 1937 defining terrorism as: All criminal acts directed against a State and intended or calculated to create a state of terror in the minds of particular persons or a group of persons or the general public" but the said draft was never adopted. In 1999 the General Assembly of the United Nations adopted a resolution (GA Res. 51/210 Measures to eliminate International terrorism) in the following words: "1. Strongly condemns all acts, methods and practices of terrorism as criminal and unjustifiable, wherever and by whomsoever committed; 2. Reiterates that criminal acts intended or calculated to provoke a state of terror in the general public, a group of persons or particular persons for political purposes are in any circumstance unjustifiable, whatever the considerations of a political, philosophical, ideological, racial, ethnic, religious or other nature that may be invoked to justify them." The Member States of the United Nations still have no agreed upon definition of terrorism. Terminology consensus would, however, be necessary for a single comprehensive convention on terrorism, which some countries favour in place of the present twelve piecemeal conventions and protocols relatable to the subject. The lack of agreement on a definition of terrorism has been a major obstacle in the way of meaningful International counter measures. In order to cut through this Gordian definitional knot terrorism expert A. Schmid suggested in 1992 in a report for the then United Nations Crime Branch that it might be a good idea to take the existing consensus on what constitutes a 'war crime' as a point of departure. He maintained that if the core of war crimes- deliberate attacks on civilians, hostage taking and the killing of prisoners-is extended to peacetime, one could simply define acts of terrorism as 'peacetime equivalents of war crimes'. We have already observed above that the State Department of the United States of America's current definition of terrorism, as it appears in its publication 'Patterns of Global Terrorism' (1998), is that: "The term 'terrorism' means premeditated, politically motivated violence perpetrated against non- combatant targets by subnational groups or clandestine agents, usually intended to influence an audience." However, the said definition is perceived by many experts as lop-sided and loaded. An academic definition of terrorism proposed by A. Schmid in 1988 was favoured for acceptance by the United Nations Crimes Branch and according to that-- "Terrorism is an anxiety-inspiring method of repeated violent action, employed by (semi) clandestine individual, group or state actors, for idiosyncratic, criminal or political reasons, whereby-in contrast to assassination-the direct targets of violence are not the main targets. The immediate human victims of violence are generally chosen randomly (targets of opportunity) or selectively (representative or symbolic targets) from a target population, and serve as message
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generators. Threat and violence-based communication processes between terrorist (organization), (imperilled) victims, and main targets are used to manipulate the main target (audience(s)), turning it into a target of terror, a target of demands; or a target of attention, depending on whether intimidation, coercion, or propaganda is primarily sought." University of Notre Dame political scientist George Lopez defines terrorism in the following manner: "Terrorism is a form of political violence that by design violates some of the society's accepted moral and legal codes, is often ruthlessly destructive, and is somewhat unpredictable in who will be its instrumental targets. Terrorism hardly constitutes mindless violence. Instead, it reflects a detailed strategy that uses horrific violence to make people feel weak and vulnerable, often disproportionate to either the terrorist acts or to the terrorists' longterm power. This fear seeks to promote concrete political objectives." In the wake of the present global so-called 'war on terrorism' it is important to have an understanding of what constitutes terrorism. There is currently no definition of terrorism available in the customary International Law. For the last couple of years the United Nations Sub-Commission on Human Rights has been working on a definition as part of a document that would serve as discussion for an International Conference on terrorism but there is contention among member States on the issue. The first draft of its report (February 2001) noted that there are three essential elements of terrorism. According to that report a terrorist act-- (i)must be illegal, violating National or International Law; (ii)must intend to harm the State for political reasons; and (iii)must be capable of generating a state of fear in the general population. The draft report covers both 'private terror' by non-State actors and State terrorism that can be internal or external. Another academic attempt to define terrorism indicates that the essence of the activity is the use of, or threat to use, violence. According to this definition an activity that does not involve violence or a threat of violence will not be defined as terrorism (including non-violent protest-strikes, peaceful demonstrations, tax revolts, etc.). It is maintained that the aim of the activity is always political, i,e, the goal is to attain political objectives like changing the regime, changing the people in power, changing social or economic policies, etc. In the absence of a political aim the activity in question will not be defined as terrorism. A violent activity against civilians that has no political aim is, at most, an act of criminal delinquency, a felony, or simply an act of insanity unrelated to terrorism. Some scholars tend to add ideological or religious aims to the list of political aims. The advantage of this definition is that it is as short and exhaustive as possible. The concept of 'political aim' is sufficiently broad to include all the considerations which may be relevant. This approach takes notice of the fact that the targets of terrorism are generally civilians as it exploits the relative vulnerability of the civilian 'underbelly' - the tremendous anxiety, and the intense media reaction evoked by attacks against civilian targets. The proposed definition emphasizes that terrorism is not the result of an accidental injury inflicted on a civilian or a group of civilians who stumble into an area of violent political activity but it stresses that this is an act purposely directed against civilians. This is why, as mentioned above, political expert George Lopez from the University of Notre Dame defines terrorism as "a form of political violence that by design violates some of the society's accepted moral and legal codes, is often ruthlessly destructive, and it often reflects a detailed strategy that uses horrific violence to push political goals." 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 terrorisms 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.
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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-terrorism 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 Ordinance, 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-Terrorism 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 and the Preamble of that Act delineating the purposes of introduction of that Act provided as follows: "Whereas it is expedient to make special provisions for the purposes of suppressing acts of sabotage, subversion and terrorism and to provide for speedy trial of offences committed in furtherance of or in connection with such acts." According to Section 4(1) of that Act "Notwithstanding anything contained in the Code the scheduled offences shall be triable exclusively by a Special Court". Section 2(b) of the Act provided that "Scheduled offence" means an offence specified in the Schedule" and the Schedule (as subsequently ' amended from time to time) read as under:-- "(a) Any offence punishable under any of the following sections of the Pakistan Penal Code, 1860 (XLV of 1860) namely:- (i)Sections 121, 121-A, 122, 123, 123-A, 124-A, 365-A, 400, 402-A, 402B, 402-C, 147 and 431; (ii)Section 216 if committed in relation to an offender who is accused of having committed any of the offences specified in this Schedule; (ii)(a) Section 302 or Section 307 if committed in the course of the same transaction in which an offence specified in this paragraph or paragraphs (b) and (c) is committed or in addition to or in combination with such offence; (iii)Sections 392, 393, 394, 395, 396, 397, 398 and 399, if a cannon, grenade, bomb, rocket or an arm of a prohibited bore is used for, or, any public property is stolen, destroyed or damaged in, the commission of the offence; or (iv)Section 435, 436, 437, 438 and 440, if an explosive substance, mineral oil or any product of mineral oil is used for the commission of the offence; (b) Any offence punishable under the Explosive Substances Act, 1908 (XI of 1908); (c)Any offence punishable under the Arms Act, 1878 (XI of 1878), or any offence punishable under any of the following sections for the West Pakistan Arms Ordinance, 1965 (West Pakistan Ordinance No, XX of 1965), namely Sections 9 and 10, if committed in respect of a cannon, grenade, bomb or rocket, or a light or heavy automatic or semi-automatic weapon such as Kalashnikov, a G-III rifle or any other type of assault rifle; (cc) Any offence punishable under Section 13-A or Section 13-B of the Pakistan Arms Ordinance, 1965 (West Pakistan Ordinance of 1965); (d)Any offence punishable under any of the following sections of the Railways Act, 1890 (IX of 1890), namely Sections 126, 127 and 128; (e)Any offence punishable under Section 25 of the Telegraph Act, 1885 (XIII of 1885); (f)Any offence punishable under Rule 29 of the Aircraft Rules, 1937; (g)Any offence punishable under Rule 43 of the Defence of Pakistan Rules; (h)Any offence punishable under sub-section (1) of Section 13 of the Anti-National Activities Act,
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1974 (VII of 1974), if such offence constitutes anti-national activity within the meaning of sub-clause (i) or sub-clause (ii) of clause (a) of Section 2 of that Act; and (i)Any attempt or conspiracy to commit, or any abetment of, any of the aforesaid offences." 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-Terrorism Act, 1997 was a major step forward in…
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