war on terror and challenges for criminal justice in...
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WAR ON TERROR
AND
CHALLENGES FOR CRIMINAL JUSTICE IN PAKISTAN
PH.D. THESIS
Submitted by
Zafar Iqbal
Reg. No. NDU-PCS/PH.D/S-11/014
Supervisor
Dr. Farkhanda Zia Mansoor
Department of Peace and Conflict Studies
Faculty of Contemporary Studies
National Defence University
Islamabad
2016
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WAR ON TERROR
AND
CHALLENGES FOR CRIMINAL JUSTICE IN PAKISTAN
PH.D. THESIS
Submitted by
Zafar Iqbal
Reg. No .NDU-PCS/PH.D/S-11/014
Supervisor
Dr. Farkhanda Zia Mansoor
This Dissertation is submitted to National Defence University, Islamabad
in partial fulfillment for the degree of
Doctor of Philosophy in Peace and Conflict Studies
Department of Peace and Conflict Studies
Faculty of Contemporary Studies
National Defence University
Islamabad
2016
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Certificate of Completion
It is hereby recommended that the dissertation submitted by Mr. Zafar Iqbal titled “War on
Terror and Challenges for Criminal Justice in Pakistan” has been accepted in the partial
fulfillment of the requirements for the degree of Ph.D. in the discipline of Peace and Conflict
Studies.
____________________
Supervisor
____________________
External Examiner
Countersigned By
____________________ ____________________
Controller of Examination Head of the Department
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Supervisor’s Declaration
This is to certify that Ph.D dissertation submitted by Mr. Zafar Iqbal titled “War on Terror
and Challenges for Criminal Justice in Pakistan” is supervised by me, and is submitted to
meet the requirements of Ph.D. degree.
Dated: _________ Dr. Farkhanda Zia Mansoor
Supervisor
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Student’s Declaration
I hereby declare that the thesis submitted by me titled “War on Terror and Challenges for
Criminal Justice in Pakistan” is based on my own research work and has not been
submitted to any other institution for any other degree.
Dated: _________ Mr. Zafar Iqbal
Ph.D. Scholar
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ABSTRACT
The US launched War on Terror (WOT) with an intent to bring the perpetrators and
abettors of the 9/11 incident to justice in its own terms and satisfaction. The US became the
sole judge in its own cause, ousted Taliban government and eliminated Al-Qaeda leadership.
This approach of retributive justice demonstrated the US hegemony and pursuit of realism.
Pakistan joined the WOT in the wake of US threats but became the subject of terrorism and
ultimately turned into a battlefield in the fight against terrorism. National and internal
security of Pakistan was jeopardized. Performance of the agencies of criminal justice system
became subject of open public criticism. Consequently, the Armed Forces had to assume the
responsibility of national security and administration of justice, which is against the principle
of tricotomy of power enshrined in the constitution.
This research proposes that the WOT has collapsed the whole edifice of criminal
justice system in Pakistan. In order to analyse this proposition, the research explores causes
of WOT and examines American rationale for initiating WOT. The study also explores
effects of WOT on national security and criminal justice system of Pakistan as well as
different parameters of its criminal justice system vis-à-vis terrorism. It also discovers
different theories of crimes and examines utility of different theories of punishments in
deciding terrorism-related cases. The study also discovers history and evolution of security
and anti-terrorism laws of Pakistan and the effects of amendments introduced after 9/11 on
the criminal justice in Pakistan. The research also examines role and efficacy of courts
martial as an alternative mechanism for criminal administration of justice in terrorism cases.
The study is mainly based on qualitative analysis and extensive review of literature
on the subjects of national security, peace and conflict, international humanitarian law, legal
theories and analysis of the laws relating to terrorism. The dissertation has been organized
into seven chapters, with separate introduction and conclusions. The study does not prove the
hypothesis to the hilt. Nevertheless, it concludes that the criminal justice system of Pakistan
did not succeed in meeting the challenges of WOT and play its effective role in eradicating
the menace of terrorism through justice. The study recommends that WOT may be
successfully fought through a comprehensive strategy based on equal cooperation, ownership
and devotion of all the stake-holders.
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ACKNOWLEDGMENTS
I express my deep gratitude to Dr. Farkhanda Zia Mansoor, Professor of Law in the
International Islamic Studies, Islamabad for supervising, steering and rendering intimate
guidance in completing this Ph.D dissertation. My research work would not have been
accomplished without her painstaking assistance. I also extend my thanks to Dr. Ishtiaq
Ahmad Choudhry, Head of the Department of Peace and Conflict Studies, Faculty of
Contemporary Studies, National Defence University, Islamabad for his encouragement and
intellectual support to complete this study. I also owe my profound thanks to Mr. Muhammad
Idrees and Mr Muhammad Ramzan, who helped and assisted me in compiling the data,
typing and composing this dissertation. My sincere appreciation and profound gratitude are
also due to Mr. Abdul Sattar for his very valuable editorial advice.
I must also acknowledge the support of my parents, sisters, brothers, wife and
children, who remained deprived of my due care and attention. Without their encouragement
and moral support, it was difficult for me to complete this work, especially when it was
undertaken along with my hectic official assignments. In particulars, I owe special thanks to
my sisters, who rendered many valuable suggestions for successful completion of this
dissertation.
Finally, I bow my head before Allah Almighty, who created me amonghst the best of
creatures, bestowed upon me His countless blessings and gave me the required wisdom and
vigor to sucessessully undertake this difficult but rewarding assignment.
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To Parents, Brothers, Sisters and Family
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TABLE OF CONTENTS
ABSTRACT…………………………………………..………………………………........ vi
ACKNOWLEDGEMENTS……………………………………………………………….. vii
DEDICATION……………………………………..……………………………………… viii
ABBREVIATIONS AND ACRONYMS ………………………........................................ xiv
LIST OF TABLES………………………………………….…….……………….………. xvii
INTRODUCTION 1
Statement of the Problem ………………………………………………………… 16
Hypothesis ……………………………………………………………………. 17
Independent and Dependent Variables …………………………………………... 17
Research Questions ………………………………………...…………………….. 17
Significance of the Study ………………………………………………………… 18
Justification and Likely Benefits ………………………………………................ 20
Objectives and Scope of the Study ……………………………………………. 20
Research Methodology …………………………………………………………… 21
Limitation of the Study…………………………………………………………… 22
Review of Literature ……………………………………………………………... 23
Organization of the Study ….…………………………………………………….. 30
CHAPTER 1
WAR ON TERROR AND THE UNITED STATES PURSUIT OF MILITANCY IN
PAKISTAN
34
1.1 Background and causes of WOT ………………………………………................. 36
1.1.1 Theory of Realism ……………………………………………………………….. 40
1.2 Reasons for US Pursuit of Militancy in Pakistan after 9/11……………................ 43
1.3 US Rationale for WOT and Pursuit of Militancy in Pakistan…………………….. 48
1.3.1 Just War Theory …………………………………………………………….......... 50
1.3.2 UN Charter and the Security Council Resolutions……………………………….. 52
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CHAPTER 2
EFFECTS OF WAR ON TERROR ON THE NATIONAL SECURITY AND
CRIMINAL JUSTICE IN PAKISTAN ………………………………………………….
59
2.1 Internal Security ………………………………………………………………….. 60
2.2 Resurgence of Militancy ………………………………………………................. 65
2.3 Drone Attacks…………………………………………………………………….. 66
2.4 Economic and Political Debacles ………………………………………………… 67
2.5 Humanitarian and Internally Displaced Persons (IDPs) Issues…………………… 69
2.6 Allegations of Human Rights Violations ………………………………………… 71
2.7 Missing Persons Syndrome ……………………………………………................ 73
2.8 Application of International Humanitarian Law ………………………................ 77
2.9 Effects of WOT on Criminal Justice System in Pakistan ……………………….. 81
2.10 Major Terrorism Incidents during 2007-2015 ……………………………………. 85
CHAPTER 3
THE CRIMINAL JUSTICE SYSTEM OF PAKISTAN - DIMENSIONS AND
PARAMETERS VIS-À-VIS TERRORISM …………………………………………….
97
3.1 Broad Parameters of Criminal Justice System in Pakistan ……………................. 98
3.1.1 Role of Police, Law Enforcement and Prosecuting Agencies …………………… 99
3.1.2 Role of Courts…………………………………………………………………….. 104
3.1.3 Role of Prisons …………………………………………………………………… 108
3.1.3.1 Offence or Crime ………………............................................................ ................ 110
3.1.4 Nature and Extent of Offences or Crimes as Acts of Terrorism in Pakistan……... 111
3.2 Theories of Crimes……………….......................................................................... 113
3.2.1 Biological Theories ………………………………………………………………. 113
3.2.2 Psychological and Socio-psychological Theories………………………………… 114
3.2.3 Sociological Theories…………………………………………………………….. 114
3.2.4 Crime-specific Theories………………………………………………………….. 115
3.3 Theories of Punishment……………….................................................................. 117
3.3.1 Theory of Retribution ……………………………………………………………. 118
3.3.2 Theory of Reformation and Rehabilitation ………………………………………. 119
3.3.3 Theory of deterrence …………………………………………………………….. 120
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3.4 International Legal Standards………………......................................................... 121
CHAPTER 4
HISTORICAL EVOLUTION OF CRIMINAL JUSTICE SYSTEM AND PRESENT
STATUS OF SECURITY AND ANTI-TERRORISM LAWS …………………………
134
4.1 Security and Anti-terrorism Legislation in the Post-independence to Separation of
East Pakistan (1947-1971)……………………………………………………...
135
4.2 Security and Anti-terrorism Legislation after the Emergence of New Pakistan till
Ouster of Mrs Benazir Bhutto (1972-1996) ………………………………………
170
4.3 Security and Anti- terrorism Legislation during Mr Nawaz Sharif and General Pervez
Musharraf regimes in the pre and post 9/11 tragedy (1997-2015) ……......
185
4.3.1 Anti-terrorism Act 1997 ………………………………………………………….. 187
4.3.2 Shari Nizam-e-Adl Ordinance 1999 and Sharia’h Nizam-e-Adl Regulation 2009.. 200
4.3.3 Actions (in Aid of Civil Power) Regulations 2011………………………………. 202
4.3.4 Investigation for Fair Trial Act 2013 ……………………………………………. 206
4.3.5 Protection of Pakistan Ordinance 2013 and Protection of Pakistan Act 2014……. 207
CHAPTER 5
TRIALS OF CIVILIANS BY MILITARY COURTS IN HISTORICAL PERSPECTIVE
AND THEIR ROLE IN CRIMINAL JUSTICE SYSTEM ………….
213
5.1 President Ayyub Khan Amends the Army Act …………………………………... 214
5.2 Prime Minister Bhutto Amends the Army Act …………………………………... 215
5.2.1 “Pakistan Army (Amendment) Act 1977” and Jurisdiction of Courts Martial over
Civilians Challenged ……………………………………………………………...
217
5.3
General Zia-ul-Haq Promulgates Martial Law and Establishes Military Courts or
Tribunals by Amending the Constitution …………………………………………
220
5.4
Prime Minister Benazir Bhutto Amends Constitution to Establish Special Courts for
Trial of Heinous Crimes ………………………………………………………
221
5.5 Prime Minister Nawaz Sharif Establishes Military Courts through “the Pakistan
Armed Forces (Acting in Aid of Civil Power) Ordinance 1998” to Try Civilians..
221
5.6 President Musharraf Promulgates “Pakistan Army (Amendment) Ordinance 2007” to
Bring Civilians within the Purview of Army Act……………………….
225
5.7.1 Prime Minister Nawaz Sharif Amends the Constitution and Pakistan Army Act in the 227
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Background of APS Peshawar Carnage ……………………………………
5.7.2 Reaction to 21st Constitutional Amendment and Pakistan Army (Amendment) Act
2015…………………………………………………………………………...
231
5.7.3 Arches of Supreme Court Judgment in “21st Constitutional Amendment and Pakistan
Army (Amendment) Act 2015” Case……………………………………
234
5.7.4 Analysis and Significance of Supreme Court Judgment for Criminal Justice in
Pakistan………………...........……………….........................................................
237
CHAPTER 6
DISCUSSION AND ANALYSIS ………………………………………………………… 245
6.1 Is WOT justifiable on the Touchstone of Realism? ……………............................ 246
6.2 Is American Rationale for Initiating WOT and Pursuit of Militancy in Pakistan
Justifiable? ………………...........…………………………………………………
249
6.3 Did the Judicial Organs Play their Role in Combating Terrorism and
Crime? ………………...........………………..........................................................
256
6.3.1 Role of Police, Law Enforcement and Security Agencies ……………………….. 262
6.3.2 Role of Lawyers and Attorneys …………………………………………………... 264
6.3.3 Role of the Criminal Courts ……………………………………………………… 267
6.3.3.1 Discretion of the courts and theories of punishment ……………………………... 270
6.3.4 Role of Prisons …………………………………………………………………... 270
6.4 What is the Effect of Different Amendments Introduced in the Security and Anti-
terrorism Laws of Pakistan after 9/11? ………………………...............................
274
6.4.1 Effects of Anti-Terrorism Act 1997 in the pre- 9/11 Scenario …………………... 274
6.4.2 Effects of Anti-terrorism Act 1997 in the post-9/11 Scenario …………………… 278
6.4.2.1 Issues of missing persons and Anti-terrorism Act 1997 …………………………. 278
6.4.3 Effects of Actions (in Aid of Civil Power) Regulations 2011 …………………… 282
6.4.4 Effects of Investigation for Fair Trial Act 2013 ………………………………….. 284
6.4.5 Effects of Protection of Pakistan Act 2014 ………………………………………. 286
6.5 Did the Amendments Introduced in the Security and Anti-terrorism Laws of Pakistan
after 9/11 Improve, Complicate or Compromise Criminal Justice System in Pakistan?
290
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……………………………………………………………….
6.6 Do the Legislations Introduced after 9/11 Conform or Violate International Legal
Standards? ………………………………………...................................................
294
6.7 Do the Trials of Civilians by Courts Martial Offend Human Rights?..................... 299
6.7.1 Mechanism of Trial before Courts Martial……………………………………….. 301
6.8 Are Military Courts an Alternative Mechanism for Criminal Administration of Justice
in Terrorism Cases? ……………………………………………………….
311
6.9 Conclusions……………………………………………………………………………. 313
CHAPTER 7
RECOMMENDATIONS ………………………………………………………………… 321
7.1 Need to Understand the Genesis of Terrorism and its Root Causes …….……….. 322
7.2
Need to Reconcile Security and Anti-terrorism Laws and Avoid their Multiplicity and
Ambiguity ……………………………………………………….
325
7.3 Need to Introduce Judicial Reforms in FATA …………………………………… 331
7.4 Need to Reconcile Difference of Perceptions ……………………………………. 335
7.5 Need to Understand Significance of Deterrent Approach and its Implementation.. 340
7.6 Need for Capacity Building and Inculcating Sense of Responsibility and Ownership
………………………………………………………………………...
343
7.7 Need to Implement Policy of Reward and Punishment for Judicial and Police
Officials …………………………………………………………………………..
348
7.8 Need to Reconcile and Resolve the Issues of Human Rights and Missing Persons 351
7.9 Need for Jail Reforms ……………………………………………………………. 355
7.10 Need to Implement the Judgments of Supreme Court and National Judicial Policy
2009 ……………………………………………………………………….
360
7.11 Need to evolve a strategy of winning the hearts and minds ……………………… 362
7.12 Need to Implement National Action Plan 2014 ………………………………….. 367
BIBLIOGRAPHY ………………………………………………..…………….………….
371
APPENDIX………………………………………………………………………………… 396
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ABBREVIATIONS AND ACRONYMS
APS Army Public School
ASF Airports Security Force
ATA Anti-terrorism Act 1997
BLA Baloch Liberation Army
BLF Baloch Liberation Front
CPEC China Pakistan Economic Corridor
CrPC Criminal Procedure Code
DPO District Police Officer
ECL Exit Control List
EU European Union
FATA Federally Administered Tribal Areas
FBI Federal Bureau of Investigation
FC Frontier Constabulary, Frontier Corps
FCR Frontier Crimes Regulation, 1901
FIA Federal Investigation Agency
FMDA FATA Disaster Management Authority
GB Gilgit Baltistan
GHQ General Headquarters
GCC Gulf Cooperation Council
HRC Human Rights Council
IB Intelligence Bureau
ICC International Criminal Court
ICJ International Court of Justice
ICTY International Criminal Tribunal for the former Yugoslavia
IDPs Internally Displaced Persons
IED Intensive Explosive Device
IG Inspector General
IHL International Humanitarian Law
IO Investigating/Interrogation Officer
ISAF International Security Assistance Forces
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ISI Inter-Services Intelligence
JPMC Jinnah Post Graduate Medical Centre
KP Khyber Pakhtunkhwa
LB Lashkar-e-Balochistan
LEA Law Enforcement Agency
MO Military Operations
NACTA National Counter Terrorism Authority, 2009
NADRA National Database and Registration Authority
NJP National Judicial Policy 2009
NATO North Atlantic Treaty Organization
NDU National Defence University Islamabad
NODEFIC Norwegian Defence International Centre
NWFP North West Frontier Province
NORDEFCO Norwegian/Nordic Defence Cooperation Organization
OEF Operation Enduring Freedom
OHCHR Office of High Commissioner for Human Rights
PAA Pakistan Army Act 1952
PATA Provincially Administered Tribal Areas
PILDAT Pakistan Institute of Legislative Development and Transperancy
PLD All Pakistan Legal Decisions
PLJ Pakistan Law Journal
PMDC Pakistan Medical and Dental Council
POPA Protection of Pakistan Act 2014
POTA Prevention of Terrorist Activities Act
PPC Pakistan Penal Code
PTV Pakistan Television
Sec Section
SFMU Special Forces Military Unit
SC Supreme Court of Pakistan
SHO Station House Officers
SSP Senior Superintendent of Police / Sipah-e-Sahabah Pakistan
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TDPs Temporarily Displaced Persons
TTP Tahreek-i-Taliban Pakistan
TNSM Tehrik-i-Nifaz-i-Shariat-i-Mohammadi
T2F The Second Floor
UBA United Baloch Army
UNO United Nations Organization
UNSC United Nations Security Council
WOT War on Terror
WMD Weapons of Mass Destruction
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LIST OF TABLES
1. Table 2.1 - Fatalities in Terrorists Violence in Pakistan (2003-2015) 64
2. Table 2.2 - List of High Profile Cases (2004-2007) 84
3. Table 3.1 - Hierarchy of Criminal Courts in Pakistan 107
4. Table 3.2 - Comparative Analysis of International Legal Instruments 125
5. Table 6.1 - Comparative Analysis of Anti-terrorism and other laws of
Pakistan
397
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INTRODUCTION
The incident of 9/11 had challenged the sovereignty of America but the ensuing War
on Terror (WOT)1 and United States of America’s pursuit of militancy in Pakistan adversely
affected the unity, security and sovereignty of Pakistan.2 Pakistan chose to join the WOT
against its wish but subsequently assumed the same to be its own war when the battlefield
was shifted into Pakistan and US hunt for militants extended inside Pakistan. Resultantly, the
menace of terrorism,3 militancy and radicalization extended beyond the tribal areas and
engulfed the whole of Pakistan, causing irreparable damage to its socio-religious, political,
administrative, economic, legal, security and other institutions. US tried to justify WOT and
pursuit of militancy in Pakistan on the basis of just war theory,4 its inherent “right of self
1The WOT was initiated by United States of America against Al-Qaeda and its leadership who was harbouring
in Afghanistan and accused of masterminding the attack on the twin towers in New York on September 9, 2001.
Pakistan as a matter of fact had no role either in supporting Al-Qaeda or any other non-state actor in launching
the said attacks. However, US rage and anger was such that it managed to fetch involuntary support from
Pakistan against the Taliban rule in Afghanistan. The language and tenor of President Bush in his State of the
Union address reflects his anger and unconditional support of the world for his military campaign in
Afghanistan. See “US President George W. Bush, White House, State of the Union Address, January 29, 2002,”
available at http://www.whitehouse.gov/news/releases/20020129-11.html, accessed on August 29, 2011. 2Marc Ambinder and David W Brown, “The story of US Special Forces infiltrated in Pakistan”, The Atlantic,
February 15, 2012.
3“Today few words are as politically or emotionally charged as “terrorism” but it is still not clear what exactly
“terrorism” is? Generally speaking, “terrorism” is the use of politically-motivated violence or terror by the state
or non- state actors and groups. It is a derisive and subjective term with negative connotations applied to one’s
enemies and opponents.” This has been observed by Rana Eijaz Ahmad, “War against Terrorism or War for
Terrorism” (2007), The Journal of Political Studies, Vol. 11, accessed on May 7, 2016. Also see Barrister
Saadia Abbasi, “Anti-terrorism Laws and Way Forward in Dealing with Terrorists in Comparison with
Contemporary Countries”, Pakistan Army Green Book 2014, (Islamabad: Crystal Printers, 2014), pp. 18-31. She
has explored different definitions of terrorism developed over a period of time and in the backdrop of 9/11
tragedy. She referred to individual, group, political and state terrorism; and observed that there is still room for
a conclusive definition of terrorism. 4Just war theory ordains that war may only be waged when inevitable, for a just cause by a just authority; while
its conduct and culmination should also be just. In the primitive Roman society, even wars against non-
Catholics were considered as just wars. So far as the just authority is concern, it used to be fetiales, the priests
monitoring international treaties, in the Roman. See Brian A. Garner, Black’s Law Dictionary, (USA: Thomson
West, 2004) pp. 164, 883-884. See also Augustine, The City of God, translated by Bettenson (New York:
Penguins Books, 1972), pp. 6-13, as quoted by Bradley L. Herling in “Machedicy Or Just War Theory in an
Age of Terror”, Existenz, Volume I, Numbers 1-2 (Fall 2006), pp. 75-76 and available at http://wwwbu.edu/paideia/existenz. Augustine had been resisting war on the basis of the teachings of
Christianity; however, he had to consent for war when the enemy reached at the gates of Rome. Basics of the
just war doctrine have been discussed in Chapter 2. However, see for example: James F. Childress, “Just War
Theories: The Bases, Interrelations, Priorities, and Functions of Their Criteria.” Theological Studies, No
39,1978, pp. 427-445; Gene Sharp, “Beyond just war and pacifism: nonviolent struggle toward justice, freedom
and peace”, Ecumenical Review, April, 1996, available at
http://findarticles.com/p/articles/mi_m2065/is_n2_v48/ai_18310385/print?tag=artBody;coll; “Just War Theory”
at http://www.justwartheory.com and www.iep.utm.edu/justwar; accessed on March 24, 2016.
http://www.whitehouse.gov/news/releases/20020129-11.htmlhttp://wwwbu.edu/paideia/existenzhttp://findarticles.com/p/articles/mi_m2065/is_n2_v48/ai_18310385/print?tag=artBody;collhttp://www.justwartheory.com/http://www.iep.utm.edu/justwar
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defence”5 and “Security Council Resolutions”;6 however, its justifications always remained
subject to criticism and legal scrutiny, with low moral standing as it had exceeded the right of
self defence. WOT and US pursuits of militancy in Pakistan were characterized by her
hegemonic designs,7 rather than just war or self defence.8 The WOT and US pursuit reached
the saturation point with all its pros and cones including elimination of Osama Bin Laden in a
Special Forces operation in Abbottabad on 2 May 2011,9 trust deficit between the two main
allies of WOT especially after the targeted massacre of Pakistani troops at Salala post on 26
November 2011 by US led NATO forces,10 followed by blockade of logistics supplies to
NATO troops in Afghanistan by Pakistan,11 deliberate absence of Pakistan from Bonn
Conference of December 201112 to record her protest in the wake of Salala tragedy13 and the
5Article 2(4) of the UN Charter forbids “threat or use of force against the territorial integrity or political
independence of any state”; while its Article 51 reads: “Nothing in the present Charter shall impair the inherent
right of individual or collective self defence if an armed attack occurs against a Member of the United Nations,
until the Security Council has taken measures necessary to maintain international peace.” It is the provisions of
Article 51, which were invoked by America for justifying attack on Afghanistan and launch of WOT. 6For example: “UN Security Council Resolutions” 1368 (2001), 1373 (2001), 1377(2001), 1535 (2004), 1540
(2004) and 1963 (2010), available at http://www.un.org/Docs/scres, accessed on July 27, 2011. However, the
said resolutions do not define or differentiate “terrorism” viz-a-viz “freedom fighting” but stress the member
states to fight terrorism utilizing all available means, so as to ensure “international peace and justice.” For
conflicting views on definition of terrorism, see Nadeem Ahmad, “Conceptualizing terrorism: Problems of
defining and building consensus”, IPRI Journal XII, No. 2 (Summer 2012), pp. 58-75. 7US redefined its strategy to implement “the Project for New American Century” to extend “the benefits of Freedom across the globe”, and Bush doctrine i.e. “to counter terrorism and democratic regime charge”. See
The White House Washington, “the National Security Strategy of the United States of America 2002” available
at http://www.infomationclearinghouse.info/article.2320/1665.htm, accessed on March 2, 2012. 8After winning the cold war, US prepared the blueprint to capitalize its surplus military forces and defence
resources to extend its hegemony and corporate privatization throughout the world. See for example, “Project
for old American Century, New American Century”, available at www.oldamericancentury.org. See also Dr.
Shahid Ahmad Hashmat, International Conflict Resolution: Role of UN and OIC, (Islamabad: NUST
Publishing, 2014), pp.1-2; Rana Eijaz Ahmad, “Security, Political Dimensions and Consequences of NATO
Expansion in the Region”, South Asian Studies, Volume 25, Number 2, July-December 2010, pp.413-418; Rana
Eijaz Ahmad, “War against Terrorism or War for Terrorism” (2007), The Journal Of Political Studies, Vol. 11;
Fernando R. Teson, “Ending Tyranny in Iraq,” Ethics and International Affairs, Volume 19, No 2, 2005,pp. 1-
20, www.onlinelibrary.wiley.com.doi. For US justification of WOT on the basis of just war doctrine, see for
example: Tamie Harrison, “On the war against terror as a just war”, October 20, 2009, available at
http://userpages.Umbc.edu, accessed on April 7, 2016. 9Amna Yousaf Khokhar, “Operation Neptune Spear: A watershed in war against terrorism”, Institute of
Strategic Studies Islamabad, available at www.issi.org.pk. See also Philip Sherwell, The Telegraph, May 7,
2011, available at www.telegraph.co.uk , accessed on March 24, 2016. 10The unprovoked attack claimed lives of 24 Pakistani soldiers including officers. See Noor ul Haq,
“Abbottabad and Salala Attacks 2011” (2012), IPRI Factfile available at
https://www.scribd.com/document/180506511/Abbottabad-n-Salala-Attacks-2011, accessed on April 14, 2014.
See also www.defence.pk portal, accessed on February 29, 2012. 11 Ibid 12 Many conferences were held on Afghanistan issue since the launch of American military campaign in
2001.The International Conferences on Afghanistan described as “Afghanistan and International Community:
From Transition to Transformation Decade” was held in Bonn on December 5, 2011, which was not attended by
http://www.un.org/Docs/screshttp://www.infomation/http://www.oldamericancentury.org/http://www.onlinelibrary.wiley.com.doi/http://userpages.umbc.edu/http://www.issi.org.pk/http://www.telegraph.co.uk/https://www.scribd.com/document/180506511/Abbottabad-n-Salala-Attacks-2011http://www.defence.pk/
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Congressional hearing/debate initiated on 8 February 2012 in the House Sub-committee on
Oversight and Investigation by American Congressman Dana Rohrabacher seeking “right to
self determination” for the people of Balochistan,14 which lies within the exclusive domain
of Pakistan, followed by tabling a bill/resolution on the same issue in the House of
Representatives within a short span of two weeks.15 Describing Pakistan a “disastrously
dysfunctional country”, reluctance of White House to lobby for subsidized sale of eight F-16s
to Pakistan and suspension of foreign military financing for the said sale by the American
Congress16 as well as its refusal to support Pakistan’s bid to join Nuclear Suppliers Group
Pakistan to record its protest on Salala incident. “Collection of Afghan Agreements with Official Text from
2001 to 2011” is available at reliefweb.int/report/Afghanistan/Afghanistan-agreements-collection-official-text-
2001-2011. For details of the conferences, see peacemaker.un.org/afghanistan-bonnagreement2011 and
www.cimicweb.org. See also Britta Petersen, “Bonn minus Pakistan”, The Express Tribune,
http://tribune.com.pk/story/302576/bonn-minus-pakistan/, accessed on April 29, 2016. 13Shahid R. Siddiqui, “Confine your operation to Afghanistan, Islamabad tells Washington”, October 12, 2010,
available at axisoflogic.com. See also “Pakistan: NATO attack inflames tense ties with US”, November 27,
2011, available at www.cnn.com. American CIA had calculated that Taliban cannot be defeated unless the
sanctuaries in Pakistan are destroyed with more attacks inside Pakistani territories. America planned and reacted
accordingly. See also “NATO air attack on Pakistan was self defence”, The Guardian, September 27, 2011,
www.theguardian.com; Britta Petersen, “Bonn minus Pakistan”, The Express Tribune,
http://tribune.com.pk/story/302576/bonn-minus-pakistan/, accessed on 24 March 2016. 14 Noor ul Haq, “Abbottabad and Salala Attacks 2011” op. cit.; Huma Imtiaz, “US congressman tables bill for
Baloch right to independence”, the Express Tribune, February 18, 2012, available at tribune.com.pk., accessed
on 24 March 2016. See also “US lawmakers raise issue of ‘Baloch self-determination”, DAWN Islamabad, 9 February 2012, p 14; “Senators criticize US interference,” DAWN Islamabad, February 10, 2012, p 3;
Najmuddin Shiekh, “Rohrabacher & Balochistan,” DAWN Islamabad, February 29, 2012, p 7. 15Ibid. 16 Obama Administration had promised sale of eight F-16s to Pakistan on subsidized rate of 270 million US
dollars with 450 million dollars American aid against the actually cost of 700 million US dollars so as to meet
its security needs and fight against terrorism. However, American Congress, on 29 April 2016, suspended the
Foreign Military Financing for Pakistan on the plea that these might be used against India. On 19 May 2016, the
House of Representatives passed the National Defence Authorisation Act, which required Obama
Administration to certify, before releasing the requisite aid, if Pakistan has launched desired operation against
Haqqani network, American military aid, funds or equipments are not used against minorities seeking religious
or political freedom and release of Dr Shakil Afridi, who was instrumental in locating and eliminating Osama
bin Laden. The last two conditions were included on the move of Rohrabacher. This in fact demonstrates lack of
American interest in the security needs of Pakistan, as it does not need logistic support or defence supplies
through Pakistan and has finalized phased plan for ultimate withdrawal of troops from Afghanistan. This is the
repetition of American betrayal to Pakistan in the 1990s, when in the wake of Soviet retreat and withdrawal
from Afghanistan; America had not only refused to deliver F-16s to Pakistan but declined to return the money
paid in advance. It is also unfortunate that US President Barak Obama in an interview to an American magazine had uttered the words to describe Pakistan a dysfunctional state. For details, see Anwar Iqbal, “F-16s right
platform for Pakistan’s counter-terrorism war: US” and “F-16 sale in jeopardy”, DAWN Islamabad, May 1,
2016, pp. 1 and 8. Muhammad Alam Khatak, Defence Secretary of Pakistan, and Chief of the Army Staff
General Raheel Sharif also raised the issue of F-16s with General Joseph L. Votel, Commander US Central
Command, who visited the Ministry and GHQ on 9th of May 2016. They shared concern of the Armed Forces
regarding suspension of grant of purchase of F-16s and necessity for Pakistan to fight the WOT. 24 May 2016
was the last date for Pakistan to bid for the purchase of F-16, which elapsed without any breakthrough, leaving
Pakistan to explore other options to meet its defence requirements. See Moed Yusuf, “ Two Pakistans” and “F-
http://www.cimicweb.org/http://www.cnn.com/http://www.theguardian.com/
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(NSG)17 depict that US has neither anything at stake in Afghanistan nor is concerned with
security needs of Pakistan or is interested to maintain any lasting friendship with Pakistan,
except for the advancement of her global political interests.18
The WOT embraced the whole of Pakistan like an octopus, grabbing all its spheres in
its fierce full clutches. Consequently, not only the political, social, religious, economic,
geographical, legal and moral fibers were critically affected but military doctrines were also
redefined, strategic policies reshaped and principles of foreign policy and international
relations reformed, so as to protect the security of Pakistan from being compromised.19
Militancy, terrorism, violence, ethnicity and intolerance cropped up in the society, which
created law and order situation beyond the capacity of the police to control;20 and thereby
inviting the Armed Forces of Pakistan to act in aid of civil power.21 This situation diverted
attention of the Armed Forces from their primary responsibility of protecting the country
against any external aggression to the internal security and fighting the menace of
radicalization, extremism, terrorism and militancy.22 Targeted explosions on military
16s issue raised with Centcom Commander”, DAWN Islamabad, May 10, 2016, pp. 1 and 9. See also Anwar
Iqbal, “US House imposes strict restrictions on aid to Pakistan”, DAWN Islamabad, May 21, 2016, p. 16. 17America supported India in her bid to join NSG and denied any such support for Pakistan. Despite the fact that
India has not yet signed NPT, President Obama supported India’s application to join NSG but denied the same support to Pakistan, who had also applied for its membership to be decided in NSG meeting held on 23-24 June
2016 in Seoul, North Korea. When Pakistan approached America, it was suggested to seek support of the 48
members NSG, instead of lobbing for American support. For details, see “India wins Obama’s support for NSG
bid” and Anwar Iqbal, “US asks Pakistan to seek NSG’s acceptance not individual endorsement”, DAWN,
Islamabad June 8 and 10, 2016, pp. 1 and 5. 18See Baqir Sajjad Syed, “Aziz cautions US against upsetting S. Asian Strategic Stability”, Anwar Iqbal, “China
opposes India’s bid to join NSG”, “Pakistan, US trade blame for bad patch in ties” and “Slipping Pak-US ties”,
DAWN Islamabad, June 10 and 11, 2016, pp. 1, 5 and 8. 19Lieutenant General (Retired) Ali Muhammad Jan Oarakzai, “Situation in FATA: Causes, consequences and
the way forward”, Policy Perspectives, Volume 6, Number 1, January-June 2009, Institute of Policy Studies,
Islamabad, available at www.ips.org.pk., accessed on March 27, 2016. See also Dr RaziaMusarrat, “US War on
Terrorism and its Impact on South Asia” (2007), Journal of Political Studies, Vol. 11, p2, accessed on 24 March
2016, citing Dr Noman Umar Sattar, “War against Terrorism: Implications for Pakistan”, National Development
and Security, Rawalpindi (Summer/2004), Volume XII, Number 14, pp. 31-34. 20Munir Akram, “Pakistan’s war on terrorism”, DAWN Islamabad, July 6, 2014, p. 8. See South Asian
Terrorism Portal Database at www.satp.org, Pakistan Institute for Conflict and Security Studies and Centre for
Research and Security Studies reports for 2015, which give details of the fatalities and analysis of terrorism related incidents in South Asia and Pakistan. 21Article 245(1) of the 1973 Constitution of Pakistan permits that “Armed Forces shall act in aid of civil power”
only when so called upon by the government. 22 Brigadier Raashid Wali Janjua, “Civil- Military Relations-The Impact of Internal and External Factors in
Reshaping the Balance of Civil Military Relations”, NDU Journal, 2010, pp. 27-46; Dr. Noman Omar Sattar,
“Terrorism: Dynamics of the new Wave”, Margalla Papers, 2009, pp. 22-39. Since 2002, military had been on
the hunt of terrrists in FATA consisting of seven districts i.e. South and North Waziristan, Bajur, Aurakzai,
Mohmand, Khyber and Kurram agencies. Miliitary had launched offencives in different discticts of the said
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installations and security forces,23 blowing up of girls schools, presence of huge quantity of
explosives and weapons, incapacity of law enfacement agencies to combat terrorism,
challenge to the writ of the government, prevailing sense of insecurity, economic disparity,
increase in foreign loans, price hike and poverty, weakening of political institutions and the
criminal justice system,24 threats of UN intervention by describing the Armed Forces
operations against the militants and terrorists as ‘non-international armed conflicts’ and
highlighting the allegations of violations of International Humanitarian Laws (IHL),25 are
said to be some of the consequences of WOT to Pakistan.
There is no denying the fact that Pakistan had been reluctant to join the US WOT for
multiple reasons; including evident threats to her security and sovereignty, constitutional
obligations to maintain friendly relations with neighboring countries, respect for UN Charter,
which protects sovereignty and independence of the nation states. However, despite having
provided for an effective judicature under Article 175 of its Constitution and declared in its
preamble and Article 40 the manifest desire and resolve to promote international peace and
agencies, which include operations in the name of Al-Mizan, Zalzala, Black Thunderstorm,Sher Dil, Rah-e-
Rast, Rah-e-Haq, Rah-e-Nijat, Koh-e-Safaid and finally Zarb-e-Azb launched on 15th day of June 2014 in North
Waziristan agency. 23 For example: GHQ attack on 10 October 2009, Mehran Naval Base Karachi attack on 22 May 2011, Badbher Airbase Attack on 18 September 2015, attack on Quaid-e-Azam International Airport Karachi on 4 June 2014,
attack on Army Public School Peshawar on 16 December 2014. 24For examples of the deteriorated law and order situation in the country, rampant terrorism, challenges to the
writ of the government and national security from different angles, see judgment of the Supreme Court in 21st
Constitutional amendment case cited as District Bar Association Rawalpindi v Federation (PLD 2015 SC 401).
See also Watan Party v Federation of Pakistan (PLD 2011 SC 997) p.1098 and Pakhtunkhwa Public Service
Coordinators, “Impact of Terrorism on Pakistan”,
http://www.kppsc.com.pk/pages/?Impact_of_terrorism_on_Pakistan accessed on May 15, 2016 25For allegations of human rights violations, see for example: The Hands of Cruelty published in 2012 and is
available at https://www.amnesty.org/en/latest/news/2012/12/report-exposes-hands-cruelty-pakistan-s-tribal-
areas/. The report was followed by a letter no TG ASA 33/2012. 016 dated 20 December 2012 of Mr John
Dalhuisen, Senior Director Research of Amnesty International, to Prime Minister Raja Pervaz Ashraf,
highlighting human rights violations in tribal areas and criticizing Actions (in Aid of Civil Power) Regulations
2011, for giving legal protection and impunity to Armed Forces for violation of human rights during the
military operations in tribal areas. “Torture in 2014” is available at
https://www.amnesty.org/en/search/?contentType=2561&tid=2034&term_node_tid_depth=1789&p=133 ,
accessed on March 31, 2016. See also Human Rights Commission of Pakistan, “State of Human Rights in 2015”, (Lahore: HRCP, 2016). Also see Niaz A. Shah, Islamic Law and The Law of Armed Conflict: The
Armed Conflict in Pakistan, (London: Rutledge, Taylor & Francis Group, 2011) pp. 134, 148-150. For
meanings of IHL, see The Hague and Geneva Conventions of 1949, which are generally regarded as the main
sources of modern IHL, which govern armed conflicts. This has been observed by the International Court of
Justice in legality of the threat or use of ‘nuclear weapons’, Advisory Opinion, 1999 I.C.J. 226, 256 (Jul 8)
declaring that “two branches of the law applicable in armed conflict have became so closely inter-related that
they are considered to have formed one complex system” - François Bugnion “Droit international humanitaire
coutumier” (2007), Swiss Review of International and European Law, pp 165-214.
http://www.kppsc.com.pk/pages/?Impact_of_terrorism_on_Pakistanhttps://www.amnesty.org/en/latest/news/2012/12/report-exposes-hands-cruelty-pakistan-s-tribal-areas/https://www.amnesty.org/en/latest/news/2012/12/report-exposes-hands-cruelty-pakistan-s-tribal-areas/https://www.amnesty.org/en/search/?contentType=2561&tid=2034&term_node_tid_depth=1789&p=133
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security, foster good will and friendly relations among all nations, and encourage settlement
of international disputes by peaceful means, Pakistan was portrayed as a terrorist and failed
state. It may be appreciated that constitution has been recognized as the supreme law of any
state and reflects the will of the people of that State.26 It lays down, inter alia, the guiding
principles of policy to be followed by various organs of the state; whereas, preamble of any
constitution describes in brief the need, objectives and contents of the ensuing constitution
and the issues to be dealt therein.27 Analyzed on this principle, international peace and
harmony emerges as a predominant will of the people of Pakistan; whereas “domestic
tranquility and common defence” are the manifest objectives of establishing the US
Constitution.28 It is in this backdrop and being a weaker nation confronted with serious
internal and external threats that Pakistan has been submitting to the American will and
compromising on US pursuit of militancy in Pakistan whereas US has been toeing its
doctrine of “common defence and domestic tranquility” which is associated with launching
offensives and challenging the sovereignty of other nations, as is evident in the Bush
doctrine,29 may that be at the cost of violating United Nations Charter30 or managing UN
resolutions in the name of individual and collective self defence31 in her favour and against
the country who might cause any potential or hypothetical challenge to the American
interests.32 The degree and frequency of such violations by US multiplied after the collapse
26Emmanuel Zafar, The Constitution of the Islamic Republic of Pakistan, Volume I (Lahore: Irfan Law Book
House, 1992), pp. 24-25. 27The State v Zia-ur-Rehman (PLD 1973 SC 49). 28Preamble to the Constitution of the United States of America 1789. American Constitution was presented to
states for ratification on 28th day of September 1787. Until 21 Jun 1788, nine states ratified it; while it was given
effect from 4th day of March 1789. 29The White House Washington, “The National Security Strategy of the United States of America 2002”
available at http://www.infomationclearinghouse.info/article.2320/1665.htm, accessed on March 2, 2012. The
doctrine emphasises on “counter terrorism across the globe and a policy of democratic regime change”. 30See Article 2(4) of the UN Charter which reads: “All members shall refrain in their international relations
from the threat or use of force against the territorial integrity or political independence of any state, or in any
other manner inconsistent with the purposes of the United Nations”. 31See for example: “UN Security Council Resolutions” 1269, 1368 (2001), 1373 (2001), 1377(2001), 1535 (2004), 1540 (2004), 1625, 1805 and 1963 (2010), available at http://www.un.org/Docs/scres. On the other
hand, Article 51 of the UN Charter reads: “Nothing in the present Charter shall impair the inherent right of
individual or collective self defence if an armed attack occurs against a Member of the United Nations, until the
Security Council has taken measures necessary to maintain international peace.” 32For example: “UN Security Council Resolutions” 1368 (2001), 1373 (2001), 1377(2001), 1535 (2004), 1540
(2004), 1963 (2010), available at http://www.un.org/Docs/scres, accessed on July 27, 2011. However, the said
resolutions do not define or differentiate “terrorism” viz-a-viz “freedom fighting” but stress the member states
to fight terrorism utilizing all available means, so as to ensure “international peace and justice”. For conflicting
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of Soviet Union and the incident of September the eleventh.33 Afghanistan, Iraq, Egypt, Syria
and even Pakistan, who has been graded as a terrorist state by and on the behest of US, are
the living examples of US interference in the name of right of self defence, democratic
regime change and execution of its hegemonic political order in the recent and current
history.34
The desire for peaceful co-existence is inherent in every nation and recognized as a
right of every nation state in the United Nations Charter, which provides for international
peace and security. This commitment of the comity of nations received a severe blow in the
aftermath of WOT and had devastating effects on the domestic peace, internal security and
sovereignty of Pakistan and other countries of the globe including America itself that had the
best security apparatus. The existing administrative structure and judicial system became
handicapped to combat the menace of terrorism. Consequently, many countries of the world
amended their security and anti-terrorism laws. Establishment of the Department of
Homeland Security, promulgation of USA PATRIOTS Act 200135 and The John Warner
Defence Authorization Act;36 New Control Orders Regime37 and Academic Technology
Approval Scheme (ATAS) 2007;38 Prevention of Terrorist Activities Act (POTA) 2002;39 the
views on definition of terrorism, see Nadeem Ahmad, “Conceptualizing terrorism: Problems of defining and
building consensus”, IPRI Journal XII, no. 2 (Summer 2012), 58-75. 33After winning the cold war, America prepared the blueprint to capitalize its surplus military forces and
defence resources to extend its hegemony and corporate privatization throughout the world. See for example,
“Project for old American Century, New American Century”, available at www.oldamericancentury.org,
accessed on 04 April 2016. See also Dr. Shahid Ahmad Hashmat, International Conflict Resolution: Role of UN
and OIC, (Islamabad: NUST Publishing, 2014), pp.1-2. For American justification of WOT on the basis of just
war doctrine, see for example: Tamie Harrison, “On the war against terror as a just war”, October 20, 2009,
available at http://userpages.Umbc.edu, accused on April 7, 2016. 34The White House Washington, “the National Security Strategy of the United States of America 2002”
available at http://www.infomationclearinghouse.info/article.2320/1665.htm, accessed on March 2, 2012; Adam
Richards, “George W Bush: the 9/11 terrorist attack and war on terror”, Chapter 13, Lesson 6,
transcript.study.com; Cui Bono, “9/11 false flag operation: Huge tipping point as state-sponsored terrorism is
exposed”, August 31, 2014, State of the Nation, available at stateofthenation2012.com. See also Zerohedge,
“George Bush Idiotic ‘Axis of Evil’ speech - How the Neocons Blundered the US into Confrontation with Iran
and Paved the Way for ISIS”, October 22, 2015, available at davidstockmancontracorner.com., accessed on
March 24, 2016. 35 “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism Act 2001” 36The Act allows American President to impose martial law and deploy troops anywhere in America to suppress
public disorder. 37Under the New Control Orders Regime, British Police and law enforcement agencies (LEAs) were given
unprecedented powers to detain any suspect without charging him for 28 days. 38Academic Technology Approval Scheme (ATAS) 2007 provided more strict criteria for foreign students
except those hailing from European Union.
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Pakistan Army (Amendment) Ordinance 2007,40 amendments in Anti-terrorism Act (ATA)41
1997 and establishment of National Counter-terrorism Authority (NACTA) in 2009,42
followed by promulgation of National Judicial Policy (NJP) 2009,43 the Actions (in Aid of
Civil Power) Regulations for FATA and PATA signed by the president of Pakistan on 23
Jun 2011,44 Investigation for Fair Trial Act 2013,45 Protection of Pakistan Act 2014,46
Constitution (21st Amendment) Act 2015 and Pakistan Army (Amendment) Act 201547 may
be cited as examples of the necessity of these laws and resolve of the concerned states to
eradicate and combat terrorism.
39Though repealed when the BJP government in India was ousted in 2004, POTA 2002 recognized confessions
before police as admissible in evidence and put the responsibility on the accused to prove their innocence. 40PLD 2007 (Supp-I) Federal Statutes 18). For details of the emergency and its subsequent validation by the
Supreme Court headed by Justice Abdul Hameed Dogar, see Tika Iqbal Muhammad Khan v General Pervez
Musharaf (PLD 2008 SC 178). General Pervez Musharaf had also previously proclaimed emergency on 12
October 1999, held the Constitution in abeyance and issued Provisional Constitution Order on 14 October 1999.
For contents of the emergency and the order, see PLD 1999 Central Statutes 446 and 448. The Ordinance was
promulgated by President General Pervez Musharraf in November 2007; however, it was not validated by the
Parliament. 41The Anti-terrorism Act was repeated amended, in the backdrop of WOT, vide Anti-terrorism (Amendment)
Ordinance (VI of 31 January) 2002 (PLD 2002 Central Statutes 202), Anti-terrorism (Amendment) Ordinance
(CXXV of 15 November) 2002 (PLD 2003 [Supp (Part I)] Federal Statutes 1014, Anti-terrorism (2nd
Amendment) Ordinance (CXXXIV of 23 November) 2002 (PLD 2003 [Supp (Part-I)] Federal Statutes 1070,
Anti-terrorism (Amendment) Act (XIII of 19 Mar) 2013 (PLD 2013 Federal Statutes 443), Anti-terrorism (2nd
Amendment) Act (XX of 26 Mar) 2013 (PLD 2013 [Sup] Federal Statutes 468), Anti-terrorism (Amendment)
Ordinance (VII of 14 October) 2013 (PLD 2014 [Sup (Part II)] Federal Statutes 172), Anti-terrorism (Amendment) Act (VI of 15 June) 2014 (PLD 2014 [Supp (Part II)] Federal Statutes 134), Anti-terrorism
(Amendment) (2nd Amendment) Act (VII of 20 June) 2014 (PLD 2014 [Supp (Part II)] Federal Statutes 203).] 42National Counter Terrorism Authority (NACTA) was established in 2009 to coordinate and receive
intelligence from all intelligence agencies, share real time intelligence amongst all law enforcement, security
and intelligence agencies, devise and executive counter terrorism policy of the government. NACTA was
created as an independent entity with an executive committee chaired by Interior Minister and responsible to the
Prime Minister. Although the authority had the legislative support in terms of NACTA 2013 (PLD 2013 [Sup
(Part I)] Federal Statutes 119), yet its formation and functioning is still shrouded with mystery in the
intelligence supremacy game or lack of seriousness of the government to activate NACTA. Recently,
government has assigned NACTA to form a core group consisting of representatives of the federal and
provincial governments, civil society, political parties and international groups to revisit and suggest reforms in
the criminal justice system within the scope of National Action Plan. See also Iftikhar A. Khan, "Criminal
justice system revamp plan approved”, DAWN Islamabad, May 27, 2016, p. 3 43PLD 2010 Journal 7. 44President Asif Ali Zardari promulgated Regulation F. No. 11(5) P/L/2011 for PATA and Regulation F. No.11
(6) P/L/2011 for FATA, published in Gazette of Pakistan Extraordinary, 566 and 567 of 27 June 2011 at pages
241-257 and 259-275. The FATA Regulation is also available at PLD 2012 Federal Statutes 46. 45PLD 2013 (Sup) Federal Statutes 45. 46 Protection of Pakistan Act 2014 was assented by the President on the 9th day of July 2014 and is available at
PLD 2014 [Sup (Part II)] Federal Statutes 177. Earlier Protection of Pakistan Ordinance 2013 (PLD 2014
Federal Statutes 42) was promulgated, which was followed by the Protection of Pakistan Rules 2013 (PLD 2015
Federal Statutes 5), promulgated by the federal government on 5th day of December 2013, as empowered under
Section 20 of the Ordinance. 47PLD 2015 Federal Statutes 1 and 3 respectively. The enactments were described as Act I and II of 2015
respectively.
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History of criminal justice system and security laws of Pakistan is deep rooted and
has its origin in the legislations made by the British in the Indo-Pak sub-continent.48 Their
intention was to rule the people and serve them only to the extent that they remain
subservient and obliged to their rulers. This view is forfeited from the facts that initially they
had different rules for the local and the European troops in India. Even two different
standards of punishments were followed for the native military personnel and European
Army officers.49 However, subsequently the Indian Army Act 191150 and the Indian Army
(Suspension of Sentences) Act 192051 provided uniform and consolidated laws for the whole
body of Indian troops serving as part of the British Army in India. Despite this discrimination
in the early days of their rules, the British reconciled the laws and administered justice
amongst the subjects placed in similar circumstances; and followed the principle of equality
before law to a reasonable extent. However, when it came to the political questions,
continued rule against the will of the people and suppression of their rights, ensued the
Movement or War of Independence 1857. As a consequent thereto, the stringent legislations
and graver punishments prescribed thereby could not impede the path of independence for
the people of sub-continent. Explosives Act 1884,52 Foreigners Act 1946,53 Works of
Defence Act 1903,54 Explosive Substances Act 1908,55 Prevention of Seditious Meetings
Acts 1911,56 Frontier Crimes Regulation 1901,57 Official Secrets Act 192358 did not succeed
48Indian Independence Act 1947 read with Government of India Act 1935 provides the basis for government of
the independent Pakistan till new constitution is promulgated. See 10& 11 GEO VI, Chapter 30. See also
Government of India Act 1935 (26 Geo V, Chapter 42), (Lahore: PLD Publishers, 1952), which also contains
the said 1947 Act. 49Imperial Gazette of India 1907, Volume IV, Chapter XI as cited in Manual of Indian Military Law 1937,
(Delhi: Defence Department, Government of India, 1937), pp. i-iv. Until 1824, death sentence was awardable
only to native officers and soldiers; while they were not awarded imprisonment or transportation. It was finally
in 1911, a consolidated uniform Act i.e. the Indian Army Act 1911 was promulgated, which repealed previous
Articles of Wars. See also Justice S.B. Malik, Compendium of Laws of Defence Services, (Allahabad: The
University Book Agency, 1991), pp. xlviii and xlix. 50 Ibid. 51 Ibid. 52M. A. Farani, Criminal (Local & Special Laws) Minor Acts, (Lahore: Lahore Law Times Publications, 2005),
pp. 520-527. 53Foreigners Act 1946, The Registration of Foreigners Act, 1939 and The Foreign Relations Act 1932 are
available in Arif Ali Mir, Manual of Foreigners Laws in Pakistan, (Lahore: Irfan Law Book House, 2005), pp.
1-24, 46-48 and 73-76. 54Manual of Pakistan Military Law (Volume II), (Rawalpindi: Government of Pakistan, Ministry of Defence,
1987), pp. 1295-1315. 55M. A. Farani, op. cit., pp. 527-528. 56Pakistan Code (Vol VI) 1966, p. 51. 57Kazi Muhammad Ashraf, Punjab Laws (Vol I), (Lahore: Mahmood & Company, 1964).
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in restoring peace and stability in the sub-continent; rather helped in the creation of two
independent states of India and Pakistan. After the independence, Pakistan also confronted
the law and order issues in Khyber Pakhtukhwa (KP), Balochistan and Bengal province of
East Pakistan now Bangladesh. Leaving aside India’s negative role in creating internal
disturbance and challenges to the integrity and security of Pakistan, which are still
continuing, neither the above said laws nor new laws such as Security of Pakistan Act
1952,59 East Bengal, Punjab and North Western Frontier Province Disturbed Areas (Special
Powers) Ordinance 1962,60 the West-Pakistan Maintenance of Public Order Ordinance
(MPO) 1960,61 Defence of Pakistan Ordinance 1965,62 Criminal Law Amendment (Special
Tribunal) Ordinance 196863 and Defence of Pakistan Ordinance 197164 succeeded in averting
separation of East Pakistan and creation of ‘Bangladesh’, as the political issues may not be
resolved through legislations to suppress the rights and desires of the people and seeking
their unconditional obedience. Continued failure or disregard to administer free and fair
justice breads unrest, disloyalty, disunity and ultimately irrational and exaggerated demands
of the people which may not be fulfilled, unless the rights of others or sovereignty of the
country is compromised. This has been experienced in the case of East Pakistan.
After the fall of Dhaka and installation of the government of Mr Zulfiqar Ali Bhutto,
followed a unanimous Constitution of 1973 created a hope for unity, fraternity, sovereignty
and rule of law in the West Pakistan now Pakistan. But the lust for continued retention of
power, self-righteousness and demand for extra provincial autonomy created another scene
for unrest and internal disturbance in the country, which necessitated promulgation of
Prevention of Anti-National Activities Act 1974,65 Private Military Organizations (Abolition
and Prohibition) Act 1974,66 Suppression of Terrorist Activities (Special Courts) Act 1975,67
58Manual of Pakistan Military Law (Volume II), (Rawalpindi: Government of Pakistan, Ministry of Defence,
1987), pp. 1277-1288. 59PLD 1952 Central Acts 288. 60PLD 1962 Central Statutes 608. 61PLD 1961 W.P. Statutes 30. The Ordinance was promulgated in pursuance of the Presidential Promulgation of
7 October 1958. 62PLD 1965 Central Statutes 262. 63PLD 1968 Central Statutes 92. 64PLD 1972 Central Statues 31. 65PLD 1974 Central Statutes 151. 66PLD 1974 Central Statutes 50. 67PLD 1975 Central Statutes 89. The Act was repeatedly amended during 1987-1991.
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Criminal Law Amendment (Special Court) Act 1976.68 However, the said laws could neither
prevent anti-Bhutto government movement of Pakistan National Alliance (PNA) nor save
him from the ill-fate of death sentence in Nawab Muhammad Ahmad Khan murder case.69
During his reign as Prime Minister, Mr Bhutto had to neutralize Khan Abdul Ghaffar Khan,
Nawab Muhammad Akbar Khan Bughti, Khair Bakhsh Marree factors70 in the provinces of
KP and Balochistan. The legislative measures though helped him maintain national integrity
and unity for which he had to even call the Armed Forces to act in aid of civil power and
declare persons subject to the Pakistan Armed Forces laws on active service71 and commit
the political leaders and workers of opposite parties having anti-state and militant elements in
preventive detentions and the prisons, yet he could not save his government.
General Muhammad Zia-ul-Haq succeeded Mr Bhutto and despite the factor of
‘jiyalas’, who were loyal workers of the Pakistan People’s Party and mourned on the ouster
of Mr Bhutto’s government, his execution and Movement for Restoration of Democracy
(MRD), succeeded in winning confidence of the people of the three provinces either in the
name of Islamization or bringing the opponents of Mr Bhutto in the political stream by
exalting them on higher portfolios of Governors or Chief Ministers. He also succeeded in
neutralizing Bhutto and jiyalas factor in Sindh, especially in Karachi, by creating and
patronizing Muhajir Quami Movement (MQM), later converted into and described as
Muttahida Qaumi Movement. Despite the fact that MQM gave recognition and representation
to the suppressed, neglected and poor class, but the consequences of its politics suffered by
the nation so far are disappointing and devastating. MQM followed coercive politics of
68PLD 1976 Central Statutes 189. The Act was further amended vide Criminal Law Amendment (Special Court)
(Amendment) Act 1976 of 23 August 1976 (PLD 1976 Central Statutes 593). 69Details of the PNA movement and the legal battle fought by the first lady to save her husband are available in
Begum Nusrat Bhutto v Chief of Army Staff (PLD 1977 SC 657-763)
70 Khan Abdul Wali Khan along with other Pakhtoon and Baloch leaders of his National Awami Party (NAP)
including Mir Ghoaus Bakhsh Bizinju, Sardar Khair Bakhsh Marri, Sardar Attaullah Mangel etc were arrested
and lodged in Sihala Special Jail for one month preventive detention in February 1975. NAP was also banned
under Section 6(1) of the Political Parties Act 1962 and its funds frozen, for allegedly acting against the
sovereignty and integrity of Pakistan; promoting and advocating self-determination for the Baloch and Pakhtoons, maintaining and encouraging private and tribal lashkars who endangered lives of the innocent
citizens and even attacked the law enforcement agencies in Lesbella/Balochistan. While Khan Abdul Wali Khan
moved the Supreme Court, Mr Bhutto also filed a reference in the Supreme Court, who decided that activities of
NAP and its leaders were prejudicial to the sovereignty or integrity of Pakistan, in the case entitled Islamic
Republic of Pakistan v Abdul Wali Khan (PLD 1976 SC 57). NAP changed its name to Awami National Party
(ANP) and is still playing its role in the national politics and had ruled the province of KP. 71See for example: Ministry of Defence Notification No. 3/75 dated 3rd day of January 1975 available in Manual
of Pakistan Military Law (Volume I), (Rawalpindi: Government of Pakistan, Ministry of Defence, 1987), p. 833.
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unconditional submission and obedience in its ranks and files, absolute authority with no
difference of opinion with Mr Altaf Hussein, intolerance and elimination of opponents, 72
establishment of torture cells, no-go areas and challenge to the writ of the government,
national security and sovereignty, with proven support of anti-Pakistan forces, more
specifically Indian intelligence agency RAW.73
When the political means to bring MQM on table and restore peace in Karachi failed,
the government had to launch operation with the assistance of Armed Forces and Law
Enforcement Agencies (LEAs) in 1991-1992. Anti-state and terrorist activities of MQM were
at the highest flow when General Asif Nawaz was the Chief of Army Staff, when even the
Armed Forces were not allowed to act in aid of civil power in Karachi.74 Kidnapping and
torture of military personnel enraged the Armed Forces and the government.75
Simultaneously, the government resorted to legal measures to check and punish illegal,
criminal, anti-state, anti-national and terrorist activities of MQM and other like-minded; and
enacted Surrender of Illegal Arms Act 1991,76 Terrorist Affected Areas (Special Courts) Act
72Mr Altaf Hussain himself is accused of abetting murder of Dr. Imran Farooq, who was his party member and
had challenged his authority. In view of Altaf Hussain’s repeated speeches against Ranger’s operation in
Karachi and repenting on past links with RAW by some members of MQM, a debate was initiated to burry the past and give MQM to reconcile its past, with minus Altaf Hussain formula. The move received a severe blow
when the enraged Mr Altaf Hussain reprimanded MQM leaders for failing to defend him for allegations of his
criticism against the Rangers and links with RAW. He responded the idea by forcing MQM legislators to resign
from the Parliament and Provincial Assemblies. For details see “MQM lawmakers tender resignation”, August
12, 2015, available at www.dawn.com/news/1200027/ and “Minus Altaf formula not acceptable” July 8, 2013,
available at www.dawn.com/news/102353/, all accessed on August 8, 2016. But as the misfortune would have
it, despite absolute control, Mr. Altaf alongwith some of his comrades was sacked by his own deputies after his
anti-Pakistan tirade on 22 August 2016, so as to save ban on the party. See Azfar-ulAshfaq, “Dr Sattar-led
MQM sacks four London-based leaders”, DAWN Islamabad, September 21, 2016, p. 1 73For alleged links of MQM with RAW, see “MQMs alleged links with RAW: report sent to Interior Ministry”,
The News, June 8, 2016; “MQM had links with India’s RAW agency, Saulat Mirza tells JIT”, April 30, 2015,
available at https://www.geo-tv/latest/98604-mqm-had-links-with-india’s-raw-agency-saulat-mirza-teels-jit,
accessed on August 8, 2016. 74Criminal activities of MQM and its militants in Karachi have also been discussed in Suo Moto case No. 3 of
2001 and Watan Party/Suo Moto case No. 16 of 2011 (PLD 2001 SC 1041 and PLD 2011 SC 997 respectively). 75 It may be recalled that Major Kaleemuddin was kidnapped on 20 June 1991 and tortured by MQM, who had
allegedly hatched a conspiracy to convert Karachi into “Jinnahpur” state, in connivance with Indian RAW. Nawaz Sharif launched operation clean-up in Karachi which was continued by Mrs Benazir Bhutto as well until
August 1994. Altaf Hussain was also one of the accused in Major Kaleem case and awarded 27 years rigorous
imprisonment in absentia. However, subsequently his sentence and convictions along with 18 MQM members
stood set aside, when the provincial government, on 13 August 2007, withdrew its appeal in Major Kaleem
case. For details see, “Major’s kidnapping, Jinnahpur 1992, 1994 anti-MQM operations”, available at
https://www.thenews.com.pk/print/28991/-majors-kidnaping-jinnahpur-1992-1994-anti-mqm-operations,
accessed on August 8, 2016. 76PLD 1992 Central Statutes 48.
http://www.dawn.com/news/1200027/http://www.dawn.com/news/102353/https://www.geo-tv/latest/98604-mqm-had-links-with-india's-raw-agency-saulat-mirza-teels-jithttps://www.thenews.com.pk/print/28991/-majors-kidnaping-jinnahpur-1992-1994-anti-mqm-operations
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1992,77 Special Courts for Speedy Trial Act 1992.78 This effort of the government with the
assistance of the Armed Forces helped curtail criminal and terrorist activities of MQM,
remove no-go areas, shatter confidence of the MQM leadership and workers, who either went
underground or exiled themselves. However, death of General Asif Nawaz and ouster of Mr
Nawaz Sharif government in April 1993 gave a big blow to the collective efforts of the civil-
military leadership to check growing lawlessness, terrorism and military in Karachi and other
parts of the country. Politically motivated and MQM-influenced police and judiciary in
Karachi were definitely some of the factors to contribute in high rate of criminality, terrorism
and militancy. MQM case is not exception to the notion that when the suppressed and the
depressed gain power, they tend to retaliate with multiplying force. Their actions and conduct
generally are irrational and motivated by retribution, reprisal and absolute authority with no
scope for pardon or compromise except unconditional submission to their will by the
opponents and opposite forces. This phenomenon of realism79 continues until those
suppressed by the (suppressed converted into) oppressors stand up against the later and
eliminate or treat them the way they were treated by the others after gaining power.
Accordingly, MQM was joined by other ethnic, linguistic and religious groups in
contributing law and order situation in Karachi; and challenge authority of MQM. The law
and order situation in Karachi started deteriorating to the extent that the economy of Pakistan
started recession rather than a boom. Efforts of the government to eradicate menace of bhatta
collection, sectarian violence, target killings and strikes with the existing laws did not bear
fruit. The government in its last effort promulgated ATA but its execution through the same
police and judiciary scared of personal and job security, influenced by political factor, with
lack of capacity and motivation, remained a challenge for the government. Depressed by the
ground realities and deteriorated law and order in the country, especially in Karachi and in
the wake of Mehram Ali case, the government decided to establish military courts in Karachi
through Armed Forces (Acting in Aid of Civil Power) Ordinance 1998.80 The military courts
77PLD 1992 Central Statutes 235. 78PLD 1992 Central Statutes 229. 79To understand the theories of realism, see for example: Thomas Hobbes, Leviathan, Chap XIII, pp. 56-57; and
“A Realist Theory of International Politics” in Hans J. Morganthau, Politics Among Nations (New York: Alfred
A knopf, 1973), pp. 3-15. 80PLD 1999 Central Statutes 156; The Ordinance was further amended by “Pakistan Armed Forces (Acting in
Aid of Civil Power) (Amendment) Ordinance 1998” (PLD 1999 Central Statute 160).
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tried heinous crimes and created deterrence by awarding deterrent sentences within a couple
of months, until the Supreme Court declared the said Ordinance ultra vires to the constitution
and suggested amendments in the 1997 ATA as well as ordered transfer of all pending cases
to the anti-terrorism courts (ATCs).81 The government kept on amending and improving the
ATA which became the basic and most authentic anti-terrorism law in the country, except the
establishment of Qazi courts in Kohistan district of KP province established through the
Shari Niazm-i-Adl Ordinance 199982 on the demands for enforcement of Shariah.
The law was delivering with leaps and bounds until the WOT ensued in the wake of
9/11 attack on the twin towers in New York. KP was the most affected by the American
WOT initiated in Afghanistan and being fought in Pakistan. Since the people of KP and its
adjoining tribal areas of FATA and PATA were considered as the sanctuaries and supporters
or sympathizers of Taliban and their Al-Qaeda allies, they sought refuge in these areas; hence
these areas and the people inhabited therein became the subject of American hunt and
pursuits of WOT. The questions of legality of US pursuits of the alleged accused or abettors
of 9/11 attacks and rationale for her drone strikes in these areas aside, the US WOT
challenged sovereignty and national security of Pakistan and contributed to the deterioration
of law and order in the whole of country, as the alleged accused scattered in the settled areas
of Pakistan, initially in search of safe heavens and subsequently for regrouping and re-
organization. Their criminal acts were converted into militancy, terrorism, and anti-state
activities in the settled areas against the innocent civilians, Armed Forces and LEAs with the
momentum in the American drone strikes and implied and direct support of the Armed
Forces and the government of Pakistan to the Americans.83 As a consequence thereto, when
all efforts to restore peace and writ of the government failed, the Armed Forces were called
in to conduct operations against the militants, miscreants and terrorists operating in any name
or manifestation or garb of non-state actors funded by the friends and foes.84 Since these
81Notification issued by the Ministry of Interior on 20 November 1998 whereby Armed Forces were called under Article 245 of the Constitution in Karachi. For details of the emergency order, resolution of the
Parliament and other relevant notifications, see “Sh Liaquat Hussain case” (PLD 1999 SC 504, pp. 681-683). 82Ordinance 1 of 16 January 1999 (PLD 1999 N.W.F.P Statutes 20). PATA falls under the administrative
control of the Chief Minister of Khyber Pakhtunkhwa in term of Articles 246(b)(i) and 247(1)(2)(3)(4) of the
Constitution. 83See generally Niaz A. Shah and Amnesty International Report op. cit. 84"Revisiting Counter-terrorism Strategies in Pakistan: Opportunities and Pitfalls", Asia Report No. 271, July
22, 2015, International Crisis Group Brussels, available at http://www.crisisgroup.org/en/regions/asia/south-
http://www.crisisgroup.org/en/regions/asia/south-asia/pakistan/271-revisiting-counter-terrorism-strategies-in-pakistan-opportunities-and-pitfalls.aspx
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military campaigns were aimed at neutralizing activities of the said anti-state elements and
incapacitating the said violent non-state actors, the government did not conceive to try them
through the special or anti-terrorism courts, especially those apprehended and detained in the
FATA and PATA during military operations. On the other hand, those tried before the anti-
terrorism courts were either awarded lenient punishments or acquitted of the charges for want
of sufficient incriminating and legally admissible evidence.85
This state of affairs aggravated terrorism, compromised life and liberty as well as
protection of property; while the law and the enforcers of law remained helpless. It also
adversely affected the national security and sovereignty of Pakistan, as it was regarded a
failed and insecure country for any international and multilateral social, cultural, economic
and educational activity. Suicidal and bomb attacks on places of worship, public places,
educational institutions, kidnapping and target killings of the philanthropists, businessmen,
intellectuals, moderates and even members of the Armed Forces, LEAs and opponents of the
terrorists and miscreants became order of the day.86 In such circumstances, the efforts to
bring the culprits to justice through the existing investigating and prosecuting agencies and
the judicial officers did not succeed to give a clear message to the criminals to stop;
otherwise they would be eliminated through the force of law.87 Simultaneously, voices were
raised for alleged violations of human rights and enforced disappearances. In order to address
the issues, the government, besides amendments in the existing laws, for example ATA,
promulgated Shariah Nizam-i-Adl Regulation 2009 for PATA, Actions (in Aid of Civil
Power) Regulations 2011 for PATA and FATA,88 Investigation for Fair Trial Act 2013,89
Protection of Pakistan Act 201490 and finally 21st Constitutional Amendment and Pakistan
Army (Amendment) Act 2015.91 It is a general perception that the said laws were
asia/pakistan/271-revisiting-counter-terrorism-strategies-in-pakistan-opportunities-and-pitfalls.aspx; Khyber
Pakhtunkhwa Public Service Coordinators, “Impact of terrorism on Pakistan", available at
http://www.kppsc.com.pk/pages/?Impact_of_terrorism_on_Pakistan, accessed on April 24, 2016. 85An e xclusive discussion with Brigadier Muhammad Amin, former Judge Advocate General, Pakistan Army
and G. M. Chaudhry, Advocate Supreme Court of Pakistan, at Islamabad on January 27, 2016. 86 Detail account of these events has been given in chapter 3. 87An exclusive interview with Brigadier Muhammad Amin, op. cit. 88President Asif Ali Zardari promulgated Regulation F. No. 11(5) P/L/2011 for PATA and Regulation F. No.
11(6) P/L/2011 for FATA, published in Gazette of Pakistan Extraordinary, 566 and 567 of 27 June 2011 at
pages 241-257 and 259-275. The FATA Regulation is also available at PLD 2012 Federal Statutes 46. 89PLD 2013 (Sup) Federal Statutes 45. 90PLD 2014 [Sup (Part II)] Federal Statutes 177. 91District Bar Association Rawalpindi v Federation of Pakistan (PLD 2015 SC 401).
http://www.crisisgroup.org/en/regions/asia/south-asia/pakistan/271-revisiting-counter-terrorism-strategies-in-pakistan-opportunities-and-pitfalls.aspxhttp://www.kppsc.com.pk/pages/?Impact_of_terrorism_on_Pakistan
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promulgated to validate the detentions of persons who had been apprehended and interned
without being tried since 2008 and condone any act or omission connected with their
continued detention and delay in trial.92 The prosecution regime thus in fact has been linked
with the Pakistan Army (Amendment) Act 2015. It may be recalled that this Act is not the
only effort to bring the culprits within the pale of courts martial or military courts.93 There
had been occasions when military and the political regimes had assigned and recognized the
role of courts martial or military courts as an alternative mechanism for the administration of
criminal justice in Pakistan.94 However, this role had not only been temporary but also
subject to both criticism and appreciation. Though efforts and sacrifices of the armed Forces
in the fight against terrorism are appreciable and commendable for the time being yet the
pros and cons of the present role assigned to the Army for maintenance of peace and
administration of criminal justice would be best calculated after the termination of the
assignment.
Statement of the Problem
Since the launch of WOT, Pakistan remained at the lowest ebb of its political,
economic and socio-religious debacles, and judicial fiascos. Pakistan had to experience
challenges to its sovereignty, security and criminal justice system. It had also confronted the