OUTLINES OF RESEARCH
PROPOSAL FOR PH.D IN TERRORISM LEGISLATION
By:
M.
S. PISWAAL
Advocate
B.Sc., LLB, LLM(UK)
piswaal@gmail.com
TERRORISM LEGISLATION PROBLEMS AND SOLUTIONS
Today terrorism
has become global issue. The whole world including developed and developing
countries is facing terrorism threats of various kinds. This is a war against a
state within the state but the state cannot deal the terrorists according the
war laws. The state has to deal the terrorist within existing statute law or
some special law. Most of the states have formed some special laws for
terrorism. Basic and common errors in such laws are the legislative gaps and
procedural irregularities in prosecution. Being a special law, it has been
legislated without proper research and analyzing the ground realities. Often
such laws are formulated in urgency. For example,
The terrorism
laws are static but the terrorism is continuously changing its forms. There are
various degrees and categories of the terrorism but the states are trying to
deal every terrorist act under one clause. For example master mind culprits and
facilitators are not distinguished in such laws. There are different stages
till the commission of terrorist act. The state can take hold of situation
before it becomes worse. For example the state can tackle the situation at
amber light position without it becomes red. For different stages separate
legislation is needed but unfortunately only one law is available to tackle them.
Most importantly these laws are not reformatory in nature. The punitive nature
of these laws results in collateral damages which exaggerate the terrorism
activities. Norms of natural justice are also being violated in such laws. The
witnesses are not ready to come forward against the terrorist as there is no
law for their own protection. The witnesses have a number of obligations but do
not have single privilege. The evidence deficiency in prosecution results
either in wrong convictions or unjustified release of terrorist.
We can handle
the terrorism in better way if we formulate an ideal piece of legislation based
upon the principles of natural justice to deal the various categories and
stages of terrorism. We should also need to legislate for specific purpose of
prevention before commission.
HOW TO START CRIMINAL JUSTICE SYSTEM IN PAKISTAN
But we should be very careful about the dimensions of our
literacy rate. The most important question is that whether are we creating
stereotype clerks or our education system is producing intellectuals,
scientists and researchers. Unfortunately the answer is very alarming. Our
education system is failed to produce responsible citizens who are able to
contribute in the development process of the country. The quality of our CSP,
judicial and armed officers is evident from the delivered services. Executive
fails to maintain the law and order situation, Judiciary cannot dispense
justice in time, and army is beaten twice by the enemy. Why we are failed in
all dimensions of life? The answer is very much clear that is injustice
everywhere. It is due to lack of knowledge of law and its implementation in
practical life. Neither the people nor the authorities are aware of law and its
practical importance. We as nation are not accustomed to follow the law and
practice it. One of most important reason of this problem is legal illiteracy
of literate people.
Knowledge of law can be used as a weapon against the protection
of legal rights. So, it is the basic responsibility of every citizen especially
the literate youth to have know-how about law. The first lesson of this journey
is to know how to start the justice system. Administration of justice has
various branches and each is dealing with separate heads for example; civil,
criminal, revenue, family, banking, ect.
However to facilitate the public the administration of justice system can be
bifurcated in civil and criminal. In this Article, we will try to teach the
general public that how to start the criminal justice machinery.
There are two
kinds of offences in Pakistan Penal Code. First is cognizable and second is
non-cognizable. The cognizable offences are offences where the Police can
arrest the accused without warrant while in the non-cognizable offence Police
cannot arrest without warrant issued by the concerned magistrate. It has been
described in eighth column of the second schedule of Criminal Procedure Code,
1898, that whether the offense is cognizable or non-cognizable. Murder, rape
and robbery are examples of cognizable offenses while defamation is
non-cognizable offense.
If a cognizable
offense has been committed or is being committed, any informant whether he is
aggrieved or nor should report the concerned SHO in whose jurisdiction the
offence has been committed or is being committed. As per Section 154, Cr.P.C. the SHO is duty bound to register the criminal case
upon such information as described by such informant, even information seems
false though he cancel the same later on. For the purpose of registration of
criminal case, any person may inform verbally or in writing about the
information to the concerned SHO. Thereafter, the SHO shall conduct the
criminal investigation. If upon the investigation it founds that the
information is false, the SHO may drop the case under Section 156(2)(b), Cr.P.C. and report the
matter through proper channel to the concerned magistrate. The magistrate may
accept the report of SHO or order for fresh investigation or inquiry
accordingly upon such cancellation report.
If a
non-cognizable offense has been committed or is being committed, only aggrieved
person can report the matter to the concerned SHO. The SHO shall register the
case under Section 155, Cr.P.C. and refer the
applicant to the magistrate in whose jurisdiction the offense has been
committed. Thereupon, the magistrate may order the investigation and issue the
warrant of arrest of the accused or not if he thinks fit as per the
circumstances of the case. In non-cognizable case the Police cannot initiate
investigation without prior permission of the magistrate.
The Police will
complete investigation in all case within 14 days of the registration of the
case and submit the challan report under Section 173,
Cr.P.C. to the magistrate. If the Police fail to
submit the challan in prescribed time the aggrieved
party may apply to the concerned magistrate for initiation of trial. The
magistrate may order to start the trial, even upon incomplete investigation
report it he thinks fit.
If Police is
reluctant to register the case as described above, the informant may
straightaway report the matter to the concerned magistrate under Section 200, Cr.P.C. whether the offense if cognizable or
non-cognizable. The magistrate is duty bound to examine the informant and his
witnesses if any upon oath. The magistrate may call the accused if needs. The
magistrate may order for investigation or inquiry. It is alternative remedy
against the registration of FIR under Section 154 or 155, Cr.P.C.
The application can be moved directly to the concerned magistrate under Section
200, Cr.P.C. If magistrate is not empowered to decide
such case he will refer the complaint to the Session Court for example in
murder case ect.
If Police is not
registering the criminal case or not properly conducting the investigation, the
aggrieved party may complaint before the justice of peace (Additional District
and Session Judge) under Section 22, Cr.P.C. Upon
receiving such application, the justice of peace may direct the Police
authorities accordingly. Any party feeling aggrieved by Police regarding excess
or misuse of powers during investigation may also apply under the same section
before the justice of peace, who will issue direction accordingly.
All other
special offenses which have been described under any special law may be proceeded as per procedure mention in that specific law. If
no such procedure is available there, then above mentioned procedure shall be
adopted. The reporting of information about the offense is not only the
responsibility of every citizen but also his basic fundamental right. The
concealment of such information may result miscarriage of justice, hence, every
such information must be reported to concerned corners. If the applicant has
exhausted all above forums then he may file a writ petition describing all the
circumstances before the High Court under Article 199 of the Constitution
praying that criminal proceeding may kindly be initiated against accused.
Last but not
least, if a person cannot afford a lawyer or advocate he may file above
applications in person or may request the Court to provide a state council at
the expense of state. The Court may allow to appear in
person or order to present through public pleader at the expense of state.
As per a survey
60% offenses remain unaccounted for because they are not reported to the Police
or the magistrate. We are equally responsible for injustice because of not
reporting the offenses. Be a responsible citizen and report every
criminal information regardless it is minor or major. Police and
judicial officers should also facilitate and respect such responsible citizens
for such initiative. Responsible citizens and efficient officers is a deadly
combination for fighting against crime. Though administration of justice is
basic responsibility of a state but the public has vital role in this process.
No destination can be achieved without the first step.