Eventually succumbing to enormous Indian pressure to take ‘prompt’ and ‘decisive’ actions against the alleged perpetrators, following the Pathankot terror attacks in India, the investigating authorities in Pakistan formally registered a First Information Report( FIR) last month on the basis of ‘leads’ provided by India. On the other hand, terming it ‘a small step in the right direction’, India has also expressed its disappointment that Jaish-e-Mohammad or its chief Masood Azhar had not been named in the said FIR. Similarly, deeming the mere registration of an FIR simply insufficient, Indian defence minister Manohar Parrikar has asked Pakistan to “take legal actions to Indian’s satisfaction”. Somehow following in the US footsteps in the region, now India has also resorted to typical ‘do more’ mantra to deal with Pakistan.
The Counter Terrorism Department (CTD) of Punjab Police has registered a criminal case against ‘unknown attackers’ in accordance with the version of Indian National Security Advisor Ajit Doval. The FIR includes the terrorism, murder, attempted murder and abetment charges. Pakistan decided to form a Special Investigation Team (SIT) to thoroughly probe the Pathankot case as soon as India shared the ‘leads’ with Pakistan. This team has recommended the registration of FIR in Pakistan. Now the SIT intends to visit India to collect evidence in connection with present case. Similarly, after the registration of FIR, the Punjab government has also formed a Joint investigation Team (JIT) for the same purpose, which is a mandatory requirement under Anti-Terrorism Act, 1997 in Pakistan.
As regards Pakistan’s criminal jurisdiction, the Pathankot terror attack is necessarily an extra-territorial offence. As a matter of fact, sections 4 and 5 of Pakistan Penal Code essentially recognize the principle of extra-territorial criminal jurisdiction in the country. Under these provisions of law, any Pakistan citizen, who commits an offence beyond the territorial limits of Pakistan, can be arrested, prosecuted and tried in the same manner as if he had committed this offence in Pakistan. Thus there is no legal anomaly as far as the registrations of the Pathankot case in Pakistan is concerned. However, there are very rare cases in Pakistan where an FIR has been registered for an extra-territorial offence.
The Pathankot case will definitely have to face a number of legal complexities in Pakistan. To begin with, the FIR has been registered after some delay, which would legally weaken the prosecution case in some way. Secondly, the FIR is based on the indirect version of NSA of a hostile country, who probably will not be available for interrogation or authentication of his statement before the investigating authorities in Pakistan. Similarly, he would also be unable to testify in the court of law in Pakistan in future. The place of occurrence is in another country to which SIT/ JIT have no independent access. Therefore, these teams would not be able to directly and personally collect necessary relevant evidence from the crime scene. All the principal accused persons in this case have killed by Indian security forces, about whom Pakistan don’t know anything. Presently India is also reluctant to allow Pakistan’s SIT to have access inside the Pathankot airbase.
Now if the government of Pakistan decides to try this case in the court of law, then it will have to rely on certain indirect and hearsay evidence, which hardly have any legal evidentiary value. Therefore, on such flimsy legal ground, any court of law in Pakistan is most unlikely to convict or punish any suspect in this case. It is a well-observed fact that various law courts in Pakistan have acquitted many individuals involved in even high-profile terror cases owing to non-availability or insufficiency of evidence. Owing to certain inherent flaws and shortcomings in the criminal justice system, the conviction rate in Pakistan is already very low.
Observably, the criminal proceedings of Pathankot incident initiated in Pakistan involve many legal defects and complexities. Nevertheless, the very act of registration of FIR of this incident is of great symbolic significance. It certainly has vindicated the long-adhered Indian stance vis-à-vis the alleged involvement of Pakistan in certain terrorist activities in India. Thus Pakistan has somehow legally and formally acknowledged these Indian claims. Now India is in a position to ask Pakistan to ‘do more’ to eliminate terrorism to its satisfaction and advantage.
It is very likely that India would try to malign Pakistan internationally on the basis of FIR of Pathankot incident. Beside this, India will also build pressure on Pakistan, pressing its old demand to ban all militant organizations traditionally associated with the Kashmir insurgency, namely the JeM and Let. Blaming Pakistan for giving ‘candid support’ to these militant groups, India has already moved the UN to put these organizations on terrorist list.
For a long time, both Pakistan and India have been accusing each other of planning and sponsoring various acts of terrorism in their respective territories. India has also gave a hard time to Pakistan by instantly pointing finger at various state institutions and non-state actors in Pakistan after every major terror attack in the country. The 2001 Indian Parliament attack, 2008 Mumbai attacks, 2015 Gurdaspur attack, 2016 Pathankot attack essentially substantiate this very fact. India also unilaterally suspended the bilateral dialogue process to ‘punish’ Pakistan after these incidents. On the other hand, at times, Pakistan has also covertly or overtly accused India of fueling terrorism in the country. However, despite a large number of terrorist incidents in the country, Pakistan has never seriously tried to expose the ‘foreign hand’ or ‘enemy country’ so far. Nor has it ever effectively raised its voice on any international forum.
Recently, the COAS General Raheel Sharif has also publicly spoken against the outside planners and facilitators of terrorism in Baluchistan and other parts in the country. In fact, whenever did Pakistan seriously decide to come down hard on India on terrorism issue, India readily employed the instrument of dialogue to pacify its resentful neighbour by announcing to resume the suspended talks process. After the unfortunate APS Peshawar incident, there were evolved a strong resolution and consensus in Pakistan to curb all the planners, perpetrators, facilitators and executors of terrorist attacks in the country. Pakistan also decided to raise this issue on all potential international forums including the UN. However, later in July 2015, through Ufa communique, not only did India succeed in lowering the political temperature and diffuse the current high anti-India sentiments in Pakistan, but also made Pakistan to get trapped into the purposeless negotiations once again, to its own advantage.
In October 2015, Pakistan handed over three dossiers containing evidence of Indian involvement in terrorist activities in Pakistan to the United States and UN separately. However, in December 2015, Indian foreign minister Sushma Swaraj again announced to initiate the ‘comprehensive dialogue’ with Pakistan during her visit to Pakistan to participate 5th Heart of Asia ministerial conference. But after terror attack on Pathankot airbase in India in January 2016, India unilaterally suspended the proposed Foreign Secretary-level talks asking Pakistan to take stern action against the alleged perpetrators. Thus, within months, India dexterously managed to shift Pakistan’s offensive international posture regarding cross-border terrorism to merely a defensive one, making Pakistan to be apologetic by taking actions against the alleged terror outfits in Pakistan.
Soon after the Pathankot terror attack, promising a ‘befitting response’, the Indian defence minister Manohar Parrikar stressed on inflicting pain on the perpetrators, probably in line with Israel’s ‘Operation Wrath of God’ in 1972. He is also best known for his so-called neutralize-terrorists-through-terrorists-only thesis. Similarly, the Indian NSA Ajit Doval is equally convinced to control Pakistan through non-state actors strictly in accordance with its so-called Doval doctrine. Presently the Doval-Parikkar binary is exerting maximum pressure on Pakistan by asking to take decisive action against terrorism to India’s satisfaction. The former is actively providing desired information to Pakistan, while the latter has been tasked to ask it to ‘do more’. Pakistan certainly needs to act cautiously.
