Pakistan Journal of Criminology

Vol.11, No.3, July-2019 (163-167)

Definition of Terrorism and its Application in Pakistan

Kamran Adil (PSP)
Conspectus
The latest judgment of the Supreme Court of Pakistan in case of Ghulam
Hussain vs. the State1 is an attempt to interpret the codified definition of
„terrorism‟ in Pakistan‟s anti-terrorism law. Before entering into the legalese of
the judgment itself, it is imperative to ask this question: Why should the Supreme
Court of Pakistan venture to interpret the definition of „terrorism‟? There are two
chief reasons that led the Supreme Court to look into the definitional aspects of the
terrorism. The first reason is that the criminal justice system in vogue empowers
police to control the entry of a victim into the system by allowing him to register
or to deny registration of a criminal case. The denial or entry into the criminal
justice system is permitted by police on their own terms, and to dictate these
terms, the application of relevant law on information received by police becomes
pivotal. In the arena of the anti-terrorism law, applying the anti-terrorism law on a
formal criminal case (through the First Information Report2 (FIR)) by police
becomes the nodal point, on which, all the subsequent criminal proceedings
depend. In a predatory criminal justice system with the propensity to accord
evidentiary value to the FIR by the judiciary, the application of terrorism law on a
criminal case results in excessive litigation with regards to application of terrorism
law by police on the information received by the complainant. The application of
terrorism law on a formal criminal case not only makes it graver but also affected
the applicable procedure that allows remand of an accused up to thirty days3 as
against fourteen days under the ordinary process. Its application also enabled
constitution of a joint investigation team4 and trial in an anti-terrorism court. The
controlling effect of the application of terrorism charges by police in a criminal
case has become a bane in itself and may be the Supreme Court wanted to arrest
this trend by providing a more definite definition of terrorism. The second reason
that must be noted is that during a trial, a terrorism court looks at evidence of an
act and its effect on the society at large instead of looking at the evidence of an act
and the motive or design behind it; hence, giving rise to two approaches that may
be categorized as „Effect-Based-Approach‟ (EBA) and „Object-Based-Approach‟
(OBA). As both the approaches were backed by the case law, the Supreme Court

1
Criminal Appeals No. 95 and 96 of 2019, Civil Appeal Non. 10-L of 2017 and Criminal
Appeal No. 63 of 2013. Available at
[Link]
2
Section 154 of the Code of Criminal Procedure, 1898.
3
Section 21 E of the Anti-Terrorism Act, 1997.
4
Section 19 of the Anti-Terrorism Act, 1997.
164 Kamran Adil (PSP)

noted that it remained „divided‟5 on the issue, and it was imperative to „examine
and scrutinize‟ all the precedent cases. In doing so, the Supreme Court has offered
its reasons, which will be stated in second section of this write up. Insofar as the
instant case is concerned, the facts as noted in the judgment6, link the matter to
post-conviction or appellate proceedings.

Reasoning
After contextualizing the issue of definition of terrorism, it is now
apposite to look at the reasoning offered by the judgment. The judgment has been
authored by the Chief Justice Mr. Asif Saeed Khosa who headed a larger bench of
seven judges to articulate determinative test for distinguishing terrorism cases
from ordinary cases. He had the advantage of authoring a judgment on the subject
in 20047, excerpts from which he reproduced in the latest judgment. The crux of
his judgment, to which, his fellow judges agreed, was that the definition of
terrorism was to be punctuated by object and nexus as required by the statutory
language and earlier case law. On behalf of the Bench, he challenged the contrary
view that the definition of terrorism was not controlled by object and nexus and
mere terrorist acts were sufficient to constitute the offence of terrorism. The
reasoning employed by him can be summed up for the sake of brevity: First, he
noted that the first anti-terrorism law was introduced in 19748 in Pakistan, which
was sans a definition of terrorism. It only contained a reference to the term
terrorism in its Preamble. On the other hand, the latest anti-terrorism law9
provided detailed definition of the term „terrorist act‟, which was amended by
definition of the term „terrorism‟10. He noted that the courts kept on interpreting
the term „terrorist acts‟ in their judgments and did not fully take into account the
„conceptual transformation‟11 introduced by the amendment that changed the
diction from „terrorist acts‟ to „terrorism‟.

5
Para 10 of the judgment.
6
Para 2 of the judgment noted that Ghulam Hussain was convicted for killing two minors
by an anti-terrorism court, and after unsuccessful appeal at the High Court, he was allowed
a leave to appeal to „reappraise‟ the evidence.
7
Basharat Ali vs. Special Judge, Anti Terrorism Court II, Gujranwala (PLD 2004
Lah 199)
8
The Suppression of Terrorist Activities (Special Courts) Act, 1974.
9
The Anti-Terrorism Act, 1997.
10
The term „terrorist act‟ was substituted with the term „terrorism‟ through the
Anti-Terrorism (Second Amendment) Ordinance, 1999.
11
Para 8 of the judgment.
 Pakistan Journal of Criminology 165

Secondly, due to divergent case law, there was a „controversy‟12 in the

Supreme Court about the definition of the term „terrorism‟. In true judicial
tradition, the judgment has documented the excerpts from both sets13 of
judgments i.e. (a) object controlled definition and (b) effect/acts
controlled definition. He has distinguished the two sets of judgments
chiefly on the ground that facts of category (b) cases related to „personal
purposes‟14.
Thirdly, the judgment squared itself with the principles of criminal law
that require mens rea (guilty act) and actus reus(guilty act) to constitute
an offence. The reasoning is very persuasive and makes perfect sense.
Fourthly, the formulation of „terrorism‟ through amendment in 1999 in the
anti-terrorism law, it was observed was akin to the international trends of
legislation in countries like the United States15, the UK16, the Northern
Ireland17, India18 and Australia.
Fifthly, the judgment recorded that with the exception of the Attorney
General for Pakistan, all chief law officers of the provinces and territories
agreed with the object controlled definition of terrorism. The Attorney
General, the judgment noted, argued that the effect of section 6(3) of the
Terrorism Act, 1997 must be examined by the Court. Section 6(3)
unequivocally states that the use or threat of use of any weapon, explosive
or firearms will „satisfy‟ the constitution of „terrorism‟. The judgment
opined to „…read down the statute to save the main Act and its
purposes…‟19. The reading down of the statute has been balanced by the
judgment when it implored upon the legislature „to have a look at the said
provisions‟20.
Finally, the effect of the offences stated in the Third Schedule of the Anti-
Terrorism Act, 1997 have also been discussed. The judgment clearly

12
Para 1 of the judgment.
13
Para 10 records the judgments that support the object controlled definition of
terrorism, whereas Para 11 records the judgments that support the effect/acts
controlled definition of terrorism.
14
Para 12 of the judgment.
15
Section 802 of the Uniting and Strengthening America Act by Providing Tools
Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act, 2001.
16
Section 1 of the United Kingdom‟s Terrorism Act, 2000
17
Section 58 of the Northern Ireland (Emergency Provisions) Act, 1996
18
Section 3 of the Prevention of Terrorism Act, 2002.
19
Para 14 of the judgment.
20
Para 14 of the judgment.
166 Kamran Adil (PSP)

states that these offences (like kidnapping for ransom21 or acid/corrosive

substance throwing cases) were not „per se’ offences of terrorism and the
courts should punish them as offences of Third Schedule.
IMPACT:
The judgment has been authored by the Chief Justice Asif Saeed Khosa
who has an established reputation in interpreting criminal law in Pakistan. The
fact that no judge added his reasons to the judgment shows the trust of his fellow
judges in him. The principal decision of choosing between the two approaches i.e.
Object-Based-Approach (OBA) and Effect-Based-Approach (EBA) has been
made by the judgment; by doing so, the court also aligned jurisprudence on the
subject with the international perspectives that link terrorist acts with object or
design22. The immediate impact of the judgment is delinking the terrorism law
from cases of „personal enmity and private vendetta‟. The Court noted:
“It is further clarified that the actions specified or mentioned in
subsection (2) of section 6 of that Act do not qualify to be labeled
or characterized as terrorism if such actions are taken in
furtherance of personal enmity or private vendetta”23.
The consequential legal superstructure (based on further case law or
legislation) may flow from this principal decision in coming years on the
following points:
1. How should police be regulated in their powers to apply terrorism
charges in ordinary criminal matters? Should wrong application of
law be penalized?
2. What should be the role of a prosecutor in applying terrorism charges
on a case? If a prosecutor is empowered to apply the terrorism
charges, how to regulate his powers?
3. How to cleanse the criminal processes from mingling/mixing
information with evidence at the time of registration of a criminal
case?
4. What should be admissible evidence for OBA? How to prove the
relationship of an act with an object in terms of evidence?
5. The judgment has surely raised the bar for the investigation agencies
by adopting OBA as the investigation agencies/police will now be
obliged to collect evidence on both actus reus and mens rea as
required by the judgment. What is to be done by police leadership to

21
Section 365-A of the Pakistan Penal Code, 1860.
22
Para 15 of the judgment.
23
Para 16 of the judgment.
 Pakistan Journal of Criminology 167

address this aspect of the investigation especially in the context of

counter-terrorism financing under the much rigorous requirements of
the Financial Action Task Force regime?

6. By embracing OBA, has the judgment not required judges to follow a

more onerous approach? Are there any guidelines that can be provided
to trial judges to ensure legal certainty and consistency?

By and by, Ghulam Hussain Case has tried to underline the fact that
constructive interpretation of law can direct and shape the legal
processes that affect the adjudicatory processes affecting public at
large; simultaneously, it evinced that the executive and legislature
must follow the direction set by the judicature to ensure that the rule
of law prevails in the country.