PESHAWAR: A row between anti-terrorism courts and security agencies over the release of militants by anti-terrorism courts, coupled with the federal government’s inability to push through a critical anti-terror amendment bill, may paralyse Islamabad’s effort to root out terrorism, officials familiar with several briefings given to the government and the military establishment revealed.“We are heading for a paralysis,” a senior official commented. “The entire effort to catch these scums is going for six. You catch them and the next thing you know is they are out and back in business,” another frustrated official said.

Officials associated with the anti-terror effort attribute the recent surge in terrorist attacks in Khyber Pakhtunkhwa, among other things, to the acquittal of militants by anti-terrorism courts.

After a relatively long spell of quiet in terrorist activities, militants have struck back with a vengeance.

Official figures reveal a staggering spike in terrorist attacks in KP from December to March 20 with a total of 96 incidents, claiming almost two hundred lives and maiming hundreds of others. This is against a total of 101 acts of terror last year.

“Everyone worth knowing we had arrested is out, fighting us again,” a senior police official said.

At a briefing on the internal security situation last month, the government was informed that of the 1443 militants arrested, 695 had been bailed out mostly by appellate courts, while 48 others had been acquitted by anti-terrorism courts.

The acquittal rate was particularly high in the once-militants’ redoubt of Malakand, the briefing was informed.

The only conviction so far was delivered by an anti-terrorism court early this month where a militant, Noorani Gul was handed a sentence of 120 years in jail.

The overall conviction rate in terrorist cases, the official added, stood at five per cent. The situation became so alarming that officials from KP held a long meeting with senior military officials at the GHQ to find ways to overcome the problem.

Government officials cite several cases where, they believe, the courts refused to accept the prosecution evidence and set free extremely dangerous terrorists.

One such case, cited as an example, involved the arrest of two alleged suicide bombers along with a suicide jacket, 650 grams of high explosives, a detonating cord and a hand grenade in Peshawar.

The court in its judgment handed out in November last noted that any action must involve the use of explosives.

“In the instant case, there is no allegation that the accused used the explosives or were caught while using it or they threatened to use the same.

“So the inference here is that so long as the terrorist did not explode his suicide vest and kill people, it does not constitute a crime,” said a frustrated police investigator.

“And that the possession of a suicide vest does not mean that the bomber wanted to or threatened to use it. This is bizarre,” the official said.

The court in its judgment continued that explosives must be in the shape of a device and that the prosecution did not furnish any report to substantiate its case.

“A suicide jacket with a primer and a hand grenade are explosive devices. Do we need a report from any expert to prove that?” the official asked.

Also, the court noted that there was no allegation of a bomb blast and therefore, no case could be constituted under the 1997 Anti-Terrorist Act.

“Does this by implication mean that the suspect should have been allowed to explode the bomb?” the official said with a tinge of cynicism in his voice.

NO HOMEWORK: But legal experts blame police investigators and the prosecution for poor performance. “They don’t do their homework,” a legal expert said.

“The law requires them to submit examination report of explosives recovered and they don’t do that,” he pointed out.

In another case, an anti-terrorism court in Nowshera acquitted a man captured during a police raid in which a suicide bomber had blown himself up. The reason, according to the police, was the failure of a police official to appear before the court on account of his wedding.

But that may be just be the tip of the iceberg. Officials acknowledge that of more paramount concern is the trial of over two thousand suspected militants rounded up following the military operation in Swat in May 2009.

The militants - 50 per cent of them having been declared as black or extremely dangerous _ were captured by the military and continue to be in their custody.

“They were captured by the army, when the police was nowhere present in Swat,” a senior military official said.

There are many others who were seized by the intelligence agencies and later handed over to the police for legal requirements.But the problem, according to military officials and legal experts, is bringing the circumstance of the militants’ capture on record to fulfil requirements of the Anti-Terrorist Act.

The law requires witnesses and incriminating evidence to convict the militants while officials said that witnesses were usually too scared to come forward and testify before the courts.

Also, courts as a matter of law do not accept confessions made by militants to police and intelligence officials.

In one case, a security official said, the accused in a bomb explosion case in Peshawar had confessed to his crime and a copy of his video confession was submitted to the court, but he was acquitted and a statement by a police officer to testify as to the veracity of the confession was not entertained.

At the root of the entire issue, legal experts said, was the failure of the federal government to incorporate suitable amendments in the Anti-Terrorist Act, 1997.

An ordinance promulgated by President Zardari expired in May last year and a bill containing new amendments is still stuck in the Senate.

The KP government has informed the GHQ that it has no legal powers under the Constitution to amend the law on its own and that the federal government would have to push through the proposed amendments in the ATA, 1997 and also introduce a new counter-insurgency law to provide for the army’s role in the arrest, detention and transfer of militants to civil law enforcement agencies.

The counter-insurgency law, a senior government official said, might take two to three months to take effect.

“We have been pressing the federal government for the early passage of the amendments in the ATA. All state institutions, including the military, have weighed in to highlight the urgency of the matter. But somehow the federal government seems to be least bothered,” the official said.