237 common intention is different from conspiracy

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of conspiracy for terrorism, but these are few and far in between. 237 Common intention is different from conspiracy inasmuch as more than one persons jointly commit a criminal act, while in criminal conspiracy conspirators may be attributed separate roles of facili- tating, abetting or planning for the terrorist attack. All the perpetrators are supposed to have com- mitted the same act/s under consideration, but especially where the number of suspects is large, such cases are also weakened by lack of corroborative evidence. 238 Common intention shares the same fate as conspiracy, in such weak cases mostly being acquitted at trial. There are other sections of law in the ATA which are ostensibly proactive in nature, for instance linkage or membership of banned or ‘proscribed’ organizations, as they are called in Pakistan. There are a total of 60 banned organizations in Pakistan, according to the National Internal Secu- rity Policy (NISP) document, besides three outfits which have been outlawed by the UNSCR (UN Security Council Resolution) 1267 adopted on October 15, 1999. 239 The UN resolution has estab- lished a sanctions regime which Pakistan has signed, to cover individuals and entities associated with al-Qaeda, Osama bin Laden and/or the Taliban wherever located. 240 Most of these proscribed organizations are decreed terrorist organizations, terrorist fund raising charities, or organizations like Hizb-ut-Tehrir, which do not commit violence themselves but can promote extremism. The rationale of criminalizing linkage of persons with such entities is presumably to discourage mem- bership and stem recruitment, which in itself should prove discouraging to growth of such entities. This sort of deterrence is ostensibly inbuilt into the ATA, wherein the sections relating to member- Reactive Policing
50 Terrorism Prosecution in Pakistan, A Critical Appraisal ship or facilitation of terrorist organizations are punishable per-se. However, convictions in such cases rarely occur, since proving membership of such organizations is extremely difficult. 241 Con- sider this line of a judgment which is very common in such cases:- “..there is not an iota of evidence on record to prove the nexus of accused with any militant or- ganization or their involvement in any terrorist activities.” 242 This is almost typical of the multitude of cases presented in ATCs regarding membership of terrorist entities. Proving membership of a terrorist entity through investigation is not an easy task. Members of such organizations would hardly be expected to keep membership forms or organizational memo- rabilia, which can be recovered and tendered in evidence. Such members would also presumably keep their terrorist affiliations covert, and such linkages have to be uncovered by extensive inves - tigative work, involving a lot of circumstantial evidence. In fact, circumstantial evidence may be the only type of evidence linking such accused to the offence.

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