Mumbai attacks: Five years on, the case has ‘no leg to stand on’

Defence and prosecution at loggerheads as India awaits progress.

ISLAMABAD: For five years, the Mumbai attacks lawsuit has been nothing more than a blame game between India and Pakistan.

Despite the arrest and subsequent indictment of Zakiur Rehman Lakhvi, the alleged commander of banned outfit Lashkar-e-Taiba (LeT) along with six others in Pakistan in 2008, the case has made little headway as both countries continue to accuse each other of ‘not doing enough’.

Even though the allegations of masterminding, financing and facilitating the November 26, 2008 attacks on landmarks in India’s financial capital which killed 166 people are gravely serious and have been the cause of strain in relations between the two countries, the case has moved at a snail’s pace and remains, half a decade later, at the evidentiary stage.

“Justice demands evidence and this is a case of no  evidence,” Advocate Riaz Akram Cheema, a former member of the defence team, told The Express Tribune. Cheema feels the case has “no leg to stand on”, explaining that Lakhvi and the others were framed on the basis of the confessionary statement by Ajmal Kasab, the only gunman arrested, tried and hanged in India for “waging war, terrorism and murder”.

“Kasab’s confessionary statement could never be cross-examined,” he said, touching upon New Delhi’s refusal to allow the defence counsel to question Kasab. “[His statement] cannot be treated as evidence under Pakistani law,” he added. Cheema also questioned the admissibility of Kasab’s statement which, he said, was recorded 82 days after his arrest.

The murkiness worsens as the Federal Investigation Agency (FIA) – the prosecutor in this case – is at loggerheads with the defence panel.

The current defence lawyer, Advocate Rizwan Abbasi, blamed the FIA for indulging in delaying tactics, saying the prosecution has failed to provide a complete list of witnesses with recorded statements for cross-examination despite the court’s directions.

“The prosecution has managed to get 17 of the 137 witnesses cross-examined so far,” said Abbasi. “In the meanwhile, my clients have been languishing in jail for five years.”

A special judicial commission that visited India in September this year to cross-examine witnesses and collect other evidence recently submitted a dossier before the Anti-Terrorism Court (ATC).

FIA special prosecutor Chaudhry Azhar, who headed the seven-member commission, however, is upbeat about the new evidence and feels the case is heading towards ‘a decisive moment’.

“The commission collected ample evidence against the accused. We also recorded the statements of the witnesses that would help the prosecutors in Pakistan,” Azhar said, pointing to meetings with the chief investigation officer of the case as well as the doctors who had conducted autopsies on all 10 militants involved.

Azhar attributed the delays to the change of judges and the death of his colleague Chaudhry Zulfiqar, the special prosecutor who w.

Cheema maintained that evidence collection by the commission from India was inadmissible. “The entire dossier contradicts Section 507 (1) of the Code of Criminal Procedure and does not fulfill the requirements of Article 47,” Cheema said.

“Not a single statement of witnesses was personally recorded by the investigation officer (IO). He possessed only photocopies of the documents,” Cheema said, adding that the IO had not written a single legal document against the accused himself.

He claimed that the CDs provided by Indian authorities are also not originals. “Out of the record of 280 calls they provided as evidence against the co-accused, none was made to or from Kasab,” said the defence lawyer, who was also part of the commission. He is confident that the case will end in a matter of months, as it cannot be dragged on for long.

A day before the anniversary of the deadly attacks, Pakistan’s outgoing High Commissioner to India, Salman Bashir dismissed suggestions that Islamabad was conducting a ‘sham trial’ and assured New Delhi that it was being speeded up.

“The legal system [and] judicial system is more or less the same on both sides. Both need to cooperate more to get this expedited,” he said in an interview with Indian television CNN-IBN on Sunday.
Published in The Express Tribune, November 25^th, 2013.