The special sessions court on Monday stated that there would be no reference to American national and Lashkar terror operative David Coleman Headley in the 26/11 judgment.
The court quickly thwarted the prosecution's attempt to anchor a part of its argument on Headley's plea of guilt. Special Public Prosecutor Ujjwal Nikam was stopped in his tracks when he urged the court to take “judicial notice” of Headley's admission that he made video clips of targets.
Judge M. L. Tahaliyani told Mr. Nikam: “I am not going to entertain the Headley part. I cannot take judicial notice. His plea of guilt is not before me. The evidence is not before me. I am not going to refer to Headley in the judgment at all. Why should this court bother?”
The court also rejected advocate Ejaz Naqvi's application for examining Headley as a court witness via video conferencing. Mr. Naqvi represents accused Sabahuddin Ahmed, indicted in the 26/11 case for allegedly conveying the maps made by another accused Fahim Ansari.
With the application, Mr. Naqvi had attached a copy of Headley's plea before a U.S. court, which he said had been downloaded from a website. The court noted that the copy of the plea was not an authentic document. At the same time, it ordered that the document be sealed in an envelope with none of the parties having access to it.
Seeking evidence from witnesses on the Headley link, Mr. Naqvi had moved a similar application last month. It called upon National Investigation Agency (NIA) chief S.C. Sinha Gujarat Director-General of Police (DGP) S.S. Khandwawala, and Rahul Bhatt and Vilas Varak who came in contact with Headley. This application was also rejected.
Advancing his submissions against Indian accused Fahim and Sabahuddin, Mr. Nikam said the two were “equally liable and responsible for the deaths of 166 people and the injuries to 234 people [during the 26/11 carnage].” They are, he said, “in the truest sense, conspirators behind the terror attacks of 26/11. They are not only instrumental behind the terror attacks but they are also the culprits, for helping the accused persons achieve their objectives of criminal conspiracy as revealed by [Mohammad Ajmal Amir] Kasab.”
The prosecution relied heavily on the testimony of Nuruddin Mehboob Shaikh, a Mumbai driver, who claimed to know Fahim and was in his room in Nepal when maps of target locations were given to Sabahuddin. Mr. Nikam deemed Mr. Shaikh “a star witness.”
As per the prosecution's case, Mr. Shaikh, an old acquaintance of Fahim, was on a visit to a friend's place in Nepal in January 2008. While strolling in Kathmandu, he happened to meet Fahim who invited him to his hotel room for a chat. It is here that Mr. Shaikh was introduced by Fahim to Sabahuddin. It is here that he saw the maps drop from Fahim's bag as he was about to hand them over to Sabahuddin. And it is here that he heard Sabahuddin ask Fahim, “Did you do the work assigned by [Zaki-ur-Rahman] Lakhvi?”
Mr. Shaikh's statement was recorded on December 5, 2008. Mr. Nikam argued that there was no delay in recording his statement, that the police had approached Mr. Shaikh and that the arrests of the two Indian accused were on the basis of the statement and not on “conjecture or surmise.”
Mr. Nikam also referred to Kasab's confession statement where he mentions Fahim and Sabahuddin.