The Indian magistrates who recorded and confirmed the confessional statement of Ajmal Kasab, key accused in the 2008 Mumbai terror attacks, can testify before the Pakistani court trying seven other men accused of involvement in the attacks if they volunteer to do so, senior Indian advocates say.
Pakistan on Sunday requested the testimony of the Indian magistrates, saying it would strengthen its case against the Lashkar-e-Taiba operatives facing trial in a Rawalpindi anti-terrorism court.
Defence lawyers there have challenged the admissibility and relevance of Kasab's confession.
Senior lawyers told The Hindu that the Indian government could favourably consider the request, noting that the law allowed for this testimony to also be provided in writing rather than only in person.
Senior advocate P.P. Rao said: “Neither the Government of India nor any other government in India can compel a magistrate who has recorded the confessional statement of an accused to appear in a court. What no Indian government can do, the government of a foreign country cannot do. Therefore, the Government of Pakistan has no jurisdiction whatever to compel magistrates in India who recorded the statements made by Kasab to appear in a Pakistan court as prosecution witnesses.”
However, if the magistrates were prepared to give evidence voluntarily, the Rawalpindi anti-terrorism court could send a list of questions to them and get their answers.
Mr. Rao said that if the Pakistan prosecution wanted to cross-examine the witnesses, even that could be obtained in the form of question and answers, and such an exercise would be permissible under the law.
Senior advocate Rajeev Dhavan, however, said: “The question of a Pakistan court examining our judicial magistrates does not arise. Ajmal Kasab has given a confession before a judicial magistrate in judicial proceedings. When this is the position, how can you interrogate a judicial officer as a witness?”
Dismissing the Pakistani request as “diplomatic posturing,” Mr. Dhavan said that under Indian law, no judicial officer can be subjected to cross examination in a court. What could not be done under Indian law could not be permitted under Pakistani law, he added.
Former Union Law Minister and senior advocate Shanti Bhushan said Pakistan's request could be considered if the magistrates volunteered to give evidence.
He said that if Kasab's confessional statement implicating some other accused persons facing trial in a Pakistan court required corroboration as per Pakistani law, then India could consider such a request.
“Failing to do so might result in acquittal of the accused implicated by Kasab, and there is the possibility of Pakistan blaming India for letting off the accused,” Mr. Bhushan said.
Advocate Prashant Bhushan also said that though there could not be any compulsion, if the magistrates concerned were prepared to be examined voluntarily as witnesses, then India could consider the request.
