Without Indian and Pakistani investigators joining hands, Pakistan's Mumbai trial may go nowhere.

On July 3, exactly a week after India and Pakistan decided that their premier investigation agencies would work together on the Mumbai terror attacks, the defence of the seven accused in the case in Pakistan were not particularly sweating.

And it was not just bravado, insisted the defence team's Malik Muhammad Rafique Khan. The prosecution had just informed the anti-terror court in Rawalpindi's high security Adiala jail that India would not send Ajmal Kasab to testify against the accused — Zaki-ur Rehman Lakhvi of the Lashkar-e-Taiba (LeT) and six others. If Kasab is not allowed to testify, the evidence that India has provided against the accused cannot come on record as per Pakistani law, contends Mr. Khan. And the prosecution's entire case in the Mumbai trial in Pakistan is built around Kasab's confessional statement, he adds.

India's ‘no' to Kasab being sent to Pakistan took nearly two months coming and now the prosecution is hoping the magistrate and the police officer who recorded his statement can come instead. When Pakistan's Interior Minister Rehman Malik aired the proposal, it had come under withering attack from the opposition in India. Even officials in the Ministry of External Affairs had bristled at the suggestion.

Though India has sent several dossiers on the Mumbai attack, the defence team is “least concerned,” courtesy “the inefficiency of the Indian investigators”. Refusing to comment on the quality of evidence provided by India, Mr. Khan said there was nothing substantial and the proceedings were further delayed by the number of witnesses.

On the charge that the case was being deliberately delayed, the defence's counter is that priority was being given to it — hearings take place almost every Saturday and the Mumbai case is the first to be taken up when the anti-terror court convenes. That the case gets heard every Saturday and has a judge dedicated to it almost exclusively is evidence of Pakistan's intent, according to Supreme Court lawyer Ahmer Bilal Soofi. “This is just one of those actions of the Pakistan government in this case which speak for themselves but went unnoticed in the acrimony.”

People privy to the deliberations within the Pakistani establishment after the Mumbai attacks insist that there was a sea change in the approach compared to the Parliament attack in 2001. “At each step — be it to register a case and arrest people — there was debate and discussion and all stakeholders were present: the Inter-Services Intelligence, the Interior Ministry, the Foreign Office, and the Punjab government. There was a conscious decision to do something. After the Parliament attack, we went into a denial mode and allowed tensions to build up,” said an official.

‘Big step'

“Yes, we first denied Kasab's links but a case was eventually registered,” points out Mr. Soofi, underlining that the Pakistan government in November 2008 was fairly new and could not do anything without the ISI's backing. “Registering the FIR was a big step. Second was the arrest of seven people. It went unnoticed but for the first time the establishment did not obstruct the arrest of its ‘assets.' The government could have released them under watch till evidence was gathered. If window-dressing was all we intended to do, no arrests were needed. When the public prosecutor submitted the case in court, the government admitted that it found the persons guilty. It is a huge statement for the government of Pakistan.”

Then why the slow pace is India's counter. In his recent talks with Mr. Malik, Union Home Minister P. Chidambaram let it be known that India thought the trial had not started in the real sense. The Pakistan Foreign Office and lawyers respond in a chorus: Kasab's case in India took 17 months when there was just one accused and the scene of crime was nearby. Look at the logistics in Pakistan: seven accused and their lawyers. There are about 100 witnesses and the lawyers will cross-examine them separately.

More bad news is the death of the state's “most confident prosecutor” Rab Nawaz Noon. Lawyers interpreted his appointment as another attempt by the state to demonstrate its seriousness in pursuing the case as he was not from the regular panel of prosecutors. “Now they have to change horses midway. That is a setback for the prosecution and could cause further delay,” said a lawyer.

This apart, both countries lack the technical and legislative capacity to try a trans-national crime which transcends more than two countries. “Trans-national crimes have different legal dynamics and, unfortunately, India and Pakistan don't have much experience in dealing with such crimes. Even if they had, it is always a difficult crime to prosecute,” explains Mr. Soofi who heads the Research Society of International Law which conducted a legal workshop on the Mumbai trials earlier this year.

“Generally, trans-national crimes are tried at one venue and all evidence is brought to that court. Most European countries have a mutual legal assistance (MLAs) mechanism in place to deal with such crimes. Evidence travels from one country to another on the conveyor belt of MLAs. Even if India and Pakistan sign an MLA, it is of no use because courts in both countries do not consider treaties as part of domestic laws. That is why what is being given to us by India through dossiers is inadmissible.”

A possible way out of this stalemate is to allow the Pakistani investigators access to witnesses and sites. But this would require Indian witnesses to depose in Pakistan's courts. Or, provisions of Chapter XL of Pakistan's Code of Criminal Procedure could be invoked which provides for setting up a commission to record Kasab's testimony as a witness and cross-examine him in India.

All this requires operational cooperation which has been missing from the beginning and the trial was split. “The actual crime was investigated in Mumbai and the conspiracy here … as it is, conspiracy cases are difficult to establish.” While Mr. Soofi sees the atmosphere of greater cooperation as a welcome change, the result of a joint investigation will still not be admissible as domestic laws are not in place.

An irritant

Even if there is actual cooperation, Hafiz Saeed remains an irritant and from what most security experts have to say, this will keep festering as Pakistan can ill afford to repeat a Lal Masjid. Explains Imtiaz Gul, author of The Al Qaeda Connection and Executive Director of the Centre for Research and Security Studies: “There are political and social compulsions; can we deal with the fallout in case Saeed is ‘harmed' in any way? We are still suffering the consequences of the Lal Masjid operation [July 10, 2007] involving a small group that has now resulted in the Ghazi Force. Taking on the LeT would probably result in far graver consequences [hence the tolerance, and reluctance to crack down on them]. How do you deal with the hundreds of thousands of students at Jama'at-ud-Da'wah [JuD] madrasas if they were to see the state coming down hard on them? The state has no capacity to take care of these youngsters. Public sector education is already a shambles.”

Saeed's lawyer A.K. Dogar insists that it is not as if the state did not proceed against him. But when the court asked the prosecution to furnish the notification regarding the ban on JuD, it was unable to do so. Also, he insists, India has not provided any substantial evidence except again for Kasab's statements.

Pointing out that the United Nations itself had issued certificates to JuD recognising its work in Sri Lanka after the tsunami and in the Neelum Valley in “Azad Kashmir” after the 2005 earthquake, he maintains that Saeed had left LeT just like politicians change parties. Now, he says, he is totally committed to social work: running 142 schools and four universities, besides hospitals. And, he has a tremendous following, evident in the court whenever his case was heard. “The atmosphere used to be extremely charged in the courtroom.”

As for India's insistence that the government at least stop him from making hate speeches — like his recent diatribes against “Indian water aggression” — Saeed's lawyers and many in the administration contend that he has the right to speak unless he tries to spread disaffection against the government. An FIR was lodged against him once in Faislabad for urging people to take to jihad but that was struck down.

This, like the frequent acquittals in terror cases, is the result of the legal system and the presence of Taliban/al-Qaeda apologists, says Mr. Gul. “Both countries suffer under the Anglo-Saxon legal system, complicated by domestic political compulsions. The system is tedious and fraught with loopholes which lawyers exploit. The conclusive evidence required to convict somebody is hard to define under this law. An additional factor is the Taliban/al-Qaeda apologists who are all over — the media, the judiciary, traders' community, within religio-political parties. While cases are difficult to prove, individual sympathies also run counter to the efforts to nab and convict terrorists.”

The bottom line is that while India and the U.S. can keep pushing hard for action, Islamabad has to negotiate through the minefield that its history has laid out for the nation. “Do more” is easy to say from the outside. Inside Pakistan the script is written not just by the government but …

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