Fewer than 20 hearings since the case was registered on February 12, one change of court, two changes of judge, the proceedings still in the pre-trial stage after one failed attempt at indictment, and a chance that the suspects may be formally charged by the court this week. This is where the 26/11 Mumbai attacks case stands in Pakistan.
Altogether seven men are facing proceedings in Pakistan for their suspected involvement in the planning and conspiracy behind the Mumbai attacks case. Thirteen others have been declared proclaimed offenders. The investigation was carried out by Pakistan’s Federal Investigation Agency (FIA) and according to observers, was unprecedented in many ways.
It contained an acknowledgement that the Lashkar-e-Taiba, a jihadi group with documented links to the Inter-Services Intelligence — some say these links no longer exist — was behind the attacks, the first time Pakistan has accepted that the group has carried out a terror attack on Indian soil.
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Zahid Hussain, a senior journalist and author of the best-selling “Frontline Pakistan”, a study of jihadi groups in Pakistan, said it was “the most thorough and professional investigation” that he had seen by the FIA. But a lawyer for the defence, Malik Mohammed Rafique Khan, told The Hindu it was “an overambitious investigation, maybe under international pressure”.
7 in custody
The seven men in custody are Zakiur Rehman Lakhvi, described as LeT operations commander and the “mastermind” of the attacks; Abdul Wajid alias Zarar Shah, also of the LeT and described as a “facilitator and expert of computer networks”; Hamad Amin Sadiq, who is charged with “facilitating funds and hideouts” for the Mumbai attackers; Mazhar Iqbal alias Abu al Qama, described as a “handler”; Shahid Jamil Riaz, who is described both as a facilitator for funds, as well as a crew member of a boat used by the attackers; Jamil Ahmed, described as a “facilitator”; and, Younus, also a “facilitator”.
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The hearings are now held near-weekly, at the designated anti-terror court in Rawalpindi’s famous Adiala Jail. Two anti-terror courts operate at Rawalpindi, and for several cases involving militant groups, such as this one, they move to the jail for the hearings.
The courtroom in Adiala is a massive hall normally used for jail functions, lawyers who have seen it said. One part of it is portioned off for the designated court. The judge sits at a table on the hall’s dais; prosecution lawyers and defence counsel are seated at tables just below him, and the accused sit behind them on benches.
Journalists and members of the public cannot enter the jail without special permission, so the proceedings were barred to them from the start. But in July, Judge Baqir Ali Rana of ATC-2, where the case was being heard previously, accepted a FIA request for an in-camera hearing. The judge also barred lawyers on both sides from speaking to the media.
As a result, very little of the proceedings comes out in the media. The Indian High Commission has little choice but to follow the developments in the court through the media.
Very briefly, almost in passing, Indian High Commission officials toyed with the idea of asking the Pakistan government to allow Indian diplomats to observe the proceedings, but dropped it as it could open up reciprocal demands. Surprisingly, the United States, which usually watches closely all court proceedings that involve its interests — in this case, the lives of American citizens killed in the attack — has also not asked to observe the trial.
“There are too many sensitivities involved in this case. This could not have been a public hearing,” said Amir Rana, author of “A to Z of Jihad”, a study of militant groups in Pakistan, and head of the Pakistan Institute of Peace Studies.
Charge sheets filed
But, the case is yet to reach a stage where sensitivities come into play. The proceedings are still in the pre-trial phase. The prosecution has filed two charge sheets, or “challans” against the seven suspects, but the framing of the charges by the court — their formal indictment after which the trial will begin — is still awaited.
At the end of May, the judge initially hearing the case in ATC-2, Sakhi Mohammed Kahoot, was shifted out of the circuit in a reshuffle. It took more than a month to find a replacement.
Justice Kahoot’s successor, Baqir Ali Rana, requested last month that the case be shifted from his court after a controversy over his attempt to frame charges and serve them to the accused in the absence of their lawyers.
The defence team is led by a top-grade Lahore-based criminal lawyer, 81-year-old Khwaja Sultan, who is representing Zakiur Rehman Lakhvi. It is not known how much he or the others in the team are charging for this case. According to bar-room buzz, complex criminal cases fetch lawyers anywhere between Rs. 5 lakh and Rs. 10 lakh. Four other lawyers are in the team: Malik Mohammed Rafiq Khan, also a veteran criminal lawyer; Ilyas Siddiqui, Tariq Dhamiyal and Shahbaz Rajput.
The defence lawyers accused the judge of mala fide in cutting them out of a crucial part of the proceedings, and said he was acting under pressure from Interior Minister Rehman Malik to speed up the indictment. The Minister himself was out of line, the lawyers charged, in declaring, as he had done, that the suspects would be indicted on a particular date and would soon be “convicted”.
The Lahore High Court ordered that the case be shifted to ATC 1, where Judge Malik Mohammed Akram Awan hears the case now. He may frame charges against the accused on November 23, the next date of hearing.
The government has appointed a special prosecutor for the case, Malik Rab Nawaz Noon, also a reputed criminal lawyer.
Legal experts believe that if and when the trial begins, the prosecution is going to come up against all sorts of difficulties. It is unprecedented that the same case is being heard in both India and Pakistan, with the prosecution here relying on evidence not only from the FIA, but also that provided by Indian investigators.
One of the obvious legal tangles is to do with Ajmal Amir Kasab’s testimony to the court, and how much the prosecution here is planning to rely on it.
“When the accused are tried together, the confession before a magistrate of one accused will be conclusive proof against that accused, and court may also consider it as evidence against the other accused,” said Mr. Rafique Khan. “But when they are being tried in different court, such a confession cannot be used against the other accused. Kasab’s confession is not admissible before this court.”
Also, the defence team will be watchful of the Mumbai trial court’s verdict, and its possible “influence” on the trial here.
Some experts had suggested that rather than carry out a joint investigation, it was in the legal area that both sides needed to co-operate to take the case forward.
Political issues
Along with the legal difficulties are political issues. There is a growing feeling that while Pakistan took many steps after the Mumbai attacks, India has not fully acknowledged any of this. Instead, it has remained inflexible over its “no talks” position.
The case will continue, Mr. Rana said, but “the more noise India makes, the more anti-India people here become,” and the less and less interest among the powers-that-be in Pakistan to fast-track the proceedings.