The Pakistan Judicial Commission, which is in India to record the statements of four witnesses in the November 26, 2008 terror attack here, was on Friday denied permission by the Chief Metropolitan Magistrate's court to cross-examine the witnesses. Sources told The Hindu that such heated arguments ensued during the proceedings that India's Special Public Prosecutor Ujjwal Nikam was questioned about his locus standi by the Pakistani commission in opposing the request for cross-examination.
“We told the court that according to what was agreed, the Pakistan government was told in 2010 that the panel would only be allowed to record statements, and not cross-examine the witnesses. The court upheld our contention and refused the prayer of defence counsel,” Special Public Prosecutor Ujjwal Nikam, who represented the government of India and the government of Maharashtra, said.
The statement of the first witness, Rama Vijay Sawant Waghule — who had recorded the confessional statement of Ajmal Amir Kasab, the lone surviving terrorist — was recorded for more than an hour-and-a-half on Friday.
Earlier in the day, the proceedings started at 12.30 pm. Four defence lawyers of the alleged conspirator of the 26/11 attack Zaki-ur-Rehman Lakhvi and other accused arrived at 12.45 p.m.
“Mr. Nikam introduced the Pakistan Judicial Commission members to the Chief Metropolitan Magistrate and informed the court that two witnesses were present and their evidence was to be recorded,” a source privy to the court proceedings told The Hindu.
“Thereafter, advocate Khwaja Haris [defence counsel of Lakhvi] who was formerly the advocate general of Punjab province, told the judge that the defence lawyers would like to cross-examine all the witnesses in view of the Rawalpindi court order. He sought permission for the same and told the court about the news items which said that they would not be allowed to cross-examine,” the official said.
“Public Prosecutor of Pakistan informed the judge that the defence had the right to cross-examine the witnesses,” he added.
When the court asked Mr. Nikam about this, he mentioned the agreement between India and Pakistan and produced a letter dated October 5, 2010 written by the Pakistan Foreign Ministry. “The government of Pakistan has clearly informed the government of India that the commission will not cross-examine the witnesses,” Mr. Nikam is reported to have told the court.
Mr. Nikam also drew the court's attention to Section 285(3) of the Criminal Procedure Code, which states that if there is any arrangement between two governments regarding taking evidence of a witness, then it shall prevail.
When the Public Prosecutor of Pakistan was called to clarify the position on the 2010 letter, he toed the line of defence counsel of Lakhvi and six others instead of making his stand clear, the sources said. It was after this that the heated arguments took place, the sources said.
“Mr. Nikam got upset by that and he asked the court how the prosecutor could suppress the fact from the commission when they were informed about it by the government of Pakistan in 2010. He pointed out that the prosecution had remained mum on a vital issue and that the defence counsel should have insisted on cross-examination in the Rawalpindi court itself,” the official said.
Mr. Nikam told reporters that he told the court that the cross-examination of witnesses was unwarranted at this stage as Kasab's appeal was pending before the Supreme Court.
The arguments over permission for cross-examination went on for nearly two hours, the sources said. After lunch, the commission recorded the statement of Ms. Sawant-Waghule.
“She deposed before the commission and said Kasab had given voluntary confession of the attack. When she had asked him, why he willingly confessed, he had said his confession should inspire others, she told the court,” an official said.
Ms. Sawant-Waghule's statement was recorded under Section 164 of the Criminal Procedure Code. The sources said that as per the regulations, only the public prosecutors were allowed to examine the witnesses. On Saturday, the two prosecutors are set to examine Chief Investigating Officer Ramesh Mahale and two doctors from the state-run Nair and JJ Hospitals who had conducted autopsies of nine terrorists.
The recording of statements of all the three remaining witnesses is expected to get over on Saturday.
