Anujan wrote:The paki court prosecuting Mumbai attackers has ruled that the evidence collected by the paki commission that visited India is illegal and inadmissible in court. The court has ruled that a new commission may be formed and sent to India
***Long Post
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Least surprising.
Having known Pakistani Perfidy, anybody could have easily guessed correctly that the announcement, two years back, of a Judicial Commission to visit India to record evidence would have ended up like this. One didn't need to be an Einstein to predict that. But, Pakistan went through all the motions and for over two years too to do so and in the process would also seek refuge under the 'independence of judiciary' excuse to close this chapter. One should now expect that it would also now blame India for this ruling by the ATC, Adiala.
At every turn, Pakistan has learnt to use its adversity to its advantage, especially against two countries, India and the US. The US might have derived a lot of benefits even while appearing to be taken for a ride by Pakistan; but, it is doubtful if India has much success to report.
Just take this Judicial Commission issue. It started with Ajmal Kasab being included as one of the accused in the case at ATC, Adiala. The Judge indicted seven but treated Kasab (Qaidi No C-7096 in Mumbai) separately as he was held in another country. Lakhvi's lawyer argued that Kasab should either be extradited to Pakistan to stand trial in the same court or his confession statement to a Mumbai Magistrate could not be admitted as evidence. I suspect that the indictment came on the same day that Man Mohan Singh was visiting the US in November, 2009. Serendipity, nothing more. Lakhvi challenged the indictment in the jihadi-pasand Lahore High Court. The LHC rejected the challenge against framing of charges but said significantly that 'objections could be raised during evidence'. The seeds for the rejection of the report of the TSP Judicial Commission were sown then. Then, Lakhvi filed another application in LHC asking for acquittal in the case. It was while delivering this judgement that the jihadi-pasand LHC ruled that Ajmal Amir Kasab's confessional statement could not be used against the accused. Then Lakhvi challenged separation of Kasab from the rest, once again in the jihadi-pasand LHC. That court then ruled that Kasab’s trial could not be separated from that of the seven accused. Now, the prosecution was in a bind (or, more precisely, pretended to be so). Of course, all these were little acts of drama to hoodwink India.
The prosecution therefore asked the ATC, Adiala to declare Kasab as a 'proclaimed offender'. The Learned Judge, who had refused to do so a few months earlier, now accepted an application from the prosecution for Ajmal Kasab to be declared a fugitive. The defence lawyers argued against this successfully claiming that Kasab's whereabouts were known and he was not 'willingly avoiding his appearance in a Pakistani Court of Law'
{Pakistani Court of Law, what an oxymororn} Lakhvi's counsel told the court that Pakistan government should approach its Indian counterpart to bring Kasab to Pakistan to be tried along with the other accused. The ATC, Adiala thereafter rejected the prosecution's appeal to declare Kasab as a fugitive from law. Then, the Defence, the Prosecution, the State and the Court enacted another drama. Now, the Prosecution (GoP) said they would issue a Red Corner Notice through Interpol for production of Kasab in ATC. The Defence opposed it saying that RCNs were only for fugitivs and not for those held in custody in another country. The prosecution
reluctantly gave up the RCN idea as well. Then the prosecution went in appeal to the LHC on this issue of declaring Kasab & Ansari as proclaimed offenders and de-linking them from the trial of the seven accused. This was sometime in March 2010. It won't be settled by the jihadi-pasand LHC until 2011. All this while, Kasab's trial was still on-going in Mumbai. The Indian foreign secretary, Ms. Nirupama Rao, also ruled out categorically 'handing over' Kasab to Pakistan. The prosecution went in appeal against the ATC judgement on Kasab's status, to where else, the same jihadi-pasand LHC bench at Rawalpindi, where it was rejected. In the meanwhils, as this tamasha was continuing, Rehman Malik said that the trial would be over in a few months and a verdict announced. This was in May 2010. Asked about the slow pace of the trial initially, Mr. Malik clarified that “once upon a time” the evidence was not sufficient. But with the combination of the information received from India and the evidence developed in Pakistan, “we now have credible information.”
The prosecution sought more time from ATC, Adiala to gain access to Kasab (and Fahim Ansari as well). One can easily see how every opportunity was used by everyone to delay and blunt the proceedings. Of cousre, in the meanwhile, Kasab had been given a death sentence by a Mumbai court. The Pakistani Prosecutors now gave India the arrest warrant issued by ATC, Adiala ! Pakistan formally requested for the extradition of Ajmal Kasab and also requested Indian magistrate and police officials to testify in the ATC trial. This request was to keep India off-balance and take the initiative as the SAARC meeting was coming up. the trick worked. After the Thimphu meet, Ms. Nirupama Rao said that Gilani explained judicial difficulties that Pakistan was facing and the Indian PM decided to 'look forward and not backwards'. We know that the resumption of ties was made then and there.
The Defence lawyers now argued at ATC, Adiala that Kasab cannot be tried for the same offence twice now that a
competent Indian court has already found him guilty and awarded punishment. In the meanwhile, India had given to Pakistan the confessional statement of Kasab (in English & Hindi). Now, Lakhvi's lawyer argued that the confession was not given in a Pakistani court, so Kasab cannot be named as a co-accused in the case or be tried. Suddenly the 'competence' of the Mumbai court had vanished. With Foreign Secretaries' meeting three weeks away (to be followed by the meeting between Foreign Ministers), the Pakistani SC said that Kasab's confession could be admitted in a Pakistani Court of Law. In fact, the trial of the seven suspects was adjourned without any proceedings apparently due to concerns among Pakistani authorities that any adverse developments in the court could impact talks with India. In early July 2010, GoP formally informed ATC, Adiala that the latest Indian dossier said Ajmal Kasab could not be sent to Pakistan to testify against the accused. The government lawyer said the anti-terrorism court could now make a request for the Indian magistrates and a police officer who had recorded Kasab's statement to come to Pakistan to testify. On July 10, 2010, the ATC Judge issued a fresh arrest warrant for Kasab. In August, Pakistani prosecutors filed an application seeking permission for the Indian Magistrate and a police officer to depose via video conferencing. In the meanwhile, GoP also floated the idea of a judicial commission to visit India to interview 24 key witnesses, including Kasab, the magistrate who recorded Kasab’s confession and the police officer who led the probe into the Mumbai attacks. On October 16, 2010, the ATC Judge said the case could not proceed unless key witnesses like Ajmal Kasab and Fahim Ansari were examined. The prosecution then sought four weeks from the court to complete various formalities. Then, on November 6, just a few hours before the arrival of the US President Barack Obama in India, Pakistan sent India its 13th dossier on the Mumbai terror attacks case and details of the commission Islamabad wants to send to India for pursuing the case. The Pakistani Foreign Office, said in a statement put out well past midnight, that Pakistan has also requested the Indian Government to facilitate the visit of the proposed commission. It should have been very clear even to the most visually challenged (no disrespect to them) as to who these developments were targetted at. Just before embarking on his India trip, Obama had urged Pakistan to expedite the Mumbai case trial.
The 13th dossier from Pakistan (they always want to be on up on India) was interesting. It detailed the composition of the Judicial Commission. It would be a three-member judicial commission comprising of a lawyer each from the prosecution and defence as well as a coordinator who could be a government or court official. It also made it clear that the commission would not be cross-examining Indian officials but would only authenticate their statements and findings as conveyed earlier by India. The diplomatic note mentioned three officials to whom the commission wanted access — Additional Chief Metropolitan Magistrate R V Sawant Waghule, Investigating Officer Ramesh Mahale who recorded Ajmal Kasab’s statement and the doctor who carried out the post-mortem. In response to queries by India about the legal basis of forming such a commission, Pakistan had cited Section 503 of its Code of Criminal Procedure which allows for alternate means if the witness could not be produced before a court. It had also made reference to Pakistan’s Qanoon-e-Shahadat that upheld the right of the accused to maintain silence and put the onus of proof on the prosecution.
The hearing in the LHC of the 'fugitive' status of Kasab could not be taken up until February 2011. And, on the day the hearing was scheduled, a judge on the panel hearing the case
mysteriously retired from service as he reached the age of 60. So, the hearing was postponed as a new bench needed to be constituted. This was nothing new in this case as judges were frequently transferred, or they retired or they recused themselves or the lawyer died or the lawyers failed to turn up for hearing or the lawyers boycotted the court complaining lack of security or a lawyer was accused of fake degree etc - all means were employed to prolong the case. Finally on February 24, 2011, the LHC asked the prosecution to withdraw its petition and refused to declare Kasab & Ansari as proclaimed offenders. It asked the prosecution to take up the issue one last time with the ATC, Adiala. This issue now went back to ATC. Finally, in late March 2011, the ATC declared that Kasab could not be declared as a fugitive. Thus the Kasab issue had taken a better part of two years.
In the meanwhile, Pakistan announced in March 2011 that it would allow an Indian investigation commission to visit Pakistan and gather details but not allow them access to the accused seven. India soft-pedalled the issue and simply announced that modalities would be worked out later. Government sources later suggested this was done to ensure there were no red faces when Manmohan Singh and Pakistani Prime Minister Yousuf Raza Gilani met at the Mohali's cricket stadium and later, at dinner. India, wanting to look good to Pakistan, also announced a breakthrough in investigations into the Samjhauta Express blast case and the arrest of Swami Aseemanand in December 2010. Equal-equal only just as at Sharm-el-Sheikh.
Finally, in late August 2011, the ATC allowed the formation of a panel that would visit India. It was to be a 10-member team. Then, citing “grave security risks” and a potential threat to their lives
in India, two of the three defence lawyers representing the seven accused, backed out of the Commission. The prosecution informed the court that the Indian government had agreed in principle to allow the Pakistani commission to interview four persons — two doctors, magistrate R V Sawant Waghule who had recorded the confessional statement of Ajmal Kasab, as well as Ramesh Mahale, the police officer who led the investigation into the Mumbai incident. In late November, Rehman Malik announced that the judicial commission would visit India within a week. But, nothing happened. However, it was announced in February 2012 that the commission would visit Mumbai between February 1 and February 10. Three days prior to the departure the defence raised fresh objections to the visit. The defence counsel challenged the foreign ministry’s notification and contended that the said notification should have been issued by the ministry of law and justice. They also rejected Kasab's confessional statement even though the SC had earlier ruled on its admissibility. The defence wanted to challenge the entire process in the jihadi-pasand LHC and wanted the commission's visit to be postponed until the disposal of those writs. All this after the lawyers had agreed to be part of the commission and on December 17, 2011 submitted their travel documents in the court. The tactics were very obvious. GoP then conveyed to India that the scheduled visit couldn't take place because of some issues "legal in nature". The defence counsels told the ATC judge suddenly that they also needed the statement and investigation reports for cross-examining Ramesh Mahale, the chief investigating officer, as well as other three prosecution witnesses – magistrate R.V. Sawant Waghule, who had recorded the confessional statement of Ajmal Kasab, and the two doctors who carried out post-mortem on the bodies of the terrorists killed during the attacks.
Thus, it was on March 15, 2012 that the TSP Judicial Commission set its feet on India for a sight seeing trip, pre-determined to do everything to make the whole exercise a farce.
Now, the Prosecution is saying that another commission could be sent to India after ensuring that it would be allowed to cross-examine witnesses.
TSP is ridiculing us, mocking at us and we are writhing here with impotent rage because GoI is on a self-destructive path of believing in its non-existent ability to correct the Pakistani discourse.
