The 26/11 Case - How Pakistan and its Judiciary Help the Terrorists - Part II

After framing the charges against the seven accused (two in absentia), the Anti Terrorism Court-II (ATC-II) at Adiala adjourned the hearing by a week until July 24, 2009, by which time the Sharm-el-Sheikh meeting was scheduled to be over. We know that Hammad Amin facilitated funds and hideouts for the prepetrators of the attacks, while Mazhar Iqbal was handler, Abdul Wajid and Shahid Jamil were facilitators. (Two other associates, Jamil Ahmed & Younus Anjum, were later arrested.) Expectedly, when the next hearing came up on July 24, 2009, the Honourable Court adjourned further hearing by a month but not before a startling revelation was made. Contrary to reports that stated that a week earlier, charges had been framed against all the accused, the government's prosecutor, Malik Rab Nawaz Noon, said formal charges against the accused had not yet been framed. Even by September, 2009, it was not clear if the suspects had been indicted and for what because the FIA had prepared two sets of chargesheets. Since the ATC has ordered strict censoring of proceedings in the media and since the entire proceeding is in-camera with no journalists allowed (contrary to how India conducted the Ajmal Kasab case), the information has been sketchy and not authentic. In his order on the blackout of proceedings, Justice Baqir Ali Rana, the trial court judge said, "the proceedings would be kept totally secret and not published in any manner as the case had implications for national security and national interests". The ATC's order on in-camera trial is obviously to prevent the relationship between the Pakistani Army and the terrorists from being aired in the public. India was outraged and objected strongly to the secret trial but it did not register in Pakistan. This lack of public information also helps the Pakistani government to fudge the issue and present it with whichever spin it wants, hiding under the twin excuses of a pending trial and the gag order by the court. Having got what it wanted in Sharm-el-Sheikh, Pakistan now went back on what it promised to Ms. Hillary Clinton and the Indian Government. Every step forward was immediately followed by several steps backward by Pakistan. Nothing unusual there regarding Pakistani behaviour.

Meanwhile, in India, on July 20, 2009, Kasab (alias abu Mujahid, a name given him by the redoubtable Prof. Hafeez Saeed saheb himself, no less, at the Chekhalabandi Mountain Terror Camp near Muzaffarabad) made a startling confession before a magistrate, Ms. Sawant Waghule who explained to him that this confession could be used against him and also gave him 72 hours to ponder over the implications of his request to confess. In his confession, he explained in detail about the training he had undergone in the hands of various LeT commanders including Prof. Hafeez Saeed and Zaki-ur-Rehman Lakhvi (alias Abu Wahed Irshad Ahmad). He also narrated the entire sequence of what transpired from the time he joined LeT to the time he was captured by that selfless martyr Assistant Sub Inspector Tukaram Omble. Of course, Kasab's confession has been corroborated by several eye witness accounts (including a brave 10-year old girl, Devika, who is crippled by Kasab's firing at the Chhatrapati Shivaji railway terminus), electronic records (such as video footages, data from the five GPS devices and a satellite phone recovered from the terrorists), ballistic evidence, trace of the geographical locations of the IP (Internet Protocol) addresses used, visual evidence by photojournalists from Times of India who captured vividly his terror spree, and various other evidences painstakingly gathered. In the court, Kasab's attorney, Abbas Kazmi, urged the judge to accept the entire confession and not to prolong the trial, a request that was rejected by the Judge saying that complete guilt must be established through a trial even though the criminal had confessed (only partially in Kasab's case). Three weeks later, Kasab would plead guilty to all charges framed against him.

Expectedly, the Pakistani Defence Minister Chaudhry Ahmed Mukhtar rejected the confession as induced under duress, thus proving yet again that Pakistan was continuing to live under denial. A few days later, July 29 to be precise, Pakistan's Attorney General and a close confidante of President Zardari, Latif Khosa (who has recently become Governor of the Punjab province after the assassination of Gov. Salman Taseer), said that JuD Chief could not be prosecuted because there was no evidence against him. The very next day, the Pakistani newspaper DAWN carried a report that Lakhvi and Shah had confessed to their involvement in the 26/11 terrorist attack. On August 1, India sent the certified copy of Kasab's confession to Pakistan along with interrogation reports of Fahim Ansari and Sahabuddin Ahmed.

However, the euphoria raised in India by the dossier that was sent by Pakistan on the eve of the Sharm-el-Sheikh meeting, because Pakistan accepted culpability for the action of the terrorists in that dossier for the first time, soon evaportaed on closer examination of the document. It disproved the DAWN report that Lakhvi and Shah had confessed to their crimes. It was indeed only the two lower level operatives, Hammad Amin Sadiq and Shahid Jamil Riaz who had confessed to "their guilt and their contribution in planning, preparing, financing, arranging boats, logistics, training, facilitating and launching LeT terrorist attacks from Karachi and Thath to Mumbai." The dossier did not link Kasab or the two Pakistani confessors to Lakhvi, Shah and Mazhar Iqbal alias Abu-al-Qama. The dossier did not detail any findings against these three accused as well. There was no voice sample analysis done to establish their role. In short, the dossier gave the impression that Pakistan was simply unwilling to take the investigation beyond those two low-level operatives and go all the way up to its logical end which probably would have implicated Gen. Musharraf, Lt. Gen. Kayani and Prof. Hafeez Saeed.

A further proof of this unwillingness was to come soon when on August 3, the Pakistani Supreme Court indefinitely adjourned a hearing challenging the release of Prof. Hafeez Saeed ostensibly due to the resignation of Punjab's Advocate General Raza Farooq. Another excuse ! On August 6, 2009, the Interpol announced Pakistan's request for lookout and arrest of 13 more Pakistani foot soldiers who were connected with the 26/11 attack. It was becoming clearer that Pakistan was more interested in lower level terrorists and was quite unwilling or unable (or both) to touch more senior leaders and masterminds. Meanwhile, the Interpol also issued red corner notices (RCNs) for Prof. Hafeez Saeed and Zaki-ur-Rehman Lakhvi based on the arrest warrants issued by the Mumbai court of Special Judge M.L. Tahaliyani. The Pakistani Interior Minister Mr. Rehman Malik was quick to react when he said that even if a red corner notice had been issued against Professor saheb, the government was not obliged to immediately arrest him. “The country makes its own investigations against the person, and only then decides,” Mr. Malik said. He also said that the evidence provided by India in three dossiers "is, in our considered view, not sufficient to link Hafiz Saeed to the (Mumbai) attack". Even before the Indian evidence could be presented to the Court or even analyzed by his lawyers, it was shot down by Rehman Malik, an ex-police officer. This has been the pattern. It has been a battle of wits between a top notch lawyer like the Indian Home Minister P. Chidambaram claiming that there was sufficient evidence to prosecute Prof. Hafeez Saeed with the ex-police officer rejecting the same out of hand and immediately.

Finally, on September 19, the Interior Minister Rehman Malik confirmed that no charges had been so far framed against any of the accused (now totalling nine) and that would be done at the next hearing of the ATC, Adiala on September 26. Simultaneously, reports also appeared of Prof. Hafeez Saeed's house arrest on September 21, though Pakistani newspapers also spoke of his 'movement being restricted for his own security'. The 'arrest' came ten days after he had been invited as a guest for an iftaar party hosted by the Lahore-based X Corps of the Pakistani Army ! This in spite of an Interpol RCN pending against him ! As Indian Foreign Ministers were expected to meet on the sidelines of the UN General Assembly meeting at New York on September 27, Pakistan slapped two First Information Reports (FIRs) against Prof. Hafeez Saeed for his speech glorifying jihad against kafir on August 27 & 28 and for collecting funds. Ostensibly, the FIRs were delayed until after the iftaar at the Army Command ! When questioned about this development, Prime Minister Gilani vaguely referred to Prof. Hafeez Saeed being 'in custody' even as Prof. Hafeez Saeed's lawyer claimed that the restriction was only against him leading the Eid prayer at the Gadaffi stadium and there was no restriction otherwise, a fact borne out by a NY Times reporter later. Two days later a petition was filed in the Lahore High Court to quash the investigation. However, Interior Minister Rehman Malik sought more time from India to investigate the role of the detained JuD chief Hafiz Mohd Saeed thus making it appear as though some progress was being made !

Then September 26 came and went quietly by. Unlike what was promised by Rehman Malik, no charge was framed against the accused as the Judge went on leave and the hearing was once again adjourned as it had happened so many times before. The Judges retire, or go on leave or get transferred all the time in Pakistan, especially in the 26/11 case. Contrast this with how the case proceeded in India to understand the various means that Pakistan resorts to blunt the wheels of justice.

In their New York meeting on September 27, Pakistan's Foreign Minister Makhdoom Shah Mahmood Qureshi assured his Indian counterpart, S.M. Krishna that the formal trial would start on October 3, 2009 !! Pakistan had given several such assurances to India from Jinnah downwards, only to be flouted in the very next breath and Makhdoom would turn out to be no exception.

(To Be Continued. . .)