The rare case of two jurisdictions

By Hamza Ameer

Islamabad, Nov 25 (SocialNews.XYZ) The 26/11 Mumbai terror attacks, undoubtedly India's 9/11 moment, brought India and Pakistan on the verge of an all out war and it took external powers like the United States to de-escalate the rising tensions.

However, even today, as the culprits behind the terror attacks remain unpunished, tensions continue to rise between the two arch-rivals.

The Mumbai terror attacks and the corresponding parallel investigations into the case done in India and in Pakistan make it unique for many lawmakers and experts as there was an investigation of one incident with two jurisdictions and two trials.

On the Indian side, Ajmal Kasab, the lone survivor of the 10 attackers, was nabbed. He also gave a confession, detailing his criminal act, which later led to his conviction and death penalty.

Many lawmakers raised questions over what they called a hasty and speedy trial of Kasab without the consideration of provision and availability of ample evidence of superior quality. But on the part of the Indian legislators, all legal compulsions and requirements were fulfilled, which were maintainable in the Indian courts.

While the Indian side carried out investigations into the case under its jurisdiction, Pakistan also filed a case and launched a parallel investigation under its own constitutional laws and jurisdictions, which, with the passage of time, has revealed that proving a conspiracy in a different jurisdiction is much more complex and requires intent and superior evidence.

Initially, Pakistan's investigations, which led to the arrest of at least seven perpetrators of the attack including JUD chief Hafiz Muhammad Saeed and LeT supreme leader Zakiur Rehman Lakhvi, was hailed by India during the talks between the then Prime Ministers of both the countries in Egypt in 2009.

However, with time passing by and the judgment into the case being lingered and adjourned over and over again; India's observation towards Pakistan's intentions turned from hopes to suspicion, as New Delhi now accuses the Pakistani military establishment and its intelligence agencies of facilitating and supporting the anti-India terror groups, which it maintains is the reason why the Mumbai terror attack culprits are still not punished for their crimes.

On the other hand, Pakistan has consistently maintained that the Indian dossiers, having evidential proofs against Hafiz Saeed being the mastermind and Lakhvi being the prime operator behind the Mumbai attacks, have failed to satisfy the Pakistani courts and has kept the case at a halt. India on the other hand rejects Pakistan's position and maintains that Islamabad has ignored its dossiers deliberately.

It is pertinent to mention that the Mumbai terror attacks case being heard in Pakistan has faced delays in various forms. The defendants have used delaying tactics through their councils, while frequent changes of trial judges and assassination of the case prosecutor have been among the many diversions, which have kept the case on an adjournment spree for years in Pakistan.

It has been seen many times that the witnesses in the case have retracted from their original testimony and have inflicted serious setbacks for the prosecutors.

During the trial, one of the hitches that stretched the case further was the demand by Pakistan to obtain voice samples of the alleged commander and his deputies for comparison with the recorded voices.

After the exchange of multiple investigation dossiers with the Indian police authorities by Pakistan, the trial court was requested to give approval to obtain the voice samples. However, the court ruled that the consent of the accused should be obtained, a requirement, which saw an obvious refusal from the suspects.

Even a plea, submitted before the sessions court, requesting to authorise the investigators to take the voice samples despite the lack of consent, was denied on account of there being no such provision in the Evidence Act or the anti-terrorism law applicable at the time.

The two main perpetrators, Hafiz Saeed and Lakhvi, were later released on bail in the case by the Pakistan court. Lakhvi was released in December 2014, but was kept under detention for three months, before being released in April 2015 by the Anti-Terrorism Court (ATC), which declared his detention void and ordered his release.

The court maintained that the evidences before it were not enough for his conviction.

A similar course of action was seen in the case of Hafiz Saeed, who was also released on bail, put under detention before being released by the courts, which gave the same reasons as they did in the case of Lakhvi.

The six other culprits in the case are also out on bail under the same reasons, a decision over which India has expressed deep disappointment.
While the Pakistani courts continue to maintain that there is lack of evidence to convict the Mumbai attack masterminds and perpetrators, the then sitting high ranked government officials had conceded that the attacks were hatched in Pakistan.

The then sitting Federal Interior Minister, Rehman Malik, had provided graphic details on how a part of the Mumbai attacks was hatched in Pakistan.

On the other hand, most of the dossiers with evidences against Hafiz Saeed and Lakhvi have not been made part of the case record by the Pakistani prosecutors, indicating legal complications or perhaps lack of interest on their side.

Further details also revealed that Lakhvi and Saeed were no less than VIP guests during their time in the Pakistani jails. Jail officers of the Adiyala Jail in Rawalpindi and Kot Lakpat jail in Lahore revealed that Lakhvi, along with six of his comrades, had several rooms at their disposal.

"They had access to television, mobile phones and the internet, as well as dozens of visitors a day," revealed a jail officer on condition of anonymity.

"These privileges had allowed him to remain in effective contact with the LeT rank and file," the official added.

The whereabouts of Lakhvi remain unknown since the time he was released on bail, while Hafiz Saeed has been sentenced to 10 years imprisonment for being convicted of using his organisation's umbrella outlets for terror financing and terror-facilitation.

But even after Pakistani authorities found Saeed guilty in over two dozen cases of terrorism related linkages, they still refuse to concede his involvement in the Mumbai terror attacks, a case that has put both Pakistan and India in the line of each other's fire.

Source: IANS