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Pakistan court rejects Mumbai commission findings
Publication Date : 18-07-2012
An anti-terrorism court (ATC) in Rawalpindi yesterday declared illegal the findings of a commission constituted for recording in India the testimonies of four witnesses of the 2008 Mumbai attacks.
A Pakistani team had gone to India to take part in the proceedings of the commission.
ATC Judge Chaudhry Habibur Rehman observed that findings of the commission -- headed by S.S. Shinde, the chief metropolitan magistrate of Mumbai -- were illegal because he did not allow the defence counsel to cross-examine Indian prosecution witnesses, including woman magistrate R.V. Sawant Waghule, who recorded the confessional statement of Ajmal Kasab; Ramesh Mahale, chief investigation officer of the case; and Ganesh Dhunraj and Chintaman Mohite, the two doctors who had carried out post-mortem of the terrorists killed during the attack.
"The testimonies of these witnesses were recorded in violation of the law of evidence and relevant sections of the Code of Criminal Procedure (CrPC), and, therefore, cannot be made part of the court record,: the judge said in his order.
The court said the defence counsel for seven suspected abettors of the Mumbai attacks — alleged mastermind Zakiur Rehman Lakhvi, Abdul Wajid, Mazhar Iqbal, Hammad Amin Sadiq, Shahid Jameel Riaz, Jamil Ahmed and Younas Anjum — had not been given the right of cross-examining the Indian prosecution witnesses and, subsequently, the Federal Investigation Agency (FIA) could not use the statements of Indian witnesses against the seven suspects.
The court, however, said the testimonies could be used by the FIA against the Pakistani accused only if the Indian court again allowed the defence counsel to cross-examine the witnesses.
The court observed that a letter dated Nov. 5, 2010, produced before the Mumbai commission by Indian prosecutor Ujual Nikam about an understanding between the governments of Pakistan and India for exempting the Indian witnesses from cross-examination was also illegal because it had encroached upon the right of defence.
FIA’s special prosecutor Mohammad Azhar Chaudhry, who had produced before the ATC an 800-page report of the commission, told Dawn that setting aside the commission’s proceedings would benefit the accused because the prosecution could not use the four key witnesses.
He said if the seven alleged abettors were acquitted in the Mumbai attacks case the Indian judge would be responsible for their acquittal because he did not follow the law of evidence and relevant sections of the CrPC.
He pointed out that Judge Shinde had denied the right of cross-examining the Indian witnesses at the request of prosecutor Ujual Nikam.
Azhar Chaudhry said that in order to fulfil legal requirements the Pakistani government would now write to the Indian government for cross-examination of the Indian witnesses.
Riaz Akram Cheema, one of the defence counsel, told Dawn that defence lawyers were still willing to go to India to cross-examine the witnesses.
"The ATC accepted our petition which raised several objections to the Mumbai commission’s proceedings and it definitely strengthened the defence case," he added.
Khwaja Mohammad Harris, the counsel for Zakiur Rehman Lakhvi, informed the ATC judge that the Pakistani panel had joined the Mumbai commission’s proceedings under sub-section 3 of section 503 of the CrPC.
He argued that defence lawyers as well as the prosecution could cross-examine the Indian witnesses.
He said that exempting the witnesses from cross-examination was against sections 503 and 507 of the CrPC and section 287/2 of the Indian CrPC which made cross-examination of witnesses mandatory in trials and inquiries.