Tuesday, May 4, 2010
26/11 : Judgement Day
Many first's and few flip flops
The Mumbai 26/11 verdict is historic in nature. First and foremost it is the fastest trial that has been conducted in connection with a terrorist case and secondly it is for the first time that a foreign agencies statements have been taken into account while pronouncing the verdict.
The trial is also significant for many other reasons. It has had a record number of witnesses (658) out of which 296 of them were examined in a record 271 days. The rest of them had sworn on affidavit. Apart from this during the trial, 1015 articles pertaining to the investigation were submitted and there were 1700 documents to support the case on part of the prosecution.
Another interesting part of the trial, there was a lot of technological factors that were attached to it. This part of the deposition was mainly handled by the Federal Bureau of Investigation which gave a lot of information on Global Positioning System, voice of internet protocol, all of which was used by the Lashkar-e-Tayiba to undertake this deadly operation. Apart from this a lot of reliance was placed on the footage that was obtained by the Close Circuit Televisions.
The case also saw three lawyers defending the prime accused Ajmal Kasab. The first advocate Anjali Waghmare was removed on technical grounds while the second lawyer, Abbas Kazmi was removed for non-coorperation with the court. It was K P Pawar who finally defended him till the end.
The biggest headache however for both the prosecution and the court were the flip flops which Kasab did during the course of the trial. However legal experts pointed out that this is a factor that went against him since it was telling on the conduct of Kasab who is now a convict.
The flip flops:
In the course of the trial which lasted a year, Kasab has changed his statements on five occasions. In February 2009, he had told the Magistrate’s court that he had opened fire on a police van which killed three police officers. However five months later he changed that statement and said it was Abu Islamil who did it.
Kasab then detailed the roles played by his Pakistan based akas thus making it clear that the entire plot was hatched and planned in Pakistan. However four months later he gave the Abu Jundal spin to the story and said it was an Indian handler who orcherstrated the entire attack.
Kasab after admitting that he had opened fire in the Cama hospital backtracked on the same at a later stage. He then admitted to killing Tukaram Ombale only to later retract by saying that he could not shoot at that time since he was injured.
The final retraction came when he said that the police had forced him.
Kasab's 3 options
As sole 26/11 terrorist Ajmal Kasab awaits his fate, legal experts say it may easily take up to a year before he could actually be hanged. If the Mumbai special court hearing the case awards him the death penalty, Kasab's counsel has three options ahead.
If the special court holds Kasab guilty as expected, it will be followed by another round of arguments pertaining to the sentence. The public prosecutor will obviously seek the death penalty, while the defence would seek a reduction in sentence.
If the sessions court hands Kasab the death sentence, the order would need confirmation from the high court.The immediate impact of the legal proceedings before the high court would be that the special court's verdict will be stayed. The high court will hear fresh arguments in the case before upholding or overturning the special court's verdict. If the high court confirms the verdict, the onus will entirely be on Kasab to go in appeal before the Supreme Court. Once an appeal is filed before the Supreme Court, the verdict of the high court is stayed and another round of arguments would commence. If Kasab does not get relief from the Supreme Court, he could then seek a pardon from the Presiden who has the last word in the case.
Former Supreme Court judge N Santhosh Hegde says this could easily take another year. There are several procedures involved and at each stage there would be fresh arguments. However, since it is a very high profile case, all these courts could take up the matter out of turn and speed up the process. Even then, it could easily take another eight months before the matter goes to the President, says Hegde.
If the special court sentences Kasab to death, the jail manual and the Code of Criminal Procedure mandate that he be moved to another jail, most likely to Yerawada jail in Maharashtra where death row convicts are kept.
However, considering the threats to Kasab, judge M Tahaliyani could rule that he be kept in the high-security Arthur Road jail itself till his hanging, when he will be taken to Yerawada jail.
LeT tried disrupting Kasab trial thrice
As the special court in Arthur Road jail gets ready to pronounce the verdict in the 26/11 terror attacks case, Intelligence Bureau officials said Pakistan-based terror outfit Lashkar-e-Tayiba had tried to disrupt the trial by carrying out a series of attacks in India on at least three occasions in the last one year.
IB sources told rediff.com that they had received actionable intelligence to this effect.
Two of the intercepts picked up discussed a plot to kill the lone arrested terrorist Ajmal Kasab, while the other was a plot to set off a blast near the court area where the trial is being conducted.
The first attempt to kill Kasab was made four months after his arrest, when the Lashkar had decided to use the services of fugitive don Dawood Ibrahim's gang, the IB sources said.
The IB said the Lashkar had wanted Kasab killed before he started talking to the interrogators to stop him from revealing information about the organisation.
Dawood's gang had agreed to this and had even hired a hitman in Mumbai to carry out the task, the sources said.
The Mumbai police was unable to apprehend the hitman, but in turn increased the security cover for Kasab, making a strike impossible.
After this operation failed, the Lashkar made another attempt to kill Kasab using one of its own operatives. The outfit planned to carry out a suicide attack on the court premises with a heavy load of RDX to cause maximum damage.
However, Pakistan's Inter-Services Intelligence had reportedly advised the LeT to withdraw this plan due to the immense international pressure that built up after India started sending dossiers to Pakistan.
Islamabad had then been denying that Kasab was a Pakistani, and the ISI advised the LeT that the operation to kill him might confirm India's claims, said IB sources.
The third attempt was to set off a series of explosions around the court premises.
This plan almost came through, but the Mumbai police had been quick in busting the attempt with the help of intelligence intercepts.
The LeT had contacted the cadres of the Indian Mujahideen and had also activated a couple of its sleeper cells in Maharashtra to carry out this plan. The terrorists had decided to move RDX from across the border into India for this job. According to the IB, this operation was planned on a very large scale and would have inflicted maximum damage, apart from disrupting the trial.
The IB picked up the third intercept about six months ago and had passed on the information to the Mumbai police.
The police beefed up security in the city and cracked down on six Lashkar modules which had been planning to carry out the operation.
Acquittals: Slap on the face of Mumbai Police
The special court verdict acquitting Fahim Ansari and Sabahuddin, who were suspected to be have done the recee of the November 26, 2008 Mumbai terror attacks , has left the Mumbai police red-faced.
Former Mumbai Police Commissioner M N Singh, while sharing his thoughts on the verdict with rediff.com, said that at this stage the judgment looked very categorical and that one would have to read the judgment completely to give a fair view. However, with whatever is known about the judgment pertaining to Ansari and Sabahuddin, it is highly unlikely that the state may even challenge the acquittal, Singh said.
The judgment, in so far as Ajmal Kasab is concerned, was never in doubt. The evidence was strong and overwhelming, and there is no doubt about that. However, with regard to Ansari and Sabahuddin, the evidence was tenuous at all times, Singh said. The evidence largely revolved around the maps that the duo possessed.
The prosecution had claimed that the same map was found on one of the terrorists in the attack, he said, adding that the police may have tried to link the two instances, Singh said. The court on Monday said there were no bloodstains on the map found on the body of the gunman and it looked very fresh. The court seems to have thought that the map was inserted at a later stage.
The court has given good reasons discarding the evidence and the merits of the case have been taken into consideration while delivering the verdict. "I would not say that the Mumbai police has got a bad name," the former top cop said, adding, "In cases of terrorism, one cannot expect a 100 per cent conviction. A 100 per cent conviction is never warranted.
Let us, however, wait for the entire judgment and a copy of it to debate this issue further."When asked whether the David Headley angle to the case and the recee conducted by him could have affected the case against Fahim and Sabahuddin, Singh said, "I would not say that. We all know that Headley has pleaded guilty in court and we don't know anything more than that.
Moreover, the court hearing the case in Mumbai was not made privy to the confessions of Headley, so it is not right to say that, the Headley angle would have affected the case."
What delayed the Kasab trial
Ajmal Kasab may have been finally been convicted, but the biggest debate that has been doing the rounds is the delay in the trial and also the fact that two co-accused were acquitted by the court.
Major Sandeep Unnikrishnan's father, Unnikrishnan, even went on to the extent of saying, "What do we gain out of this? Public memory is short and the trial has taken nearly two years.
The conviction was mainly based on the provisions of the Indian Penal Code and the Arms Act, a very conventional style of conducting a trial.
The court and the prosecution had no option since provisions of the Terrorist and Disruptive Activities (Prevention) Act and Prevention of Terrorism Act were no longer available, as both laws -- considered to be draconian by many -- had been repealed.
Former police officers and judges of the High Court and Supreme Court say that there is a need to bring back tougher laws since cases of terrorism have international ramification and under normal procedures there are too many obstacles that make the case of the prosecution extremely difficult.
Justice Micheal F Saldanha, former judge of the Bombay High Court, told rediff.com: "I don't dispute the argument that we need stronger laws, but there has been a debate regarding the misuse of such laws. This is true that such laws have been misused immensely and this had led to its repeal. There is too much being made out of the acquittals today. The solution is not to say that convict every person before the court."
"Fighting terrorism is a very complex subject. During a meeting with some security experts from Israel recently, they had told me that they believe in gunning down a terrorist. They say that it is better to gun them down rather than keep them in prison inviting political complications and expenditures. We have an example in the Afzal Guru case where he has been in prison without being hanged due to political pressure."
"Theoretically speaking the Indian police and prosecution needs a very good back up where laws relating to terrorism are concerned. I personally feel that since strong laws always tend to get misused it is better to set up a body with specialist investigators. The 26/11 case was handled by the local police who don't have the competence to handle cases with an international magnitude," he said.
"Apart from this what I have noticed in the judiciary is that some sessions judges are unable to handle cases of such a magnitude. Special judges should be picked and a special tribunal set up to handle such cases. That way there would be no delay in the trial and the case would be watertight. Another thing that should be included is that in all cases of terrorism the clemency provisions should be done away with. After the verdict of the sessions court, the appeal should lie directly with the Supreme Court. That way the delays in executing a sentence will come down," Saldanha observed
Justice Santhosh Hegde, former Supreme Court judge, feels that since terrorism is such a major issue, it is time that stringent laws such as TADA and POTA with regulations are put in place.
"Terrorists come to wage war against the nation and we are giving them benefits under Article 21. Their confessions are not taken on record when tried under the IPC, which makes the job of the prosecution tedious. I feel that the appeal provisions should also be reduced and a direct appeal should lie only with the Supreme Court," he said.
"What I find hilarious is that we have spent nearly Rs 74 crore on a terrorist and the end result was that we get to point a finger at Pakistan. It does not make any sense since Pakistan is not going to be affected by this and they are already saying that this entire thing is a foregone conclusion," he added.
Sabahuddin was innocent and being framed: says lawyer
Ejaz Naqvi, advocate for Sabahuddin Ahmed, who was acquitted by the special court in the 26/11 Mumbai attacks case, is elated. "I always said that my client was not involved and the court has upheld whatever I have said. I am happy that my client has been acquitted. I believed that he is innocent and being framed in the case. The court has taken into consideration all that we had contended and rightly acquitted Sabahuddin. I know that the state government will appeal against the verdict. I am prepared for such a legal battle. We have a very strong case."
"The prosecution had claimed that there were hand-drawn maps found with Sabahuddin and Fahim Ansari. The prosecution had said that these maps were drawn out and later handed over to the Lashkar-e-Tayiba who in turn provided the same maps to the gunmen who carried out the attack. Such an attack would involve meticulous planning and modern equipment. In such an attack of such a magnitude, where such modern technology was used, there is no place for hand-drawn maps. While it proves that it was a foreign agency which carried out the attack, there is no proof to show that Sabahuddin was involved in it," Naqvi said.
"I had constantly said that the maps that were produced by the prosecution were immature and an attack of such a huge magnitude could not have been carried out with the help of such immature drawings as the prosecution had claimed. I am extremely happy with the judgement. We are ready to face the appeal by the prosecution before the high court and we will fight the case on the same lines as we did in the sessions court," Naqvi also told rediff.com.
26/11 verdict makes access to Headley crucial
With the acquittal of 26/11 accused Fahim Ansari and Sabahuddin, Indian investigators need Lashkar operative David Headley more then ever.
The Mumbai police had alleged that both Ansari and Ahmed had conducted a recce of Mumbai and provided maps to the Lashkar-e-Tayiba, which were ultimately used in the 26/11 attacks.
However, the special court handling the 26/11 terror attacks case stated on Monday that the maps procured from Ansari and Sabahuddin were too immature to be used for planning a terror attack.
The Indian investigation agencies will now heavily rely on Headley who, according to the Federal Bureau of Investigation, had shot images and had made detailed maps of the targets and passed them on to the LeT.
Intelligence Bureau officials said India could now press harder for access to Headley as the two men (Ansari and Ahmed) had been let off the hook.
Also, the trail in 26/11 case will incomplete without the without Headley's statements on the details of planning the attacks.
A team of Indian agencies will be visiting the US to interrogate Headley soon, investigation officials said.
No terror case can be complete until the man who provided the logistics is brought to book, said IB sources.
Although Headley has confessed to the FBI that he had conducted a recce of the targets in Mumbai, this is will not be enough to nail him in India. Only if Headley confesses the same details to Indian agencies can the confessions be used in the 26/11 case in India, said investigators.
A magistrate might accompany the Indian investigation team to record Headley's statements, which will be submitted to the special court that is trying the case.
Although an Indian court can convict Headley, he cannot be punished in India as it would amount to double jeopardy as per the Indian jurisprudence, said sources.
Investigators will also interrogate Headley on the Indian contacts he had when he had conducted a recce in Mumbai.
"We are sure that there were men of Indian origin involved in this case and Headley would be able to throw more light on the same," said an official.
Post acquittal,legal options before Sabahuddin and Ansari
The Uttar Pradesh police had stated on Monday that both Sabahuddin Ahmed and Fahim Ansari, acquitted by the special court in the 26/11 Mumbai terror attack case, were not off the hook as yet as they would be tried in UP for the attack on the Central Reserve Police Force camp in Rampur in 2007. While Fahim Ansari's misery may end with the Uttar Pradesh trial, Sabahuddin faces another set of legal battles since he has also been chargesheeted in the Indian Institute of Sciences attack case in Bengaluru.
The option these two men have as of now is to seek the release order from the Mumbai court and then seek bail before the Uttar Pradesh court. Sabahuddin will have to face legal proceedings before a court in Bengaluru, where he has been chargesheeted in the IISc case. He is the second accused in the case after Abu Hamza who was also one of the handlers in the Mumbai 26/11 case.
The Bengaluru police said they were waiting for the trial in the Mumbai case to finish before they now move the court to commence trial against Sabahuddin, who is charged with providing logistical support to the attackers. His advocate Ejaz Naqvi, however, is confident that his client will sail through in both these courts too. "We have the upper hand in the wake of the Mumbai verdict and will use the same defence in the other two cases too," he said.
Check out the chat trancript on 26/11 verdict