On this day, four years ago, Mumbai was attacked by terrorists who managed to kill 166 people and injure many others. Will the victims and their families ever get a closure, even with last week’s hanging of Ajmal Kasab, the sole terrorist who was captured alive on 26/11? This is a million dollar question, more so because the terror group that was behind the attack — Lashkar-e-Taiba — is still alive and kicking.
The 26/11 case is a complicated one because while the crime took place in India, the command and control was reportedly with men stationed in Pakistan. There are seven suspects of the Mumbai case incarcerated in Pakistan’s Adiyala jail where they are undergoing an in-camera trial. The legal proceeding is taking a long time for three reasons: first, a cloud of suspicion hangs over the exchange of information pertaining to the case. While New Delhi says that it has provided sufficient information to convict the suspects, Islamabad says the information given to it cannot be presented as evidence in a court.
Second, there is sympathy within certain State institutions for the LeT as its trained warriors are available to the Pakistani State. Third, due to a number of reasons the judicial system seems to have lost its capacity to try terror suspects.
A glance at the history of convictions in terror cases, especially those involving high-value suspects, shows that there have been very few decisions. In the last 15 years, there have been only two convictions in terror cases. The first to be convicted was the leader of Lashkar-e-Jhangavi (LeJ), Malik Ishaq. He was wanted in 43 cases and accused of killing 70 people including an Iranian diplomat in the 90s. He was wanted in 43 cases. The anti-terror court judge was forced to escape Pakistan and settle abroad after announcing a life sentence for Ishaq, which was upheld by a higher court. However, the Supreme Court set him free in 2011 for lack of evidence. The real story is that in the intervening years between his initial conviction and appeal before the apex court, Ishaq managed to get rid of evidence and people who deposed against him including a senior police officer. Some police sources also claimed that the LeJ threatened one of the Supreme Court judges which resulted in the bench taking a lenient view in the Ishaq’s case.
The other instance of conviction pertains to Mumtaz Qadri case, the police guard who shot the former governor of Punjab, Salman Taseer. The anti-terror court judge who was handling the case also had to leave the country after delivering his judgement and has not been heard of again. Thus, it is possible that the anti-terror court judges hearing the LeT cases will try to prolong them to ensure that they don’t have to deliver a judgement.
Then there is a major lacunae in the law of evidence because it was never revised after the British left. The courts depend on first information reports and identification parade that even the police in Pakistan believe is a farce.
Police officials ask how they can produce people who can identify a culprit, especially in cases of suicide attacks. Hence, it is not surprising that when it comes to terrorism cases in Pakistan, evidence is either lost due to the attitude of the court or is not entertained by the court, resulting in the culprits going scot-free. Interestingly, the Chief Justice of the Supreme Court, Justice Iftikhar Chaudhry, who otherwise is proactive when it comes to delivering justice, turns a deaf ear to the idea of the court reviewing its own mechanism.
The State does not appear inclined to send a strong message to the terrorists, who have access to cellphones and other facilities inside jails. It was, in fact, in 2008 that one of the jailed terrorists, Omar Saeed Sheikh, used his phone to call Pakistan’s president pretending to be India’s foreign minister and threatening Islamabad with retribution, thus, heightening tensions between the two States.
At this juncture, there is little possibility of anything substantial happening in the Mumbai case. The case will probably drag on till it becomes convenient to free the seven suspects. There is no possibility of the accused being handed over to India. Such a move will not be popular in many circles in the government and society in Pakistan.
I remember asking some students of elite universities in Islamabad, Lahore and Karachi in 2010 if they thought that the head of LeT, Hafiz Saeed, should be handed over to India in order to improve bilateral relations. A significant majority responded in the negative even though they supported improving relations with India.
The civilian government may not muster enough courage to ensure a speedy trial and justice in the 26/11 case. Eventually, closure would have to be found in Ajmal Kasab’s death or a prayer that nothing as evil as what happened on November 26, 2008, happens again in Mumbai or in any other city in South Asia.
Ayesha Siddiqa is an Islamabad-based writer and author of Military Inc: Inside Pakistan’s Military Economy
The views expressed by the author are personal
(C) Right Vision Media Syndicate, Pakistan