For nearly seven years, India sent one docket after another, containing evidence related to perpetrators of the 26/11 terrorist attacks in Mumbai, to Pakistan to prosecute the likes of Lashkar-e-Taiba (LeT) chief Hafiz Saeed and his chief operational commander Zaki-ur-Rehman Lakhvi. Pakistan, however, has been in a state of denial, citing lack of evidence to prosecute either the terror outfit or its leaders.
But the deposition of 56-year-old David Coleman Headley before the court of special judge GA Sanap has put Pakistan in a tight spot, believes special public prosecutor Ujjwal Nikam. He is the architect and brain behind getting Headley to depose in the ongoing 26/11 trial against Syed Zabiuddin Ansari alias Abu Jundal.
“It will not only strengthen the case pending before the sessions court but will also compel Pakistan to take Headley’s statement through video conferencing as we did. If Pakistan is serious in combating terrorism, then we have set an example; they just need to follow our precedent,” said Nikam.
Nikam recounted the instance when he went to Pakistan on an eight-day official visit as part of a four-member delegation to evaluate the evidence gathered by the Pakistan Federal Investigation Agency (FIA). This was after the lone surviving Pakistani terrorist, Mohammed Ajmal Amir Kasab, was executed in November 2012.
“I met the prosecutors in Pakistan, the FIA, director and members of the home ministry, and I felt that they were not serious about taking any action against the conspirators. They kept asking us for more evidence,” said Nikam.
Nikam’s basic question to them was on where the conspiracy to attack Mumbai was hatched, to which Pakistani officials replied, “Pakistan”. Nikam then questioned, “Who has to give us the evidence?” The officials answered, “You have to give us that”, which shocked the four-member team.
“There would be people who would question the use of Headley’s deposition. But one must understand that the statement of an accused as an approver has far more legal footing and implications than stories which come from investigating agencies,” he said.
When the footage of the video deposition is given to Pakistan, “it will be a piece of evidence they will not be able to refute”, said Nikam.
For Nikam, who was appointed special public prosecutor in the trial, it was pertinent to make Headley an accused, especially after a US court convicted him to 35 years’ imprisonment for conspiring with LeT and attacking Mumbai. “The idea to make Headley an accused, or for him to depose, was not spontaneous. I painstakingly worked on it for a period of six to seven months to ensure it could be carried out within the legalities of the two countries,” said Nikam.
Nikam said the process to make Headley an accused began when he learnt the latter had signed an agreement with the US Department of Justice (USDOJ), which said he would testify in any foreign judicial proceeding provided he was not handed over to another country.
With Headley’s extradition ruled to India, Nikam decided to move an application before the court to make him an accused, and communicated his plan to the government of India.
“I flew down to New Delhi, and explained my idea to the National Security Advisor, Ajit Doval, and his special envoy, Asif Ibrahim,” said Nikam. He was given a go-ahead — only Maharashtra chief minister Devendra Fadnavis and joint commissioner of police (crime) Atulchandra Kulkarni were kept in the loop.
After marathon meetings with USDOJ through diplomatic channels, with cooperation from the Indian Embassy in Washington, Nikam was given the certified copy of the US court judgment where Headley had pleaded guilty of his role in the 26/11 attacks. The copy further needed a certification from the Indian Embassy to make the document admissible under the Indian Evidence Act. Once all procedures were done, Nikam moved the sessions court in Mumbai to make Headley an accused — the plea was accepted.
But he had another hurdle to clear. The Criminal Procedure Code (CrPC) did not permit Headley to be prosecuted again for the same crime. Then Nikam brought to fore differences in the charges levied against Headley by US, and those by India. “It was pertinent to get Headley to depose vital facts of the 26/11 terrorist attack,” said Nikam.