26/11 case: Bizarre trial and a saga of delays

26/11 Mumbai Attacks: Judge being changed nine times and the refusal of Pakistani authorities to crack down on key suspects have jeopardised any possibility of justice.

It has been a bizarre trial for the seven people charged with planning, financing and supporting one of the worst terrorist carnages in recent decades – the main accused fathered a child while in jail, the judge has been changed nine times, and a dogged prosecutor was assassinated in mysterious circumstances.

Fire and smoke is seen during an attack at the Taj Mahal Palace hotel in Mumbai on November 26, 2008.(AFP File Photo)

The twists and turns witnessed since Pakistani law enforcement agencies arrested in December 2008 Lashkar-e-Taiba (LeT) operations commander Zakiur Rehman Lakhvi and six others – Abdul Wajid, Mazhar Iqbal, Hammad Amin Sadiq, Shahid Jameel Riaz, Jamil Ahmed and Younus Anjum – for alleged involvement in the Mumbai attacks and put them on trial behind closed doors have been mind-boggling.

As India prepares to mark the tenth anniversary of the carnage that claimed 166 lives, the trial of the accused in a Pakistani anti-terror court is nowhere near conclusion, despite an order from the Islamabad high court in April 2015 that it should be wound up in two months.

After initially denying the involvement of any of its nationals in the coordinated attacks on India’s financial hub between November 26 and 28, 2008, Pakistan’s security forces rounded up the seven suspects when India and western nations, especially the United States and the United Kingdom, provided evidence of the involvement of the LeT. Lakhvi was captured during a dramatic raid by the army on a LeT facility in Pakistan-occupied Kashmir while the others were rounded up in Punjab and other parts of the country.

The trial began in Pakistan in 2009 but the first charge-sheet filed by the Federal Investigation Agency in November of that year made no mention of the alleged role of LeT founder Hafiz Saeed, even though there was considerable evidence that he had been in contact with the attackers, including Ajmal Kasab, the lone terrorist who was captured alive in Mumbai.

Over the years, the case has been transferred between judges of anti-terrorism courts in Rawalpindi and Islamabad, with proceedings being held in-camera at the high security Adiala Jail in Rawalpindi. With every change, the presiding judge has had to go through the process of acquainting himself with the case, which observers said had resulted in unnecessary delays.

Lakhvi, who was freed on bail in April 2015, fathered a child around 2010 while he was still in prison as his youngest wife was allowed to visit him in jail, according to Abu Jundal, an LeT operative extradited to India by Saudi Arabia. Even in jail, Lakhvi and the six suspects had access to several rooms next to the jailer’s office, equipped with television, mobile phones and internet access, where they entertained dozens of visitors every day.

Lakhvi also remained in charge of the LeT’s operations and Pakistani authorities refused to deny him access to mobile phones even after the matter was taken up by the US.

In May 2013, Chaudhry Zulfiqar Ali, a dynamic criminal lawyer who doggedly pursued the prosecution of the accused in the Mumbai attacks case and the suspects in the 2007 assassination of former premier Benazir Bhutto, was assassinated in Islamabad as he was driving to court. At the time, Ali had initiated a move to arrest former president Pervez Musharraf in the assassination trial and some reports suggested that his murder was linked to that case.

Others, however, believe Ali may have been killed by the LeT as his death came soon after the crucial testimony by witnesses about the boats used in the Mumbai attacks and the money trail in the financing of the attackers.

Then there is the curious factor of 20 unnamed suspects who figured in several of the five Pakistani charge-sheets – to this day, it is not known whether the Pakistani authorities have managed to identify or detain any of them. A senior Indian official who has closely tracked the Pakistani trial, and spoke on condition of anonymity, said that out of the seven suspects, barring Lakhvi and two others, the rest were “of no consequence”.

Former FIA chief Tariq Khosa, in a piece written for Dawn newspaper in 2015, argued: “The trial will not be over with the disposal of those under arrest or on bail. Other missing links need to be uncovered after the absconders’ arrest.”

As things stand, the case is hanging in balance, with Pakistani authorities saying they cannot move forward since 27 Indian witnesses have not recorded their statements in the court. They have also claimed more evidence is needed from India . The anti-terror court has recorded the statements of all the Pakistani prosecution witnesses.

The judge, in May this year, sought a report from the interior and foreign ministries on the status of the Indian nationals who are supposed to record evidence. At the time, the judge remarked that the case was in its final stages and it was imperative to know whether the Indian witnesses would be able to record their statements.

In an interview, defence counsel Raja Rizwan Abbasi blamed India for the delay in the case: “India is using the case as a diplomatic tool to malign Pakistan since the first day. It is responsible for the delay in the trial. Its non-cooperation is very much apparent.”

Abbasi added, “India has not been sending witnesses for the last two years and an earlier request by Pakistan to constitute a joint investigation team had also been declined.” He said that the trial’s conclusion “is not in sight anytime soon”.

Special public prosecutor Ujjwal Nikam, who handled the prosecution of Kasab and was part of an Indian team of legal experts that visited Islamabad in 2012, said the case in Pakistan related to a criminal conspiracy hatched on Pakistani soil and the training and support of the attackers. The Indian witnesses, including forensic experts and police officials, could only provide evidence related to the attacks and not the conspiracy.

“We have said there is no objection from our side to the Indian witnesses testifying in the Pakistani court, and this can be done via video link or by sending a Pakistani judicial commission to India to examine them,” he said.

“If Pakistan is really serious about tackling the criminal conspiracy, they should examine David Headley, who has already given evidence in a US court and given an undertaking that he will provide evidence via video link to Indian and Pakistani courts. Why is Pakistan afraid to take his evidence?” Nikam said, referring to the Pakistani-American national who played a key role in conducting surveillance of the targets in Mumbai.

A damning expose

Former Federal Investigation Agency chief Tariq Khosa, in an article written for Dawn newspaper, highlighted some key findings by Pakistani investigators:

- The investigators established Ajmal Kasab was a Pakistani national, traced his residence and place of initial schooling, and confirmed he had joined a banned militant group.

- The investigators located the training camp at Thatta in Sindh province where the Lashkar-e-Taiba (LeT) terrorists were trained and launched by sea. Casings of explosive devices used in Mumbai were found in this camp and matched.

- The Pakistani trawler used by the terrorists to hijack an Indian trawler to sail to Mumbai was found by investigators and connected to the accused.

- The Japanese engine of a dinghy abandoned by the terrorists near Mumbai was traced to Lahore and then to a Karachi shop, from where an LeT-linked terrorist purchased it along with the dinghy. The money trail for the purchase was linked to the accused.

- The “operations room” in Karachi, from where the attacks were directed, was identified and secured by investigators, who also uncovered communications via Voice over Internet Protocol.