Legal loopholes, weak evidence and irrelevant sections invoked against Zakiur Rehman Lakhvi, the key planner of the 2008 Mumbai attacks, led to the granting of his bail, an Anti-Terrorism Court (ATC) said.
ATC judge Judge Syed Kausar Abbas Zaidi, who had granted bail to Lakhvi on December 18, in his written order said that the evidence against 54-year-old accused was based on the statements of the officials of the Crime Investigation Department (CID) which apparently were ‘insufficient’ to refuse him bail.
The court observed that from the statements of the prosecution witnesses reveal that Lakhvi had been charged on ‘hearsay’ basis.
“It is also an admitted fact that not a single word has been uttered by Mohammad Mumtaz (witness) against Lakhvi,” it said.
The registration of the FIR and the insertion of different sections of the law also benefited Lakhvi. The FIR was registered about three months after the incident.
The order issued for the release of Lakhvi said: “As per the contents of the FIR, the occurrence took place in November 2008 whereas the report was lodged on February 2, 2009.”
In the criminal proceedings, the delay in lodging an FIR of an offence always benefits the accused, Dawn Newspaper reported quoting the order.
Tariq Mehmood Jahangiri, a former deputy attorney general, told Dawn that though the ‘Limitation Act’ did not apply in the criminal matters and an FIR against the occurrence of an offence can be registered after several months, the delay in lodging the FIR always favoured the accused person regardless the nature of the crime.
Furthermore, the prosecution inserted an offence against the accused which was non-existence in February 2009 when the FIR was registered against Lakhvi.
The order said an amendment to section 6-B of ATA (Anti Terrorism Act) was incorporated in the FIR against the accused in 2011, which stated that threats and acts of terrorism against a foreign government or population or an international organisation would also fall in the ATA, according to the daily.
The order said that weak evidence, the registration of the FIR invoking irrelevant sections against the suspect, the ‘never-ending’ trial and hearsay evidence went in favour of the accused.
Lakhvi was arrested by the Federal Investigation Agency (FIA) in February 2009 on the basis of the confessional statement of the lone surviving attacker Ajmal Kasab and detained at the Adiala Jail. Kasab was subsequently executed in a Mumbai jail on November 21, 2012 after due legal proceedings.
According to the charge-sheet issued on November 25, 2009, Lakhvi was the alleged commander of the outlawed Lashkar-i-Taiba (LeT) as well as the mastermind of the Mumbai attacks.
It alleged that Lakhvi received weapon training from different centres and then trained other militants of LeT.
He is also facing the charges of imparting training and giving instructions to the 10 terrorists who carried out the attacks in India’s financial capital, leaving 166 people dead.
Even after he was granted bail, Lakhvi remained in jail under Maintenance of Public Order. He has challenged his detention under MPO in the High Court.
The main evidence on the basis of which Lakhvi was charged in the case was the confessional statement of Ajmal Kasab, who has been executed in an Indian jail on November 21, 2012, the order said.
The ATC judge noted in the order that the evidence against Lakhvi was based on the statements of the officials of the Crime Investigation Department (CID) which apparently were “insufficient” to refuse the grant of bail to the accused.
The court order stated that “the statements of five CID inspectors were held to be relevant against the accused petitioner.”
“These prosecution witnesses have now been examined before the court and it was revealed from their statements that they had charged the accused/petitioner on the basis of hearsay,” the order said.
The Judge also re-produced the arguments of Lakhvi’s counsel regarding the delay in the trial.
The order states, “During the last six years only around 50 prosecution witnesses have been examined before the court whereas more than 100 are still to be examined which may consume another 10 years.”
Citing sections of the anti-terrorism act, the court said it shall have to regard the time which the accused person has already spent in custody and the time which is likely to be spent in custody if not admitted to bail.
In the concluding paragraph of the order, the Judge, however, stated that these observations were “tentative in nature and shall not affect the trial or its fate in future.”
The decision to grant bail to Lakhvi drew sharp criticism from India and surprised many for its timing, just days after Taliban massacred 148 people, mostly school children, in Peshawar.
Lakhvi and six other accused – Abdul Wajid, Mazhar Iqbal, Hamad Amin Sadiq, Shahid Jameel Riaz, Jamil Ahmed and Younis Anjum — have been charged with planning and executing the Mumbai attacks that took place on November 26, 2008, and left 166 people dead. The trial has been underway since 2009.