A Rawalpindi-based anti-terrorism court today declared all the findings of the Pakistani judicial commission that visited India in March to collect evidence in the November 26,2008 Mumbai terror attacks case as illegal.
While a setback to prosecution of the seven accused in the case,including Lashkar-e-Taiba commander Zaki-ur-Rehman Lakhvi,the decision hasnt come as a surprise to India.
Sources told The Indian Express that a ruling like this was on the cards ever since it was decided not to allow the Pakistani panel to cross-examine any of the four witnesses in India,including the magistrate who had recorded the confessional statement of the lone surviving terrorist Ajmal Kasab and the 26/11 terror attacks case investigating officer.
In his decision,Judge Chaudhry Habib-ur-Rehman,who presides over the anti-terrorism court,Rawalpindi,also ruled that the report of the eight-member commission could not be made part of the evidence against the seven accused because they were not allowed to cross-examine the four witnesses in Mumbai.
India will take up the matter with the Pakistan government after going through the order,as it feels the panel gathered proof of evidential value. Union Home Secretary R K Singh told reporters: Our belief is that the evidence collected by the commission is of evidential value… After we go through the judgment,we will discuss with the Pakistan government as to what they propose to do about it.
Sources in the government told The Indian Express that the decision not to allow the commission to cross-examine the four had been taken at the highest level,knowing well that it could lead the Pakistan court to draw adverse conclusions.
Indian and Pakistan trial courts and their procedures are very similar since both are governed by the Criminal Procedure Code and Evidence Act that are legacies of the British,a fact that was highlighted by the commission. Under the Indian Evidence Act,cross-examination of the magistrate who records a confessional statement and the investigating officer of a case are allowed during the trial. However,this was not allowed when the Pakistan commission wanted to do so.
Sources said the Indian security establishment was of the view that the magistrate couldnt be cross-examined by members of the commission that included the defence lawyer for Lakhvi,something that even the Pakistan government agreed to. However,when the commission arrived in India,it demanded that it be allowed to cross-examine Magistrate R V Sawant Waghule,investigating officer Ramesh Mahale,JJ Hospital medical officer Ganesh Nitukar and Dr Shailesh Mohit.
Lawyers representing the seven accused terrorists,a majority of whom were part of the judicial commission,had questioned the legal value of the commissions report,mainly on the ground of denial of cross-examination.