Jan 20, 2016, South Asia Monitor
By Divya Kumar Soti
After the Pathankot terror attack, India has once again shared evidence with Pakistan which points towards the involvement of terrorist groups like Jaish-e-Mohammed (JeM) in planning and executing the attacks on India from the Pakistani soil despite being banned in the government files there. Pakistan has also once again promised to cooperate. But, while all this happens, it will be instructive to look into what is happening in the 26/11 case in which India has already shared clinching evidence with Pakistan.
Last month, within a few hours of India's external affairs minister Sushma Swaraj's return to India from Islamabad where she had attended the Heart of Asia Summit and met Prime Minister Nawaz Sharif, the chief of Jamaat ud Daawah (JuD), Hafiz Saeed released a video on Twitter where he proclaimed that India won't be able to prove his and his organization's role in 26/11 Mumbai terror attacks till eternity. Hafiz Saeed's statement was clearly provocative, but given the manner in which the 26/11 trial is proceeding in Pakistan, his confidence may not be misplaced.
When Sushma Swaraj was still in Pakistan, a hostile government witness told Islamabad's antiterrorism court which is conducting the 26/11 trial that Ajmal Amir Kasab is alive. Yes you read it right, according to his testimony, Ajmal Amir Kasab, the only terrorist to be captured alive after the 26/11 attacks and who was hanged to death by India in 2012 is still alive and can be produced in the court.
This kind of absurd drama in the name of bringing perpetrators of 26/11 carnage to justice is underway in Pakistan for quite sometime now. This trial in Pakistan started almost around the same time when India instituted a trial in this case. In India, which is known for a sluggish judicial process, the trial was completed in less than four years and Ajmal Kasab's death sentence got confirmed by two appellate courts including the Supreme Court of India. Similarly, in US, trial against 26/11 conspirator David Coleman Headley was instituted in 2009 and was concluded in 2013 culminating in a sentence for 35 years of imprisonment. However, in Pakistan, this matter is still languishing in the lower court.
It is not so that every terror related trial in Pakistan takes so long to reach any conclusion. For instance, in case of Dr. Shakil Afridi who allegedly helped CIA in finding out Osama bin Laden at Abottabad, his property was immediately confiscated after his arrest and he was tried for high treason. In less than two years he was sentenced to 33 years of imprisonment. Pakistan did not yield despite international community's pressure to release Dr. Afridi.
Now, let us compare all this with 26/11 case to understand what lies ahead for the Pathankot trial in Pakistan. While Hafiz Saeed got released from the preventive detention within a few days, another key conspirator Lashkar Commander Sajid Mir was never arrested by Pakistani authorities. Some media reports over the last few years did suggest that Sajid Mir was detained for sometime but was released probably because he had previously served in Pakistani Army.
Last year, another key conspirator Zaki-ur-Rahman Lakhvi has been able to secure bail for himself. According to a BBC Report, during his stay in jail, Lakhvi had access to T.V. and Internet and was allowed to host numerous guests daily. Some media reports go as far as to claim that Lakhvi even fathered a child while being in Jail. After getting bail he is living at some "undisclosed location". Pakistan has plainly refused to share his voice samples with India saying that there is no such provision in its law. Pakistan has not banned the Lakhvi-led Jamaat-ud-Dawa (JuD) despite immense international persuasion.
But amidst all this, a ray of hope has emerged. David Headley, the man who had reconnoitered the potential target sites in Mumbai for Lashkar-e-Taiba as part of the 26/11 conspiracy, has agreed to testify before the Mumbai Special Court, which is currently trying another accused Syed Zabiuddin Ansari aka Abu Jundal who was allegedly present in Lashkar's Karachi control room during the 26/11 attacks and was arrested in 2012. Headley's proposal to act as a Prosecution witness and approver in lieu of immunity from sentencing has been agreed upon by prosecutors and the court. During the trial in US Court in 26/11 case, Headley had pleaded guilty under the plea bargaining provisions of US Law and had spilled the beans in front of international media describing the role of key conspirators like Lakhvi as well as the roles of ISI officers- Major Iqbaal and Major Sameer (code names).
But what Headley told during the US trial or what he is going to tell the Indian court will not form part of the record of the antiterrorism court in Islamabad and the manner in which bizarre testimonies by hostile witnesses are being recorded, it is very much likely that either the accused will go scot-free from the Trial Court itself or will be acquitted by higher courts due to weak evidence. If there are lacunae in the evidence presented before the trial court, higher courts may not be able to do much as such higher courts do not sit to record evidence or give findings of facts.
In such a scenario, Pakistani government can absolve itself of any responsibility by saying that it can't do much when Courts have acquitted the accused. The investigation by Pakistan's Federal Investigation Agency (FIA) is not up to the mark and multiple Indian dossiers handed over to Pakistan have repeatedly pointed out the various loopholes and parts of the conspiracy which have not been covered by the prosecution.
So, it becomes necessary that Pakistan admits Headley as an approver in its 26/11 trial. Headley is under a plea bargaining contract with the US government under which he had promised to tell the truth in US Court in return of exemption from life imprisonment. And thus, it will be extremely difficult for him to change his previous confessions given before the US Court.
It will also be very difficult for Pakistan to dismiss Headley's past testimony given in the US Court because American citizens also lost their lives in 26/11 carnage and it will not be easy for Pakistan to question FBI's investigation and US Court’s judgment. It is because of this reason Pakistan has tried to ignore Headley and has never taken cognizance of what transpired in US trial. Despite Headley's detailed confession before the Chicago Court in 2011, Pakistan never tried to admit him to its own 26/11 trial.
India and US need to keep up the pressure upon Pakistan in 26/11 case. If the accused get acquitted in Pakistan, there will be question marks over the Pakistan policy of both the Indian governments that have been in power since the trial began. It is necessary to keep a sharp eye on the ground realities of Pakistan while engaging with it as that is the best way of minimizing risks which essentially get involved in Indo-Pak interactions.