INDIA'S Dr Shashi Tharoor, minister of state for external affairs, has stated that the Pakistan-India dialogue may not be revived until Pakistan shows that it is 'serious' about the trial of the accused in the Mumbai saga. Dr Tharoor was a UN under-secretary general and is an extremely bright individual. However, this statement is disappointing.

Dr Tharoor in his assignment as an under-secretary general would certainly be more alive than others to the fact that the conduct of any trial of a terrorist has his own dynamics and the concerned government at best can push the prosecution but not control the script of the trial proceedings. Nor can it guarantee an 'outcome', something that Tharoor's statement implies. In this context, it is unfair to link the commencement of the composite dialogue to the 'seriousness' that has to be shown by Pakistan towards the trial.

Pakistan has shown a resolve to go after the accused. An FIR was registered, the concerned suspects immediately arrested. Despite warnings to the government that the keenness to fast-track the trial could compromise the methodology of collecting evidence from overseas, the challenge was submitted in court.

The government has done what it could. It has installed a special judge and has engaged the services of the famous criminal lawyer Mr Rab Nawaz Malik as special prosecutor. He was engaged even before the trial presumably to guide investigators in the collection of evidence for boosting the prosecution version.

The proposed list of witnesses is of about 100 persons that the ace prosecutor wants depositions from on various aspects in support of the charge. The government has also ensured that the trial takes place within the secured facility of a jail so that there are no other judicial assignments or courtroom distractions. The government has strongly contested the applications for acquittals that were moved in the high court.

On the other hand, the accused acquired the services of none other than Khawaja Sultan Ahmad, a formidable defence lawyer and a nightmare for the government's prosecution team. He has already made moves that will eventually punch holes in the prosecution version.

These two well-known lawyers, it seems, will contest the case bitterly. Moreover, the other co-accused have hired some good criminal lawyers as well which means that even if the trial proceeds at a normal pace, cross examinations by each lawyer of every witness of the prosecution could stretch the trial proceedings indefinitely. But such are the dynamics of trial proceedings as Shashi Tharoor, the Indian government and their friends in the US and EU need to realise.

It should not be forgotten that Pakistan is prosecuting the accused here primarily for a charge of conspiracy (only) of the main offence that was committed outside Pakistan in a foreign jurisdiction. Conspiracy in a transnational crime is always the most difficult charge to be prosecuted independently. My research associate tells me that in 21 recently reported cases of charges of conspiracy, only two got convictions and that too for a smaller sentence.

In fact, Pakistan should be asking the Indian government why it blames us for not 'showing progress' in the trial. What has the Indian prosecution done with regard to the accused Ajmal Kasab over the last one year? After all he is the only accused, apparently caught at the scene of the crime with witnesses seeing him firsthand — so why hasn't Ajmal Kasab still not been convicted? Why is his trial dragging on when the Indian government controls the prosecuting agency and the witnesses are available in the same city?

It has been more than a year since the Mumbai carnage but on one technicality or the other Ajmal Kasab's trial proceedings have been delayed.

On the other hand, Pakistan is handling five co-accused that have not been arrested from the scene of the crime but from a location faraway from the scene. As such the situation appears far more challenging than handling the trial of a single accused. It must be remembered that the trial is only the first step.

There will be two rounds of appeals up to the Supreme Court that takes its own time. It should be remembered by our Indian friends that Afzal Guru's trial starting from the framing of charges up to the Supreme Court took more than four years. Any criminal trial takes about three to five years, even if fully expedited.

It is hoped that Shashi Tharoor and the Indian leadership can appreciate the complexities inherent in a high-profile trial of this nature and be able to return to the table for the peace process. If India still wants to link the commencement of the peace process to the demonstration of Pakistan's 'seriousness' (read ensuring conviction and that too within days) regarding the trial then the Pakistanis should sit back as the India-Pakistan dialogue is not likely to start for quite some time.

The writer is an advocate of the Supreme Court of Pakistan and president of the Research Society of International Law.

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