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India urged to allow cross-examination of Mumbai witnesses

August 25, 2012

ISLAMABAD, Aug 24: Expressing fears that failure on part of counsel to gain access to Indian witnesses of Mumbai attacks will allow the accused in Pakistan to go scot-free, the prosecuting agency in the case has requested India twice to let Pakistani defence lawyers cross-examine the four witnesses.

According to sources, the Federal Investigation Agency (FIA) sent a message to the Indian authorities on July 20 through diplomatic channels, requesting them to allow the defence counsel to cross-examine Magistrate R.V. Sawant Waghule, who recorded the confessional statement of Ajmal Kasab, Ramesh Mahale, the chief investigation officer in the case, and Ganesh Dhunraj and Chintaman Mohite, the two doctors who performed autopsy of those slain in the attacks.

The sources said the FIA officials also sent to India the July 17 order of the anti-terrorism court which had declared illegal the findings of a commission constituted for recording in India the testimonies of the four witnesses.

The court gave an adverse ruling because the presiding officer and chief metropolitan magistrate of Mumbai, S.S. Shinde, had not allowed cross-examination of the Indian prosecution witnesses.

The sources said the Pakistani authorities were still waiting for a reply from the Indian side, even though a reminder was also sent on the matter.

If the Indian government did not allow the cross-examination by the defence lawyers, the statements of key witnesses recorded earlier would probably be declared inadmissible in the case, added the sources.

If this happens, the confessional statement of Ajmal Kasab, CCTV footage and 780 dossiers which the Indian government handed over to Pakistan through diplomatic channels will all go to waste. The FIA’s special prosecutor, Chaudhry Zulfiqar Ali, said the court had already declared that proceedings of the Mumbai commission would remain inadmissible unless the defence counsel cross-examined the Indian witnesses.

He added that the evidence could lead to conviction of the seven suspected abettors of the Mumbai attacks, including alleged mastermind Zakiur Rehman Lakhvi, Abdul Wajid, Mazhar Iqbal, Hammad Amin Sadiq, Shahid Jameel Riaz, Jamil Ahmed and Younas Anjum.

Well-known lawyer Ahmer Bilal Soofi said that Pakistani laws were similar to those of India. Therefore, the Indian government should not restrain the defence counsel from cross-examining the witnesses.

According to him, the Indian government was treating the case as a political one instead of dealing it like any other legal case.

Riaz Akram Cheema, a defence counsel, said the Indian witnesses should be asked to record their statements in the Pakistani court.

He said the Pakistani panel had joined the Mumbai commission’s proceedings under sub-section 3 of section 503 of the CrPC .

Mr Cheema said that exempting the witnesses from cross-examination was against sections 503 and 507 of the CrPC and section 287/2 of the Indian CrPC which made cross-examination of witnesses mandatory in trials and inquiries.