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Mumbai Police's appeal in the 26/11 case does not mention the name of American Lashkar-e-Tayiba operative David Headley as the one who surveyed the targets in Mumbai. Instead, it mentions the names of Fahim Ansari and Sabahuddin.
Now, a plea is being filed in the Supreme Court to include Headley in the proceedings.
Ejaz Naqvi, counsel for Sabahuddin, told rediff.com that he would be filing a petition before the Supreme Court to make Headley a party to the proceedings before the Bombay high court, which is hearing a set of three appeals in connection with the 26/11 case.
Fahim Ansari and Sabahuddin were acquitted for want of evidence by the lower court and the state had filed an appeal against this while also seeking confirmation of the death sentence handed out to Lashkar terrorist Ajmal Kasab.
Naqvi's contention is that Headley had confessed to his crimes and that the same had been recorded by a court in the United States as well as the National Investigation Agency. However, the prosecution had not once mentioned Headley's name in the appeal.
Sources say there is a reason why the prosecution has remained silent about the Headley angle.
They say that when the Headley angle first came out, the crime branch had filed an application under Section 173(8) of the Code of Criminal Procedure to probe this angle further.
The lower court passed an order permitting the crime branch to look into this angle and file further evidence before the court. However, there has been no progress on this front and the police have not been able to establish any proper evidence with regard to Headley, sources add.
The case is mainly being handled by the NIA, which is in possession of Headley's statement in which he speaks about his operation in the city leading up to the 26/11 attack. But it would take a while before the NIA builds up the entire case and puts into perspective his confession and also the evidence they have managed to gather from the ground.
However, all is not lost and it is not as though the Headley angle would never come up before the court. Once the NIA chargesheet is ready, they can always move the trial court first and request it to try Headley in absentia.
The trial court can also hand out a sentence to Headley, but the same would be in absentia as he cannot be extradited to India following his plea bargain arrangement made in the US court.