Pak to ask India for 26/11 witnesses' cross-examination

The Pakistan government will write to its Indian counterpart to allow the cross-examination of key witnesses in the Mumbai attacks case following a court's rejection of the findings of a judicial commission that visited India to gather evidence, a prosecutor has said.

Mohammad Azhar Chaudhry, a special prosecutor of the Federal Investigation Agency, said the Pakistan government will write to Indian authorities regarding the cross-examination of the Indian witnesses in order to fulfil legal requirements.

An anti-terrorism court conducting the trial of seven Pakistani suspects charged with planning, financing and executing the 2008 Mumbai attacks yesterday declared as illegal the findings of the Pakistani judicial commission that visited India in March.

Judge Chaudhry Habib-ur-Rehman said another commission could be sent to Mumbai if the governments of India and Pakistan agreed to allow the cross-examination of witnesses.

He further said the testimonies of four Indian witnesses could be used by prosecutors against the Pakistani accused only if Indian authorities allowed defence lawyers to cross-examine the witnesses.

Special prosecutor Chaudhry, who produced the judicial commission's 800-page report in the court, told the Dawn newspaper that setting aside the panel's findings would benefit the accused because the prosecution could not use the testimony of the four key witnesses.

Chaudhry contended that if the seven accused were acquitted, Indian judge S S Shinde, who oversaw proceedings of the commission in Mumbai, would be responsible for their acquittal because Shinde "did not follow the law of evidence and relevant sections of the Criminal Procedure Code".

He said Judge Shinde had denied the right of cross-examining the Indian witnesses at the request of prosecutor Ujwal Nikam.

Riaz Akram Cheema, one of the defence lawyers, said the defence counsel were still willing to go to India to cross-examine the witnesses.

"The anti-terrorism court accepted our petition which raised several objections to the Mumbai commission's proceedings and it definitely strengthened the defence case," he claimed.

Khwaja Haris Ahmed, the counsel for Lashkar-e-Tayiba commander Zakiur Rehman Lakhvi, argued that the defence lawyers and the prosecutors could cross-examine the Indian witnesses.

He said exempting these witnesses from cross-examination went against provisions of both Pakistan's Criminal Procedure Code and the Indian CrPC, which made cross-examination mandatory in trials and inquiries.

The Pakistani commission had recorded the statements of magistrate R V Sawant Waghule, who recorded the confessional statement of lone surviving attacker Ajmal Kasab, chief investigation officer Ramesh Mahale, and Ganesh Dhunraj and Chintaman Mohite, the two doctors who conducted autopsies of the terrorists killed during the attacks.

Under an agreement between the Indian and Pakistani governments, the panel was not allowed to cross-examine these witnesses.

The Pakistani anti-terrorism court yesterday said this violated the law of evidence.

"The testimonies of these witnesses were recorded in violation of the law of evidence and relevant sections of the Code of Criminal Procedure and, therefore, cannot be made part of the court record," the judge said in his order.

The court further said the understanding between the governments of India and Pakistan for exempting the Indian witnesses from cross-examination was illegal because it encroached on the right of defence.