Ajmal Kasab: A Mile Stone in Investigation, Trial and Due Process

By Radha Vinod Raju
Director (Retd), National Investigation Agency (NIA)

The savage attack on Mumbai by ten members of the Lashkar-e-Taiba (LeT) Fidayeen squad in November 2008, has been vividly recorded for posterity by the electronic and print media. Known as India’s 9/11, it resulted in the deaths of 166 innocent people, including 28 foreigners. For the first time, a terrorist who was seen executing people mercilessly at the Chatrapati Shivaji Terminus along with his partner in crime, was captured alive. 58 innocent passengers, women and children included, were killed in this horrendous crime.

The lone captured terrorist, Ajmal Amir Kasab, was also seen on TV channels the world over, giving details of his training in Pakistan, and the directions given to them by LeT’s bosses to kill as many Indians, Americans and Israelis as possible. The conversations between the terrorists and their handlers in Pakistan were also monitored by Indian and other Intelligence agencies in real time. What is the significance of capturing Kasab alive? The whole world has seen Kasab wielding the AK47 at the Chatrapati Shivaji Terminus, and heard his confession on TV. Should it have taken 18 months for his trial? Let us try and answer these questions.

The Fidayeen attack on the Indian Parliament on 13 December 2001, was also captured on the TV, live. All the 9 terrorists, suspected to be Pakistanis from the LeT and the Jaish-e-Mohammad, who took part in the attack were killed in the confrontation with the Indian security forces deployed at the Parliament House. We could not establish the identity of these 9 terrorists. Pakistan refused to accept that they were Pakistani citizens. In the case of Ajmal Kasab also, Pakistan initially denied that he was their citizen. It was only after the international media established the parentage and village of Kasab that, a month later Pakistan reluctantly acknowledged that Kasab was indeed its citizen and that some part of the conspiracy to attack Mumbai was hatched in Pakistan. This is the significance of capturing the terrorist alive in the Mumbai case. The other important aspect of getting Kasab alive was that details of the conspiracy to attack Mumbai and terrorize its people could be collected from him during his sustained interrogation by the investigators. The type of training they received, the details of the trainers and motivators, the various camps where training was conducted, the description of the safe houses, the details of the ten terrorists who were sent from Karachi to attack Mumbai, the details of their travel from Karachi to Mumbai during which they hijacked an Indian vessel Kuber and killed its occupants, their arrival at the Mumbai coast etc were collected after detailed interrogation of Kasab. This confessional statement of Kasab, which was later recorded under section 164 of the Criminal Procedure Code of India by a Magistrate, will form an important piece of evidence in the trial against the planners of the Mumbai attack currently on way in a Pakistani court. The Indian stand that the chief patron of LeT, Hafiz Sayed, was involved in the Mumbai terror attack is based on Kasab’s statement. This then is the significance of capturing Kasab alive.

The criminal justice system as it operates in India, consists of the investigating agency, the prosecuting agency, the judiciary and the jail administration. We believe that until proved guilty by due process of law, the accused is presumed to be innocent. We may have seen Kasab on TV killing innocent people in the railway terminus, and seen and heard him making his confession on TV. But that is not due process of law. The process under the Criminal Justice System commences after a case is registered under section 154 of the Criminal Procedure Code in the Police Station. After due investigation, the case is charge sheeted in the jurisdictional court by the investigating officer, citing the various evidence, oral, documentary and scientific collected in the course of investigation, on which the charge sheet is based. The judge then conducts the trial in accordance with the provisions of the Code, by summoning witnesses and recording their evidence, after giving opportunity to the defence lawyer to cross-examine the witness. If for some reason the accused is not in a position to engage a lawyer, then the State engages one on his behalf. Kasab’s lawyer was engaged by the State. Witnesses who have seen Kasab firing with the AK47 have to depose, and the weapon seized from Kasab has to be proved to have been used in the killing. That apart, to establish the conspiracy, the communication used by the terrorists and their handlers, including Voice Over Internet Protocol, had to be established through scientific means. The trial was useful in that, because for the first time in India, officers of the FBI gave evidence, mostly scientific. The significance of this is the cooperation in tackling international terrorism that the trial has brought about.

The trial further established that the court is not a rubber stamp in India, whatever be the terrorist provocation. Two others charge sheeted along with Kasab, were acquitted by the court. The investigation had alleged that these two accused, Sabauddin Ahmed and Fahim Ansari, had given the terrorists maps of the various places that had been attacked. The court found the evidence produced by the prosecution unreliable. In the light of the disclosures of David Coleman Headley, indeed the accusations against the two acquitted accused had begun to sound hollow. Thus, though the trial took some time, the end result has more than justified the due process that it had to go through.