India-Pakistan: Trial And Errors Of 26/11 – Analysis

By Sanchita Bhattacharya

The fourth anniversary of the November 26, 2008 (26/11), carnage has been marked by the hanging of Mohammed Ajmal Mohammad Amir Kasab alias Abu Mujahid, the Lashkar-e-Toiba (LeT) terrorist who survived the attack. Kasab was hanged to death at the Yerawada Prison in Pune (Maharashtra) at 07:30 hrs on November 21, 2012, with the final proceedings kept secret under “Operation-X”.

Kasab was arrested on November 26, 2008, the first day of the attack – which lasted almost 62 hours – and was lodged in the Arthur Road Prison in Pune. The trial in the case begun on April 25, 2009. While he was convicted and given capital punishment by the trial court on May 6, 2010, two Indian co-accused, Fahim Harshad Mohammad Yusuf and Sababuddin Shaikh, accused of providing logistic support for attacks, were acquitted. The sentence was upheld by the Bombay High Court on February 21, 2011. The Supreme Court of India subsequently upheld the sentence on August 29, 2012. Kasab then filed a mercy petition to President of India, Pranab Mukherjee. On October 16, 2012, the Union Ministry of Home Affairs recommended the rejection of Kasab’s mercy petition and forwarded the same to President. The Presidential order was passed on November 5, 2012, and, after due process in the Courts, November 21, 2012, was fixed for the execution. Kasab was then transferred to the Yerawada Prison.

26/11 was a defining event because of the enormity of the attack. 166 people – including civilians and Police/Security Forces personnel as well as 26 foreign national – were killed in the operation. Significantly, this is the first attack in which the investigations and further trails have led to the execution of a Pakistani terrorist on Indian soil.

Over 90,000 people have been killed in terrorism and insurgency-related violence across India since 1981, according to the South Asia Terrorism Portal (SATP) database. Despite India’s long experience of Pakistan-backed terrorism, Kasab is only the sixth terrorist to be hanged in this country. However, the first to be hanged was Maqbool Bhat, Jammu and Kashmir Liberation Front (JKLF) ‘president’, on February 11, 1984, for the murder of a Police Inspector; Kehar Singh and Satwant Singh Bakher were hanged for the assassination of Prime Minister Indira Gandhi on January 6, 1989; and Sukhdev Singh ‘Sukhha’ and Harjinder Singh ‘Jinda’ were hanged on October 9, 1992, for the assassination of the former Chief of Army Staff, General Arun Sridhar Vaidya.

Kasab and another nine Pakistani terrorists had landed in South Mumbai on 26/11 after travelling from Karachi (Sindh, Pakistan) by sea, and had gone on a shooting spree at various landmarks in Mumbai. The Mumbai Police had succeeded in capturing Kasab alive, though the remaining nine terrorists were killed.

Kasab was, of course, little more than a pawn or foot-soldier, and his death is just the end of one chapter, and not the conclusion of the much wider narrative of Pakistan backed terrorism on Indian soil. The real masterminds and perpetrators of 26/11 continue to move freely in Pakistan or are maintained in style and comfort, and with great operational freedom, ‘in prison’.

Soon after the attack, India had conveyed to Pakistan that Hafiz Muhammed Saeed, the founding chief of LeT and Jamaat-ud-Dawa (JuD), was the main architect of the attack and, in subsequent dossiers, gave the full details of the attack, as well as the identities of the other perpetrators and conspirators, all of whom were acting under Saeed’s instructions. Subsequently, the India’s National Investigation Agency (NIA), in its charge sheet dated December 24, 2011, listed 11 Pakistanis as the accused in the case: Hafiz Muhammed Saeed; Zaki-ur Rehman Lakhvi, ‘operations commander of LeT; Sajid Majid and Abdur Rehman Hashim, both Inter-Services Intelligence (ISI) Majors (retired); Major Iqbal and Major Sameer Ali, both serving ISI Majors; Ilyas Kashmiri, al Qaeda’s main ‘operational commander’ and ‘chief’ of the Harkat-ul-Jihad-al-Islami (HuJI), Pakistani American David Coleman Headley and Chicago based Pakistan born businessman Tahawwur Hussain Rana. In its Judgment in the Kasab case, the Supreme Court of India named 35 wanted accused, including Saeed, Lakhvi and others.

The extradition, arrest and subsequent confessions of one of the principal handlers of the 26/11 operation, LeT operative Syed Zaibuddin Ansari alias Abu Jundal, have thrown further light on the Pakistani – particularly Saeed’s – involvement. According to Jundal, Hafiz Saeed was present in the Karachi Control Room during the 26/11 attacks, along with Muzammil Butt, LeT ‘operational commander’.

In a parallel trial that started in the Chicago (USA) District Court on May 23, 2011, Headley testified on May 25 that he had conversations with Tahawwur Rana, who was accused of helping the attackers and providing support to LeT and a retired Pakistan military officer Abdur Rehman, known as ‘Pasha’. Headley confirmed that the ISI Directorate and elements in Pakistan’s military coordinated with LeT and other Pakistan militants. Headley also admitted to carrying out extensive reconnaissance in India, including extended surveillance in Mumbai, which contributed to the planning of 26/11. According to his disclosures during interrogation, Headley travelled to Mumbai in September 2006, February 2007, September 2007, April 2008 and July 2008, for the purpose of conducting surveillance of possible targets of attacks by LeT. Rana is to be sentenced for his role in 26/11 on December 4, 2012. Yet, no date has been set for sentencing Headley, who pleaded guilty on March 18, 2010, in a plea bargain to escape the death sentence. Headley had been arrested on October 3, 2009, and Rana on October 18, 2009.

Though the judicial and appeals process in India took four years before it culminated in Kasab’s hanging, Pakistan is still dragging on with the case in a Trial Court, though action had purportedly been initiated shortly after the attack. On November 30, 2008, Pakistani President Asif Ali Zardari declared that the people of India should see the Mumbai terrorist attacks as the action of ‘non-state actors’ and pledged ‘quick action’ against any individual or group shown to be involved. However, efforts to protect the guilty quickly began and, on January 4, 2009, the then Foreign Minister of Pakistan, Shah Mehmood Qureshi insisted that the 26/11 suspects would not be handed over to India as “we do not have an extradition treaty with India nor with the US”. It is a different matter that this has not prevented Pakistan from handing over a number of terrorists to the US, including Abu Yahya al-Libi (second-in-command of al Qaeda); Ramzi Bin al-Shibh (member of al Qaeda Hamburg Cell and a facilitator of the 9/11 attacks); Khalid Sheikh Muhammad (al Qaeda terrorist and involved in 9/11); Ramzi Ahmed Yousef (1993 World Trade Center Attacker); and Mir Aimal Kansi (involved in 1993 killing of CIA employees in CIA Headquarters of Washington DC), among others.

In order to project the idea of ‘taking action’ in the case, in the wake of mounting US pressure, Lakhvi and the six others accused in the 26/11 attacks – Abdul Wajid alias Zarar Shah, also of the LeT and described as a “facilitator and expert of computer networks”; Hamad Amin Sadiq, charged with “facilitating funds and hideouts” to 26/11 attackers; Mazhar Iqbal alias Abu al Qama, “handler”; Shahid Jamil Riaz, both facilitator for funds, as well as a crew member of the boat (Kuber) used by the attackers; Jamil Ahmed and Younus both “facilitators” – were arrested on December 7, 2008, near Muzaffarabad in Pakistan occupied Kashmir (PoK) by Pakistani Security Forces. Saeed was also put under house arrest on December 11, 2008, but was let off by the Lahore High Court on June 2, 2009, for “lack of evidence” linking him to terror outfits, including al Qaeda. He was again put under house arrest on September 21, 2009, following an Interpol Red Corner Notice dated August 25, 2009, but was again released by the Lahore High Court on October 12, 2009. Then Prime Minister Yousuf Raza Gilani argued, on May 13, 2012, “If you arrest him (Hafiz Saeed) that means he will be released by the courts. For the courts you need more evidence. You know the judiciary is completely independent in Pakistan.”

Unsurprisingly, the trail in Pakistan has faced roadblocks right from the initial stages. The case was registered in Pakistan on February 15, 2009. The first charge sheet against the accused was filed on May 5, 2009, in the Anti-Terrorism Court (set up in Adiala Jail of Rawalpindi, Punjab, Pakistan) under Judge Sakhi Mohammad Kahut. On May 23, 2009, when the Court was expected to formally indict the accused, Justice Kahut’s tenure expired. Justice Baqir Ali Rana was appointed in his place, but, on October 21, 2009, ‘expressed’ his inability to continue with the proceedings. Those close to him claimed that Justice Rana quit because the lawyers representing the accused boycotted court proceedings in protest against his decision to formally charge the seven suspects in their absence. The judge is also said to have received threats. On October 24, 2009, Justice Malik Mohammed Akram Awan, took charge of the case and hearings recommenced from October 31, 2009. He directed the prosecution to provide Kasab’s confessional statement and other documentary evidence against the accused. The hearing was adjourned till November 21, 2009. Awan, however, formally charged Lakhvi and six others on November 25, 2009, with planning, financing and facilitating the attacks. 16 people, including Kasab, were declared “proclaimed offenders”. But, in order to bury Hafiz Saeed’s role as the prime strategist behind the attacks, the court named Lakhvi as the ‘mastermind’.

Reports on November 22, 2012, indicated that in addition to the seven accused, Pakistan’s Federal Investigation Agency (FIA) had identified as many as 20 others, who allegedly planned and executed 26/11 attacks. According to the report, the FIA has gathered the photographs of all the 20 terror suspects, involved directly or indirectly in the 26/11 attacks, in addition to other important information. These suspects are said to have provided logistical and monetary support to the 10 terrorists who attacked Mumbai. During the probe, it was also revealed that these 20 suspects visited Muzaffarabad in PoK and Chahcho in Sindh to receive training at various LeT centres.

Soon after formal charges were framed, Awan was replaced by Judge Rana Nisar Ahmed, who was transferred out on June 11, 2011. He was replaced by Shahid Rafique, who was, again, transferred, without reason, on June 6, 2012. Rafique was replaced by Judge Chaudhry Habib-ur-Rehman, who is presently in charge of the case.

The frequent change or transfer of Judges appears to be little more than a tactic or ploy to delay the trial. However, some seriousness may now be emerging. On November 3, 2012, Chief Prosecutor Chaudhry Zulifqar Ali, in an application, stated that there had been an inordinate delay in the case and this was not giving a good impression of Pakistan to the world. Ali commented, “The anti-terrorism courts were established for speedy trial of the accused. Under Section 19(7) of the Anti- Terrorism Act of 1997, the speedy trial of the accused is mandatory”. He accused the defence lawyers of resorting to delaying tactics for the past four years and asked the court to look into this matter.

With Kasab gone, the theatre of action will be concentrated in Pakistan, putting more pressure on Islamabad to demonstrate visible progress in the prosecution. This does not, however, appear to have dampened the spirit of the extremists in Pakistan. Hafiz Saeed continues to openly deliver “hate speeches”, with authorities turning a blind-eye to his activities, and continuing to pamper him on the pretext of the “non-availability” of “credible evidence”. Kasab’s execution has also provided the LeT and Tehreek-i-Taliban Pakistan (TTP) an opportunity to come into the limelight again and issue “fresh threats” against India. On November 21, 2012, TTP ‘spokesperson’, Ehsanullah Ehsan declared (from an undisclosed location), “There is no doubt that it is very shocking news and a big loss that a Muslim has been hanged on Indian soil…. We have decided to target Indians to avenge the killing of Ajmal Kasab”. A LeT ‘commander’ also pronounced, “He [Kasab] was a hero and will inspire other fighters to follow his path”. There appears to be little likelihood, consequently, that the 26/11 trial will reach its logical conclusion in the near future.

In the interim, the Indian Government’s listless measures, including the setting up of mega institutions such as the National Investigation Agency (NIA), the creation of National Security Guard (NSG) hubs in major metropoliis – Mumbai, Chennai, Kolkata and Hyderabad; the incomplete National Intelligence Grid (NATGRID); and other initiatives, have had little impact on the ground, and former Union Minister of Home Affairs P. Chidambaram had repeatedly conceded that India’s cities remained as vulnerable to terrorist attack as they were on 26/11. There have, however, been significant operational successes in the intervening years, including the arrest of 538 persons involved in Islamist extremism, particularly LeT and Students Islamic Movement of India/Indian Mujahideen (SIMI/IM) cadres, ISI agents and Bangladeshi, Nepali and Pakistani nationals. Nevertheless, as long as the terrorist formations continue to receive support from Pakistan and to thrive in safe havens in that country, the threat of terrorism will continue to haunt India.

Sanchita Bhattacharya
Research Associate, Institute for Conflict Management