A question of evidence —Shaukat Qadir


shaukatLet the bench that tries those finally accused be a joint Indo-Pak bench, headed by the judge of the ICC. Let us show the world how a joint investigation and a joint trial can resolve international problems, rather than unprovoked and unauthenticated accusations

The Indian government has, finally, handed over the ‘evidence’ collected regarding the involvement of Pakistani personnel in the Mumbai attacks to Pakistan formally; and contends that it is sufficient for Pakistan to act upon it. It has further demanded that the individuals accused be handed over to India. Another spokesman has added that, like the rest of the world, India is now waiting to see whether Pakistan acts on it or not.

Let it be clear at the very outset that wherever evidence exists regarding the involvement of a Pakistani citizen in acts of terrorism, it is in our interest that we must act against him/her/them. We need not respond to international pressure or worry about empty threats from India; we need to act because this cancer of terrorism is eating through our bowels. If the Mumbai attacks were committed by Pakistanis and India suffers from such an attack (apart from its homegrown violence) once a decade, we suffer from it almost on a daily basis. We need take no action to appease anybody, except our own citizens.

Having said that, let us examine the evidence, which has been conveniently ‘leaked’ to the press. It consists of a ‘confession’ by Ajmal Kasab, in which he has named his nine companions in the attack and a letter to the Pakistani High Commissioner in India, seeking his help as a Pakistani citizen — interestingly, both these documents are in Hindi! While it is possible that the confession, recorded by an Indian might have been written in Hindi, since that would be his natural language; it is highly unlikely that Kasab, a Pakistani, whose natural language would be Urdu, would resort to writing to our high commissioner, in his own hand, in Hindi, even if he had learnt the language!

That is the first thing that makes both these documents suspect.

While we have no evidence that the ‘confession’ was extorted under duress, there is also no concrete evidence that it was not. Under the circumstances, it would be natural for Pakistani authorities to assume that the confession was made under duress; which would make it inadmissible in any court. Had the investigation by India been conducted more transparently, had they asked for a Pakistani investigative officer along with a member of the judiciary to be present during the investigation, instead of summoning our spy chief, who heads an intelligence gathering organisation, not an investigative one, Pakistan would have been more likely to cooperate then and more likely to accept the authenticity of the evidence delivered now. After all, it was Scotland Yard and the FBI that assisted in the investigation, not MI5 or the CIA!

Secondly, Kasab’s confession names only the nine companions killed by Indian security forces. In an earlier article, I have already explained that it would be a physical impossibility for ten individuals to attack nine different locations simultaneously, wreak the havoc they did, hold people hostage, and successfully hold off against the hordes of Indian security forces for sixty-two hours. If the Indians have accepted that there were only ten attackers, then I confess to have credited them with more intelligence than they have demonstrated.

Thirdly, after obtaining Kasab’s ‘confession’, India had initially accused Masood Azhar Masood and others. Zakiur Rahman Lakhvi and his cohorts were never on India’s list. Since Pakistani authorities considered him the leading suspect, now Kasab seems to have named Lakhvi, his deputy Zarrar and others.

The remaining ‘supportive’ evidence consists of ‘decoded Skype calls’ made over the internet; Pakistani cell telephone numbers of individuals that the attackers supposedly spoke to; and T-shirts, shaving creams, toothpaste etc. recovered from the hijacked boat they came ashore in, which are of Pakistani origin. Any court of law, other than Kangaroo Courts following the sterling example set by US military courts, would not even accept this as sufficient prima facie evidence to consider the individuals India has named even as ‘accused’.

That being stated, what should the Pakistan government do?

While any investigation is underway, those being investigated are initially suspects. When sufficient prima facie evidence is produced before a court, it declares the individual(s) to have become accused and orders their trial.

Pakistan should initiate a transparent investigation, beginning with the assumption that those named by Indian authorities along with those suspected by our own are mere suspects. Pakistan should insist on assistance from Scotland Yard and request Indian authorities to participate with a member of their judiciary and representation from their investigative agency, we don’t want more of their RAW people here.

I suggest that Interpol be also invited in, even though the Interpol is essentially a policing agency not an investigative one. Its presence would add to the authenticity of our investigation. I would avoid requesting for the FBI for security reasons as well as the fact that they tend to hijack any investigation.

Even a judge of the International Criminal Court would be welcome; the more transparent the better. And if evidence is available against any Pakistani, let him be tried with all those who participated in the investigation being present. I would even be willing to set a new international precedent, let the bench that tries those finally accused be a joint Indo-Pak bench, headed by the judge of the ICC. Let us show the world how a joint investigation and a joint trial can resolve international problems, rather than the unprovoked and unauthenticated accusations and the warmongering that India indulges in. Regretfully, we have a point to prove; let us prove it in a manner that makes the point for all times.

India has again accused these attackers of enjoying the support of the ISI and the army; let us ask the Indian authorities to ‘put up or shut up’. If they can conjure up some ‘evidence’, let this also be part of this investigation. If there are serving officers in the Pakistan army guilty of supporting terrorism, as have been found in India, let them also be unmasked. This barrage of periodical unsupported accusations by Indians and others, who find it convenient to make them at will, has gone on long enough; it is time to put an end to it. We have enough problems to solve without being burdened by false accusations.

The author is a retired brigadier. He is also former vice president and founder of the Islamabad Policy Research Institute (IPRI)

 

Reproduced by permission of DT

http://www.dailytimes.com.pk/default.asp?page=2009\01\10\story_10-1-2009_pg3_4

 

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