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Raj Kumar Makkad (Adv P & H High Court Chandigarh)     08 December 2009


THE accused has to be almost lifted by policemen to enter the court; the senior defence lawyer is sacked and an obviously unfit junior appointed in his place. A year after Ajmal Kasab, the lone surviving terrorist of the 26/ 11 attack on Mumbai, was arrested, his trial has gone horribly wrong. No longer can we claim proudly that we gave even a terrorist whom the world saw committing his awful crime, a fair trial.


When Kasab is finally convicted, we won't have the satisfaction of looking back at legal proceedings wherein the overwhelming evidence against him was tested at every step.


It was his insistence on testing the evidence that cost Abbas Kazmi his job and Kasab an able defence lawyer.


Even in routine trials, defence lawyers refuse to accept affidavits presented by the prosecution as evidence.


Cross- examination of witnesses is the defence's right. Besides, there is an established procedure that's followed in all criminal trials — the prosecution files an application requesting the court to take its evidence on record, the defence files its reply, and then the judge gives a ruling.


This procedure was flouted by the prosecution. When Kazmi insisted that it be followed, he was sacked. In other words, Kasab's defence lawyer was sacked for being a thorough professional.


Would it have been better for Kazmi to have treated this trial as a paid holiday? The media went to town calculating his monthly income when his fees were announced — Rs 2,500 per hearing. Nobody bothered to find out how much the prosecution was being paid. Nor to inquire exactly how much time had been given to Kazmi to study the 14,000- page chargesheet.


The first time he requested half a day's adjournment to prepare for an important witness, he was turned down.




Being a professional in this particular case was never easy for Abbas Kazmi. Early on, he declared that he would not admit the documents presented by the prosecution. Any defence lawyer would have done the same, but Kazmi had a special reason for doing so: in the Afzal Guru case, the Supreme Court had adversely commented on the defence for having admitted the prosecution's documents. Immediately, he was accused of wanting to delay the trial by the high- profile prosecutor on national television. In court, the judge also expressed his displeasure.


Had Kazmi initially admitted all documents, and now, declined cross*xamination of witnesses described as formal by the prosecution, the trial might well have been complete by 26/ 11, the promise made by the prosecution time and again. Only then it wouldn't have been a trial, but a farce that would have made us a laughing stock in the world. But was cross- examination necessary, given the overwhelming evidence against Kasab? That's the question Kazmi has been asked again and again. His answer has always been grounded in the Constitution that lays down the basis of our criminal law — every accused is presumed to be innocent till proven guilty. In this case, even after Kasab's admission of guilt in court, the prosecution insisted, as a measure of abundant caution, that all the evidence be taken on record and the trial go on.


So why the sudden rush? Whence the need to flout procedure? Perhaps the answer lies in the wealth of detail emerging from the cross- examination: the guns that jammed; the walkie- talkies with dead batteries; the Quick Response Teams that froze; the calls for reinforcements that went unanswered. Then there are the more serious questions that have arisen — why was the identity of Abu Jindal, the man described by Kasab as their only Indian trainer in Pakistan, never traced? How did the man whose SIM card was used by the terrorists, have an ID card issued by the Government of India, Ministry of Urban Development? Who knows what more would have come to light had the remaining 340 witnesses taken the stand? These 340 were described by the prosecution as " formal'' witnesses. They included survivors, doctors who performed autopsies, and panchas . As Kazmi pointed out in his reply, the evidence contained in their affidavits could not be described as " ancillary'', but went to the " heart of the matter''. He had to cross- examine them.


Kasab's trial was the next best thing to a full- fledged inquiry into the 26/ 11 terrorist attack, an inquiry the government is not going to conduct.


The Ram Pradhan Committee report is unlikely to be tabled; even if it is, its findings cannot be entirely relied upon since it refused to meet persons such as Vinita Kamte, wife of Additional CP Ashok Kamte. Having gone to great lengths to unearth the circumstances surrounding her husband's killing outside Cama Hospital, she wanted to raise her doubts with the Committee. The Committee has praised the handling of the crisis by Joint CP Rakesh Maria in the Control Room. Vinita Kamte's findings have left Maria red- faced.




Even ATS chief Hemant Karkare's wife has often complained that she doesn't know why her husband was left to die on the road outside Cama " like a dog''. The facts that have emerged from Kazmi's cross- examination in this context are significant: despite frequent calls for reinforcements from and around Cama Hospital, none arrived.


In the days since Kazmi's sacking, his successor, who was his assistant, has already cut a sorry figure in court. The assistant's assistant has openly disagreed with his decision not to cross- examine witnesses. Outside court, he has demeaned his office by declaring gleefully that now that he will get Kazmi's fee, he need not travel by train anymore. Is this what we want to show the world? It is ironic that when Kasab's first lawyer was disqualified before the trial started, this same man was her assistant. Yet, the judge ignored him and thought it necessary to look for a senior defence counsel. He handpicked Kazmi, who had appeared for some of the accused in the Mumbai 1993 bomb blasts trial.




Kazmi has had to pay a heavy price for accepting the brief. His trusteeship of one of Mumbai's oldest clubs was revoked the day he was appointed. In court, he has been mocked at by the prosecution; outside, the media has criticised him simply for behaving as a professional, and also chosen not to report his cross- examination. Perhaps worst of all, he has failed to establish a relationship with his client, having had to interact with him only in the full glare of everyone in court.


Indeed, after Kasab's admission of guilt in court, Kazmi offered to resign, for Kasab had not consulted him before deciding on such a drastic step. However, he has put Kasab's requests to the court: a newspaper, some ittar to offset the unbearable stink in his bullet- proof cell … Undertrials are supposed to get all this, but then Kasab is no ordinary undertrial.


It's because Kazmi is no longer there that Kasab's current physical state must alarm everyone. The man whose cocky smile, so out of place in his own trial, made the judge and his own lawyer reprimand him time and again; who once rushed to his feet to say that a witness was lying; who wondered, after noticing the decorated wrists of everyone in court if anyone would tie him a rakhi ; now sits with his chin sunk in his chest, unable to keep his eyes open, deaf to the judge's repeated reprimands. He has complained repeatedly that his food is being drugged; prison doctors have rejected his claim. Any defence lawyer would have asked for an independent team of doctors to examine his client. Who will do that now that Kazmi has been sacked?


 2 Replies


N.K.Assumi (Advocate)     08 December 2009

Raj, thank you for posting the same in the forum in minute details. What struck me is how Kasab's lawyer was sacked by the court?

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