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Rediff.com  » News » 'As a patriotic Indian I have taken up Kasab's case'

'As a patriotic Indian I have taken up Kasab's case'

June 18, 2009 14:49 IST
In the legal world nobody envies advocate S G Abbas Kazmi. He is the lawyer for Ajmal Amir Kasab, the sole surviving terrorist of the 26/11 Mumbai terror attacks.

Kasab, a Pakistan national who was captured alive during the attacks on November 26-27, is being tried in a special court in Mumbai. Indian law requires that he should be provided a lawyer and that responsibility has fallen on Kazmi.

Lawyer Kazmi is also a theatre actor who has acted in a film, Rang. He even played the lead role in a television serial Your Honour. For many years he lived in Saudi Arabia as a consultant. During Partition his uncle and aunt migrated to Pakistan, but Kazmi's parents shifted to Mumbai from Lucknow.

In 1993, Kazmi handled the brief for a few accused in the Mumbai serial blasts case. Unlike that case, the 26/11 attacks case has only three accused.

The March 12, 1993 case had more than 100 accused. In that case no Pakistani was directly involved in the crimes, but this case is unique in that a Pakistani citizen faces trial.

Emotions run high in Mumbai because any news about Kasab's trial evokes memories of those horrific three days last November.

In April when Kazmi took up the case he was opposed by all including leaders of his community. His reply was that he is doing a service to the nation. Since the trial is on no one can comment on Kasab's fate, but in an exclusive interview with rediff.com's Sheela Bhatt, Kazmi argues why this trial is extremely important for India's credibility.

What was the first thing that registered in your mind when you met Kasab?

On April 16, when I was appointed as Kasab's advocate, I had an opportunity to meet him for a short while. Looking at him physically, I found him of a tender age. On his instruction, I moved an application in court that he is a juvenile (less than 18 years old).

But after an inquiry, the honourable court came to conclusion that he is about 21 years old.

His height is hardly 5.2 inches and he is of medium build.

He looked like a common young boy that we see on the streets. There is nothing startling or interesting about Kasab who is facing such grave allegations.

My experience of the moment has been very uncommon. I am appointed to defend a person who is facing 166 murder charges, huge destruction and charges of injuring many people.

Looking at his physical appearance I found it quite unusual. One was unable to match the person's physical appearance and the grave charges.

My first meeting was short. I told him I will be defending you. All my meetings so far have been inside the special court where the trial is conducted. I have never met him in private. I am given only 15 minutes. It is not enough. I want to take a detailed interview. Maybe because of high security I have not got a chance to meet him enough and take a legal interview to my satisfaction.

How and when was this case offered to you?

I was not very keen to take up this case. On November 26, I saw the event on television. It was a shocking affair. The entire city was held to ransom. A few gunmen were killing innocent people. I never thought ultimately I will have to defend someone involved in that. I was appointed as Kasab's lawyer only on April 16.

The special court began trial in the jail premises on April 15. Out of curiosity, I had gone to see the court and what the security is like. Anjali Waghmare was appointed as Kasab's lawyer. For some reason, she was divested of the case. I have appeared before Jusitce M L Tahilyani in the Gulshan Kumar murder case.

On that day in a meeting with the honourable judge and other members of the bar, I said that if no lawyer is coming forward to take up the case only then the court may consider me.

All of a sudden, out of blue, I was appointed by the respected judge. Kasab was merely informed about it.

Earlier Kasab wanted a Pakistani lawyer, but that is not possible under Indian law. My wife and children are concerned about my security, but they also know me well. I am a bold person and they know my adventurous nature.

I tell my children that when time demands they should rise and they should not be timid in taking up life's challenges. I took up the case as a purely professional duty. I haven't haggled over money. As a patriotic Indian I have taken up the case.

What is the challenge, if any, in this case for you?

What we see and what we believe and what is the fact are different things. The court trial is always an endeavour to bring the truth to the surface. The common man is not aware of the provisions of the law. The legal provisions only an advocate can bring before the honourable court.

Our law is such that the prosecution has to prove the case. Every accused person is presumed innocent until found guilty in accordance with the law. So, I have started on a clean chit that he is an innocent person.

Have you really been successful in weakening the prosecution's case?

I cannot say that. We have covered only (the hijacking of the fishing boat) Kuber incident and the Chowpatty incident (where Kasab was arrested). Now witnesses from CST (Chhatrapati Shivaji Terminus), Nariman House, Taj, Leopold and Oberoi incidents will come. We have to go a long way.

But I am taking my job very seriously. I am asked to render my professional duty. There was a panch witness whose evidence were recorded. The defence lawyer has the opportunity to cross-examine all witnesses. The police chargesheet said he (the panch) was 23 years old. I had the evidence copy with me and the age was shown as 23.

I realised that he is not 23. I asked him if he is married. He said he is married with two children. I asked him, "Can you give me the age of your children?" He said, "My elder daughter is 13 years old." Then we looked for proof of his age. His driving license showed his age as 35 years.

The honourable judge was perturbed. He said, "Mr Kazmi, you are blowing this matter out of proportion. This must be some clerical error." But even the police statement that was recorded some three months ago had shown his age as 23.

I put up my case saying that he (the panch) was not present when the panchnama was done. Some other person aged 23 had conducted the panchnama.

In this case, police witnesses are really well-tutored. After this incident the honourable judge has given strict instruction to his staff to not make any such mistakes in recording the case.

During the trial you may bring out routine errors which are quite common, but the broader issue is quite clear in the minds of the public because there are so many witnesses. Kasab is from Pakistan, he came via the sea, he had an AK-47 and there is video footage showing him shooting people at the CST. So what fact are you contesting? What are you defending?

The Indian Constitution says that all accused should be given legal representation. Under Indian law someone has to take up the legal case. Let us presume that he is acquitted or assume that he is convicted.

If he is convicted then he has an option to move to the high court or the Supreme Court. Over there some other lawyer will take up the case. Here I am giving him legal representation.

As the prosecution case unfolds, I will build my defence. As per the law, the prosecutor has to prove that he is a Pakistani. It's the prosecution that has to prove that the alleged AK-47 rifle that was recovered from Kasab was the same that was used to kill people.

The bullets found from the victim's bodies have to match the AK-47 that was recovered by the police. I also want to see the post-mortem reports.

I am the defence lawyer and for us the post-mortem report is the key to such cases. I can't accept the post-mortem report without scrutinising it.

How strong will be your defence be?

The world knows that the prosecution is saying that they have an open and shut case. The entire nation has seen Ajmal Kasab on television. And people have seen his photographs which were printed in all newspapers. There are over 30 eyewitnesses in this case against Kasab.

It is a very difficult case as far as the defence is concerned. It is going to be an uphill task for me. Since I have been appointed and asked to perform my duty as the defence lawyer I will do it to the best of my capacity.

What is the focus of your defence?

This is not a game where win or lose is the ultimate aim. The ultimate aim is to see that every accused is innocent until proven guilty by law. And every accused has the right to be represented by a lawyer. As per the directives of the court I am doing my duty.

As per his understanding, my client is giving me inputs -- like all those alleged articles that the police say belong to him are not his. Whenever a witness says something I ask Kasab if he has to say something.

Are you claming he is not a Pakistani?

That the prosecution has to prove. I am accepting that he is facing trial. He is an accused in the case and I am appointed to defend him.

Does your client accept that he came from Pakistan?

No, my client has not given me any such instructions. My client has not spoken about guilt or anything. He wants to be tried. If he wanted he could have pleaded guilty earlier. But before the court he has not pleaded guilty.

He says I am innocent. His prayer was that of innocence. As the case unfolds the defence strategy will be put forward.

On Kasab's instructions I will fight the case. But it's a very difficult case.

The prosecutor has said many times that you are using a lot of the court's time unnecessarily.

The trial is proceeding speedily. I have not seen any trial moving so speedily. We have covered about 40 witnesses in 25 days. It is vacation time and I have sacrificed my time.

My family is out of Mumbai and I am working day and night on the trial. So there is no question of delay as far as I am concerned.

In court you do not accept even formal documents like post-mortem reports.

There are several Supreme Court judgments about it. In the Afzal Guru case (the Parliament attack case) the trial court had accepted the formal documents, but the Supreme Court said that at the trial, the lawyer should not have accepted those formal documents.

These are incriminating documents without witnesses. No prudent lawyer will accept these documents. It's a baseless allegation.

You have withdrawn Kasab's confessional statement.

It was retracted immediately. On Kasab's instructions, I made an application that this confessional statement was taken by force and coercion and Kasab was subject to third degree torture. It was not a voluntary confession.

On April 17, he withdrew the confession. When I read it out to him he said he has not said any such thing. No ordinary man would say that he got the training of arms, boarded a boat, killed a navigator with a knife and on arrival in Mumbai went on a shooting spree killing people.

Nobody would accept such serious allegations voluntarily. Kasab told me he was forced to give a statement. We communicate in Hindi and Urdu.

It is claimed that he does not show any remorse.

You should look at his tender age. He is in solitary confinement. His barrack has been covered by a bullet-proof iron sheet. No fresh air or light can pass through. His toilet is in the barrack and stinking. He asked the court for ordinary ittar (fragrance) costing Rs 25, but the media blew it out of proportion.

Has anyone contacted you from Pakistan?

Some Indian press persons contacted me who have connections with the Pakistan press. Geo (the Pakistan television channel) and Dawn newspaper wanted to contact me. I strictly said not to give my numbers. I don't want to be in touch with the Pakistan media.

It's a simple reason. If the Indian press writes anything which is not true I can go to court against them. If they write something attributing it to me and if it's incorrect I can send a legal notice. I have some control over them.

If the Pakistani papers write something and a dispute arises, I have no legal option or any control over them.

Do you think Kasab should have been tried in a military court as a war criminal?

There is a charge of waging war against him. The civil court procedure is perfectly fine. His was a civilian action. Even the police is not claming that he was an army man.

Are you under stress due to this case?

Yes, I am under immense pressure. This case is going on a day to day basis unlike other cases. You get time to plead also. Here, every day after court hours I have to sit in my office for long hours to prepare for my defence the next day.

I am provided security. I am totally cut off from the rest of the world. When I took up the assignment, I moved an application to get at least a month's time to read the 11,000 pages charge-sheet. I was given only a week's time. I wasn't given adequate time. Every day we take up 2, 3 witnesses. I am not satisfied with the way I have prepared.

On balance are you satisfied?

Yeah. Things are moving very smoothly. We are giving fair trial to an accused. We as a civilised nation are making an effort to give the fair trial to an accused. For that purpose I have been appointed. As I said, I am doing my job with total honesty.

Do you think Kasab has hope that he can get out of this case?

I think he has a hope that is why he has not pleaded guilty.

In Mumbai lots of people are impatient with the trial.

Yes, people carry the hatred. But we have to educate people. We as a civilised nation do not believe in mob lynching. We can't catch a guy and bring him to the Gateway of India and hang him.

We are being watched by the entire world. We have to show the world that India is a just nation and the rule of law prevails here. We have given a fair trial to so-called terrorists. We should have the patience for it.

Sheela Bhatt