New Delhi: The Supreme Court on Thursday said even terrorist Ajmal Kasab was given a fair trial, as CBI contended that Kashmiri separatist leader Yasin Malik has often travelled to Pakistan and shared the dais with Hafiz Saeed, and pressed Malik is “just not another terrorist” and "cannot go by the book in such cases".
Malik has sought to be physically present to cross-examine witnesses in a case. The matter came up before a bench comprising Justices Abhay. S. Oka and Augustine George Masih.
Justice Oka said no person cross-examines on video conference. Solicitor General Tushar Mehta, representing the CBI, contended that the court had said that it was not conducive to allow Yasin Malik’s physical appearance in the matter, and added, “We do not want to take him to Jammu and Kashmir because of the offence in which he has been convicted”.
However, Justice Oka queried, how a person cross-examined through the virtual conference, there is hardly any connectivity. Mehta clarified that there is connectivity and pressed that the trial can be shifted if he is adamant that he personally wants to cross-examine.
Mehta showed a picture of Malik and UN-proscribed terrorist Hafiz Saeed sharing the dais. “This person, the man (Malik) who shares the dais with Hafiz Saeed. There are security concerns. He (Malik) is not just another terrorist…”, said Mehta.
Justice Oka asked Mehta, how do you say that if a party or accused, who is appearing in person, wants to cross-examine he will not be allowed? “That was the card up his sleeve. We can also make some remedy available before the court…”, said Mehta.
Justice Oka said, just take instruction on how many witnesses are there in the trial. Mehta insisted on the bench to look at the picture of Malik and Saeed together in Pakistan and added that Malik used to travel to Pakistan.
“In our country, a fair trial was even given to Ajmal Kasab…lawyer was appointed to represent him in the high court”, said Justice Oka.
Mehta said the government is ready to represent him but Malik is refusing it, and added, “These are tricks…therefore, we cannot by the book in such cases”. Justice Oka asked Mehta to find out how many witnesses are to be examined and added, “Another option is also there, to set up a courtroom in jail. We will request the judge to sit there and record evidence”.
Mehta said if it happens in Delhi then he is ready. “Right now, I am ready. That happened in terrorist cases in Gujarat, and we had trials in jail. And, one of the witnesses was killed…..”, said Mehta.
The bench said the only question is that witnesses need security. Mehta agreed to it. “Tell us how many witnesses are there”, said Justice, adding that it is essential for setting up a courtroom in jail.
Mehta urged the bench to schedule the matter for further hearing after two weeks’. Justice Oka said Malik can appear before the apex court virtually. “Are there any accused in the trial, they would have to be heard. Just find out whether all the accused are parties…”, said Justice Oka. Mehta said no. The bench said then they should be impleaded as parties in the matter.
Mehta said, “If your lordships approve, can I move another petition under Article 32, joining others as a party, and giving antecedents of this fact…I will have to show justification”.
The bench said logistically it has to be worked out, so many witnesses would have to be brought. “We need to be two steps ahead of them. They can fail ten times but we cannot fail even once”, said Mehta.
The bench asked Mehta to take instructions, and he can amend the present CBI’s petition. Mehta said he could either amend the present petition or move a fresh petition. “We permit the petitioner (CBI) to implead all the accused in the case…..as party respondents. Amended petition to be filed within one week”, said the bench. The apex court scheduled the matter for further hearing next Thursday.
The apex court was hearing a plea by CBI against orders of a special court, Jammu, which issued a production warrant for the physical appearance of Kashmiri separatist leader Yasin Malik for cross-examination. Malik’s physical appearance was sought for cross-examination of witnesses’ connection with the killing of four IAF personnel and the abduction of Rubaiya Sayeed, daughter of Mufti Muhammad Sayeed in 1989. Malik, serving a life sentence in Tihar Jail after being convicted in a terror funding case.
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