Jammu and Kashmir Liberation Front leader Yasin Malik
Credit: PTI Photo
New Delhi: The Supreme Court on Thursday said even terrorist Ajmal Kasab was given a fair trial, as it asked CBI to explore option of setting up a court in jail to let Kashmiri separatist leader Yasin Malik cross examine witnesses in a case against him in view of resistance by the agency to take him to Jammu and Kashmir.
The CBI led by Solicitor General Tushar Mehta submitted before a bench of Justices Abhay S Oka and Augustine George Masih that Malik has often travelled to Pakistan and shared the dais with Hafiz Saeed.
He is “just not another terrorist” and "cannot go by the book in such cases", Mehta said.
Malik has sought to be physically present to cross-examine witnesses in the case.
The court said no person cross-examines on video conference.
Mehta contended that the court had said that it was not conducive to allow Yasin Malik’s physical appearance in the matter. “We do not want to take him to Jammu and Kashmir because of the offence in which he has been convicted,” he said.
The court cited connectivity issue.
Mehta, on his part, clarified that there is connectivity. He said 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," he said.
The bench 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,” Mehta said.
The bench asked him to 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.
He claimed 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,” the bench said.
Mehta said the government is ready to represent him but Malik is refusing it. “These are tricks, therefore, we cannot go by the book in such cases,” he said.
The court said one of the options is to set up a courtroom in jail.
"We will request the judge to sit there and record evidence,” the bench said.
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," Mehta said.
The bench said the only question is that witnesses need security. Mehta agreed to it.
Mehta asked the court to schedule the matter for further hearing after two weeks’. The bench 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,” the bench asked Mehta.
Mehta sought to place backgrounds of the case, if the court allowed.
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,” Mehta said.
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,” the bench said.
The apex court fixed the matter for further hearing next Thursday.
The CBI filed a plea 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 has been serving a life term sentence in Tihar Jail after being convicted in a terror funding case.