New Role for Headley? From 26/11 Accused to 'Expert' on Cases He Knows Nothing Of

NEW DELHI: Q. (Public Prosecutor): there is a women's wing in the LeT?
A. (David Headley): yes.

Q. (Public Prosecutor): who is the head?
A. (David Headley): the mother of Abu Aiman

Q. (Public Prosecutor):are there female suicide bombers in LeT?
A. (David Headley): no I don't know

Q. (Public Prosecutor): can you name a suicide bomber?
A. (David Headley):I cannot name.

Q. (Public Prosecutor): was there a botched up operation in India?
A. (David Headley): there was a botched up operation which I learnt while Zaki Ur Rehman Lakhvi was talking to Muzzamil Bhat

Later I asked Muzzamnil and he told there was a female member of the LET who was killed in a police shootout at a naka (picket). Exact place I cannot recall.

Q. (Public Prosecutor): I gave you three options. Noor Begum. Ishrat Jehan and ((xxx))
A. (David Headley): Ishrat Jehan

The ruling Bharatiya Janata party, whose party president Amit Shah was named in the Ishrat Jahan case but given a ‘clean chit’ by the CBI in May 2014, embraced the statement and in the process placed Headley in a position to pronounce verdicts on cases and individuals with which he is not even been associated with. And about which he himself pledges ignorance.The BJP demanded an apology from the Congress, and the trolls took to the social media to launch a vicious attack on those raising questions about the manner in which the Public Prosecutor had raised an unconnected issue. That despite the first response from Headley on Ishrat Jahan being in the negative, gone on to give Headley an arbitrary choice of three names to pick the woman terrorist, and he had then settled for Ishrat Jahan, making it clear in the process that he had no idea where the encounter took place, and little knowledge of the incident.

The questions that arise from the video conference testimony of Headley in a Mumbai TADA court are:

1. What are his credentials that he is being asked to give a verdict on Ishrat Jahan who was killed in a fake encounter and had nothing to do with the 26/11 case for which Headley is being questioned.

2.How has he been elevated to a position where he can pronounce on cases that have nothing to do with him, and are still being heard in the courts? And this also when he himself made it very clear that he had no information, had no idea who was the woman killed, did not even know the state in which the encounter had taken place.

3. So from this arises the question whether Headley is now being turned into the fat cat who can be ‘used’ as and when required, on issues not connected with the case for which he is wanted here?

He is held by the United States, he has struck a deal whereby he cannot be extradited to India and will remain in US prison for 35 years, has clearly little to say beyond what the Americans have got out from him and since shared with the governments of India. And so far as sources said, Headley has not revealed anything more that the intelligence top brass did not know already. Until the recent questionable questioning by the Public Prosecutor forced an ‘admission’ that legal experts and officialsl say cannot withstand the scrutiny of law.

The questioning and the manner in which he was asked to pick his choice from three options in a case that is not just controversial but extremely important has raised eyebrows in the legal and official world. A senior officer of the external intelligence services well regarded and respected for impartiality, and now retired, Vappala Balachandran pointed out to The Citizen, “Ujwal Nikkam's (Public Prosecutor) question was wholly unrelated to 26/11. Evidence Act lays down that a witness should depose only "what is within his knowledge". That was not the issue here.Headley quoted somebody else. That is hearsay.(not allowed).”

Balachandran further added, “ Nikkam asked "leading questions" which is not allowed in the "Examination-in-chief" since Headley is a prosecution witness. Leading questions can be asked only in Cross Examination by the defence or if a prosecution witness is declared "hostile".

Vrinda Grover, Ishrat Jahan’s lawyer also attacked the prosecution and made the following pointst:

Ishrat Jahan was killed in a fake encounter in June 2004 on the outskirts of Ahmedabad in Gujarat, this stands proven by the SIT investigation monitored by the Division Bench of the Gujarat High Court; subsequent CBI investigation which lead to the filing of one chargesheet against senior police officers of Gujarat and a supplementary chargesheet against IB officers. All the investigations pointed to a large criminal conspiracy which led to the illegal abduction, detention of Ishrat Jahan and her cold blooded murder by the Gujarat police which was staged as an encounter. The investigation also revealed that this conspiracy and encounter was carried out on the instructions of the political executive of the State of Gujarat. The trial in these cases is pending in the Gujarat Court. For reasons best known to it, the CBI is not proceeding with the trial.

2- Under Indian law the cold blooded killing of any person is murder. It is for this reason that Ajmal Kasab once taken into custody was prosecuted and tried. The law does not allow the police to kill even a terrorist once the person is in custody of the police.

3- The nature of the questions put to David Headley by the Public Prosecutor Ujjwal Nikam and the answers given by Headley

A- HEARSAY EVIDENCE

B-LEADING QUESTIONS CANNOT BE PUT TO A WITNESS

C-APPROVER'S EVIDENCE

Information given by Headley, manner in which it was extracted- has no legal value

It is important to remember that this testimony is being taken with respect to the 26/11 trials so that India can present conclusive proof of the role of Pakistan in the attacks. What Headley has said is not evidence. Headley’s testimony- the sequence shows that he had absolutely no knowledge about any female suicide bomber, even when he speaks about a botched up operation, he does not give any particulars, nor does he name anyone involved. This very clearly shows that he had no personal knowledge.

Categorically states that he has no personal knowledge about female suicide bomber in LeT, he is then asked whether he can name a suicide bomber- “I cannot name”, then a new questions is put about a botched up operation, he responds saying he has overheard a conversation, and later he asked Muzammil. He has no knowledge about whether the woman was killed in Gujarat or anywhere else. He is then given three options of names, out of which Headley selects Ishrat Jahan. This is double hearsay. This is not evidence by any standards. Headley has categorically stated that he does not know anything, the Public Prosecutor has extracted it out of Headley by giving him multiple options, such leading questions cannot be put to a witness, and is unheard of in Indian trials. Shocking that such evidence was taken on judicial record.

Cannot give multiple choice questions, ask him leading questions and extract an answer.

Statement of an approver is an inherently weak piece of evidence and requires corroboration in all material particulars.

There is no evidence to show that Ishrat Jahan was a terrorist, she was studying and working in Mumbra. The only need to desperately label her as a terrorist is because if the conspiracy is ever investigated, it will lead us to political leaders in high places.
we want to distract the national discourse from the encounter killing to whether she is a terrorist or not, which to my mind in any case is irrelevant.

4- Need to ask why this is sought to be brought on to the judicial record so desperately.

This piece of information is being brought on record to serve political interests not for the purpose of any national security.

Another objection raised by experts rests on Headley appearing as a “witness” in the Mumbai courts with the question: “how can an individual who had done detailed plotting of the 26/11 attack be treated as a witness? “

Balachandran pointed out that Headley pleaded guilty on three conditions to a dozen US federal terrorism charges, including planning the 2008 Mumbai terrorist attacks and attempt on the Danish newspaper. One, he would not be given death penalty. Two, he would not be extradited to India, Pakistan or Denmark. Three “Sentencing guidelines” would be followed.

In return he agreed to fully participate in any debriefings for the purpose of gathering intelligence or national security information. He also agreed to testify in any foreign judicial proceedings held in the United States by way of deposition, video-conferencing or letters rogatory when directed by the United States Attorney’s Office. This is what he is now doing in Mumbai. Or is supposed to.

So how does Ishrat Jahan, a young student suddenly appeared in the picture? And why was Headley even questioned about it? As Grover said, Ishrat Jahan, 19 years old and student of 2nd Years, B. Sc when she died had no criminal record. She had met Javed @Pranesh from the first time o 1.5.2004. She had travelled with Javed to Lucknow and Ibrampur, district Faizabad in U.P and twice visited Ahmedabad with Javed. She may have understood that Javed was engaged in illegal activities involving smuggling and counterfeit currency. Statement of Rashid also indicates, that she had knowledge about Javed’s illegal activities before she joined him. However, there is no evidence to indicate that she had any terrorist links.

And then of course arises the question that gets lost in the politics: is the policy now to allow the police forces the impunity to kill ‘suspects’ in cold blood? And look for justification for this policy, instead of ensuring that those responsible for the fake encounter are brought to trial.