Mumbai's long shadow: What led to Hafiz Saeed's arrest

The United Nations Security Council’s sanctions committee met in New York in May 2015, just weeks after the Lahore High Court had set free Zakiur Rehman Lakhvi, one of the prime suspects in the Mumbai attacks of 2008. The agenda of the meeting, convened on India’s request, was to seek a clarification from Pakistan over his release. Chinese diplomats engaged their Indian counterparts in informal discussions on the sidelines, asking them to come up with incriminating evidence against Lakhvi. They eventually blocked a discussion on the topic, using their veto and citing a lack of relevant information.

Pakistan has been demanding the same from India: provide evidence that is admissible in Pakistani courts so that Lakhvi and his six Pakistan-based associates can be effectively tried for their role in multiple attacks that killed more than 160 people in south Mumbai. The Foreign Office in Islamabad has stated on numerous occasions that poor and flawed evidence provided by India is the main reason for the delay in trial.

Lawyers defending Lakhvi at an anti-terrorism court hearing the case since 2009 have been taking a similar stance — that they should have been able to cross-examine Ajmal Kasab, hanged in India in November 2012 for being one of 10 men who had carried out the Mumbai attacks. Kasab had reportedly confessed in Indian police’s custody that he and his associates were trained and guided by Lakhvi, among others.

Without the cross-examination, says one defence lawyer on the condition of anonymity, “the case will remain inconclusive … as far as trial under Pakistani law is concerned”. He also says the documents provided by India – a registered copy of the Indian Supreme Court’s decision against Kasab, autopsy reports of nine attackers killed by the Indian police and various investigation reports and other legal documents – are “not enough” to prove the case against Lakhvi and his co-accused.

An official of the Federal Investigation Agency (FIA), that is prosecuting the case, confirms that the evidence presented before the anti-terrorism court mostly comprises papers — documents sent by India regarding the investigation and Kasab’s trial, and reports by Pakistani intelligence agencies.

There have been efforts to find more solid evidence. Pakistani investigators have visited India twice, in 2012 and 2014, to record statements of witnesses who had testified in trials over the Mumbai attacks and collect any other proof required for proceedings in Pakistan. They later told the trial court – that conducts hearings within Rawalpindi’s Adiala Jail, away from the media’s presence – that they were given access to only four witnesses and were barred from cross-examining any of them.

Public records show some of the flaws in the prosecution’s case. One prosecution witness, a schoolteacher from Kasab’s home town, claimed Kasab was still alive. Other prosecution witnesses did not even know about the Mumbai attacks. That was precisely the reason why the anti-terrorism court granted Lakhvi bail in December 2014. The government, however, kept him behind bars, fearing international pressure, for another four months under different administrative and criminal provisions of the law.

When the Lahore High Court eventually ordered Lakhvi’s release, it stressed the need for sufficient evidence to keep him detained. The “sensitive information” provided to the courts to justify his detention was not deemed “reliable”.

The federal interior ministry has been unsuccessfully trying to brushaside these demands, citing Saeed’s own claims that he had dissociatedhimself from LeT when it was banned in Pakistan in 2002.

Referring to these legal and judicial hurdles has done little to assuage foreign pressure on Pakistan for action against Lakhvi and Lashkar-e-Taiba (LeT) that he is said to have once commanded. Every time some terrorist act happens in India, pressure on Islamabad increases to move against him and his outfit. Action is also sought against Hafiz Saeed who is accused of being the LeT’s patron-in-chief and also the main motivator and instigator of the Mumbai attacks.

The federal interior ministry has been unsuccessfully trying to brush aside these demands, citing Saeed’s own claims that he had dissociated himself from LeT when it was banned in Pakistan in 2002. Background interviews reveal the ministry is either ignorant of or secretive about reports by Pakistan’s own intelligence agencies that he is still heading LeT. Lacking accurate information was a source of serious embarrassment for the ministry when in December 2012 Indian officials shared evidence of the association between Saeed and LeT.

At least one piece of evidence linking the two was revealed when Saudi Arabia arrested an Indian citizen, Sayeed Zabiuddin Ansari, also known as Abu Hamza and Abu Jundal, in 2012 and deported him to India. His name appears in Kasab’s confession, along with Lakhvi’s and Saeed’s, as a handler of the Mumbai attackers.

Jundal reportedly confessed during interrogations in India that he was arrested by Pakistani intelligence agencies from an LeT training camp in Muzaffarabad, capital of Pakistan-administered Kashmir, along with Lakhvi in 2008. He claimed he was allowed to travel to Saudi Arabia without trial. The interior ministry in Islamabad, however, knew nothing of his case.

Such evidence has made it extremely difficult for Pakistan to keep deferring action against Saeed and continue delaying Lakhvi’s trial without incurring diplomatic costs. A senior American official in the Trump administration recently warned officials of Pakistan’s embassy in Washington that Islamabad should expect sanctions from the United States if Saeed was not put behind bars and the Mumbai attacks trial not brought to a quick conclusion. Pakistan is not in a position to ignore the warning this time around, says a senior Foreign Office functionary in Islamabad.

Saeed was put under preventive detention on December 11, 2008, a week after the United Nations Security Council designated his Jamaatud Dawa (JuD) as an associate of al-Qaeda and Taliban. On June 2 next year, the Lahore High Court ordered his release on the ground that the government had failed to provide incriminating evidence to justify his detention.

The government made a second attempt in September 2009 to detain him. This time, the authorities registered two cases against him to justify his arrest — for collecting donations and delivering a speech in Faisalabad. The section of the Anti-Terrorism Act (ATA) invoked to lodge the cases states that leaders of banned organisations cannot seek donations and make public appearances. The Lahore High Court was unconvinced again — it freed Saeed, saying JuD was not a banned organisation in Pakistan and the cases, thus, were without legal basis.

These developments have only increased Pakistan’s diplomatic isolation on the issue. The country’s two major foreign interlocutors – United States and Saudi Arabia –openly support India’s cause. The third, China, is opposing the Indian stance so far but is pressurising Islamabad secretly to do something tangible – and soon – to address international concerns.

Informed government officials interviewed for this report say these diplomatic factors are the reason why Saeed was put under house arrest on January 31, 2017. His arrest was ordered by the interior ministry under an ATA section that proscribes individuals and organisations for involvement in terrorism, says A K Dogar, senior Supreme Court lawyer who has represented Saeed and JuD in many cases.

The government later put other restrictions on his client, including a travel ban and freezing of his assets. The latter action is taken in the light of Resolution 1267 of the United Nations Security Council that seeks to ban JuD, says Dogar.

He says he has not – so far – seen any material evidence that gives the government a solid basis for Saeed’s arrest. There is still room for courts to strike down the arrest orders citing insufficient evidence, the lawyer adds.

A legal expert argues the government may handle the case better if it makes the courts – and the people – know the exact nature of allegations and evidence against Saeed. Ahmer Bilal Soofi, a specialist in international law whose advice was sought by the government in 2009 on the issue, argues secrecy has been helping JuD chief get out of detention every time he is arrested. “We know nothing of the information or the intelligence report that has become the basis of Hafiz Saeed’s arrest,” he says. “[We also do not know if this information] has come from the Indians or the Americans.” What complicates the issue further, according to Soofi, is that the government always seeks a secret trial in any case involving JuD and LeT.

This leads to two outcomes. Firstly, the government’s relationship with JuD and LeT remains subject to speculation and any official moves against the two organisations are seen as a stopgap measure to ease international pressure. As soon as world attention moves away, Saeed becomes a free man again. Secondly, when the courts set him free, it gives him a clean chit in the public’s eyes.

A legal expert argues the government may handle the case better if itmakes the courts – and the people – know the exact nature ofallegations and evidence against Saeed

Secrecy is maintained through close collaboration between top leaders of LeT and JuD and government officials dealing with court cases against them. The two sides, for instance, closely guard all the information that they have become privy to during the Mumbai attacks trial, strictly adhering to an order by the anti-terrorism court to keep the proceedings confidential. “For talking to you I need to get permission from my clients,” is how Raja Rizwan Abbasi, the lawyer representing Lakhvi, responds to a request for an interview.

There is scant mention of LeT in the government’s unclassified records. The organisation figures in a public list, available online, of 64 organisations banned by the interior ministry. It also evokes positive comments from government officials without fail. It is not deemed a part of those militant groups that have turned against the Pakistani state and have attacked civilians.

Even when LeT was banned, officials say, the action was taken under duress. “It was banned along with six other organisations in the wake of an attack on the Indian parliament in 2001,” says a senior official in Islamabad.

While banning LeT has never been a government priority, the authorities have also failed to evolve a one-size-fits-all criteria for banning individuals and organisations involved in various types of terrorist and violent activities. Sipah-e-Sahaba Pakistan worked as a legal entity for more than a decade and a half.

Many of its prominent leaders became members of national and provincial legislatures in the 1990s — in 1993, one of them became a provincial minister in Punjab chief minister Manzoor Wattoo’s cabinet. Then it was banned in 2002. Yet its leader, Azam Tariq, contested the 2002 election as an independent candidate and won a National Assembly seat from Jhang. He then voted in favour of Zafarullah Jamali who needed a majority in the house to become the prime minister. How could the leader of a banned organisation manage to campaign publicly and then take part in forming the government in clear and open violation of ATA is a question that fetches no satisfactory answer.

Amir Rana, an Islamabad-based expert on militancy and terrorism, confirms there is no fixed official procedure for banning an organisation. The list of banned outfits includes those that were banned under international pressure, as well as those that have been banned on the basis of internal intelligence reports, he says. “Some others have been banned on the basis of reports from police or provincial/district governments.”

A senior interior ministry official concurs. We have failed to evolve a set procedure for banning an organisation, he says. “One thing, however, is clear — no organisation is banned without the approval of premier military and civilian intelligence agencies,” he says.

This article was originally published in the Herald's March 2017 issue. To read more subscribe to the Herald in print.

The writer is a special correspondent for Dawn News and tweets @Umer_1967.