Less than 60 days for India to link Masood Azhar with Pathankot attack: lawyer

Ahmer Bilal Soofi says JeM chief will have to be released or he will move high court if India does not provide evidence; India has proved through actions that attackers could be international non-state actors and not necessarily Pak citizens

ISLAMABAD: India has now less than 60 days to provide more concrete evidence of linking Jaish-e-Mohammad (JeM) chief Maulana Masood Azhar with the Pathankot Air Force base attack.

The Maulana is under custody in Islamabad. If India does not provide concrete evidence, he will need to be released or he will challenge the same in the High Court and Pakistan may witness similar fate when Hafiz Saeed was hurriedly detained after Mumbai attacks and then he got himself released after filing a petition with the High Court, while both governments remain unclear of how to provide a legal cover to the case, former law minister and an expert on International Law Ahmer Bilal Soofi tells The News in an interview.

“The Attorney General for Pakistan at that time (Mumbai attacks) had to concede that the Indians had not provided sufficient evidence of attribution”, says Soofi. The eminent lawyer also says India through its actions has proved that the attackers could be international non-state actors and not necessarily Pakistani citizens.

India has charged Maulana Masood Azhar with being the mastermind of Pathankot attack which saw seven members of its security forces being killed while all six attackers were also taken out.

Prime Minister Nawaz Sharif hence offered India a special investigation team (SIT)  to investigate the terrorist attack which New Delhi welcomed saying that the Indian intelligence agencies will extend full cooperation to the SIT.

India also welcomed Sharif government’s action against this banned outfit which was based on information passed on by New Delhi.  Apprehensions are being expressed in India that Pakistani investigators can receive legal cooperation here only if it is investigating a criminal case registered under a Pakistani law. The only other option for India to exchange information with the Pakistani SIT in the absence of a case would be informal and would carry no legal sanctity.

According to The Hindu, former Home Secretary R.K Singh said in the absence of any criminal case, the SIT was just like any other “inquiry committee”, which did not have any prosecution powers.

“If no case has been registered by Pakistan regarding the Pathankot attack, the SIT will have no power to investigate; at best, they can come here to inquire. Based on the information gathered, it will not be possible to prosecute anybody in Pakistan.

The information can not be used to send somebody to jail,” Mr. Singh said.  A legal officer told the paper: “Unless a record is created, either in the form of a preliminary inquiry or an FIR, how could an SIT come here and investigate.

The ideal situation would be that the accused belonging to the terrorist outfit named by India are extradited and are made to serve the sentence here.”  Another government official said, “The other scenario under which a Pakistani investigation team can come here is when India sends a letter rogatory to Pakistan to produce the accused in an Indian court in relation to the ongoing trial. A judicial team from the country can choose to come here, not investigators.”

When this was put to Ahmer Bilal Soofi, he said the “Pakistani side seems to have made use of section 11EEEE of the Anti-Terrorism Act, 1997 to take into custody Maulana Masood Azhar for 30 days as reported in the press. This is the only provision in which a person retained in preventive custody can be investigated as well. It is extendable by a further 30 days. In other words, India has now less than 60 days to provide more concrete evidence of linking Maulana Masood Azhar with the attack.

With regard to the proposed visit of the Pakistani investigation team to India, Soofi emphasized that at this point, this gesture of sending a Special Investigative Team was merely a sovereign act of courtesy offered by Pakistan to India. 

“At the moment, both states are not clear about the legal cover for such investigations to move forward. Therefore, I think in stage 1, both the states need to sit down and discuss the legal mechanism that needs to be followed for this inquiry to go further.

The proposed visit seems to be geared towards preliminary intelligence gathering which will enable the Pakistani investigators to make a professional assessment of the quality of intelligence on the Indian side. This assessment will determine whether the nature of the intelligence warrants the official commencement of the legal process in Pakistan”, explains Soofi.

Giving an example, Soofi says the Indian government has handed over detailed evidence relating to the attackers including the pictures of their bodies, specimens of their clothes etc. to the Interpol.

“This is an interesting move. This means the Indian government thinks that the terrorists who have been killed could be international non-state actors and not necessarily of Pakistani origin. Otherwise, there was no point in referring the handover of this information to the Interpol.

It is interesting that the Indians have chosen not to hand over more concrete evidence to the government of Pakistan which has just been given two cell phone numbers to explore further. 

If that is the case, then the Indians should not categorically assume that the attackers had Pakistani origins or were linked to Pakistan”, is a startling argument from the renowned lawyer.

Of special significance, notes Soofi, is that apart from the legal angle, there are also public perception ramifications of this issue which are important for a sustainable relationship between India and Pakistan.

“Once the investigation team concludes its visit, it can then make a judgment call if an FIR should be registered in Pakistan or not. The FIR may not necessarily be detailed or mention any specific names. After the registration of an FIR, the formal process of notification of a Joint Investigation Team may commence. The said JIT can then in a formal sense proceed to India to seek cooperation on the investigation side and request access to the site and other evidence. The legal process will then continue to move at its own pace”, he advises.

Asked to comment on the uncalled for television coverage that the Indian media gave to Maulana Masood Azhar almost treating him like a rock star for two consecutive days, Soofi responds, “The sensationalist coverage of Maulana Masood Azhar by the Indian media by splashing his face on TV screens unnecessarily and propagating the views of his organization is tantamount to the projection and glorification of terrorist acts that may incite further terrorist acts in violation of UNSC Resolution 1624”. Under the Pakistani law, says Soofi, the same is also expressly prohibited under Section 11-W of the Anti-Terrorism Act, 1997. 

“Justice Qazi Faez Isa of the Pakistan Supreme Court has actually developed jurisprudence to argue that this constitutes an independent obligation on the media to exercise self-restraint when reporting on such matters (PLD 2013 Balochistan 75). 

Therefore, the government of India and the Indian media should keep this legal restriction in mind which not only gives unnecessary prominence to a terrorist, but also raises the temperature and whips up public sentiment in both India and Pakistan that is difficult to reverse”, cautions Soofi.