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British lawyers disallowed from examining approver

A sessions court Wednesday disallowed British lawyers from examining the approver in the Gulshan Kumar murder case, as it would vitiate the trial, which has yet to commence three years after the audio king was gunned down in Bombay.

The decision is considered significant as it may have a bearing on extradition proceedings initiated by the Indian government against music director Nadeem Saifee in London.

The order was delivered by Additional Sessions Judge H S Deshpande after hearing Special Public Prosecutor Ujjwal Nikam and Nadeem's counsel Majeed Memon on the issue of examination of approver Mohammed Ali Shaikh at the pre-trial stage.

British lawyers Clive Nicholas and Paul Garlick, representing Nadeem and the Crown Prosecution, were present.

However, the court allowed the defense counsel to examine the approver's wife Banu and daughter Shabnam after the prosecution did not object to their deposition.

On a request by the Supreme Court of Great Britain, Bombay High Court Chief Justice B P Singh had on July 24 directed the sessions judge to record evidence of the approver and his relatives with regard to a letter by him to his lawyer in Hindi about making a voluntary disclosure.

The letter has become a bone of contention between both parties, with Nadeem alleging that the approver did not know Hindi and had signed it in ''broken Urdu''.

On the other hand, the prosecution has filed an affidavit of a jail superintendent in the London court, contending that the impugned letter was penned down by the approver in his handwriting.

Nikam argued that under Section 233 of the CrPC, the defense had a right to examine his witness only after the prosecution closed its case. He, therefore, objected to the examination of the approver at a pre-trial stage.

Besides, Nikam alleged that the approver had deliberately turned hostile to defend Nadeem. If the approver was allowed to be examined now, it would vitiate the trial.

Nadeem's counsel Majeed Memon argued that the approver was being examined only on the limited issue of proving his literacy with regard to the authorship of the letter dated September 25, 1997. The Supreme Court of Great Britain had allowed Nadeem's plea to examine Shaikh despite opposition from the Indian government only in the interest of justice.

He said Indian laws forbid examination of approver on the facts of the case only. In this case, Shaikh was being examined for a limited purpose and hence it would not vitiate the trial. Memon submitted that the prosecution's case would not stand if Shaikh denied writing the letter. Therefore, it will be in the interest of justice to allow his deposition.

Memon submitted that in a writ petition before the Bombay High Court, the approver had sought withdrawal of pardon and alleged that police forced him to change his lawyer Kishore Sukhrale and engage advocate Mokashi suggested by them.

Nadeem is charged with conspiracy to murder Gulshan Kumar. He was in London on a holiday with his family when the audio king was murdered on August 12, 1997.

Extradition proceedings were initiated in the United Kingdom, which Nadeem contested. The Bow Street Magistrate had ruled that there was prima facie evidence to show Nadeem's role in the crime. He has moved the London High Court in appeal.

PTI

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