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Nadeem plays the communal card

H S Rao in London

Playing the communal card, Bollywood music director Nadeem Akhtar Saifee, facing extradition proceedings in connection with audio king Gulshan Kumar's murder, said he would not receive a fair trial in Bombay as he was a Muslim.

In his appeal filed in the high court in London on Monday against the decision of a magistrate in October last year to extradite him, Nadeem said when he first heard of the charges he considered returning to Bombay to face them, but later decided against it as he believed he would not receive a fair trial there because he was a Muslim.

The appeal, filed through his counsel Clive Nicholls QC in the form of a habeas corpus action, is concerned mainly with the evidence of the key prosecution witness, Mohammed Ali Shaikh, who in a statement made before a Bombay magistrate confessed to being part of a conspiracy to eliminate Kumar and named Nadeem as co-conspirator.

Nadeem was on holiday in London when Kumar was killed on August 12, 1997.

Shaikh later retracted his confession, saying that it was elicited through intimidation, pressure and improper methods by police and prison officers.

At the extradition hearing before the magistrate, both the prosecution and the defence agreed that without Shaikh's evidence there would be no prima facie case against Nadeem.

Nadeem's counsel asked the two judges hearing the case to consider five aspects of Shaikh's evidence -- he was a conspirator and an accomplice, his statement was made under promise of a pardon for a capital crime, it was uncorroborated, it had since been retracted.

Shaikh also claimed he made the statement after being beaten, threatened and intimidated by the Bombay police.

In his appeal, Nadeem said there was no evidence against him in the crime relating to the murder of Kumar on August 12, 1997 as the time he was in London on a holiday with his family and had not returned to India since.

In his submission, Nicholls dealt mainly with the issue of whether an English translation of Shaikh's evidence, recorded in Hindi and signed by him in "broken Urdu" was admissible in an extradition case in England. He said it should be regarded as hearsay, not primary evidence, and should be excluded.

He outlined other issues that would be raised during the hearing, which is expected to last till Friday.

The court would be asked to consider whether the magistrate was wrong in declining to consider the circumstances in which Shaikh's evidence was given, whether evidence was adequate, if the charges were brought against Nadeem in good faith in the interest of justice and whether he might be prejudiced at his trial because of his religion.

On the question of good faith, the counsel said it was necessary to "look behind the government of India to others involved".

The court has the power to release Nadeem if it felt that the allegations were unjust, he said.

The counsel said Nadeem's lawyers had asked for Shaikh to be called before an Indian court to be examined, but so far this had not been agreed to and the matter was being referred to the Supreme Court.

Nadeem has been on bail since his arrest in September 1997. The terms involved a surety of 100,000 pounds deposited by himself, a similar surety by an Indian businessman, confiscation of his passport and reporting weekly to a police station near his home in north London.

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