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Indian counsel rejects
Nadeem's claims of bias

H S Rao in London

Counsel for the Government of India has rejected the claim of Bollywood music director Nadeem Akhtar Saifi, facing extradition proceedings in connection with cassette king Gulshan Kumar's murder, that as a Muslim he would not receive a fair trial if he returned to Bombay.

Paul Garlick, QC, pointed out in the high court that an expert report, cited by Saifi's lawyers, that claimed the Bombay police were biased against Muslims had also conceded that the judiciary was independent.

Moreover, the Maharashtra government had appointed an independent prosecutor to handle the murder case and the press was fiercely independent.

Garlick added that as a celebrated member of the Muslim community, Saifi's trial would attract a great deal of publicity, causing the judge to be even more vigilant.

In his appeal filed in the high court on November 20 against a magistrate's decision in October last year to extradite him, Saifi said that 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.

The appeal, filed through his counsel Clive Nicholls, QC, in the form of a habeas corpus action, focuses on the evidence of a 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 Saifi as co-conspirator.

Saifi was in London when Kumar was killed in Bombay on August 12, 1997.

Shaikh later retracted his confession, saying it was extracted through intimidation and pressure by police and prison officers.

Garlick, however, observed that there was no evidence to show that Shaikh had complained about improper police treatment when he was examined by the Bombay magistrate and made his confession. Rather, there was evidence that he was in fear of gangsters and threats from the family of one of the 28 accused.

It was also significant that Shaikh had made no complaint before March 1998, and it was reasonable to believe that his retraction at this stage was forced by pressure from gangsters, the counsel said, adding, "Without doubt gangsters were involved in the murder."

Garlick, who was assisted by Ujjwal Nikam, special public prosecutor of Maharashtra, said the London magistrate had considered all documents relating to Shaikh's evidence and formed the view that a properly directed jury could act on it rather than on the retraction. The court could not say now that he was wrong.

Considerable legal arguments in the case have also centred on the translation of Shaikh's confessional statement. He gave the statement in Hindi and the magistrate recorded a translation in English. It was then read to the witness in Hindi and signed by him. Saifi's lawyers have argued that such a document should be regarded as hearsay, not primary evidence, and excluded.

Garlick, in rebuttal, asked the high court to take the view that legislation and legal precedents allowed such translations to be admitted as evidence in extradition cases. The hearing was inconclusive.

Saifi lives with his family in North London and is currently on bail involving sureties amounting to £200,000.

EARLIER REPORT:
Nadeem plays the communal card

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