The Supreme Court acknowledges that Mohammed Afzal Guru is not a terrorist and that they have no direct evidence against him. Is he on death row on the basis of a shoddy probe? Mihir Srivastava looks at critical questions still unanswered

Six years and three judgements later, we still do not ‘reliably’ know who attacked Parliament on December 13, 2001. What we do know is that Mohammed Afzal Guru, the alleged conspirator, was awarded the death penalty but is he being made a scapegoat? Is Afzal being held guilty for a crime that is still unsolved?

Consider this: the ‘comprehensive investigation’ of the attack on Parliament was completed in 17 days flat by the investigators – the Special Cell of the Delhi Police. The prosecution story of who attacked Parliament, which is popularly believed to be the real story, is based on the confession of the main accused Afzal Guru to the police under the Prevention of Terrorist Activities Act (POTA). The Supreme Court has dubbed this confession, and thus, in effect, the conspiracy theory behind the attack floated by the police, as "unreliable".

There are 12 accused in the Parliament attack case. Five of them – Mohammad, Tariq, Hamza, Rana and Raja – were killed when they tried to lay siege on Parliament. The other three – Gazi Baba, Masood Azhar and Tariq, allegedly the masterminds behind the attack and Lashkar-e-Toiba (let) and Jaish-e-Mohammad (JeM) operatives – were never arrested. Gazi Baba was shot in an encounter with security forces in 2004. His body was recognised by Afzal’s brother. Only four accused were arrested: Afzal Guru, his cousin Shaukat Hussain Guru, Shaukat’s wife Afsan Guru and SAR Geelani, a teacher of Arabic in Delhi University. Geelani and Afsan were acquitted. Not one of them was convicted under POTA charges. Afzal does not belong to any banned terrorist organisation. Shaukat was sentenced to 10 years rigorous imprisonment because he knew about the conspiracy. Afzal was given the death sentence on the charges of murder and for waging war against the State.

The thoroughness with which the investigations of such an important case were carried out can be judged by the remarks made by the Delhi High Court. The court has pulled up the investigators for the production of false arrest memos, doctoring of telephone conversations and the illegal confining of people to force them to sign blank papers. Despite these observations, "the courts did not pass any strictures against the officers for their shoddy and illegal investigations," says Nandita Haksar, Geelani’s lawyer.

There is no direct evidence against Afzal. None of the 80 prosecution witnesses ever even alleged that Afzal was in any way associated with or belonged to any terrorist organisation. He has been awarded the death sentence entirely on the basis of circumstantial evidence. Afzal did not shy away from admitting the possibly incriminating fact that he brought Mohammad from Kashmir and that he accompanied him when the latter purchased a second-hand Ambassador, two days before the attack. The Supreme Court in its judgement observes that even when his lawyer attempted to deny this fact during the trial, Afzal insisted that he indeed had accompanied Mohammad.

In the same vein, Afzal maintains that he did this at the behest of the Special Task Force (STF) of the Jammu and Kashmir police. Afzal alleged in a letter to his lawyer Sushil Kumar in the Supreme Court that Davinder Singh, Deputy sp of Humhama, in Jammu and Kashmir, asked him to take Mohammad to Delhi and arrange for his stay there. "Since I was not knowing the man, but I suspected this man is not Kashmiri, as he did not speak Kashmiri," wrote Afzal. "The facts of the letter were never put on record before the courts," charges Haksar.

It is clear from the case records that Afzal is a surrendered militant, who gave himself up to the bsf in 1993. Further, Afzal told the court that he was frequently asked by the STF to work for them (a senior police official has confirmed this to Tehelka). He said the STF extorted large sums of money from him for not arresting him. But he was detained in as late as 2000 and was offered the job of a special police officer. He met Tariq (a co-accused, who is absconding) in the STF camp, where the latter was working. It was Tariq who introduced Mohammad to him in the STF camp. The alleged role of the STF in the Parliament attack, as per the court record, has not been investigated at all. Davinder Singh confirmed that no investigator ever got back to him and sought clarification on his alleged role in sending Mohammad to Delhi with Afzal’s help. "Why will they ask me this? He (Afzal) is saying this to save his own skin," said Singh.

In his reply, Singh denies the allegations. "Do you want to say that we are behind the Parliament attack," he asked. Singh acknowledged that he had once detained Afzal for interrogation. "We had reliable information that he knew the whereabouts of Gazi Baba, one of the most dreaded terrorists in Kashmir (and an accused in the case). But we couldn’t get anything out of him and let him go."

The Delhi Police Special Cell had only Afzal to identify the bodies of the five assassins gunned down in Parliament. There is no other corroborative evidence that sheds light on the identities of these five terrorists. Later in court, Afzal denied identifying them. "I had not identified any terrorists. Police told me the names of the terrorists and forced me to identify them," Afzal told the court in his statement made under Section 313 of the Criminal Procedure Code.

In the absence of any direct evidence against Afzal, the Supreme Court said in its judgement: "The incident which resulted in heavy casualty, has shaken the entire nation and the collective conscience of the society will only be satisfied if capital punishment will be awarded to the offender." Haksar does not agree with the court’s view. "The Supreme Court has not passed any strictures against the corrupt officers for their shoddy and illegal investigations and has held that there is no direct evidence against Afzal. However they have confirmed the death sentence because they believe that this death is necessary to assuage Indian citizens."

Another controversy that was brushed aside was one that again pointed to a possible Jammu and Kashmir police connection with the Parliament attack. The Thane Police swung into action after the identity of the five terrorists killed in the Parliament attack was made public. SM Shangari, the then Thane Police commissioner, claimed that Thane police had arrested four let operatives and one of them had the same name as a militant killed in Parliament: Hamza. These four terrorists were handed over to the Jammu and Kashmir Police on December 8, 2000. In addition there was a stark similarity in the blueprints, arms and ammunition seized from these four arrested in Thane and the one recovered from the slain terrorist in Parliament.

K. Rajendra, the then inspector-general of J&K Police, rebuffed Shangari’s enquiries. He was reportedly quoted by a Thane daily that no such person was ever handed over by Thane police and Hamza is a common Muslim name. He dismissed it as a case of mistaken identity. To this, Shargari responded by saying that he only mentioned that it could possibly be the same person because the name was common, and clarified that he did not say they were the same person.

Just to make sure Shangari sent an official to Delhi with a photograph of Hamza. Tehelka contacted Shangari, who retired a few years ago as the director-general of Maharashtra Police. "They were sent to Jammu & Kashmir on the orders of the Thane district court," he says. "I do not know what happened after that on this issue. This issue was not new. The intelligence agencies were aware of it. We send them periodic reports on these issues." The crucial question of whether Hamza’s photograph – sent from Thane – was matched with that of the slain Hamza in the Parliament attack still remains unanswered.

"Mistaken identity can only be proved once we are sure of the identities. It cannot be a matter of speculation," says Nirmalangshu Mukherji, human rights activist and author of the book December 13. There is no clarity till date on who Mohammad was. After the attack, the police claimed that Mohammad was also the leader of the suicide squad and was involved in the ic-814 hijack in which he had been codenamed ‘Burger’. The police had said at that time that it would show pictures of Mohammad to the wife of Ripan Katyal who was killed by the hijackers of ic-814. "Burger is believed to have stabbed Katyal on that flight. After being mentioned in the chargesheet and in Afzal’s confession, this move to corroborate Mohammad’s identification was not followed as per the court records. We do not know whether this was further investigated. "It was soon discovered that this was not true," says Haksar. "In fact, we do not know the identities of the five men who attacked Parliament and they were all killed."

As per the chargesheet, JeM supreme commander in India Gazi Baba, was in touch with Afzal and Shaukat through satellite phone number 8821651150059 and Swiss telephone number 491722290100. But the police didn’t investigate this further. Further the chargesheet confirms, "A request for obtaining the call details of the international telephone numbers and satellite phone numbers, which figured during the investigation of the case, has been made to Interpol, but the report is still awaited." This was in May 2002. After this mention, it was never again registered in the court record or pursued by the investigating agencies. This was confirmed by Sushil Kumar, Afzal’s lawyer in the Supreme Court. "There is no mention of the Interpol report in the case records." What happened do the Interpol report? Where was this international call coming from? This omission assumes significance if it is considered what Afzal had to say on these phone calls. "If phone number records will be seen carefully the court would have come to know the phone number of STF. I was not given chance in the designated court to tell the real story," Afzal wrote to lawyer Kumar.

Afzal says he was under duress to make a particular kind of statement in the media and then in the confession. In a letter to Kumar, Afzal clarifies: "In Srinagar at Parompora police station (after he was arrested) everything of my belongings was seized and then they beat me and threatened me of dire consequences regarding my wife and family. Even my younger brother was taken in the police custody."

The fact that he was under threat and duress, and was instructed to utter only a select few things to the media that suited the prosecution story is clearly shown when the investigating officer of this case, Rajbeer Singh, then acp in the Special Cell, shouted at Afzal in front of the rolling camera, when the latter said "Geelani is innocent." Shams Tahir Khan of Aaj Tak did the interview. He told the court in his submission that Singh shouted at Afzal directing him not to say a word about Geelani. "Rajbeer had requested us not to telecast that line spoken by accused (Afzal) about Geelani. So when the programme was telecast on December 20 (2001) this line was removed." 

Afzal made a confession on similar lines a day later on December 21. While Geelani refused to confess, Afzal explains, "This was first told to me by Rajbeer Singh…if I will speak according to their wishes they will not harm my family members and also gave me false assurances that they will make my case weak so that after sometime I will be released."

The same confession was cited as "incontrovertible evidence" on the floor of Parliament. And it was the basis on which Pakistan was held responsible for the attack. As a reaction, the Central government mounted a massive military offensive that brought the neighbours to the brink of nuclear war. The Delhi High Court observed: "The nation suffered not only an economic strain, but even the trauma of an imminent war."

Further, Afzal was denied proper legal assistance. He had no defence lawyer in the period between his arrest on December 15, 2001, and the filing of the chargesheet on May 14, 2005; in other words, no counsel had studied the complex case. The court appointed Neeraj Bansal as amicus curiae.

Afzal’s wife Tabassum had this to say on his efforts in the court: "The court-appointed lawyer never took instructions from Afzal, or cross-examined the prosecution witnesses. That lawyer was communal and showed his hatred for my husband." Afzal’s lawyer in the high court, Colin Gonsalves, says,  "Amicus curiae is an aid to the court and not a defence lawyer." In an application dated July 8, 2002, to the trial court, Afzal expressed his helplessness. "I am not satisfied by the state counsel appointed by the court. I need a competent senior advocate. The way the court is treating with me I could not get justice."

The prosecution claimed that the police reached Afzal through a sequence of arrests beginning with Geelani, whom the police could trace first because he held a mobile phone registered with the telecom company Airtel. But the letter from Airtel furnishing the call records and Geelani’s residential address was dated December 17, 2001; all the accused had been arrested by December 15.

This leaves a lot of unanswered questions as far as the investigation into the Parliament attack is concerned. Who masterminded and attacked Parliament and what was the conspiracy? What was the STF doing with surrendered militants? What was the role of the Special Cell of the Delhi Police in conducting the case? Till these questions are satisfactorily answered, a shadow will continue to be cast over Afzal’s death sentence.

Writer’s e-mail: mihir@tehelka.com
Oct 28 , 2006

How did the police get to Geelani?

The holes in the prosecution story on the Parliament attack case are too big to be missed. How did the Delhi Police get to SAR Geelani, the first person arrested in the case, in the early hours of December 15, two days after the attack? There was no evidence in the case records to link SAR Geelani to the site of crime till the details of calls records from cellular service provider Airtel arrived on the December 17, 2001, which was cited by police as the clue that enabled them to trace Geelani.

The chargesheet maintains that the police came to know of Geelani’s address from the telephone bill and the State Bank of India credit card, with which the du lecturer paid his phone bill. "Of all the numbers, 98100-81228 was found to be a regular mobile card which stood in the name of SAR Geelani, House No: 535, Mukherjee Nagar, Delhi," says the chargesheet.

The police allegedly recovered slips of paper from the pockets of the slain terrorists, each containing five mobile numbers. None of these numbers belonged to Afzal or Geelani. Further, the police recovered six sim cards and three mobiles from the deceased terrorists. Apart from this, it is alleged that Afzal’s number 98114-89429 was written on all the fake i-cards of ‘Xansa Web City’ recovered from the militants. This fact emboldened the police to zero in on Afzal but the sim card for this number has not been recovered. Further, the fake I-cards that carried Afzal’s number were not sealed. They were just pasted on paper and remained in the investigators’ custody. Prosecution Witness 8, Head Constable Ashwini Kumar posted at the Parliament Street police station, was among the first to arrive at the site of the crime and prepared the seizure memos listing the articles recovered from the site and the bodies. He told the court that as far as he could remember, "the telephone number was not written on the seizure".

When it was pointed out in court that there was no known way to reach Geelani before the receipt of the Airtel letter, the Delhi High Court gave the benefit of doubt to the prosecution saying this could be a "typographical error". The court did not "consider it necessary to delve further" into the controversy emanating from this letter since "no question was put to the security manager of Airtel," the Supreme Court observed. Further, "none of the witnesses pertaining to the fir were cross-examined".

But if there was a "typographical error" and the Airtel note was written before December 17, it creates another problem. The letter said, "responding to the police request for call records refer to section 3/4/5/21/22 POTO…" The Prevention of Terrorist Activities Ordinance (POTO) was promulgated only on December 19 that year. How could the police apply POTO provisions before the ordinance came into force?

Call records placed before the court were uncertified computer printouts. The calls records show that two calls were made between Shaukat and Afzal, the called and calling numbers were identical, time and location are identical, but the imei number, the handset’s number apart from the phone number, was different. Records show that on December 13, 2001, at 11:19:14am, two calls were simultaneously made from Afzal to Shaukat but from different handsets. The same thing occurred again 11:32:40am. As per the chargesheet, Inspector Mohan Chand mounted surveillance on Geelani’s mobile on December 13, 2001.

On the next day, a call from Srinagar was intercepted on this cell. The sequence of arrests began with Geelani’s arrest at 10am, Afsan at 10.45am, Afzal and Saukat in Srinagar at 11.30am on December 15, 2001. Allegedly, Geelani disclosed information leading to the arrest of the others. But in his disclosure statement, Geelani doesn’t mention any mobile phone. He denied in court that he told the police that any mobile number belonged to Afzal or Shaukat. Coming back to the question: How did the police first reach Geelani? At best this remains an unsolved riddle.

Mihir Srivastava
‘Afzal was very poorly defended’

Former Union minister Ram Jethmalani speaks to Mihir Srivastava on the Parliament Attack case

The court has said that Afzal’s confession is not admissible. It was not recorded under the proper guidelines of POTA. Otherwise also, a confession given to the police is irrelevant and can’t be admitted.

The confession only binds the maker of the confession. It does not bind anybody else. Let me say, if I have committed this offence with you, it does not affect you.

We know that five men who attacked Parliament were killed. They were suicide bombers trained to attack Parliament.

They have found them guilty on the basis of evidence on record. Having found him guilty, the question of a sentence arose. They sentenced him on collective conscience… It is assumed that their conscience reflects the conscience of society. It is another way of saying that the offence is so monstrous that people will be happy (with capital punishment).

The police case was that the information about where the car was purchased from etc was given by Geelani. They have tried to implicate Geelani, how can they turn around and use the same evidence against Afzal. If the police have already received information from some other source, you cannot say that the disclosure came from Afzal. They used it against any one they thought convenient.

A State that does not obey its own rule of law does not follow its own constitutional obligations; that makes it a soft State.

The man was very poorly defended, there is no doubt. My concern is that the Indian bar did not perform its obligation. When a man is facing the death sentence, the request of the man should be complied with. He asked for four lawyers, the judge asked two, the remaining two he didn’t even ask. Then a lawyer was more or less thrust upon him. Amicus is the friend of the court; amicus and being a defence advocate for an accused are inconsistent things.

It’s a misnomer to call it a mercy petition. It leads to total misunderstanding of the constitutional power. The constitutional power is that the President has the power to disagree with the Supreme Court both with its findings of fact and law.

To cause prejudice in the minds of the public against the man who is standing trail is the worst kind of contempt.

Click here to return to index on Afzal Guru.