Trial of Errors
Peoples Union for Democratic Rights, (PUDR), Delhi February 2003
Published by: Secretary, Peoples Union for Democratic Rights
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In a world that prefers security to justice, there is loud applause whenever justice is sacrificed on the altar of security. The rite takes place on the streets. Every time a criminal falls in a hail of bullets, society feels some relief from the disease that makes it tremble. The death of each lowlife has a pharmaceutical effect on those living the high life. The word "pharmacy" comes from pharmakos, the Greek name for humans sacrificed to the gods in times of crises.
- Eduardo Galeano, The Teaching of Fear (The World Upside down)
FOR YEARS NOW, ever since India became a republic, India's circular parliament building has been a symbol of its independence and sovereignty. Regardless of what takes place inside, and however anti-people certain legislations may be, its very existence is a source of legitimate pride for Indians. No wonder then, when the parliament was attacked on 13 December 2001, it was widely portrayed, especially by politicians and the press, as an attack on Indian democracy. The focus in this report, however, is on the aftermath of this episode - the entire sequence of political and legal proceedings that followed the attack, including the arrests of four persons and their trial in a Special Court.
The ramifications of this trial, we believe, are as dangerous for democracy in India as the attack itself. Parliament, after all, is too deep seated an institution to be overthrown by a few gunmen. But the rule of law is infinitely more fragile. It is our experience that laws like the now defunct MISA and TADA, the Armed Forces Special Powers Act or the new Prevention of Terrorism Act (POTA) set in motion a process whereby it is easy to subvert the procedural norms and civil liberties that are an essential part of democracy. When the rule of law is short-circuited, or dispensed with for the sake of political expediency, then citizens have serious cause to worry.
PUDR followed the trial closely for two reasons: (a) The manner in which the arrests were made by the Delhi Police Special Cell, and the accused triumphantly displayed in handcuffs before the media as the persons who had conspired to kill the nation's leadership, gave rise to the apprehension that the four accused had been incriminated even before they had been tried in a court of law. Given this context we wished to ensure that even within the limits of POTA, it would be a fair trial i.e., the accused would be heard, they would be adequately represented in court in an atmosphere free from intimidation and prejudice, and the judgement would be based on clear and unambiguous evidence. (b) The trial was the first to be held under POTA.
One of the major problems with laws like TADA and POTA is their power to label people. If a person has been detained under POTA, then chances are that people will believe that he/she is guilty of being a "dangerous terrorist". Worse, both in their conception and implementation, TADA and POTA rest on the erroneous perception that people who belong to minority communities are more likely to be 'terrorists' and 'anti-nationals' than others. In the present political and ideological atmosphere, where the very act of applying POTA prejudges the action, the rights of the accused are treated as an especially dispensable commodity.
Before we share our findings and analyses with the readers we would like to thank the trial judge for not conducting the trial in camera and keeping it open to the public. The court officials were cooperative and the defense and prosecution ever willing to clarify the points that we were confused over, or whose importance we did not understand. We alone are responsible for any error or fault in our analysis.
II. Trial under POTA
III. Prosecution case against the accused
IV. The defence
V. Trial and judgement
VI. The Unsustainable case against the accused
ON DECEMBER 13, 2001, sometime between 11.40-11.45 a.m., five men in a white ambassador fitted with a red light and home ministry sticker drove into Parliament. When challenged they opened fire, killing nine security personnel, including the Parliament watch and ward staff, and injuring sixteen. In the shootout all five attackers were killed. The incident was widely condemned, both within the country and outside. The first suspicion fell on the Laskhar-e-Taiyabba and then on Jaish-e-Mohammad and in both cases the Pakistani government was said to be at fault. Prime Minister Atal Bihari Vajpayee said in Parliament that war was not ruled out as a response. Nearly 700,000 Indian troops were put on high alert at the border and all army officials on leave were recalled in anticipation of a possible war. It was only towards the end of 2002 that the troops were finally called back.
Pakistan too massed 300,000 of its troops along the border. While Iran offered to mediate between India and Pakistan, the US, Russia and United Nations Secretary General Kofi Annan urged India to show restraint. Both the UN's request to be involved in the probe and Pakistan's offer to hold a joint probe into the attack were rejected. The situation was tense and belligerent on both sides, with ministers in the NDA government asserting that they were ready to take: "Two eyes for an eye, a jaw for a tooth". On December 21, India recalled its High Commissioner to Pakistan, banned Pakistani overflights over Indian territory and stopped rail and bus communications between the two countries.
The NDA government had already issued the Prevention of Terrorism Ordinance before the attack. On 31st December 2001, a second ordinance was promulgated to extend the first. The NDA Government then used the attack on Parliament to justify the need for POTA (Prevention of Terrorism Act), despite the evidence that laws like TADA or POTA have little preventive value. Eventually, despite opposition protest, POTA was pushed through in a joint session of Parliament on 26 March 2002.
The investigations into the attack were handed over to the Special Cell of the Delhi Police the day the attack took place. As is well known, the Delhi Police operates directly under the Union Home Ministry. Within days of the attack the Delhi police implicated four persons on the charge of conspiracy: Mohammad Afzal, a former JKLF militant who had surrendered in 1994, his cousin Shaukat Husain Guru, Shaukat's wife Afsan Guru (Navjot Sandhu before marriage) and S.A.R. Gilani, a lecturer of Arabic at Delhi University. In addition to the four accused, three others were charged in the case, including Jaish-e-Mohammed chief Maulana Masood Azhar, who had been released by the NDA government in 1999 in response to the hijacking of IC 814; Azhar's aides, Ghazi Baba and Tariq Ahmed. These men could not be caught and were declared proclaimed offenders. They were not part of the trial.
Curiously, in this case, the provisions of POTO were added to the original charges only on 19 December 2001. The FIR lodged by the police on 13 December records an armed attack by terrorists but only mentions sections of the IPC. The accused were tried under Sections 121 (waging war), 121 A (conspiracy), 122 (collecting arms etc. to wage war), 123 (concealing with intent to facilitate design to wage war), 302 (murder), 307 (attempt to murder) read with 120-B (death sentence for waging war).
The charges under POTO added later pertained to Sections 3 (punishment for terrorist acts), 4 (possession of certain unauthorized arms), 5 (enhanced penalties for contravening provisions or rules made under the Explosives Act, 1884, Explosive Substances Act, 1908, Inflammable Substances Act 1952, or the Arms Act 1959), 6 (confiscation of proceeds of terrorism), 20 (offences dealing with membership of a terrorist organisation). On 22 December 2001, the case was brought before a Special Court under Justice S.N. Dhingra. The trial started on 8 July and was conducted on a daily basis and the arguments concluded on 18 November 2002. The accused were convicted on 16 December 2002, and two days later, on 18 December, three of them were sentenced to death and the fourth given five years rigorous imprisonment.
II. Trial under POTA
IT MUST BE stated at the outset that laws like POTA work on the principle that crimes of terror cannot be proved in the normal course and they require therefore, extra-ordinary measures including admission of evidence which cannot otherwise be admitted under ordinary law. Thus confessions made to a police officer and telephone interceptions are considered valid and reliable evidence under the Act. Under the Evidence Act ordinarily applicable, it is a central tenet that confessions to the police are not admissible as evidence because they can be easily extracted by torture. Similarly under the ordinary legal procedure, telephone interception may not be produced as primary evidence against an accused.
Moreover, several clauses under POTA do away with the personal safeguards that are available to an accused under normal law. Once a person is charged under any section of POTA, he/she is denied bail for a minimum of six months. Moreover, bail cannot be given if the prosecution opposes it and unless the Court is satisfied that there are grounds for believing that the accused is not guilty of committing such offence. This combined with the fact that confessions before a police officer are admissible as evidence, even if they are later retracted or denied, generates immense possibility of torture and abuse.
It is important to note, however, that POTA also provides for certain safeguards in the forms of procedures that must be adopted for intercepting communications. Thus for an interception to be accepted as valid evidence by the Court, the investigating agencies should have followed the norms laid out in POTA itself in terms of requisite authorization by a competent authority, and the protection of the information collected in this manner (Chapter V of POTA). Our experience of the trial showed that while the accused suffered all the disabilities of POTA, the mitigating safeguards were violated and the Court failed to take this violation into account in its judgement.
The tilt in favour of the prosecution especially disadvantages the accused by lowering the threshold for proving guilt. Besides, certain provisions in POTA place the burden for proving innocence onto the accused, further lowering this threshold. This encourages shoddy investigation, which was more than evident as the trial unfolded over the eight months. The loser in the entire episode is the public which has the right to know the truth, and justice and the rule of law, the cornerstones of democracy.
III. Prosecution Case against the Accused
NONE OF THE four accused, Mohammad Afzal, Shaukat Husain Guru, Afsan Guru and S.A.R. Gilani, were present at the site of attack. The prosecution case is that the telephone numbers recovered from the dead militants provided the link to these four. The prosecution says that it recovered three mobile telephone instruments and six SIM cards from the spot, as well as fake I-cards of a computer institute, all mentioning 981148429 as a contact number. The mobile phone found on the body of dead militant Mohammad is also shown to have called 9811489429.
This number allegedly belonged to Afzal. This phone in turn is shown by call records to have been in touch last on December 9, with 9810081228 (belonging to accused Gilani) and to have received two calls on December 13 from 9811573506 (belonging to accused Shaukat, which, however, he denies possessing). This alleged mobile telephone contact between the dead men and the accused is the lynchpin of the prosecution's conspiracy theory.
The prosecution claims that as Gilani's phone number was 'a regular telephone number' registered in his name with his address, he was the first person to have come into their surveillance net. It was, they claim, after having traced Gilani's address from his mobile phone that they mounted surveillance on his house on the 13th night. In the meantime all mobile telephone numbers including the international numbers were intercepted. On 14 December an incoming call from Srinagar was intercepted on Gilani's phone number and during the conversation that took place in Kashmiri the accused allegedly 'supported the attack on Parliament'. A transcript of the said conversation was prepared in Hindi.
On the same day an incoming call from Srinagar was intercepted on another mobile number (allegedly belonging to Shaukat). In the conversation that ensued, the prosecution claim 'a lady (later found to be accused Afsan Guru) was talking to Shaukat Hussain Guru'. The prosecution claims that having heard and recorded conversations on the two phones that showed knowledge of the attack and complicity, they arrested Gilani on the 15th morning around 10 am from near his house. On being confronted with the two mobile phone numbers during his interrogation, Gilani allegedly said that 'he had knowledge of the attack' and that the two numbers were 'being used' by Shaukat and Afzal. Gilani is said to have led them to Afsan Guru's house in Mukherjee Nagar. Afsan Guru was found in her house with mobile phone 9811573506, and was arrested. She in turn told the police that Shaukat and Afzal had gone to Srinagar. The Delhi police informed the J&K police who located Shaukat and Afzal in a truck in the fruit mandi of Parampura 'on the morning of 15-12-01', allegedly together, and carrying a laptop and Rs.10 lakhs, and brought them back to Delhi the same day.
The laptop allegedly had files carrying news clippings of the Parliament House and a programme that had been used by the attackers to prepare fake I-D cards. According to the prosecution, Afzal took the police to three hideouts where the attackers had stayed - a hostel in Christian Colony, and two houses in Gandhi Vihar and Indra Vihar respectively. All these places had been taken on rent by Afzal to accommodate the militants. The militants stayed in these premises at different times, and say the prosecution, left for Parliament on the morning of 13 December from Gandhi Vihar. The police also say that Afzal took them to the different shops where he had accompanied the militants to purchase the car used in the attack, a motorcycle, chemicals and a mixer that was used to make explosives. Shaukat and Afzal are also said to have volunteered confessions in which they said that Afzal had motivated Shaukat for jehad, who in turn incited Gilani.
Nevertheless, it is important to recall that it is not the prosecution's case that any of the four accused were present along with the five dead militants at the Parliament. These four are supposed to be part of the conspiracy in so far as they knew what was being planned, that they helped the five in acquiring "hideouts", and purchasing various material used in the attack or preparation of the attack.
IV. The Defence
THE ARGUMENTS put forward by the defence can broadly be placed in two groups - (a) showing gross procedural lapses in the investigation and (b) questioning the veracity and credibility of the evidence presented by the prosecution to bolster its case of conspiracy against the accused. As far as the procedural lapses are concerned, the defence has raised the question whether a sanction for the trial to proceed under POTA and the Explosive Substances Act had been obtained in accordance with the procedure laid down under the Acts. The prosecution, the defence argued, had failed to produce witnesses or documentary evidence to show that the procedure had been followed, opening themselves to charges of arbitrariness and violation of the fundamental principle of protection laid down by the Supreme Court (Bisham Kumar vs. State 1999). This violation, moreover, cast doubt over the Special Court's jurisdiction over the matter.
The defence has also raised doubts on the admissibility of telephonic interceptions as evidence under POTA. It is to be noted that while telephonic interceptions can be made under the provisions of the Indian Telegraph Act, they can be presented as evidence proving guilt only under POTA. In order for the interceptions to be presented as valid evidence, POTA lays down certain procedural safeguards in Chapter V (Sections 36-48). The defence has argued that the investigating authorities have failed to bring before the court any documentary evidence showing that the procedure had been followed, i.e., an application for allowing interception had been made and order allowing the same had come from a competent authority (Sec.38 POTA); and that each accused had been furnished with a copy of the said order as well as the application under which the order authorizing the interception was made, not less than ten days before trial, hearing or proceedings (Sec 45). Moreover, while charges under POTA were added only on 19 December, the interception, by the prosecution's own account had begun on 13 December itself. It is significant that during the course of the trial the defence had in fact appealed to the High Court which had decided that in the absence of procedural safeguards, telephonic interceptions may not be considered by the Special Court to consider charges made under POTA.
Apart from procedural lapses, the defence has also questioned the prosecution's account of the date, time and place of arrest of each of the four accused. They have also questioned the genuineness of the confession allegedly made by Afzal and Shaukat before DCP Ashok Chand. Moreover, the defence has pointed out, that most of the material evidence presented by the prosecution, including the mobile phones and the laptop computer, have shown clear signs of tampering precisely during the period of their supposed 'safe custody' with the investigating authorities. Thus, by raising issues pertaining to procedural lapses, and questioning the genuineness of evidence against the accused, the defence has attempted to puncture the authenticity of the prosecution's case of conspiracy against the accused. They have asserted that the case against the accused is purely circumstantial, that the sequence of events presented by the prosecution as constituting evidence of conspiracy is inconsistent and contradictory, based on flimsy evidence obtained either without authority, and as the defence tried to show in the court through its witnesses, fabricated or tampered with.
V. Trial and Judgement
IN THE JUDGEMENT running into 296 pages, the judge accepts almost the entire prosecution case against the accused and covers the contradictions in the prosecution case by providing what appears to be a reasonable explanation. In other places he arrives at conclusions without giving an idea of the evidence that led him to it. For instance, given the contradictions in the prosecution account of the time of S.A.R. Gilani's arrest (15th December at 10 am according to police and the afternoon of 14th December according to defence), the judge concludes that he was arrested on the night of the 14th/15th. In the present case there was no direct evidence to link the four accused to the scene of the crime, and most of the evidence was intended to establish the links of the accused with the five deceased militants through circumstantial evidence to prove a conspiracy and their involvement in the conspiracy. Yet, if one were to read only the concluding part of the judgement (pages 247-293 which lay down the case against all the four accused individually), one would come away with the idea that the evidence presented, was in fact enough for most of the charges to be 'proved', 'established' or 'confirmed'. In other words, the judgement claims a degree of certainty in its conclusions, which does not in fact exist.
Our reading of the judgement and the trial that preceded it shows that not only was the evidence inadequate, in most cases it was not beyond doubt. In any criminal trial identification of the accused, their presence at key points of the preparations for crime, arrest and recovery in the presence of independent public witnesses, recording of confession without threat or fear, sanctity of physical evidence presented by the prosecution, etc. are all important to establish the guilt of the persons charged and tried. However, a study of the judgement and the case file (which includes disclosure statements and confessionals by the accused, statements by the witnesses u/s 161 Cr. P.C. which is the first statement by a witness to the police in which he or she is bound to tell the truth and which the police is bound to record truthfully, depositions of the prosecution and defence witnesses, statements of the accused in court u/s 313 Cr.P.C when the accused get the final chance to reply to questions put by the court, prosecution exhibits) brings out several anomalies, discrepancies, inconsistencies and misconstructions in vital areas of evidence which undermine the conclusions arrived at in the judgement.
A. Identification of Accused
In order to establish that those accused were actually associated with those involved in the crime, it is important that they must be identified by witnesses through a process that is not only fair but also ensures accuracy and guards against any prior prejudicing of the witnesses. Section 9 of the Indian Evidence Act provides for a Test Identification Parade (TIP) in order to establish the identity of the accused. The procedure involves the witness identifying an accused from a set of people who are brought before them. Even where the accused are dead, the witnesses should be able to pick out their photos from among a set of photos. In other words, the procedure should be similar to a TIP.
In at least two cases (Laxmipat Choraria v. State, 1967 and Appu v State, 1990), the Supreme Court while explaining how the evidence of identification is to be used, has held that the witnesses' ability to identify must be assured without showing him the suspect or his photograph, or furnishing him the data for identification. Showing a photograph prior to identification makes the identification worthless. This is especially important if the case is relying on the identification of the accused by the witness. Further, the identification parade should be held soon, in order to have the witness identify while memory is still fresh. Thus, the Supreme Court rejected as unreliable an identification parade that was held four months after the incident when Justice Venkatachaliah held that 'error is more frequent when recognition comes some time after seeing' (Hari Nath v State of UP, 1988).
In the present case, the identification of the deceased was done on the basis of photographs without adhering to the norms of a TIP. No TIP was held for any of the four accused even though they were taken into police custody within two days after the attack and the trial only began seven months later. The 15 witnesses who identified the accused were provided prior knowledge of the identity of the accused as those involved in the attack on the Parliament. As the following instances make clear, the absence of a Test Identification Parade raises doubts about the credibility of the witnesses as well as the conclusive identification provided by them.
(a) Photos of the dead militants (with mutilated faces) were shown to 2 witnesses (PW 34, Subhash Chand Malhotra, landlord of the Gandhi Vihar house and PW 45, Tejpal Kharbanda, Shaukat and Afsan's landlord in Mukherjee Nagar. While showing of photographs of the dead is legitimate, the point is that in order to lend authenticity to the identification the witnesses must select the photographs from a pack and the prints must be clear showing the face. There was, however, no attempt at identification here since only photographs of the deceased were shown to the witnesses. Thus only affirmation was demanded of the witnesses. But what is even more unusual is that the witnesses were then asked whether the persons found in the photos were seen in the company of the accused. When Tejpal Kharbanda (PW 45), Shaukat's landlord, was first shown photos of the dead men on the 17th, he 'recognises' them but makes no mention of seeing them at Shaukat's house two-three days prior to the Parliament attack. Yet nine months later, his memory seems to have improved to the extent that he recalls them as having accompanied Afzal to Shaukat's house during those critical days before the attack.
(b) In his first statement to the police on the 16th of December under 161 CrPC (the first statement by a witness to the police in which he or she is bound to tell the truth and which the police is bound to record truthfully), Mr. Malhotra (landlord at Gandhi Vihar) claimed simply that on 13th morning he saw five boys (not named) getting into a white ambassador and driving off. Seven months later in court, he claimed 'On 13.12.02, Mohammad Afzal, Shaukat and four more persons had left the premises around 10 am'. The judge uses this second statement as one of the evidences against Shaukat. The addition of Shaukat on the basis of this later claim is significant since earlier in the judgement (p.33), the judge does not mention Shaukat when he notes that Afzal and the dead militants had left the house in the morning.
(c) The Special Cell took Afzal to the shops where he is alleged to have purchased vehicles, food items, cell phones, chemicals and clothes along with the militants, as well as to the various "hideouts". The police claim is that Afzal took them to these shops and premises. However, the depositions of the vendors make it clear that Afzal was brought to them for identification, and introduced as someone connected with the attack on Parliament. In other words, they were not called in to the Special Cell and asked to identify him on their own, which would have made the identification foolproof.
(d) Motorcycle salesman, Sushil Kumar (PW 29) identified Shaukat on 18.12.01. In his statement under CrPC 161 that day, Sushil Kumar said that on the day Afzal and others came to the shop to purchase the motorcycle, Shaukat was standing at a distance. Eight months later, during his court deposition on 16.7.02, he identified Shaukat unambiguously as one of the three men who came to purchase the motorcycle. During the court deposition he also said "When I identified the accused Mohammad Afzal and Shaukat Hussein with the police, I did not know how many other persons were with the police. I was not shown other persons for identification."
(e) Sushil Kumar's identification of Afsan Guru in the Special Cell as one of the four persons who came to his shop to purchase the motorcycle does not hold ground since TIP procedure was not followed. Moreover, later in the court Sushil Kumar expressed inability in identifying Afsan as the woman among the four, stating that the woman was standing at some distance.
(f) In his deposition before the court Mr.Kharbanda, Shaukat's landlord, states that he was called to the Special Cell on 17 December 2001, where he saw Jyoti (Navjot/Afsan), Shaukat and Afzal. He added that there was one more person sitting there but did not name or identify him. At this point in the deposition the prosecution asked for and was allowed the opportunity to ask a leading question about the fourth person's identity, and SAR Gilani present in the court was pointed out to the witness. The witness responds, "I have seen accused pointed out to me, he is accused SAR Gilani also sitting in the Special Cell [sic]. It is correct that I had told police that he also used to visit house of Shaukat'. It is significant that the witness had not identified Gilani in the Special Cell and this reflects on the reliability of the witness. Kharbanda's statements on whether SAR Gilani visited Shaukat, made during his court deposition were also confused and unreliable, a fact which the judge himself accepts (Judgement, p. 128). However, this does not lead the Judge to doubt the reliability of Kharbanda as a witness per se.
(g) SAR Gilani's landlord PW 39 Naresh Gulati again identifies Afzal and Shaukat in court as persons who 'used to visit the house of SAR Gilani'. It is significant that this witness goes on to say that several other people including lecturers and students visited Gilani and that he 'might have seen Afzal and Shaukat visiting Jalani [sic] 2-3 times during the period he stayed in my house' (i.e. almost eleven months)
The process of identification of the accused therefore shows the norms were not adhered to, raising doubts about their accuracy and credibility. Thus the case of conspiracy based on this identification, whereby the four accused could be shown as involved, in concert with each other, in plotting and implementing a plan of action, cannot be established.
Rather than demanding to know why the TIP was not done, the judge condoned several infirmities in the identification. On p.111 he proffers the position that showing photographs for identification is not illegal, without commenting on the fact that the identification was not done in a way that replicated a test identification parade, making the identification a mere affirmation. Moreover, as far as the identification of the four accused is concerned he is quiet about the absence of TIPs.
In cases of inconsistencies in the accounts by witnesses the judge simply weeds out the inconsistent statement and accepts the rest of the account, without reflecting on the credibility of the witness. Thus in the case of the discrepancy in the deposition by Mr. Kharbanda, Shaukat's landlord pertaining to Gilani, the judge edges out the 'dispute' as 'immaterial' to the prosecution's case (p.127-128). Similarly, Afzal's 'identification' by the shop keepers is accepted by the judge on the ground that it was Afzal who led the police to these shops, which is to say that the police would not been able to locate these shops without Afzal pointing them out. In doing so the judge overlooks the fact that the police had knowledge of the shops since these addresses were printed on the packets recovered from the Gandhi Vihar house. The judge further accepts these witnesses as reliable as the shopkeepers would have no personal grudge against the accused.
B. Public Witnesses
Having independent public witnesses is important during arrest/search and seizure to ensure the authenticity of the investigation and that investigating agencies do not commit any excesses or illegalities. Further, the Supreme Court in a 1997 judgment has mandated that the 'police officer carrying out the arrest of the arrestee shall prepare a memo of arrests at the time of arrest and such memo shall be attested by at least one witness, who may either be a member of the arrestee family or a respectable person of the locality from which the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest'. However, as the testimony of Sub Inspector Badrish Dutt (PW 67) shows, the police asked no such public witness to join in the arrest of any of the four accused or during the search of the so called 'hideouts'.
The same is amply clear from the instances given below:
(a) In the case of Afzal and Shaukat's arrest in Srinagar, it is indeed curious that the J&K police chose not to arrest them at the Parampura fruit mandi, where they were first located by the police, and where plenty of witnesses would be available. They were arrested later from an area where there were no public witnesses.
(b) In other cases viz. Gilani and Afsan, it is also quite surprising that the police did not find witnesses, even when the locality where the two lived is densely populated and the houses were inhabited by other tenants as well.
(c) Curiously, neither of the two sub-inspectors who live in the same building as Shaukat and Afsan were called during the arrests or search of premises or to identify anyone suspected to be part of the conspiracy. Moreover, Gilani's house was not even searched, which is odd, for someone suspected of participating in this kind of conspiracy.
(d) The seizure of the mobile phone (No. 9811573506) from Afsan's house happened in the absence of witnesses and Afsan denied the police claim that they recovered the phone from her residence.
(e) The absence of witnesses also raises questions about the alleged seizure of chemicals and detonators made from the Gandhi Vihar flat.
The judgment (pgs 92-96), however, condones the absence of public witnesses at the time of arrest and discovery by citing the Supreme Court in Tarun Bose versus State of Assam (2002) and the Law Commission Report on POTA regarding the difficulty of obtaining witnesses in Jammu and Kashmir for TADA cases.
The judge also used the fact that Shaukat's landlords, Mr. and Mrs. Kharbanda claimed to have received a phone threat the day before they were to depose in court (19.7.02) to support his contention that conditions of 'terror' obtain in Delhi and that people would be afraid to come forward as public witnesses. However, the situation in Delhi is a far cry from that in Assam or Kashmir and getting corroborative evidence is not difficult. Moreover, if Shaukat's landlord was in fact threatened (a matter serious enough for the judge to use it as a point of evidence against Shaukat) surely here was a fresh lead available even as the trial was on, to show that someone connected with the conspiracy was at large. Since the threat was ostensibly made on the telephone between 6.30 and 6.45 a.m. on 18.7.02, and reported to the police, call records to which the police has so zealously resorted in the entire case, would have helped trace the origin of the call. Yet no such attempt was made by the police.
It is indeed amazing that instead of censuring the investigating agencies for lapses, the judge accepts the police version and praises them for their commendable performance in adverse conditions. While denouncing the 'usual practice nowadays to flog the investigating agencies', the judge cites a Supreme Court judgement which cautions against harbouring the 'archaic notion that actions of the police officer should be approached with initial distrust'. What escapes the attention of the judge is that in this case there are just too many absences and lapses, so much so that the entire prosecution case seems to be resting and even thriving on them.
The absence of public witnesses has had significant implications for the manner in which the trial has unfolded. It has made the disputes over the times, dates, and places of arrest of all four accused, irreconcilable.
There is a discrepancy between the accounts given by the prosecution and the accused regarding the date, time and place of each arrest. A careful examination of the prosecution account of the sequence of events shows, that the sequence of arrests provided by them is internally inconsistent and self-contradictory, so much so that it becomes difficult to accept it as a true account. The judge too finds it difficult to accept the prosecution account and makes his own modifications to it.
Time and Place of Arrests: According to the prosecution, the first person to be arrested was SAR Gilani, at 10 am on 15th December, in front of his house. Gilani then allegedly led the police to Afsan Guru's house at 10.45 am. Afsan in turn is reported to have told the police that Shaukat and Afzal had gone to Srinagar on a truck. The Special Cell police informed the J&K police who then located and arrested the two. If this story is to be believed then the J&K police would have received the information only after 10.45 am. But Abdul Haq Butt DSP, Srinagar (PW 61) and Mohammed Akbar, Head Constable J&K Police (PW 62), claim that they received information from the Delhi Police at about 5.45 am on 15.12.01, around 8 am the truck was traced in the fruit mandi and that Afzal and Shaukat were arrested around 11 am.
The defence version of arrests is entirely different. Gilani claims that he was arrested on 14.12.01 around 1.15 pm outside Khalsa college, and made to sit in a car driven by Inspector MC Sharma. ACP Rajbir Singh was sitting in the front seat. Gilani says that he was taken blindfolded to a farmhouse (the sugar sachets had 'Ashoka countryside' printed on them) where he was beaten, tortured and kept in illegal confinement. Gilani's disclosure memo - the first statement given by an accused when arrested - also makes no mention of any mobile phones let alone the identification of their owners. He reiterated the same in his statement under 313 Cr.PC (the accused's response to questions put by the court). Gilani also denied having led the police to Shaukat's house, he has also rejected the prosecution's claims that when confronted by the evidence of certain calls on his cell phone, he told the police that 9811489429 belonged to Afzal and 9811573506 belonged to Shaukat. Significantly, the Disclosure statement bears out the above since there is no reference to any mobile phone or to their alleged owners.
Afsan says that she was picked up from her house on 14.12.01 after 6 pm, not on 15 December, as claimed by the prosecution. She does not mention Gilani's presence at her arrest. Qurratulain Arifa Gilani, Gilani's wife, corroborates Afsan's statement. Arifa says that she and her children were picked up by the police on the 14th night. She claims to have seen Afsan sitting in the van in which the police had come to take her for questioning. She also testifies that the teacups and plates had Border Security Force, Bhalaswa printed on them, and assumed that that is where they were taken.
The prosecution claim that they intercepted a call between a then unidentified woman (Afsan) and Shaukat is contradicted by this account. Afsan claims she was in police custody at that time.
The judge, however, dismisses the claims of the accused even though the investigator's version of arrests has clearly been shown to suffer from internal inconsistencies. In his judgement (p. 87-88), the judge accepts that the prosecution version of arrests as wrong. However, the judge tries to reconcile the differences by arguing that Gilani as well as Afsan Guru were arrested before 6 am, sometime in the night of 14th/15th (p 88) but provides no evidence that can substantiate the hypothesis. As a result of this reconciliation, the prosecution's story of the sequence of arrests is retained. In other words although the judge accepts that the time of arrests may have been different, he accepts that it was Gilani who was first arrested and through him Afsan and through her Shaukat and Afzal. This sequence is essential for the prosecution to establish the conspiracy theory, viz., that Gilani was in touch with Shaukat, knew his house, visited him sometimes, and knew therefore of the conspiracy to attack the Parliament.
While there is in the judgement a professed preference for the principle that the police account must, at least as an initial principle be taken as true, in the case of arrests the judge himself has had to correct the sequence of events to establish the truth of the account. He does this by rejecting all accounts to the contrary by the defence witnesses and as mentioned earlier, comes up with an alternate account, without questioning the whys and hows of the discrepancies in the prosecution account.
Confessions are normally considered a crucial piece of evidence and accorded great legal value. So great is this value that even a retracted confession is permitted. The assumption is that a confession is the outcome of remorse on the part of the accused. Consequently, great stress is laid to ensure that the confession is voluntary. Given the well-known fact of use of torture by the police to extract statements, provisions exist in normal law that specifically rule out acceptance of confessions made to the police.
POTA eliminates the checks that ensure voluntariness by making confessions to a senior police officer admissible and yet it retains the importance attached to the confessional statement. The only safeguard in POTA is that the police officer should be of a senior rank and that a magistrate must confirm that the confession is voluntary. The magistrate's intervention however is limited - only evidence of physical torture that can be confirmed by a medical examination, (thus excluding threats, inducements and mental torture) can make the confession invalid. The test therefore is not one of voluntary or forced confession - only whether marks of physical injury are visible on the body of the accused.
The facts of the present case show how obtaining a certificate of voluntariness is made into a farce.
In a radical departure from normal practice, accused Mohammad Afzal was produced before the media where he was made to 'repeat' his confession, before he actually confessed. On 18 December, the DCP, Ashok Chand, told the media that Afzal had confessed. In his deposition before the court, however, DCP Ashok Chand 'forgot' that he had 'told media especially NDTV that Afzal had already confessed'. On 20 December, a press conference was held at the Special Cell where the accused were presented to the media.
The ACP, Rajbir Singh claims that he took the permission of the DCP, Ashok Chand, to hold the press conference. In his court deposition, however, the DCP denied having been informed of such a press conference prior to it being held and even denied having any knowledge of such a conference having been held on 20 December or any other date when the accused Afzal was produced before the media. (During the press conference, Afzal spoke of Gilani's innocence, and was immediately warned by ACP Rajbir Singh not to talk about Gilani. Two media persons testified in court that they were asked by ACP Rajbir Singh to delete all references to this exchange, and the same was complied with.)
The official recording of confessions took place only on 21 December, before the DCP of the Special cell, Ashok Chand, where both Afzal and Shaukat 'incriminated' themselves and also 'implicated' Gilani in the conspiracy. Given that the accused were in police custody before the said confession and also knew that they would be going back into police custody immediately after, by no stretch of imagination can the confessions be considered 'free'. Apart from the fact that the confessions were officially recorded after a press conference, the confessions are remarkable for other reasons as well, and none of these lends it credibility. The DCP has deposed in the court that the confessions were recorded by him and that the 'accused kept on narrating and telling and I kept on writing, whatever was told and narrated'.
Even if one assumes that the DCP was indeed writing what was being narrated to him and that the narration was indeed being done by the accused with nobody else present to prompt and facilitate the recording, it is difficult to believe that a confessional statement could be recorded with the ease and speed claimed by the prosecution. On a careful reading of the statements and the time in which it is supposed to have been recorded, it is amazing that the statement has no corrections, deletions or overwriting. This not only speaks for the phenomenal speed of the DCP but also the extraordinary tranquility of mind and coherence of thoughts of the accused who were confessing ostensibly out of remorse and had also been told by this time that their confession would confirm their guilt. Significantly the two accused, Shaukat and Afzal were apparently confessing in impeccable English.
Moreover, it is to be noted that section 32 of POTA does not only mention the process of recording of confession, it also mentions the manner it is to be confirmed. Thus after a confession is recorded the accused are to be brought before the Chief Metropolitan Magistrate or the Chief Judicial Magistrate who has to assure that there was no threat or coercion at the time of recording and no complaints of torture. So the process of gathering this important evidence extends right up to the stage of confirmation. It is, however, quite difficult to imagine that the accused would have felt free to voice their fears when at all stages of the procedure they remain in police custody.
In the judgement, however, the confessional statements are seen as valid, recorded in an atmosphere free from fear and coercion. The dispute regarding the speed of recording is settled by the simple explanation of personal skill that differs from person to person. Afzal's retraction from the confessional is dismissed as of 'no value', having come 'after about 4 months' (p.250). Similarly, Shaukat's statement of 19 January 2002 denying having made any confession, and then again on 3 June 2002, after going through the charge sheet, is ignored by the judge while enumerating the case against him (p.266-7).
Strangely enough, while the judge regards (on page 174) the confessional statements as 'admissible under law', he seems to be selective while using it as evidence against the accused. Thus he accepts some parts of the confession recorded by Shaukat and Afzal and not others, but without considering that this casts doubt on the authenticity of the confession as a whole. For instance on p.234, while enumerating the evidences against Gilani, the judge says that Gilani made a call to Shaukat past midnight on 12/13 December at 0.40 am. At this time according to the prosecution's story the final preparations were being made (in the house at Gandhi Vihar) and Gilani's call supposedly made to get an update, has been used as evidence of his involvement in the conspiracy when the final preparations were being made. However, if the confessions are to be believed then according to the confession made by both Shaukat and Afzal, Gilani was present with them at Gandhi Vihar at this time!
According to Shaukat's confession, "On 12.12.01 night, I along with Afzal and Gilani met Mohammad and other Pak militants at their Gandhi Vihar hideout.... Myself, Afzal and Gilani then left the Gandhi Vihar hideout on 13.12.01 at about 11.20 am." Afzal also claims in his confession that Gilani was present along with him and Shaukat at Gandhi Vihar on the night of 12.12.01 and that Shaukat and he (Afzal) before leaving for Srinagar visited Gilani to offer him his share of the booty.
The judge obviously does not accept this portion of the confession. While this throws into doubt the genuineness of the entire confession, it also shows that the two sets of evidences relied upon by the prosecution - confessions and telephone records - are mutually contradictory. It also proves that only one of them, or neither can be true. That the telephone calls themselves are far from trustworthy can be seen in the next section.
Since confessions under POTA are proof in itself and play a vital role in conviction of the accused, authenticity and voluntariness of the statement must be ensured. If there are doubts that pertain to actual recording of confessions, whether it was made free of threat and fear, when an accused is made to incriminate himself before the media prior to the recording of confession, and some portions are disbelieved by even the judge, then the confessions cease to be credible.
E. Other Evidence
(i) PHONE CALLS
A critical material evidence presented by the prosecution in this case pertains to the call records of the three mobile phones. The prosecution has used these call records to link the four accused to each other. It is the prosecution's case that the first lead they found was the mobile phone number 98-106-93456 found on the body of one of the deceased militants, Mohammed. This phone was allegedly in touch with 98-114-89429 (said to be Afzal's phone number) just before the attack on the Parliament which began around 11.40-45 a.m. of December 13th. On further inquiry they found that 89429 had been in contact with 98-115-73506 (Shaukat's phone number), which in turn had been in touch with 98-100-81228 (Gilani's phone number) within an hour or more before and after the attack. The only proofs of this link are the call records. All that the investigating agency needed to do was to ensure that certified copies of the call records in accordance with Section 65 A and B of The Evidence Act were brought as evidence. And it is here that several discrepancies come to the fore and are once again explained away by the Judge.
The Call Records
Under section 65 A & B of the Evidence Act computer printouts can be used as evidence provided they fulfil certain conditions and are certified by someone responsible/in-charge of such operations. This was not done. The call records placed before the trial court are un-certified computer printouts. Moreover, the two witnesses presented before the court by the prosecution, a Security Manager from Airtel (PW35) and a retired Executive from Essar (PW 36) stated that they were not technical persons, knew nothing about the working of the switch i.e. the equipment that handles all the calls, or feeding data into computers. Moreover, the call records placed before the Court, as evidence, cannot be considered valid since they are not even copies of the primary document that could prove the telephonic contact.
The purported call records, as the expert witness brought by the defence deposed, were mere outputs of the billing system, and were therefore part of the business support of the telephone network. The business support network is not the same as the actual operation of provision of services. In this case of the telephone network, it is the Operating System Support that handles the actual calls and the output from this system is in a technical ASN-I format. The output from the billing system that the prosecution presented as the call records, does not represent therefore the actual calls, and is the familiar 'text format' that 'can be edited at any time'. Can such printouts which are susceptible to being doctored and are not certified be considered evidence? In the judgement, they are considered reliable evidence against the accused.
Two calls in the entire history of 73506 (Shaukat's phone number) received from 89429 (Afzal's phone number) show that at both points, while called and calling numbers are identical, time and location are identical, the IMEI and cell ID are changing. This is in the records of both SIMs and pertains to Essar. Thus the Call Detail Record (CDR) shows that at 11.19.14 am on December 13, two calls were made simultaneously from the same calling number 89429 (Afzal's) to the same called number 73506 (Shaukat's) but were made on handsets with different IMEI numbers. The same phenomenon was repeated at 11.32.40 the same day. The IMEI number is a unique number each cellular handset has and which is transmitted each time the phone is operated. It is therefore impossible for this phenomenon to occur unless the Call Detail Records have been doctored.
In the judgment, however, the authenticity and admissibility of the call records is never doubted. Moreover, the judge does not read the above stated contradiction in the call records as a factor casting them in doubt. Rather he sees the contradiction as a factor strengthening the prosecution case. Without explaining how, the judge concludes: 'This double entry does not affect authenticity of the chart rather reflects that there is no manual intervention in the preparation of these charts. No attempt has been made to remove double entry generated by computer in respect of the calls and that proves the authenticity of these charts"(p.143). It is significant that the switch operator (PW 78) brought in after this contradiction was pointed out by the defence, did not say anything about this matter. There does not seem to be any basis, therefore, for the explanation arrived at by the judge.
The judge did not also ask the investigators why a clarification from the cell operator was not sought. Considering that the computer was generating double entries in some cases and not in others, especially in the calls purported to have been made between Shaukat and Gilani on the day of the attack on the parliament and that forms the crux of prosecution's case and based on which SAR Gilani was roped into the conspiracy, it was certainly a point which deserved concerted questioning.
In the entire prosecution story, as has been mentioned earlier, the links between Afzal, Shaukat and Gilani are established through mobile telephones. The crucial telephone number in this story is telephone number 9811489429 allegedly belonging to Afzal. It is through this telephone number that all three are linked to the case. This number was allegedly mentioned in the Identity Cards of the dead militants and the dial number list of the telephone number 9810693456 allegedly recovered from the site showed that it was in touch with 9811489429. What is indeed curious is that the SIM of this number was never recovered. Moreover, that the Identity Cards indeed showed this number can never be established beyond doubt.
The reason being that whereas all such evidence has to be sealed after recovery in order to assure that they may not be tampered with, the Identity Cards were not sealed but pasted on a paper and remained in the custody of investigators. It is also to be noted that Head Constable Ashwini Kumar (PW 8) posted at the Parliament Street Police Station, who was among the first to reach the dead men and prepared the seizure memo listing the articles recovered from the site and the bodies, stated explicitly in the court that as far as he could remember, 'the telephone number was not written on the seizure'.
The story of this significant telephone number gets even more curious, if one looks at the testimony of Kamal Kishore (PW 49) who claims to have sold a Motorola phone and SIM of 9811489429 to Afzal on 4.12.01. He had no record of any kind relating to the sale receipt to show what he had sold, if anything, to Afzal. The call records for the number, however, show that the phone had been in use since 6 November 2001! Which is to say that the card was sold a month after it came in to use! Since this number is the key link that implicated Afzal and through him the others, the contradiction between the prosecution witness's claimed date of sale and, person it was sold to, and the date of activation raises a question about the credibility of this witness. That the same could happen due to cloning of SIM cards raises questions about Afzal's ownership of the said SIM.
To link Afzal through the SIM card purchase drives a hole into the prosecution case. Confronted with this fatal flaw in the prosecution case the judge claims that witness "has not stated that he sold SIM card of this number (98 114 89429) to Afzal" (p.121). The entire claim of the prosecution is that on December 4, 2001 Kamal Kishore (PW 49) had sold a mobile phone and SIM of 98-114-89429. The shopkeeper purchased the SIM from a distributor and there is purchase bill dated 21 September 2001 which says so. Thus if this SIM was not sold to Afzal on December 4th, the only time the shopkeeper claims to have seen the accused, how does this incriminate Afzal let alone Shaukat?
The other witness, Sandeep Chaudhary (PW 44) claimed to have sold a Sony mobile phone and a cash card (details unknown) to Afzal on 7/8 December 2001. Once again there is no proof of sale. The judge accepts that "Gaffar Market (Karol Bagh) is a grey market, no bills etc were used, only rough notes are prepared, which are destroyed every evening" (p.117). Moreover none of the other SIM cards or mobile phones allegedly used by the militants were traced. To use this patchy "evidence" to conclude as the judge does that "(t)hese SIM cards and phone instruments were procured for terrorists by accused Afzal and Shaukat" is to say the least astonishing.
Thus what is critical to the prosecution's theory in the form of call records and mobile telephones and is said to confirm the link between the accused in the conspiracy, is found to leave far too many questions unanswered to be treated as clinching evidence.
The prosecution claims to have intercepted and recorded the contents of two calls. The first was a call received by Gilani from his half brother at 12.22 p.m. on 14.12.2001. The content of this call forms the backbone of the charge against Gilani. The prosecution claims that during this phone call Gilani justified the attack on Parliament by saying "yeh zaroori hota hai" and laughing. The police version is based on a verbal translation done by Rashid, a fifth class pass Kashmiri fruit seller, which was then transcribed into Hindustani by a policeman. Significantly, Rashid insisted that there were no English words in the conversation. However, two defence witnesses - both graduate Kashmiri Pandits - refuted Rashid's translation and pointed out that the conversation was about a prospectus and syllabus for Delhi University and that these English words were clearly audible in the tape. As for the crucial line, both the defence witnesses find that Gilani only laughed and did not say those words. The judge, however, claimed that both the defence witnesses were 'interested persons' and defended Rashid's translation skills on the grounds that some of the greatest Indian poets like Tulsidas and Kabir were uneducated people! Whatever the case, a phone conversation whose translation is disputed is hardly sufficient evidence to hang a man on.
The second call was allegedly made by Shaukat to his wife Afsan on the evening of 14 December, in which she sounded frightened. This frightened tone is used by the prosecution as a substantiation of the charge that "she was aware of the entire conspiracy". The judge accepts this prosecution claim (p. 273) and concludes that "She was duty bound to inform the state about the impending attack on Parliament". As the section on arrests shows, Afsan's whereabouts at this time are contested - the defence claims that she was in police custody at this time.
(ii) LAPTOP COMPUTER
The glossing over of material facts extends to the laptop that was allegedly recovered from Shaukat and Afzal in Srinagar and was used by the five terrorists to prepare fake identity cards. As in the case of the Identity Cards, the investigators did not take the appropriate steps to preserve it as valid evidence for presentation before the court. The investigators did not make a copy of the hard disk before commencing their search of the contents in the laptop computer. This is an elementary step that any professional investigation ought to have undertaken in such an important case. Moreover, the Investigating Officer, ACP Rajbir Singh (PW80) claims that the laptop computer was sealed on 16 January 2002. Yet the computer shows that it was accessed on 21 January 2002.
The material accessed related to files containing the identity cards and the home ministry sticker. This fact was established by the Union Home Ministry controlled GEQD Hyderabad. While the judge chose to ignore this, characterising the accessed files as being "immaterial" (page 184), the files are indeed important because they contained the Identity Cards from which the investigators claimed to have got the lead in shape of a mobile number. (Recall that Afzal's phone number was written on the back of the identity cards).
F. Restrictions on Cross-Examination
A number of these discrepancies that had crept in the case could have been sorted out, had the court taken a judicious position on the right of cross-examination. A number of questions put in cross-examination were disallowed in the course of the trial. This was particularly striking with regards to cross-examination of ACP Rajbir Singh (PW 80) the Investigating Officer who supervised the investigations as well as of the DCP Ashok Chand (PW 60) who recorded the confession.
In the case of the former the reason advanced was that matters that are part of record or pertain to judicial record 'may not be asked from the witness'. Since PW 80 supervised the investigations this ought to have been allowed especially because in a cross-examination, the sorting of contradictions and testing the credibility of the witness etc. are usual. Similarly, questions put to PW 60 beyond confession were disallowed when it is a settled principle that questions regarding any briefing given to this witness by the IO (PW80) ought to have been allowed. Similarly the defence was denied even a day-long adjournment to prepare for cross-examining an expert witness called by the prosecution (PW 78) on the grounds that it amounted to asking "irrelevant questions", "harassing" the witness and "wasting" time of the court (p 61-62). An examination of this witness could have thrown significant light on the issue of cloning as well as CDR tampering, the possibilities of which had been raised by the defense. q
VI. The Unsustainable Case against the Accused
WE HAVE MENTIONED earlier that POTA by placing the burden of proof much lower, encourages shoddy investigation. While numerous such instances of carelessness have already been noted, there are some that need to be placed before the reader separately. Significantly, most of the questions pertaining to investigations, were routinely dismissed by the judge as inconsequential.
A professional and scientific investigation, however, would have gone a long way in removing these glitches before the trial began, and would have lifted the doubts and suspicions that continue to linger viz.,
(a) Three mobile phones were recovered from the five dead men on 13th December, one on Mohammad at Gate no.1 of the Parliament and two between Raja, Rana & Hamza at gate no.9 and none with Haider at Gate No. 5. The police also recovered 6 SIM cards, identity cards, and slips of paper with 7 numbers. Now the body of Mohammad at Gate No.1 was searched by SI Yograj & HC Jaiveer. They deny presence of M.C.Sharma, Inspector in the Special Operations Cell, Lodhi Road (PW66). Yet M.C.Sharma claimed that he reached the Parliament House with ACP Rajbir Singh and during the course of the day he switched off the mobile and removed the SIM card and noted its number. He insists that he did not remove SIM No. 9810693456 (which was allegedly in contact with Afzal's number) but does not say which SIM was removed.
(b) There is no explanation as to why the order of Union Home Secretary dated 31 December 2001 and 19 January 2002 granting permission for interception, refers to user of 9811573506 as "unknown" though by 15 December 2001 the accused were all in police custody?
(c) The question that also calls for explanation is why no investigation was done to trace the retailer and distributor of 9811573506 particularly when this card came into use after 7 December 2001 and was a relatively fresh lead.
(d) Why did the prosecution not call or was reluctant to call the personnel who are responsible for feeding data into computer which generated the call records or dealt with the upkeep or management of cell phone operator's computer? Why were the call records not presented in the Operating Systems format? If call data record is critical to establish the link between the accused why did the investigators not insist on certified copies based on the Operating Systems records when they had both the authority as well as the time to have done so?
(e) Another inexplicable aspect pertaining to the laptop is why Orion Convergence was engaged by the investigating agencies to garner the technical evidence contained in it. It is not clear as to why this company was used rather than computer experts available in the Special Cell or even the CFSL. Significantly questions seeking this clarification were not allowed to be put to the Investigating Officer, ACP Rajbir Singh (PW 80). This becomes all the more important if one looks at the discrepancy between the witness Vimalkant Arora's (an employee of Orion, PW 72) statement in court that he used to discuss the case with the IO ACP Rajbir Singh and the latter's denial of such discussions. Considering that the requisite norms for preserving the laptop as evidence were not taken, the IO's deliberate distancing from the technical expert becomes curious.
There should have been no reason for the I.O to hide the fact that he was in touch with the expert. It would not have besmirched the evidence being collected. But the judge refused to address this discrepancy.
(f) Why did the investigators not lift fingerprints from any of the material recovered from the "hideouts" searched by them? And why did they not try to match them with the fingerprints of Shaukat as well as Afzal to see whether they had handled any of the material?
The combined effect of all the above goes a long way in demolishing the prosecution's case against the accused. There is no evidence that links either SAR Gilani or Afsan Guru with any of the dead militants anywhere between the "final preparations for attack on Parliament (which) started after 5th December, 2001" and 13th December (p 248). Indeed there is no evidence which unerringly implicates them or whose authenticity is beyond reproach, nor is it alleged that they were present at any of the 'hideouts' or 'shops'?
The evidence cited against Shaukat too suffers from being of doubtful veracity and indeed there is no evidence that places him in the company of the militants between 5 and13 December. The evidence showing his presence at Gandhi Vihar on the night of 12-13 December is suspect just as the alleged meetings held at his house "2-3 days prior to" 13th December. Identification of Afzal by shopkeepers (PW 40-44) and by PW 34 on 12th as well as PW 45 "2-3 days prior to 13.12.01" raise questions that cannot be dismissed as irrelevant.
AT THE END of this long litany of inconsistencies and contradictions, almost every reader will find themselves with more questions than answers. Critical areas - identification by witnesses without TIP, absence of independent public witness at the time of arrest or during the search and seizure, discrepancies in time and place of arrest, doubts about authenticity of call records in the absence of certified statements, possibility of tampering of evidence related to mobile phones and the laptop computer, details provided in the confession that are doubted by the judge himself - all place a huge question mark on the quality of investigation undertaken by the Special Cell. Because Section 56 of POTA ousts all laws inconsistent with POTA in a POTA trial, it does not mean that all procedures laid down under the Evidence Act also stand ousted. It is the judiciary's task to hold the prosecution accountable for proper investigation - something the judge has declined to do here in the name of not wishing to 'flog the investigating agencies'.
The investigating agency in this case - the anti-terrorist squad of the Delhi Police euphemistically called the Special Cell, is, however, already under suspicion. The Special Cell has been much in the news lately. They were responsible for filing the case against Kashmir Times journalist Iftekhar Geelani under the Official Secrets Act and for concocting evidence against him, a case which was so flimsy that the Government was forced to withdraw it. They were in the news in the Ansal Plaza shootout in which two eyewitnesses claimed they saw two unarmed persons shot by cops and where physical evidence in shape of bullet marks and empty cartridges belie the claim of an encounter.
It is indeed surprising that in such an important case involving an attack on one of the country's highest institutions, and which nearly brought India and Pakistan to war, the investigations were not handed over to the premier investigating agency, the CBI, but to an agency whose capacities are so much in doubt.
The judgement convicted all the four accused. Of them Afzal and Shaukat were convicted on 12 counts, Gilani on 11 counts and Afsan on one count. (Details are provided in the Box on Charge and Punishment.)
The flimsy and objectionable nature of arguments put forward by the judge to establish the conspiracy is revealed through a telling example:
A damning evidence put up against Gilani was the contents of an intercepted phone call between Gilani and his half-brother Shah Faizal. In order to explain the context of this phone call Gilani's wife, Arifa, had stated in court that the phone call was the outcome of a quarrel she had with her husband over the cancellation of their plan to visit Srinagar on the occasion of Id. The judgement records that Arifa's argument does not explain the phone conversation and rules that "she is not a trustworthy witness at all and her testimony cannot be relied. It is a self serving testimony." However, while arguing for the conviction of Gilani, the judgement resurects the same discarded testimony to make a fanciful and baseless argument that Gilani had cancelled going to Srinagar on Id, in the hope that the "five terrorists would be successful in capturing parliament and he had envisaged a role for himself thereafter."
A cursory look at the sentences awarded reveal that Afzal and Shaukat have been given punishments that are either the maximum permissible (on 8 counts) or marginally lower (on 4 counts). In the case of Gilani the respective figures are 8 and 3. Given the flimsy and at many places internally inconsistent evidence such damning sentences seem more than a bit out of place. However, the defence plea that irreversible punishments such as the death sentence requires a 'higher degree of certainty', is rejected by the Judge by asserting that this sentence has a "deterrent" value.
On the question that death penalty is awarded only in the rarest of rare cases, the judge argues in the "Order on Sentence" that death sentence is justified where either VIPs are killed or else a very large number of people are killed (as in the example of 35 people being killed by the MCC at Bara village, cited in the judgement). Towards that end, the sentencing order persistently alleges that the militants design was to kill the prime minister and the home minister. But the facts that little or no evidence is available to substantiate this claim, and that the "VIPs" were not killed, are seemingly slighted when awarding the death penalty. A stream of adjectives "horrendous, revolting and dastardly" seems to make up for the lack of a criterion.
These terms too find little justification. "Dastardly", for example, is used to convey that Indian citizens "inspired by Osama bin Laden and Masood Azhar" betray the country by helping foreign terrorists. Yet there is little by way of evidence to prove the same. It is neither reasonably established that the dead militants were foreigners, and on the question of identification with the terrorist organisation, Jaish-e-Mohammed, alleged to be behind the attack, the judgement acquits all the four being tried of the charge of S.20 POTA relating to membership of a banned organisation.
Arguments lacking a substantial basis are not the only weakness apparent in the sentencing order. There is also visibly a lack of application of mind. Two instances stand out starkly:
First, Afzal, Shaukat and Gilani are convicted under S. 4(b) of POTA and sentenced to life imprisonment. But even by the prosecution claim, it is neither alleged nor is any evidence brought forth to connect Gilani with unauthorised possession of explosives. In the case of Shaukat, the only connection with explosives/chemicals is made out in the retracted "confessions". In other words, they are to suffer life imprisonment for a charge which either does not exist or is flimsy enough to be discarded.
Second, the three accused are sentenced twice for the same offence. Having being held guilty of conspiracy to cause terrorist acts by the judgement, the sentencing order awards a punishment under S. 3(2) of POTA read with S. 120-B of IPC. They are sentenced to death and fine. However they are again sentenced for conspiracy to commit terrorist act under S.3(3) of POTA, this time to life imprisonment! It should be noted that POTA contains the specific provision of S.3(3) to deal with conspiracy to commit terrorist acts. In addition S.54 of POTA stipulates that the provisions of POTA shall have overriding effect i.e. POTA provisions shall continue in case of any inconsistency with any other law.
There should therefore be no confusion that S.3(3) of POTA would apply. Since POTA specifies a maximum punishment of life imprisonment for conspiring to commit a terrorist act, and the same has been awarded, S.3(2) read with S.120-B does not come into the picture. The order of sentencing, however, does not even care to mention S.120-B, IPC making it seem that the three accused are sentenced to death for personally committing a terrorist act, an allegation for which there is not even a scrap of evidence.
But then POTA creates a class of criminals called terrorists who are denied the usual procedures of democratic law. And the power that creates laws like POTA also creates the image of a terrorist -- blood thirsty, unpatriotic and senseless – an object of revulsion. These procedures and images meet in the special court, each interacting and intensifying the other. It is not strange therefore that the gravest of punishments can be awarded in a most cavalier manner.
THERE CAN BE NO two views that the attack on parliament must be condemned and suitably punished. The kind of politics that such attacks manifest, is clearly undemocratic and counterproductive. At the same time, such events cannot and must not serve as an excuse for the state to weaken the civil liberties of its citizens through the operation of laws like POTA, or to 'sacrifice justice on the altar of security.'
Much as we would have liked our apprehensions regarding POTA and trial under this law to have been misplaced our experience of monitoring this trial shows otherwise. That POTA is anti-democratic became more than evident in the course of the trial. It is perhaps inherent in a trial under POTA that the accused is disabled to a point where rules of evidence become pliable and conjecture can take over and death sentences become easy to award. Any trial based on unreliable and self contradictory evidence with the support of an anti-democratic law and public pre-judging of the accused could arrive at the conclusion only by mistake. Verily an unjust law and unfair trial, in the name of fighting terrorism, has in all probability ended up committing a grievous error sentencing three men to death and a woman to five years of RI on dubious evidence and shoddy investigations.
What is therefore sought to be hidden from public gaze is the human agony and suffering, the spectre of a noose hanging over the head, of people who are condemned only because hanging is the need of the hour. The blame for this lies squarely on India's democracy and democratic institutions. And the manner in which they work under the influence of a political directive and a political law. This report is an attempt to prevent a gross violation of justice. It therefore demands the repeal of POTO
Case against Shaukat Hussain Guru
Case against Afsan Guru
Case against S.A.R. Gilani
Case against Mohammad Afzal
Charges and punishment
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