[Assam] From Tehelka

[Chan Mahanta]

This is yet another severe indictment of Indian justice!
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CURRENT AFFAIRS
 
Cover Story
GUILTY OF AN UNSOLVED CRIME ?

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
 
The thoroughness of the probe can be judged by 
the court's remarks. It pulled up the police for 
faking arrest memos and doctoring telephone 
conversations
December 13, 2001. "Five heavily armed persons 
stormed the Parliament House complex and 
inflicted heavy casualties on the security men on 
duty. This unprecedented event bewildered the 
entire nation and sent shockwaves across the 
globe. In the gun battle that lasted thirty 
minutes, these five terrorists who tried to gain 
entry into the Parliament when it was in session, 
were killed. Nine persons including eight 
security personnel and one gardener succumbed to 
the bullets of the terrorists and 16 persons 
including 13 security men received injuries. The 
five terrorists were ultimately killedŠ" - From 
the Supreme Court judgement.


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.

Quick probe but no direct evidence against Afzal

  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.

  They didn't need to die: Parliament staff pay 
homage to security personnel who died in the 
attack
 
The former Thane Police chief claimed that they 
had arrested Hamza and handed him over to J&K 
cops in December 2000

Why was the STF's involvement not probed?

  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 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."