PUCL, February
2003
Trial
of Errors
A critique of the POTA court judgement
on the 13 December case
Peoples
Union for Democratic Rights, (PUDR), Delhi February 2003
Published
by: Secretary, Peoples Union for Democratic Rights
For Copies: Sharmila Purkayastha, Flat No. 5,
Miranda House Teachers Quarters,
Chhatra Marg, Delhi University, Delhi - 110007
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Printed at: Nagari Printers, Naveen Shahdara, Delhi - 110032
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.
CONTENTS
I.
Introduction
II. Trial under POTA
III. Prosecution case against the accused
IV. The defence
V. Trial and judgement
VI. The Unsustainable case against the accused
VII. Conviction
VIII. Conclusion
I. Introduction
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 defense 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, irreconciliable.
C.
Arrests
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.
D.
Confessions
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 chargesheet, 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.
SIM Cards
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. (see Box)
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 (see Box on facing page).
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.
Interceptions
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. q
VII.
Conviction
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"
seem 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 is 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 being awarded
in a most cavalier manner. q
VIII.
Conclusion
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 conjecure 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-juding 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 infuence 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
Tables-
( Word document, 284K)
Case
against Shaukat Hussain Guru
Case
against Afsan Guru
Case
against S.A.R. Gilani
Case
against Mohammad Afzal
Charges and punishment