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Trail of Errors

   

Civil rights body ‘Peoples Union for Democratic Rights’ watched and analyzed the 2001 Parliament Attack trial in court to suggest that the accused were incriminated even before they had been tried in a court of law, Tasavur Mushtaq reports

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In the 2001 Parliament Attack judgment which runs into 296 pages, the Peoples Union for Democratic Rights (PUDR) report mentions that the judge accepted almost the entire prosecution case against Afzal and others, and covers the contradictions 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.”

The defense had argued that the investigating authorities failed to bring before the court any documentary evidence showing that the legal procedure had been followed and there were “gross procedural lapses in the investigation” which questioned the “veracity and credibility of the evidence presented by the prosecution to bolster its case of conspiracy against the accused.”

Guru's Son,wife and mother after filing the mercy petition with president APJ Kalam
Guru’s Son, wife and mother after filing the mercy petition with president APJ Kalam

As none of the four accused was present at the site of the attack, the five who actually laid siege at the Parliament – Mohammad, Tariq, Hamza, Rana and Raja were gunned down in the premises. The prosecution argued that the telephone numbers recovered from the dead militants provided the link to the four accused in the case. Police claim was that Afzal was the bridge as his mobile number (9811489429) was mentioned on every belonging recovered from the dead militants, “He was in touch last on December 9 with 9810081228 (belonging to SAR Gilani, one of the co-accused who was acquitted) and received two calls on December 13 from 9811573506 (belonging to another co-accused Shaukat, who denies the claims)” the police charge sheet states. Also, the mobile phone found on the body of dead militant Mohammad had called 9811489429. Surprisingly, ‘the SIM card of Muhammad was never recovered.’

The police intercepted the calls and Gilani was first to come under their surveillance. He was ‘arrested on December 15 at around 10 am’ and led to other accused. The conversation actually in Kashmiri was translated by Class 5 pass out Kashmiri fruit seller, Rashid, and later into Hindi by policemen. The prosecution claims that they have heard the conversation that showed knowledge of the attack and complicity.

The veracity of the calls records, the only major link of the accused with deceased militants is doubtful. The call records placed before the trial court were uncertified printouts when the law demand under section 65 A and B of the Evidence Act that ‘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 PUDR report mentions.

Not only this, the PUDR report claims that 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, “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. 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. The larger contradiction pointed out by PUDR report is about the timings of arrests made by the police.

Abdul Haq Butt, DySP J&K police claims that he received information from Delhi police at about 5:45 am on December 15. At around 8 am, Afzal’s truck was traced to Parimpora fruit mandi and Afzal and Shaukat were arrested at around 11 am allegedly with a laptop and Rs 10 lakh. But going by the claims of Delhi Police, they say Gilani led police to Afsan Guru’s house in Mukherjee Nagar at 10:45 am, where she was arrested. Afsan, in turn, 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 ‘obviously after 10:45 am’.

“The defence has also questioned the prosecution’s account of the date, time and place of arrest of each of the four accused and then the judge’s silence over it,” the report states.

The duo was taken back to Delhi on the same day where Afzal ‘took the police to three hideouts, which he had taken on rent and where the attackers had stayed – a hostel in Christian Colony, and two houses in Gandhi Vihar and Indra Vihar respectively.’ “The arrests were made in absence of witnesses, despite police locating the accused in densely populated areas,” it states

The defence had 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.

In the entire proceedings, Test Identification Parade (TIP) provided by section 9 of the Indian Evidence Act which says that ‘in order to establish identity of accused, witness should identify accused from a set of people,’ were not adhered to. “The identification of the deceased was done on the basis of photographs without adhering to the norms of a TIP,” says the report.

SAR Geelani, Showkat Guru and Afzal Guru outside the trail court in Delhi
SAR Geelani, Showkat Guru and Afzal Guru outside the trial court in Delhi

Rather than demanding to know why the TIP was not done, the judge condoned several infirmities in the identification and remained quiet about the absence of TIPs. The defence also questioned the genuineness of the confession allegedly made by Afzal and Shaukat before DCP Ashok Chand with the PUDR findings raising concern about the confession of the accused.

“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,” it says.

The key link in the case was a SIM card with number 9811489429 that implicated Afzal and through him the others. There is a contradiction between the prosecution witness’s claimed date of sale and person it was sold to and the date of activation. “It raises a question about the credibility of the witness, Kamal Kishore, who claims to have sold a Motorola phone and SIM to Afzal on December 4, 2001, but 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 November 6, 2001, which is to say that the card was sold to Afzal a month after it came into use,” the report says.

“If phone number records [are] seen carefully, the court would have come to know the phone number of STF (Special Task Force). I was not given a chance in the designated court to tell the real story,’ Afzal wrote to his Supreme Court lawyer Sushil Kumar.

The exoneration of Gilani and Afsan was seen as a balancing act. “The prosecution has been given the benefit of the doubt, leading us to the unfortunate conclusion that the judges have performed a balancing act. The obvious innocence of SAR Gilani and Afsan Guru appears to have necessitated the conviction of Mohammad Afzal and Shaukat Hussain,” the PUDR report mentions.

“Throughout the judgment, the judges have placed the utmost faith in the police, despite conceding instances of police violation of rules, for instance in the illegality of arrests. Further, despite exonerating Gilani and Afsan Guru, the judges have not questioned the police role in framing two innocent people,” it states.

Absolved of all charges, Afzal, the only man sentenced to death, was the only accused who was not properly defended at the trial stage. All evidence against him was treated as tenable as there was no one to dispute it on his behalf. Rest of the three were represented by legal luminaries of India.

December 13, 2001
Five militants are gunned down after they kill nine people and leave 15 injured

December 15, 2001
Delhi police Special Cell arrests four persons Afzal Guru, his cousin Shaukat, Shaukat’s wife Afsan and Delhi University lecturer SAR Gilani.

December 29, 2001
Afzal was sent to 10 day police remand.

 June 4, 2002
Afzal, Geelani, Shaukat and Afsan are charged.

July 8, 2002
Trial begins

November 18, 2002
Arguments concluded

December 16, 2002
Convictions start

December 18, 2002
Three sentenced to death and the fourth given five years rigorous imprisonment.

Oct 29, 2003
SAR Geelani acquitted by the High Court.

August 4, 2005
SC confirms Afzal’s death sentence but commutes Shaukat’s to 10 years of rigorous imprisonment.

September 26, 2006
Court orders Afzal Guru to be hanged

October 3, 2006
Tabasum files a mercy petition with the then President APJ Abul Kalam

January 12, 2007
SC dismisses Afzal’s review petition.

May 19, 2010
Delhi government rejects Afzal’s mercy petition and endorses capital punishment

December 30, 2010
Shaukat released from Tihar Jail.

February 3, 2013
President Pranab Mukherjee rejects Afzal’s mercy petition.

February 9, 2013
Afzal hanged and buried near Maqbool Bhat’s grave

PUDR’S 8 QUESTIONS

  1. Inspector of special cell claimed that in presence of ACP Rajbir Singh, he switched off the mobile recovered from dead millitant, removed the SIM card and noted its number. He insists that he did not remove SIM No. 9810693456 (which was allegedly used to contact Afzal) but does not say which SIM was removed?
  2. Why the order of Union Home Secretary dated December 31, 2001 and January 19, 2002 granting permission for interception, refers to user of 9811573506 as “unknown” though by December 15, 2001 the accused were all in police custody?
  3. Why no investigation was done to trace the retailer and distributor of 9811573506 particularly when this card came into use after December 7, 2001 and was a relatively fresh lead?
  4. 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?
  5. Why Orion Convergence was engaged by the investigating agencies to garner the technical evidence contained in the laptop. Why not computer experts available in the Special Cell or even the CFSL?
  6. 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’s to see whether they had handled any of the material?
  7. Mohammed (who was killed in the Parliament attack) and Tariq (whom the state claims has vanished) — were first introduced to him at the STF camp. A question that was never asked that how was it that the security forces did not know of Afzal’s movements, associations and plans, given that they kept close tabs on him, picking him and holding him in custody whenever they chose.
  8. Special Cell of the Delhi Police registered FIR on December 13, 2001 under ‘normal’ IPC and CrPC, and not under POTA. It was only on December 19, six days later, they invoked POTA. Why?

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