THE SOUL OF THE BUSINESS
A PRIVATE   FAITH MADE DANGEROUSLY PUBLIC 
The Making of a Paper
 By SHOMA CHAUDHURY
 In Gratitude
 By TARUN J TEJPAL

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

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

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

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

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 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.”