The Question of Reasonable Doubt

The guilt of Afzal Guru was not as evident as the State would have you think. And his dubious execution may not be the last such case

Those who welcome Afzal Guru’s hanging point to the fact that India’s apex court did hold him guilty of murder and ‘waging war’ against the State. But they forget that he was sentenced to hang to satisfy the ‘collective conscience of society’, as the judgment put it. They forget that Afzal Guru was absolved of all charges under the Prevention of Terrorist Activities Act (POTA) by the Supreme Court of India, since the ‘comprehensive investigation’ carried out by the Special Cell of the Delhi Police was based entirely on what was termed his ‘unreliable’ confessional statement. They forget that the Indian Government then sat on his death sentence for eight years. They forget that when he was finally hanged last week, it was done in a clandestine manner, without even informing his family.

I have followed the case closely since 2005. My reportage has led me to believe that the case against him certainly did not merit a death sentence. Moreover, the circumstances of the investigation continue to raise serious questions about the role of the police and their claims about the 13 December 2001 attack on Parliament.

Consider the primary facts of the case:

The five who actually laid siege to Parliament—Mohammad, Tariq, Hamza, Rana and Raja—were gunned down on the premises.

Of the 12 people allegedly involved in the ‘conspiracy’ to attack Parliament that day, only four were arrested: Afzal Guru, his cousin Shaukat Hussain Guru, Shaukat’s wife Afsan Guru and SAR Geelani, a teacher of Arabic at Delhi University. Afzal and Shaukat were convicted while Afsan and Geelani were acquitted. No POTA charges stood the test of judicial scrutiny against any of the four. The entire investigation was based on confessions made in police custody that the Supreme Court called ‘unreliable’. At the time of the attack, a fact the court upheld, Afzal did not belong to any banned terror outfit, having quit militancy and given himself up to the Border Security Force in 1993.

The three ‘masterminds’ of the operation— Ghazi Baba, Masood Azhar and Tariq, operatives of terror outfits Lashkar-e-Toiba (LeT) and Jaish-e- Mohammad (JeM)—were never arrested. Of these, Ghazi Baba was shot by security forces in 2004, and his body was identified by Afzal Guru in his capacity as a former militant.

Afzal was also the one asked to identify the five militants slain on Parliament premises after Geelani refused to identify them. Afzal apparently did as told.

It seems no coincidence that 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.

Geelani claims that he would have met the same fate as Afzal if he had not been defended at that stage by a set of competent lawyers. Afzal’s cousin Shaukat, also convicted, was sentenced to 10 years of rigorous imprisonment for knowledge of the conspiracy.

My interest in the case was piqued in 2005, when, while trying to do a series of stories on fake encounters, I heard a senior cop describe it as “the biggest fake encounter in India”. This is something that I have never been able to establish, but a closer look threw up grave discrepancies in the case. The investigation had been done in a tearing hurry, and the conspiracy theory propounded by the Special Cell was a bundle of contradictions.

The same year, I sought the help of Nirmalangshu Mukherji, a professor of Philosophy at Delhi University, who had followed the case closely and had attended most of the court hearings. We discussed the details. Among the things that bothered us, according to the chargesheet filed by the Special Cell in 2002, the JeM’s supreme commander in India, Ghazi Baba, had been in touch with Afzal and Shaukat through satellite phone No 8821651150059 and Swiss telephone No 491722290100. This was meant to be clinching evidence of the Guru cousins’ link with the terror attack. But, strangely enough, the Special Cell didn’t deem it fit to investigate this any further. Says the chargesheet: ‘A request for obtaining the call details of the international telephone numbers and satellite phone numbers, which figured during the investigation of the case, has been made to Interpol, but the report is still awaited.’ This lead was never discussed or mentioned during the protracted period of the trials. Is the Interpol report, if obtained, a secret?

The Special Cell’s investigation was based on Afzal Guru’s ‘confession’, but ignored that lead and what Afzal had to say about those phone calls. ‘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. He got no chance because there was no one to defend him at the trial court stage.

Afzal named Davinder Singh, deputy superintendent of police of Humhama, Jammu & Kashmir, as having asked him to take Mohammad, a co-accused in the Parliament attack case, to Delhi and arrange for his stay. ‘Since I was not knowing the man, I suspected this man is not Kashmiri, as he did not speak Kashmiri,’ wrote Afzal. The contents of this letter were never put on record before the court, as pointed out by Nandita Haksar, his lawyer later and a human rights activist.

The story gets worse. About a year before the Parliament attack, Afzal was in custody of the J&K Police, having been detained at an STF camp for his links with Ghazi Baba. But despite this piece of advance intelligence that he allegedly had links with the LeT, the STF set him free unconditionally. Why?

According to DSP Davinder Singh, who admitted having tortured Afzal during his detention, “Afzal was very close to Ghazi Baba. Do you know who Ghazi Baba was? There was great terror [of] him in the Valley. It took us six years to neutralise him. So we got [Afzal] picked up. We were asked to find out about his links with Ghazi Baba, which he refused to confirm. Finally, I handed him over to my senior officer. Subsequently, he was released the next day.”

The DSP later told a news channel that he had to release Afzal under the pressure of a senior officer, Ashaq Hussain Bukhari. When I contacted Bukhari, he had only one response to all my queries: “I do not remember.”

But Afzal did remember, and he wrote his lawyer Sushil Kumar details of the episode. Afzal alleged that his family secured his release by paying a Rs 1 lakh bribe. Tabassum, his wife, has explained how the deal was struck. “When I went to meet Afzal with family, he started crying on meeting [our son] Ghalib,” she told me, “He could not move his hands; he was badly beaten. After I came back home, I received a call from the STF demanding money to release Afzal. I had to sell my marriage jewellery. [But] the money fell short. Then I took Rs 10,000 each from my uncle and brother-in-law.”

If the allegations against Afzal Guru are true, then the J&K Police’s conduct assumes serious proportions. If Afzal was involved in terror activities at the time, either Davinder Singh or Bukhari was guilty of gross dereliction of duty. If a bribe was taken to release him, then it compounds the culpability of a force that could perhaps have foiled the Parliament attack.

During his trial, Afzal was trying to point out that he had been in touch with the J&K Police’s STF, but the nature of this association was never investigated by the Special Cell. Professor Mukherji points out that the prosecution did not find any merit in Afzal’s statement— made under Section 313 of the Code of Criminal Procedure—that linked him to Davinder Singh, the STF and a possible plot to attack Parliament. But after the Supreme Court rejected the prosecution’s theory based on Afzal’s confession, the latter’s 313 statement was the only basis left on which his role (if any) in events that led to the attack could be probed.

Yet, Davinder Singh was mentioned neither in the FIR nor chargesheet, nor was the police officer made a witness in the case. He did not figure in the trials.

Soon after the attack, another significant development was brushed aside by the J&K Police. After the names of the five killed assailants were made public, the Thane Police sought a clarification. SM Shangari, then Police Commissioner of Thane, held a press briefing to state that the Thane Police had in December 2001 arrested four LeT operatives, and one of them had the same name as one announced as killed on Parliament premises— Abu Hamza. It wasn’t just the name. Shangari spotted similarities between the blueprints, maps, arms and ammunition seized from the four arrested in Thane and the material recovered from the five bodies in New Delhi. The commissioner wanted to check if the killed militant was the same man they had arrested, to verify which they sent a photograph of their man to Delhi.

The four militants arrested by the Thane Police had been handed over to the J&K Police on 8 December 2000, a little more than a year before the Parliament attack. This was done on the orders of the Thane District Court via a transit remand, since they were ‘wanted’ by the J&K Police for other cases.

However, K Rajendra, then inspector general of the J&K Police, dismissed Shangari’s enquiries calling it a case of mistaken identity and arguing that Hamza is a common Muslim name. Perhaps so, but then what happened to those four militants? The Thane court issued repeated summons to the J&K Police to produce them in Thane. They were never sent.

Intrigued, I went to Kashmir in search of the four with a senior colleague at Tehelka. We met some senior police officers, as also a top intelligence officer posted to the state who later became chief of the Intelligence Bureau. They refused to divulge any information on the four who were supposed to be in their custody. On the Parliament Attack case, all they would say is “[Afzal] is involved.” Exactly how, they did not answer.

To check if the Thane Four were part of the five-man attack team of 13 December 2001, I tried to do what Shangari had wanted. I procured all their details available, including pictures, and concluded that one of the four arrested in Thane was among those shot that day: the hairline and nose matched, as did a cut over the left eyebrow. I got a forensic expert at AIIMS to examine these pictures. He asked for more details. We compared physical attributes. While this person’s height mentioned in the post-mortem report did not match what was recorded by the Thane Police, the difference was just an inch.

Praveen Swamy, writing in The Hindu in response to an article by Arundhati Roy in the same newspaper calling the whole thing a ‘conspiracy from incomplete evidence’, has written that Mohammad Yasin Fateh Mohammad, who, ‘Ms Roy noted in her essay, was identified by Thane’s then Police Commi- ssioner SM Shangari as one of the Parlia- ment attackers… was shot dead by the police while allegedly attempting to escape from custody. So were two other men held with him—22-year-old Faislabad re- sident Mohammad Tayyab Niaz and 24- year-old Mohammad Afzal Shahid. These killings were, possibly, extrajudicial executions but they took place between 19 December 2000 and 13 February 2001. Mohammad was in a grave in January 2001, 11 months before 13/12.’

If that is indeed the case, then the question is why the Thane court was not informed of these developments despite its repeated summons asking the J&K Police to present the four men. It seems rather convenient that the J&K Police is now willing to share details of deaths with Swamy that they were unwilling to submit in court. What else was kept from the Thane court? And what from the court that tried Afzal Guru?

Questions about the role of the Special Cell that undertook the Parliament Attack investigation are not limited to that case alone. On the night of 22 December 2000, a civilian and two soldiers of the 7th Rajputana Rifles were killed in a terror attack on Delhi’s historic Red Fort. A Pakistani national, Mohammad Arif alias Ashfaq alias Abu Hamad, an alleged LeT operative, was found guilty of carrying out that attack along with Abu Samal, who was killed in an encounter by the Special Cell of the Delhi Police at G73, Batla House, Delhi, a few days after that event.

Seven years later, Arif was sentenced to death by the Delhi High Court, a ruling upheld by the Supreme Court in August 2011. He could well be the next to be hanged after Afzal Guru.

The Red Fort case probe, however, bears an uncanny resemblance with that of the Parliament Attack. Arif, who had no qualms acknowledging his Pakistani nationality, claimed to be an operative of India’s Research & Analysis Wing (RAW). In his court statement, he said: “I used to work for the ‘X’ branch of RAW [and had] since 1997. On the last day of June 2000, I went to Kathmandu to give some documents to Sanjeev Gupta. I reached there from Pakistan by a PIA flight on my passport number 634417… Sanjeev Gupta accompanied me to Raxaul and from there I came to India by train. He gave me the address of one Nain Singh and his telephone number (6834454), saying he would accommodate me. Nain Singh gave me a room in his own house. He advised me not to tell my real name and address to anyone, and to say that I was a resident of Jammu.” Arif was not lying. He stayed for one-and- a-half months in Nain Singh’s house in southeast Delhi’s Okhla area. Asked about his employer and told to produce his identity details by the trial court, Singh said in the court: “I cannot disclose my present official address. I cannot produce my identity card in the open court (it was shown to the judge and returned). I am working for the Cabinet Secretariat (euphemism for RAW). I cannot disclose whether I am working for RAW.”

The Special Cell apparently saw no need to investigate how a so-called LeT terrorist involved in a terror attack in Delhi was staying with a RAW operative. Arif alleged that Nain Singh wanted to steal his money and so falsely implicated him in the Red Fort case. In his statement, Arif mentioned an amount of Rs 7 lakh sent to Nain Singh through Sanjeev Gupta for his use. But Nain Singh denied receiving any money.

A bank account with HDFC Bank was indeed found in Arif’s name by the Special Cell. The police claimed that he had opened it by using fake documents. The account, No 0891000024344, had Rs 553,000 at the time of Arif’s arrest. According to the police, he got that money via hawala (an illegal cash delivery network), while Arif insisted it was RAW’s money intended to fund his operations. Somehow, this money trail was never investigated.

Instead of following this lead, the police seem to have fudged phone records to link Arif to the site of the attack: the Red Fort. According to them, he had used two mobile phone numbers (9811278510 and 9811242154) with a single handset (IMEI no 445199440940240) to make a couple of calls. A scrutiny of the bill held up as corroboration shows identical call details, in groups of two to five, that appear to be copy-pasted several times over on the same sheet. There are two entries for a call made from mobile No 9811242154 on 13 October 2000 at 18:47:03 hours. Both these calls, according to the phone records, are made for 11 seconds from two different handsets: IMEI numbers 447471512180160 and 445199440940240. This is just not possible.

The call records were clearly doctored to suit the police’s claims. Other such aberrations in these phone records render them utterly unreliable as evidence in a grave case of life and death. Even so, Arif awaits his turn at the gallows.

About The Author

Mihir Srivastava