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print versionForget the Jammu and Kashmir angle. Sentencing Afzal to death is wrong because the facts against him don?t add up, writes Sonia Jabbar.
Those arguing that Mohammad Afzal’s death sentence should not be commuted to life imprisonment are doing so on the grounds that a) the Indian courts pronounced the sentence after a fair trial and appealing to the President for intervention would amount to undermining the judiciary, and b) it would send out a wrong message — that India is a weak State soft on terrorism. Both arguments are flawed.
First, the presidential review is hardly illegal or controversial, enshrined as it is in Article 72 of the Constitution, precisely to check cases where the death penalty is deemed as too harsh a sentence or where there has been a miscarriage of justice. Second, the apex court had a choice of sentencing Afzal under two laws for conspiracy and chose the harsher (Sec. 120B read with Sec. 302 IPC), not because it was the only law that would serve the purpose but because it believed that only the death sentence could satisfy the Indian public: “… the collective conscience of the (sic) society will only be satisfied if capital punishment is awarded to the offender.†So the court projecting the desires of an imagined society, tosses the ball into the court of the citizens of India, and the citizens of India, citing the judgment, toss the ball right back into the courts in an absurd game of circular logic.
The second argument of ‘sending out a wrong message’ is intimately tied up with assumptions of Afzal’s guilt. Television shows are full of people indignantly proclaiming Afzal to be a terrorist and the mastermind of the Parliament attack. Both are patently false. The investigating agencies and the prosecution named three masterminds: Maulana Masood Azhar, chief of the Jaish-e-Mohammad and the prisoner exchanged for the IC-814 hostages; Ghazi Baba, the alleged chief of Jaish operations in J&K; and Tariq Ahmed, a Kashmiri. The Supreme Court acknowledged that Afzal was neither the mastermind nor the executor of the Parliament attack, and that it had no direct evidence, but only circumstantial evidence to prove Afzal’s guilt as a conspirator. The Parliament attack was a serious and unprecedented crime and Afzal’s sensational arrest two days after the attack, his trial, and subsequent debates on the death sentence all serve to divert attention away from the crime itself.
On December 13, 2001, an Ambassador with five armed men entered the Parliament premises while it was in session. The security personnel apprehended the car and in the exchange of gunfire that lasted for 30 minutes, all five terrorists were killed. Considering the enormity of the attack and the fact that we nearly went to war with Pakistan, the government in a departure from all norms (where the CBI would normally investigate such a case) named ACP Rajbir Singh of Delhi Police as Investigating Officer. And who was this man? A self-proclaimed encounter specialist, who later conducted the dubious Ansal Plaza encounter, and was finally disgraced with charges of corruption when he attempted to blackmail a couple of west Delhi businessmen.
Not surprisingly, the Parliament attack investigation was completed in a record 17 days. But with the apex court setting aside Afzal’s confessional statement as unreliable, there is nothing else that confirms the sequence of events or the conspiracy theory linking the masterminds with Afzal. Who were the attackers? Who were the masterminds? What was the conspiracy? Five years after the Parliament attack, the Indian public still doesn’t know the truth, and seems to be content to hang a man, close the case and sweep the rest under the carpet.
Afzal’s own statement recorded by the courts blows holes in the police version. And yet the honourable judges have selectively ignored the startling revelations. According to Afzal, he joined the JKLF in 1990, but was disillusioned and surrendered before the BSF in 1993. As the courts noted, Afzal had to regularly report to the Special Task Force (STF) as
per the laws governing surrendered militants. Regarding Tariq Ahmad, named by the prosecution as one of the masterminds, Afzal says that it was at an STF camp that he was introduced to Ahmad. As for Mohammad, the terrorist killed in the attack, Afzal says that Tariq took him to meet the DSP of Humhuma Chowk, Dravinder Singh, who then introduced him to Mohammad. Singh allegedly instructed Afzal to take Mohammad to Delhi, find him accommodation and help him out generally.
Afzal admits doing this and accompanying Mohammad to purchase the Ambassador, which Mohammad later used in the attack. According to Afzal, his role began and ended with these specific acts performed at the behest of Ahmad and Singh. And yet no one — the investigating team, the prosecution, the judges or the reporters — have bothered with investigating this further. Where is Tariq Ahmad? Is there any truth to the Dravinder Singh link? Does none of this merit investigation?
For those who may be tempted to dismiss this story, Afzal begs us to investigate the records of the calls made to his cell-phone and to Mohammad’s from Srinagar. He claims there were many calls to both these numbers from DSP Dravinder Singh. This is easily verifiable and yet, has not been investigated. Curiously, although the Supreme Court alludes to the terrorist Mohammad making and receiving other phone calls from Dubai and Mumbai, no one has thought it fit to scrutinise these telephone numbers. Why has the focus of the investigation been limited to Afzal, Shaukat, Geelani and Afsan Guru and the ambit of investigations not enlarged?
The role of the police is also suspect due to their claims and counterclaims. The J&K and Delhi Police both announced that Mohammad was Sunny Ahmad Qazi, the very same ‘Burger’, the hijacker of IC-814. On investigation, the CBI found this to be untrue. If this were so, why has the CBI not probed into the other claims made by the same agencies? On December 19, the Thane Police Commissioner, SM Shangari, made a startling announcement. He said the Mohammad killed in the Parliament attack was the same Mohammad Yasin Fateh Mohammad of the Lashkar-e-Tayyeba whom he had arrested in Mumbai on November 23, 2000, and handed over to the J&K Police on December 8, 2000. The Commissioner described Mohammad in detail, giving his address in Pakistan, and even narrated how the militant had fought the police in hand-to-hand combat after he was grievously injured. The following day, IGP Rajendran of Kashmir Range, rubbished the claim and was backed by DCP Ashok Chand of Delhi Police who said, “The terrorist named Hamza killed in Delhi on December 13 was definitely different from the one Thane police claim to have arrested last year.†Thereafter, we have heard nothing more on this. Who was lying and why? If the Parliament attack Mohammad was different from the one captured in Thane, what happened to the Thane Mohammad? Why was he not produced? Why wasn’t anyone interested in cross-checking this claim?
And how hard did the investigators try to catch the alleged masterminds, Masood Azhar, Ghazi Baba and Tariq Ahmad? The Delhi Police claims the Srinagar Police arrested Afzal and Shaukat when they were going to meet Ghazi Baba with Mohammad’s laptop and Rs 10 lakh in cash. In which case, why were they nabbed and not followed to the meeting with Ghazi Baba? Why did the Srinagar Police not want to catch the suspected mastermind when they had specific information, allegedly from Afsal Guru, about this meeting?
On April 3, 2002, Judge SN Dhingra asked the Delhi Police whether Interpol had been alerted for the arrest of the three masterminds. A senior police officer replied that the “matter was being looked into†. Thereafter, we have heard nothing more about Interpol or any further activity to arrest the three masterminds. And apart from a few members of civil society, no one — not the judges, the security experts, the investigating agencies, the Indian intelligence agencies, MPs, journalists — have thought it fit to demand a probe.
If I were the mastermind, would hanging Afzal deter me from planning further attacks, or would it only confirm my suspicions that India is content to leave me untouched as long as they get somebody to hang? The Supreme Court observed, “The challenge to the unity, integrity and sovereignty of India by these acts of terrorists can only be compensated by giving the maximum punishment to the person who is proved to be the conspirator in this act…†I beg to differ. Afzal is the reddest herring that has appeared before the Indian republic in a long time, and the challenge to this country’s “unity, integrity and sovereignty†would be far better met by conducting a thorough and professional probe into the Parliament attack instead of hanging a man who is so clearly the scapegoat in the whole sordid affair.
Sonia Jabbar is an independent journalist who has been writing on Kashmir since 1995.
