A Special Court Speaks

Justice(R) Syed Sharif Hussain Bokhari, advocate Supreme Court of Pakistan says that the legal requirements of proof in cases where sentence of death is provided are to be complied strictly. The basic requirement of law regarding criminal trial is that the charge must be proved beyond reasonable doubt and on the basis of the legal evidence brought on record. Without fulfilling this legal requirement the conviction is hit by Article 21 of the Constitution of India providing protection to life and liberty of every person irrespective of creed, colour and nationality.

he Special Court established at New Delhi by the Government of India under the recently enacted PREVENTION OF TERRORISM ACT (commonly known as POTA) which is presided over by MR. S. N. Dhingra, a designated Judge has rendered the verdict of death against three Muslims from the Indian Held Kashmir Valley, namely, Syed Abdul Rehman Gillani, Shaukat Hussain Guru and Muhammad Afzal. Each of them has been sentenced also to life imprisonment and to pay fine of Rs.5lacs besides cumulative 30 years rigorous imprisonment. The fourth convict is a lady, Afshan Guru w/o Shaukat Hussain Guru, who has been sentenced to five years’ rigorous imprisonment and to pay fine of Rs.10,000.

Gillani is a teacher by profession and a Professor of Zakir Hussain College of Delhi University, Guru, till recently a student of Delhi University and Afzal an activist of Jammu & Kashmir Liberation Front, a political party of Indian Held Kashmir which propagates for independent and secular state of Jammu & Kashmir and is a non militant organization.

The charge against these three convicts was that they had conspired with so called five terrorists of Jaish-e-Muhammad who attacked India’s Parliament House on December 13, 2001. All the five attackers were killed within the precincts of the Parliament House by the security guards before they could even enter the actual Parliament House. In the encounter eight security guards and one gardener was also killed at the spot.

According to the prosecution story these five attackers had planned to kill the Prime Minister and the Home Minister and make hostage of MPs and the VIPs in the Parliament House. To this conspiracy of the attackers the three convicts were party who also provided shelter to the attackers. The charge against Afshan Guru was that she concealed the knowledge of conspiracy. They are convicted and sentenced under section 3 (2a) of POTA for committing a terrorist act; under section 121 of Indian Penal Code for waging or attempting to wage war, or abetting to wage war against Government of India; under Section 302, IPC for committing murder of nine persons, under Section 121-A, IPC for conspiring to commit offences against the state; under Section 122, IPC for collecting arms etc. with intention of waging war against the state; under section 307, IPC-for attempt to commit murder and Section 3 and 4 of Explosives Substance Act.

Those who happened to watch the Indian TV Network on the fateful day would recall that the whole event was being filmed and telecast as if arrangements for the purpose were already made. The vehicle of the attackers used special VIP route to enter the Parliament House yet it was not intercepted nor were its occupants interrogated. However, as soon as they entered the outer verandah of the Parliament building the security guards opened fire on the attackers who returned the fire. In this encounter all the five attackers and nine others were killed at the spot.

The important and gravity of the incident demanded a high powered judicial inquiry by a judge of the superior courts to identify the attackers and to determine the object of the attack by five persons with ordinary fire arms of a place guarded by a large number of armed guards, how they entered the Parliament House and why were not they intercepted

The circumstantial evidence to the conclusion that the previous attack on the Srinagar State Assembly and attack on Indian Parliament House were stage managed by Indian agencies to achieve many objects, such as branding Kashmiri freedom struggle as terrorist activity, to further let loose state terrorism in Kashmir for suppression of freedom movement, strengthening propaganda of so called cross-border terrorism, making the world believe that Pakistan is involved in sponsoring terrorism and thereby to intensify efforts to get Pakistan declared a terrorist state, justify mass movements of troops to Pakistani border, hamper Pakistan’s economic progress and within India to create election-wining atmosphere in favour of BJP.

The All Parties Hurriat Conference also had demanded and impartial probe at the international level into both these incidents and claimed that “such attacks were carried out by Indian agencies to suppress the freedom struggle”.

As earlier stated the charge against the three accused was that they helped the attackers to plan attack and gave them shelter. Thus the three convicts, according to the charge, conspire with five attackers whose intention was to attack Parliament House, to kill the Prime Minister and the Home Minister and to take hostage of Members of the Parliament and other VIPs there. It is proved that all convicts were from Indian held Kashmir valley whereas the attackers were stated by the Indian Government to be Pakistani nationals which Pakistan refuted. There was no apparent communion between the attackers and the convicts nor was any legal proof brought on the record to that effect. They had no commonality of interest or objects nor belonged to same area or political organizations. The direct witness to the alleged conspiracy and abetment the five attackers and the four convicts. The attackers were killed at the spot and all the convicts denied the charge in the court. Even at the time of judgment Gillani said, “I am innocent, I have been framed in the case. Without justice there is no peace.” Shaukat Guru said, “If asking for the liberation of Kashmir is terrorism then I am a terrorist.” Afzal addressing to the journalist said, “You are journalist of an independent country, you should report independently. But all you do is report what the police wants you to do.”

The only evidence brought on record in support of the prosecution case against the convicts was the confessional statements allegedly made before a Police Officer by Afzal and Guru and telephonic conversation, through mobile telephone of Afzal, between Afzal and Gillani which was intercepted by police. As to the first piece of evidence, it is common knowledge that the worst kind of third degree methods are used by Indian Police in dealing with the Kashmiri Muslims, therefore, they could be forced to make any statement before the police. In any case such statements under sections 1616 or 162, (Indian) code of Criminal Procedure have no legal value unless proved before the court. The evidentiary value of these confessions shall also be examined in the light of Art, 20(3), Indian Constitution which provides “No person accused of any offence shall be compelled to be a witness against himself”. With regard to the intercepted telephonic conversation, suffice to say that Delhi High Court had decided in this very case that the intercepted telephonic conversation was not admissible in evidence under the law. Besides, it has come on record that the intercepted telephonic conversation was recorded before the SIM was sold to Afzal and prior to the parliament house attack. Thus there is no legal proof establishing the charge of conspiracy and abetment beyond reasonable doubts against the convicts.

None of the four convicts had participated in the attack nor are they alleged to have directly and personally committed any other offences. The basic charge against them was of criminal conspiracy under Section 121-A, IPC. So unless, this charge was proved beyond reasonable doubt the charges under Section 3(2a) of POTA, Sections 121, 122, 302 and 307 of IPC and Sections 3 and 4 of The Explosive Substances Act could not be established. The Indian superior courts as reported in the AIR Manual Volume XII (Second Edition) have held that, “waging war” as used in Section 121, IPC means waging war in the manner used in war i.e. against troops. Thus the isolated incident of December 13, 2001 attacking Parliament House by five attackers would not amount to waging war against India which has one of the largest army in the world. Similarly “abetting of waging war”, like the conspiracy, had to be proved beyond reasonable doubt in this case and linked with the other cases of similar nature.

So far as a death of nine other persons is concerned, it was not definitely proved that they were killed by the attackers or whether the latter acted in self-defence. In any case the killing of these nine persons was not part of the alleged conspiracy nor was it a necessary or even a probable result of the conspiracy. But Mr. Dhingra announced that, “I sentence these three persons to death for the murder of nine persons.” Therefore, Gillani, Guru and Afzal could not be convicted under Section 302 IPC for committing murder or section 307 IPC to attempt murder.

The legal requirements of proof in cases where sentence of death is provided are to be complied strictly. The basic requirement of law regarding criminal trial is that the charge must be proved beyond reasonable doubt and on the basis of the legal evidence brought on record. Without fulfilling this legal requirement the conviction is hit by Article 21 of the Constitution of India providing protection to life and liberty of every person irrespective of creed, colour and nationality.

Mr. S.N. Dhingra, designated Judge of the Special Court, could not hide his bias against the convicts. He praised the investigation agencies for performing a tough job. He brushed aside the views of a Judge of Delhi High Court, who had declared the telephone conversation intercepted by police as inadmissible in evidence, by contemptuously stating that, “single judge is not authorized to hear appeal against the order of the designated judge.” Mr. Dhingra, while delivering the judgment, allowed in the court room the lawyers of his court to shout “kill them, they are terrorists.” And outside the courtroom Shiv Sena members flanked by police vehicle were allowed to burst crackers joyfully. The defence counsel Nitya Ramkrishnan, Advocate commenting on judgment said, “From several assumptions and conjectures in the judgment, which even prosecution did not care to assert in the court, it appears that the learned designated court has added to the fund of prosecution material and defence laments that it was not awarded the privilege of cross-examining the source.”

Mr. Dhingra described the alleged act of conspiring with foreign terrorist, as “horrendous, revolting and dastardly” without establishing identity of the attackers and any link with them. He also conjured up link between accused, living in Delhi or Kashmir valley and, Usama Bin Ladin and Masood Azhar, a terrorist group based in Pakistan, as observed in the judgment.

Every accused person has the right to fair trail by an impartial, independent and unbiased judge to ensure equality before law and equal protection of law. Article 10 of The Universal Declaration of Human Rights provides that “Everyone is entitled in full quality to a fair and public hearing before an independent and impartial tribunal in the determination of his rights and obligations and of any criminal charge against him”. The fair trial includes proper and reasonable opportunity to cross-examine witnesses who depose against him and the opportunity to produce or cause to be produced evidence in his defence. The fair-trial also includes the presumption of innocence until the guilt is proved according to law in a public trial. Article 11 of the Universal Declaration of Human Rights provides that “Everyone charged with a penal offence has a right to be presumed innocent until found guilty according to law in a public trial at which he has had all the guarantees necessary for his defence”. The POTA itself is a discriminatory law. It shifts the burden of proof of innocence to the accused, contrary to the established rules of criminal justice.

As was stated by the Hurriat leaders, the prosecution case was cooked up to cover the Srinagar Assembly and the Indian Parliament House attacks which were sponsored by the Indian Intelligence Agencies and at the same time to launch campaign blaming Pakistan and the Kashmiri freedom fighters. The judgment of Mr. Dhingra served these purposes of the BJP Government. Without legal proof, the attack on the Parliament was held to have been made by Pakistani terrorists who had planned it with the convicts. This is how the system of justice has been circumvented.