IN a packed courtroom on December 16, Special Judge S.N. Dhingra convicted three of the four accused, in the case relating to the December 13, 2001 attack on Parliament House, for waging a war against the state (Frontline, January 4, 2002). These persons are Mohammed Afzal, a former militant who belonged to the Jammu and Kashmir Libertion Front and laid down arms in 1995; Shaukat Hussain Guru, a former Delhi University student; and Syed Abdul Rehman Geelani, lecturer in Arabic at the Zakir Hussain college of Delhi University. The fourth, Navjot Sandhu, wife of Shaukat Hussain Gur, was convicted for a lesser offence. The conviction of Geelani, Afzal and Shaukat is the first such under the Prevention of Terrorism Act (POTA). It has brought into focus the use of the harsh law. The trial took place in a speedy manner.
In its order, the special court held Afzal, Shaukat and Geelani guilty under Sections 121, 121A and 122 of the Indian Penal Code (IPC), which deal with collecting arms with the intention of waging a war against the state, waging a war against the state, and conspiring to commit offences against the state. They were also found guilty under Section 302, 307 and 120 B, which deal with attempt to murder and committing murder and Section 3, Subsections 2 and 5, of POTA for committing a terrorist act by attacking government institutions, besides Section 3, 4 of Explosive Substances Act. With this order the three accused were sentenced for all the offences with which they were charged barring two. The charges that have not been upheld are: membership of a banned organisation, Jaish-e-Mohammed, and the possession of the proceeds of terrorism.
Overruling the option of differentiation in severity of punishments, the court placed Geelani in the same bracket as Afzal and Shaukat. Geelani's lawyer N.D. Pancholi said: "We were expecting a more favourable judgment for Geelani." By putting Geelani against whom the evidence collected was much flimsier in the same group as Afzal and Shaukat, the court failed to set a precedent. In the past, where the question has been of conspiracy, the courts have not applied differentiation in punishment. This was obvious in the Indira Gandhi assassination case and also in the Rajiv Gandhi assassination case, where the accused were given the same punishment even when some of them were less involved in the planning and execution of crime than others. The Special Court did take a relatively lenient view of the conduct of Navjot Sandhu. It convicted her under Section 123 of the IPC for not disclosing the presence of terrorists at her residence.
The Special Judge held the three men along with the five deceased terrorists and three others guilty of conspiring to "capture the Parliament House and kill the Prime Minister and Home Minister and to make hostage all the MPs and the VIPs present." Mohammed, Haider, Hamza, Raja and Rana, who carried out the attack on Parliament House, were dead. Three others involved, Maulana Masood Azhar, Ghazi Baba alias Abu Jehadi, and Tariq Ahmed were beyond the reach of Indian law.
The prosecution examined 80 out of the 185 witnesses in its favour, while the accused produced 10 witnesses at the trial, which began on July 8, 2002. A parallel media trial, which began with pernicious news-reports of Geelani owning prime property and mobilising extremists on the Delhi campus and ending with the shooting of a documentary by a news channel on the December 13 attack, accompanied the case. In the courtroom, the prosecution's thrust remained on nailing Geelani, Afzal and Shaukat on the basis of mobile phone numbers collected from the bodies of the dead terrorists.
According to police investigations, the starting point in the web of conspiracy was Afzal whose mobile number was found with one of the terrorists. When arrested, Afzal led the police to his accomplice Shaukat. Geelani was arrested as his mobile number was found in the memory of Afzal's mobile phone. Geelani's was the only mobile phone that was on subscription, with his billing address and name. The police collected confessional statements from Afzal and Shaukat. It based its case of conspiracy on these statements and material evidence, which included explosives collected from their hide-outs and intercepted telephone calls.
Several loopholes were pointed out by the defence during the trial. These referred to mobile phone records of the terrorists and that of the accused, their time of arrests, and the sequence of events presented by the police. The defence pointed out that the shopkeeper who sold the mobile phone to Afzal said that the sale was made on December 4, 2001. However, the call records of this mobile phone show that the phone was in use through November 2001. The call records of the mobile phone belonging to Mohammed, the slain terrorist, showed that calls were made one day after the attack, leaving unanswered the question who used the mobile phone after it was seized by the police. Anomalies were also pointed in the sequence of events presented by the police.
It was said by the police that Navjot Sandhu alias Afsan disclosed the whereabouts of Shaukat and Afzal, who were then arrested from Srinagar. However, the time of arrest of Afsan is shown to be 10:45 am on December 15 while the time of arrest of Shaukat and Afzal is 10 am on the same day. Shaukat had said that he was in Delhi while Afzal admitted that he was in Srinagar.
Given the complexities and the seriousness of the crime, the last has not been heard on the case. The order from the Sessions Court can only be seen as a temporary reprieve for the prosecution, as the accused will now take their application to the High Court. The High Court had earlier given a blow to the prosecution's case when it pronounced as inadmissable Geelani's taped intercepted conversion as evidence under POTA.
Naunidhi Kaur
