Why a mixed-up Mumbai Police have had to drop proceedings under POTO against alleged Al Qaeda terrorist Md. Afroz and scramble to save face as a blame game begins.
IF the National Police Academy ever wishes to introduce a course on how to ruin a serious investigation in three easy steps, for an illustration it need look no further than the case of alleged Al Qaeda operative Mohammad Afroz. Consider this:
* The Mumbai Police charged Afroz with offences they did not even allege he had committed.
*Although the Prevention of Terrorism Ordinance (POTO) was not in force when Afroz committed his alleged offences, and Article 20 of the Constitution bars retrospective prosecutions, he was charged under the legislation regardless.
*Having announced their intention to prosecute Afroz under POTO, the Mumbai Police produced him before a court that had no power to conduct trials under POTO.
On March 26, even as a joint session of Parliament was debating POTO, Maharashtra Special Public Prosecutor Ujjwal Nikam told the court of Justice A.P. Bhangale that the police were dropping charges brought against Afroz under the controversial ordinance. Nikam also told Justice Bhangale that the Mumbai Police intended to withdraw secondary charges of attempted robbery against Afroz, and that they would prosecute him under the provisions of the Indian Penal Code (IPC) dealing with sedition, waging war against the state and criminal conspiracy. Nikam told Justice Bhangale that the filing of charges under POTO was the result of a "mistake". "To err is human," the prosecutor reflected solemnly in court, "and mistakes do occur. But the police and the prosecution must be fair in the investigation process, and that is precisely what has been done."
However, none of the serious questions raised in the investigation has yet been answered. The Mumbai resident, who had trained as a pilot in Australia, the United States and the United Kingdom, was arrested from the city's suburbs on December 3, 2001 (Frontline, January 4, 2002). The precise circumstances of his arrest remain unclear, since the police now say they have evidence to support the robbery charges Afroz was first picked up on. During his interrogation, however, Afroz said he had planned to crash an aircraft into Westminster Palace, which houses the British Parliament, in London on September 11. Plans to execute the action, he said, had been drawn up while he was training at the Royal Victorian Aero Club in 1997. Afroz said he had been recruited by a West Asian preacher, Maulana Mansoor Ilyas, who ran the Al Taqwa mosque at the Werribee Islamic Centre in Victoria, Australia.
It did not take long for investigators to discover that at least this part of Afroz' story was correct. His claims of having studied at the Tyler International School of Aviation in Texas in 1999, and then the next year at the premier Cabair College of Air Training near Bedford, in the U.K., were also confirmed. That posed the obvious question. Fees for the three courses together, according to rates quoted on their web sites, run upwards of $100,000 (about Rs.49 lakhs at current rates), a sum Afroz' family, which lives in a Mumbai slum, had no evident means to raise. Afroz said his fees and living costs were met by a London-based maternal uncle, Mubarak Musalman. On December 14, he volunteered in court to make a full confession. Additional Chief Metropolitan Magistrate V.P. Tawre gave him four days to consider his decision, but Afroz, who claims to have had a change of heart after September 11, stuck to it.
CONFESSION or no confession, more evidence was still needed. Police teams from Australia and the U.K. interrogated Afroz in mid-December and heard much the same story he had told their Indian counterparts. British officials, in particular, were sceptical about Afroz' story. The alleged terrorist said he, along with five associates whom he knew by their codenames Rashid, Rahman, Qasim, Abbas and Rafiq, had planned to hijack an afternoon London-Manchester flight and crash it into the ancient landmark in the heart of London, on the banks of the Thames. The plan, he said, had to be aborted after news of events in New York and Washington led to flights out of London's Heathrow airport being cancelled. Video surveillance tapes at Heathrow, however, did not pick up any such group, and no tickets in their names were found as having been issued for Manchester-bound flights.
Mumbai Police Commissioner M.N. Singh himself led teams abroad and returned in late March claiming to have found considerable supporting evidence, but the reality was different. Officials who went with him complained privately that their hosts had been uncooperative, and that key appointments had been mysteriously cancelled. Mubarak Musalman was called in for questioning in London, but all that he would say was that he had nothing to do with financing Afroz. M.N. Singh then pointed out that while Musalman received social security payments for looking after a disabled daughter, he nonetheless drove a Mercedes Benz. According to the Mumbai Police, their British counterparts refused to access Musalman's bank records, saying that they needed a letters rogatory, a legal request from an Indian court in order to do so.
Mumbai Police officers said they had little luck even with other key elements of their quest. Afroz had said he had left behind in his room at Bedford navigation maps plotting the route from Heathrow to the Westminster Palace. These and other belongings had disappeared by the time the Mumbai Police reached there. In the U.S., the Mumbai Police were told that Afroz' fees had indeed been remitted from the U.K., but no details were available.
The countries concerned would not hand over information on who had sponsored Afroz' visa applications, although officials in the U.S. told the Mumbai Police that his first request to travel to the U.S. had been rejected. "It was all a bit peculiar," said one member of M.N. Singh's team. "In the U.S., post-September 11 they had picked up thousands of people on the flimsiest evidence. Here we were asking for basic facts, and everyone was throwing privacy laws at us."
Back home, an amended first information report was filed against Afroz citing Sections 120B, 121 and 126 of the IPC, which deal with criminal conspiracy, waging war on the state, and causing depredations in a friendly country. The Mumbai Police had until March 3 to file a charge-sheet, which under the law must be filed within 90 days of the arrest of a suspect. In late February, Joint Commissioner of Police Bhujangrao Mohite, holding charge in M.N. Singh's absence, decided to invoke the provisions of POTO. The decision, sources told Frontline, was taken after prolonged consultations with top bureaucrats in the Home Department, and Deputy Chief Minister Chhagan Bhujbal. On March 1, counsel for the Mumbai Police appeared in Justice Bhangale's court, and asked that they be given the 180 days permitted under POTO to file a charge-sheet.
Over the next four weeks the prosecution of Afroz degenerated into a farce. The political debate over POTO, for one, had crystallised. The Congress(I) Chief Minister Vilasrao Deshmukh, who had privately said he backed such legislation, now found himself in no position to make this stand public. Then, someone in the Mumbai Police actually sat down to read the ordinance, and discovered that under Section 23 the State government had to constitute a special court to try a POTO case, with the concurrence of the Chief Justice of the High Court. Justice Bhangale's court had been designated to hear cases under the Maharashtra Control of Organised Crime Act, but not to conduct POTO trials. It was impossible for Deshmukh, it was evident to the Mumbai Police, to designate a POTO court with the crucial debate in Parliament just four weeks away.
Besides, the offences Afroz was charged with did not quite match the definitions under POTO. Section 3(1) of POTO deals only with efforts to "threaten the unity, integrity, security or sovereignty of India or to strike terror in the people". Afroz had allegedly planned to inflict such harm on the citizens of the U.K. The trained pilot was also charged, under Section 3(5), with membership of a "terrorist gang or terrorist organisation". But Al Qaeda was not among the 25 organisations proscribed under POTO. And while Section 22 of POTO, which deals with the receipt of funds for carrying out a terrorist offence, had relevance, M.N. Singh's expedition abroad came up with little tangible material on who had paid Afroz' fees. While a confession made before a magistrate does constitute substantive evidence, it has to be corroborated by other facts. Worst of all, of course, POTO did not exist when Afroz conspired to blow up Westminster Palace, which meant that he could not be charged under the ordinance.
Chhagan Bhujbal was informed of the decision to withdraw POTO the night before Nikam announced it in court. Since then, all those concerned have been engaged in a furious blame game. The Special Public Prosecutor insists that he was not consulted before the decision to employ POTO was made, while Bhujbal has gone on record to say he indeed was. The Deputy Chief Minister has now announced an investigation into the affair, which is intended to fix blame for the error of judgment. Nikam, for his part, has done not a little to add to the confusion. In several interviews, he insisted that the prosecution would proceed under the IPC, while claiming that the police had no evidence to substantiate its POTO-defined charges. How a prosecution that does not have a chance to succeed in a POTO court will survive the more rigorous challenges of a normal criminal trial, Nikam has so far not explained.
ALL of this is sad since the substance of Afroz' story has yet to be explained. For all the legal confusion, the fact is that there is no plausible explanation of who paid for his expensive aviation courses, particularly since the accounts of his instructors portray him as a less than serious student. His visit to Hong Kong in 2000, which Afroz claims to have made to receive final orders from Ilyas, has also not been accounted for. The facts concerning Mubarak Musalman's finances have yet to come in, as have details of the sponsors of Afroz' visas. His brother Mohammad Farooq, still wanted for questioning by the Mumbai Police, remains elusive. Afroz' father too has given conflicting accounts of his son's activities, variously claiming that he had never studied abroad and that he had paid for the courses himself. Worst of all, there has been little progress in establishing the identities of members of a parallel cell that Afroz claimed existed in Australia. It had allegedly planned to bomb Parliament House in New Delhi. So far, the 30-odd West Asian and South Asian students who were Afroz' contemporaries at Victoria have not been questioned.
Afroz refused the bail he is entitled to at his last court hearing, saying that he wished to complete an ongoing meditation course in prison. The case was to be heard next on April 9. Meanwhile, no matter what laws it is armed with, it would seem, India's criminal justice system is just a joke.
