Gujarat

Accused acquitted

Print edition : June 13, 2014

ABDUL QAIYUM MUFTISAAB MOHMED BHAI, a madrasa teacher and social worker in Ahmedabad, and six others who were accused in the attack on the Akshardham temple in Ahmedabad in 2002 were acquitted by the Supreme Court on May 17. The court came down heavily on the investigating agencies and the State police for charging innocent people with grievous crimes and for not booking the real culprits.

For Qaiyum, who was arrested in August 2003, and his wife and two children and an ailing father who passed away recently, the apex court’s verdict comes after almost a decade-long fight for justice. In July 2006, a special Prevention of Terrorism Act (POTA) court sentenced Qaiyum to death and a Division Bench of the Gujarat High Corut upheld this verdict in 2010. He was accused of giving shelter to the fidayeen (terrorists) who carried out the attack and also writing two letters in Urdu to the fidayeen.

In 2002, two persons armed with AK-56 rifles and hand grenades fired at worshippers, devotees and volunteers at the Akshardham temple. The attack resulted in the death of 33 persons, including National Security Guard (NSG) commandos and personnel of the State Commando Force. The main evidence against the accused included articles received from Brigadier Raj Sitapati, head of the NSG, which included two letters written in Urdu allegedly found on each of the fidayeen. In 2003, five of the accused were arrested by the then ACP of the Crime Branch, G. L. Singhal. The State police alleged that a criminal conspiracy had been hatched in Saudi Arabia, Hyderabad, Ahmedabad, and Jammu and Kashmir by some clerics as revenge for the Gujarat riots in 2002.

Besides Qaiyum, another accused, Adambhai Sulemanbhai Ajmeri, was also awarded the death penalty under POTA and Section 302 of the Indian Penal Code. The other four accused—Chand Khan, Abdullamiya Yasinmiya, Mohammed Salim Hanif Sheikh, Altaf Malek—were awarded rigorous imprisonment for periods ranging from five years to life. The Supreme Court acquitted all the six accused and held that the prosecution had failed to establish their guilt beyond a reasonable doubt.

For Altaf Malek, the “terrorist” tag has made it very difficult to find work. He works as an interior decorator now. At the time when he was booked, he had a job with an advertising company in Saudi Arabia and had just come back home to Ahmedabad for his marriage.

Malek was charged with helping out Indian Muslims who had been to Saudi Arabia, having ties with banned organisations such as the Lashkar-e-Taiba, and collecting funds from the Jaish-e-Mohammed. He was awarded five years’ rigorous imprisonment under Section 22(1) of POTA. The evidence produced against Qaiyum included the letters obtained from the fidayeen. They spoke of communal violence and instigation of riots. Senior counsel K.T.S. Tulsi and Amarendra Sharan pointed out in court that it was not possible to believe that the letters were recovered from the two fidayeen as the post-mortem showed that they had 46 and 60 external injuries from multiple bullet shots and their clothes were covered in blood and mud. The letters, however, were in perfect condition. The court held that the two letters could not be treated as evidence.

The Supreme Court judgment, delivered by a Bench of Justices A.K. Patnaik and V. Gopala Gowda, made a number observations about the laxity in the investigations of the State police and investigating agencies and the attitudeof the trial courts and the Gujarat High Court to the case.

On the issue of whether the sanction granted by the Gujarat government in 2003 to the investigating officer was in compliance with Section 50 of POTA, the court held that there was “clear non-application of mind by the Home Minister in granting sanction”. The court further held that neither the police officer nor the Chief Judicial Magistrate followed the statutory mandate laid down in Sections 32 and 52 of POTA while recording the confessions of the accused. K.T.S. Tulsi and A. Sharan also pointed out that the Chief Judicial Magistrate, after recording the statements of the accused, committed a grave error in remanding them to police custody instead of sending them to judicial custody. This was a clear violation of Article 32 (5) of POTA.

The court also held that the evidence of accomplices could not be used to corroborate the confessional statements made by the accused in the absence of independent evidence. The delay of one year in recording the statements of the accused was also cited as a reason for disregarding the evidence. The judgment states that there is no independent evidence on record to prove the guilt of the accused beyond a reasonable doubt in the face of the retractions and allegations of torture and violations of human rights of the accused.

Although the judgment has highlighted the arbitrariness of terror investigations, there is no mechanism in place to compensate people for the loss of reputation and the attendant stigma associated with being accused in a terror case.

Sagnik Dutta

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