PERSPECTIVES

Chronicle of a Death Foretold

The Story of Mohammed Afzal
Anjali Mody

The police in its charge sheet said that they 1

along with Mohd Masood Azhar, Ghazi Babaand Tariq Ahmed all Pak nationals and proclaimed offendersand along with Mohammad, Haider, Hamja, Raja and Rana (all Pak nationals and deceased terrorists in attack on Parliament) and some other unknown persons, hatched up a conspiracy to wage a war against India and to commit terrorist attack.

Looking back, one notices that Mohammed Afzals trial in the Parliament attack case and the death sentence imposed on him almost had an air of inevitability about them. The police, lawyers and courts seem to have closely stuck to the script, but questions abound about the manner in which the investigation was carried out and the fairness with which Mohammed Afzal was defended in court.

ohammed Afzals death by hanging may have closed the chapter on the 13 December 2001 Parliament attack case, but it has reopened the discussion on whether he received a fair trial and a fair sentence. It is important to emphasise that it is the hanging that has reopened the discussion because the nality of that act seems to close the possibility of nding answers to unanswered questions. Those who take the view that there was a fair trial hold that the scrutiny of the entire judicial system was brought to bear on the case through successive appeals and a curative petition. The judicial conclusion at the end of this process remained unchanged, and therefore the matter has to be seen as settled. There are also those who would say that the complexities of the law are effectively opaque to people not trained in it. What seems logical from a common sense perspective may not be logical from a legal perspective. So, in attempting to analyse judicial processes they may reach simplistic, even false, conclusions. There is a grain of truth in this. But it does not preclude asking questions to which reasonable answers have not been given. In the politically charged atmosphere in which the Parliament attack case was heard, questions must be asked about the standards the courts have applied. And the judicial process that ended with a hanging must be examined. Bare Facts of Case The bare facts of the case are thus. On 13 December 2001, there was an attack by ve armed men on Parliament. The ve men were killed. Four people were tried as conspirators in the attack Mohammed Afzal, S A R Geelani, Shaukat Hussain Guru and Afsan Guru.
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Anjali Mody (anjalimody@gmail.com) is a journalist and commentator.

Economic & Political Weekly EPW

The trial court sentenced Mohammed Afzal, Geelani and Shaukat Hussain to death on two counts and life on several more, and Afsan Guru to ve years imprisonment for concealing knowledge of a conspiracy.2 The Delhi High Court acquitted Geelani and Afsan Guru. In the case of Shaukat Hussain and Mohammed Afzal, the high court, citing the threat of imminent war, enhanced the life sentence awarded on the charge of waging war to a death sentence.3 The Supreme Court acquitted Shaukat Hussain of all charges, but convicted him on the lesser charge of concealing knowledge of a conspiracy and sentenced him to 10 years. Mohammed Afzals death sentence was upheld on two counts. After the attack on Parliament on 13 December 2001, there was an orchestrated sense of siege in political Delhi. On the day of the attack, the prime minister said in a statement on television, This was not just an attack on the building, it was a warning to the entire nation. We accept the challenge. We will foil every attempt of the terrorists. The union cabinet resolution declared, We will liquidate the terrorists and their sponsors wherever they are, whosoever they are.4 On 16 December 2001, the Delhi police held a press conference to announce that it had cracked the case and arrested the conspirators. The attack was a plot devised by the Jaish-e-Mohammed, Lashkar-eToiba, and Pakistans Inter-Services Intelligence. Maulana Masood Azhar in Pakistan had orchestrated the attack, and Ghazi Baba and Tariq had prepared the ground from Kashmir. The police paraded three men before the media, who they said had been arrested the day before Mohammed Afzal, the main coordinator of Jaish-e-Mohammed in Delhi; Geelani,
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who the militants were in constant touch with; and Mohammed Afzals cousin Shaukat Hussain, who had arranged the hide-outs. There was also Shaukats wife, Afsan, who had told them where he was. They named all the ve dead attackers and produced a nearcomplete list of the material evidence from the addresses of hideouts to the purchases made in pursuance of the attack and the locations of the shops, as well as the substance of a phone conversation between one of the attackers and Mohammed Afzal, apparently moments before the attack.5 Trial by Media The trial by media commenced.6 Newspaper and television reports based on police briengs drew a picture of a closeknit group of Kashmiri Muslims two cousins, a wife who had converted to Islam, and a well-placed friend who had conspired in a diabolical attack on the nation. It bears repeating that the government massed troops on the border with Pakistan during this time and the air was heavy with the rhetoric of imminent war. In the days that followed, the police investigating the attack kept the media on a drip feed of small details. Mohammed Afzals purported proximity to the unseen Ghazi Baba, descriptions of material found on a laptop that was part of the evidence, and what the call records of some of the mobile phones that were evidence supposedly revealed about a ring of international terror. On 20 December 2001, the police held another press conference for select journalists at the headquarters of New Delhi Polices Special Cell on Lodhi Road. There, in the ofce of the investigating ofcer, ACP Rajbir Singh, Mohammed Afzal delivered what amounted to a confession to television cameras. The confession was broadcast several times over the next few days and extracts from it were published in most newspapers. Two days after the televised confession, on 22 December, a magistrate in Delhi recorded that Mohammed Afzal had been presented to him to testify that a confession he had made to the police on 21 December under the provisions of the Prevention of Terrorism Act (POTA)
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was true and voluntary. This confession was the foundation for his conviction in the trial court and the high court. The Supreme Court set the confession aside as unreliable because of lapses in procedural safeguards and their violation while recording it. Having set aside the confession, it upheld Mohammed Afzals conviction on circumstantial evidence the post-mortem report with Mohammed Afzals signature identifying the dead attackers; the phone call records showing the pattern of calls and phones in which different SIM cards were used; the laptop on which the templates of ID cards were found; and the testimonies of the police, landlords of ats, and owners of shops from where purchases had been made. Mohammed Afzal remained in police custody until early January, more than a fortnight longer than the other three accused, on the grounds that he was assisting the police in tracing the masterminds of the attack who were outside Delhi. How this time was spent was never accounted for. No Access to Legal Advice In all the time after his arrest on 15 December 2001 (including when his multiple confessions were made), Mohammed Afzal had no access to independent legal advice, as was his right. This was a right that the police were required to inform him of, but did not. This was one of the grounds on which the Supreme Court rejected the confession and relied on circumstantial evidence to sentence Mohammed Afzal to death. The police investigation, which by its own admission was completed in record time, showed scant regard for rules. The police violated the D K Basu guidelines on arrests. They held many, including Geelani and Afsan Guru, in illegal custody. The documents related to the arrests were fake or forged. Indeed, the high court, on the basis of police case diaries, which are not available to the defence, showed that the arrest memos of Geelani, Mohammed Afzal and Shaukat Hussain were signed by Bismillah, Geelanis brother. Bismillah was one of several members of the Geelani family who was in illegal police custody in Delhi. There was no record of the movement of the accused while in
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police custody, in violation of what is stipulated for those remanded to police custody. In the absence of such a record, the evidence that an accused has led the police to is only as good as the word of prosecution witnesses. There were numerous instances where counsels showed that evidence which was supposedly sealed could not possibly have been. For example, the call records of a phone that was found on one of the dead terrorists showed that it was in use 12 hours after it was said to have been secured and sealed. This might suggest something as signicant as a cloned phone was used, or something as banal as the police checked something in relation to the phone as part of their investigation. In the second case, there should have been a paper trail indicating the unsealing and sealing of the phone. Files on the laptop, another crucial piece of evidence in Mohammed Afzals conviction, were also opened and accessed when it was ostensibly sealed. Police Conduct Where more complex issues of authenticity and credibility were involved, the police did not conduct itself in a manner that inspired condence. Take, for example, the analysis of the laptop, which had templates of the ID cards found on the dead attackers and of a home ministry car sticker that was found on the car used by the attackers. The police, instead of working with personnel trained in computer forensics, used the services of a supposed expert (PW72) from a private rm, Orion Convergence, with ofces in Delhis Defence Colony. This expert was, at the very least, not conversant with the safeguards that had to be adopted while investigating electronic data. He admitted in court that he had not made a backup of the hard drive before he commenced his 12-day-long examination of the laptop at the police station. Once he completed his investigation, the laptop was sealed and sent to credentialed experts. The Supreme Court was satised that the analysis and conclusions reached by PWs73 and 79 match with those of PW72.7 However, PW73 from the Bureau of Police Research and Development,
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Directorate of Forensic Science Services, and the author of a book on crime and computer forensics, testied under crossexamination that one never worked on the original system in computer forensics. He also stated that all he had been required to do was give his opinion on the date a le had been created and the date it had been last accessed. The phone instrument that linked Mohammed Afzal to the attackers was a piece of critical evidence, but the police ofcer (PW61) who made the seizure and noted the unique 15-digit IMEI (International Mobile Equipment Identity) number identifying it could not explain how he had found this number. He said he had neither operated the phone nor opened it. There are two ways to ascertain the IMEI number of a phone by dialling *#06#, which brings up the number on the screen, or by opening it, removing the battery, and reading the number off the factory mark. His not having done either of these two things would suggest that he did not make the seizure himself or that it was not made in the manner he claimed. In both instances, it would cast doubt on his evidence. The trial court did not seem to think so. The Supreme Court, which greatly relied on this piece of evidence, inexplicably said,
The facts that the SIM card was not found in the mobile phone and that the IMEI number of the instrument was not noted by PW61 cannot be the grounds to disconnect Mohammed Afzal from the custody of the said phone. The IMEI number found on the phone was sent to trace the number of the cell phone.

information in his confession. To this, and other assertions of the court, the amicus made no response.8 It was clear he was merely assisting the Court, not arguing Mohammed Afzals defence. Quality of Court Record There is another less discussed issue the quality of the Court record. What transpires in court is not written down verbatim by the recorder, but is dictated to the recorder by the presiding judge/ magistrate. What was actually said and what was dictated was not always identical during the conduct of Parliament attack trial. The compression of ideas and the imputation of meaning turned on the syntax used by the judge, and the inclusion of words not spoken and the elision of words used. One exchange during the trial between a defence witness (a linguistics expert) and the presiding judge illustrated this quite well. The expert, Peggy Mohan, said that her analysis of the confessional statements of Mohammed Afzal and Shaukat Hussain suggested they were not verbatim transcriptions of oral statements. At various points during her deposition, Mohan stopped the judge as he dictated a paraphrased version of what she had said, saying she was being misquoted. The judge asked if she had seen Mohammed Afzals television interview in which he has incriminated himself. She responded, I have not seen the interview. The judge dictated, I have not seen the interview in which Mohammed Afzal incriminates himself. Mohan protested, saying that the judge was attributing words to her that she had not said. The judge said, But I have seen it and I am saying he has incriminated himself. This is my question and you will have to answer it my way. Mohan would not allow it.9 It has to be asked what is the proper value of a court record written in the absence of effective legal counsel or sturdy defence witnesses who can raise objections during the process of recording? Without Legal Counsel The other three accused had counsels who called attention to the illegalities and inrmities in the police investigation.
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No doubt the Court had some reason not stated in its judgment to assert this. However, what this reason was remains a mystery. The designated trial court judge declared that it was the usual practice nowadays to og the investigating agencies. An exchange between the judge and the amicus, who while summarising Mohammed Afzals defence said that no independent witnesses had been brought to conrm the evidence against him, seemed to sum up his approach. The judge told the amicus that such verication was not called for as Mohammed Afzal had given the police all this
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But Mohammed Afzal was not represented in court in a manner in which his case was either set out or argued. From 15 December 2001, the day of his arrest, to 14 May 2002, when charges were led against him in court, he had no legal counsel. The other three accused were by this time represented by lawyers who had wide experience in ghting human rights cases. Mohammed Afzal was effectively a pariah. His televised confession had put him beyond the pale. A lawyer, Attar Alam, whom the court had asked to appear for him when charges were led, declined. On 17 May 2002, Sima Gulati, a criminal lawyer practising in the sessions court, appeared for Mohammed Afzal and conceded the charges made against him. On 5 June 2002, without consulting her client, she accepted the inclusion of various documents as evidence without formal proof. One of these was the post-mortem report dated 17 December 2001 of the ve dead attackers, which bore Mohammed Afzals signature under identied by. He denied that he had identied the ve dead men. On 7 July 2002, Gulati applied to be discharged from the case, stating that she had not taken instructions from Mohammed Afzal and had not discussed his case with him. The judge, without asking for her reasons, accepted her application. Gulati had been approached by the team of human rights lawyers representing Geelani and offered a paid brief. She then appeared in the same case as Geelanis counsel. There has been little discussion of either the ethics of this decision or the consequences it had on Mohammed Afzals right to adequate legal representation and a fair trial.10 The effect of being an untouchable where the legal profession is concerned cannot be overstated. There is, for want of a better description, a compact of mutual respect or regard between judges and lawyers at every level of the judiciary. When a lawyer refuses to appear on behalf of an accused, or decides to quit after having accepted a brief, it sends an unmistakable message to the bench. The fact that lawyers and judges have never properly addressed this issue in reference to this case is a reection of the compact between them.
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On 3 July 2002, the judge asked Gulatis junior, Neeraj Bansal, to take her place. On 8 July, Mohammed Afzal moved an application saying Bansal was not acceptable and gave the judge the names of four lawyers who might be considered. On 12 July, when Mohammed Afzal once again raised objections, the judge passed an order stating that two of the four lawyers on his list had declined. The third, who had appeared in the case earlier to argue a bail application for another of the accused, had not returned to the court. He noted that Bansal had asked to withdraw from the case, but had been requested to continue to assist the court during the trial. Complaint against Amicus This sequence of events is important as the Supreme Court and the high court, where the argument for Mohammed Afzal was made by Colin Gonsalves, maintained criticism of the amicus was raised as an afterthought in the court of appeal. Recounting the sequence, the Supreme Court observed,
On 8.7.2002, the accused Mohammed Afzal led a petition stating therein that he was not satised with the counsel appointed by the Court and that he needed the services of a senior advocateThough the objection that he was not satised with his counsel was reiterated on 12.7.02we do not think that the Court should dislodge the counsel and go on searching for some other counsel to the liking of the accused. The right to legal aid cannot be taken thus far.

witnesses in addition to the amicus. In fact, he did avail of that opportunity now and then. On several occasions, there was common cross-examination on behalf of all the accused. No indicia of apparent prejudice is discernible from the manner in which the case was defended.

The question that arises from this is whether the Supreme Court dismissed Mohammed Afzals complaint against the amicus because it was an afterthought, or because it believed that his right to legal aid had been met? A common sense reading of the judgment would lead one to the conclusion that the Court was not very concerned with considering the facts of the complaint. The Supreme Court went on to say,
It is not demonstrated before us as to how the case was mishandled by the advocate appointed as amicus except pointing out stray instances pertaining to cross-examination of one or two witnesses.

One can only conclude that in a case of such enormous signicance, one in which it felt compelled to award the death penalty, the Supreme Court set a very low standard for what constitutes adequate legal representation for a fair trial. It is curious that the Supreme Court suggested that allowing cross-examination by the accused who was not conversant with the law and who had in an application to the high court said that he had no access to his case papers contributed to effective representation. As far as common cross-examination is concerned, it is to be expected in cases where the accused are supposed to be part of a conspiracy. But common cross-examination is only effective to the extent that all the accused are equally affected by the testimony of the witnesses. Mohammed Afzals case was different from the other three accused. They admitted to no part or knowledge of the plot, he admitted to knowing one of the dead attackers and accompanying him to buy a car. As for the stray instances, this may be accounted for by that the amicus did not cross-examine most of the witnesses. There were 80 prosecution witnesses, and the amicus can claim to have crossexamined 19. The amicus did not ask even basic questions related to the independence of the numerous public witnesses who testied against Mohammed Afzal. That landlords and property dealers who were

said to have identied him and witnessed the seizures of chemicals and explosives from their properties, and attested to having seen him with all ve dead attackers, were on bail at the time of the trial. They were arrested between 17 and 20 December 2001 for violating police orders on verication of tenants. The press had reported these arrests. There were also newspaper reports in December 2001 that shopkeepers from two named establishments in Khari Baoli in Delhi, who later identied Mohammed Afzal in court, were picked up and taken to the special cell for questioning. All the public witnesses produced by the prosecution operated in the grey market; not one produced a reliable sales receipt, and most produced no sales receipt at all. Examples, even just from the Supreme Court judgment, show that the problems were not just pertaining to crossexamination of one or two witnesses. In the list of circumstantial evidence against Mohammed Afzal that the Supreme Court relied on to uphold his conviction was the post-mortem report of the dead attackers with his signature in the indentied by column. Mohammed Afzal told the Court that he was forced to sign by the police. The Supreme Court, referring to this, stated, There was not even a suggestion put to PW76 [the police ofcer responsible] touching on the genuineness of the documents relating to identication memo. The Supreme Court then said, It may be recalled that all the accused, through their counsel, agreed for admission of the post-mortem reports without formal proof. This agreement between the

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It took the view that

Mohammed Afzal was also given the opportunity to cross-examine the prosecution

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accused and his counsel is a signicant factor in any claim to a fair trial. However, there was no agreement or even consultation between Mohammed Afzal and the counsel who admitted the evidence. The post-mortem reports did not affect the other accused. The Supreme Court observed,
Assuming that the counsels statement that she took no instructions from the accused is correct, even then there is nothing wrong in the conduct of the advocate in agreeing for admission of formal documents without formal proof... The counsel had exercised her discretion reasonably.

This seems to be an extraordinary conclusion given its consequences for the accused. If the counsel had remained to argue the case, then perhaps one could treat the Courts assertion more generously. But, the counsel, Gulati, quit acting for Mohammed Afzal before the trial began. This, taken with the Supreme Courts assessment that she exercised her discretion reasonably, only reinforces the compact of mutual regard or deference that binds the bench and the bar. That Mohammed Afzal was dissatised with the amicus was established rather dramatically during his crossexamination of Harpal Singh, the owner of Lucky Motors, who sold the second-hand white ambassador car used in the attack. The amicus suggested that Singh was lying when he said the accused had accompanied Mohammed (one of the dead attackers) to buy a car from him. Mohammed Afzal interrupted him to say that this was not what he had said. He did not deny knowing Mohammed or accompanying him to buy the car at Lucky Motors. These were the two facts of the prosecutions case that he admitted to, apart from the identity of the at that he had rented for himself. Surrendered Evidence Mohammed Afzal denied all the other evidence brought against him. This he did while recording his statement under Section 313 of the Criminal Procedure Code (CrPC) to the Court, at the rst proper opportunity he was offered to make a statement outside police custody.
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In his 313 statement, Mohammed Afzal drew attention to his being a surrendered militant and said that this was what linked him to the attackers. He described his life as a surrendered militant, marking attendance at a camp run by the Special Task Force (STF), the counter-insurgency division of the Jammu and Kashmir police. He said that it was at the camp that he met a man called Tariq, who worked for the STF and introduced him to Mohammed and asked him to accompany him to Delhi. In an application to the high court, among other things, he said that his 313 statement had not been properly recorded, and gave a vivid and terrifying description of what he had suffered at the hands of the Rashtriya Ries and the STF, naming four ofcers one major and two deputy superintendents of police (DSPs). He listed the illegal payments his family made to secure his release. He did so again in a letter to the lawyer who acted for him in the Supreme Court, naming the people who had interceded to have him freed from STF custody. One DSP, Davinder Singh, admitted in a secretly televised interview in 2006 that he tortured Mohammed Afzal, and also conrmed the names of those who had interceded on his behalf. There was nothing in the prosecutions case that was put on record to suggest that Mohammed Afzals history as a surrendered militant had been investigated. And no independent evidence was proffered to show his links to existing terrorist organisations. The only assertion of this was Mohammed Afzals confession, which the Supreme Court threw out. Indeed, the Supreme Court found no evidence of his being a member of a terrorist organisation. The question that was never answered was how Mohammed Afzal came to be linked to the attack. Yet, it is the surrendered militant whom the Supreme Court put to death. The Supreme Court, passing a sentence of death, asserted that Mohammed Afzal who is a surrendered militant and who was bent upon repeating the acts of treason against the nation, is a menace to the society and his life should become extinct.
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Taken together, the circumstances of the judicial process that ended with Mohammed Afzals death by hanging were a chronicle of a death foretold.
Notes
1 All quotations from the Delhi High Court judgment, State vs Mohd Afzal And Ors, 29 October 2003, are from http://indiankanoon.org/doc/ 1031426/ 2 The trial court convicted Mohammed Afzal for 12 offences under the IPC and POTA. It sentenced him to death on two counts: conspiracy to murder (Sections 120b read with 302 IPC) and conspiring in an act of terror [Section 3(2) POTA]. For the other offences, he received a total of seven terms of life imprisonment and three shorter terms of imprisonment. The high court conrmed 11 of the sentences passed by the trial court. It enhanced one life sentence (Section 121 IPC) to death. The Supreme Court upheld the high courts decision awarding death on two counts, of conspiracy to murder and waging war, both of which offered the alternative punishment of life imprisonment. It set aside the third death sentence [Section 3(2) POTA] on the charge of conspiring in an act of terror. It also set aside the conviction [POTA 3 (5)] for membership of a terrorist organisation and a conviction under Section 3 of the Explosive Substances Act. 3 The clouds of war with our neighbour loomed large for a long period of time. The nation suffered not only an economic strain but even the trauma of an imminent war. We agree with the submissions made by the prosecution that for the offence of waging war, accused Mohd Afzal and accused Shaukat Hussain Guru deserve the higher penalty. We accordingly modify the sentence imposed on the said two accused persons under Section 121 IPC by awarding death sentence to these two accused. http://indiankanoon.org/doc/ 1031426/ 4 A Decisive Battle Has to Take Place, Hindu, 14 December 2001. 5 Jaish, Lashkar Carried Out Attack with ISI Guidance: Police, Hindu, 17 December 2001. 6 The impact of a media trial was argued during Afzals high court appeal by lawyer Colin Gonsalves. The high court, dismissing its impact on the trial said, We may only add that judges are trained, skilled and have sufcient experience to shut their minds receiving hearsay evidence or being inuenced by the media. However, it added a caveat, It has indeed become a disturbing feature as is being noticed by us repeatedly that the accused persons, after their remand by the magistrate, are brazenly paraded before the press and interviews are being allowed. Accused persons are exposed to public glare through TV and in case where Test Identication Parade or the accused person being identied by witnesses (as in the present case) arise, the case of the prosecution is vulnerable to be attacked on the ground of exposure of the accused persons to public glare, weakening the impact of the identication. 7 All quotations from the Supreme Court judgment, State (NCT of Delhi) vs Navjot Sandhu@ Afsan Guru, 4 August 2005, are from http:// indiankanoon.in/doc/1769219/ 8 Parliament Attack Case Judgement on December 11, Hindu, 26 November 2002. 9 Evidence against Parliament Attack Accused Questions, Hindu, 18 October 2002. 10 http://timesondia.indiatimes.com/home/ specials/Clemency-seekers-weakened-Afzalsdefence/articleshow/2214714.cms

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