Hanging Afzal Guroo Will Be A Traversty Of Justice
By Abdul Majid Zargar
28 November, 2012
Countercurrents.org
Post execution of Ajmal Kasab, the clamour for hanging Afzal Guroo is increasing with every passing day.But to do so will be a traversty & miscarriage of Justice.Since a nation’s civilization is largely measured by the method it uses in the enforcement of its criminal law. Today that civilization is under serious threat when voices are raised to hang Afzal Guroo.
No denying the fact that the attack on the Indian Parliament was an atrocious act and if it had been successful it would have had very long term consequences for the entire region. Precisely for this reason it was imperative that the police and investigation agencies should have carried out an honest and vigorous investigation into the crime. Instead, the investigation agencies did a shoddy investigation, fabricated evidence and helped promote a shrill media campaign to reach a perverse conclusion.
The investigating agencies along with the Special Cell of the Delhi Police picked up four persons and charged them with the offence of conspiring to attack the Parliament. And after the arrest they carried out a media trial to make up for the deficiencies in their investigation. They held a media conference on December 20, 2001 in the Special Cell, Lodi Road where they made Mohammad Afzal incriminate himself on the national media. Then in the court under oath the DCP Ashok Chand denied having had such a conference. The Delhi High Court and the Supreme Court noted that this senior police officer told lies on oath in the court. But strangely no action against the erring officer.
The courts also acknowledged that Afzal Guru was a surrendered militant(in local parlance known as “cat”) who was in regular contact with the security forces, particularly the STF of Jammu and Kashmir police. How do the security forces explain the fact that a person under their surveillance was able to conspire in a major militant operation? And it also appears beyond logic that Lashkar-i-Taiba( LET) or Jaishe-Mohammad (JM) to which the parliament attack is attributed to, could have relied upon a person regularly in touch with security forces as a “cat” for executing their plan.
On Dec 19, 2001, six days after the parliament attack, police commissioner S.M. Shangari identified one of the attackers who was killed as Mohammad Yasin Fateh Mohammed (alias Abu Hamza) of the Lashkar-i-Taiba, who had been arrested in Mumbai in November 2000 and immediately handed over to the Jammu and Kashmir police. He gave detailed descriptions to support his statement. If police commissioner Shangari was right, how did Yasin, a man in the custody of the Jammu and Kashmir police, end up participating in the parliament attack? If he was wrong, where is Yasin now?
During trial, Afzal Guroo was the only one of the four accused who had no lawyer even though he was the most vulnerable. Afzal requested the Designated Court to appoint a lawyer for him and even gave a list of lawyers of his choice. However, these lawyers refused to represent him out of love & concern for national sentiments. Compare this with the directions of the Apex Court in infamous sex scandal case when the whole trial was ordered to be shifted out of J&K on mere apprehension of bycott by local lawyers and the double standards in dispening justice in Kashmir become apparent. When Mr Ram Jethmalani, senior counsel and Member of Parliament offered to defend Geelani, one of the four accused in the same case, the Shiv Sena goons ransacked his office in Mumbai. Such is the patriotism of the Hindu fascist forces. Finally, the designated judge passed an order on July 12, 2002 appointing a junior lawyer as Afzal’s amicus curiae and gave him the right to cross examine the witnesses. Everyone knows that a criminal trial requires knowledge-in-depth of Indian Evidence Act and other criminal law procedures and it is impossible for a layman to conduct a proper cross examination without legal assistance. The Right to be defended by a Lawyer is not only a Fundamental Right but a right guaranteed under the International Covenant on Civil and Political Rights which have become mandatory thanks to their recognition by the Protection of Human Rights Act. 1993.During the whole trial Afzal remained without any legal assistance and consequently was denied an opportunity to defend himself.
Finally the Judgment. The capital punishment to Afzal has not been awarded on the basis of “rarest of the rare” maxim but on extraneous considerations. A passage from the judgment reads as: “The incident, which resulted in heavy casualties, has shaken the entire nation and the collective conscience of the society will be satisfied if the capital punishment is awarded to the offender-----“ The Judgment raises a pertinent question- Can the collective conscience of the Indian people be satisfied by hanging a person without even allowing him to defend himself?
It is, therefore incumbent upon the Honb’le president of India ,Mr. Pranab Mukherji to grant a pardon to afzal Guroo and order retrial of Guroo to expose the real elements behind the parliament attack. In Kher Singh’s case (AIR 1989 SC 653) the Apex Court has held that the president can independently determine whether or not a convict is guilty--the findings of the courts, including the Supreme Court, notwithstanding. It is for the President to devise a system to establish such guilt.
(The author is a practicing chartered Accountant. Feed back at [email protected])
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