Thursday, Oct 30, 2003
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By Anjali Mody
A jubilant Arifa Geelani hugs lawyer Nandita Haksar after the Delhi High Court on Wednesday acquitted her husband, S.A.R. Geelani, who had earlier been sentenced to death, in the Parliament House terrorist attack case. Ms. Geelani's son and her father look on. -- Photo: S. Subramanium
The two-judge Bench, comprising Usha Mehra and Pradeep Nandrajog, however, dismissed the appeals of Mohammed Afzal and Ms. Guru's husband, Shaukat Hussain Guru, against their conviction under the Prevention of Terrorism Act and the death sentences awarded to them on three counts. The judges also upheld an appeal by the state to increase the sentence on the charge of conspiring to wage war against the state from life to death. Citing a Supreme Court judgment of 2002, they held that "the offence is of a magnitude that the collective conscious of the community is so shocked that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining the death penalty."
Eight security personnel and a gardener were killed in the attack by five armed militants on Parliament on December 13, 2001. The militants, who were named by the investigators as Mohammed, Hamza, Rana, Haidar and Raja, were also killed. A telephone number found on their persons was said to belong to Mohammed Afzal. The call records of this number led them to Mr. Geelani, who knew Afzal through his cousin, Shaukat Hussain.
In a 392-page judgment, the two-judge Bench said that the evidence, on which the lower court relied in convicting Mr. Geelani, did not stand up to scrutiny.
They said that "we are left with only one piece of evidence against Geelani the record of telephone calls between him and Afzal and Shaukat. This circumstance, in our opinion, does not even remotely, far less definitely and unerringly, point towards the guilt of Geelani. We, therefore, conclude that the prosecution has failed to bring on record evidence, which cumulatively forms a chain, so complete that there is no escape from the conclusion that in all human probabilities Geelani was involved in the conspiracy."
In the case of Ms. Guru, the judges dismissed the state's appeal against her acquittal in the lower court on charges of conspiracy.
They upheld the trial court's judgment absolving her of any part in the conspiracy. Further, the judges held that on the evidence against Ms. Guru "even the offence that she had knowledge of the conspiracy and failed to report the same to the police is not established." They took the view that her husband's confessional statement one of two pieces of prosecution evidence was not evidence against her. They said that a confession made before a police officer under POTA was not admissible as evidence against a co-accused.
Ms. Guru's lawyer, Nitya Ramakrishnan, told The Hindu after the verdict that the question to be asked is: "Why had the police, with the best legal advice and in such a high-profile case, not paused to consider if it had sufficient evidence to prosecute the case."
Nandita Haksar of the All-India Defence Committee for S.A.R. Geelani echoed the sentiment. She said that while Mr. Geelani's acquittal vindicated the judiciary, "the question that remains to be answered is how did any court sentence a man to death on no evidence at all."
Both Shaukat Hussain Guru and Mohammed Afzal are expected to file appeals in the Supreme Court. Shanti Bhushan, counsel for Shaukat Hussain, said that "he has an excellent case and should have been acquitted. He has been falsely implicated because he is a cousin of Afzal who is a surrendered militant. I am quite sure the Supreme Court will do justice and acquit him".
Mohammed Afzal's counsel, Colin Gonzalves, said that he would file an appeal after a meeting with his client.
The public prosecutor, Mukta Gupta, said any decision by the state to appeal against the acquittals of Mr. Geelani and Ms. Guru would be taken only after the judgment had been scrutinised by all the "relevant departments".
Gopal Subramanium, who argued the case as the special prosecutor, said he could not comment on the judgment, as he had not yet read it.
Accepting the prosecution contention that Afzal and Shaukat Hussain Guru were known to Mr. Geelani and used to remain in contact with him over telephone, the Bench said ``there is, however, no evidence on record to establish that he (Geelani) remained in touch over the telephone with the terrorists. When one acquires a mobile phone, it is but natural that one would test it for use. What other number would one connect other than that of a known person," the court asked, and added that "by itself, with nothing more, we are afraid that conviction cannot be sustained on this evidence."
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