TCN News - TwoCircles.net

By M Reyaz, TwoCircles.net,

New Delhi: The six accused in the 2002 Akshardham case were all pronounced guilty not only by the special POTA court but the conviction was also upheld by the Gujarat High Court. On May 16, the Apex Court, however, not only acquitted all of the accused persons but also came down heavily on the state administration, investigating agency, and the trial court.

The Apex Court had noted, “Before parting with the judgment, we intend to express our anguish about the incompetence with which the investigating agencies conducted the investigation of the case of such a grievous nature, involving the integrity and security of the Nation. Instead of booking the real culprits responsible for taking so many precious lives, the police caught innocent people and got imposed the grievous charges against them which resulted in their conviction and subsequent sentencing.”

Advocate Ejaz Qureshi

So did the POTA court and the Gujarat HC acted in a “bias” manner? Advocate Ejaz Qureshi, one of the lawyers of the accused persons, told TwoCircles.net that he would not use the word bias, but said that the POTA Court and the Gujarat HC rather worked with “pre-conceived mind.” He pointed out that in the judgment of both the trial court and the HC, one of the findings was that the attack on the Akshardham temple was a “conspiracy against the Hindu community,” and that the said act of terror was a “revenge” for the 2002 Gujarat riots.

The honorable SC bench of Justice AK Patnaik and Justice V Gopala Gowda had observed, “The courts below (Special POTA court and Gujarat HC) mechanically and without applying their mind” had discarded the contention of the learned counsel on behalf of the accused persons.

Detailing the sequence of events, Advocate Qureshi said that after the attack on Akshardham temple on 24 September, 2002, the case was transferred to the Gujarat ATS, who had made no headway for almost a year. Gujarat ATS had found “no local connection,” and concluded that the said act of terror was the handiwork of the neighboring country – raising the finger of suspicion on Pakistan.

Advocate Qureshi points to the manner in which the case was transferred to the Ahmedabad Police Crime Branch and the way arrests were made; alleging ‘foul play,’ something the honorable Supreme Court too has acknowledged. “The anniversary of the Akshardham temple attack was approaching, and in order to show that the Police have solved the case, they swung into actions,” he said, alleging that the arrests were made for political benefits.

On the evening of 28 August, 2013 a Fax was sent to this effect, transferring the case to the Crime branch and the very next day, on 29 August, 2003, five arrests were shown. Sixth accused Chand Khan who is a mechanic originally from Bareilly in UP, but also had a workshop in Kashmir, where he was apparently arrested on 31 August in Kashmir and later brought to Ahmedabad.

Pointing at the ‘conspiracy,’ Advocate Qureshi contends that most of the accused were already in “illegal detention since 17 August, 2003.” Several Muslim youths were picked up from Muslim dominated localities of Ahmedabad days preceding the date of arrest shown, he added.

He also raised suspicions at “the manner in which POTA laws were invoked.” The Prevention of Terrorism Act, 2002 (POTA) was a draconian anti-terrorism legislation enacted by the Parliament of India in 2002 that was later repealed by the UPA Government. Under POTA confessions made to police were admissible in the court of law.

“From the day one of the attack we all knew that it was an act of terror still POTA was not revoked for almost a year. On August 28, 2003, the case is transferred to the Crime Branch, next day (Aug 29) arrests are shown to be made and the very next day, that is August the office of the State Home Minister signed a letter sanctioning POTA against them,” he wondered.

The Special POTA Court subsequently found them guilty and convicted them with: Altaf Malek (5 years imprisonment), Adam Bhai Ajmeri (death penalty), Mohammed Salim Hanif Sheikh (Life imprisonment till death), Abdul Qaiyum Muftisaab Mohmed Bhai (death penalty), Abdullah Miya Yasin Miya (10 years imprisonment) and Chand Khan (death penalty).

Defense lawyers had questioned the sanction of the POTA in the courts of law. While the trial court and the Gujarat HC did not pay much heed, the Apex Court had observed, “The present case does not show that the sanctioning authority had applied its mind to the satisfaction as to whether the present case required granting of sanction.”

[Courtesy: The Hindu]

The SC has questioned the then Home Minister’s “non-application of mind” and deemed it “not a legal and valid sanction.” The SC bench had contended, “The prosecution had failed to prove that the sanction was granted by the government either on the basis of an informed decision or on the basis of an independent analysis of fact on consultation with the Investigating Officer. This would go to show clear non-application of mind by the Home Minister in granting sanction. Therefore, the sanction is void on the ground of non- application of mind and is not a legal and valid sanction under Section 50 of POTA.”

Advocate Qureshi also pointed to the fact that the prosecution had “miserably failed” to produce any evidence against its main allegations, that Altaf Malek and Mohammed Salim used to send money to others and that they had hatched conspiracy of the attack. “They could neither produce any records of call-details, nor do they produce any evidence of money transfer through Hawala or in bank accounts. They even failed to prove the common intent and ‘meeting of mind’ in the alleged conspiracy,” he told TCN.

Another evidence produced against them was a purported letter written by Abdul Qaiyum Mufti to one of the terrorist killed during the Akshardham attack. What was intriguing is that although the slain terrorist was completely drenched in blood due to multiple bullet injuries, the letter was without any stain of blood and “completely clean.”

When the defense had raised this question, the Gujarat HC had noted that sometimes “truth is stranger than fiction,” Advocate Qureshi told TCN. Qaiyum has gone on record saying, “The police tortured and forced me to write the letters…for matching the handwriting.”

Advocate Qureshi shared another interesting instance of the case saying that the Forensic Expert who was called to match the handwriting has said in the Court that he had no knowledge of the Urdu language.

So the only evidence now left was confessional-statements, the Apex Court reprimanded the investigating agencies for not following the set-procedures even as the POTA was sanctioned and acknowledged that the statements might have been recorded under pressure. Moreover, as the accused had retracted the statements and the prosecution failed to corroborate it independently.

The Apex Court noted that there is “absolutely no independent evidence to implicate the accused persons for the crime,” adding that “the story of the prosecution crumbles down at every juncture.”

The SC hence not only acquitted all the five appellants but also “set aside the conviction and sentence awarded to that A-1 (Altaf Malek)”, who had already undergone the 5 years sentence and hence had not appealed in the Apex Court.

In a press-conference on Monday in Mumbai organized by JUH, they unitedly demanded compensation, rehabilitation and punishment to officials who falsely implicated them in the case, including the Gujarat government and then chief minister Narendra Modi - who headed the home department.

Speaking to TCN, Advocate Qureshi said that in all such cases of false implications, often the acquitted persons are too scared to challenge the might of the state administration and investigating agencies and hence sit back lest they might face harassments or another legal battle. Adam Bhai and others in this case are, however, consulting their lawyers and exploring options to take this battle forward, he informed.

Although he was not hired by the Jamiat e Ulama Hindi, which helped reach this case its logical conclusion, but Advocate Qureshi had all the praise for JUH. “If it were not for Jamiat (JUH), these innocent persons might have been prosecuted already,” he said.

TCN spoke over phone with Advocate Qureshi, who has been seeing this case from very inception. “I knew some of the accused personally and hence even when I was a student of law in 2003-04, I helped the senior lawyers in several ways,” he told TCN. As the case reached the High Court, he got involved with the case more actively and was one of the counsels in the Apex Court along with Advocate Khalid Sheikh and others.

All the six accused were convicted by the POTA court and later the conviction was upheld by the HC. In such hostile situations, how did they manage to keep their heads high and continued their struggle? “We were hopeful that if we are heard properly we would get the judgment in favour,” Advocate Qureshi said, adding that they were pinning hope on the HC, but unfortunately that was reduced to “copy and paste judgment,” of the special POTA court.

“We had full confidence in the motto of our Judiciary Satyamev Jayate (truth alone triumphs), and hence we continued our struggle for justice,” he says.

Towards the end of the conversation, Advocate Qureshi appeared concerend and said that many friends advised him to seek security from the state. “State administration seems to have some grudge against us, we are on constant surveillance. Our phones are tapped,” he added rather worried.

Related:

Akshardham terror trail: Gujarat Police, 6 innocents and Jamiat Ulema

Relevant Observations of Supreme Court in ‘Akshardham Temple terror case’