By Mumtaz Alam Falahi, TwoCircles.net,
Advocate Muhammad Shahwar Khan, known as M S Khan, practices in the Patiala House court in New Delhi. He has taken up several terror cases and secured acquittals. In an interview with Mumtaz Alam Falahi of TwoCircles.net, Khan rips through some terror cases wherein innocent Muslim youths were implicated and then evidence were created. Presently Khan is defending Ziaur Rahman, a Jamia Millia Islamia student picked up after the Batla House encounter and implicated in the Delhi blasts of September 2008.
While lawyers and their bodies in Uttar Pradesh and Maharashtra in the past rejected to defend terror accused – whose overwhelming majority are Muslims – you decided to defend such accused, and have successfully secured acquittals in some cases. What is the moving force behind your decision?
Our Constitution provides that an accused has a right to engage a lawyer of his choice. So whenever I am approached by an accused I cannot deny that. I cannot say that you are a terrorist so I am not going to defend you. I believe in our Constitution, I believe in our law. That’s why I take up these kinds of matters. It doesn’t make any difference at all if the accused coming to me is a terror accused or criminal of any other crime. So, I don’t think there is anything wrong in that.
The overwhelming majority of terror accused in India has been Muslims. You have successfully defended some of these terror accused. Why do you think Muslims are being implicated in terror cases?
It’s a very tough question to answer why all the Muslims are being targeted. Since I am not a political person I cannot comment on it. As far as the trial is concerned I am only limited to that. So I cannot comment because it will be a politically motivated aspect of the issue. But as I have gone through several such cases I can say there are false implications. The job of the police is always to collect evidence and then forward it to the court for final verdict. But I have seen so many number of cases in which the police created the evidence, not collected it. And on the basis of that created evidence the court has convicted the accused. In the light of such cases I can say there is false implication of Muslims. And I am working against these false implications.
Could you talk about the terror cases which were built up on false implications?
There are cases whereby accused persons were picked from some other place and their arrest was shown at some other. There is another case in which the case of the prosecution is that they saw two persons alighting from a bus. They gave the bus number and recovered the bus ticket but the bus conductor deposed in the cross examination that he did not carry out that trip. Again, in some other case, according to prosecution the recovered explosive was of brown color, so it was sent for chemical examination for CFSL report. The report said that the sample was of off-white color. So how brown color changed into off-white color? There are so many examples which clearly show that there is false implication of Muslim youths in terror related cases.
How many acquittals you have secured in terror cases? Any specific example.
I have 85% acquittal rate in such cases. In 2001 the Delhi Police Special Cell arrested four persons. Allegations against them were that they planted bombs in Sena Bhawan, Dalhousie Road, India Gate and they caused explosions at BSF Headquarters. In all these six cases my clients were acquitted because the prosecution could not prove the charges. The reason is that police relied on a cycle. They said the bomb exploded on a cycle whose serial number was C-402041. But the evidence which the police collected with respect to the cycle showed that the cycle’s serial number was O-402041. On this ground alone the accused persons were acquitted in that case. Two of the accused belong to Jammu & Kashmir and two to Uttar Pradesh.
How do you decide to take up a terror case? How do you get assured that your client is innocent?
In the Indian legal system an accused is presumed innocent until proved guilty. So until and unless the court verdict that this man is terrorist you cannot say that he is terrorist. In my cases, none of my clients have been declared as terrorist even by the lower court. So it is not that I am defending terror. No. I am just doing my duty. I am just assisting the court for the administration of justice. This is my motto.
As you are taking up terror cases which many lawyers and lawyers bodies have rejected to do and prevented others from doing it, so have you ever got some pressure from your colleagues or any threat from outside?
Nothing at all. No pressure at all. I am doing it freely from my own in Delhi. But I will give you an example. I went to Mathura in Uttar Pradesh in the month of March 2009. The accused is in jail for the last 14-15 years. He was arrested in the year 1997 in another case. In that case since his arrest in 1997 he was not produced in the court. I went to the court, moved an application and he was produced in pursuance of my application. But when I went to conduct his matter, local lawyers numbering 300-400 surrounded me and raised slogans against me. So I managed to escape but with dignity. There are few examples, not in Delhi but outside. In Delhi there is no problem at all. My fraternity does not object what I am doing.
Hundreds of Muslim youths are languishing in jails in terror cases. How do you think they could be helped collectively?
We should provide them proper legal assistance. This is the main thing because only court can decide if they are guilty or innocent. So we need to pay more attention towards providing them legal aid. I also request the advocates who are not taking up their matter to come forward and take up the matter and let these prisoners get fair justice. It’s my appeal to all advocates who are opposing taking up matters of terror accused because first they are human beings and our Constitution guarantees every citizen – no matter if he is Hindu, Muslim, terrorist or whatever – to provide him speedy fair trial.
In several terror cases, voluminous charge-sheets have been filed comprising several thousands pages. Each terror accused has been slapped with 40-50 cases and is facing hundreds of witnesses. Have police been biased in these cases?
The job of the police is to keep the person in jail. This is their main objective. They are not interested in verdict. So they make up the case so lengthy that the person who is charged does not come out of the jail. This is their policy or strategy. I have seen several cases with a number of pages of charge sheets and hundreds of witnesses. The accused have been implicated in Delhi, Ahmedabad and Mathura. So trial of these cases does not take place and the accused is just moved from one city to another.
As many Muslim terror accused are facing cases in Delhi, Ahmedabad and Jaipur, some human rights groups have suggested that these cases should be combined for speedy trial. What do you think about it?
I do not agree with the idea. The average period of trial in India is about 3 years. To the best of my knowledge there are 65 terror cases spreading all over India. If you multiply 65 with 3 it will be more than 180 years. If these cases are combined and trial starts in a single court, it will take more than 180 years to clear all cases. It is also difficult for lawyers to attend cases regularly, so it will take about 300 years if all these cases are clubbed together. So it will be better to have these cases tried by different courts simultaneously. For example, if these cases are tried by five courts, in six months five cases will be disposed. But if these cases are clubbed together and tried by one court only one case will be disposed of in six months. That’s why I am opposing clubbing together of all these cases.