Beyond the Courts


On 13 December, 2001 five terrorists attacked the Indian Parliament; all of them died in the attack. Nine other persons lost their lives, while sixteen persons were injured in the firing between the terrorists and the security forces. Four persons – Mohammad Afzal, Shaukat Hussain Guru, SAR Geelani and Afsan Guru – were soon arrested by the police. On the basis of the chargesheet filed by the police, the prosecution presented a comprehensive case against the accused. In this paper, we argue that the prosecution’s case suffers from a series of incredible features whose examination does not fall under the jurisdiction of the courts; hence they have not been examined at all since there was no commission of inquiry. Yet, the presence of these features makes it doubtful if the prosecution’s story can be depended upon for a plausible account of the attack.

The Prosecution Story

According to the prosecution, the conspiracy to attack the Indian Parliament began with Maulana Masood Azar, the leader of Jaish-e-Mohammad based in Pakistan, instructing, at the instance of ISI of Pakistan, one Ghazi Baba, the Supreme Commander of the outfit in Kashmir, to carry out actions on important institutions of the Indian nation. To that end, Ghazi Baba directed one Tariq Ahmed to arrange for an operation. Tariq got in touch with Mohd. Afzal and motivated him to join the jehad for liberation of Kashmir. Subsequently, Afzal met Ghazi Baba and the plan was worked out. It was going to be a joint operation of Jaish-e-Mohammad and Lashkar-e-Taiba. Beginning with one Mohammad, Afzal arranged for several militants – Haider, Hamza, Raja and Rana – to bring huge quantities of arms, explosives and a laptop computer to Delhi in pre-arranged hideouts. In Delhi, the team got in touch with Afzal’s cousin Shaukat Hussain Guru, Shaukat’s wife Afzan Guru and S. A. R. Geelani, a lecturer of Arabic in Delhi University.

Afzal helped the militants buy the required chemicals and a Sujata mixer-grinder for making explosives. He was also actively involved in the purchases of a white ambassador car, a magnetic red light used by VIPs, and a motorcycle for recee. In the beginning, the terrorists had their options open between Delhi Assembly, UK and US embassies, the Parliament and the Airport; recee was conducted accordingly. However, Ghazi Baba instructed them over satellite telephone to settle for the Parliament. Once the details of the attack were firmed up, the explosives were duly made in the hideouts and the car was fitted with some of them. The laptop was used to prepare a “Home Ministry” security sticker and identity cards for each of the terrorists. In a final meeting on the night of 12 December 2001, the militants handed over Rs. 10 lacs to Afzal, Shaukat and Geelani for their part in the conspiracy; they also handed over the laptop to be returned to Ghazi Baba.

The militants started off in the car towards the parliament complex at about ten in the morning of December 13. Just before and during the attack, the militants got in touch with Afzal over mobile phones repeatedly to instruct him to watch television to find out the presence and location of VVIPs inside the parliament. Afzal failed to do so as he was in the Azadpur market where there was no electricity; so, he instructed Shaukat to do so. However, the militants started their operation without waiting for this information. Once they went inside the complex after clearing security with the “Home Ministry” sticker and the VIP light on their car, they tried to park the car near Gate No. 11 of the complex, which is used by the Vice-President of India. As the car was reversing, it hit the main car of the Vice-President’s carcade. In the ensuing commotion, the terrorists got out of the car, started shooting indiscriminately and attempted to run towards the building. As the security forces assigned to the complex got alerted, exchange of fire started. All the five terrorists and nine other people including some from the security forces died on the spot; sixteen persons from the security forces were injured. The event was over in less than half an hour.

Subsequently Shaukat met Afzal at Azadpur. Together they started off for Srinagar in a truck registered under the name of Shaukat’s wife Afsan. The police picked them up on 15 December, 2001 along with the laptop and Rs. 10 lacs. The police could trace them in Srinagar because, once the attack was over, the police found mobile phones and slips of paper with phone numbers written on them as well as a large quantity of unused arms, ammunitions, explosive devices, identity cards etc.

They found that mobile 98114-89429, a Delhi number, was given as contact number in all the identity cards. From the call records of this number they found that it was in touch with the mobile numbers found on the dead terrorists as well as with two other Delhi numbers 98115-73506 and 98100-81228. The number 98114-89429 and the numbers found on the dead terrorists were in touch with satellite phones in Kashmir; the mobiles found on the terrorists were also in touch with numbers in Pakistan, Dubai, and Switzerland. Out of all the prominent numbers only one mobile number 98100-81228 was found to be a regular mobile card of AIRTEL, which stood in the name of Sayed Abdul Rehman Geelani resident of 535, Mukherjee Nagar, Delhi. As the mobile 98114-89429 was found switched off, they intercepted the other two numbers.

On 14 December, they located an incoming call from Kashmir to the mobile 98100-81228 in which the receiver of the call said things in Kashmiri to the effect that he supported the attack. On that basis Geelani was arrested from his house on 15 December. Later in the evening of 14 December they located another incoming call from Kashmir this time to the mobile 98115-73506. Upon his arrest, Geelani admitted to his knowledge and participation in the crime; he also told the police that the mobile 98114-89429 belonged to Mohammad Afzal and 98115-73506 to Shaukat Hussain Guru. The police located Shaukat’s house at Geelani’s instance.

In the house the police found Shaukat’s wife Afzan Guru alongwith the mobile. Afzan admitted to her knowledge of the attack and named her husband and Mohammad Afzal as conspirators. She also clarified that the call from Kashmir the previous evening was from Shaukat. Once the police learned about Afzal and Shaukat and their location in Srinagar, they informed the police in Kashmir who arrested Afzal and Shaukat and seized the laptop, Rupees 10 lacs and a mobile phone without its SIM card bearing the number 98114-89429.

Once they were brought back to Delhi, they made disclosure statements which led to the hideouts, the shops and the seizure of chemicals, detonators etc. Also, Afzal identified each of the five dead militants lying in the morgue. Finally, Afzal and Shaukat made detailed confessions on 21 Decembeer 2001 after sections of POTA were introduced into the case on 19 December 2001. From these confessions, the police put together the conspiracy theory as summarized above. The seizure of a sticker with “we hate India” write-up, mention of huge sums of hawala money in Afzal’s confession, Shaukat’s admiration for Osama Bin Laden mentioned in his confession, and the e-mail address of Preity Zinta, the popular Bollywood actress, added telling touches to the picture.

On the basis of this story, the Sessions Court awarded death sentences to Mohd. Afzal, Shaukat Hussain Guru and S. A. R. Geelani, while Ms. Afsan Guru was given rigorous imprisonment (R.I.) for five years.

Is the story credible?

A preliminary problem with the story is that, even if we take the individual pieces of the evidence offered to support it to be valid, the cumulative effect of some of the evidence looks incredible from considerations of truth and coherence. Notice that these concerns do not fall under the jurisdiction of the courts; their only concern is to see that the chain of evidence as presented by the prosecution stands unrefuted, and that it proves the guilt of the accused beyond reasonable doubt. Thus, overall concerns of credibility were not raised by the courts; hence, they were not raised at all since there was no commission of inquiry, and the media followed the police.  Yet, concerns like these are immensely significant for reaching a plausible explanation of the event. We will illustrate these points as we proceed.

Example One

Consider some of the features of the attack itself. By any measure, the attack was so embarrassingly flawed that the police had to come up with some explanation of why it failed. Thus, according to one investigating officer, “clearly the militants were inexperienced, especially the driver of the Ambassador.” This is illustrated by the fact that, first, the militant-driver alerted the guards as he drove “too fast”; then he mistook a “vacant area” for a parking lot. On being challenged by the Security Guards, ‘he lost his nerve, took a U-turn to return to the main carriage way and in doing so rammed into one of the cars in Vice President Krishan Kant’s convoy.” 

“Thankfully,” the officer continued, “the impact loosened the wires of the detonator in the Ambassador which was to be used to blow up the porch of Parliament,” thereby turning the “wired-up car” into “a dud.” This observation clearly suggests that the “wiring-up” of the car with explosive material was a job poorly done such that a mild collision loosened the entire detonating system. “With their plan going awry,” the officer hypothesized, “the suicide squad panicked,” jumped out and started firing, “thus revealing their deadly game prematurely.” Moreover, “they made the mistake of splitting up, becoming easy targets.” The official concluded that “they obviously didn’t have a pre-determined plan and started spraying bullets in all directions”; in fact, “they had no fall-back plan either.” Finally, although the terrorists were laced with explosives, they did not blow themselves up as they died, enabling the police to recover active mobile phones and paper slips with phone numbers written on them.

 The plan fell apart because, according to the same investigating officer, “much of the lack of coordination was caused by the extreme secrecy and the delay in selecting the target …The militants had prepared two plans – of attacking either the airport or Parliament … Mohammad got the message to head for Parliament just minutes before the attack.” Is this explanation credible in view of the rest of the story?

First, according to Afzal’s confession, the attack on the Parliament was supposed to be a joint operation of two dreaded terrorist organizations, Jaish-e-Mohammad and Lashkar-e-Toiba, under the overall guidance of ISI. We can form some idea of the sophistication in planning and operation of these organizations by recalling the hijacking of IC-814. That extremely complex operation involving three states (India, Pakistan and Afghanistan), several airports, management of hundreds of passengers and crew, and nerve-racking negotiations conducted for weeks, virtually brought the Indian state down to its knees as the Union Home Minister Jaswant Singh was compelled to accompany the terrorist Masood Azar to Kandahar.

It is not unreasonable to guess that the Parliament attack was designed to be perhaps the most ambitious terrorist action contemplated by these organizations. In fact, according to Afzal again, one of the terrorists, Mohammad (also known as “Burger”), who was the alleged leader of the Parliament attack team, was involved in the IC-814 operation as well. Yet, according to the police, the militants, who “didn’t have a pre-determined plan”, were “clearly” inexperienced in that they “panicked” and revealed their “deadly game prematurely” by “spraying bullets in all directions.”

 Furthermore, the explanation that the plan went astray because “Mohammad got the message to head for Parliament just minutes before the attack” does not match either Afzal’s confession or what the police itself stated in the chargesheet. According to the chargesheet, a lot of people knew about the plan to attack the Parliament much in advance. For example, Geelani was said to have stated that “meetings were held in the house of Saukat in Mukharjee Nagar and in these meetings Shaukat Hussain and Mohd. Afzal along with all the deceased terrorists used to be present and discuss the plan to carry out attack on Parliament House.” Even Afsan allegedly stated that “she was aware of the plan of terrorist to attack the Parliament House because a number of meeting were held in her house.” In fact, “Afzal purchased a black Yamaha motorcycle No. HR-51E-5768” apparently exclusively “to conduct recee of the Parliament House … They conducted repeated recee of the Parliament House and the areas around it.” 

In his confession under POTA, Afzal did say, as noted above, that several targets were surveyed in the beginning. However, “after conducting recee of all the targets, Mohammad informed Ghazi Baba who told him that they must strike at the Parliament.” Accordingly, “a trial meeting was held in the house of Shaukat in which all were present and the plans for attack on Parliament House was finalized.” Only then was the Ambassador car, the attack vehicle, was purchased on 11.12.2001 – two days before the attack. Finally, in the night meeting on 12.12.2001 Mohammad told Afzal that “they are going to conduct a Fidayeen attack on the Parliament House on 13.12.2001.”

We must conclude, therefore, that if the chargesheet and Afzal’s confession are valid, then the idea that Mohammad got the message to head for Parliament “just minutes before the attack” is a figment of police’s imagination just to placate the general public in view of the palpable amateurishness of the operation. If the explanation given by the police is false, then the attack just does not square up with the profile of the terrorist organizations at issue.

As an aside, we just note, for what it is worth, that Maulana Masood Azhar, the leader of Jaish-e-Mohammad, reportedly denied any involvement with the attack soon after the event. Quoting reports that mounds of explosives were brought to be used in the attack, he said it was impossible for the militants to transport such a huge quantity of explosives.  On the other hand, General Javed Ashraf Qazi, the former chief of Pakistan’s ISI, reportedly told a joint sitting of Pakistani Parliament more than two years later that “we must not be afraid of admitting that Jaish was involved in the deaths of thousands of innocent Kashmiris, bombing the Indian Parliament, (journalist) Daniel Pearl’s murder and attempts on President Musharraf’s life.” 

What took Qazi so long to say this? What does it mean for Qazi to “admit” that Jaish was involved? Was Qazi’s selective list of terrorist outrages just a statement of fact or was it politically aligned to the changed circumstances involving India, Pakistan, the US and the Iraq war? Recalling that the Delhi police, via Afzal, claimed that Lashkar-e-Toiba was equally involved, why didn’t Qazi implicate Lashkar-e-Toiba with the Parliament attack when he did mention Lashkar-e-Toiba’s “harmful” role in Kashmir in the same speech? What is the truth?

Before we proceed, note that the issues of amateurishness and inexperience do not concern the courts of law. As long as there is evidence, admitted and proven under the law, that some people committed a crime and that these people were conspiratorially linked to some other people, the case is upheld. From the legal point of view, it does not matter if the commission of the crime showed signs of naivete or if the actions of the criminals do not match the presumed profile of the organization they belong to. However, they do matter for establishing the truth.

Example Two

The absence of a “pre-determined plan” seemed to have affected other aspects of the terrorist operation as well. As noted, the terrorists allegedly got in touch with Afzal over mobile phones just prior to and during the attack. According to Afzal’s confession, when the terrorists were “in the vicinity” of Parliament House, they wanted him to find out “about the presence of various VVIPs inside Parliament House.” Afzal failed to do so since he was in the Azadpur market where there was no electricity!! After 25 minutes Mohammad called again with the same demand. Only then Afzal informed Mohammad about the lack of electricity and asked for some more time. At that point Afzal instructed Shaukat to watch TV and call him back with the information. However, Shaukat states in his confession that by the time “I switched on the TV I received another call from Afzal that the mission is on.” Apparently then the terrorists had decided to go ahead with the attack even before they received the information they were insisting upon.

Just what was the relevance of this piece of information for the terrorists just minutes before the attack? Why should they bother about this detail when they were allegedly planning to secure the entire Parliament which was in session in any case? Could Afzal (or Shaukat) have gleaned this specific information on demand from TV? What was Afzal doing in Azadpur market at a time like this? Why wasn’t this supposedly crucial task pre-arranged? Finally, if the information was so crucial for the success of the attack, why did the terrorists go ahead without it?

Example Three

Turning exclusively to Afzal and Shaukat, they were found guilty of conspiring in a terrorist act and waging of war of horrendous proportions. According to the High Court judgment, Mohd. Afzal was a part to the conspiracy to attack Parliament when it was in session, he was instrumental in the smuggling of arms and ammunitions, he had actively purchased the chemicals.  Shaukat Guru’s involvement was more than mere knowledge, acquiescence, carelessness, indifference or lack of concern, there is clear and cogent evidence of informed and interested co-operation, simulation and instigation.  Both were accused of working in close co-operation with a group of hardened foreign terrorists with the aim to cause damage to the sovereignty and integrity of India. These words suggest a certain criminal profile of the accused. Now, according to the police, they behaved as follows.

Afzal and Shaukat drove out of Delhi in an easily identifiable vehicle, namely, a truck registered in the name of Shaukat’s wife, to reach Kashmir via the difficult mountain roads filled with the slush and snow of winter. Were these plausible choices of vehicle and immediate destination for terrorists escaping from such a high-profile crime? Since the news was immediately on TV, Afzal and Shaukat knew that the attack had failed and the terrorists had been found intact and dead. So, there was every likelihood for the police to recover the mobiles, trace the numbers and post surveillance.

However, instead of disappearing in thin air, they continued onwards towards Kashmir in that truck. Not only that. On completion of the journey, Shaukat called his wife 36 hours after the attack to tell her that he had reached Srinagar safely. We reproduce excerpts from the conversation that the police claimed to have intercepted.

Caller (Shaukat): Hello I am! Was there any telephone call?
Receiver (Afsan): Shaokat where are you?
Caller: I am in Srinagar. …….
Receiver: Some person had come just now.
Caller: From where?
Receiver: I don’t know. Don’t say anything.
Caller: O.K.
Receiver: I don’t know they are with the lady of ground floor. Some vehicle is still
parked outside.
Caller: O.K.
Receiver: I don’t know. I did not speak anything.
Caller: O.K. Alright.
Receiver:  Tell more, don’t speak anything now and tell me. I am much afraid.  …….
Caller: Yes Yes
Receiver: Do you know?
Caller: Yes Yes alright you may make a call.
Receiver: When?
Caller: In the night. Right now, I am calling from outside. …….

The veracity of this conversation was much discussed in the courts. However, everyone seemed to agree that, if the conversation is true, then it showed that Afsan was scared and that she was concerned about Shaukat’s safety; the Hon’ble judges of the High Court also thought that Afsan and Shaukat were “talking between the lines.”

The point of interest – not discussed so far – is that, apart from the amazing fact that Shaukat had called his wife at all, he continued the conversation even after being warned by Afsan; in fact, he advised Afsan to call him back later in the night. Moreover, even after being warned by Afzan at about 8.00 in the evening, they did not flee but stayed put in the Srinagar Mandi for the whole night. In the morning, they drove out of the Mandi in the same truck with the laptop, the mobile and the huge sum of money, and proceeded onwards presumably to meet Ghazi Baba when they were picked up near a police station.

How can these parts of the evidence be valid and the story they generate so incredible at the same time? Moreover, if these parts of the total body of evidence make the narrative incredible, why should the rest of the parts of the evidence be viewed as credible? We emphasize again that these concerns about credibility do not fall under the jurisdiction of the courts; if Afzal and Shaukat behaved like overconfident fools, it was their problem. Yet, concerns like these are immensely significant for reaching a plausible explanation of the event: how can organizations like the Jaish recruit such overconfident fools for their most ambitious terrorist operation?

An alternative perspective

The incredibility factors of these examples get immediately removed if we adopt an alternative perspective. In that perspective, let us imagine that the evidence and the interpretation produced by the police in these examples are in fact false, although the evidence is needed by the police for sealing crucial joints of a preferred conspiracy theory.

This perspective assumes obviously that the police is capable of massive fabrication to meet its own ends, rather than serving the law. It is unlikely that the courts of law will routinely adopt this alternative perspective, unless specifically asked to do so. The courts may – and often do – reprimand investigating agencies for shoddy work, not adhering strictly to the law, minor fabrications etc. But, other things being equal, they are not likely to adopt the alternative perspective to question the entire functioning of an agency in a particular case. The investigative agencies, even under nomal circumstances, are themselves viewed as arms of the law; hence, the police and the courts form a natural mutuality.  The mutuality is likely to tighten in abnormal circumstances such as terrorism and national security. The entire burden in these circumstances is then on the defence to show that other things are not equal. In case of large-scale fabrication in abnormal circumstances, the task is nearly impossible given heightened mutuality, and the vast powers of the police over instruments of intimidation and repression. This is where a commission of inquiry takes precedence over a court of law.

Returning to the incredible features of the examples discussed above, suppose it is in fact the case that a group of amateurs carried out the attack (at whose instance we do not know); that is, suppose that five unidentified and deranged young persons, inspired by sundry films, were out on a dark adventure for instant fame and a large sum of ransom money. It will then be false that JeM and LeT were behind the attack, notwithstanding Afzal’s confessional statement. However, the police needed this part of Afzal’s statement to portray the attack as a familiar international terrorist operation. More importantly, from the police point of view, the ascription of the attack to JeM and LeT via Afzal’s confession closes the case around Afzal.

Again, suppose it is false that the terrorists made those phone-calls to Afzal regarding the VVIPs; that is, suppose either that the relevant call-records produced by the police are false or that the evidence linking Afzal to the mobile no. 98114-89429 is false or both. Then the incredibility of the content of those calls disappears simply because these calls wouldn’t have been made. However, the police needed this evidence to link Afzal and, in turn, Shaukat directly to the attack itself, rather than depending wholly on questionable witnesses and confessional statements.

Incidentally, Peoples Union of Democratic Rights (PUDR) questioned the call-records of two calls that might be viewed as relevant for their timing for the issue in hand. PUDR observed that “the Call Detail Record (CDR) shows that at 11.19.14 a.m on December 13, two calls were made simultaneously from the same calling number 89429 (Afzal’s) to the same called number 73506 (Shaukat’s) but were made on handsets with different IMEI numbers. The same phenomenon was repeated at 11.32.40 a.m the same day. The IMEI number is a unique number each cellular handset has and which is transmitted each time the phone is operated. It is therefore impossible for this phenomenon to occur unless the Call Detail Records have been doctored.”
In a later report published after the High Court judgment, PUDR maintained the observation.
Are these the calls Afzal supposedly made to Shaukat regarding the presence of VVIPs in Parliament?

Finally, suppose it is false that Afzal and Shaukat were conspirators fleeing from the area of the crime. Then it is perfectly intelligible that they made a routine trip between the Azadpur and the Srinagar wholesale markets as part of their regular fruit-trade (supposing of course that they made the trip together or individually at all). This also explains the phone call: husband calling wife after reaching another city. Unknown to Shaukat, however, Afsan was already in custody; hence, she was compelled to say things which in turn were construed as knowledge of conspiracy. Let me explain.

The time of Afsan’s arrest is in dispute. According to the police, Afsan was arrested on 15 December morning at Geelani’s instance. According to Afsan, corroborated by Geelani’s wife, she was in fact arrested around 6.00 p.m on the 14th itself. Thus, she could have received the call while in custody (again supposing that the fact of the call is valid).
Interestingly, the prosecution itself cited the following part of Afsan’s 313 to assert that she received the phone call from her husband: “It is correct. I enquired as to what has been brought in truck. I talked to him in police custody.”  No wonder she was scared and she wanted to save her husband by “talking between the lines.”  Ignorant of all this, Shaukat didn’t quite get the message, and wanted her to call back later in the night. Notice that this interpretation of the conversation between Shaukat and Afsan not only removes the concerned incredibility, it in fact lends additional weight to (a) Shaukat’s innocence, and (b) Afsan’s arrest on the 14th itself. In fact, it suggests Afzal’s innocence as well since Shaukat was hardly likely to accompany Afzal innocently if Afzal was escaping from the crime.

Furthermore, there is another feature of the call that could indicate Afzal’s innocence. Near the end of the call, Afsan asked, “Reached safely?” to which Shaukat replied, “Yes Yes.” Then Afsan asked, “And Chotu?” to which again Shaukat replied “Yes Yes”. “Chotu” happens to be Afzal’s byname. Now, if Afzal and Shaukat were travelling together in the truck, Afsan’s query sounds pointless; it makes sense if they were travelling separately. In his statement u/s 313 Cr. P.C., Afzal stated that he left his apartment in Delhi on 12.12.2001 with some bags after handing over the keys to the landlady and telling her that he would bring his family after Id. In his statement, he also said that he went to Srinagar alone by bus. A natural inference is that he left for Srinager on 12.12.2001 itself, i.e., the day before the attack. Since he was supposed to have reached Srinagar already by himself, Afsan’s separate query as to whether Chotu had (also) reached safely makes sense.

Recall that Mohammad Afzal – in fact, the confession extracted from him – was central to the prosecution story. Once the police was able to explain how they reached him, the rest of the theory fell in place by the sheer weight of a single testimony. In order to reach Afzal, therefore, beginning with the regular mobile-holder Geelani who allegedly took them to Afsan, the police was compelled to construe an otherwise innocuous trip as principal conspirators escaping from the area of crime. In other words, what was needed had to be superimposed on what actually transpired. Under the perspective in hand, a series of falsities thus ensued – Geelani’s arrest, Afsan’s arrest, interpretation of the phone-call, Afzal and Shaukat’s arrests, recovery of material, etc. – to protect the original falsity that Afzal and Shaukat were conspirators, rather than regular fruit-traders.

The massive conflict between the incredible police story and the credible alternative perspective gives rise to the new apprehension that the prosecution story is not only likely to be partly false, but false in crucial respects. If that is so, we do not yet know who attacked the Parliament on December 13.

Nirmalangshu Mukherji teaches philosophy at Delhi University.  For a fully footnoted version of this article, please contact the author (somanshu@bol.net.in). 

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