New Delhi, August 4
Terming the attack by Pakistani terrorists on Parliament a gravest crime ever committed in Indian history to subvert democracy, sovereignty and integrity of the country, the Supreme Court today upheld the death sentence to Jaish-e-Mohammed (JeM) militant Mohd Afzal but converted the capital punishment of his cousin Shaukat Hussain into10 years rigorous imprisonment (RI) on finding him guilty of concealing the conspiracy.

The Court though upheld the acquittal of city college lecturer S A R Geelani in the absence of substantive evidence against him, yet it cast serious “suspicion” about his conduct in the whole episode, saying “he seems to have approved” the attack on Parliament on December 13, 2001.

A Bench of Mr Justice P V Reddi and Mr Justice P P Naolekar while rejecting the confessions of Afzal and Shaukat as evidence under POTA for reasons that they were not given sufficient time to make up their mind before recording of the same by a magistrate, also upheld the Delhi High Court’s October 29, 2003 order, acquitting Shaukat’s wife Navjot Sandhu alias Afsan, who was sentenced to five years imprisonment by the trial court.

The trial court in its judgement on October 29, 2003 had awarded death penalty to Afzal, Shaukat and Geelani. The High Court had acquitted the city college lecturer due to lack of evidence and confirmed the capital to Shaukat. Upholding Geelani’s acquittal, Mr Justice Reddi writing the 271-page judgement for the Bench observed with concern that his “conduct was disturbing” after the attack on Parliament and not above “suspicion”.

“He seemed to have approved the happening in Delhi” on December 13, the Court observed.

The apex court observed that there was suspicion that Geelani had the “knowledge” of the incident but there was no evidence against him. “But suspicion alone is not sufficient to convict a person,” Mr Justice Reddi said. This has come as a serious disapproval of the Delhi Police’s quality of investigation in an important case like this as the police had said that the evidence against both Afzal and Shaukat were almost identical.

Finding Afzal, a Pakistan trained surrendered militant, guilty of fully involved in the conspiracy, Court said the attack by terrorists on the “supreme seat of democracy” fell in the category of “rarest of the rare” crime committed with “enormous severity”, which could not be explained in “simple words” as it was an “attack on the unity and integrity of the country” with the help of five Pakistani terrorist - Mohammed, Haider, Hamza, Rana and Raja - killed in an ensuing gun battle with the security forces, which also lost seven of their men in the operation.

The Court upheld the award of death sentence to Afzal on all thee counts - under POTA for indulging in terrorist activities, under IPC provisions for conspiring to cause mass deaths and waging war against the country - the apex court said his complicity in the crime was established beyond reasonable doubts with clinching evidence as he had “full access” to the main conspirators, the five Pakistani terrorists.

The court said Afzal had helped the five slain terrorists in procuring arms and ammunition, purchasing the car used in the attack, providing them an accommodation in Delhi and “actively” participated in the conspiracy. According to the police, the five terrorists were set on a mission to attack Parliament by dreaded terrorist “Ghazi Baba”, who was later killed in an encounter with the security forces in Kashmir valley.

“All evidence unerringly point to Afzal, a key conspirator… by no standards his act could be termed as innocuous. He is definitely involved in the conspiracy to attack Parliament with the use of explosive substances… which has no parallel in the history of Indian democracy,” the court said adding “the collective conscience of the society will be satisfied only if the death penalty is awarded to him.”

According to the prosecution, the terrorists led by Ghazi Baba, acting at the behest of ISI of Pakistan, had hatched the conspiracy to take hostage the then Prime Minister Atal Bihari Vajpayee, Home Minister L.K. Advani and other prominent leaders of various political parties, to spread terror in the country and pose grave threat to its unity and integrity.

But in Shaukat’s case, the apex court did not agree with the findings of the High Court and the trial judge and cleared him of charges under POTA, causing mass murder and waging war against the country, saying there was “no substantive evidence to hold him guilty of criminal conspiracy to attack Parliament. There are missing links about his active involvement…and there is no evidence to show he had accompanied Afzal and the five terrorists”.