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12 Aug 2011

Peoples Union for Democratic Rights is deeply concerned at the Supreme Court upholding the death penalty for Mohammad Arif@ Ashfaq in the Red Fort Attack case as well as the Union Home Ministry advisory to the President in the Parliament Attack case, to reject Mohammad Afzal’s mercy petition. While PUDR, as a matter of principle opposes death sentence, in both cases under consideration, there are facts connected with the case which make the death sentence nothing less than judicial murder.

While PUDR considers the attack on Red Fort in December 2000 as a murderous crime, our contention, based on study of the trial records, convinces us that the real perpetrators of the crime, escaped while innocent people were implicated. The entire prosecution was marred by concocted evidence, fake seizure memos, dubious recoveries, use of stock witness so much so that six out of the seven accused convicted by the trial court were acquitted by the High Court. With this the case against Ashfaq too weakened. The manner in which the Special Cell tracked down Ashfaq itself is doubtful. The discovery of a slip of paper by Special Cell officer Mool chand Sharma, which allegedly had Ashfaq’s mobile number (98 112 78510) was contradicted by another Prosecution Witness PW 183. The recovery of mobile is even more remarkable.

It was prosecution’s case that Ashfaq was arrested on night of 25-26 December 2000 from his wife Rehana’s house in Ghazipur. He was searched and the police ‘recovered’ a pistol from the “right dub of his pajama”. He was then taken to Okhla, where one Abu Shamal was killed in circumstances which suggest extra-judicial execution. He was then brought back to Ghazipur and searched once again and this time from the right dub of his pajama a mobile bearing number 98 112 78510 is “recovered”. How come “recovery” of pistol as well as mobile, few hours apart, from the same right side of pajama pocket did not arouse judicial curiosity? Trial court records also draw attention to Ashfaq’s Cr PC 313 answers in course of the trial wherein he had claimed that he came to India from Pakistan when his cover as RAW agent was blown and his travel from Kathmandu to Delhi was facilitated by RAW. He also resided in the house of a person in Delhi who was employed by Cabinet Secretariat! This lent some credibility to his claim and yet the investigators, prosecution as well as the Court’s chose to ignore this. Why? Ashfaq’s case in fact raises more question about the conduct of Special Cell, prosecution and the judiciary in so called terror related cases and points towards communal bias tainting criminal justice system.

In Afzal’s case it is clear from trial case record that he had inadequate legal assistance at his trial. Going also by prosecution’s own case against him his role was at best that of an abettor and not the perpetrator of the crime of Parliament attack. Indeed in his case his experience at the hands of the Indian security forces as surrendered militant in Kashmir, the torture, humiliation and harassment he was subjected to, provide strong mitigating circumstances in favour of commuting his death sentence. So PUDR is concerned that at a time when the Congress led UPA government is reeling under scams it has chosen to succumb to right wing pressure and has opted for carrying out death sentence against Afzal to show that it is not soft on terror.
PUDR is convinced, therefore, that justice demands that both Ashfaq and Afzal’s death sentence be commuted. Indeed these two cases illustrate precisely the danger posed by having death sentence on our statuette where extraneous factors such as communal bias and misplaced patriotism have free play and end up taking a person’s life.

Harish Dhawan and Paramjeet Singh
(Secretaries PUDR).