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Swimming against clamour, lawyers say Afzal and Kasab cases not same

New Delhi, Nov. 21: Community leaders and legal experts are unanimous that the crimes of Ajmal Kasab and Afzal Guru are distinct and say the same urgency cannot be applied to the case of the Parliament attack facilitator whose conviction rested solely on circumstantial evidence.

The death sentence of Guru over the 2001 attack was confirmed by Delhi High Court. The Supreme Court did so in 2005. His mercy petition is pending and the hanging of Kasab has renewed the clamour for executing the sentence on Afzal.

“Afzal Guru was implicated by security agencies and there are too many loopholes in the probe. We have seen how police frame Muslim youths, especially from Kashmir, in terror cases,” said Zafarul Islam Khan, head of the All India Muslim Majlis-e-Mushawarat, an umbrella body.

Senior lawyer Sushil Kumar, among those who defended Afzal in the apex court, concurred with the view that unlike Kasab, Guru’s conviction was based entirely on circumstantial evidence. “Afzal’s case is totally different. I still feel it is cooked up. Why should you hang him immediately? There are a number of other death sentences pending. Why do you want to fast-track his alone?” he asked.

Supreme Court lawyer Kamini Jaiswal, another of those who represented Afzal, said in Kasab’s case there may be justification in speeding up his execution because the Maharashtra government was under pressure to ensure his safety and incurred huge expenditure on his security. “Kasab’s was an open-and-shut case,” she said.

The BJP has no other issue and that is why it is raking up Guru’s case, she said, adding President has other important issues to deal with besides mercy petitions.

“The question whether Afzal should also be hanged immediately is more a political than a legal issue. Kasab’s case is different from Afzal as the former was arrested from the spot. But there was no direct evidence against Afzal. In the case of Kasab, there was a lot of evidence and many witnesses. Those who attacked Parliament were all killed. Afzal was never present on the spot. His conviction was solely on circumstantial evidence,” Jaiswal added.

Khan, the Majlis-e-Mushawarat head, claimed Guru was one of the surrendered militants from Kashmir and was working as an agent for an Indian security agency.

“He was asked to go to Delhi by a senior officer in Srinagar and later arrested. He told the investigators about it but nobody listened. I don’t think the government will make the mistake of hanging him as it will create unrest in Kashmir again,” Khan said.

Guru’s mercy petition has been hanging fire before the government and has been a matter of intense political controversy. On August 4 last year, the home ministry sent a recommendation to the President that Guru’s petition should be rejected.

For Father Dominic D’Abreo, spokesperson for the Catholic Bishops’ Conference of India, evidence is the key factor. “A person can be executed only if there is enough evidence. Life is very precious and the government should ensure that investigations are carried out in a proper manner.”

Senior Supreme Court counsel K.T.S. Tulsi, who has taken up cases for many alleged Punjab terrorists, also saw no parallels. “Kasab was caught red-handed and there is CCTV footage and forensic evidence against him. There are eyewitnesses to the killings. But Afzal’s case was different as he was accused of only giving logistics support. The magnitude of the crime not only differs in quantity but also in quality.”

In July this year, Sheikh Abdul Rasheed, a Kashmir MLA, had approached Pranab Mukherjee seeking clemency for Guru when the Congress leader went to Srinagar to seek support for the presidential election. The clemency demand is an emotive issue in Kashmir.

Home ministry sources today said President Mukherjee had returned seven mercy pleas, including that of Guru, to the home ministry for reconsideration, besides rejecting Kasab’s petition.

The sources said it was normal procedure for a President to refer all pending petitions to a new home minister. “The President sent back the petitions as he wanted the new home minister, Sushil Kumar Shinde, to reconfirm the recommendations that were made during the tenure of P. Chidambaram. There is nothing unusual in it,” a source said.

The December 13, 2001, attack killed five security personnel, a security guard and a gardener.


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