This story begins with the blasts outside the Lucknow high court on November 23, 2007. When local lawyers and the Bar Association declared that “No lawyer will appear for the Accused.” Unconstitutional and illegal but the declaration was made public and went, so to say, almost unchallenged.
“No lawyer will appear for the Accused,” the lawyers and the Bar association had declared, orally in Barabanki and Lucknow. Not to be deterred from what he believed to b the call of conscience and duty, advocate Mohammad Shoaib took up several cases of terror accused.
On January 2, 2008, Ayeshabi met advocate Shoaib. A distraught mother from Kolkatta, she laid bare the facts of the case. Her son, Aftab Alam Ansari had been picked up from Kolkatta. The police claimed that five or six terrorists who had been travelling from Faizabad-Ayodhya towards Babri Masjid and had picked up many “accused” including Aftab.
Two thousand five hundred rupees was the fee that Ayeshabi paid advocate Shoaib. As the narrative unfolded, Ayeshabi told the advocate that Aftab, was, at the very time that the ‘offence of driving towards Faizabad-Ayodhya’ actually at a medical check up in Kolkatta. Working in a post once held by his father at the Kolkatta Electric Supply Company, Golabazaar, he was undergoing a health check up as mandated under the medical health scheme of the company. The medical records and prescription bore the same date. November 23, 2007, the day of the blasts in faraway Lucknow. This simple piece of evidence made for a cast iron alibi. Immediately, advocate Shoaib filed these documents before the Court of the Chief Judicial Magistrate.
The charge sheet had not only made out Aftab Alam Ansari to be one of the accused but had also charged that he was an alias for one Mukhtar alias Raju. All these claims of were disproved when the Investigating Officer, Raj Narayan Shukla admitted that Aftab’s mother’s alibi and identification were valid.
This simple and prompt intervention by advocate Shoaib brought a whiff of freedom –though not quite to — Aftab Alam Ansari. The Investigating Officer (IO) admitted in the face of this evidence that Aftab could not have been in Lucknow, and in the course of the hearing of the Section 169 application before the court asking for the discharge of Aftab, he admitted so in the final report. Shoaib achieved this first big success on January 16, 2008 when the “accused” Aftab got discharge. The Order of Discharge can be read here.
Shoaib has a charming and self effacing smile that we see glimpses of as we continue the fascinating conversation. To date, fourteen innocent persons, arraigned by the UP police in dreaded terror cases have walked free due to the quiet due diligence shown by this one man. His small office in the busy centre of Lucknow is small but holds all the documents that are proof of this unbelievable success. Truth wins in the end but at what price, he asks.
“No one was fighting terror cases at the time,” says Shoaib and thanks to the oral declaration laced with threats by the lawyers association there was an even greater reluctance to take up cudgels on behalf of the accused in these matters.
The Faizabad Bar Association had first set this undemocratic trend following the attack on the makeshift temple in Ayodhya in 2005. Varanasi followed suit when the trial of Waliullah, accused in the 2006 twin explosions in the Sankat Mochan Temple and at the Varanasi Railway Station, was about to begin. Lucknow and Barabanki joined the boycott after the November 22, 2007 serial blasts in three courts — at Varanasi, Lucknow and Faizabad. Days before the blasts, lawyers at a Lucknow court had even assaulted three men arrested by the STF allegedly for a plot to assassinate Rahul Gandhi.
It was after the November 23, 2007 serial blasts in the Courts that the Bar Association informally imposed the ban. But Shoaib did not accept this decision as "it violated the basic right of every person to defend himself in court". His popularity among those implicated in such cases had increased after he demolished the police theory that Kolkata-based Aftab Alam Ansari was a Harkat-ul-Jehad-al-Islami terrorist. The Special Task Force of UP Police had made Ansari an accused in the serial blasts case. Mohammad Shoaib fought his case. Later, the police declared that it was a case of mistaken identity and Ansari was released after spending just 22 days in jail.
Less than three months after the success story and discharge of Aftab Ansari in just 22 days, it was on May 1, 2008, a Thursday, that 63 year old Mohammad Shoaib, a Lucknow-based lawyer and a committed socialist, faced a mob of lawyers at a Faizabad court. The police had to escort him out and use the van that brought the accused from the jail to ferry him to safety.
Advocate Mohammed Shoaib bore the brunt of physical attacks from his own fraternity from 2007-2008 onwards; he was fighting cases of terror suspects in a state, UP, where the local Bar Association(s) had 'banned' lawyers from appearing for them. Worse, he also appeared for suspects in the serial blasts which had targeted courtrooms in the state. When he was attacked by a mob of lawyers in Faizabad on May 1 and May 2, 2008, Shoaib was appearing on behalf of the two accused in the November 23, 2007 serial blasts. Though he was not the only one.
Faced with aggression from his own tribe, Mohammad Shoaib responded as he believes is best, using the law for justice and correction. Shoaib approached the Lucknow Bench of the Allahabad High Court with a petition to transfer the case to another district. Faizabad Bar Association secretary Mansoor Elahi said: "The lawyers were irked as a resolution was passed by the Bar that no lawyer would take up the case of these persons".
“It was after Aftab Alam Ansari’s case that I took up two more cases that of Tariq Qasim (studying at the Darul Uloom) and Khalid Mujahid, this was between January and March 2008.This simple act, which Indian law allows, which the constitution and any civilized society allows, that was being denied the accused and me as a lawyer,” advocate Shoaib told the author.
After the attack in Faizabad, mobs of lawyers attacked him more brutally on August 12, 2008 and August 13, 2008 within the precincts of the courtroom of the Chief Judicial Magistrate at Lucknow. He was left bleeding in the eye and with a serious ear injury that has, since affected hearing in one year. Twenty-five to thirty lawyers assaulted him in the courtroom, many of whom he recognised. Shoaib lodged a complaint with the Wazirganj police station on August 12, 2008 (the day of the assault) and the FIR got registered on August 13, 2008 itself (A copy can be read here)
Thereafter a detailed complaint was lodged by advocate Shoaib with the Bar Council of Uttar Pradesh at Allahabad (Case No 120/2009). In this complaint, Shoaib details the ordeal faced by his client and himself.
He states in his complaint that when he appeared before the court of the additional sessions judge, Shri Sashi Kant first on July 7, 2008 and prayed orally for freeing the accused from being handicuffed –and quoted directives laid down by judgements of the Supreme Court –the prayer was rejected saying that the offences involved national security. A few days later, around 11 a.m. on August 12, 2008 when Shoaib moved a formal application in this regard—to free accused Naushad from handcuffs—before the same court and reached at 1 p.m. to argue it, suddenly a group of 25-30 advocates entered the courtroom and within the premises beat him up mercilessly. After the complaint and FIR was filed, Shoaib also made a formal application before the District Judge Lucknow for necessary action against the lawyers. Again, on August 13, 2008 Shoaib was assaulted for the second time within the premises of the court. They kept raising slogans “Pakistan Murdabad’ and “Hindstan Zindabad.”
Shoaib has argued in this application this shameful assault militates “against the spirit of the Constitution and the very basic premise of the Rule of Law. It is the fundamental right of the accused to be defended by an advocate of their choice.” Shoaib prayed for an inquiry and debarring from practice by the lawyers if they were found guilty and a cancellation of their licenses. Two years later, on June 12, 2010 four lawyers on behalf of the mob that attacked Mohammad Shoaib signed an ‘Apology letter and Declaration before the authorities. (Jitendra Singh Yadav, Anurag Trivedi, Umang Gupta, Dinesh Pandey) By mutual consent, after the apology and the promise that they will eschew from such behaviour in the future, the matter was dropped by the Bar Council of Uttar Pradesh (The decision of the Disciplinary Committee can be read here) The apology of the lawyers who were identified in the mob for assaulting Mohammad Shoaib can be read here
There was an atmosphere of intimidation and fear within and without the Courts. Shoaib persisted in his defence of some of the accused, achieving some measure of success.
The second boy “accused” in terror cases and discharged like Aftab Alam Ansari was Sajjad ul Rahman Wani. The discharge order is dated April 14, 2011, a good three years after the discharge of Aftab Ansari case. The discharge application can be read here. Sajjad was at Deoband and on November 23,2007 he had proof he was studying at Deoband not in a car going to Faizabad to attack the makeshift structure on the site of the demolished Babri Masjid! He is a resident of Kishtwar Jammu, today about 31 years of age. He was incarcerated for nine long years before being discharged. Interminable applications for further investigation by the prosecution ensured that he could walk free before that.
Another accused, young Muslim, Nasir Hussain, Bijnor walked free on March 20, 2 014. He was freed after 7 years of jail. He was also falsely accused in case where RDX was seized on June 21,2007 at Charbagh, Lucknow (Near Bal Vidya Mandir). The second accused Yakub in the same case was acquitted on August 6, 2015. This case was handled by another lawyer, Ahsan Abbas Rizvi.
The list is fairly long. Another case relates to an incident of many years past, that took place on August 15, 2000 at the Sarbarita Bhawan Lucknow. Three young men were implicated and two of them from Lucknow were released on bail on April 10, 2014! Gulzar Ahmad Wani, from Kashmir, the third is still in jail being also accused in the Delhi and Kanpur cases (he has been acquitted in one).
Findings of the Nimesh Commission Report
On November 23, 2007, several blasts took place at court premises in Varanasi, Faizabad and Lucknow. No one was killed but many people were wounded. Several Muslim youths were rounded up for the blasts. About a month after the blasts, the Special Task Force of UP Police on December 22, 2007 presented Hakim Tariq and Khalid Mujahid before the media in Barabanki district of UP. The police claimed the duo was arrested from the railway station in the district on the same day with huge arms and ammunition including RDX.
However, the family members of the duo and the villagers claimed the duo was picked about 10 days before and not in Barabanki. According to them, the state police picked Hakim Tariq on December 12, 2007 in Azamgarh and Khalid Mujahid on December 16, in Jaunpur. Many people had witnessed the picking, and a day after their picking the family had filed a complaint with the local police in Azamgarh and Barabanki.
When the UP Police presented the duo as arrested in Barabanki on December 22, the family members and villagers got infuriated, they came out on the streets to protest. People protested in Azamgarh and Jaunpur and demanded the then chief minister Mayawati to order an inquiry into the arrest of the duo. Succumbing to the public pressure, on March 14, 2008 the chief minister constituted one-man RD Nimesh Commission to look into the claims of the police and the family members of the duo. About five years of inquiry, the commission submitted the report on August 31, 2012.
Findings of the Commission
“The arrest of Khalid Mujahid and Tariq Qasmi with objectionable items in the morning of December 22, 2007 in Barabanki looks doubtful and the statements of the witnesses of the prosecution cannot be believed fully,” said the commission in its report.
The commission recommended legal action against the officers who implicated the duo in the case. “Therefore, it is recommended that the officers and staff who played key role in the conspiracy and thus violated the laws should be identified and legal actions should be taken against them.”
However, the commission itself did not fix responsibility for the lapses on any particular officer citing the case being trialed in court.
“The above case is pending before the District Court, Barabanki, so at this level we cannot fix responsibility on any person involved in the incident,” said the commission.
The Commission also made 12 recommendations to the state government to check recurrence of such incidents.
“In a terror case, a gazetted officer out of Police department should be made witness to recovery,” recommended the commission.
“Interrogation of the accused should be recorded on video,” is another recommendation.
“Special Courts should be set up to hear such cases,” recommended the commission.
What does it mean to handle such sensitive cases and what is the human cost ?
“It is question of commitment but the costs are high. No ‘Muslim’ organisations came forward in these cases at least. I a man with socialist ideals and belief in the Constitution handled them. I did my professional duty. I helped somebody it was my conviction in the basics of my profession.”
This state government came to power with the promise that innocents targeted in terror cases would not just be released after following due process but that the government would expedite this process. The report of the Nimesh Commission can be read here. The Nimesh Commission dealt with 42 cases where in the name of fighting terror, innocents had been interned.
The fact that some lawyers like myself stood firm coupled with the fact that we formed a forum like the Rihai Manch that could mobilise widespread public opinion against the injustice being done in these cases, helped the struggle to continue, says advocate Shoaib.
The killing of Khalid Mujahid, a key witness to police excesses, his murder in custody, was a brutal shocker. Today the cases where Tariq Qasim and Khalid Mujahid were falsely implicated are still pending, says Shoaib.
“The incident took place on May 19, 2013. I met Khalid in the Azamgarh jail when he was fit and fine. I left, as usual to catch the bus to get to Lucknow. He said to me, ‘Bade Abbu ko Salaam’ (sending greetings to his uncle); the rest of the team left by car.
On the way, around 5 p.m., I got a call from the correspondent of Amar Ujjala informing me of his death, the death of Khalid Mujahid! It was a shock. I reached the District Hospital Barabanki where my colleague Randhir Gupta Soman helped me to reach the body.
There was a huge crowd and the police were bent upon completing the post mortem in undue haste. His uncle was there. Activist and professor, Sandeep Pandey also came. There were so many anti mortem injuries that went un-recorded in the post mortem. His nails were black, his face was blackened, these were sure signs of torture. Then comes the chief minister’s statement that ‘Khalid Mujahid died of an illness! Five doctors were present at the post mortem but the cause of death was recorded as ‘not known.’”
“Khalid Mujahid was a crucial witness in the case(s) listed in the Nimesh Commission Report. Forty-two policemen have been severely indicted in this report. The police officer who arrested Khalid Mujahid is the ‘team leader’ –Manoj Jha—he was SP Faizabad when this incident took took place. He is a favoured officer of this government! He also heads the Special Investigation team (SIT) appointed after the Muzaffarnagar Communal Violence!!
As recently as 2013, a colleague of Shoain in the Barbanki Court, advocate Mohammed Saleem was also brutally attacked for participating in protest condemning Khalid Mujahid’s death in police custody, it was not just 2008 even in 2013 fears looms over him of getting attacked and killed by black court mafia, responding to this element of fear Advocate Shoaib said, “One journalist asked me the same thing in 2008 when I was first attacked, I told him that I will fight for justice ‘Dastoor ke naam pe shahadat naseeb hone tak’ (till I become a martyr in the name of constitution) I still stand on my words.”
So who is advocate Mohammed Shoaib?
A lifetime member and vice president of the Socialist Party (that has Justice Rajinder Sachar and Sandeep Pandey as founders), he took admission for Bachelors course in 1965. This committed lawyer is a staunch and quiet believer in socialism.
What is it with terror-related cases that due process of law appears to be almost always circumvented?
“Initially, it was through communal riots that the minorities were targeted; now the targeting of innocent Muslim youth happens through such terror cases.
“Judges, even while knowing the law, ignore due process, they come under pressure when the words ‘terror cases’ and ‘national security’ are used by the prosecution. The media plays a sensationalist, sometimes negative role—the police version often becomes the media version.
“Look at certain television channels (name withheld) They claim they get emails from terror outfits soon after crimes take place. Does the prosecution even check from where these emails claiming credit for the terror cases are coming?
“In economic offences, with crores of rupees at stake, we are very lenient with the offenders we offer them complete anonymity when raids are carried out etc, but when it comes to such cases we ruin lives and reputations of young men who are then forever labelled and tarnished with the brush of being ‘terrorists’ and ‘anti-national.’
So far 14 young lives –not so young after release—have been freed by the services of advocate Mohammad Shoaib.
The story ends on a chilling and sombre note. "Bahut armaanse hamne Kampa gaon mein, Chinnar ke paas ek kothi banayee, accha ghar tha, bade armaan se khada kiya tha. 2011 mein sab bech bech kar shahar mein yah flat mein aa gaye…..Magar" (It was the fulfillment of our dreams that we built this home for ourselves in Kampa village near Chinnar. It was a beautiful house… But…)
What happened?
"Dhamkiyan aane shooroon ho gayee thee kai dinon se. 2011 meain hamse bardash nahin kiya jaa saka. Ahsan Jafri ke beharehmi se katal jo 2002 mein Gujarat mein kee gayee thee, woh haqueeqat dimaag par khelne lagee..Sab bech kar, chod kar ham shahar mein yah flat mein aa gaye." (Threats had begun. They began to intensify. In 2011 we could take it no more. The image of the brutal slaughter of Ahsan Jafri in Gujarat in 2002 (Gulberg society Ahmedabad) was playing on our minds. We just gave it all up; sold off the house and re-settled in this flat in the centre of Lucknow.
His wife, Malkabi, a school teacher, is a staunch supporter. And the battle for justice still goes on
Other Examples:
Sessions Case Number 0500159/2008, Lucknow Sessions Court: Jalaluddin @ Pinto@ Babu @ Amanullah Naushad @ Shabbir Shaikh Mukhtar Hussain @ Sardar Noor Islam acquitted of offences under section 120bm 121, 115, 122, 12A and 307 of the IPC. The Order can be read here
Sessions Case Number 0501373/2009,Lucknow Sessions court: Shaikh Mukhtar Hussain Naushad @ Hussain @ Shabbir Noor Islam @ Maulana Mohammed Ali Akbar Hussain acquitted. The Order can be read here
Sessions case Number 506/2013, Lucknow Sessions Court: Abdul Rehman @ Mohammad Iqbal @ Maulana Iqbal acquitted. The Order can be read here
References:
In Mohd. Hussain @ Zulfikar Ali Vs. The State (Govt. of NCT) Delhi 2006 Supreme Court ordered re-trial of the Blueline Bus Blast Case 1997 when accused (a Pakistani national) approached SC demanding fair trial as no counsel was provided to him during trial court proceedings, highest court of India upheld that even a foreign national cannot be denied right to legal representation.