Muddied investigations deny justice to not just the accused but also the victims

Sharmeen Hakim is a journalist and the author of Six Minutes of Terror: The Untold Story of the 7/11 Train Blasts

Justice JR Midha (retd) of the Delhi High Court once profoundly stated, “In a court of ‘justice’ both parties know the truth; it is the judge who is on trial.” For anyone familiar with the quality of evidence presented in the 2006 7/11 Mumbai serial train blast case, the Bombay High Court’s decision on Monday to acquit 11 men (Kamal Ansari passed away while the proceedings were pending)—five of whom had been sentenced to death by a trial court in 2015—was simply a discharge of its duty.

Muddied investigations deny justice to not just the accused but also the victims

This article won’t delve into the unspeakable horrors of the third-degree torture these men endured in prison and later testified to in court, nor the agonizing wait for judgment that stretched from days into months, years, and even decades, or the abject poverty resulting from their incarceration, or the deaths of spouses and parents during their 19-year-long imprisonment. Instead, this article aims to raise critical questions about a case shrouded in controversy from its inception, specifically regarding the accountability of investigating agencies that relied on unreliable evidence to secure convictions and assuage ‘society’s collective conscience’. In this particular case, such evidence sealed the fate of 13 men, some of whom were merely students at the time of their arrest in 2006.

The 7/11 train blasts trial was riddled with allegations of forced confessions and improbable eyewitness accounts right from the beginning. Eleven of the 13 accused in the case testified under oath to prove their innocence, providing vivid details of third-degree police torture, particularly before their alleged confessions. Forced confessions are inadmissible as evidence under law. Medical reports from the time largely substantiated their testimonies and were accepted by the Bombay High Court to discard the confessions. As for eyewitness accounts, Ehtesham Siddique, accused of planting one of the bombs, filed hundreds of Right to Information (RTI) applications to demonstrate the improbability of statements made by eyewitnesses. For instance, an eyewitness claimed to have seen a man with a ‘heavy bag’ at Churchgate station on the day of the bombings and identified Siddiqui as that man. However, Siddique cited RTI replies to show that the eyewitness may have been lying about his whereabouts at the time of the incident. The witness claimed he was visiting someone at the ENT hospital near Fort who either didn’t work there or hadn’t reported to work at all. Since the ATS was exempt from providing information under the RTI Act, Siddique and the other accused in the case sought information from several other government forums and hospitals to counter the prosecution’s theory.

At a conspiracy level, the Anti-Terrorism Squad (ATS) alleged that the blasts were orchestrated at the behest of the Lashkar-e-Toiba (LeT), a terrorist group based in Pakistan. ATS further claimed that one Indian and one Pakistani planted the seven bombs that detonated in first-class men’s compartments of Mumbai local trains on July 11, 2006, resulting in 188 deaths and 829 injuries. However, not a single Pakistani or LeT member was prosecuted over time, immediately casting doubt on the ATS’s initial allegations. Moreover, the prosecution failed to establish a credible link between the Student Islamic Movement of India (SIMI), to which many of the accused belonged, and the LeT. In fact, in 2008, Sadiq Israr Sheikh, a former SIMI member who later joined the terror outfit, the Indian Mujahideen (IM), claimed responsibility for the train blasts. Sheikh, arrested in a separate 2009 Indian Mujahideen case provided a detailed account to the Mumbai Crime Branch of how the IM executed the train blasts, but his claims were not substantially investigated by an independent agency, perhaps because it could have exposed critical loopholes in the ATS’s investigation. Unsurprisingly though, during the 7/11 trial when Sheikh was called by the defence, he denied any involvement. His confession to the crime branch, however, did muddy the waters.

Echoing the questionable investigative patterns of the 7/11 Mumbai train blasts probe was the 2006 Malegaon blasts probe. Two months after the train attacks in Mumbai, four bombs ripped through Malegaon city on Shab-e-Baraat, a holy day for the city’s Muslim-majority population. The ATS swiftly arrested nine Muslim men, operating under the theory that they would target their community near a mosque. This investigation mirrored the 7/11 Mumbai train blasts probe, where ‘confessions’ were extracted in written Hindi from Urdu speakers and evidence, like RDX traces found months after the blasts, was presented. Two of the 7/11 accused, Mohammed Ali Alam Shaikh and Asif Khan were also implicated in the Malegaon blasts, with the ATS alleging their involvement in procuring explosives.

However, after the case was transferred to the National Investigation Agency (NIA), Hindu extremist Swami Aseemanand in 2007 claimed responsibility for the blasts and the ATS’s investigation in Malegaon blasts of 2006 subsequently fell apart under scrutiny. It turned out that Shabbir Masiullah, said by the ATS to have been a key conspirator in Malegaon blasts was already in police custody when he was alleged to have helped Mohammed Ali Alam Shaikh and Asif Khan procure explosives. Nearly 10 years after these revelations, in April 2016, a special court discharged Mohammed Ali and Asif Khan in the Malegaon blasts case along with the other accused, castigating the ATS’s “unbelievable” theory.

These glaring inconsistencies and the human cost of wrongful arrests make one thing clear: there needs to be a complete overhaul of how investigating agencies perceive and investigate cases related to terrorism and how courts fix accountability. Agencies should refrain from making overly ambitious claims at the outset when their investigation is not yet scientific. Doing so is an affront to every victim of terror—living, injured or dead.

Sharmeen Hakim is a journalist and the author of Six Minutes of Terror: The Untold Story of the 7/11 Train Blasts