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Monday, Jan 03, 2005

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A test case in more ways than one

By Meena Menon

MUMBAI, JAN. 2 . It's a re-trial like no other. It has all the ingredients of a drama and a mystery, combined with unusual twists and turns at every stage, the last one being the Tehelka tapes exposing Zahira Sheikh. The prime eyewitness in the Best Bakery carnage was once the focus of all attention. But as the re-trial unfolded, attention has shifted to the testimonies of the workers from the bakery who were not examined in the trial at Vadodara.

Since June 7, when the retrial began in the court of the Additional Sessions Judge, Abhay Thipsay, in Mumbai, Ms. Zahira is the 41st prosecution witness to be examined. So far, seven people have turned hostile in the re-trial, including her entire family, barring her sister-in-law Yasmin, the first wife of her brother, Nafitullah.

This is the first case of communal violence to be transferred from one State to another and Ms. Zahira's role in making this happen is no small one. However, in the re-trial, it is clear that she is no longer a prime eyewitness. In fact, she has turned hostile in court for the second time since that fateful day, March 1, 2002, and claims she does not recognise any of the accused. The reason for her doing this might form the subject matter of another investigation later.

Right from March 21, 2002 when Zahira Sheikh submitted a letter to Justice J. S. Verma, chairperson of the National Human Rights Commission (NHRC) naming nine accused in the case, she seemed determined to fight for justice for the 14 persons who were killed in the bakery. But in the trial at Vadodara, out of the 73 witnesses who deposed, 37 turned hostile, including Zahira and her family.

Neither the trial court nor the public prosecutor sought to serve notices of perjury on them nor did they show any intention to determine the real cause of the hostility. Also, of the list of 15 eyewitnesses, only 11 were examined. Independent witnesses, doctors and police officials were not. On June 27, 2003 the Vadodara Session's Court acquitted all 21 accused.

This is a test case in more ways than one. The landmark Supreme Court judgment of April 12, 2004 which led to it being transferred to Mumbai, had indicted the prosecution in the Gujarat trial.

One of the witnesses, who had left for his native place in Uttar Pradesh, was served summons on June 9, 2003 for recording his evidence the next day in the trial at Vadodara.

The Supreme Court also noted that in Vadodara, the prosecutor had not examined an important witness on the ground that he, Shehzad Hasan Khan, was of unsound mind. His brother Sailun was also considered to be of unsound mind.

In the re-trial, all these eyewitnesses, who were workers at the bakery, namely Rais Pathan, Toufel Sheikh, Shehzad and Sailun, have identified several of the accused, some by name and some by face. Ms.Yasmin has also identified several accused, naming many of them, while Ms. Zahira and her family insist that she was not present on the night of the riots.

Ms. Yasmin, too, was not examined at the Vadodara court. By examining these witnesses first, the special public prosecutor, Manjula Rao, wanted to make a strong point that Ms. Zahira was not the only eyewitness as was widely believed. And, the subsequent developments have supported her viewpoint.

The case is now poised for more revelations after it resumes on January 6, 2005 and the matter is compounded by the strong angle of perjury being pursued by the prosecution as far as Ms. Zahira and her family are concerned. For the Citizens for Justice and Peace, which supported Ms. Zahira's petition, the reason for seeking a transfer of the case was to ensure that the due process of law was followed and the trial carried out in a fearless atmosphere. That point has been proved. It has also helped that as mandated by the Supreme Court, the case is time-bound and hearings are held on a day-to-day basis.

Major issues

However, it is not only the re-trial that is of importance. Witness protection, a speedy trial, justice and adequate compensation to victims are also major issues.

On April 1, 2002 the NHRC had recommended that the investigation into the Best Bakery case be handed over to the CBI. The NHRC had also recommended that certain other critical cases be entrusted to the CBI which include the Gulbarga Society case, the Naroda Patiya incident and the Sardarpura case in Mehsana district. An interim report by the NHRC said that the CBI must investigate 14 cases in Gujarat in 2002. On April 15, 2002, D. N. Pathak of the Gujarat PUCL and Teesta Setalvad, secretary of CJP, filed a petition in the Supreme Court demanding a re-investigation in the 14 cases. The case is a pointer to the larger ills prevalent in the State — in its policing, investigation and social justice machinery. Zahira Sheikh is as much a victim of this system as the others and the fact that she, who was once the crusader for justice in this case, has turned around, is evidence enough.

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A test case in more ways than one