“Except the Investigating Officer none of the prosecution witnesses have ever stated that the accused persons are the members of any unlawful organization and they are making any conspiracy against the Government of India or they have done any act to create hatred amongst the Muslim and non-Muslim population of the state.” – Smti. C.R. Goswami, Additional Sessions Judge (FTC) No. 4, Kamrup at Guwahati on Fasihullah and his co-accused.
“On consideration of the testimony of aforesaid 17 numbers of witnesses, as disussed above, I did not find even an iota of material under any of the charges under which the present three accused were facing trial. Witness after witness came and deposed pleading their complete ignorance about any kind of occurrence or activity of the accused. It was indeed difficult for me to comprehend as to why the aforesaid persons were cited as witnesses and through them, what the prosecution actually wanted to prove. The charges leveled against the accused are of extreme serious nature, like criminal conspiracy to wage war against the state and attempt to wage war against the state. If the investigating agency, or for that matter the prosecution, seriously believed the charges to be true, they ought to have collected at least some evidence worth the name.” – Sri M.K. Bhattacharjee, District Sessions Judge, Goalpara on Fasihullah and his co-accused.
Sayed Fasihullah Hussainy at the Chief Judicial Magistrate’s Court at Guwahat.
It was the morning of 29 April 2013. It was my 86th day of detention at the Guwahati Central Jail and I was lying on my bed as usual in the Ward 3 of the Jail Hospital, both legs encased in a plaster cast. I was lost in thought of someone whom I wished all the happiness in life but couldn’t reach out to say so across the gulf that existed between us. It was her birthday.
I was interrupted in my thoughts by the sight of a thin and wiry bearded man with a piercing gaze who I could see through the iron-barred window that opened out to the corridor. The Ward 3 of the Jail Hospital was a large barrack-like room about 20ft wide and 40 ft long on the 1st floor, with the entrance from the corridor somewhat to the middle of the room. My bed was the first one on the left the moment anyone entered the Ward. Anyone who would come had to pass my bed. The thin bearded man wearing a green round-necked Tee and pajamas was engrossed in an animated conversation with Utpal Nath, a convict serving life imprisonment who was also the head nursing orderly who looked after running the hospital. Both of them then entered the Ward, followed by a small entourage, passed my bed, turned right, and proceeded to the extreme end of the room, still lost in conversation. I could understand from what I overheard, and from the gestures, that the man with the neatly trimmed salt-n-pepper beard was moving into the ward and occupying the last bed on the side away from the corridor. Satisfied on seeing that arrangements had already been made, he turned around and was about to leave the Ward.
Just as he reached my bed, I said to him, “Good morning,” and extended my hand. For a moment he was taken aback and stared at me intently. Then, his eyes lit up in a sign of recognition and he broke into a large grin. Grabbing my extended hand and energetically shaking it, he cried out, “How the hell have you landed up here? And what has happened to your legs?” Then he said again, “Wait, I think it is again a long story. Let me first shift in and then, we will exchange stories.” Turning to another handsome tribal gentleman who had accompanied him, he said, “I know this guy. We had met a long time ago.” He then introduced the tribal gentleman to me, who was Moirangthem Joy Singh, the Organisational Secretary of United National Liberation Front (UNLF), the oldest and perhaps the most powerful Meitei insurgent group of Manipur.
I had just met Sayed Fasihullah Hussainy again, after more than 10 years. He had forgotten my name, but he clearly remembered me. And I was as surprised to see him again as he was to see me.
The ISI Party
It was more than a decade ago when I had my first brush with the ‘state’ in a spate of malafide prosecution and spent time in detention in the Guwahati Central Jail (I have either been honourably acquitted by trial court or the cases were quashed) when it was in its earlier location at Machkhowa. I was intrigued to find a group of prisoners, a blind man with a partially disabled hand among them, who were referred to as the ‘ISI Party’ and whom most prisoners were reluctant to mingle with. The ‘ISI’ tag, in India, could ostracize people accused as such even in prisons, I soon learnt. My curiosity, however, got the better of me and I did strike up conversations with a few of them off and on in the prison yard. They were already in detention for more than 2 years at that point of time.
The blind man with a partially disabled hand, whom they called, ‘Qari Sahab’ was perhaps in his 30s then, and claimed to hail from Muzzafar Nagar in UP and lamented that he was in jail charged as a dreaded leader and chief organizer of the Harkat-ul-Mujahideen in India, a charge he vehemently denied while talking to me. He also claimed that his disability was a result of torture in police custody. To me it appeared rather strange that a harmless looking handicapped man could be such a dreaded terrorist but I heard from other prisoners that they were indeed caught with a huge cache of arms and RDX. I realized that they were the ones who had created a stir in the media when they were arrested along with ISI Officers by the Assam Police in Guwahati in 1999.
‘Qari Sahab’ was always assisted around by a handsome younger man they called Musaffa. He claimed to be from UP too but others in the jail said he was a Pakistani whose real name was Javed.
Another from their group was a bespectacled mousy little Kashmiri man with a beard called Akram Bhai who claimed to hail from Sopore. Akram Bhai too was allegedly a dreaded Harkat-ul-Mujahideen, a charge he too vehemently denied to me.
A more jovial fellow was a stout dark bearded man in his late 20s or early 30s who they called Billal Mian. I learnt that he hailed from Bangladesh and had been made co-accused in the case even though he was arrested from his father-in-law’s house in West Bengal about a year later than Qari and his ‘ISI Party’. He was the most forthright among them and admitted to facilitating illegal border crossing between India and Bangladesh for a ‘fee’. He told me that among other cases he stood accused of facilitating border crossing of some of those who were involved in the hijacking of the Indian Airlines flight IC 814 from Kathmandu to Kandahar in December 1999. On being asked whether he really did so, he would ask as to how would he know? After all it was an illicit racket and he never asked, those whom he helped to cross what their business was, he claimed.
Then there was the bearded man in his 30s whom everyone referred to as ‘the Pakistani’. I learnt that they called him Fasihullah. He was allegedly the serving ‘major’ of the dreaded ISI, as told to me by other prisoners, who had infiltrated into Assam to carry out major acts of terrorism. Always neatly dressed in kurta and pajamas, he used to be rather aloof, although he always responded politely whenever I used to strike up a conversation with him. He also had a wry sense of humour and the only one among them who spoke English fluently. Fasihullah hailed from the city of Karachi, he claimed.
Leaving aside the media, even a statement tabled in the Assam Legislative Assembly on 6 April 2000 regarding ISI Activities in Assam portrays a frighteningly sinister picture of the ones I have just named above. Here is a link to the same:
Statement Laid on The Table of The House of Assam Legislative AssemblyUnder Item No. 12 Dated 6.4.2000 Regarding ISI Activities in Assam
The Spy Who Never Was?
Sayed Fasihullah Hussaiy was lodged in Block 3 of the Guwahati Central Jail when we inadvertently came across each other again on 29 April 2013.
As one enters the Guwahati Central Jail’s prison complex, the first building on the right is Block 1 (all blocks are double storied RCC type), a part of which houses the women’s prison and the other part the prison hospital where I was lodged in Ward 3 on the first floor. There are 10 Blocks in all in the approximately 25 acres prison, the blocks laid out almost linearly from West to East.
All prisoners who are in detention in national security, militancy or terrorism related charges are lodged in Block 3. Hence be it Fasihullah, NDFB Chairman Ranjan Daimary or the Maoist leaders and cadres, all occupied Block 3. There is, however, a group of under-trial prisoners (UTPs as they are referred to) who weren’t militants or terrorists but were contractors who had nexus with the notorious Dimasa militant group Dima Halam Daoga or DHD (Jewel Garlosa) faction and were actively involved in extortion and siphoning off of thousands of crores of government development funds in the North Cachar Hills district of Assam. Accused Nos. (12), (13), (14) in the Chargesheet of NIA Case No. RC-01/2009/NIA-DLI and Accused Nos. (2), (13), (14), (15) in the Chargesheet of NIA Case No. RC-02/2009/NIA-DLI. They are among the accused who continues to live in luxury, with other under-trial prisoners as orderlies, and every creature comfort possible to be obtained by bribing prison officials. They are the ones mockingly referred to as the ‘Hazar Kouti Gang’ (The thousand crore Gang) in obvious reference to the NC Hills Scam being worth at least Rs. 1000 crores as claimed in the media. This case of siphoning off huge government funds to fund terrorist activities was the first case that the newly formed National Investigation Agency took up in 2009. These are also the people Fasihullah shared the barrack with in Block 3. These were also the people with whom Fasihullah developed a friction with, due to their repeated attempt to buy influence throwing around money. This was one of the reasons, Fasihullah told me, why he requested the prison authorities to move him out of Block 3.
What brought matters to a head was the lethal attack on Sarabjit Singh in the Kot Lakhpat Jail in Lahore on 26 April 2013. As Sarabjit struggled for his life, the MHA alerted all prisons across India where any Pakistani prisoner was lodged, to take precautionary measures regarding their safety from other inmates. That is why, on 29 April 2013, Fasihullah was shifted into the Ward 3 of the Guwahati Central Jail Hospital. With his arrival, the Ward became a high security barrack with restricted access. Having spent 14 years in several prisons across Assam, Fasihullah had earned the friendship and affection of many, from prison inmates to jail officials. But no risks could be taken to allow a retaliatory attack on him to precipitate, even though that appeared slim as far as Fasihullah was concerned. But when news filtered in of the attack on the Pakistani prisoner Sanaullah Ranjay in the Kot Balwal Jail in Jammu, security in Ward 3, where Fasihullah and I were lodged, went up a few notch further. There was a constant stream of officials to ‘check’ on the arrangements made. With our mutual stream of visitors to our ward further trimmed down, Fasiullah and I had almost the whole day to chat, debate, exchange our stories. And over the next few weeks, I came to learn of the ISI Official who never was and how he had to fight consecutive legal battles in Indian courts to prove his innocence. Fortunately, the courts never disappointed him, refusing to be swayed by the bias and wild allegations that most of the media resorted to whenever reporting on him or his cases. I devoured Fasihullah’s case papers and copies of his judgments that he generously lent me to read. And, I struggled to understand the plight suffered by many like him, caught in the enmity of two nations conjoined at birth. I shall now recount his intriguing story, and epic enforced exile from home through the cases brought against him, chronologically, and what is on record in the judgments that have acquitted him of all charges except entering India illegally without valid documents.
Panbazar Case No. 321/99 under Sections 121/121(A)/122/153(A) of IPC, read with Section 14 of Foreigners Act 1946, read with Sections 10/13 of Unlawful Activities Prevention Act 1967.
Sayed Fasihullah Hussainy and his co-accused persons, were first arrested on 7 August 1999 in Guwahati in the Panbazar Case No. 321/99 corresponding to GR Case No. 3403/99 under Sections 121/121 (A)/122/153-A of IPC, read with Section 14 of Foreigners Act 1946, read with Sections 10/13 of Unlawful Activities Prevention Act 1967.
This is what the police said in the chargesheet, quoted here from court records.
“….on 7.8.99 the then DSP Panbazar Division Mr. D. Deka (Debendra Deka) lodged an FIR at the Panbazar PS alleging that he engaged some police personnel for conducting discreet enquiry as well as for keeping an eye on a group of four persons (whose identities have subsequently being noted below) who were seen moving around in the city in a suspicious manner during the last few days.
The names of these persons are:
- Md. Fasihullah Hussainy (I have corrected the spelling here) @ Hamid Mahmood @ Khalid Mahmood.
- Md. Javed Wakar @ Md. Musaffa @ Md. Mehraj @ Abdul Rehman Danish.
- Moulana Hafiz Md. Akram Mallick @ Musaffa Gyasin @ Atabulla @ Bhaijan.
- Qari Salim Ahmed @ Abdul Aziz @ Sadat.
They were seen making telephone calls to certain persons located in different parts of the country and abroad. Their activities were kept under watch for some time and after he was confirmed about their suspicious activities, they were arrested on 7.8.99. During their questioning, it has come to light that these persons have been deputed to Assam and other parts of India by the Pakistani Inter Services Intelligence (ISI) for carrying out large-scale disturbances in Assam and other parts of the country.
Two persons, namely Fasihullah and Javed Wakar are Pakistani citizens and are understood to be officers of the ISI. They do not possess any passport or valid travel documents and have entered India illegally.
Moulana Hazif Md. Akram hails from Kupwara district of Jammu & Kashmir and is an explosive expert of the militant outfit called Harkat-ul-Mujaideen.
Qari Salim is one of the most dreaded leader of the outfit and the chief organizer of the Harkat-ul-Mujahideen in India.
These persons have also in illegal possession of foreign currency (USD 3892 and Bangladeshi Taka 492)
As already admitted by them, the above persons have been deputed to Assam for getting in touch with certain members of the local unit of Harkat-ul-Mujahideen (HuM) and United Liberation Front of Assam (ULFA) for carrying out disturbances in the state. They have also stated before the police that the Chief Amir of HuM and officers of the ISI have entered into a conspiracy with the arrested accused persons for causing sabotage activities in public places and vital installations. For this purpose, a large consignment of arms, RDX and other deadly explosives have been dispatched to Assam. These four persons have also been tasked by the ISI to carry out a series of explosions on the Manali-Leh Highway in Jammu & Kashmir to cut off military supplies and thus waging war against the country.
During preliminary interrogation of the arrested persons it appears that a very dangerous scheme has been drawn up by the Pakistani ISI and the fundamentalist terrorist groups of that country, to create massive disturbances in the state, in collusion with certain militant groups of Assam. They are also understood to have hatched a conspiracy to incite communal disturbances in the state by inciting misunderstanding and hatred among the innocent and law abiding Muslim citizen of the state against the non-Muslim population.”
The case went on trial as the Sessions Case No. 248 (K)/2002 in the Court of the Additional Sessions Judge (FTC) No. 4, Kamrup, with the following charges against Fasihullah and his co-accused:
- USD and Bangladeshi currency were recovered from accused Fasihullah, Javed Wakar, Qari Salim and Maulana Hafiz and they possessed the same without any valid documents.
- The accused persons made conspiracy for causing sabotage activities in public places and vital installations and for this purpose a large consignment of arms, RDX and other deadly explosives have been dispatched to Assam and they have also been tasked by the ISI to carry out a series of explosions on the Manali-Leh Highway in Jammu & Kashmir to cut off military supplies and thus waging war against the country.
- The accused persons made a conspiracy to create communal disturbance between Muslims and non-Muslims of Assam.
- The accused persons have been deputed by the Pakistani Inter Services Intelligence (ISI) for carrying out disturbances in Assam and other parts of the country.
- Accused Abdul Mukit Choudhury, Hazi Billaluddin and Bilal Miyan have common intention for commission of these above mentioned offences and accused Abdul Mukit Choudhury and hazi Billaluddin jelped accused Qari Salim to go to Bangladesh in the year 1997.
- Accused Billal Miyan is a Bangladeshi national and he entered India without any valid documents.
- Accused Fasihullah and javed Wakhar are Pakistani nationals and they entered India without valid documents.
The prosecution summoned 14 witnesses, and listed a horde of exhibits to prove their case. As the trial proceeded and these witnesses were cross-examined, however, the charges brought about by the state began to unravel. I, hereby, selectively quote what the trial court had to say about the charges from a 26 page judgment it gave on 12 June 2008, the verdict pronounced by Smti. C.R. Goswami, Additional Sessions Judge (FTC) No. 4, Kamrup, at Guwahati.
“38. Regarding allegation Nos. (1), (2), (3) and (4) that the accused persons made conspiracy for causing sabotage activities in public places and for that purpose a large consignment of arms, RDX and other deadly explosives have been dispatched to Assam and they have also been tasked by the ISI to carry out a series of explosions on the Manali-Leh Highway in Jammu & Kashmir to cut off military supplies and thus waging war against the country and made conspiracy to create communal disturbance between Muslims and non-Muslims, the I/O (Investigating Officer who happened to be DSP Debendra Deka) has stated that after interrogation of the accused persons he came to know that the accused persons were members of Harkat-ul-Mujahideen and Harkat-ul-Mujahideen is an organization under ISI and their aim is to get freedom to Kashmir. Accused Salim is the ‘Amir’ of Harkat-ul-Mujahideen and he made entry of Indians in Harkat-ul-Mujahideen and thereafter they were sent to Pakistan through the Bangladesh border and trained under ISI. Thereafter they were returned to India and engaged them in illegal activities. On 14.8.99, accused Salim admitted before him that he kept some explosive substances in the house of Abdul Jabbar of village Rajsahi of Bangladesh. As per direction of the Superintendent of Police, Salim called Abdul Zabbar in telephone from Special Branch Head Quarter. Salim asked Abdul Zabber to send those explosive substances to India. Accordingly, he directed the police in Siliguri to apprehend the person along with the explosive substances. Police of Siliguri seized the articles but failed to apprehend the accused. Then on permission of the court, he seized samples of explosive substances from Bhaktinagar PS. In his cross-examination he admitted that ‘Amir’ is an Urdu word and he did not know the actual meaning of it. He did not record the statement of accused Salim u/s 164 CrPC. Previously there was no record in their police station alleging that he carried explosive devices to India from Pakistan by the Indian making them the members of Harkat-ul-Mujahideen. He admitted that he had not made any General Diary Entry (GDE) regarding taking of accused Qari Salim to Special Branch HQ. To show Abdul Zabbar of Bangladesh is the owner of telephoneNo. 0721 760562 and to show that the telephone No. 561484 is of IGP, Special Branch, he has not collected any material. He has admitted that he did not inform the Government of India or Border Security regarding entry of explosive substances to India from Bangladesh. He informed D.K. Kundu, DSP (CID) Siliguri by telephone. But regarding this telephonic message, he has not made any GDE and he has not mentioned the telephone No. in the record. He has further admitted that in Exhibit-6 it is not mentioned that the articles were seized on the basis of his information. In Exhibit-6, it is mentioned that the seized articles were unclaimed articles. He has admitted that he seized the articles from SI D.N. Barman at Bhaktinagar PS. He does not know wherefrom Bhaktinagar police seized those articles. Relating to seizure of those articles, no police station case was registered. Bhaktinagar PS GDE No. 508 was made and in that GDE these accused persons were not shown as accused. He has further admitted that the seized articles were not examined by any expert. He has also admitted that he had not obtained any permission from any court to keep the seized articles in the malkhana and those seized articles were not seen in the court.”
“39. In support of seizure of Bhaktinagar PS, prosecution has examined Prosecution Witness (PW) No. 5 Sri Sukumal Choudhury, PW 10 Sri Satish Ch. Kundu and PW 13 Sri Sadhan Kr. Bhowmik.
PW 5 has stated that on 19.2.2000 he along with DSP Panbazar Divison Sri Debendra Chandra Deka went to Bhaktinagar PS. Sri Deka seized some sample of explosive substances from ASI Sri B.N. Barman. Sri Deka also seized some certified copies of documents from Inspector Sri M.C. Gope, which is Exhibit-7.
PW 10 has stated that on 19.2.2000 he was working as SI of police at Bhaktinagar PS. On that day I/O of this case seized samples of some material from ASI Sri B.N. Barman which were kept in malkhana in connection with Bhaktinagar PS GDE No. 508 dated 15.9.99. In his cross-examination he stated that he cannot say whether those materials were RDX or not. He has no knowledge about RDX. Those materials were not sent to an expert. He could not say on what condition those were kept in the malkhana.
PW 13 has stated that on 18.2.2000 he was posted at Islampur V.V. under CID, West Bengal. On that day I/O of this case Sri. Deka seized some documents from their office. In cross-examination he has stated that the seized articles were lying at Bhaktinagar PS as unclaimed. He has no knowledge regarding those unclaimed articles.”
“40. From evidence of PW 5, PW 10, PW 13 and PW 14, it cannot be connected that the materials which were kept at Bhaktinagar PS in connection with Bhaktinagar PS GDE No. 508 are explosive substances, that those were sent by Abdul Zabber of Bangladesh as per direction of accused Qari Salim, and that the accused persons have any relation with those articles.”
“41. Regarding the other allegations such as the accused persons are members of Harkat-ul-Mujahideen, the accused persons sent some youths to Pakistan for training, the accused persons made conspiracy for waging war against India and to create communal disturbances between Muslims and non-Muslims of Assam, the accused persons are deputed by ISI etc, no of the prosecution witnesses have made a single whisper supporting the statement of the I/O.”
To cut a long story short, the prosecution failed to prove every single charge against the accused except illegal entry of two foreign nationals, Fasihullah and Billal Mian, into India without valid documents, that too, because both the accused accepted those charges upfront.
On 12 June 2008, almost 9 years after being arrested, Sayed Fasihullah Hussainy was convicted under Section 14 of the Foreigners Act 1946 and sentenced to undergo 5 yrs of rigorous imprisonment and to pay a fine of Rs. 1000.00 only. On the day of the judgment, Fasihullah had long served out his sentence as it was to be set off against his detention as an under-trial under Section 428 CrPC.
He was, like the other accused in the case, acquitted from the other charges and to be set at liberty.
But this wasn’t the only case against Fasihullah where judgment was pronounced that day.
Special Operations Unit (SOU) Case No. 01/99 under Sections 120(B)/121/121 (A)/122/124/153(A)/34 of IPC.
Sayed Fasihullah Hussainy was also made an accused (along with Javed Wakar, Maulana Hafiz Akram and Qari Salim) in the SOU Case No. 01/99 corresponding to GR Case No. 3719/99 under Sections 120(B)/121/121 (A)/122/124/153(A)/34 of IPC.
The case, as claimed in the chargesheet arose as a result of arrest of some accused in connection with the Dudhnoi PS case No. 67/99 and Fasihullah was shown-arrested in the case registered in the Special Operations Unit PS of the Assam Police.
The charges were almost identical to those of the Panbazar PS Case which I have extensively dwelt on above. The case went on trial as the Sessions case No. 222(K)/04 in the Court of the Additional Sessions Judge (FTC) No. 4, Kamrup and 19 prosecution witnesses were examined during the trial.
On 12 June 2008, Smti. C.R. Goswami, Additional Sessions Judge (FTC) No. 4, Kamrup pronounced her judgment along with that of the above case. I quote below the most relevant portions of the 25 page judgment.
“30. …..Except the I/O none of the prosecution witnesses have ever stated that the accused persons are the members of any unlawful organization and they are making any conspiracy against the Government of India or they have done any act to create hatred amongst the Muslim and non-Muslim population of the state.
…..Though in the FIR it is stated that the Muslim youths were sent to Pakistan, Afghanistan, Bangladesh or other countries for arms and explosive training, but the prosecution has failed to adduce either the documentary evidence or any oral evidence to show that any of the accused or any other persons was sent to any other country for any training.
…..Further, in this case, accused Fasihullah, Qari Salim, Maulana Hafiz Akram and Javed Wakar were shown-arrested. But for the same offences they were already arrested in connection with the Panbazar PS Case No. 321/99 and they were tried in the said case. For the same offence a person cannot be prosecuted twice. Further, none of the seized materials of this case are produced by the prosecution before the court.”
“33. In view of the above discussion, I hold that the prosecution has failed to prove any of the allegations leveled against the accused persons beyond all reasonable doubt.”
“34. Hence, the accused persons are acquitted and set at liberty.”
Interestingly, accused Javad Wakar, who was claimed to be a Pakistani in Panbazar Case No. 321/99 was claimed to be an Indian in this one.
In Guwahati, there was another case in which Fasihullah was made an accused in and shown-arrested. This was the Paltanbazar PS Case No. 284/99 corresponding to GR Case No. 3361/99 under Sections 121(A)/123/147/148/307/353 IPC, read with Section 25(1)A/27 of the Arms Act, read with Sections 10/13 of the Unlawful Activities Prevention Act 1968. This case, however, never went to trial and was inexplicably closed vide FR No. 398/2000 and the same was accepted by the Chief Jusdicial Magistrate, Kamrup.
But this wasn’t all. Fasihullah and Javed Wakar were also made co-accused and shown-arrested in the Dudhnoi PS Case No. 67/99 in the district of Goalpara Assam.
Dudhnoi PS case No 67/99 under Sections 120(B)/121/121(A)/122/153A of IPC.
Sayed Fasihullah Hussainy (along with Javed Wakar and another accused), was made co-accused and shown-arrested, in the Dudhnoi PS Case No. 67/99 corresponding to GR Case No. 503/99 under Sections 120(B)/121/121(A)/122/153(A) of IPC allegedly on the confession of an accused, one Muslim Uddin, arrested in the Dhubri PS Case No. 208/99.
The charges against them were almost identical to those in the cases registered against them in Guwahati, of waging war against India, conspiring to create communal unrest etc.
This case went on trial as the Sessions case No. 72/2006 in the Court of the Sessions Judge, Goalpara. In all, 18 prosecution witnesses were examined during the trial. Delivering a 29 page judgment on 12 August 2010, Shri M.K. Bhattacharjee, District Sessions Judge, Goalpara was scathing in his criticism of the prosecution. I reproduce below, select portions of that judgment.
“25. On consideration of the testimony of aforesaid 17 numbers of witnesses, as disussed above, I did not find even an iota of material under any of the charges under which the present three accused were facing trial. Witness after witness came and deposed pleading their complete ignorance about any kind of occurrence or activity of the accused. It was indeed difficult for me to comprehend as to why the aforesaid persons were cited as witnesses and through them, what the prosecution actually wanted to prove. The charges leveled against the accused are of extreme serious nature, like criminal conspiracy to wage war against the state and attempt to wage war against the state. If the investigating agency, or for that matter the prosecution, seriously believed the charges to be true, they ought to have collected at least some evidence worth the name.”
“31. It was clear from the testimony of the I/O that the search and seizure was made in the house of accused Muslim Ali on 25.08.99, on the basis of input received from Special Branch. The documents seized (Material Exhibit 61 & 62) admittedly contained some names, phone numbers and writings. But there was absolutely nothing on record to indicate that follow up action was taken or for that matter any investigation was done to find out the persons named in Material Exhibit 61. The seizure appeared to be made as a ritual…..”
“33…….For the sake of convenience let me reproduce the following part of the cross examination of the I/O (PW 18): I did not make any personal effort to collect the antecedents of the accused. I did not make any enquiry to find out the antecedents of accused Fasihullah. I have no explanation as to why I had not tried to find out the antecedents of accused Fasihullah. I did not know that there was a case against accused Fasihullah that there was a case against accused Fasihullah for violation of Passport Act and Rules. I did not make any effort to find out whether accused Fasihullah is a member of Harkat-ul-Ansar. I have never made any communication with the Ministry of External Affairs, Government of India.”
“37……There appeared absolutely no evidence in this case that accused Fasihullah Hussainy was moving from one place to another with any other accused of this case, far less to speak of recovery of any arms and ammunition etc either from his custody or from the custody of any other accused. There was absolutely no proof of any overt act being committed by any of the accused who are facing trial.”
“42. In view of the above, I am constrained to hold that the prosecution has miserably failed to prove any case under Sections 120(B), 121, 121(A), 122 and 153(A) of IPC against the accused facing trial, far less to speak of proving the case beyond reasonable doubt. Accordingly, accused Md. Abdul Baten Khan, Fasihullah Hussainy and Javed Wakar @ Md. Musaffa are acquitted and set at liberty. Accused in custody shall be released if not wanted in any other case.”
As there were no more cases pending against Sayed Fasihullah Hussainy, an order for his release and deportation through appropriate authority was issued along with the judgment acquitting him of all charges.
Rather than complying with the order, the Government of Assam invoked the National Security Act the same day vide Detention Order No. GC. 25/2010/2 to prevent Fasihullah from being released and deported.
Thereafter, Fasihullah was again made co-accused in two more cases, Goalpara PS Case No. 511/10 and Latasil PS Case No. 134/10, both registered on 30.07.2010 and shown-arrested in both.
The Goalpara PS case No. 511/10 was registered on the basis of a FIR dated 30.07.2010 received from Sri. Bibal Ch Das Bedi O/C E/12 CRPF Goalpara informing the SHO, Goalpara PS that 5 CRPF personnel were killed and 40 were severely injured when an IED blast badly damaged their bus (Registration No. AS 01 Y 2408) while returning from the Rangagarh Firing Range. The incident was reported to have occurred near Nirmala Hospital at Bhalukduba, Salbari at about 7:50 am.
The Latasil PS Case No. 134/10 was registered on the basis of a FIR lodged by Deputy Commandant, Border Security Force at Guwahati that hardcore NDFB cadres of the Ranjan Daimary faction had entered Guwahati with the intention of carrying out attacks in the city on the eve of Independence Day celebrations. In an operation carried out on the basis of this, the Central Publicity Secretary of the NDFB (Ranjan) was apprehended along with 2 women cadres.
Thus, if the Assam Police is to be believed, Sayeed Fasihullah Hussainy, who was in jail continuously for 11 years since 1999, had somehow not only exploded an IED killing 5 and injuring 40 CRPF personnel in Goalpara, but also had somehow planned with the NDFB to carry our strikes in Guwahati, all sitting in jail.
The intention was obvious, to prolong Fasihullah’s detention even further with ludicrous charges. He, however, moved the Honourable Gauhati High Court to have both these charges against him quashed.
Meanwhile, the Government of Assam, had appealed in the Honourable Gauhati High Court against Fasihullah’s acquittal in the Sessions Case No. 222(K)/2002 and Sessions Case No. 248(K)/2004.
It was while awaiting verdict in these from the Gauhati High Court that fate made us cross each other’s paths again.
In the 20 days Fasihullah and I spent together in the Ward 3 of the Guwahati Central Jail Hospital, we not only debated or swapped stories, but also shared every meal. The best years of his youth have been spent fighting charges that invites death sentences as punishment. The least I could do when he turned 44 on 7 May, 2013 was to have a special treat prepared for him.
I told him many times that if he had come to harm my nation, I would have had him vigorously prosecuted, but at the same time, I would have accorded him every dignity and right the Constitution and our laws ensures such an accused. At the same time, I wouldn’t abuse the laws to prosecute and harass an innocent just because he happens to be a Pakistani. And, if anyone intended harming him there in our Ward in retaliation to the attack on Sarabjit, he would find me barring the way of any such attackers in everyway I could, even having to fight physically with my shattered legs. But I wouldn’t have been the only one who would have stood up for him. Having spent 14 years in several jails in Assam, Fasihullah could now speak Assamese beautifully, with a lilting accent. And in this period, he has also earned the respect and affection of many.
On the evening of 17 May 2013, news arrived that my release orders have come. As I was about to leave, we held each other in a tight hug, and Fasihullah, in a chocked voice whispered to me, “Go in peace my friend. Go and find your tigress. I will come some day to see your house full of children. Allah aap ko salamat rakkhe.” I couldn’t speak. There was a lump in my throat that wouldn’t just go away. I left moist eyed, vowing to myself that I will do everything in my means to see that this man gets home to Karachi. After all, 14 years is a long time to be away from home, away from his loved ones.
As I reached the Jail Office to conclude the formalities for my release, being carried on a stretcher, I learnt that the Guwahati High Court had, that afternoon, quashed both the new cases against Fasihullah and rejected both the appeals against acquittal that the Government of Assam had filed, upholding the verdict of the trial court. The orders had not yet reached the jail authorities, but the news had certainly arrived. I was elated.
Today, it is one month to the day that all the cases against Sayed Fasihullah Hussainy stands disposed, pronounced not guilty of any of the charges of being an ISI Officer, a member of Harkat-ul-Mujahideen, a member of Harkat-ul-Ansar or of waging war against India. Yet, he is still waiting to be sent back home to Karachi.
When I bid him farewell, I came away with a vow to relentlessly fight for a world where his unborn children and mine could live in peace, without the shadow of mutual suspicion and enmity destroying their futures. This is the first step towards that effort.