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Published in the 16-30 Nov 2004 print edition of MG; send me the print edition

Best Bakery after Zahira U-turn

By M H Lakdawala

Mumbai: Best Bakery case key witness Zahira Sheikh's statement in Baroda, that she lied to the court under pressure from rights activist Teesta Setalvad has raised questions on her credibility.

"It has come as a big shock to all of us. We feel embarrassed and saddened by this," Professor JS Bandukwala of Baroda University said. Best Bakery was located in his city. The high-profile Best Bakery trial — named after the Muslim-run bakery where 14 people were hacked/burnt to death in 2002 — is seen as an effort to get justice for thousands of Muslim victims of the Gujarat riots. 

According to pegged down official figures, more than 1,000 people, mainly Muslims, were burnt/hacked to death in Gujarat in the wake of an attack, allegedly by Muslims, on a railway bogey which killed 59 Hindu activists on 27 February 2002. 

Last April, the Supreme Court ordered the retrial of the Best Bakery case after a Baroda court acquitted 20 Hindus of the slayings. To ensure non-interference of the Gujarat government, the top court ordered a retrial to be held in Mumbai in the neighbouring Maharashtra state. The apex court acted after Zahira Sheikh, the chief witness to the massacre and daughter of the owner of the bakery, had said that she had been intimidated into changing her testimony in the original case because of threats to her life, leading to the acquittals by the Baroda court. 

Twenty-year-old Zahira Sheikh had initially implicated the accused and then backtracked during the first trial in Baroda. Legal experts said Sheikh’s latest recant was unlikely to influence the outcome of the trial at a Bombay court, as there were at least four more witnesses. According to lawyer Mihir Desai, this will not impact the case because there are other eyewitnesses who have supported it. "The question is why did she do this, when she had the choice of turning hostile in a court room. She was anyway going to be cross-examined a few days later. Probably she was afraid of being cross-examined". 

Legal experts and police officials feel that the case does not hinge on her testimony alone. It hinges on four other eyewitnesses who had been dropped by the fast track court of judge HU Mahida for various reasons, ranging from “mental instability” or not having enough time to reach the court from outside Gujarat. 

According to lawyers, an eyewitness is key to any important criminal offence. In this particular case, the prosecution conducted in Vadodara had not examined four key witnesses: Toufel Ahmed Habibullah Shaikh, Rais Khan, Shailun Hasankhan Pathan and Shahzad Hasankhan Pathan. 

In fact, three of them have already deposed before the Mumbai court and identified many of the accused. All four of them were injured in the Bakery carnage of March 1, 2002.

In his testimony before the Mumbai court, Toufel has identified seven persons from among the accused, while Rais identified five. Interestingly, Shahzad, who was dropped from the proceedings of the fast track court for being “mentally unstable”, identified 12 accused before the court of judge Abhay Thipsay. "As Zahira has been retracting her statements, there is always a possibility of her credibility being questioned. However, apart from the Sheikh family, each witness stands on his own merits," says senior counsel Atul Mehta. Senior advocate and human rights activist Girish Patel said, "Zahira is one of the many eyewitnesses who had already lost her credibility. A lot will depend on the four eyewitnesses." 

"Zahira appears to be under tremendous pressure to backtrack from her earlier statement," All India Ulama Council general secretary Maualana Mehmood Daryabadi said in a statement. "We demand an investigation into the whole episode by a central agency," he said adding that "These are attempts to sabotage the proceedings and divert attention."

Zahira's statement has enabled Gujarat Chief Minister Narendra Modi to achieve what he couldn’t with his anti-NGO diatribe during his Gaurav Yatra. Modi has succeeded in injecting doubt in the minds of people about NGOs. Something he couldn’t during his yatra, where he had blamed the national press and 'five-star NGOs' for 'defaming Gujarat'. The development should also be viewed in conjunction with the Modi dispensation's subtle efforts to harass NGOs in Gujarat through a series of inquiries about their funds and origins. "Zahira is being used as a pawn to intimidate those who stood up for the riot victims," said Father Cedric Prakash, convenor of the Prashant Centre for Human Rights, Justice and Peace.

It is learnt that Zahira was not staying at the place which the Citizens for Justice and Peace, a NGO run by activist Teesta Setalvad, had given her in Versova, a Mumbai suburb. "She was believed to be staying with her sister independently," said a person associated with CJP. He added: "Zahira had told us she wanted to stay with her relatives in Mira Road. She also asked police not to provide her with protection as she did not want to attract attention." 

The smooth examination of the witnesses in the Best Bakery case in Mumbai must have made the vested interests to go after Zahira Shaikh to jeopardise the case. One after another, four witnesses had identified the accused. Nineteen-year-old Raees Khan told the court that the mob of about 20 people had gathered outside the bakery at about 8:30 pm and pelted stones on March 1, 2002. They were dispersed by the police but the rioters returned later, this time about 1000-2000 strong, carrying swords and torches, he said. The rioters set the bakery ablaze, and then in the early hours of the next morning they tied up those who were still alive and assaulted them with swords and then burnt them, he added.

Raees, a Best Bakery worker who was injured in the attack that killed 14 persons, has never testified before. "His evidence was clear and confident. Let's see how the defence cross-examines him," said Manjula Rao, the prosecution lawyer.

Unlike the first witness Tufel, who was nervous, Rees came across as relaxed not only when he was speaking but also when he stepped out of the witness box to identify the accused. The defense lawyer grilled Raees for nearly three hours but could not expose any major contradiction in his testimony. This must have forced the vested interests to lure Zahida with money or threaten her with dire consequences. Even during the proceedings several people in the courtroom were upset with the "communally coloured" remarks made by senior defence counsel Adhik Shirodkar. 

While cross-examining the eyewitness, Shirodkar said Tofel was a tutored witness. "There are major contradictions in Tofel's original police statement given in Gujarat and the fresh deposition." Pointing out the absence of Kausar Ali and Lulla's name in the police statement, Shirodkar said, "How can you be so certain and remember about them when you have not mentioned a word about them in the police statement?" Tofel said he must have forgotten to mention it due to his severe head injuries. "But now I remember," he said, to which Shirodkar remarked, "Divine revelations are only in our (Hindu) religion not in their (Muslim) religion. It is strange that after two years, he (Tofel) is getting these divine revelations all over again." Several people in the courtroom disapproved of the remark. "How can he make such communal remarks in the court which is a temple of justice," said a senior lawyer. Judge Abhay Thipsay was quick to check Shirodkar and asked him to focus on the cross-examination. 
The witnesses are still fearful. When Tufel Shaikh, was asked to identify seven accused in court he refused to go near them. It was only after Judge Abhay Thipsay’s reassurance that he went near the dock in the company of two cops. He then identified the seven accused, but all the while, held on to the arms of the two cops accompanying him. 

Times of India in its 5th Nov editorial wrote, "The Best Bakery retrial has emerged as a benchmark for the disbursal of justice to victims of the Gujarat pogrom. The actions of Zahira and her mother Shehrunnisa underline much that is wrong with the state and its instruments. We need separate redressal forums like riot tribunals independent of state police and local courts to ensure that justice is delivered in a proper and prompt manner. Justice delayed is justice denied".

When justice is delayed, intimidation or money takes over and the victim has no alternative but to accept either of one.

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