Surprises Galore!

The minimum sentence of a terror accused in Spain is 8 ½ years. Hence, it is surprising that the Supreme Court of Spain has reduced the sentence of 8 ½ years, handed down to Roshan Jamal Khan by the High Court, to 6 years. This proves that the terror charge against him is false.

Roshan Jamal Khan has been sentenced for associating with a terror group on the basis of an allegation of a faceless voice that does not even utters Roshan Jamal Khan’s name during his testimony.

The hearing of the appeal against the High Court verdict took place on 15-12-2010. The hearing went on for hardly 2 hours. The verdict was given on 29-12-2010 which is also surprising as it was Christmas vacation. It seems that the hearing was just a charade. Everything seems to have been premeditated. In fact, our advocate had also given this hint to Roshan Jamal Khan as well as us at this sort of judgment in his e-mail to us and was afraid that political pressure might influence the Supreme Court decision.

More surprising is the callous attitude of the Government of India. Despite the clear injustice and blatant violation of human rights, the Indian Embassy in Spain and the Ministry of External Affairs remained a mute spectator. Far from helping us in our legal battle, the Government of India did not even bother to monitor our case. This is in sharp contrast to our government’s swift move to allow the European Union’s delegation of 8 members to monitor Dr. Binayak Sen’s case.

It is also strange that the European Union has taken it upon itself to monitor a case in Asia – an Indian being prosecuted by the Indian authorities in India – while it has turned a blind eye to the injustice done in Europe by a European country to an Asian (Indian). It seems the European Union is suffering from presbyopia. We wish that the European Union would focus on Roshan Jamal Khan’s case and help him to get justice.

Except for the kind cooperation and continued support of the fourth estate that gave us the moral courage to continue our fight against injustice, not a single human rights organization provided any help to us despite seeking it. The Amnesty International meekly expressed its helplessness while the UNHRC never cared to reply.

Although the decision of the Supreme Court of Spain revolts against justice and fair play, we have not given up hope and resolve to fight against the tyranny of the false fight against terrorism that actually terrorizes common people. Insha Allah, truth & justice shall prevail.

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Testimony Tamasha

Will the testimony of a person be admitted in the court of law if he forgets the name of the person whom he claims to be his leader in masterminding a terror plot?

Will a person be sentenced if the only witness does not even take his name or implicate him?

Will any person be implicated if some faceless voice gives contradictory statements?

One may reply with a resounding NO to all the 3 questions, but a Spanish court thinks otherwise. Accepting the evidence of a voice that never utters Roshan Jamal Khan’s name or deposes against him, the Spanish court has disgraced law & justice by convicting him.

Throughout his testimony the sole witness, F-1, makes a statement first and alters it later. In the beginning, when asked for the name of the organisation that he was working for, he replies that it is the same organisation that sent him to Waziristan & Afghanistan for training. He doesn't name the organisation (Testimony Video-1, 13:55). Around 10 minutes later, he is once again asked the name of the organisation. He replies that it is Al-Qaida (TV-1, 24:05).

During the later parts of the testimony (TV-3, 19:15), F-1 says that he informed his French police friend by calling from his mobile phone. Later (TV-3, 1:07:45), he clarifies that he made the call using a calling card that was provided to him earlier and which can be used with his SIM card.

This changing of statements gives rise to the suspicion of F-1 being tutored by the Spanish police before the testimony and being prompted or deliberately being asked the same questions to correct the wrong replies given earlier. The correction of the name of Baitullah Mehsud from Abdullah Mehsud, the remembering of the name of Maulana Maroof and clarifying that Maulana Ashraf is the same person as Maulana Maroof, are some instances of such lapses or rather the truth being blurted out instead of the lie being recited.

When asked of the relationship of Baitullah Mehsud with the organisation that he was working for, F-1 says that the organisation was working under the instructions of Baitullah Mehsud (TV-1, 18:40). A little later, when he is asked the name of the organisation, F-1 says that it is Al-Qaida. This claim flies in the face of NEFA’s video interview of the spokesperson of Tehrik-e-Taliban Pakistan, in which Maulvi Omar says that Baitullah Mehsud leads Tehrik-e-Taliban Pakistan and that Al-Qaida has its own administrators & decision makers. The conviction order of the court also mentions this (pg. 10).

The testimony of F-1 is a blatant lie riddled with contradictions and is wholly unbelievable. Never once does Hashim Iqbal alias Ahmad (the protected witness, F-1) mentions Tehrik-e-Taliban Pakistan nor does he utters the name of Roshan Jamal Khan. So, which terror group has Roshan Jamal Khan been convicted for associating with?

Points to Ponder

1. At the very beginning of the testimony, F-1 says that he arrived in Barcelona from France on 15th January and has the train ticket with him. At another point, he narrates the day-to-day activity from 15th January till the last day (18th January) when the arrests were made. But, narrates incidents of only 15th January, the next day i.e. 16th and the last day, i.e. 18th. What happened on 17th? As usual, he is given a chance to correct his date of arrival later.

2. F-1 claims throughout his testimony that Maulana Maroof knows all the details of the terror plan even as he himself reveals the plan gradually. Whenever asked how he knows about it, he replies that Maulana Maroof told him.

3. At one point, F-1 says that he was aware that his bar acquaintance in France was a policeman whose job involved gleaning information. So, could a member of the biggest terror group of the world be so naïve as to give his mobile phone number to a policeman?

4. F-1 reveals that in the group he was called by his false name while his real name was used in public by his associates. Scratch, scratch! Scratch your head till you become bald.

5. F-1 feared that his family in Pakistan would be killed if he did anything to prevent the terror attack. So, finally, what made him to spill the beans by calling the police? Was the threat to his family over?

6. The threat perception seems to have been felt by F-1 after calling his wife in the evening and the phone call to the French policeman was made a few hours later at night. What factors were responsible during these few hours to lessen the fear of threat felt by F-1?

7. F-1 claims that he worked for his organisation for 3 years – first 1 ½ years delivering money to associates, the next 1 ½ years training in the use of arms and bomb making. At another points, he says that 3 years does not mean 36 months, but could also mean 30 months. How can such type of loose statements be admitted by any court as evidence?

Many, many more anomalies are there in the testimony. All cannot be listed over here. Suffice to say that the trial was a farce.

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NEFA's Nefarious Nexus

NEFA Foundation is an American non-profit organisation founded in the aftermath of 9/11 to assist governmental authorities with information in its war against terror.

NEFA did an analysis of the detention order on February 22, 2008 and concluded that there was little or no evidence to convict the detained group doubting even the authenticity of the little evidence. This analysis was done by Mr. Douglas Farah who had earlier worked as a correspondent of Washington Post.

NEFA being a reputed organization doing a highly responsible work, it, therefore, comes as a big surprise that they would upload a video interview conducted by a tribal hack as its exclusive interview. This dubious, exclusive video interview is that of Maulvi Omar that was considered as major evidence to convict Roshan Jamal Khan.

As mentioned in the conviction order of the Spanish court, this video interview was conducted on behalf of NEFA’s senior investigator, Claudio Franco, ( nationality not mentioned) by his unnamed friend (nationality not mentioned again ) on August 1, 2008. The video quality, as can be seen, is bad. A mobile phone camera seems to have been used for the recording. Audio-video synchronization is not clear. The format of the video is .flv . The language in which the interview is conducted is Pashto. English sub-titles are provided.

As this was a criminal trial, every minute detail had to be taken into consideration. We have known of criminal cases where, to implicate people for murder, blood of A group is mixed with blood of group B to get blood of group AB ( TOI ). So, let’s examine the authenticity of the video which the judgment order has conveniently relied upon to convict Roshan Jamal Khan.

Claudio Franco is a writer as well as a documentary producer. That means he has enough knowledge to easily manipulate videos or even create them on computers (desktop production).

The video format is .flv. This means that the video is in Flash format. I wonder if any camera in the world records in Flash format. Now, we have to know what camera was used to shoot the video. The model number of the camera. Whether the camera allows shooting in the .flv format? If not, then, in what format the recording was done? What software was used to convert from the recorded format to .flv format? Whether the camera was digital or analog? If analog, then, .flv format is simply not possible. If digital, then what was the recording storage media – whether memory card or CD or digital tape?

The conviction order says that the video is not doctored. So, does the camera has a feature by which the audio is translated into another language and display sub-titles? All these questions are from a layman like me. They may sound silly, but are very crucial in cases of such magnitude and should be thoroughly investigated before holding anyone guilty beyond reasonable doubt.

Now, assuming the video was not doctored, what are the other factors that should be investigated to prove its authenticity?

The interview was conducted on 1st August, 2008 in Bajaur that is located on the north side border of Afpak. On 6th August, US & Pakistani forces launched an attack on Bajaur. Besides, not mentioning the name of the tribal journalist who, supposedly, did the interview, the judgment order is also silent on the exact time of the interview and the process by which it reached NEFA considering that Bajaur was depopulated by heavy shelling from 6th August onwards. The video was uploaded on August 29, 2008 on NEFA’s website.

The tribal journalist who did the interview was not summoned and questioned by the court. How can a trial prove conclusively that the interview is authentic without examining the person who did the interview? How can this video become admissible evidence without questioning the actual interviewer? In a civilized and advanced system of jurisprudence, convictions should not be based on media reports or faceless voices. All evidence should be examined and proved in the court of law.

One question that agitates the mind is whether Spain funded NEFA’s video in question? This question arises because NEFA seeks funds from one & all and there is no way of knowing about an American organisation’s income & expenses. It claims to work with many US agencies and ‘ “Connect the Dots” by delivering timely and highly sensitive information to government agencies to aid in their anti-terrorism efforts’. It isn’t just an independent agency working for the elimination of terror from the world. It seems to be a front for US intelligence concerned only with protecting America from terror.

The reputation of not just NEFA but, the credibility of all the three players – Claudio Franco, the tribal hack & the tribal chief - connected with the video is also questionable. There’s reason to suspect the credibility of these three persons as there is no mention of the Barcelona terror plot in a video of May, 2008. Was the tribal chief paid to make the statement about the Barcelona terror plot? Or, was he returning the favour for getting free publicity through a western agency that would make him notorious and increase his clout?

We all know how heads of states invent lies and raise spectre of WMD to attack oil-rich countries. One of them admitted recently about the false excuse and said that they would have invented some other lie to launch an attack. So, what stops Spain from inventing a terror plot to win elections? Or, from producing a video to convict a few persons?

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Paranoid Decision

Roshan Jamal Khan, after spending 22 months in a Spanish prison, has been sentenced for 8 and half years for praying in a mosque located in the Raval neighborhood of Barcelona, Spain.

Roshan Jamal Khan has no criminal past. After his arrest in Spain, the top, two investigative agencies of the Government of India, viz. Central Bureau of Investigation & Anti-Terrorism Squad (Maharashtra), investigated his credentials right from his college days till his travel to Spain. When these agencies did not find anything incriminatory against him, the Government of India cleared his name. ( Indian Express )

Roshan Jamal Khan was arrested from the Tariq bin Ziyad mosque on January 18, 2008. He was convicted on the charge of associating with terrorist groups on December 11, 2009. A copy of the court order in Spanish & English is provided for all to read while the rebuttal of the decisive factors leading to the conviction of Roshan follows :

• The word of just one witness (F-1) has been held as gospel truth against that of 11 others to send Roshan Jamal Khan to prison.
  


• No incriminating material was found on his person or at his residence in Spain.
  


• Roshan wasn’t under any surveillance. His movements were not suspicious nor were they tracked before he was arrested.
  


• His phone was not tapped nor are there any records of his conversations, either telephonic or otherwise, with the terrorist group that he has been associated with.
  


• The miniscule amount of pyrotechnic, explosive materials allegedly thrown in a trash can by another accused does not contain the fingerprints & genetic traces of the person accused of throwing it nor of Roshan Jamal Khan.
  


• The sole witness, F-1, had arrived from France just 2 days before the raid.
  


• The explosive materials were made in France.
  


• The fingerprints on the explosive materials were not compared with those of F-1.
  


• The miniscule amount of pyrotechnic, explosive material allegedly discovered during the raid on the mosque was the only incriminating material that the prosecution could produce even after 22 months of investigations. This gives rise to the doubt of the evidence being planted by F-1 so that it could be discovered during the raid.
  


• The telephonic conversation record of F-1 to his French friend informing him of the terror plan is not provided.
  


• The process of how F-1’s friend informed the Spanish authorities about the terror plans is not detailed.
  


• The video interview available on the internet and relied upon by the learned judges to implicate Roshan Jamal Khan has been conducted by an unknown person.
  


• Studios of Hollywood, Bollywood, Tollywood or even Mollywood, i.e. the Malegaon film industry, can produce such videos.
  


• Two persons, present during the raid, were not charged because, according to F-1, they were not present when the terror plans were discussed. But, that doesn’t rule out that they were not present when the plans were discussed in his absence.
  


• No particular motive has been imputed to Roshan Jamal Khan for associating with terror groups. It seems the fact that he is a devout Muslim and follows the basic tenets of Islam has been held as enough proof to associate him with terror groups.
  


• Roshan Jamal Khan was acquitted and absolved of the charge of possession of explosive materials that was attributed to another person.
  


• Roshan was also acquitted and absolved of the charge of conspiring to indulge in terror acts along with all other accused.
  


• He was convicted only on the charge of associating with terror groups the substantiation of which can be said to be invalid and erroneous.
  

The case lacks strength and should have collapsed on its own even without any defence. The learned judges should have dismissed it as a case of paranoia due to the 2004 Madrid train bombings.

One of the major rules of jurisprudence is that a charge should be proved beyond reasonable doubt. If that cannot be done, then the benefit of doubt should be given to the accused. In Roshan Jamal Khan’s case, this wasn’t done.

Justice should not only be done but also seen to be done. In Spain, it has been subverted.

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Motive For Association

Born and brought up in a cosmopolitan area of cosmopolitan Bombay, Roshan Jamal Khan did his graduation from the prestigious St. Xavier’s College of Bombay. The area where Roshan grew up has Christians, Hindus, Muslims and Parsis in equal numbers. As such, Roshan never faced any sort of discrimination in his life.

Even during the worst ever riot of independent India in the aftermath of the destruction of Babri Mosque, when the rest of India was smoldering, this area remained peaceful. Life went on as usual thereafter, too.

Roshan was largely associated with the travel industry. He has worked for a travel agency in Mumbai and Kuwait. While working for the travel agency in Kuwait, he was given an appreciation letter by the American Embassy for his work. His younger brother has worked for the US consulate in Mumbai as a security officer.

Roshan has six children; all of whom were under 18 and still in school when he was arrested in January 2008. There is nothing that could seemingly influence him to associate with terror groups. Especially, considering his young children – 2 daughters & 4 sons – whose future no father would like to jeopardize by undertaking any illegal or criminal activity leave alone indulging in terror acts.

Roshan Jamal Khan has no criminal past. After his arrest in Spain, the top, two investigative agencies of the Government of India, viz. Central Bureau of Investigation & Anti-Terrorism Squad (Maharashtra), investigated his credentials right from his college days till his travel to Spain. When these agencies did not find anything incriminatory against him, the Government of India cleared his name (Indian Express).

The Spanish police couldn’t produce any evidence to implicate Roshan for associating with terror except for the word of an unknown, protected witness – may be imaginary. No substance was found on his person or at his residence. He wasn’t under any surveillance. His movements were not suspicious nor were they tracked before he was arrested. He was in Spain to explore trade in olives.

Staying in a 5-star hotel where terrorists are holed up cannot be held as a reason for accusing other guests of the hotel for associating with terror. Similarly, praying in a mosque, or attending a congregation in a church, along side a person of dubious dealings cannot be a rationale for associating any person with terror.

It should be noted that no crime was committed. It was only on the basis of a fantasy of a wannabe James Bond that it was surmised that a terror attack was imminent on the Barcelona Metro. Thus, the police supposedly got into the act to foil it.

So, what did the Spanish authorities – the police, the prosecution and the judiciary – impute as motives for Roshan Jamal Khan to associate with terror and thereby sentence him to 8 and a half years?

Were the Spanish authorities subjected to an overdose of the film “Minority Report”?

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(T)error Order

In a pre-trial detention order (Detention Order PDF, pg. 33-40). on 23rd January, 2008, the central court of Spain detained Roshan Jamal Khan on the following grounds (pg. 38) :

a) To ensure his presence during the process of investigation as the risk of flight is rationally inferred;

b) To prevent the concealment, alteration or destruction of sources of relevant evidence for the prosecution;

c) To prevent the risk of the accused committing other criminal acts.

The order further states that in assessing these criteria for detention, the credentials of the accused and his family background has to be taken into consideration.

It can be safely asserted that the above three criteria are not applicable to Roshan Jamal Khan for the following reasons :

a) i. As the 3 month Schengen Visa of Roshan Jamal Khan expired on 1-12-07 before he could complete his work, he applied for extension of it with the concerned authorities to extend his stay in Spain. He had also visited Spain in the year 2005.

ii. He was staying with his brother-in-law, Mr. Amanullah Khan, who is living in Spain since the past 7 years.

iii. The Spanish authorities can impound his passport (which it has not done so far) and he would be happy to stay in Spain as a free man during the process of the investigations.

Considering the above, it can be safely argued that the risk of flight is eliminated.


b) i. The mosque is a public prayer place. Just the mere presence of Roshan Jamal Khan during the raid on the mosque when terror suspects were arrested cannot, by any rationale, associate him with terror organizations.

ii. No explosive material was found on Roshan Jamal Khan or at the place of his residence. Illegal materials found in public places cannot be attributed to any person present at the time of their discovery.

iii. The general charge of being in possession of explosives and associating with terror organizations is simply not sustainable.

In light of the above facts, the fear of destruction of evidence seems farfetched.


c) i. Roshan Jamal Khan is an alumnus of the prestigious St. Xavier’s College, Mumbai. The American Embassy in Kuwait appreciated his work while he was a tour officer in Boodai Aviations, Kuwait.

ii. He was born and brought up in one of the most cosmopolitan areas of Mumbai. His father owns a milk dairy, which was established 5 decades ago, in the same area. (Hindustan Times)

iii. Roshan Jamal Khan has no criminal past. After his arrest in Spain, the top, two investigative agencies of the Government of India, viz. Central Bureau of Investigation & Anti-Terrorism Squad, investigated his credentials right from his college days till his travel to Spain. When these agencies did not find anything incriminatory against him, the Government of India cleared his name (Indian Express).

Considering the clean credentials of Roshan Jamal Khan, the apprehension that he may commit other criminal acts is unreasonable.

Despite this the Spanish Government claims that he is associated with terror activities without producing a grain of evidence.

He was kept in custody for 5 months before being presented in the National Court in Madrid. Although, the august court recorded his statement, no charges were leveled against him by the prosecution.

It is feared that Roshan Jamal Khan will be implicated in false cases as his signatures have been taken on several Spanish documents, the contents of which he does not understand. Besides, he has also been given lawyers with whom he cannot communicate.

He is being kept in solitary confinement for nearly a year. The trial of his unspecified crime has still not started. This is a blatant violation of human rights.

No amount of pleading with the Spanish authorities has helped. Roshan Jamal Khan went to Spain for importing olive oil. But, the authorities in Spain converted the symbolic peace plant into an icon of terror.

The administration of justice is the firmest pillar of God

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Crime & Punishment - Spanish Style

Presumed guilty until proved innocent. That is what one understands seems to be the law in Spain after going through the letter of its consul-general, Mr. Cesar Alba.

Roshan Jamal Khan, who was detained by the Spanish Police in Barcelona on January 19, 2008 on charges of associating with terror organisations, will be completing a year in jail without trial. (USA Today)

On 30th March, 2008, Roshan’s wife, Mrs. Farida Jamal Khan, along with her brother-in-law, Mr. Mehboob Khan, presented a memo along with a flower bouquet to Mr. Cesar Alba seeking her husband’s release. Mr. Cesar Alba replied on 29th May stating the reasons for the detention of Roshan and assured that the Spanish laws will allow him to present “all the necessary evidence” to prove his innocence.

Outrageous! That’s what one would exclaim. First, Roshan is presumed guilty without being tried. Next, he is expected to present evidences to prove his innocence while being in prison.

Isn’t it a rule of justice all over the world that a person is presumed innocent until proved guilty? Isn’t it the duty of prosecuting authorities to gather evidences to prove a person guilty of a crime?

After his arrest in Barcelona, Spain, the top, two investigating agencies of the Government of India, viz. Central Bureau of Investigation & Anti-Terrorism Squad, investigated his credentials right from his college days till his travel to Spain. When these agencies did not find anything incriminatory against him, the Government of India cleared his name (Indian Express). What could be a more valid proof of Roshan's innocence than the clearance of his name by the investigating agencies of the Government of India? What more evidence does the Government of Spain require to release Roshan?

A recent report in the media regarding an Australian probe claimed that the Australian authorities regret charging Dr. Mohammad Haneef for terrorism. The probe recommends “sweeping changes to the Australian Federal Police, immigration intelligence and the nation’s anti-terrorism laws”.

Compare the Australian attitude with the Spanish authorities’ act of dancing to the tune of some lousy French crooner whose very credibility is doubtful. The Australian authorities regret the arrest of Dr. Haneef despite an incident of terror taking place. On the contrary, the Spanish authorities arrested Roshan on the basis of fantasy of some self-styled James Bond who wanted his 15 minutes of fame.

The imprisonment of Roshan without being proved guilty is a criminal act. It is a crime against humanity. No developed nation would commit such a crime. In fact, the standard of development of a country can be assessed by its treatment of people. And, Spain doesn’t seem to be a developed country. Or else, how can one justify punishment without crime? It’s barbaric, Matador.

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