Why Yakub Memon's death sentence is surprising

Part I: The strange case of Yakub Memon

A well-informed source in the Indian intelligence community, who was associated with the action related to Dawood Ibrahim for many years, believes that while Dawood, Tiger Memon and the other accused -- who might still be in Pakistan -- deserve the most severe punishment, Yakub and other members of the Memon family may not merit the death penalty.

While there is conclusive evidence of the Memons' involvement in this act of terrorism at the instigation of Pakistan's ISI, the fact that Yakub repented his involvement and cooperated with the Indian security agencies should not have been overlooked.

India has evidence of Pakistan's involvement in the 1993 bomb blasts. A sensational piece of evidence was found when 'Wah Novel Industries' was found inscribed on the RDX consignments believed to have been sent from Islamabad to Tiger Memon in Mumbai. The CBI has claimed that Wah is an explosives manufacturing factory based in Islamabad's cantonment area and is controlled by the Pakistan army.

"Yakub never participated in military training in Pakistan," says his lawyer Satish Kanse. "He didn't plant bombs or RDX, nor did he take part in the landing of the weapons. Those who have been awarded the death penalty were involved in one of these deadly actions. The charges against Yakub don't involve any of these crimes."

Instead, Yakub gave the Indian security agencies an idea of the entire operation on the other side of the border, he helped the CBI in persuading some other members of the family, who were living in Pakistan under the ISI's protection, to come out and face the law.

He explained to them that instead of letting the ISI continue to manipulate them they should return to India.

Had Yakub not agreed to surrender, the CBI could not have tried any of the Memons.

Yakub was confident so he only pleaded that the CBI is wrong in saying that he was arrested in New Delhi. While asking for clemency in September 2006 he said he was arrested in Nepal and brought to India.

He does have serious charges against him. He was found guilty of conspiracy, facilitating and disbursing funds for terrorist acts and arranging tickets for other convicts who received arms and ammunition training in Pakistan.

Mainly, he had three charges against him.

One: He was convicted of financing the blasts through co-accused Mulchand Shah and the firm M/s Tejarat International owned by his absconding brother Ayub Memon who was in the hawala (money laundering) business with Shah.

Second, Yakub has been convicted for providing tickets to the co-accused to travel to Pakistan for arms training.

Third, he has been found guilty of possessing arms and ammunition and distributing them among the co-accused, besides purchasing the vehicles used in the explosions.

But in all these three charges for which he has been convicted, none of his co-accused has been given the death penalty; all of them have been given five to 14 years' jail terms -- or less -- for the same offence.

Kanse says the important question the Supreme Court will consider again is whether the apex court's guidelines -- regarding capital punishment only in the 'rarest of the rare' cases as laid down in the Bachchan Singh judgment in 1980 -- have been considered or not.

In the first charge, Yakub was found guilty of distributing illegal money along with Shah, who has been given five years of rigorous imprisonment. But what was not established was that he had routed it through M/s Tejarat International.

For the second crime of arranging air tickets through Altaf Ali of East-West Travels, Ali was given six years.

Judge Kode said Yakub arranged the tickets to send young boys to visit Dubai, from where they went to Pakistan for training.

In the third crime, Yakub told his family driver Rafique Madi to hand over two suitcases full of hand grenades to Ali. Yakub also purchased vehicles and requested Amjad Meherbaksh and Ali to store the suitcases filled with arms, ammunition and grenades.

Yakub denied these charges and said payments for the air tickets were made by Tiger. In the case of suitcase full of arms, one of the co-accused Amjad Meherbaksh was released by the Supreme Court, so the question of his involvement doesn't arise.

For all these three major charges, none of his co-accused has been awarded death.

'It is a coincidence that we had gone to Dubai a day before the blasts. There was nothing unusual about it because the family had business interests in Dubai and used to frequently visit the UAE,' Yakub told Judge Kode.

Meherbaksh was discharged but Ali was convicted and sentenced.

Judge Kode relied heavily on circumstantial evidence. He argued that the family lived together and it was not possible for the members not to know what was happening.

The judge believed Yakub was aware of the conspiracy and was party to it. Yakub claimed in his defence that his brother Tiger was a non-resident Indian and they had lukewarm relations. He said he never owned a car and that the cars used for the blasts belonged to the family.

The defendant didn't bring to the notice of the court the cooperation extended by him in persuading other members of his family to escape the ISI's clutches and face trial in India.

He probably thought he would get jail for some years and be able to lead a life as a free Indian citizen after serving his jail term.

Yakub had studied Indian laws, was business savvy and meticulous.

He knows the minute details of the mega trial and has been following it since his return to India in 1994.

Throughout his 13 years in jail he has been living in style, wearing good clothes, managing his money well and keeping himself up-to-date with information.

Mumbai newspapers have reported that he was the only accused to have a copy of the jail manual.

He strongly believed, as late as July 27 this year, that he would not be awarded the death sentence. On July 27, the day he was sentenced to death, he had asked Kanse to prepare three applications. One was for his sister-in-law Rubina, who had been given a life term. She was requesting time for her surrender till she got a copy of the court's judgment against her. Judge Kode did not accept her plea. Yakub came prepared for his two seriously ill brothers Essa and Yusuf, who are suffering from a brain tumour and schizophrenia respectively.

But he had not kept any application for himself ready -- because he wasn't expecting the death sentence.

Throughout the last 13 years he has shouted back, reacted angrily and created a scene in the court whenever he was bracketed with his brother Tiger by the court.

In 1996, when then TADA Judge J N Patel became livid over the Memon lawyers' alleged attempt to intimidate witnesses and warned that he would send all the Memons, including the women, to jail, Yakub banged his head against a wall and injured himself.

In September 2006, when he was convicted, Yakub created a scene in court because his carefully constructed legal case and his life after the blasts was falling apart.

'This is a total farce. My brother was right. He said my life is like the Hindi film Deewar,' he shouted in court on September 12, 2006, referring to the Bollywood classic starring Amitabh Bachchan and Shashi Kapoor as brothers -- one a criminal and the other a cop. 'You are making good people terrorists while people who are really doing the bombings are making you look like fools,' Yakub added.

He even tried to run away from the courtroom but was caught by the police.

On July 27 this year, Yakub once again created a scene in court as soon his death sentence was pronounced.

He didn't wait to hear further charges or details.

'My lord, forgive this man for he does not know what he is doing,' he screamed, quoting the Bible. 'I don't want to remain in this court any longer.'

'Yakub is being hanged only because of the Memon tag. His surname has destroyed him,' Rahin said in her interview.

"No one is asking to give a clean cheat to Yakub," says Kanse. "But the death penalty is too harsh in his case. I think he should have hope in the Supreme Court."

Judge Kode said he was not awarding the death sentence because of the 'close relationship' Yakub and his brothers shared with the absconding mastermind Tiger Memon. The judge insists there is evidence against each of them individually for their acts.

That means the 35 absconders in the case, including Dawood Ibrahim and Tiger Memon, would have also got the death penalty if they had faced trial. That would have meant 47 hangings in the case.

This is certainly the rarest of rare case in Indian legal history.