Fudging all the way

It is not the first time that fudging of samples for DNA profiling has surfaced in a case in Kashmir. DNA fudging made news first in the infamous Pathribal (Panchalthan) case of 2000, where the police officials were accused of changing blood samples sent for DNA profiling. Kashmir Life reports. 

Apart from the fact that National Conference is in the government, the Shopian case and Pathribal (Panchalthan) have striking resemblances.

It was actually the culmination of a chain of incidents that started with the visit of US president Bill Clinton. Barely hours before the visit would start officially, a group of gunmen in army uniforms barged into the dusky Chittisinghpora village (March 21, 2000), lined up men, sprayed bullets, mowing down 35 Sikhs. Only one survived with injuries.

It was a rude shock and the presence of Clinton in India gave the news a rare peg. The NDA government at New Delhi was on its toes to see a breakthrough. A manhunt led to indiscriminate arrests across south Kashmir with army and the state police’s Special Operations Group (SOG) in action. On March 26 police and army claimed to have killed a few militants in an encounter on a hillock at Panchalthan in Kothar valley of south Kashmir. In the evening, the newspapers in Srinagar got a black and white photograph of the slain and the police said the killed were the killers of Chattisinghpora Sikhs. Electronic media was rushed to the spot and were duly briefed by the top brass of police and army. Apparently, it marked the end of the case but it never was.

As many detained civilians failed to return home, protests became a routine. From the encounter site at Panchalthan, families retrieved caps, clothes and even sandals of their missing members, indicating the slain were civilians. Protests gathered momentum. One such protest was fired upon by police at Brakpora in Islamabad (April 3) killing eight civilian protestors and injuring 14 others, some of them crippled for life.

The three incidents gradually snowballed into a major crisis. Three personnel from state’s anti-militancy Special Operations Group (SOG) and four others from CRPF were indicted by Justice S R Pandian Commission of Inquiry that probed the Brakpora massacre. It suggested the state to investigate the other two incidents for getting to the bottom of things.

Though the roasted victims of Panchalthan “encounter” were exhumed and identified by their families, efforts to establish their identity through DNA fingerprinting brought another shock when the samples were found to have been fudged. Fresh samples were taken, and an inquiry instituted. Fresh samples established their identities as civilians.

Justice (Retd) G A Kuchhai Commission was appointed to investigate the fudging aspect of the case. Appointed on March 15, 2002, it submitted its report in December 2002 after two extensions. The commission held then SSP Farooq Khan responsible for the fudging.

SSP Anantnag Farooq Khan
SSP Anantnag Farooq Khan

In its report that was never made public, Justice Kuchhai has recorded Bar Association Islamabad Muneer-ud-Din Shawl saying: “… On 3rd April 2000, when he (Shawl) went to the District Magistrate Anantnag (Islamabad), to collect the copy of the order for exhuming the (five) bodies, he says then SSP Anantnag, Shri Farooq Khan and then DIG Police, Anantnag, Raja Aijaz Ali were present there. Shri Farooq Khan was not yielding to the demand that orders for exhumation of the bodies be passed by the District Magistrate, and even asked him (Mr. Shawl) to play a role to get the situation defused. Shri Khan, ultimately agreed on the condition that the identification of the deceased shall be made subject to the outcome of the DNA test. When Raja Aijaz Ali DIG asked him as to why he wanted the identification to be subject to outcome of DNA test, Shri Farooq Khan, in his (Mr Shawl’s) presence replied that let the identification be made subject to DNA test as the bodies were burnt beyond recognition and he will take care of other things. He (Mr Shawl) could not understand as to what he (Shri Farooq Khan) meant by the words “other things” at the time being happy for order to exhume the bodies…”

Dr Pawan Kotwal, the then District Magistrate deposed before the Commission saying that SSP not only disputed the exhumation and identification on “visual inspection” but also served him a court order suggesting the case was sub-judice.

In his conclusions (page 34) Kuchhai says that only those elements have ensured the samples are proved fake “whose skin will be touched”. The reports concludes: “The circumstances which led to this presumption or attempts by Shri Farooq Khan, then SSP, to thwart an order by Dr Pawan Kotwal, District Magistrate for exhumation of dead bodies, drawing his attention that matter being sub-judice due to order of enquiry by CJM, Anantnag, further suggesting DM that exhumation should be subject to DNA test which he will take care, coupled with participation of Shri Farooq Khan (then SSP Anantnag) in the videography by media on spot. As per official cassette called and played before the Commission, the killing of five foreign militants is made public by him side by side by the army. All these factors leave little doubt that Shri Farooq Khan then SSP, might have managed behind the scene that blood samples so collected turned fake by indirect methods” (page 34).

But how was all this managed. Kuchhai had some answers. The doctor that led the team who collected samples of the slain and later the blood samples was Dr Balbir Kour, now retired. The Commission report reads in its conclusions (page 36):  “The story of blood sample collection from living kin of deceased under the supervision of Dr Kour is a sad affair from the very beginning till end from whichever angle it is looked upon. Why Dr Kour, did undertake duty of blood sample collection when admittedly neither she nor members of her team had past experience of collecting such samples for DNA fingerprinting. As per her admission, it was their first such experience.”

The story goes on. “Another question to be posed to Dr Kour is why she did not take trained and trusted technicians along from Srinagar, allowing technicians provided on spot by the police to collect blood samples, who were not even known to her, only trusting police identification of Shri Rehman, to keep the room open even for a layman to suggest that police has been given free hand to play their part to safeguard deep interests and exploit the liberty of permission to introduce technicians of their choice just to accommodate the designs of those interested to negative the results of samples so collected. Dr Kour, heading the team, did not bother to screen the integrity of technicians, if she ignored this aspect, for whom, rather at her own risk and cost.”

The commission discloses that it was a nursing orderly Shafat Ahmad whose testimony “adds fuel to the blood samples” by stating “in addition to equipment taken along by doctors to the site, syringes used for blood collection were furnished from the spot, which takes away the official trust rather sanctity of performing the official duty”. The commission concludes: “The syringes furnished on the spot can be tainted to turn the truth into falsehood, as has happened in this case”. Even later at the Government Medical College, the samples were kept at a place that had access to many people and the samples were not certified by a magistrate.

The government did not leak the findings but did not sit silent as well. National Conference government shifted Farooq Khan from Islamabad. The change of guard brought a new dispensation. Farooq was placed under suspension and the case was handed over to the CBI on February 14, 2003. It filed a charge sheet before the Chief Judicial Magistrate Srinagar on May 12, 2005 indicting seven officers of the Army’s counter-insurgency Rashtriya Rifles (RR-7) including Colonel Ajay Saxena, Major D.P. Singh, Company Commander Maj. Suresh Sharma and Captain Amit Saxena for acts punishable for hatching criminal conspiracy (120-B RPC), kidnapping with intention to murder (364), attempt to murder (307), murder (302), culpable homicide by causing death of a person other than person whose death was intended (301) and destroying the evidence (201).

Army invoked its immunity under law besides CBI’s failure in getting prior sanction from central government. CBI insisted that impunity under law can not be extended to the accused because they were not “conducting any legitimate military operation in good faith”. Eventually, the army approached the apex court and got the proceedings stayed on September 13, 2007. Almost two years have passed now and there has been no progress in the case. It is CBI versus army at the apex court and the state government is merely a spectator. Interestingly, the army has cited the same stay order to halt any trial proceedings in two cases of sensational fake encounters involving its men – the killing of Showkat Ahmad Khan, an Imam from Banihal and Ghulam Nabi Wani of Bandipore.

SSP Farooq Khan was exonerated by the CBI, and later reinstated. He was later promoted as Deputy Inspector General.  But Pathribal investigations have certain strange similarities with Shopain. When Justice Kuchhai investigated the fudging case, he almost exonerated Dr Balbir Kour and implicated police officer Farooq Khan. As the CBI took over, it exonerated Khan and implicated army. The army went to the court, invoked the impunity under law and stayed proceedings.

In Shopian case, the judicial commission recommended Dr Shaheen’s suspension citing her failure to conduct the post-mortem professionally. She deposed saying her brief was to go for gynaecological examination (now it seems, even the gynaecological examinations she conducted had faults) and nothing more. Her report was the first evidence that an offence – rape – has actually taken place. The murder charges were included in the FIR later. Now the SIT initiated investigations found the CFSL certifying the samples to be fake. Apparently, she and the other two doctors are in the dock. Once she is implicated, there will be no case to investigate at all.

WHAT NEXT?

When the uproar in the assembly forced speaker Lone to suspend question hour, the only question he would ask everybody is to suggest the way forward. Those who suggest CBI taking over the case included CPI (M) leader Yusuf Tarigami, NC’s law makers Nazir Gurezi and Saifullah Mir besides a Congressman from Doda. Others, who spoke on the issue included PDP leader Mehbooba Mufti, Rafi Mir, BJP’s Chaman Lal Gupta and Panthers Party’s Harsh Dev Singh, suggesting a mechanism within the state. “It is a systemic failure. You have let loose bureaucracy and the police. We do not need a CBI probe, let the High Court monitor it,” Engineer S Rashid said.

“Your viewpoint on the issue is not clear vis-a-vis the suggestions. I recommend that the CBI should probe the case in consultation with the High Court,” the speaker Lone ruled. Chief Minister was not in house and later Finance Minister Abdul Rahim Rather responded on behalf of him. The government has approached the High Court and its response is awaited. But PDP says the decision is “yet another attempt to cover up the brutality”. The party believes that the “CBI as an institution had suffered a serious damage to its image of impartiality in J&K as a result of its failure to reach truth in earlier cases like infamous sex scandal” so the case should not go to the CBI.

A senior police officer told Kashmir Life that “there is no other option”. He averred that while the police was in dock over the fudging for the second time in a decade, its credibility is at stake so an external agency should go for the investigations. But there are counterpoints. Many people think that handing over case to CBI will absolve the government and its various appendages of the responsibilities and the accountability. “We spend nearly 2000 crore rupees on police, why it should behave the way it is behaving in investigations?” people ask. Once the case goes to CBI, it becomes a central government affair with state having no option but to accept what it gets.

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