Ineffective Inquest

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As a commission of Inquiry gets ready to probe the 17 cases of civilian killings since June 11, Kashmir Life takes a look at the powers of the commission, and the records of some past probes. 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Machil fake encounter in which three youth were lured to the LoC and killed as militants by a syndicate of ‘friendlies’ and the armed forces was apparently the first incident in recent months that began to stir Kashmir. The fake encounter took place on April 30, and the expos? came after around a fortnight. Authorities announced a magisterial probe. In the din over the fake encounter, another LoC “encounter” in which two porters were killed by “Pakistani fire” in the same sector could barely make a day’s front page news.

With the killing of teenager Tufail Matoo on June 11 by police, the scene of action shifted to the capital city. It was the Sopore and then back to Srinagar’s Dana Mazaar, then to Islamabad and then back to Srinagar on July 11 when four persons were killed in four separate incidents not de-linked from each other. Then it came the turn of Baramulla where a school boy was chased to death and another boy dying in firing on the mourning procession. The alleged death in custody of a Rafiabad youth is the last of 23 killings that took place in Kashmir triggering another bout of summer uprising.

Barring a few incidents, the government did announce probes – judicial and magisterial – in almost all cases. This was over and above the First Information Reports (FIR) that police routinely files, in certain cases, after a gruelling judicial intervention.

In Machil case, the police investigations are over and the case is with the court. In Islamabad triple murder, eight cops are shifted and one of them apparently detained for questioning by the Special investigations Team (SIT) that is probing it alongside a magisterial investigation that has reportedly submitted a 14-page report indicting the police. In rest of the cases, nothing much has moved other than the routine paper work.

As the situation went into a tailspin, pressure mounted on chief minister Omar Abdullah to involve all others in the unionist camp. Though boycotted by state’s main opposition Peoples’ Democratic Party (PDP), an all party meeting took place in Srinagar on July 12. With opposition from the BJP, the APM decided to have an “independent commission” to investigate all killings besides sending an all party delegation to the Prime Minister Dr Manmohan Singh seeking his intervention. Use of ‘independent’ was a major development. Finally, the cabinet announced setting up of a two-member commission comprising retired judges of the high court justices Syed Bashir-ud-Din and Y P Nargotra. They will investigate 17 deaths since July 11 (not 23 killings since May 30) and report within three months. Bashir-ud-Din is already heading the SHRC and would be the head of the two-member penal. He was earlier supposed to probe into the series of killings in Sopore – something he is yet to do.

Since 1988 when the twin blasts in the city (CTO and Srinagar Club) marked the beginning of militancy in Kashmir, deaths and destruction became a routine. Common people suffered the worst. But whenever justifying the killing became a problem for the government, they took the probes and special investigations route.

FIRs registered against various security agencies and militants, everybody knows, are in tens of thousands. This despite the fact, that at the peak of militancy, registering an FIR against police or security agency was a highly restricted affair. Some people fought odds and managed judicial intervention to get the luxury of registering an FIR. Even Tufail Mattoo’s family had to take this gruelling route recently.

 

 

 

 

 

 

 

 

 

 

 

 

 

But it will be a researcher’s nightmare to get the exact count of the probes – judicial, magisterial, departmental – and special investigations that the government in Srinagar announced since the amorphous days of militancy. Nobody will have ever an access to the court martial proceedings and the enquiries ordered by paramilitaries – BSF, CRPF, ITBP, SSB – on issues involving their personnel.

In August 2007 Taj Mohi-ud-Din speaking on behalf of the then Home (Chief) Minister informed the state legislature that during the governor’s rule (1990-96) enquiries were ordered in as many as 229 cases. In the NC government that replaced the gubernatorial regime (1996-2002) 67 enquiries were ordered, he said. By then (August 31, 2007), he said the coalition government (PDP-Congress) had ordered 57 magisterial enquires – three judicial and 54 magisterial.

The disclosures were in response to outbursts by NC leader Ali M Sagar, and were an embarrassment to the PDP-Congress coalition.

“In September 2005 the government informed one house that 87 enquiries were ordered while another house was informed that only 11 were ordered,” Sagar thundered with all the responses in his hand. “In August (2007), you put the number at 57”.  He threatened moving a privilege motion. Abdul Rehman Veeri, then junior home minister had, in fact, informed the house on September 28, 2005 that their government has appointed 87 magisterial enquiries in last three years.

Yet another report (see Kashmir Times April 13, 2009) suggested that the Congress-PDP coalition government announced a total of 105 probes – 77 by Mufti Sayeed and 28 by Ghulam Nabi Azad. Another six were announced during the governor’s rule (July 7, 2007 – January 5, 2009).  Which of these accounts are  correct, if any, is hard to tell.

It is a process that continued throughout from the amorphous years of militancy. In his widely read treatise ‘My Frozen Turbulence in Kashmir’, Jagmohan has almost used police intelligence’s entire logbook about the arrests, incidents and recoveries. But he has not offered any detailed explanation to the five major civilian massacres that took place in his regime.

Jagmohan started with the Gawkadal massacre. On January 21, 1990 when a huge procession defying curfew came out from uptown Srinagar, they were stopped at the culvert connecting Basantbagh with Gawkadal. They were fired upon killing over fifty people as over 200 skidded with injuries. Some jumped into the river to survive.

It was the first time in the history of Police Control Room that “there were heaps of corpses” forcing at least one of the middle-rung police officers to survive on sedatives for as long as six months. There were instances of surviving people being recovered from under the heaps of dead.

A reporter visited the Karalkhud police post (Kashmir Times- Jan 23, 2002) for a follow up. To his utter surprise he found only the FIR (3 of 1990) lodged. It lacked even details of dead or injured or the particular army unit that was involved in the shootout. There was no investigation, said the officials “as the case file was taken by the then DO (division officer), ASI Triloki Nath with him when he migrated to Jammu in March 1990”. No responsibility fixed so far.

 

 

 

 

 

 

 

 

 

 

 

 

Barely four days after the Gawkadal massacre, the BSF posted in north Kashmir Handwara town opened fire in response to a sonic boom of an aircraft – 26 civilians including National Conference’s sitting member to the upper house Ghulam Rasool Malik were killed, some of them roasted alive. The township was set afire. Just an FIR and it was over.

But it did not stop processions anywhere. Mass uprising was at its peak and everyday Srinagar will play host to hundreds of thousands of Azaadi seeking processions marching to the United Nations Military Observers Group (UNMOGIP). March 1, 1990 sealed the coffin of peaceful demonstrations when demonstrators on cities two extremes – Tengpora and Zakoora – were fired upon killing 14 and 18 respectively.

Global condemnations forced Raj Bhawan to announce a probe by Lt Gen M A Zaki, the then Commander of the Srinagar based 15-Corps. Within three days he ruled the firing was in retaliation to the protesters attack on army school bus! It was the Hawal massacre – CRPF firing on the mourners carrying the corpse of Mirwaiz Mohammad Farooq – in which 47 were killed that sealed Jagmohan’s fate.

But that did not stop the either the killings or the fashion of announcing enquiries. Incidents of civilian killings continued under the new regime but the goriest of them was Mashali Mohalla near Hawal. Reacting to a militant ambush, a BSF additional DIG J K Sharma led a belated raid and barged into the residential houses, dragging families out and killing them. These included a family that was nearly wiped out. No magisterial probes but the widespread condemnation forced BSF to go for an internal enquiry. Nobody knew the results of the inquiry till Swati Chaturvedi of The Indian Express published the excerpts on July 2, 1998.

“Houses were set on fire, ammunition and arms were “planted” in the homes of the victims and one woman, who, had minutes ago seen her husband being shot down by the BSF jawans, molested,” she reported. Quoting BSF records, Swati wrote, there are eyewitness accounts of BSF personnel confessing that it was the DIG himself who gave the chilling “Aag lagao. Mere ko dead body chahiye (Set fire, I want dead bodies)” order to his men. ….”

Mehbooba, one of the widows had told BSF inquiry that after BSF broke open the door and barged in, crying “Pakistani kutto, bahar ajayo (Pakistani dogs, come out)”, they ripped off her clothes and shot dead her husband. While in one room her youngest son, Aijaz was dragged out from under the table and killed, in another room her another son Muzzafar and a guest Abdul Rahman were bleeding. “Ten minutes later, a turbaned BSF officer returned,” she reported. “Seeing a new face in uniform, Mehbooba ran wailing to him, only to be shot at on the left side of her chest. She wrapped a quilt around herself and lay near the body of her husband.”

Taslima, whose father and two brothers were killed by Sharma’s team also told BSF inqury that her clothes were ripped but a whistle signalling end of the “operation” saved her.

“… The youngest witness for the BSF’s court of inquiry is Baby Jaan, Farooq Baig’s 15-year old daughter. She told the court how the jawans tried to molest her when she was cowering under the bed. A BSF officer pulled her out, but disgusted with her hysterical screaming, cut open her right cheek with a knife, spat on her and left …”

There were four BSF men along with the ADIG held responsible for various acts of omission and commission. But it is not known, if they were convicted at all.

Then it was a mixed deployment. Every security agency was in ‘operation’ and the state police was merely managing the count and identities of the dead. CRPF was managing most of the city. In the year 1991, for instance, Srinagar city witnessed three major massacres – Magharmal Bagh, and Chota Bazar involving CRPF and the one at Khanyar carried out by BSF. CRPF dismissed four of its personnel for the 11 civilian killings in Magharmal Bagh. In 2006, they were reinstated by a Delhi High Court order!

State government sent the cases of Khanyar (18 killings) and Chotabazar (21 killings) to the CBI. While in the latter case the CBI filed a charge-sheet against 12 personnel of the CRPF in 1995, the fate of Khanyar case is still not known.

An enquiry can deliver as Justice (retd) S R Pandian did in the case of Brakpora massacre. Even CBI enquiry into the Panchalthan fake encounter identified the accused and the case is still being fought under over the jurisdiction of Armed Forces Special Powers Act.

A Commission of Inquiry can also go against the fundamental realities as happened in the Haigam killing case in which Justice (retd) O P Sharma upheld the position of the army that the people had blocked the road and the convoys had to pass. Army on February 17, 2001 had killed four persons – who were demanding the corpse of a slain JKLF activist Jalil Shah – and left another 17 injured. People in Srinagar violated the curfew restrictions and a Military Intelligence sleuth, shot dead a young protester Javed A Nath in Maisuma.

The Commission charged the protesting crowd of criminal offences under section 341 and 342 RPC for unlawful assembly and blocking the road traffic in spite of prohibitory orders. “Since the demonstrators resisted the use of physical force and even cane charge had no effect on them, firing (on the crowd) became necessary,” Sharma report said. He observed that no action can be taken against the MI man Lance Naik Rajiv Kumar because he was empowered under section 4(a) of J&K Armed Forces (Special Powers) Act, 1990 to use force!

A commission may even not take off after an announcement or, a probe can go haywire as well. BSF, for instance, fired upon a huge procession in the highway township of Bijbehara on October 22, 1993 killing 37 civilians and injuring 73. While the state inquiry commission found 11 personnel including a sub-inspector of BSF 74-Bn involved, a parallel NHRC probe held 14 ranks responsible.

BSF started trying its personnel in the General Security Force Court (GSFC) but were subsequently acquitted. NHRC that was following the case sought to examine the transcripts of the trials in order to satisfy itself but the government refused to offer details. In November 1994 it was informed that sub-inspector Malhar Singh was tried under charges of murder but was acquitted. Suspecting a fishy affair, NHRC finally went to the Supreme Court in 1998 seeking access to the files of Staff Court Of Inquiry (SCOI) conducted by Border Security Force and General Security Force Court (GSFC) saying the government rejected its earlier requests taking umbrage under the BSF Act. And the case is stuck there still.

Even Sopore makes an interesting case study. The north Kashmir apple-town has remained a politically anti-establishment belt throughout. Even during militancy it was termed a ‘liberated zone’ for a long time.

The town saw a series of incidents including massacres and destruction of public property. But the incident of January 6, 1993 was the most horrible.
It all started with a militant taking away an unmanned Light Machine Gun belonging to a 94 Bn BSF jawan, who was basking in the sun. In retaliation, the BSF personnel ran amuck. They killed 42 civilians, mostly roasted alive, injured 16 civilians and set afire 37 residential and 352 commercial structures. The town was smouldering for many days.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Governor’s administration took the inquiry route to douse the flames of anger. They appointed Justice (retd) Amarjit Choudhary as head on a judicial commission. The commission’s office set shop in Church Lane, Sonawar and it was operating for around half a year. But it was without the presiding officer because Justice Choudhary never came to Srinagar though the term of commission was extended twice. People, by that time, had decided against deposing before the commission.

The government finally handed over the case to the CBI. The only records available about this major incident are two moth-eaten FIRs in the police station. Its files are with the central investigating agency. Nobody in the town knows if any investigator from the federal agency has visited the town.
Similarly on April 10, 1993,  114 Bn of BSF set afire 59 houses, 190 shops, 53 godowns, two office complexes besides killing a number of civilians in Lal Chowk Srinagar. Buildings got reconstructed but the probe that the state government announced is yet to see the light of the day!

There are instances where the witnesses were pressurized or the probe was delayed so much that the people lose interest. It happened in case of Arin massacre in Bandipore where on September 19, 1997, 11 villagers were killed when artillery shells landed at their homes. BSF and RR accused each other. State announced magisterial enquiry to be conducted by DC Baramulla who continued the proceedings but never completed it. Dr Ghulam Qadir Wani, who was instrumental in pressurizing the government to continue the probe was killed mysteriously.

It was not Kashmir alone. Scores of incidents took place in Jammu that invited institution of special investigations. At least in one case the situation compelled the then Prime Minister I K Gujral to visit a particular spot of the massacre but that did not help victims get justice.

In 1998, the Eid was celebrated throughout the state on January 30, 1998. In remote village of Qalantara in Doda, people visited the mosques for prayers. The security forces laid a cordon of the village and started searches. The villagers protested and it triggered a standoff. Eventually the security forces opened fire killing nine while 40 others were injured, seven of them with crippling effects.

To prevent a reaction in other parts of the state, authorities announced a magisterial enquiry through SDM Kishtwar and the army also set up a parallel investigation. Prime Minister Gujral visited the village of February 9 and offered nation’s apologies.

On September 28, 2001 the state government told the state legislature in a written response that on the basis on the enquiry report that a case FIR No 1 of 1998 under section 302, 307 RPC was registered against the personnel of 26 RR at police station Marwah and the case stands challaned in the court of law against seven army personnel on June 28, 1999. Nobody knows what happened to the case.

In the Salian massacre in Surankote that took place in the night of August 3, 1998 a family annihilated – 19 members – leaving just one person alive who had fled when attackers came with guns, and axes.

It was an plain horror show with a plot scripted by the security agencies. Police announced that a militant Imtiaz escapes from custody. A day after police source Zakir is found dead. Both belong to the same village. In the night, police, army and Zakir’s family swoops on Imtiaz’s family killing 19 with 10 minutes. The only survivor is Muhammad Shabir Sheikh.

Sheikh told Greater Kashmir (October 3, 2006) that as the gang of marauders barged into his home, he fled to neighbouring maize fields but was watching what was happening. “In less than 10 minutes all of them were silenced. In the morning when I went to the house I slipped over on the blood-splattered floors of uncle’s house. Father’s left wrist had been sliced off his arm; mother’s face had been axed;

uncle and aunt had been hacked with an axe. I just ran away,” Shabir, then 16, was quoted saying. Among the dead was Shabir’s pregnant sister, Zareena, 24, married a year back. Her unborn child would round up the figure of the massacred to 20, if counted. The axe was found embedded in the ribcage of Shabir’s another sister, 12-year old Javeda, so stubbornly that villagers couldn’t free it. “The doctors removed it later during post-mortem,” Shabir said.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

He lost almost everybody – his father, mother, four sisters, two uncles, an aunt, nine cousins and a sister-in-law. But the priority of police, after they found him alive was to get him make his fugitive militant cousin surrender! While he was “protected” under tight guard, the police blasted the quarter he lived in but he survived.

Chief Minister Dr Farooq Abdullah and Defence Minister George Fernandes promised Sheikh that action will be taken against the guilty. The then NHRC chief Justice (retd) G A Kuchay probed the case and held 9-Para unit of the army responsible. Identifying the accused was left to the local police! But “police didn’t write in FIR even what we told them. They put the blame on militants,” Sheikh told the newspaper.

But the larger issue is whether actions follows after culpability of personnel is proved. Ideally, it must. But the problem is that not many of the actions are in public domain. The governments in Srinagar and New Delhi are routinely dishing out statistics about the actions various security agencies have taken in cases of violations of human rights.

Abdul Rehman Veeri, then minister, informed assembly (September 28, 2005) that 68 BSF personnel and 131 soldiers were punished by the respective agencies since 1990. The then commander of 15-corps Lt Gen A S Sekhon told reporters in Awantipore (Nov 1, 07) that they have punished 85 soldiers for their involvement in human rights violations in the state since 1990. Lt Gen Mukesh Sabarwal, the then GoC 15-corps told reporters in Srinagar (May 16, 08) that they have punished 80 personnel in last 19 years and punishments range from dismissal to ten years rigorous imprisonment. A PTI report (May 22, 2008) quoting state government sources said action was initiated against 223 personnel including 90 from army, 82 from various paramilitaries and 51 cops.

Writing in The Times of India (April 21, 2002), two veterans – Siddharth Varadarajan and Manoj Joshi – said BSF, for instance has a bad track record as compared to army. “In the early 1990s, the BSF was charged with the execution of innocents and torture. But in not a single case have the persons concerned been convicted,” they reported, “Even when the BSF has been forced to act, the sentences have been too lenient to act as a deterrent.”

In May 1990, the journalists reported, a bride Mubina Gani was taken off a bus by BSF men on the Anantnag-Kokernag road along with her maid. “Both were raped. The case created a furore and the BSF’s attempts to hush it up failed. As a result of a court martial, two constables were sentenced to just five year’s imprisonment and dismissed from service, while two head constables punished with forfeiture of seniority and reduction in rank,” they added.

The Commission of Inquiry is not having any great powers under the law of the land that would make it more effective and credible, in comparison, for instance to a police investigation. Zafar Meraj, a journalist and a law graduate reported (Kashmir Monitor July 30, 2010) that the Commission under the J&K Commission of Inquiry Act, 1962 is a civil court. “There is no room for Commission to pronounce judgments, pass orders, hold people guilty or award punishment to them,” he writes.

Clause (2) of Section 4 ‘declares’ that Commission cannot force or compel any person to give evidence derived from ‘unpublished’ official records, disclose any information made to him in official confidence or production of any document relating to the affairs of the State or any communication written in official confidence. The Commission lacks privileges under Section 123 of the Evidence Act.

Findings of the Commission, if any, have no legal sanction or standing and it is the sweet will of the executive, to accept those or throw the entire report of the commission in a dustbin. It is because the commission of inquiry “is not a Court for the purpose of section 195 Cr.P.C and prosecution (of those found guilty) cannot be launched on the basis of a complaint at the instance of the Inquiry Commission”.

Section 6 of the Act provides that no statement, made before the commission by any person (including those whose role and functioning is to be examined, probed), “shall subject him to, or be used against him in, any civil or criminal procedure, except a prosecution for giving false evidence by such statement”. It adds that report of the commission has ‘no evidentiary value in the trial of the criminal case’.

So is the two-member commission actually following the tracks of Justice (retd) Muzaffar Jan who probed Shopian twin murders, got tons of newsprint space and eventually added to the “fallen heros”. He, now, rarely picks his phone!

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