Judging the Victims!

Gulzar Peer’s acquittal shocked everybody including police. With fake Peer back behind bars and case listed in the High Court, Saima Bhat takes a look at the controversial judgment that bailed Peer out 

Gulzar Peer’s supporters protesting against his arrest. Pic: Bilal Bahadur
Gulzar Peer’s supporters protesting against his arrest.
Pic: Bilal Bahadur

On 12th February, 2015, the infamous faith-healer ‘Syed’ Gulzar ‘Peer’, who was facing rape charges, was honorably set free by the Principal Sessions Judge, Budgam. As the news of Gulzar Peer’s honouable acquittal reached his followers, quick arrangements were made for celebrations and his homecoming. A convoy of cars, mostly hired taxis, took Gulzar Peer to Nendwanpora village, where the fake healer stopped over for a night at one of his close aide’s house. In the meanwhile, at his Shamsabad seminary, which is spread over 4 kanals of land, devotes kept pouring in all day from different parts of valley to welcome their Rehbar (spiritual guide).

Next day, amid songs eulogizing Gulzar’s long life and contributions towards the society, a procession of around 200 devotees, brought him home from Nendwanpora village.

The entire Shamsabad village wore a festive look as large feast of traditional Kashmiri Wazwaan was prepared for his welcome.

But the celebrations turned out to be short-lived as state police, fearing public outrage, rearrested Gulzar Peer on 15th February 2015, just three days after his honourable acquittal by the court.

Before his re-arrest, Gulzar Peer addressed his followers and assured them that he would continue with his “mission” and soon false charge of rape will be dropped. A loud applause and slogans followed.

Interestingly, the court has acquitted Gulzar Peer as it found lack of evidence and discrepancy in police investigation.

But police has challenged his acquittal by knocking at the state High Court’s door. The deputy Advocate General has filed an appeal against the acquittal on February 26.  “The judgment of the Principal and District Sessions Judge is erroneous and based on the wrong assumption of facts,” the appeal filed by State Government reads.

Gulzar Peer was detained on May 21, 2013 by police after five girl accused him of committing rape on them and on several other girls studying at his residential seminary: Fatimah-al-Zohra (RA) Institute, named after Prophet Mohammad’s (SAW) daughter Fatimah (The Shining One), to learn “pure Islam” in central Kashmir’s Budgam district.

Police taking Gulzar Peer under custody
Police taking Gulzar Peer under custody

An FIR (40/2013) under section 376 RPC was registered against Bhat in police station Khansahab and from May 2013 he was behind the bar in Central Jail Srinagar.

But after spending 21 months in jail, Bhat was not proven guilty and he was acquitted. As per the judgment Syed Tauqeer, Principal and District Sessions judge Budgam, has said, “Considering the oral as well as other evidence brought on record, it can be safely concluded that the prosecution has miserably failed to prove the guilt of the accused persons beyond any shadow of doubt as is mandatory under criminal jurisprudence.”

But going through the judgment it seems the honourable judge was himself convinced at one point that accused Gulzar Peer was guilty of committing rape on five girls.

At the end of the 18 pieces of evidence from the prosecution side, the judgment reads, “Arguments u/s 273 Cr Pc were heard and entire evidence was perused minutely.  So far as accused No. 2, Ab Gani Ganie @ Shah Sahib and 4, Jabeena,  are concerned this was a case of no evidence against them as such they were acquitted by virtue of order dated 27.11.2014.

So far the other accused persons are concerned there was sufficient material against them as such they proceeded u/s 274 Cr Pc and their statement under section: 342 Cr Pc were recorded. The entire incriminating evidence was put to them. They pleaded not guilty and submitted that they want to adduce evidence in their defence.”

As per law, if there is incriminate evidence on record by the prosecution, then the statements are recorded as per the section 342 Cr Pc. It is recorded before the defence evidence is recorded. “If there was no evidence against the accused for which he was set free honourably then why section 342 was used?” asks a lawyer, wishing anonymity. “If there was ample evidence for section 342 then how and why accused was acquitted. Otherwise, he could have been released in the first go like other accused, without wasting the court’s precious time.”

Devils Intervention

Advocate Noor Mohammad Dar was the first public prosecutor in this infamous rape case till statements of witnesses’ against the accused were recorded. “The case was completely against the accused and his conviction was a matter of days because victim’s statements were perfect as per the law,” he says. Advocate Dar, however, refuses to comment on the recent judgment that acquitted Gulzar Peer honourably.

Advocate Dar left the case mid-way citing health issues, but another lawyer known to him says, “I guess he was afraid because after recording the victim’s statements Dar suffered a heart stroke. And moreover the Executive Magistrate, who did the seizure, also died before giving his statement. He is afraid that Gulzar Peer posses some supernatural powers.”

The case was later shifted to another prosecutor Advocate Sheikh Nayeem. Interestingly, the public prosecutor, advocate Sheikh Nayeem is the same who was caught red-handed by the State Vigilance Organization (SVO) while accepting the bribe in a murder case under FIR number 04/2014, dated 22-02-2014.

As per reliable sources in SVO, “Nayeem got bailed out in just two days, which otherwise takes at least a month. And so far no challan, in this case, has been produced.”

The source adds, “We had applied for accord of sanction to the government in this particular case and some other cases. But the department got permission in all other cases barring Nayeem’s case.”

According to reliable sources, Nayeem is a close relative of a former NC’s Cabinet Minister.

“It was only because of Nayeem’s political relation that he resumed his duties despite a vigilance case pending against him,” the source said.

Contentions

Now as the Gulzar Peer’s case is before Jammu and Kashmir High Court, victims hope that the justice will soon be delivered.

Advocate Mian Qayoom, a student of the law says, “I have examined the judgment; there are many things which were not dealt with properly. There are a number of lacunas in it. Now the matter is before the High Court who will look into those matters in the appeal.”

As per the judgment the defence lawyer has raised contentions in defence of the accused which the public prosecutor has failed to prove wrong. “The final verdict is based on those contentions,” says Advocate Mir Hafizullah.

The contentions include: delay in lodging the FIR. It was lodged after a delay of 167 days. But the judgment in itself has clearly mentioned why there was a delay of these 167 days. Due to social stigma the victims had sought the help of social and political leaders for outside settlement as their honour was at stake.

Another contention was about seizure memo articles from the house/room of the accused. But that too got trashed in court as independent witnesses, before whom the material was seized, turned hostile in court.  Even the sealing of seized articles by the executive magistrate was not proven as the magistrate died before recording his statement.

Proper medical evidence was not provided despite the examining doctor saying that the hymen of these five victim girls was not intact.

Gulzar Peer before his arrest.
Gulzar Peer before his arrest.

FSL and expert opinion have failed to prove that there was something wrong with the water, given to these girls by the accused after which they used to lose their consciousness.

Another contention was non-citing of an independent witness, as only five girls (prosecutrix) came forward to book the complaint against the accused.

Contention about non-conduct of identification parade to establish if these girls were really enrolled at the seminary run by accused Gulzar Peer.

But the judgment doesn’t mention why such parade was needed if the victims and accused were identified.  It is needed in the case where accused is not identified, says a lawyer.

If news reports are to be believed then one independent witness was identified, who later turned hostile and blamed the concerned SP and DSP of ‘molesting’ her.

The last contention highlighted by the defence successfully changed the context and motive of the case to personal enmity between the accused and the victims. The charges of rape against Gulzar Peer got sidelined.

“Enmity at the cost of their reputation? How can a girl say that she has been raped when she knows nobody will marry her after that and maybe the offshoot can be something more adverse,” questions a police officer, who was investigating the case. “If they were lying then their statements would not have been consistent. They just wanted law should take its course. And till now they stand by their statements.”

Advocate Hafizullah asks, “If enmity was the reason, then why it was not proven?”

While giving the reference of Supreme Court judgments Advocate Ajaz Dhar, a criminal lawyer says, “In the rape cases, only one witness against the culprit can lead to his conviction. While as the delay in lodging an FIR in such cases is obvious while keeping in view our conservation society and the family reputations, but still the FIR’s need to be registered promptly. Wasn’t there a delay of lodging an FIR in infamous Asaram rape case? So general rules, cannot apply in rape cases as there are social restrains in such matters.”

He also says that in this particular case, it was not a mistake done by police as they presented challans on time and after that, it was the job of prosecution lawyer who failed to defend his prosecutrix. “The defence lawyer has taken the advantage of the weaknesses of the prosecution, who took this crucial case lightly,” feels Advocate Ajaz Dhar.

Even if the prosecution lawyer and the prosecutrix have maintained in their statements the reasons behind their delay in filling the FIR but, as per the judgment, those reasons were not verified.

Reason For Delay

Fearing social stigma victims, along with their families, contacted Moulvi Nazir Ahmad of Darul-Uloom Bandipora and pro-Pakistani separatist Asiya Andrabi for help. “But despite repeated pleas and promises from these people we got no response,” one of the victims told Kashmir Life. “Asiya ji assured us that she will intervene and take action against the fake Peer but despite waiting for six months, she did nothing.”

Finally, victims contacted Mufti Muhammad Amin of Islamabad who advised them to lodge a formal FIR.

“Look, I don’t trust judiciary after every person involved in 2005 sex scandal was acquitted honourably. That is why I asked these girls to wait till I take a final call,” says Asiya Andrabi. “My emotional intervention could have given accused excuse to get this case shifted outside Kashmir,” feels Andrabi.

Andrabi says that she hosted all five victims at her house for four nights. “If the judiciary is interested in knowing that why and how lodging of an FIR got delayed they should have contacted me or sent me a formal summons. But nobody ever approached me. I was ready, to tell the truth,” says Andrabi.

As per reliable sources in police, “These girls were lured by Gulzar Peer and before lodging an FIR, they had met many people whom they thought will help them in solving the case. One such messiah turned out to be a devil. He made video clips of these girls narrating their ordeal, and then sent these clips to some European countries and got financial aid.”

Blaming the Victim!

The defence lawyer has succeeded in shifting the entire burden of blame on the girls who were allegedly subjected to rape by Gulzar Peer.

The judgment points out that the defence lawyer has successfully proven that one of the victims was allegedly having an ‘illicit’ relationship with the headmaster of her school. Other victims were also accused of having an illicit relationship which defence claims is proven by the recovery of a boy’s picture from their cell phones. The judgment mentions the recovery of “naked photographs” from their possession.

“All the girls were let inside the seminary only after the proper check-up. Carrying a mobile phone was out of the question,” says one of the girls.

“Even if their character is questionable still what Gulzar Peer did is not pardonable. He cannot be acquitted just because these girls supposedly have bad character,” says Advocate Hafizullah. “Even law permits prostitutes to register complaints of rape. How can we deny fair trail to these innocent girls then.”

Dr Shaheen Mir, who conducted a medical examination of the girl’s said in her statement, “The examination of these girls revealed that no spermatozoa were found, secondary sexual characters were well developed. No mark of violence was found on the body. Velocity test was found negative though the hymen was not found intact. The girls were referred to radiological and dental examination for age determination.”

But the perusal of the records on file, reveals that no such radiological or dental examination is on record.

It is strange that the honourable judge has not asked for radiological or dental examination reports. Even the prosecution has failed to get them.

However, Dr Shaheena also maintained in her statement that, “We can rule out only recent intercourse but we cannot rule out intercourse having taken place before six months.”

As per law, in rape cases, the potency test of accused is must and in this case, it was positive.

In the last 21 months, since the FIR was lodged in the local police station, some of the accused, around seven persons were declared absconding and they were not presented before the court. And during the investigation, no report was received from FSL. “FSL and medical reports lose their importance if there is direct evidence. And in this particular case there were five direct pieces of evidence,” says Advocate Hafizullah. “I blame everybody, from police to legal servants for the acquittal of Gulzar Peer. You won’t believe even the missing records were not sought by the honourable judge.”

“If convicted, this case would have a deterrent impact on others, who would think hundred times before committing such crimes,” says Advocate Ajaz.

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