In addition, the court said, were the persons who allegedly arranged girls for some of them (accused) along with others, though initially proceeded against but let off later. They are Zahoor Ahmed Malik, Nissar Ahmed Sheikh, Manzoor Naik (a Retd. SP), Jitender Misri and Vijay Kumar.
Regarding investigating officer’s (I.O’s) opinion of deficiency of evidence to implicate them, the court attributed three main reasons – non-availability of the victim girls, lack of corroborative materials, second thoughts of victim girls where under they charged their earlier statements.
“Regarding first and second categories, I feel that non-availability of victim girls would perhaps ipso facto not undo the otherwise implicating materials, and corroboration where the principal material was clear and cogent would only be an additional material, lack whereof could not dilute the content of main statement,” the court observed. “Regarding third relating to change of statements by some of victim girls in some cases much after their earlier statements should have been viewed with circumspection and not given over riding effect against the first statements recorded before high ranking judicial officers.”
The court further said that perhaps nobody, including the IO, could safely predict/assume as to which of the statements the girls would own in their testimonies before trial court.
The court had reached this conclusion after the IO on 21 September 2006 had presented two lists comprising of those mentioned by Sabeena and concerned girls. The IO sought further time to produce a third list. The third list, however, never came though the CBI furnished its final status report on 3 October 2006.
Keeping the circumstances under which the cases had been investigated and the incriminating evidence available, Justice Bashir Ahmad Kirmani ordered that the CBI shall place all records /evidence/materials available regarding Ashkoor Wani, Sheikh Mehmood, Niyaz Mehmood, Ghulam Hassan Khan, Yogesh Sani, Nissar Ahmed Sheikh, Manzoor Naik, Hakeem Yaseen, Pritipal Singh Goja and Amit Amla before CJM, Srinagar, within six weeks of passing of the order
It also directed the CBI to conduct further, speedy and focused investigation in cases of M Y Khan, Raj Tickoo and Zahoor Ahmad Malik besides conducting fresh investigation in respect of those persons named by Sabina or any of the involved girls as mentioned in various status/action reports by them against whom no action has been taken due to reportedly insufficient materials.
It further directed the investigation to establish the identity of the “Gora-Chitta commissioner”, and conduct further lawful interrogation of Sabeena, M Y Mir, Shazia/Azra and Muzaffer Handoo alongwith the councilor Manju.
Justices Bashir Ahmed Kirmani and Hakeem Imtiyaz Hussain, had passed separate orders after CBI concluded its investigations and submitted 4000-pages report before the court. Though they were unanimous in terming investigation lax, the major point of difference was while Justice Kirmani wanted the investigation to proceed against the left-outs from the present point, Justice Hussain suggested the (sessions) court should apply its mind and see if CBI’s decision to leave individuals untouched despite their identification by witnesses was correct or not.
“If the Court feels that the evidence and material collected during investigation justifies prosecution of all or any of these persons, it may not accept the findings but take cognizance and summon the accused,” Justice Hussain observed.
Split orders prevented any follow up either from CBI or by the judiciary itself. J&K High Court Bar Association later filed another writ petition seeking immediate investigations in wake of revelations by a Congress MP publicly that two top Congressmen – former PCC Chief Peerzada Sayeed and Speaker Tara Chand – were involved in the racket and were saved only after UPA Chairperson Sonia Gandhi and Chief Minister Ghulam Nabi Azad intervened. Chief Justice set up a larger bench to hear the case but it was the mandate of the bench that became the issue of arguments.
Zafar A Shah who appeared on behalf of petitioner (Kashmir Bar Association) told the bench comprising Justices N A Kakroo, Virender Singh and JP Singh, it should go to the same bench so that they issued a single order listing the issues of dissent and agreement.
