Thursday, October 23, 2014

Another “terror” case collapsed in the High Court,

Wani and Rahman acquitted, Credibility of Delhi Special Cell again under cloud

Syyed Mansoor Agha


It was a big news when Special Cell of Delhi Police announced arrest of two “terrorists” of HuJI on January 4, 2007. The accused had allegedly come to the capital to disturb Republic Day Celebrations. Again it was “breaking news” on Feb 16, 2010 when an Additional Session Judge (ASJ) of Delhi held the duo guilty of serious offences. Media was all alert on March 11, 2010 when the ASJ Court sentenced them for life and slapped huge fines. The news was “Live” on TV Screen and whole country knew that convicted persons, Mohd Ameen Wani and Lutfur-Rahman have done “heinous crime” of waging war against the country.
But the “fourth pillar of the Democracy” did not find substance worth reporting when a three Judges bench of Delhi High Court absolved the convicted persons of all charges. The Honorable Court indicated holes in the Special Cell’s story, rejected police witnesses as shaky and  not trustworthy. Electronic media almost ignored the judgment of the appeal court reserved on 15th September and announced on 1st October. Only after week, on 7th Oct a newspaper published a report in the inner pages of her City Section. Vernacular media reported on 8th Oct.
This pattern is not unique, but it is a routine in such cases. It is a deliberate effort and has a meaning to serves the conspiracy of maligning a community; create hatred and disenchantment against the innocent in the society. This case will certainly add another section in the report titled “Framed, Damned, Acquitted: Dossier of a ‘Very’ Special Cell.” (Compiled and published by Jamia (Millia Islamia) Teacher’s Solidarity Association)
The Story
Rahman
According the prosecution Special Cell of Delhi Police detained one Kashmiri youth Mohd Ameen Wani from near Adarsh Nagar bus stand at about 2:50  PM on  4th January, 2007  and was  found  to  be  in  possession  of  Rs.4,50,000/-  Another youth, Luthfur Rahman was arrested  at around 9:15  PM on the same day, from  outside the Dargah Hazrat Nizamuddin Aulia, near Bawri Gate.. Police claimed that Rahman was arrested on the basis of information extracted from Wani during interrogation. Recovery of 1.610 kg of explosives with two non-electric detonators,  a  black  coloured  timing device and four pencil cells was also shown from him. Interestedly news reports published at the time “arrest” said that Wani was arrested from Gurudawara Seesganj Sahib in Chandni Chowk area of old Delhi and Rahman from Hzt. Nizamuddin Railway Station.
Police claimed the Wani received the amount through Hawala from near Gurudwara Seesganj Sahib. The money was to be used for terror activities in the City.
Police said, Wani and Rahman belonged to a banned “terror-outfit” named “Harkat-ul-Jihad-e-Islami (HuJI), which was purportedly based in Khalida Zia’s era in Bangladesh. But it is yet to be fixed whose brain child is this ugly faced organization as Bangladesh categorically denied existence of any such a group in that county. The existence of HuJI is still under cloud as Indian agencies have stopped taking its name and allegation of “export of terror” from that country after Hasina Wajed replaced Khalida Zia in Dhaka P.M. House.
After hearing the case, the trail court of ASJ Ms. Nivedita Anil Sharma accepted the prosecution story and held Wani and Rahman guilty on various counts under under the IPC, the Unlawful Activities Prevention Act and the Explosive Substances Act. Though police did not produce any evidence not even referred to its allegation of their association with “HuJI”, PTI reported, “both the convicts were allegedly active members of Bangladesh based Harkat-Ul-Jihad-al-Islami (HuJI) militant organisation.” Media reports also claimed that Lutfur Rahman, have received training at the instance of Pakistan-based Jamaat-Ud Dawa chief Hafiz Saeed.
Police alleged, “Both were out in the capital to disrupt the Republic Day function.” In view of Justice Ms. Sharma also duo were guilty of terror acts, and observed, "Keeping in view the unlawful and illegal activities of the convicts, a substantive and stern sentence is required to be imposed upon the convicts so that it is not only in the commensuration with the gravity of crime but also serves as an example for others who might also venture on the same forbidden path."
Declining the plea for leniency, the ASJ said 'the convicts do not deserve any leniency except that their life be not taken away lawfully.' Honorable Judge also imposed a fine of Rs 7.5 lakh on Rahman and Rs 7 lakh on Wani.
Public Prosecutor Vinod Kumar Sharma demanded capital punishment for both arguing that 'the convicts were a threat to the security of the country and wanted to disturb peace by carrying out terror activities.' The Judge declined the plea saying, ‘the offence did not fall in rarest of the rare category.’
In the course of proceedings in in trial court, Defence Counsels opposed the contention of the prosecution and submitted that the police had created 'false' evidence, like planting of explosives to ensure conviction of the accused. Defence counsel also brought several anomalies in police case and pointed out that there was difference in the sample of explosives sent for forensic examination that claimed to have been recovered by police. However Hon. ASJ did agreed which was ultimately agreed by the Appeal Court.
The Appeal
Mohd. Ameen Wani alias Khalid  and Luthfur Rahman alias Haroon filed two separate appeals (Crl A. No 903 & 1430/2010) in Delhi High Court. Mr. Ashok Aggarwal, Advocate pleaded for Wani and Mr. Sidharth Luthra, Sr. Advocate for Rahman. A three Judges bench comprising Hon’ble Mr. Justice Sanjiv Khanna, Hon'ble Mr. Justice G.P. Mittal and Sanjiv Khanna, J. hear the case. The judgment has discussed the expert witnesses of the prosecution and gave credence to the contention of defence plea that the alleged recovery of 1.610 kg of explosive material PETN is concocted and the sample which was sent to laboratory was planted on the accused Rahman and story of destroying case property in a fire in police malkhana is concocted.
As per seizure memo a “brown coloured explosive material” was seized. Police witness  Dalip  Kumar and  the Investigating  Officer  ACP  Sanjeev  Kumar  Yadav affirmed in the court that  the  material recovered  was “brown”  in  colour. A third witness “in categorical  terms  asserted  that  the  explosive  was  “dark  brown”  in colour. But  CFSL  report said that the sample  which was tested in the lab was  an “off white coloured  material” which was tested positive for presence of PETN.
The court has discussed the issue of color at length and concluded that expert witnesses failed to establish genuine reason of this discrepancy. It created serious doubts on police claim of seizure of explosive from the convicted person.
Another issue the court examined in detail was of police claim that case property (including explosive) has destroyed in fire. Police did not produce case property in trail court and failed to satisfy the appeal court on several counts. How the fire ignited, how it was doused and why PETN did not exploded in fire etc. the court observed, “A  reading  of  testimonies,  generates  skepticism and  leaves  us  perplexed  as  to  the  cause  of  fire.” The court observed that oral deposition and the report of expert witness of the prosecution “does not inspire confidence” and do not “merit acceptance.” The court fined, that the report is based on assumptions; it is not duly supported by scientific reasoning. There was no answer to the question why PETN did not explode in fire and why acid fumes were said present inspite of fire in the plastic bag and why the bag did not destroyed completely?
The court concluded: “The discrepancies and gaps noticed in the prosecution case are significant and not illusionary. Appellants have succeeded in denting the prosecution version and have created doubts as to the actual story. It is apparent that certain factual aspects have been held back and have not been  brought  on  record,  creating  grave  suspicion.”
The court indicated if it was not be default or by omission, it must be examined, “Whether such default and acts were deliberate or unintentional” and said, “If  the  dereliction  of  duty  and  omission  to  perform  was deliberate,  then  is  it  obligatory  upon  the  court  to  pass appropriate directions including directions in regard to taking of penal or other civil action against such officer/witness.”
Hawala Money
The  prosecution’s  version  also varies regarding “Hawala Money” said to be recovered from Wani. The “disclosure “ statement  revealed  the  source  and  time  of acquisition  of  money  as  morning  hours  from  a  hawala  operator  at Chandni  Chowk.  But five prosecutor-witnesses in their statements in the court “in seriatim and unequivocally ascribed that the  hawala operator had met Ameen  Wani  at  Adarsh  Nagar” Court rejected prosecutions explanation that it was ‘typing  mistake’.” The court said, “The explanation is  unacceptable  and merits  rejection.” The appellant-Ameen Wani had refused authenticity of “disclosure  statement” Further court noted that “No inquiries or investigation were conducted to ascertain and nab  the  hawala  operator.” Therefore accused was absolved of the allegation.

Wani’s story
Wani
Wani claimed that he was lifted by the Intelligence Bureau officials from Kashmir and was falsely implicated. I quote his story the Judgment of Hon. HC:
“In his statement under Section 313 Cr.P.C., Wani  was  more  elaborate  and  stated that he  had gone  to  attend  the  Court  of  Additional  Sessions  Judge,  Kathua  in connection with FIR No.43/2003 under Section 419,  IPC and learnt that  Intelligence  Bureau  officers  had  spoken  to  his  co-accused  in FIR No.43/2003  and his advocate. They had taken photographs of the co-accused in the Court, which was objected to by the staff and advocates.  Officers from the Intelligence Bureau had then claimed that they were reporters. At about 11 AM, when he was speaking to his advocate, an officer of Intelligence Bureau came to meet him. He was familiar with the said person as he had earlier arrested him (Ameen Wani) in a case in 2003. He informed his advocate that the said person was an Intelligence Bureau Officer and not his friend. “
The Presiding Judge was on leave and the case was dealt with by a subordinate Judge. When he came out of the Court to the seat of his advocate,  he  was  taken  away  by  another  person,  wearing  dark glasses,  stating  that  his  senior  wanted  to  talk  to  him.  Appellant Ameen Wani‟s advocate thereupon intervened and was informed by the person that  he  was  an  Intelligence  Bureau  Officer.  The  said Intelligence  Officer  left  when  his  advocate  asked  him  to  come  to his  seat.  Ameen  Wani  then  spoke  to  his  brother,  Mohd  Akhtar Wani,  from  his  Advocate‟s  phone,  that  he  was  being  watched  by some  agency  and  that  there  was  a  threat  to  his life. Ameen  Wani asserted  that  the  Intelligence  Bureau  Officers  had  spoken  to  his associates,  who  were  in  judicial  custody  and  warned  them  that Ameen Wani would be booked for 4-5 years. This fact was narrated by  his  associate  in  judicial  custody,  when  he  met  him  on  14th December,  2006.  Thereupon,  his  advocate  had  moved  an application before the Second Additional Sessions Judge  to provide to him,  police security up to his residence.  The Judge, after hearing his  grievance,  informed  that  he  was  not  competent  to  provide security,  but  would  keep  the  application  on  record  for  future reference  in  case  of  any  false  implication.  Ameen  Wani‟s  request that he should be handed over to  the  local police was  turned down.
On  coming  out  of  the  Court,  four  Intelligence  Bureau  Officers approached him and one of them at gunpoint asked him to get down from  the  auto  rickshaw  and  board  their  vehicle.  His  eyes  were covered  with  a  strip  of  cloth  and  after  two  and  a  half  hours  of travel,  he was detained in a room at Jammu. He was asked why he had visited  relatives of  persons killed in fake encounters, to  which he  replied  that  he  was  the  President  of  All  India  Forward  Block, Banihal, District Doda. After four days, he was taken to Tavi  River and again  threatened  that he would be  killed. Subsequently, he was taken  back  to  the  same  room  and  detained  for  four  more  days.
Later,  he  was  brought  to  Delhi,  via  Punjab.  On 22nd December, 2006, he was produced before Inspector Badrish Dutt of the Special Cell. He remained there till 1st January, 2007 and thereafter was put in a lock up for one day before being falsely  booked  in the present case.  He denied having any connection with the case and asserted that  no  recovery  was  made  from  him  and  the  appellant  Luthfur Rehman was not arrested at his instance.”
The High Court narrating his story, noted that Wani did not produce his advocate or his brother to support his story, hence declined to accept it. However narration of the story in such detail indicates that Wani was implicated in a false case as many other Kashmiris have been suffered. (Full Judgment: http://www.qaumiawaz.in/2014/10/hc-judgment-terror-accused-ameen-wani.html)

(Writer is Gen. Sec, Forum for Civil Rights)

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