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)
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.
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.”
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 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)