STRUCTURES OF VIOLENCE

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157 | Structures of Violence Fayaz Ahmad Shalla. The family of Fayaz Ahmad Shalla received Rs.1,00,000 ex-gratia government relief but no compassionate employment under SRO- 43 [Statutory Rules and Orders]. An enquiry by the District Magistrate, Srinagar, was constituted on 7 January 2003 to enquire into the incident as well. As a preliminary point, the actions of the Jammu and Kashmir Police and the Government of Jammu and Kashmir would seem highly unsatisfactory in the instant case. First, the initial position of the government that no armed forces were involved in the incident was proved incorrect by the judicial enquiry report of 12 May 1998 and the SHRC decision of 25 March 2003 as will be seen below. Second, it appears to have taken the police authorities close to two and a half years to le a FIR despite the High Court ruling to that effect. Third, while the investigation was closed by declaring the perpetrators as untraced in 2001, no closure report was led before the appropriate judicial authority until 2007 when the investigation was reopened. It appears from the order of the SSP, Srinagar, dated 18 July 2007, that the police was also mindful of this negligence as this order not only reopens the investigation but also orders a formal enquiry into the issue. Before considering the ndings of the judicial enquiry report of 12 May 1998 and the SHRC decision of 25 March 2003 [the results of the enquiry conducted by the District Magistrate, Srinagar are not available with the IPTK], the compliance report led by the police before the High Court in August 2011 appears to th implicate the four sections of the CRPF 67 Battalion, A Company which were deployed at New Fateh Kadal for static picket duty between 20 December 1989 and 19 June 1991. The presence of this battalion of the CRPF at the location during this period of time is not disputed by the CRPF before the High Court either, though the CRPF does suggest that no records of the “nominal roll of personnel” deployed at Fateh Kadal on 15 July 1990 are available as the case is twenty years old. The judicial enquiry report was submitted on 12 May 1998. The testimony of Ikhlaq Bashir Shalla, the cousin of Fayaz Ahmad Shalla, was recorded and was keeping in line with the allegations of the family. The witness was not cross-examined. Other witnesses also testied to the same sequence of events. Of most interest is the testimony of witness Abdul Aziz Rather who testied that he had met Fayaz Ahmad Shalla in the interrogation centre known as Papa-II and that he was told that the victim would be released very soon. Another witness, Ali Mohammad Bhat, also testied to meeting Fayaz Ahmad Shalla at the same interrogation centre. Both witnesses were crossexamined, but not on this particular piece of evidence. Witness Tanveer Ahmad Dhobi testied that he had himself been at the detention cell at Hariniwas interrogation centre and had met Fayaz Ahmad Shalla there, but that on the next day the victim was taken away from that centre. Tanveer Ahmad Dhobi was in fact lifted at the same time and in the same circumstances as the victim by the CRPF. The judicial enquiry report therefore concludes that the victim was lifted by the CRPF, taken rst to Hariniwas interrogation centre and then subsequently to the Papa-II detention centre. The judicial enquiry reached this conclusion by stating that “no doubt lurks in the mind of this court” and that the conclusions were “irresistible”. Two additional comments may be made on the judicial enquiry report. Both the family, and consequently the judicial enquiry report, place this incident on 16 July 1990, whereas the High Court [and the SHRC] in its proceedings place this incident on 15 July 1990. It is unclear where the difference may have arisen from, but it does not damage the ndings of the judicial enquiry report in any manner. Further, the response of the CRPF before the High Court in 2000 on the ndings in the judicial enquiry report of 12 May 1998 is curious. The CRPF denies any role in the incident based purely on the fact that the judicial enquiry report failed to identify the unit of the CRPF involved and the registration number of the vehicle in which the victim was carried. The SHRC based its decision on reports submitted by the Inspector General of Police [IGP], Kashmir Zone, Srinagar which conrmed that Fayaz Ahmad Shalla was lifted by the CRPF on 15 July 1990 and disappeared. The SHRC presumes the death of the victim and states that “missing person was neither himself a militant nor he had got any link with any militant outt as there is no mention about this aspect in the above police report”. Therefore, in addition to the negligence of the police and State, and the culpability of the CRPF, culpability may also be attracted by other forces as the victim appears to be at different points in the Hariniwas interrogation centre and Papa-II. The question then arises on who had control over these centres. The compliance report on investigations led by the police authorities before the High Court in August 2011, suggests that in the year 1990-1993 “ITBP force was deployed for guard duty in JIC instead of CRPF”. One may add to this the role of ofcers such as DIG, CID, CIK Jaswant Singh, who according to the family, had knowledge of the whereabouts of the victim at some stage. The role of the alleged perpetrator is based on unveried information that can only be claried based on fair and thorough investigations. Despite the passage of 22 years no progress appears to have taken place in the investigations. The IPTK sought information on 10 January 2012 on all inquiries and Court-Martials conducted by the
158 | Structures of Violence CRPF between 1990 and 2011 in Jammu and Kashmir but no information was provided. Further, the IPTK sought information on 10 January 2012 on all cases of sanctions for prosecution under AFSPA relating to the Ministry of Home Affairs between 1990 and 2011 in Jammu and Kashmir but no information was provided. Case No. 5 Victim Details Malik Nissar Ahmad Shah [Enforced Disappearance] Son of: Malik Ghulam Rasool Shah Resident of: Verinag, Islamabad District Alleged Perpetrators 1. Sub-Inspector [SI] Devi Dutt, 53rd Battalion Central Reserve Police Force [CRPF] Case Information On 20 July 1990 Malik Nissar Ahmad Shah was picked up by SI Devi Dutt of 53rd Battalion CRPF, handed over to the 19th Battalion CRPF, Bijbehara, tortured and has disappeared since. First Information Report [FIR] no.112/1990 u/s 451 [House trespass] and 365 [Kidnapping/Abducting with intent to secretly and wrongfully conne] Ranbir Penal Code, 1989 [RPC] was led at the Dooru Police Station on 22 November 1990. Information on the FIR was sought through the Jammu and Kashmir Right to Information Act, 2009 [RTI] on 15 October 2013. By communication dated 16 November 2013 from the Jammu and Kashmir Police a copy of the FIR was provided. The FIR relates to the beating and abduction of the victim by a sub-inspector of the 53rd Battalion of the CRPF. By communication dated 16 May 2014 from the Jammu and Kashmir Police information was provided that the investigation of the case stands closed as challaned and the case le along with all records and evidence both oral and documentary stands submitted to the court for judicial determination. Further information sought through RTI dated 14 November 2014. By communication dated 18 December 2014, from the Jammu and Kashmir Police, it was stated that as communicated by the Staion House Ofcer, Police Station Dooru, all the records were gutted in a re in 1994. This is clearly contradictory to the earlier position of the police. The family of the Malik Nissar Ahmad Shah led a petition before the High Court of Jammu and Kashmir 7 [Original Writ Petition (OWP) no. 867/1991 ]. The family of Malik Nissar Ahmad Shah led another petition before the High Court [habeas 8 corpus petition, HC 535/1991] . In response the Director General of Police [DGP], Jammu and Kashmir led an afdavit stating that till date the whereabouts of Malik Nissar Ahmad could not be ascertained. The CRPF denied the arrest of the victim, and this was supported by an afdavit by the Station House Ofcer [SHO], Dooru Police Station. On 7 March 1995 the High Court ordered an enquiry which was conducted by the Sessions Judge, Islamabad. The petition was disposed off on 7 March 1995. The enquiry report was concluded on 3 October 2002. No objections were led to the conclusions of the judicial enquiry. On 2 September 2003, the High Court ordered that a FIR be led at the Verinag Police Station. The enquiry report remains the only document on record for the purposes of analysis. But, prior to analyzing the enquiry report, a preliminary comment may be made on the rationale of the High Court disposing off the petition without waiting for the enquiry report. As per usual practice, the High Court should have awaited the submission of the enquiry report and then passed suitable directions. This is notwithstanding that the High Court subsequently did consider the judicial enquiry in its second disposal order of 2 September 2003. Further, it is unfortunate that a petition led in 1991 reached conclusion only in 2003. Finally, it is particularly striking that despite the passage of 12 years the only relief the High Court could offer was the ling of a second FIR. The enquiry judge issued notices to the respondents and the Public Prosecutor and the Chief Prosecuting Ofcer appeared on their behalf. According to the enquiry report, they led objections and associated with the proceedings for a “pretty long period” during which time the petitioner produced and examined witnesses. On 1 February 1999 the Director General, th rd CRPF and the Commandants of the 19 and 53 Battalions were issued fresh notices to appear and le their statement of facts. Consequently, the Standing Counsel for the Union of India appeared, sought adjournments, but did not le any submissions. On 12 February 2002 no further opportunities were given. The Public Prosecutor, on behalf of Criminal Investigation Department [CID], Counter Insurgency Kashmir [CIK], Srinagar, on 15 May 2000, submitted that the victim had not been arrested by CIK. The petitioner and/or her counsel appeared before the enquiry only initially. Unfortunately, one page of the enquiry report is not with the IPTK, but nonetheless, a summary of the relevant witness testimony is provided below: - Ghulam Nabi Sheikh, stated that the victim was arrested from his shop, along with another 7 Information on the petition number was sought through RTI on 4 April 2014. 8 Information on the petition numbers was sought through the Jammu and Kashmir Right to Information Act, 2009 [RTI] on 2 July 2012. Information was provided.
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