SYYED MANSOOR AGHA covers the acquittal by High Court of Delhi of two youth, Mohd Ameen Wani and Lutfur-Rahman, who were convicted earlier by a trial court. The news of their arrest was covered widely but now their acquittal has been almost blackout by the mainstream media.
It was indeed big news when Special Cell of Delhi Police announced arrest of two “terrorists” of HuJI on 4 January, 2007. The accused had allegedly come to the capital to disturb Republic Day celebrations. Again it was “breaking news” on 16 February, 2010 when an Additional Sessions Judge (ASJ) of Delhi held the duo guilty of serious offences. Media was all alert on 11 March, 2010 when the ASJ Court sentenced them for life and slapped huge fines. The news was “Live” on TV Screen and the whole country knew that the convicts, Mohd Ameen Wani and Lutfur-Rahman have done “heinous crime” of waging a war against the country.
But the “Fourth Pillar of Democracy” did not find the development worth reporting when a 3-Judge Bench of High Court of Delhi absolved the convicts of all charges. The Court indicated holes in the Special Cell’s story, and rejected police witnesses as shaky and untrustworthy. Electronic media almost ignored the judgment of the Appellate Court reserved on 15 September and announced on 1 October. Only after the passage of a week, on 7 October to be exact, a newspaper covered it in an inner page of its City Section. Vernacular media reported it on 8 October.
This pattern is not unique, but a routine in such cases. It is a deliberate effort and has a meaning to serve the conspiracy of maligning a community and creating hatred and disenchantment against the innocent in the society. This case will certainly add another section to 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
According to 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 4 January, 2007 and was found to be in possession of Rs. 4,50,000/- Another youth, Lutfur-Rahman, was arrested at around 9:15 PM the same day, from outside Dargah Hazrat Nizamuddin Aulia, near Bawri Gate. The 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 were also shown from him. Interestedly, news reports published at the time of “arrest” said that Wani was arrested from Gurudwara Sis Ganj Sahib in Chandni Chowk area of Delhi and Rahman from Hazrat Nizamuddin Railway Station.
The police claimed that Wani received the amount through Hawala from near Gurudwara Sis Ganj Sahib and that the money was to be used for terror activities in the city.
The police said Wani and Rahman belonged to a banned “terror-outfit” named Harkat-ul-Jihad-e-Islami (HuJI), which was purportedly based in Bangladesh during Khalida Zia’s era. But it is yet to be fixed as to whose brainchild this ugly faced organisation is as Bangladesh categorically denied the existence of such a group in that country. 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 Sheikh Hasina Wajed replaced Khalida Zia in Dhaka.
After hearing the case, the trial court of ASJ Ms. Nivedita Anil Sharma accepted the prosecution story and held Wani and Rahman guilty on various counts under the IPC, the Unlawful Activities Prevention Act and the Explosive Substances Act. Though the police did not produce any evidence and not even referred to its allegation of their (convicts’) 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 received training at the instance of Pakistan-based Jamaat-Ud Dawa chief Hafiz Saeed.
The police alleged, “Both were out in the capital to disrupt the Republic Day function.” In view of Justice Ms. Sharma also, the duo were guilty of terror acts, as the Court 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.” The 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 the 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 Counsels also brought several anomalies in the police case and pointed out that there was difference in the sample of explosives claimed to have been recovered by police and sent for forensic examination. However, ASJ did not agree.
THE APPEAL
Mohd. Ameen Wani alias Khalid and Lutfur-Rahman alias Haroon filed two separate appeals (CRL.A. 903/2010 & CRL.A. 1430/2010) in Delhi High Court. Mr. Ashok Aggarwal, Advocate pleaded for Wani and Mr. Sidharth Luthra, Sr. Advocate for Rahman. A 3-Judge Bench headed by Mr. Justice Sanjiv Khanna heard 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. As per seizure memo, a “brown coloured explosive material” was seized. The 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 asserted in categorical terms that the explosive was “dark brown” in colour. But the CFSL report said that the sample which was tested in the lab was an “off white colour material” which was tested positive for presence of PETN.
The court has discussed the issue of colour at length and concluded that expert witnesses failed to establish genuine reason of this discrepancy. It created serious doubt on the police claim of seizure of explosive material from the convicts.
Another issue the court examined in detail was the police claim that the case property (including explosive material) was destroyed in fire. The police did not produce the case property in the trial court and failed to satisfy the appeal court on several counts – how the fire ignited, how it was doused and why PETN did not explode in the fire, etc. The court observed, “A reading of testimonies generates scepticism 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 do not “inspire confidence” and do not “merit acceptance”. The court found 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 the fire, why acid fumes were said to be present in spite of fire in the plastic bag and why the bag did not destroy 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 by 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 it is 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 version on the “Hawala Money” said to be recovered from Wani also varies. 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”. The Court rejected the prosecution 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”. The Court further noted that “No inquiries or investigation were conducted to ascertain and nab the hawala operator.” Therefore, the accused was absolved of the allegation.
WANI’S STORY
Wani claimed that he was lifted by the Intelligence Bureau officials from Kashmir and was falsely implicated. I quote his story from the Judgment of High Court:
“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 [Wani] came out of the Court to the seat of his advocate, he was about to be 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 Wani’s advocate had 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 14 December, 2006. Thereupon, his advocate moved an application before the Second Additional Sessions Judge to provide for 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 asked him at gunpoint 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 22 December, 2006, he was produced before Inspector Badrish Dutt of the Special Cell. He remained there till 1 January, 2007 and thereafter was put in a lockup 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 Lutfur 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 was declined to accept it. However, the narration of the story in such details indicates that Wani was implicated in a false case as many other Kashmiris have been made to suffer. (Full Judgment cab be read at http://www.qaumiawaz.in/2014/10/hc-judgment-terror-accused-ameen-wani.html)
[The writer is Gen. Sec, Forum for Civil Rights]