A flawed inquiry

Chief Minister Omar Abdullah leaves the Assembly after announcing his resignation, on July 28, after the Opposition alleged that he was involved in a sex scandal. He was later persuaded to continue in office.-MUKHTAR KHAN/AP

OMAR ABDULLAH deludes himself when he asserts that his mishandling of the Shopian tragedy, his first big political test since he became Chief Minister of Jammu & Kashmir only a few months ago, will be just a paragraph when his tenure is reviewed six years hence (The Asian Age, July 22, 2009). If he does not mend his ways, it might define his tenure. For he has revealed unfortunate traits of complacent smugness and arrogant confidence, coupled with a marked proneness to bluff and prevaricate, and has ended up by tying himself into knots. Worse, he subverted the integrity and independence of a judicial inquiry which he himself set up, avowedly to allay public disquiet. Not surprisingly, its report was caught in a welter of charges and denials between the Judge and the police, from which the Judge came out second best.

The facts are simple. On May 29, Aasiya Jan, 17, a schoolgirl, and her sister-in-law, Neelofar Jan, 24, went into their orchard at Degam, Ratpora, across the Rambiara Nullah, around 5 p.m. Neelofars husband, Shakeel Ahmed Ahangar, told the press: When they didnt return till late in the evening, I went out to search for them. I could not find them anywhere and a neighbour told me that the duo had left for home just when a patrolling party was passing through the area. I then approached the police. At 10 p.m. I, along with a police party led by the Station House Officer, went out in search of Neelofar and Aasiya but couldnt locate them till 3 a.m., after which we returned.

On May 30, at 5 a.m., Shakeel, along with the police, again went in search of the women. I saw Neelofars body in the nullah and Aasiyas body one kilometre away from her, not far from a Central Reserve Police Force (CRPF) camp. The bodies were within the range of the lights of the CRPF and police camps. The road to the orchard goes past these camps. They are visible from the spot where Neelofars body was found. It is a high-security area patrolled regularly by the police as the Deputy Commissioner and other officials live there.

A press release issued by the police on May 30 said: Post-mortem conducted revealed no marks on the dead bodies including private parts. After some time, another police press release cancelled it, but without admitting to any wrongdoing. No first information report (FIR) was filed, however.

News of the tragedy spread like wildfire all over the State on May 30. Another day, May 31, followed. Sometime on June 1, two whole days later, the Chief Minister spoke to the media and called it a case of drowning, adding, the initial findings do not suggest either rape or murder, but now we want to get it cleared beyond doubt. A judicial inquiry would be set up. But he did not stop at that, as Naseer A. Ganai reported in Greater Kashmir (June 10). He asked the media not to blow trivial issues out of proportion mark the direct quotes and advised them to use the word alleged. He had questions for the media Where from [sic] you established that rape has taken place when the government has not been able to establish neither [sic] rape nor the murder? He asked the media to be balanced (Ganais report).

By June 1, two whole days after the crime, he had ample reason not to believe what he said: The police had retracted its press release on May 30; the stream was known to be so shallow as to rule out drowning; the surprising appearance of the corpses at 5 a.m. on May 30 though they were not found at 3 a.m.; the fact that a CRPF camp stood nearby and its lights and those of the police camp covered the area which, besides, was regularly patrolled.

High hopes were expressed when Omar became Chief Minister. He would clean the Augean stables. How would a CEO, appointed to the office in a corruption-ridden corporation, react when he is informed of the first major case that even remotely suggests bribery? Kashmir is notorious for excesses by the security forces, not excluding rape and murder. Its people yearn for a Chief Minister who would stand up for their rights to these forces and to the Centre, not give false explanations. In this case, it was the Centre that pressed Omar to do the decent thing.

And, what inference would you draw if the CEO, having smugly dismissed reports of bribery, patently gives false versions of what he had said? This is precisely what the Chief Minister did thrice. On July 13, he said: The mistake I made was sharing the initial findings with the press. But I made it clear that the initial findings were not acceptable to the government and that is why we were going for a judicial inquiry (DNA, July 14; emphasis added throughout).

This is a patent falsehood. He explicitly said on June 1: Since our probe would not be acceptable to any one, given the scheme of things prevailing in the Valley, we decided to order a judicial probe into the matter (Kashmir Times, June 2). The Telegraph (July 15) was told the same tale: I didnt come there [the press conference on June 1] to suggest that no crime has taken place. I came there to accept that we were dissatisfied with the initial findings and an in-depth inquiry is required. Yet again he claimed: The mistake I made was in answering a question on the basis of initial findings. I never bought the police version. Had that been the case, we wouldnt have gone for the inquiry (The Times of India, July 28).

This is belied by the press reports of his remarks on June 1; his lecture to the press (say alleged and be balanced); and the fact that even on June 4 all he could say was that something has happened there (Kuchch to hua hai). He then delivered the florid rhetoric that is a trademark of both the Abdullahs, Farooq and Omar: Neelofar and Aasiya were like my sisters and I, as a brother, feel the pain of the tragedy that has befallen on the victims family I also have three sisters of the same age. Such rhetoric betrays a profound contempt for the intelligence of the people.

This was not the only remark that strained credibility. On June 1 itself, he quickly appointed Justice Muzaffar Jan, a retired Judge of the High Court, flouting the settled practice of asking that Court or the Supreme Court to name the Judge. The explanation for the breach is a giveaway, so false it is: The Supreme courts sanction would have taken at least two months to arrive, and delayed the institution of the Commission (Kashmir Times, June 5).

It is doubtful if Omar Abdullahs enormous administrative expertise covers such cases. It is a slur on the Chief Justice of India, Justice K.G. Balakrishnan. It is a matter of record, over the decades, that the CJIs take little or no time to nominate judges. The Chief Minister wanted to have his own hand-picked man. Dismiss the silly innuendo that Justice Muzaffar Jan lived across the road from the Chief Minister. He was not known to be corrupt. He was famous for mediocrity.

To these landmarks summary dismissal on June 1; a grudging mention on June 4; a hand-picked Judge; and false and belated versions of his June 1 press conference weeks later on July 14 and 27 add one more. The Chief Minister had to be pressed by his alliance partner, the Congress, even for the filing of an FIR.

On June 6, Saturday, Saifuddin Soz, president of the Jammu & Kashmir unit of the Congress, rushed to Srinagar at the behest of the partys president, Sonia Gandhi. Shubhajit Roy of The Indian Express (June 8) quoted Soz as having told him: Under pressure the Jammu and Kashmir government late on Sunday night registered a rape case.

I met the Chief Minister and expressed our concern, Soz said, adding that he explained to Omar that the police should lodge an FIR on the death of the two women. The FIR that was filed the next day, June 8, covered rape but not murder. An FIR on murder was filed on June 10. Yusuf Jameels report was to the same effect. Soz has met Chief Minister, Omar Abdullah, to ask for an FIR to be registered. It is learnt that Mr. Soz was asked by the Congress president Sonia Gandhi to rush to J&K as she was learnt to be very upset at the incident (The Asian Age, June 8).

It speaks volumes for the state of affairs that (a) the Chief Minister had to be pressed for an FIR to be filed and this, in a case in which women he considered were like my sisters were involved and (b) that even the filing of an FIR needed the governments approval. There is no need for such approval. It is a matter entirely for the police. (Jammu and Kashmir has its own counterparts to Indian codes, but the content is almost identical.)

Section 154 of the Criminal Procedure Code says simply that every information relating to the commission of a cognizable offence shall be recorded by an officer in charge of police station. It is information, not even prima facie proof, that is required. Even a telephonic message can be recorded. Personal knowledge of the crime is not necessary. Suspects need not be named. Investigation follows the filing of an FIR (Section 156). The police are not debarred from investigating because an inquest is held under Section 174. Yet, for such an elementary proposition, officials pleaded before the Commission of Inquiry that they had sought the Advocate-Generals opinion. Another excuse was delay in the receipt of the report of the Forensic Science Laboratory. The post-mortem held on June 30 itself revealed a prima facie case of rape and murder. The report of the Commission of Inquiry says: It is on record in the admission of all police witnesses that had an FIR been filed immediately after occurrence and proper investigation started, there would have been no public protests and no loss of life of citizens.

It is also admitted by police witnesses that they were aware of the public anger and resentment for their inaction to register an FIR, in spite of factual and legal justification, yet an FIR was not registered. It is also admitted that with passage of each day, the violence and intensity of protesters increased resulting in damage to private and public property and still no efforts were made to register an FIR (Final Report, page 86).

Who was responsible for that? Note that the Commission of Inquiry passes those strictures even while readily accepting the absurd excuse of delay because of the Forensic Science Laboratorys report. We know, however, that it was Sonia Gandhi who prevailed on Omar Abdullah to file an FIR on June 8, over a week after the crime.

On June 8, the Director-General of Police, Kuldeep Khoda, set up a three-member Special Investigation Team (SIT) for expeditious investigation of the case regarding alleged rape and subsequent death of two women at Shopian. The Chief Minister referred to two reports to come those of the Commission of Inquiry and the SIT (Times of India, June 10). Both began their probes simultaneously and independently (Muzamil Jaleel, The Indian Express, June 13).

It is important to stress this. Criminal trials can proceed simultaneously with commissions of inquiry. But a commission of inquiry also needs its own investigating team to collect the evidence for production before it. Section 5A of the Commissions of Inquiry Act, 1952, empowers the commission to utilise the services of the states investigation agency with the consent of the government. The agency reports to the commission (Section 5A (4)), which is bound to satisfy itself about the correctness of the facts stated and the conclusions, if any, arrived at in the investigation report. It may make such inquiry, as it thinks fit, including the examination of the person or persons who conducted or assisted in the investigation (Section 5A (5)). The commission of inquiry is the sole master of what goes into the report.

That is the law. The reality in this case is altogether different. Let Justice Muzaffar Jan (retired) speak for himself: Special thanks are due to Dr. Haseeb Mughal, S.P. [Superintendent of Police], who assisted the Commission with professional competence, sincerity of purpose, dedication and tireless energy. Dr. Mughal not only assisted the Commission during investigation but also helped in compilation of the report at all stages (Final Report; page 101).

Have you ever heard of a police officer/assisting a judge in the compilation of his report? This is as unprecedented as Omar Abdullahs famous conditional resignation on July 28. Muzaffar Jan himself emphasises that the assistance by the Superintendent of Police continued even after the investigations were over. He helped in compilation of the report at all stages. This alone suffices to render the report utterly worthless. Mughal is an employee of the State government headed by Omar Abdullah. His intervention robbed the Commission of Inquiry of independence and integrity. The Chief Minister could not have been unaware of that.

Immediately on his appointment to the Commission of Inquiry, Muzaffar Jan exclaimed to a TV channel that he hoped he would fulfil the expectation of the government. He has in full measure. More royalist than the king, he denounces the Hurriyat and other protesters as anti-national. Summing up the evidence of Javed Iqbal Mattoo, the S.P. of Shopian, he records his admission that if an FIR had been filed on May 30, covering both rape and murder, the culprits would have been apprehended after the investigation and there would have been no loss of life or hartals and the dissenting anti-national elements would not have made political gain (Interim Report, Part I, page 13). The italicised words do not belong to the S.P. They are Justice Muzaffar Jans comment. The Commission was set up to silence the critics and turn the tables on political opponents.

The Interim Report was published on June 21 and the Final Report on July 10. Understandably, the Commission of Inquiry could not name the perpetrators. The evidence had vanished. The Interim Report finds: In the instant case, the entire investigating agency including the S.I. [Sub-Inspector] Gazi Abdul Kareem, SHO [Station House Officer] Shafeeq Ahmed, Rohit Baskotra, Dy. S.P., and S.P. Javed Iqbal Mattoo have taken all steps to refuse to investigate the complaint of a gruesome rape and death of two girls in which the interest of the entire society was involved, and required/ sympathetic approach and serious application of mind. The same has not been done by all the four officers. All the police officers in-charge, district Shopian, appear to be amicably [sic] ignorant of their professional responsibility, and their duty to uphold the honour of their uniform.

The Final Report records a clear finding of rape and murder: The only conclusion that can be drawn is that the death of both Neelofar and Aasiya has not been because of any natural cause, but the death of both the girls has been caused with the aim to destroy evidence after rape, by committing their murder. Despite the evidence, he struggles to hold that it was not a gang rape.

He proceeds to hold: Weighing the pros and cons of the consistent connivance, in the initial stage of investigation, by the investigating agency, and the subsequent cover-up and manoeuvring by the local police, showing no seriousness in the incident, leads to the irresistible inference that the police had more to hide than to reveal. The only aspect that has to be considered is, why should the police try to cover up facts from the public gaze, was it because of incompetence, or indifference or out of fear of public exposure.

All the officers of the department stood by the theory of death by drowning with full knowledge and belief that no one in the recent or past history of Shopian has died due to drowning in River Rambi Ara. The official statement of drowning does not convey the mindset of indifference, but depicts an active, intelligent and conscious effort to divert the attention of public from the actual and factual cause of death.

Referring to the deposit of the corpses on the riverbed between 2-30 a.m. and 5-30 a.m. on May 30, the Final Report says: It does not appeal to reason that an individual civilian would, on his own, take a grave risk of detection, by carrying the dead bodies in the early hours of the morning of 30th May 2009 between 2-30 a.m. to 5-30 a.m., with full knowledge that his suspicious movements at odd hours would attract the attention of security guards posted in the area, unless the person would be sure of connivance from the watchful vision of the guards.

In the present case, the disposal of dead bodies in the centre of security ring, with mathematical precision and like surgical operation to ensure that no visible trails are left, cannot be said to be the handiwork of a private individual but would need the support of some agency. Although conclusive evidence to identify the culprit has not been furnished before the Commission because of unfortunate obstructions caused by certain dissenting political parties in the working of the Commission, yet there is material on the file to hold that the involvement of some agency of J&K police, in the present incident, cannot be completely ruled out.

Involved, evidently, were men with a clout. Hence the cover-up at all levels.

That is not all. It may be recalled that only a few days after the crime, the correspondent of a TV channel had made innuendoes against the two women. Justice Muzaffar Jans report is, if anything, more perverted in its reasoning and salacious insinuation. They occur in the Final Report, significantly. The investigating team of the Commission of Inquiry, headed by Haseeb Mughal, S.P., examined 33 cellphones of some witnesses. The aim of the exercise was to establish any direct or indirect link between the victims and the suspects. The exercise was taken up to know the family relations and degree of intimacy of different witnesses with the deceased. Unfortunately the number of the deceased could not be traced, even family members refused to divulge the information before the Commission. The cell phone number of the deceased could have helped the Commission in working out their links and relations with different persons/suspects and could have helped the investigation. The mystery whether they were carrying cell phone or not remains to be unearthed.

Why, indeed, was this at all necessary given the clear finding of rape and murder? Since this passage recurs repeatedly, verbatim, it was written deliberately. The aim of the exercise was to establish any direct or indirect link between the victims and the suspects. In spite of all the speculation about the cellphone, only a few lines earlier he doubts whether Neelofar had a mobile phone. In spite of scrutiny of 14,168 incoming calls, 9,825 outgoing calls, 4,041 incoming sms and 4,552 outgoing sms total 32,586 data, the mobile of Neelofar could not be traced.

Haseeb Mughal headed the Commissions investigating team. The Final Report records on page 96: Dr. Haseeb Mughal, S.P. assisting the Commission, has prepared extensive note indicating involvement of possible persons in the commission of the present crime. The Report is taken on the file and is marked as Annexure-z2.

The investigating team of the Commission headed by Dr. Haseeb Mughal, S.P. has examined, questioned and recorded the statements of 64 witnesses separately. The list of the witnesses is annexed as Annexure-z3. Three pages later (page 99) figures Jans signature to his Report. Clearly Annexure-z2 was approved by Muzaffar Jan. It is this Annexure that contains the material which caused an uproar to wit, Neelofars elopement with her husband Shakeel, who was known for his immoral activities. His assets are quite disproportionate to his known sources of income, thus requiring in-depth investigation to work out the possibility of Shakeel and his friends/associates in the present incident. The two facts are not connected. Neither is relevant to the inquiry. No scatterbrained person could have done better.

But this is not the job of any such person. There is method in the madness: the very next paragraph casts aspersions on Neelofar, Aasiya and another sister of Shakeel, Roomi Jan: might have developed some other persons . He [Shakeel] has [not might have] come to know about this relation which could have led to the planning and execution of this incident needs thorough interrogation of Shakeel, his friends and associates to find out the truth. In sum, Shakeel killed his wife and sister.

The aspersion is, at once, groundless, irrelevant to the inquiry, and contradicted by his own findings of rape and murder and disposal of the bodies by a security agency. Whom was Muzaffar Jan seeking to please and whose purpose did he try to serve? Never in all the annals of commissions of inquiry have such irrelevant and disgraceful remarks been made. Even a magistrate knows that in law, rape is rape even if the victims be of bad morals. A lawyer, Abdul Kaleem Shopiani, reported that during the hearings relations of the victims, it is said, shouted in protest at Justice Jan for his insensitive and humiliating way of questioning (Greater Kashmir, July 15). The proceedings were not open to the public.

Equally unprecedented is the unseemly row that broke out in public between the Judge and the police officer in the wake of the uproar that greeted the publication of the Final Report on July 11.

The very next day, on July 12, Muzaffar Jan gave three interviews. He said in one that he had submitted his report in 100 pages but the investigating team headed by S.P. Haseeb Mughal messed up my report and annexed his own 300 pages to my original draft.

Also: I never judged medias role in the aftermath of rape and murder and have said nothing about Shakeel. He said: The police team worked independently and compiled the probe report which says all sorts of things about the personal character of the family members of the dead women. But Haseeb Mughal said, I was asked by the government to assist Justice Jan and not to compile a report. I used to get the reports and depose the same before the Commission. He compiled the report. Besides, his signature is there on every page of the report (The Times of India, July 13).

Muzaffar Jans claims are totally belied by the text of his report. Further, it has a whole section on Press Recommendations comprising three pages and signed by him separately. Jan now said: I never made any remark on the medias role. Another false statement.

He told Riaz Wani of The Indian Express that he was horrified to find the police report had slipped into the Commissions official report. I dont know how it happened. Maybe [sic] CDs distributed among mediapersons have clubbed them mistakenly. I dont know.

Haseeb Mughal, however, rejected Justice Jans claim. Only one report had been prepared, he said. The police investigation team which was working with Justice Jan forms a part of the Commission and is not a separate entity. There cannot be two reports and then a mix up.

Justice Jan thus disowned portions of his own report. Police had presented this report to me. But I rejected it. I did not believe in it. It was untrustworthy and wrong information. So I did not incorporate it in my final report. Another demonstrable falsehood.

Samir Kaul of Asian Age was told the same day: What has happened is that the investigating team, our police investigating team have also prepared their investigating report which I did not accept, which I did not take on record, which I did not include in the main report. That is all right. Annexures were there but I have not incorporated anything in the report. You see, if somebody puts up an application before the court, the court keeps the application on the file. We dont clear off the application. The fact is we have not taken anything from the report.

Page 96 of the Final Report approvingly refers to Annexure-z2. Besides there are three approving references in the body of the Report to the insinuations in Annexure-z2.

A gross injustice was done to Dr. Nighat Shaheen avowedly but irrationally for not carrying out a confirmatory test on the corpses during the post-mortem she conducted. Her real crime, however, was that she burst out of the room in tears immediately after the post-mortem on May 30 and proclaimed that it was a case of gang rape. She had to be punished. Predictably, the judge recommended a punishment. She has been suspended by the government. Public clamour alone can set this wrong right.

A cruel and monumental fraud has been played on the people of Kashmir. Sevanti Ninan has rendered high service by exposing in detail in The Hindu of August 2, 2009, the official promotion of a personality cult of Omar Abdullah to buttress his dwindling popularity, the systematic repression of the electronic media and the techniques adopted by the Chief Ministers right-hand man, Devinder Rana, himself a media baron.