Exposing a frame-up

IN a shocking expose, the National Investigation Agency (NIA) has nailed the Delhi Police Special Cell’s uncorroborated charge against a reformed militant of conspiracy to commit terror attacks. On March 29, 2013, the United Progressive Alliance government asked the NIA to take over, from the DPSC, the investigation into an alleged criminal conspiracy to commit fidayeen attacks on undisclosed vital installations in the capital city.

The DPSC had registered a case and, during the course of the investigation, arrested Sayyed Liyaqat Shah aka Liyaqat Bukhari, son of Sakhee Shah, a resident of Dardpora in Kupwara district in Jammu and Kashmir, on the charge of crossing into India from Nepal at Sanauli, Uttar Pradesh, to be part of a conspiracy to commit attacks in New Delhi. On the basis of his “disclosure statement”, the DPSC conducted a raid on Room No.304, Haji Arafat Guest House, Urdu Bazar, Jama Masjid, Delhi, and recovered arms, ammunition and explosives.

According to the first information report (FIR) registered by the Special Cell, some well-trained and hard-core militants, probably belonging to the Hizbul Mujahideen (H.M.), a banned terrorist organisation, made elaborate plans, in coordination with some Pakistani nationals, to commit attacks on some undisclosed vital installations. The FIR was registered on the basis of the information provided by a “source”, which the police did not identify.

According to this information, two or three members of the H.M. travelled from Jammu and Kashmir and, after entering Delhi, planned to set up base in some unknown hotel, situated in the Jama Masjid area. The suspected terrorists allegedly chose the India-Nepal border at either Gorakhpur in Uttar Pradesh or Tanakpur in Uttarakhand to reach New Delhi. Liyaqat Shah, who allegedly crossed into India at Sanauli, was arrested by Inspector Dharmender Kumar of the DPSC on March 20, 2013, near the Gorakhpur Railway Station. Shah was produced before the Metropolitan Magistrate in New Delhi within 24 hours of his arrest. He was then remanded to police custody for 15 days. In his disclosure statement, he allegedly stated that he was to contact his Pakistani handler, on arrival in India, on a pre-decided number.

Shah was taken to the Jama Masjid area and asked to make a telephone call from the mobile phone of Inspector Sanjay Dutt to Pakistan in the presence of an independent witness. The alleged handler of Shah, who was guiding him from Pakistan, directed him to go to room No.304 of Haji Arafat Guest House, where he was to meet his associates and get further directions. Accordingly, he was sent back to the police station, and a party led by the Investigating Officer, Manishi Chandra, Assistant Commissioner of Police (ACP), raided the room on the intervening night of March 21 and 22. The raid, organised in the presence of the manager and owner of the guest house, led to the seizure of arms (one AK-56), ammunition (two magazines with 60 rounds), explosives (three hand grenades and explosives putty), maps, and other articles.

Meanwhile, Shah’s family complained that his arrest was illegal as he was returning with his family to India, according to the established surrender policy of the Government of Jammu and Kashmir. Therefore, the Union Ministry of Home Affairs, through its order on March 28, directed the NIA to take over the investigation of the case.

During the inquiry, Shah disclosed to the NIA that he crossed over to Pakistan in the mid-1990s and that he was associated with an organisation called Al-Barak. In Pakistan, he remarried twice, and had one child from the second wedlock. He told the NIA that he wanted to return to India under the surrender-cum-rehabilitation policy of the Jammu and Kashmir government and was constantly in touch with his first wife, Ameena Begum, who was residing at Dardpura village in the Lolab valley. While his first wife wanted him to return, his second wife, Naseem Bibi, did not wish to join him on his journey back on health grounds. His third wife, Akhtar Nissa, agreed to return with him as her family members were residing in India. After he conveyed his consent to return to India, Ameena Begum submitted an application to the office of the Special Superintendent of Police, Kupwara, in February 2011, under the surrender-cum-rehabilitation policy.

The NIA’s investigation revealed that Shah along with Akhtar Nissa and his daughter came back to India, through Nepal, along with another family. The group, comprising 12 persons, stayed in a hotel in Kathmandu for two days, after which they set off for Sanauli on the afternoon of March 19, 2013. When they tried to cross the border on the morning of March 20, they were stopped by Sashastra Seema Bal (SSB) personnel. At the request of Dharmender Kumar, DPSC inspector, the SSB handed the group over to him. During the journey to Gorakhpur from Sanauli, the DPSC separated Shah from the rest of the group and took him to New Delhi.

Piecing together the sequence of events before Shah’s arrest, the NIA concluded that it was “not mere coincidence”. But, the NIA could well have added that it was orchestrated by the DPSC.

Surrender policy

The surrender policy of Jammu and Kashmir is intended to facilitate the return of ex-militants who crossed over to Pakistan-Occupied-Kashmir/Pakistan for training in insurgency but have given up insurgent activities. The policy aims to benefit those who went to POK/Pakistan between January 1, 1989, and December 31, 2009. The parents/close relatives/prospective returnee can apply to the District Superintendent of Police (DSP) concerned. The DSP forwards such applications to the headquarters of the Criminal Investigation Department (CID) along with comments. The CID then prepares a dossier in consultation with intelligence/security forces on the basis of which a recommendation to allow the return of the applicant is made. The dossier is forwarded to the State Home Department, where an empowered committee headed by the Financial Commissioner (Home), takes a decision on the application.

The NIA found that although such former militants were permitted to return through the Wagah border or arrive at the Indira Gandhi International Airport, New Delhi, they regularly used the Nepal route.

No evidence found

More important, the NIA found no evidence that another former militant, Manzoor, who returned along with Shah, had planned to carry out a fidayeen attack in New Delhi, as alleged in the case diaries of the Delhi Police. The NIA also found that the person who stayed in room No. 304, Haji Arafat Guest House, on March 20 and 21, 2013, in the name of Anwar Ahmed was in fact Sabir Khan Pathan, a resident at Special Cell Niwas, Lodhi Colony, New Delhi. According to the NIA, Pathan had allegedly placed weapons and explosives in the room in order to implicate Shah. The mobile phone number and the copy of the driving licence submitted by Pathan in the name of Anwar Ahmed at the reception counter of Haji Arafat Guest House at the time of check-in were found to be fake.

According to the report of the Centre for DNA Fingerprinting and Diagnostics (CDFD), Hyderabad, the DNA obtained from the clothes seized from room No.304 matched the DNA obtained from the samples of blood and hair of Fida Mohammad, father of Pathan. Pathan’s stay at the guest house was corroborated by circumstantial evidence regarding call data records and CCTV footage. Besides, two eyewitnesses identified Pathan from photographs. The NIA found evidence of Pathan’s unusually frequent conversations with Delhi Police personnel on his mobile before, during and after his stay at room No.304. The personnel named in the NIA’s report include inspectors Sanjay Dutt and Rahul Kumar, and head constables Mohammed Iqbal Dar and Manish, and constables Krishnan Kumar and Gulveer Singh. On the basis of their conversations with Pathan, the NIA accused Dutt, Iqbal Dar and Kumar of being associated with the offence. Pathan was an informer in Sanjay Dutt’s team. He was declared a proclaimed offender by the court on May 5, 2014.

The NIA concluded that Shah’s disclosure statement, as recorded by the Delhi Police, was not legally sustainable. The only evidence is the application submitted by Ameena Begum that he was a member of Al-Barak, which is not a banned organisation under the Unlawful Activities (Prevention) Act, 1967. Therefore, in the absence of any evidence of any act of terror in India or Pakistan, the NIA concluded that it would be difficult to ascribe any culpability to Shah under law.

Shah was arrested on March 20, 2013, and is on bail. The NIA requested the Special Judge for NIA cases to discharge Shah and take cognisance of the offences of Pathan. It told the judge that it was undertaking further investigation in order to unearth the larger conspiracy involving Pathan, who is absconding.

Strangely, Amar Nath, the district judge who is hearing the matter, directed the NIA on January 31, 2015, to remove the charge sheet relating to the case from its website on the grounds that it had some crucial information about the nation’s security. The NIA complied with the order promptly although the details of its clean chit to Shah are now public knowledge. Besides, suppression of information regarding the investigation of so-called terror cases can not only undermine the accountability of the investigating agencies but also help the real culprits in actual terrorism cases and manufactured ones to get off scot-free.