How custodial killings were covered up in Kashmir

Fayaz Shah was killed in Indian army's custody, but 24 years on his brother wages a lone battle to get justice.

    Under the Armed Forces (Special Powers) Act (AFSPA), a counter-terror law with sweeping provisions, security forces enjoy widespread impunity [Al Jazeera]
    Under the Armed Forces (Special Powers) Act (AFSPA), a counter-terror law with sweeping provisions, security forces enjoy widespread impunity [Al Jazeera]

    Srinagar, India-administered Kashmir - At around 6:30am on January 20, 1994, the Indian Army cordoned off the Barzulla Baghat locality in Srinagar, the summer capital of Indian-administered Kashmir. An announcement was made from the parapet of a nearby mosque, asking men to assemble at a ground behind the Saddar Police Station.

    "We shivered in cold, as the 5th Garhwal Battalion of the Indian Army checked our ID-cards," said Imtiyaz Ahmad Shah, a man in his mid-forties, as he sipped coffee at a Barista outlet at Rajbagh in the heart of Srinagar.

    Of all the men, Imtiyaz's 24-year-old older brother, was detained by the army. He was well-known in his locality as a boxer and was endearingly called Fayaz Boxer.

    "Few knew that his full name was Fayaz Ahmad Shah," reminisced Imtiyaz. He said his older brother had once been a rebel fighter.

    "In 1990 he joined the Hizbullah, an indigenous militant group in Indian-administered Kashmir. He then crossed over to Pakistan for arms training towards the end of 1990. When he returned to Srinagar after around three months, in March 1991, he was arrested from our residence in Baghat," Imtiyaz said.

    Fayaz was then taken to Papa 2, the Border Security Force's (BSF) infamous interrogation centre, from where, locals claim, nobody returned alive. It was shut down in 1996.

    Currently, it is the official residence of the Jammu and Kashmir state Chief Minister Mehbooba Mufti.

    Fayaz was lucky, he was tortured brutally but not killed, his brother said. After a month or so, he was sent to the Jammu Central jail.

    "Those days the TADA [anti-terror] court was set up at the Central Jail's premises itself. My brother was granted bail in December 1992," Imtiyaz recalled.

    After being released from jail, Fayaz wanted to turn the page and start a new life at the age of 23. He took a loan from J&K Bank after his ageing parents agreed to mortgage a land they owned at Barzulla Baghat. He set up a poultry farm and looked to the future with hope.

    Little did he know what awaited him on that frozen January day in 1994.

    An hour after the 5th Garhwal Battallion, a unit of the Garhwal Rifles of the Indian Army, detained Fayaz, the news came that they had taken him to a makeshift interrogation centre at Jehangir Colony, close to the Saddar Police Station in Baghat, Srinagar.

    "In the 1990s, the forces often converted the abandoned houses of the Kashmiri Pandits [the Hindu minority group which fled the region] into interrogation centres. Udhar usko peet peet kar maar daala (they beat him to death there)," said Imtiyaz with a palpable anger, and his voice choked for the first time.

    Custodial killings were the order of the day during the peak of armed rebellion in early 1990s, allege rights group. It is believed hundreds, perhaps thousands, perished in the interrogation centres (locally known as torture chambers) run by the armed forces, though there is no official figure available.

    Al Jazeera reached out to the state government but until the time of publication of the article no response was received.

    "It is difficult to provide a figure. Records had not been maintained; most of these cases were not even registered," said Zahoor Wani, senior campaigner, Access to Justice, Amnesty International India.

    "People didn't approach the court because there was lack of awareness of their legal rights, and, second, there was, and continues to be, a sense of insecurity.

    "In the 1990s, the police would shoo away the victims' families when they approached them for registering a case against the armed personnel for alleged extortion or murder," he said.

    Replying to a question posed in the Rajya Sabha, the upper house of India's parliament, Subhash Bhamre, the deputy minister of defence, said that 50 such cases have been reported by the state government to the central government.

    "A total of 50 cases have been received by the Union Government from the Government of Jammu and Kashmir for Prosecution Sanction against Armed Forces personnel under AFSPA, 1990," Bamre said on January 1.

    All these cases took place from 2001 to 2016. This suggests that the state government has not sought permission from the central government for prosecution of the accused Army men in any of the cases from the 1990s.

    Only in three cases, which had taken place in 2006, 2011, and 2014 respectively, the decision is pending. In the remaining 47 cases, permission has been denied.

    The defence ministry further apprised the Rajya Sabha: "The reason for denial/pendency of prosecution sanction is on account of lack of sufficient evidence to establish a prima facie case".

    Under the Armed Forces (Special Powers) Act (AFSPA), a counter-terror law with sweeping provisions, security forces enjoy widespread impunity.

    Wani said even when an Army man has been found guilty in a court-martial, he can make an appeal in the Armed Forces Tribunal in New Delhi for overturning the judgement.

    The victim or his family has no access to this tribunal and they cannot make a representation there.

    In one fake encounter case, a military court in 2014 found an Army colonel, a captain and three other security personnel guilty of killing three Kashmiri civilians in 2010 and sentenced them for life.

    But in July 2017, the sentence was suspended by the Army Tribunal. The five Army personnel had branded the slain civilians as foreign fighters for the sake of rewards.

    Did the Army pick Fayaz because of his past?

    Imtiyaz strongly refuted that notion. "They didn't know he was a militant," he pointed out.

    Nasir Qadri, a well-known lawyer in Jammu and Kashmir High Court, says the grounds of detention are often flimsy.

    "In the 1990s, the forces enjoyed absolute impunity from the law. They still do. At the check-points, if anything, including one’s appearance or manners, or expression, aroused suspicion, one could be arrested and taken to an interrogation centre."

    The practice continued as late as the early 2000s, claimed Muhammad Raafi, journalist at Kashmir Life, a local English weekly in Srinagar.

    He recounted an incident from 2004: "Our KMD bus was stopped by the Armed forces at a bridge in Papchan village, Bandipora. They checked our heartbeats by placing their hands against our chest. One man was detained because his heart was beating faster than normal."

    A teacher in J&K Sainik School, Manasbal, who declined to be named, said that in the 1990s the use of torch was banned as mines can be fitted inside a torch.

    "Even if one was going out in the dark of the night one was not allowed to carry a torch. If one carried a torch, one would be picked up by the forces at once. There was no guarantee the person would come back alive, as the forces had zero accountability," he said.

    On the evening of January 20, 1994, Imtiyaz recalled, at around 4pm, the Army dropped Fayaz's body at his Khacherpora residence near Barzulla Baghat. The horrifying sight was witnessed by his unwell mother alone, as everyone else had gone out to secure Fayaz's release. The old lady broke into a piercing cry and dashed towards the uniformed men beating her chest.

    "They didn't show any mercy. With one strong blow of their fist, they broke her tooth," Imtiyaz uttered the words painfully and sipped some water.

    The 5th Garhwal Battallion had brought the Army doctor along with them, who proclaimed the death occurred due to poisoning. However, no death certificate was issued to them by the doctor. Imtiyaz said that after Fayaz’s burial, they received a death certificate from the Srinagar Municipal Corporation.

    "They told us that Fayaz had consumed poison," said Imtiyaz, spreading some court documents in front of him, and hoisting a piece of paper with both hands.

    "This is the post-mortem report. You can see the date. It was handed over to us in 2003. Can you imagine a post-mortem report being handed over after nine years?" he asked.

    Fayaz's autopsy was conducted on January 21, 1994. The Sadar Police Station at Rawal Pora Chowk, Srinagar, had, on that day, registered a case of custodial death under Section 176 CrPC.

    Imtiyaz said: "We moved heavens and earth to get a copy of the post-mortem report. We received it in 2003, shortly after we published a letter to the then Chief Minister Mufti Mohammad Sayeed in Srinagar Times, an English daily, seeking his intervention."

    As pressure built, Imtiyaz was summoned to the police control room, where the chief medical officer asked him the name of the doctor who had conducted Fayaz’s post-mortem. "It was GN Bhat," Imtiyaz told them. Bhat had become a member of the state legislature by that time.

    "Bhat was hesitant, but he handed over a copy of the post-mortem report. It said that Fayaz died of smothering," Imtiyaz said, adding that Bhat had signed the report on a back date, January 20, 1994. "But I refused to accept it until he had mentioned on the report that the date of delivery was June 10, 2003."

    Having succeeded in procuring this vital piece of information, Imtiyaz filed a petition in the State Human Rights Commission (SHRC), seeking justice for his brother's custodial death. He also wrote an application to the then Deputy Commissioner of Budgam district.

    "We knew we may never get justice. But we wanted the court to proclaim that it was a case of custodial killing," Imitiyaz said.

    But legal experts say the SHRC is a toothless body and doesn’t have the power to prosecute the Armed forces.

    "The SHRC only makes recommendations to the state government to provide compensation, but examples galore where the state government ignored such recommendations," Amnesty International India official Zahoor told Al Jazeera.

    In early 2005, when the SHRC sought police response, mysterious changes appeared in the FIR (First Information Report) which had been registered at the time of Fayaz's death. The police, Imtiyaz alleged, transferred the charges from under Section 176 CrPC, applicable to custodial deaths, to Section 174, which deals with cases where the victim died on his own.

    "Such a change in the FIR cannot be made unless a written permission from the District Commissioner for the same has been granted. In this case, the police acted on its free will," Imtiyaz said.

    The police told the rights body that it was during a crackdown on January 20, 1994, that the Army had gone to Fayaz's house and found him lying dead.

    "It was found that the deceased subject was an ex-militant of Jihad force and was hiding in a hideout in his own house. The deceased was not killed in custody but has died due to ‘Cardiaz failure’.

    "The post-mortem report was obtained and the doctor has also opined the cause of death as 'Congestive Cardiac' failure leading to shock and cardiorespiratory arrest. The proceedings was converted to 174 CrPC and was closed as accidental," deputy director, prosecution, on behalf of Inspector General of Police, Kashmir Zone Srinagar, wrote to the SHRC on May 26, 2005.

    "This was farthest from the truth. The 5th Garhwal Battalion had lifted Fayaz. The police had lied. And that proves how the Army and the police work in connivance," Imtiyaz said in disgust.

    The autopsy report had confirmed that there were noticeable black marks on the back of Fayaz's head. The report had acknowledged haematoma. But the police, in its written response to the SHRC, did not explain these injuries.

    Imtiyaz was denied access to both the FSL [Forensic Science Laboratory] report and the histopathological (HPE) report although samples for the same had been taken at the time of Fayaz's post-mortem.

    The HPE is a microscopic examination of tissue done in order to ascertain the cause of death and cellular damage.

    "How could they hand-over those reports? The reports would have proven that their poisoning theory was a cock and bull story," Imtiyaz said.

    On June 26, 2007, in what seems like a little consolation for the victim's family, the SHRC pronounced that Fayaz had died in custody.

    The SHRC judge recommended that Imtiyaz be given a government job and a compensation of $ 1,534.

    Over a decade later, Imtiyaz, a hand-to-mouth auto-rickshaw driver, is still awaiting that compensation.

    As for comeuppance of those who killed his brother, he says, "Allah sabka hisab karta hai (No one can escape God’s justice)."

    SOURCE: Al Jazeera News



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