Ishrat Jahan Raza may have been a terrorist. On the other hand, she may not have been. We might have found out had she been arraigned before a court of law. She was not. Instead, she was shot. A case of "cold-blooded murder" in a "fake encounter", said SP Tamang, the metropolitan magistrate appointed by the Gujarat High Court. His finding was that she and three others were "killed in police custody".
Ajmal Kasab was a terrorist. There was no question of "might have been". He was caught on CCTV massacring innocent commuters in cold blood. He readily confessed to his crimes and to the terrorist outfit to which he belonged. Yet, he was not "encountered" (a new contribution to the English language invented and promoted by Modi's Gujarat police). Instead, Kasab (which is Urdu for "butcher" and should be spelt "Kasaab") was brought to court, given every opportunity to defend himself, then found guilty and punished as per the provisions of the law. That is how the Constitution and the courts provide for a civilized application of the law: everyone, even Kasab, is considered innocent until proved guilty. And guilt is determined not by kangaroo courts or by the media or even by the investigative agencies. Guilt is proved in the courts according the laws of evidence and punishment is then handed down by the courts. Ishrat Jahan was denied that opportunity.
She was denied that opportunity because she was "encountered". The Gujarat police held that she and her companions were killed when they opened fire on a police party that intercepted their vehicle in the early hours of 15 June 2004 on a tip-off from the Mumbai police that they were driving from Maharashtra to Gujarat to assassinate Chief Minister Narendra Modi. The Mumbai police have denied sending any such tip-off to the Gujarat authorities.
When the Tamang report reached the Gujarat High Court, the court set it aside and ordered a further investigation by a Special Investigation Team (SIT) under its supervision. However, the SIT headed by a senior police officer, Karnail Singh, also found the "purported encounter" in which Ishrat and the others died to have not been "genuine". The High Court, therefore, ordered that a complaint be filed under the Indian Penal Code, Section 302 (murder), and this led to the Central Bureau of Investigation (CBI) drilling deeper into the matter.
The CBI held that Zeeshan Johar (sometimes spelt "Jishan") had been taken into "illegal custody" on arrival in Ahmedabad in the last week of April 2004 by two senior officers, one from the Gujarat Police, and the other from the State Intelligence Bureau. The CBI also held that the other alleged "Pakistani", Amjad Ali, was "abducted" by the Ahmedabad city police (Detection of Crime Branch - DCB) from Gota Crossing on the outskirts of Ahmedabad on 26 May, 2004. This was followed, said the CBI, on 12, June 2004 by the abduction and incarceration in "illegal custody" of Javed Sheikh and Ishrat Jahan from Vasad Toll booth in neighbouring district Anand while they were travelling in the same Tata Indica around which the alleged encounter took place three days later.
The CBI then charged that on the evening of 13 June, 2004, a meeting of senior officers was held in the chambers of DG Vanzara, then Deputy Commissioner of Police, to "further plan about elimination of the four detainees" and then "lodging of a FIR showing their death in an encounter". The CBI also held that weapons were collected and transported "in a bag" from the office of the State Bureau of Investigation to be planted at the site of the "encounter".
What happened next morning, around 5 am on 15 June, sounds like the script of a B-grade Bollywood movie. Five police officers, later named and shamed by the CBI, fired no less than 70 rounds from a pistol, two revolvers, two AK-47s and a sten gun. While the bodies of all the four alleged terrorists were riddled with bullets, not one of the policemen suffered even a scratch. What encounter? After the massacre, said the CBI, several rounds were fired from an AK-56 that was then "placed near the body of Amjadali".
Ishrat Jahan and three others were killed in an encounter with Gujarat Police on the outskirts of Ahmedabad on June 15, 2004
The CBI found that none of the bullets recovered from the bodies of the victims, nor any of the cartridges found in the car, matched any of the guns supposedly used in the shootings. Moreover, the location of the car and of the bodies "was at odds with the trajectory of the shots fired".
Earlier, the Tamang report had said the four must have been "shot at close range" because "the entry points of the bullets were smaller than the exit points". Also, there were no remains of "exploded ammunition", indicating that the police planted the weapons on the victims to lend verisimilitude to their otherwise bald and unconvincing tale of a two-way encounter. Using Tamang's expression, the CBI charge-sheet stated that "the shooting was a staged encounter carried out in cold blood".
Interesting corroboration of this is to be found in the secretly recorded interview with Rajan Priyadarshi, former head of Gujarat's Anti-Terrorism Squad, recounted by Tehelka's investigative reporter, Rana Ayyub, in her recently self-published book,
Gujarat Files: Anatomy of a cover up. She has offered to make all her recordings available to the investigative agencies if sought for. At page 58, the following conversation between Ayyub and Priyadarshi is reproduced:
Priyadarshi: They killed a young girl in an encounter.
Ayyub: Really?
Priyadarshi:
Haan, they called her a Lashkar terrorist. The story created was she was a terrorist who had come to Gujarat to kill Modi.
Ayyub: And it's false?
Priyadarshi: Yes, it's false.
Priyadarshi goes on to claim, at pages 62-63, that Gujarat's then Minister of State for Home Affairs had personally told Priyadarshi that "he had kept Ishrat in custody before they were killed and that all five of them (
sic - there were only four) and there was no encounter. He would tell me, she was no terrorist."
Of course, none of this has been proved. It may be just idle gossip. But to get to the bottom of the horrific incident, all that is required is for the Modi government to sanction prosecution of the IB officials charged by the CBI. Rajnath Singh refuses to do so, although he is probably aware of a 2012 Supreme Court judgement that says it is "imperative" for the government to grant sanction where the complaint is of "dereliction of duty" and the "the offence is alleged to have been committed by him while acting or purporting to act in discharge of his official duty." In the instant case, there is clear dereliction of duty unless "official duty" in Modi's Gujarat included fake encounters.
Was Ishrat Jahan an LeT operative? The Intelligence Bureau, then under Asif Ibrahim, now Modi's Special Envoy for Counter-Terrorism and Extremism, clearly believed she was. They heavily relied on a Jama'at-ud-Dawah website that described her as such in the immediate aftermath of her killing. Two years later, the LeT publicily apologized for their mistake in wrongly identifying Ishrat as their operative. There was little by way of corroborative evidence until leading questions by the Mumbai prosecutor in the Kasab case during his Skype testimony led to David Headley, the two-timing double agent for both the CIA (Central Intelligence Agency of the United States) and the Lashkar-e-Toiba, to say he had overheard the Lashkar head referring to a woman operative the LeT had recruited in India. Leading questions are usually disallowed in a court of law and, in any case, testimony by an approver is "inherently weak", as argued by Ishrat's mother's lawyer, Vrinda Grover.
For its part, the CBI has consistently maintained "there is no evidence connecting her to any terror group or activity." In any case, the proven truth about Ishrat Jahan's "terrorist" antecedents could emerge if the Home Ministry were to sanction prosecution of the intelligence officers indicted by the CBI. The IB, of course, defends its own with the ferocity of a tigress her cubs. As the poet, TS Eliot, might have said, between the CBI and the IB "falls the shadow".
Instead of getting on with facilitating a judicial hearing, Rajnath Singh focuses on his UPA predecessor, P. Chidambaram, having had a second affidavit filed that apparently changed the draft put up to him by his officers. PC is one of India's top legal brains, a jurist and minister of exceptional ability. It is not his job to blindly endorse drafts submitted to him but to apply his own mind - and then take the responsibility. He has done both. The whole purpose of a second affidavit having been to "
clarify apprehensions" and "
refute attempts to misinterpret" portions of the earlier affidavit (para 2), a subsequent paragraph (para 5) affirms quite rightly that inputs provided by Indian Security Agencies "do not constitute conclusive proof and it is for the State Government and the State police to act on such inputs". Did they - or did they simply go on a merry killing spree? That is the question. And the only forum at which the question can be conclusively answered is the courts - after Rajnath Singh sanctions prosecution. Would he retain his job if he did?
(Mani Shankar Aiyar is former Congress MP, Rajya Sabha.)Disclaimer: The opinions expressed within this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of NDTV and NDTV does not assume any responsibility or liability for the same.