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The Controversial Pursuit of a Death Sentence for Yasin Malik

security
In the shadow of Kashmir’s decades-long turmoil, the case against Yasin Malik – a prominent separatist leader accused of a 1990 attack on Indian Air Force personnel – has resurfaced, raising critical questions about justice, political motives and the rule of law.
Yasin Malik. Photo: File/Shome Basu
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The high voter turnout in the September and October legislative assembly elections in Jammu and Kashmir demonstrated that, despite five years of near-total political disempowerment and strict military rule, Kashmiris have not lost their faith in democracy.

However, this fragile trust could be irrevocably shattered if the Narendra Modi government follows through on its determination to execute Yasin Malik, the chief of the Jammu Kashmir Liberation Front (JKLF), for a crime that occurred 34 years ago. While few Kashmiris may actually like Malik, he commands widespread respect. Among the separatist leaders who emerged from the unrest triggered by the rigged elections of 1987, Malik has been the most steadfast advocate of self-determination through peaceful means—a stance that sets him apart in the region’s turbulent history.

The Rawalpora incident and its alleged perpetrators

The crime for which the Modi government is demanding his death is the killing of four Indian Air Force (IAF) men, and the injuring of 22 others, in an early morning assassination bid by three scooter-borne terrorists at Rawalpora, on the outskirts of Srinagar, on January 25, 1990.

At 7.30 a.m., when some 30 to 40 IAF men were waiting for the bus that would take them to work that morning, three persons on a motorcycle approached them and opened fire with Kalashnikovs, killing four and injuring 22 others.

The CBI filed a report within days of the shooting, claiming that the assassins were Malik, the chief of the JKLF, and Javed Ahmed Mir, also known as Nalka, who were armed with Kalashnikovs; and Mushtaq Ahmed Lone, who was the driver of the motorcycle, armed with a .30-bore pistol. It also identified five other members of the JKLF who had helped to hatch the conspiracy – Ali Mohammad Mir, Manzoor Ahmed Sofi alias Mustafa, Nanaji alias Saleem, Javed Ahmed Zargar and Showkat Ahmed Bakshi.

But although all of these eight have been arrested and imprisoned multiple times in the past 34 years, the Terrorist and Disruptive Activities (Prevention) Act (TADA) court has been forced to release them because of the lack of evidence against them. The Rawalpora case has therefore lain dormant for 34 years for want of evidence. This is the case that the Modi government is now determined to revive.

In March 2020, only months after the Modi government read down Article 370 of the Constitution and turned the entire state into a de facto occupation run directly from New Delhi, it charged Malik and six others with a string of crimes that fell under the headings of criminal conspiracy to commit murder, committing terrorist acts, raising funds for terrorist acts, conspiring to commit such acts, being members of a terrorist organisation, hatching criminal conspiracies, and advocating sedition.

Malik refused to contest the charges levelled against him, so the trial court awarded him life imprisonment and two consecutive 10-year sentences that would ensure that he remained in jail for the rest of his life. But it concluded that the crimes of which he was being convicted did not fit into the category of “the rarest of rare cases” and rejected the government’s demand for a death sentence.

Dubious accusations by Tushar Mehta

This verdict did not satisfy the Modi government because Malik’s refusal to contest the charges had robbed it of the publicity that his trial, in the full glare of the media, would have given it. So a year later, solicitor-general Tushar Mehta came back to the National Investigation Agency (NIA) trial court with the assertion that Malik had to be given the death sentence on two additional grounds. The first was his “attempt to separate one part of the country from the rest of it.” The second was his having personally participated in the attack on the IAF men at Rawalpora on January 25, 1990.

Both these actions, Mehta told the court, fell within the “rarest of rare” cases in which capital punishment was merited. Mehta also accused Malik of pleading guilty to the lesser charges levelled against him only to avoid the death penalty. He argued that allowing Malik to escape the death penalty would set a dangerous precedent, paving the way for other criminals who deserved capital punishment to avoid it and continue living.

To bolster his plea for the death sentence still further, Mehta claimed that Malik had not only committed the “sensational killing of the four IAF officers” in 1990, but “even kidnapped the daughter of then Home Minister Mufti Mohammad Sayeed” a month earlier in Srinagar. This, he castigated the court, had led to the release of four dreaded criminals “who masterminded the 26/11 attack in Mumbai in 2008.”

This was an outright lie that banked upon the ignorance of the judges hearing the case to further reinforce his case, for Mehta would have to be both deaf and blind not to know that David Headley in the USA and Tahawwur Rana in Canada, had confessed more than a dozen years earlier that they had been the mastermind and financier respectively, of the 2008 attack on Mumbai by the Lashkar-e-Tayyiba and the Jaish-e-Mohammed, working hand in hand with Pakistan’s Inter-Services Intelligence (ISI).

Kashmiris cannot have failed to perceive this blatant contempt both for human life and the truth. So a sentence of death upon Malik, coming on top of the sentences passed upon Maqbool Butt (1984) and Afzal Guru (2013)  will complete their alienation from India, and give Pakistan the success it has been working towards ever since the Kashmiri insurgency first broke out. If the Modi government succeeds in adding Malik to that list, it will hand Pakistan the victory it has been hankering for since 1947. So the case being built against Malik needs to be examined in the minutest possible detail to ensure that Modi does not score a self-goal for India and help Pakistan’s ISI.

Questionable testimonies and missing links

To target Malik, the Modi government has revived the almost 35-year old case against him by suddenly finding not one, but two, alleged “eyewitnesses” who are prepared to swear that they recognised Malik as one of the assassins at Rawalpora. These are Rajwar Rajeshwar Singh, who sustained four bullet injuries but survived, and Nirmal Khanna, the wife of Squadron Leader Ravi Khanna, who was killed in the attack.

Neither witness is even remotely credible. Firstly, neither of them claim that he or she actually saw Malik at the time of the shooting. Rajeshwar Singh, a corporal in the IAF in 1990, has stated that he was amongst the group of IAF personnel waiting for the staff pickup bus at Rawalpora on the outskirts of Srinagar on January 25, 1990, when he saw a man pull out a gun from under his “pheran” and open fire at them, killing four men. He was questioned by the CBI shortly afterwards but said that he had been in too much pain himself to be able to notice anything else.

In 2020, however, 34 years later, his memory had cleared. Deposing before a special TADA court in Jammu, the former IAF corporal said, “I was among the IAF personnel waiting for their bus to get to office.” Pointing to Malik, who appeared in court via video link from Tihar Jail in Delhi, he said, “He had pulled out his gun after lifting the ‘pheran’ and opened fire on us.”

The second witness was Nirmal Khanna who has, for some reason, changed her first name to Shalini. She described what happened thus: “I lived in Rawalpora and our house was just 50 yards away from the crime scene. Amid curfew, I heard sound of crackers that morning. At wit’s end, I went to the roof top and saw some army vehicles and men in uniform. I went there to see what actually had happened and spotted my husband’s briefcase with a bullet mark on it. I realised that something wrong has happened.”

“At a distance, I saw my husband lying in a pool of blood. I saw a bullet injury in his abdomen. Initially, I felt embarrassed thinking that if my husband could not endure a single bullet, then how could our borders be secured,” she added. But she claimed that Flight Lieutenant B.R. Sharma, who was with her husband at the time, told her that Malik was behind the attack. “Malik was leading the attackers and had sought directions for Natipora from my husband,” she told newspersons. “Ravi was giving him directions in a friendly manner when Malik fired the first bullet in his abdomen. Following a scuffle, Malik emptied an entire magazine on my husband’s back.”

Incongruities in witnesses’ accounts

There are profound incongruities in both these accounts that need to be explained. The CBI report stated that there were three shooters who had come on a motorcycle, but Rajeshwar Singh’s account mentioned only one assassin who was on foot when he opened fire. This may be because the shooter had first dismounted and approached the airmen with an incongruous question before pulling out his Kalashnikov from underneath his “pheran.” It could also be that, having been severely wounded himself, he was in no position to know what else was happening.

Nirmal (Shalini), on the other hand never actually saw Malik and relied entirely upon what Flight Lieutenant Sharma, who she claimed had been standing close to her husband, told her. Her account is entirely second-hand. The witness who needs to be found is, therefore, Flight Lieutenant Sharma.

Given the fervour with which the government is pursuing this case, it is surprising that the CBI has been unable to find, and get a deposition, from him. One possible reason is that he does not exist, for there is no mention of him anywhere, by anyone, in the CBI’s files or in subsequent news reports. When I tried to find him through a search of the Bharat Rakshak database of IAF officers, I got the following information: “Flight Lieutenant Baldev Raj Sharma: Service No & Branch 10852 AE(M) (Orig: ARMT); Commissioned: 03 Jun 1967; Died in Service 29 Apr 1973.” Another Baldev Raj Sharma retired as a Squadron Leader in 2002 and died in 2016 but if he was already a Flight Lieutenant in 1990, he ordinarily ought to have made the rank of Wing Commander by 2002.

Despite dying a hero’s death, Ravi Khanna’s name was somehow not included in the National War Memorial for Indian soldiers killed in combat. Shalini (aka Nirmal) Khanna spoke in detail to Open magazine in two stories about this exclusion, and about what she saw in the immediate aftermath of the January 25, 1990 incident. Her accounts were carried on September 12, 2019 and October 23, 2019. The first story appears to have been based on the reporter’s earlier conversations with her, before the trial began that day, where she mentioned her husband’s exclusion from the War Memorial but did not say anything about Flt Lt B.R. Sharma identifying her husband’s killer as Malik. The second story, by the same reporter, drew on her testimony at the trial. On October 6, the government rectified its “mistake” in omitting Squadron Leader Khanna from the war memorial and had his name duly engraved.

Either way, the identity of Flight Lieutenant B.R. Sharma, present or retired, circa 1990, is not clear, nor is it apparent why he ever came forward with his testimony to the authorities at the time or subsequently.

Also read: Plea for Death Sentence to Yasin Malik Spotlights Limited Period for Appeal Under NIA Act

There are two other purely situational reasons for regarding the identification of Malik at Rawalpora by anyone as worthless. The first is that, on January 25, the shooting took place at 7.30 am. But the sun rose in Srinagar at 7.32 am on January 25 so it took place in the pre-dawn twilight, when the landscape is still fairly dark. To get a good look at any person in that pre-dawn light, one would have to be only a few metres away. But Rajeshwar Singh was not close enough to do so, and B.R. Sharma’s very existence is in doubt.

The second is that the minimum temperature anywhere in the world is reached at dawn just before the sun rises. In Srinagar, this minimum is between minus 3 and minus 5 degrees Celsius throughout January. In such bitterly cold weather, is it conceivable that anyone would not have his or her face covered by a heavy muffler while riding on a motorcycle? So for his face to have been seen, Malik would have had to remove his muffler for some reason, and risk being seen.

The inescapable truth is that, for the assassins, it would have been essential to keep their faces covered by thick mufflers not only to avoid recognition and identification but simply to stay warm. So there is no way in which either Rajeshwar Singh or B.R. Sharma, if he exists, could have seen the face of the person who killed Squadron Leader Ravi Khanna.

The final flaw in the case Mehta is trying to build is the way Malik has been “recognised.” Every police force in the world knows that visual recognition is a highly subjective act. The human eye is not a camera. In virtually every situation, people see what they are prepared, or want, to see. That is why police procedures for ensuring that a visual recognition will stand the test of cross examination are elaborate and rigidly specified.

The most frequently used way is to line up a group of persons with similar characteristics, make them turn, bend or speak as required by the witness, and ask them to identify the culprit. A second-best procedure is to show the witness a set of photographs of persons and do the same. But it is apparent from all that has been reported or presented in court that the prosecution has used neither of these methods to recognise Malik. Instead, it seems that the NIA has not required a visual recognition at all, and has relied solely upon “confessions” extracted from other prisoners by the police, or on photographs of Malik that it has shown to witnesses, and asked them whether this is the man they saw.

Neither of these procedures can stand a moment’s examination in a court of law. This is especially true of Malik, whose face has appeared a hundred or more times in newspapers, TV news channels and the internet, so he would be instantly recognisable to the witnesses, but for the wrong reason.

Note: This article was edited at 1625 IST to add references to Nirmal Khanna’s comments in OPEN magazine in September and October 2019.

This is the first of a two-part series on the trial of Yasin Malik.

Prem Shankar Jha is the author of Kashmir 1947–The Origins of a Dispute and a former media adviser to former Prime Minister V.P Singh.

 

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