CASE 11 : DISAPPEARED ON EID

LKH DeskCases, Enforced Disappearances, May Comments

Mohammad Ashraf Dar of Lone Mohalla, Hadipora, Rafiabad, Baramulla District became a victim of Enforced Disappearance on 22 May 1994 after Major Sehgal of 15 Punjab Regiment kidnapped him.

A First Information Report [FIR] no.28/1994 u/s 364 [Kidnapping/Abducting to murder], 302 [Murder] was filed at the Panzalla Police Station. The 22 May 2012 communication from the Jammu and Kashmir Police states that the case was chargesheeted and sanction for prosecution was awaited. The case is said to be under investigation.

The family of the victim gave a statement to the IPTK on 27 May 2014 as follows:

On 22 May 1994, Mohammad Ashraf Dar had gone to Rawoosa village, on the occasion of Eid to collect donations for the local mosque at Hadipora. At around 10:00 am, Ashraf along with two other locals, namely, Fayaz Ahmed Wani, son of Hassan Wani and Zahoor Ahmed Teli, son of Ghulam Mohammad Teli were stopped by the army on the pretext of asking directions towards Yarbugh Village. They had particularly asked Ashraf to accompany them to Yarbugh. At that time, there was a crackdown going on in Yarbugh. Ashraf’s associates, Fayaz and Zahoor accompanied the army to Yarbugh and were caught in the crackdown, whereas Ashraf had been taken to the house of a militant, namely, Fayaz Ahmed Ganai where he was tortured.

Two other persons, namely, Abdul Majeed Malla, resident of Rawoosa and Fayaz Ahmed Ganai’s brother were also being tortured in the same house. According to Majeed’s account, before torturing them the army had served them lunch. During interrogation and torture, the army kept questioning Ashraf about his identity. They kept telling him that his name was Abdullah who happened to be a militant in the MJF from Hadipora. Ashraf pleaded for his innocence and told the army that he would show them Abdullah’s house, but they did not listen to him and continued torturing him. They were made to drink excessive water and were tortured with a roller.

At around 6 in the evening, both Majeed and Ashraf were taken out of the house and were put into different vehicles. Ashraf’s head had been covered with a Pheran, before he was moved into the vehicle. Ashraf’s family got to know about his arrest in the evening, on the same day through Zahoor Teli and Fayaz Wani. They rushed to the army camp at Hadipora and met Major Balveer. He contacted someone and informed the family that the army had not arrested Ashraf. However a soldier in the army camp told Major Balveer that the army had picked up someone from Rawoosa. Major Balveer then asked the family to visit the camp the next day. On the next day, the family waited for Major Balveer, from 9:00 am to 1:00 pm and at 1:00 pm, Major Balveer said that the case was related to his senior ofcer and he couldn’t help them. He also said that he cannot help as Hadipora Camp was also of 15 Punjab Regiment. On the third day the family, went to the Watergam headquarters of 15 Punjab Regiment, but were not allowed to meet any senior ofcers, nor were they allowed to enter the camp. A Sikh soldier at the gate told them that Ashraf would be released soon. For about a month, the soldier at the gate kept telling Ashraf’s family that he would be released soon. At times the soldier told Ashraf’s family that he had crossed the LOC and would return soon.

His family was under the impression that Ashraf might have gotten injured and might be undergoing treatment in the army hospital, as the soldier at the gate repeatedly told them that he would return soon. After around one week, Ashraf’s father went to the Panzalla Police Station and filed an FIR.

After sometime, their neighbor, Ghulam Rasool Lone, who was an employee in the Srinagar Court suggested to them that they file a case in the court. He also helped Ashraf’s father to file a case in the Court. The case was transferred to Handwara court and then to Baramulla Court for a Judicial Enquiry. After more than a year, Fayaz Wani and Zahoor Teli, were called to an army camp at Bahrampora, where they were questioned about Ashraf’s arrest.

Ashraf’s father had deposed before the District Sessions Judge, Baramulla and his statements as well as Abdul Majeed’s statements were also recorded. Due to a strike for two months, the family discontinued following the case.

Once Ashraf’s father was taken to Tragpora Camp, along with the village head. There he was questioned about the incident and was also offered compensation, which he refused, as he wanted to know about the whereabouts of Ashraf, whether he was dead or alive. To which the officers did not respond. Ashraf, Majeed Malla, and Rasheed were tortured together. Majeed was released at Laisar Village, where as Abdul Rasheed Ganai, were left at his house where he was tortured.

The FIR states that Zahoor Ahmad Teli, Fayaz Ahmad Wani and Mohammad Ashraf Dar, who were seeking donations for the construction of a mosque, were arrested in the presence of witnesses by the 15 Punjab Regiment, Army, Dangiwacha Camp on 22 May 1994. They were all beaten. Zahoor Ahmad Teli and Fayaz Ahmad Wani were released but Mohammad Ashraf Dar was taken to the Dangiwacha Camp, detained and severely beaten in custody.The father of Mohammad Ashraf Dar approached the camp and sought the release of the victim. The personnel at the camp denied the arrest of the victim. A person named Abdul Majid Malla, who was also in custody, was an eye-witness to the beating of Mohammad Ashraf Dar.

As per an order of the High Court of Jammu and Kashmir dated 30 May 1995, the case of Mohammad Ashraf Dar was sent to the District and Sessions Judge, Baramulla, for conducting an enquiry [this confirms what the family states in its testimony]. It also stated that in case the District Judge, during the preliminary enquiry concluded that the said individual had been killed in custody, he will get a case registered against the culprit. The Ministry of Defence, in its affidavit before the High Court of Jammu and Kashmir in 2009 on sanctions for prosecution under Armed Forces (Jammu and Kashmir) Special Powers Act, 1990 [AFSPA], stated in relation to this case that it was not received. The Government of Jammu and Kashmir, in response to information sought through the Jammu and Kashmir Right to Information Act, 2009 [RTI] on sanctions for prosecutions under AFSPA, stated on 6 September 2011 in relation to this case that sanction was sought on 25 June 2004 and was awaited.

It is noteworthy that it took the Jammu and Kashmir police and Government of Jammu and Kashmir 10 years to investigate and process the case for acquiring sanction for prosecution under AFSPA which apparently helped the perpetrators in evading justice.

Further, it needs to be ascertained whether the Jammu and Kashmir Government has at all sent the case for sanction for prosecution to the Ministry of Defence and whether the Ministry of Defence has misplaced the case file. The Jammu and Kashmir Police position of 9 January 2014 suggests that the sanction has yet to be processed.

Atleast after the 2009 affidavit by the Ministry of Defence, the Jammu and Kashmir Government should have considered even re-sending the case or clarifying when and how the case was sent. In any case, after providing this information before the High Court of Jammu and Kashmir in 2009 and also in 1994 after the case was filed against the personnel of the army, the Ministry of Defence seems to have cared very little about the Jammu and Kashmir Police investigations or in instituting a process for delivering justice.

The available documents do not suggest that even a court-martial was conducted in this case by the army.

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