Case 3 : Custodial Killing

ArsalanCases, January Comments

Victim Details:
Mohammad Rafiq Shah [Tarray] [Abduction, Torture and Extra Judicial Killing (Custodial Killing)]

Age: 16

Occupation: Student, Regional Public School

Son of: Salima Shah and Mehraj-ud-Din Shah [Tarray]

Resident of: Khankah Sokhta, Nawa Kadal, Srinagar

Alleged Perpetrator:

1. Commandant Subhash Chandra Sharma [Operational name: Peter]214, 7th Battalion Border Security Force [BSF]

 

Case Information:

On 30 January 1994 Mohammad Rafiq Shah (16) was arrested by the 7th Battalion BSF at the Nawa Kadal main market, Srinagar. The family of Mohammad Rafiq Shah filed a report at the Safakadal Police Station. Subsequently, Mohammad Rafiq Shah was brought to his residence on a raid with his head covered.

The mother of Mohammad Rafiq Shah met him at the Hariniwas Interrogation Centre on six occasions [17 February 1994, 24 February 1994, 28 February 1994, 2 March 1994, 2 April 1994, 22 October 1994]. The father of Mohammad Rafiq Shah met him at Tatoo Ground Army Garrison and at another BSF Camp based at Mamta Hotel, Dalgate, Srinagar. But, after October 1994 the family was not allowed any further meetings.

On 17 November 1994 the victim‘s dead body was recovered from the Dal lake. Commanding Officer Sharma threatened the family if they pursued the case. The family of the victim gave a statement to the IPTK on 26 February 2012. The post-mortem report of 20 November 1994 for Mohammad Rafiq Shah states that ropes were tied all over his body. Further, fractures on the body were also noted. The conclusion was that the victim had been strangulated to death.

First Information Report [FIR] no.182/1994 u/s 302 [Murder] Ranbir Penal Code, 1989 [RPC] was filed at the Ram Munshi Bagh Police Station on 21 December 1994. The communication dated 2 June 2012 provided a final report from the Ram Munshi Bagh Police Station that states that investigations were carried out in which the father of the Mohammad Rafiq Shah stated that the victim had been lifted by BSF personnel from Nawakadal, but the brother of the Mohammad Rafiq Shah stated that the victim was been abducted by unknown gunmen from Lal Chowk. The ―BSF Para 2″ was contacted, no response was received, and therefore the case was closed on 26 August 2006.

A petition was filed before the High Court of Jammu and Kashmir [Original Writ Petition (OWP) 432/1997] seeking compensation of Rs. 25,000,00, ex-gratia government relief, compassionate employment under SRO-43 [Statutory Rules and Orders] benefits, and conclusion of investigations in the case and prosecution of all persons responsible.

The Government of Jammu and Kashmir , Divisional Commissioner, Kashmir, and Station House Officers‘s [SHO] of Police Station‘s Ram Munshi Bagh and Safakadal jointly responded to the petition. It was stated that on 14 January 1995, the mother of the victim informed the investigating officer in the case that her son had been abducted by a BSF Inspector named Chaman Lal alias Kalia. The investigation was transferred to SHO Ram Bagh Police Station who closed the case as untraced on 26 August 1998 [though at another point this date is entered as 26 August 1996] based on the fact that Forensic Science Laboratory [FSL] Jammu revealed that the photograph of the dead body did not match with the photograph provided by the mother of Mohammad Rafiq Shah.

The photograph of the dead body was that of a minor whereas the one submitted by the mother of the victim was that of an adult. The Union of India, the BSF and the Commandant of 7th Battalion, BSF responded jointly. It was stated that the unit of the answering respondent was inducted in the Kashmir valley in May 1994. Therefore, the arrest of Mohammad Rafiq Shah could not have been carried out by them. Further, it was also stated that Commanding Officer Sharma was now deceased.

On 19 July 2007, the petition was dismissed for want of prosecution. The family of Mohammad Rafiq Shah received the ex-gratia government relief and compassionate employment under SRO-43 [Statutory Rules and Orders] benefits. FIR no.182/1994 was filed by the Jammu and Kashmir Police more than a month after the death of Mohammad Rafiq Shah, which the FIR itself notes to have been on 17 November 1994. Strangely, the letters on record of 8 May 2001 and 24 August 2001 by the Jammu and Kashmir Police contradict the date of death of Mohammad Rafiq Shah by placing it on 21 December 1994. The contradictions of the Jammu and Kashmir Police continue with regard to the date of closure of the case. Three separate dates are provided: 26 August 1998 and 26 August 1996 before the High Court, and 26 August 2006 in response to the RTI by communication dated 2 June 2012.

The non-seriousness of the Jammu and Kashmir Police can be further gauged by the fact that, according to the documentation provided with the 2 June 2012 communication, they were communicating with the ―BSF Para 2″ which did not appear to have any direct relationship with the case. Further, following non-cooperation from the ―BSF Para 2″, a non-entity in the case, the Jammu and Kashmir Police chose to mechanically close investigations rather than aggressively seek the necessary cooperation for the conclusion of investigations. The response of BSF before the High Court that Commanding Officer Sharma died on 16 April 1996 does not take away from the culpability of other personnel of the 7th Battalion BSF responsible for the abduction, torture and killing of Mohammad Rafiq Shah. It is unimaginable that Commanding Officer Sharma would have executed this crime alone.

 

Source: Case 95 – Alleged Perpetrators 

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Arsalan

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