“As the Modi government intensifies its push for a death sentence for JKLF leader Yasin Malik, questions arise over the fairness of the case and its implications for Kashmir’s future.”
Prem Shankar Jha*
The recent high voter turnout in Kashmir elections revealed both the people’s enduring faith in Indian democracy and their desire for self-governance through the support of the National Conference—despite the region’s troubled history stemming from the rigged 1987 elections.
That electoral fraud proved to be a watershed moment, pushing many young Kashmiris toward militancy, with Yasin Malik among the first to take up arms against the Indian state. However, the Modi government’s current actions suggest a different agenda.
Following the abrogation of Article 370, Delhi has pursued aggressive legal action against former insurgency leaders, with the prosecution of JKLF leader Malik as its centrepiece. Malik is on hunger strike in Tihar jail, and the Delhi High Court recently directed the authorities to provide him with adequate health care.
The government’s push for capital punishment in his case, citing it as “rarest of rare,” appears to prioritize iron-fisted control over Kashmir rather than addressing the historical grievances and responding to the people’s democratic aspirations.
The crime for which the Modi government is demanding the death sentence for Malik is the killing of four Indian Air Force men, including a squadron leader, Ravi Khanna, 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.
Cases Against Malik
In a hurriedly lodged case of 1990, the CBI had identified the assassins as one Mushtaq Ahmad Lone, who was the scooter driver, Javed Mir and Yasin Malik who it claimed, were riding pillion with Kalashnikovs under their Pherans and did most of the actual shooting.
Mir and Malik were two of the original HAJY group of JKLF leaders who had been election agents of Maulvi Yusuf Shah, (now head of the Hizbul Mujahedin, Salaheddin) the crude overnight reversal of whose election victory in the Amira Kadal constituency of Srinagar, had become the springboard of the 1987 rebellion.
In addition to these three, the CBI also indicted five other members of the JKLF, 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 at various points in the past 34 years, the Jammu TADA court released them because of a lack of evidence against them.
The Rawalpora case lay dormant for 30 years till it was revived by the Modi government. In March 2020, it charged Malik and six others with a criminal conspiracy to commit murder, under the provisions of the Terrorist and Disruptive Activities (Prevention) Act (TADA) and the Arms Act.
Two years later an NIA Trial court in Delhi reviewed the evidence and ordered the framing of charges against Malik and the others under the stringent UAPA and Indian Penal Code.
It was able to give its verdict on Yasin Malik merely two months later because Malik refused to contest the charges levelled against him, of committing terrorist acts, raising funds for terrorist acts, conspiring to commit such acts, being a member of a terrorist organisation, hatching criminal conspiracies, and advocating sedition.
The trial court awarded life, and two consecutive 10-year sentences, that would keep him in jail for the rest of his life. But it concluded that the crimes of which he was convicted did not fit into the description of ‘the rarest of rare cases’ and rejected the government’s demand for a death sentence.
This verdict did not satisfy the Modi government because Malik’s instant confession had robbed it of the publicity that his trial, in the full glare of media attention, would have given it.
So a year later, its Solicitor General, Tushar Mehta, came back to the NIA trial court with the assertion that Malik had to be given the death sentence because his attempt to separate one part of the country from the rest fell within the ‘rarest of rare’ cases in which capital punishment was merited.
Mehta’s Accusations
Mehta accused Malik of pleading guilty to the host of lesser charges levelled against him only to avoid the death penalty. Letting Malik get away with it, he harangued the court, would set a bad precedent, i.e. create a way for other criminals who deserved to be hanged, to go on living.
To reinforce his plea Mehta has claimed that Malik had not only committed the “sensational” killing of the four IAF officers, but ‘even kidnapped the daughter of then Home Minister Mufti Mohammad Sayeed’. This, he said, led to the release of four dreaded criminals who masterminded the 26/11 attack in Mumbai in 2008.
This is an outright lie, 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 ago that they had been the mastermind and financier of the Mumbai attack, which had been executed by the Lashkar-e- Tayyiba and the Jaish-e-Mohammed, working hand in hand with Pakistan’s ISI.
Five militants released in exchange for Rubiya Sayeed were Abdul Hamid Sheikh, Noor Mohammad Kalwal, Ghulam Nabi Butt (brother of Maqbool Butt), Javed Ahmad Zargar and Sher Khan. Hamid Sheikh was killed in an encounter in 1992. Butt and Sher Khan were also subsequently killed in separate incidents. The other two continue to be part of JKLF, which laid down arms in 1994 following Yasin Malik’s release from jail.
Today Mehta is banking upon the NIA trial court Judge’s ignorance to obtain a judgment that will not only end Malik’s life but also set Kashmir on fire.
Kashmir’s fate, therefore, hangs in the balance with the judges’ decision. So, the Rawalpora incident must be examined in as much detail as possible.
Rawalpora Incident
At 7.30 in the morning on January 25, 1990, some 30 to 40 Air Force men were waiting for the bus that would take them to work that morning, when three people on a motorcycle approached them at the bus stop at Rawalpora and opened fire with Kalashnikov rifles, killing 4 of them and injuring 22 others.
The CBI filed a report within days of the shooting, claiming that the assassins were Yasin Malik, the chief of the JKLF, and Javed Ahmed Mir, also known as Nalka, were armed with Kalashnikovs, and Mushtaq Ahmed Lone, who was the driver of the motorcycle, was armed with a .30-bore pistol.
It also identified four others who had helped to hatch the conspiracy. Of all the many crimes that have been committed in Kashmir by militants, this was perhaps the most heinous.
However, despite repeatedly jailing all seven accused persons over the years that followed, the CBI failed to pursue the case, so the Jammu TADA court set them free on bail.
By reviving this case and targeting Yasin Malik in particular, the Modi government clearly wishes to contrast its strength of purpose against the weak-kneed policies of the Congress.
Its case has been bolstered by its sudden finding of not one but two witnesses who are both prepared to swear that they recognised Yasin Malik as one of the two assassins at Rawalpora in 1990.
These are Rajwar Rajeshwar Singh, who sustained four bullet injuries but survived, and Nirmal alias Shalini Khanna, the wife of Squadron Leader, Ravi Khanna, who was killed in the attack. The two have given statements to the media and in court.
Rajwar Rajeshwar Singh, a corporal in the IAF in 1990, was among a 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 then by the CBI 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 CBI court in Jammu, the former IAF corporal said, “I was among the IAF personnel waiting for their bus to get to the office,” he told the Terrorist and Disruptive Activities (Prevention) Act (TADA) court.
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 senior most IAF personnel to be killed that morning was Squadron Leader Ravi Khanna.
This is what Shalini Khanna (whose name at the time had been Nirmal) said to a correspondent of the Hindustan Times:
“I lived in Rawalpora and our house was just 50 yards away from the crime scene. Amid curfew, I heard the sound of crackers that morning. At wit’s end, I went to the rooftop 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 had 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.
However, Squadron Leader Ravi Khanna, who was 38 years old at that time, was shot 27 times with an AK-47 assault rifle.
“He was declared brought dead at the Badami Bagh cantonment hospital and there I came to know that an entire magazine was emptied on his back following a scuffle between him and Yasin Malik,” Shalini told the correspondent of the Hindustan Times that she had come after her husband was shot, but said that Flight Lieutenant BR Sharma, who was with her husband, told her that Yasin Malik was behind the attack.
Profound Incongruities
There are profound incongruities in both these accounts that need to be explained.
The CBI report stated that three shooters 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, did not see the shooting at all, but only heard the gunfire. She never actually saw Yasin Malik and relied entirely upon what flight Lieutenant B R Sharma, who had been standing close to her husband, said.
He told her that Malik was leading the attackers and had sought directions for Nattipora from my husband. 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.”
Shalini Khanna did not, therefore, see the attack. Her account and her conviction that her husband was shot by Yasin Malik are entirely second-hand, obtained from Flight Lieutenant Sharma. The crucial witness is, therefore, Sharma.
Given the fervour with which the government is pursuing this case, it is surprising that the CBI has been unable to find Sharma and get a deposition from him. Since he was and may still be in the Air Force, he should have been easy to track down. But there is no mention of him anywhere, by anyone, in the CBI’s files or subsequent news reports.
A Google search on Flight Lieutenant Baldev Raj Sharma gives the following information:
Service No & Branch 10852 AE(M) (Orig: ARMT); Commissioned: 03 Jun 1967; Died in Service 29 Apr 1973!
The implications of this finding are terrifying.
If there isn’t another flight Lieutenant B R Sharma present or retired, then the entire story recounted by Shalini (aka Nirmal) Khanna becomes a lie – a concoction by a democratically elected government of India designed to commit judicial murder.
Reinforces Suspicion
It also reinforces the suspicion that Modi’s government is prepared to go to any lengths to meet the demands that its supremo makes.
There are two other reasons for regarding the identification of Yasin 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 on January 25 at 7.32 AM, so it took place in the pre-dawn twilight when the landscape was 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 first. Once he had done that, would he have had both his hands free to pull a Kalashnikov out from under his Pheran and start killing people?
The inescapable truth is that, for the assassins, keeping their faces covered by a thick muffler was imperative not only to avoid recognition and identification but simply to stay warm.
So there is no way in which either Rajeshwar Singh or even Flt Lt B R Sharma if he exists, could have seen the face of the assassin who killed Squadron Leader Vikram Khanna.
There is a final flaw in the case Tushar Mehta is trying to build lies in the way Yasin 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 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 him or her to identify the culprit.
The 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 get Yasin Malik’s recognition. Instead, it seems that the NIA has not required 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 would be instantly recognisable to the witnesses, but for the wrong reason.
The grim truth is stripping me of the last vestiges of my pride as an Indian.
If the Modi government succeeds in hanging Yasin Malik, or even killing him through neglect in jail, it will not only permanently alienate Kashmiris from India, but destroy India’s “soft power”, inherited from how it forced the British to leave without firing a shot and turn it, in the world’s eyes, into the world’s largest banana republic.
( To be concluded )
*(Prem Shankar Jha is the author of Kashmir 1947 – The Origins of a Dispute, and a media adviser to Prime Minister V P Singh 1989-90)
Content retrieved from: https://kashmirtimes.com/yasin-maliks-trial-battle-between-justice-and-political-agendas/.