May 25, 2022
By Xari Jalil
A Pakistani national continues to languish for three years in a UP police station waiting to be repatriated, even though he has spent 19 years in a prison in India and was ‘technically released’ by a high court. Additionally, on Tuesday, May 24, it was announced that he would be undergoing yet another trial.
Meanwhile, a news story published in the Times of India (TOI) says that Indian authorities claim Pakistan has not responded to the repatriation, but Pakistan’s Foreign Office has stated that it is doing all that it can to have him released.
Mohammad Waris alias ‘Raza’, was arrested in March 2000, slapped with the Foreigners Act, the Passport Act and under terrorism charges. A slow trial followed in the sessions’ court after which he was given a life sentence, but later after his appeal was heard, he was acquitted of all charges in 2019, except those under the Foreigners’ Act. He had spent 19 years in prison, but after he was acquitted and ‘released’, the only place he could be placed was under 24-hour watch in the Shamli police station where his First Information Report had been originally filed.
But because the earlier trials were declared ‘illegal’, Waris will be undergoing yet another one in a local Shamli court.
A VISIT TO INDIA
Speaking to Voicepk, Mohammad Waris’s son Gulzar Waris says that he was only 17 years old when his father was travelling to India to meet a friend. That was probably all he knew. “I was only giving my matriculation papers at that time, and there was nothing more I knew about this trip,” he says. “My father did not tell anyone in the family much more than that he was visiting a friend. But three months later we received news that he had been arrested and was now in jail there.” Gulzar, who is now 40 years old, says that in these years his father has only communicated with him four times through letters so he has few details of what the case actually is. “We are waiting for him to come back, as that is when we will ask him what the issue was.”
Gulzar on his way home from Islamabad, told Voicepk that he had personally given an application to the Interior ministry so that his father was sent back to his home town in Wazirabad, Gujranwala.
Waris was in Shamli, UP, when he was arrested in 2000, along with one Ashfaque alias ‘Nanha’, and three others who were acquitted later. Apart from Sections 13 and 14 of India’s Foreigners’ Act and Section 3 of the Passport Act, he had various terrorism charges slapped onto him for which he was confined.
On March 31, 2000, Waris was arrested along with one Ashfaque from the Village Jaula, under Khandla Police jurisdiction, District Muzaffarnagar. Documentary evidence reveals that the police raid took place at Nanha’s house on the night of March 31, upon the intimation of the SSP Muzaffarnagar. The tip-off said that witnesses had seen arms and ammunition in Ashfaque’s house where a foreigner was residing.
Police claimed that two pistols with magazines containing five live cartridges, each, for which there was no valid license were recovered.
In the Sessions trial held in 2000, Waris was charged as given below in the official court document:
“Firstly, that you all waged or attempted to wage war or abetted waging of war against Government of India on 21.03.2000 at about 12:30 PM at Village Jaula, Police Station Kandla, District Muzaffarnagar. Thus you have committed an offence punishable under Section 121 IPC and within the cognizance of this Court.
Secondly, on the aforesaid date, time and place you conspired to commit a certain offence against the State and thereby committed an offence punishable under Section 121-A IPC which is within the cognizance of this Court.
Thirdly, on the aforesaid date, time and place you collected arms etc. with intention of waging war against the Government of India. Thereby you committed an offence punishable under Section 122 IPC which is within the cognizance of this Court.
Fourthly, on the aforesaid date, time and place you concealed the existence of a design to wage war against the Government of India and intended to facilitate the waging of such war and thereby you have committed an offence punishable under Section 123 IPC and within the cognizance of this Court.”
Waris was deemed a ‘trained terrorist working for Jaish-e-Mohammad’, according to the prosecution, and he had now established his own terrorist organization. The prosecution also stated that guns and bombs had been recovered from him which reinstated that he was involved in terrorist activities.
On February 26, 2002, Mohammad Waris was officially charged by the trial court in Muzzafar Nagar, under Sections 13 and 14 of the Foreigners Act, 1964. He said that Waris had entered India unauthorized, without a valid Passport, and not informed any authority about his entry and stay.
He was also charged under Section 3 of the Passport Act and said that Waris could not produce any travel document or passport for police inspection.
In support of its case, the prosecution examined as many as eight witnesses including police officers who were present at the time of the raid. They were brought in as witnesses to the recovery of arms, ammunition and of both the arrests.
The FIRs included charges under Section 3 of the Explosive Substances Act and under Section 25/27 of the Arms Act.
But Mohammad Waris had denied the charges levelled against him and said that the prosecution story was false. In his court statement, he said that he had come to India on a valid Passport and had gone to the Kandhla police station but the police there had torn his Passport. He said that there were no recoveries made from him, unlike what the police claimed.
The co-accused Ashfaque also said that the police version and the prosecution story were incorrect. In fact, he went on to say that he had no relations in Pakistan and did not even know Waris who was never at his house, to begin with.
The original trial was slow and snail-paced.
It was not before 2017 that the main accused were given their convictions. Both Waris and Ashfaque were convicted under Sections 121, 121-A, 122 and 123 of the Indian Penal Code and each was sentenced to undergo life imprisonment as follows: 10 years imprisonment under Section 121-A IPC; a further sentence of 10 years imprisonment under Section 122 IPC; and a further seven years imprisonment under Section 123 IPC.
Under Section 13 and 14 of the Foreigners Act, 1946, both accused were sentenced to three years imprisonment.
Meanwhile, it must also be noted that UP could have been moving towards a hardline sentiment, with the victory of far-right ‘Yogi’ Adityanath who was given the post of Chief Minister of UP in 2017. However, Times of India assistant Editor, Uttar Pradesh-based Sandeep Rai says it could be a far throw and may not be related as the arrest took place in 2000 and the case had been ongoing for a long time.
In 2019, after 19 years had already passed, Waris’s appeal from a Bareilly jail was heard by a High Court, and he was ‘technically released’, on basis of ‘glaring discrepancies in the procedure. All charges by the lower court were set aside, except the Foreigners Act but since the punishment for that is three years, Waris was stated to have served the sentence.
Mumbai/Maharashtra High Court and Sessions Court lawyer Gaurav Bhawnani, who has handled several terrorism cases, says that under India’s Citizenship Act there are meant to be detention centres for such prisoners, especially for foreigners who can’t be placed anywhere else, until they are repatriated. But such centres have not been set up everywhere.
“They are not in many places, as practically speaking there is not much use for them. Frankly, there are few people who come here without visas,” he says. “There is a problem of illegal travellers mainly in Karnataka where there is a hotbed of foreign illegal people, coming from Tibet etc. And in Assam perhaps there are people coming from Bangladesh illegally. But in UP most of the foreigners are from Nepal and for them there is no need for visa. Therefore it is likely there is no center there.”
Bhawnani says with terrorism charges placed on him, even the UP police may be in a fix being unable to do anything with him.
The 2019 verdict quashed the older one declaring it illegal and without jurisdiction, specifying that the accused were charged under Sections 121, 121-A, 122 and 123 of IPC. Since no sanction under Section 196(1) Cr.P.C. was obtained either from the Central Government or the State Government at any stage.
According to Section 196 (1) Criminal Procedure Code, if a person is nominated in an FIR registered under any terrorism Act, in order to begin prosecution, first permission must be sought from the central government through the state government. This was not done in the case of Waris. This procedure is also given in the National Investigative Agency Act under which the prosecution also takes place.
Meanwhile, in June 2021, the prosecution had again sought permission from the authorities concerned to carry on with the case. A local court in Shamli will be where the case proceeds and all accused are to be present.
In response to the case once again being pursued, the counsel for the accused, Pawan Pundir said that they were given notices in January 2022 to appear in June. The case had been listed several times last year also, said Advocate Pundir, however, due to COVID things were delayed. The current date is June, keeping in mind the delay because of UP elections.
However, Pundir also added that the trial proceedings were “illegal”, and said that a writ petition against the trial had been filed on behalf of the accused. He termed it ‘double jeopardy – a procedural defence, where an accused cannot be tried again in the same case, based on the same facts.
In 2017, the government filed an appeal against the acquittal of the other three accused in the case. However, this too was rejected in 2019 by the High Court. Pundir says that there were no grounds for any new trial.
DISOWNED BY HOME COUNTRY?
Sandeep Rai in his report quotes official Indian sources as saying that “Pakistani authorities had refused to acknowledge Waris as their own”, which is why “deportation was not possible”.
Rai who has been following the case also highlighted the reason why it had collapsed.
“This is not a black and white case, because when he was given acquittal, it was not because there was ‘lack of evidence’ or any other reason,” says Rai. “It had nothing to do with the charges that were slapped on him. Rather it was noncompliance of statutory requirements by the prosecution under CRPC 196 (1) that turned the tide of the case in the accused’s favour.”
Therefore because prior sanction was not obtained from the state or central government, there was a complete bar in taking cognizance of the offences.
Meanwhile from Islamabad, Foreign Office spokesperson Asim Iftikhar told Voicepk that it was incorrect to say that Pakistan had not owned Waris as their own.
“This is a very wrong statement that has been published in various places….the claim is that we are not owning this person, or not verifying his nationality, the truth is we have verified his nationality since 2005,” he said.
“As to why he is not being released, we are in touch with the Indian authorities, and with our people from
the High Commission there. There may be new legal issues that have to be dealt with but we are on it.”
Iftikhar said that it was wrong to say that the Indian authorities have been waiting for our response when in actuality there were other issues because of which they were not releasing him. He said his release met both criteria that his nationality was verified and his sentence was completed.
Other sources within India have verified to Voicepk that Waris’s status remains as ‘under trial’.
CROSS BORDER PRISONERS & REPATRIATION
In 2008, an Agreement on Consular Access was signed between India and Pakistan that stipulated the release and repatriation of detained persons from the other country “within one month of confirmation of their national status and completion of sentences”. The same agreement also said consular access within three months must be guaranteed to cross-border prisoners. Unfortunately, the undertrial period can be longer than the sentence.
The Indo-Pak joint judicial committee on prisoners which was also formed in 2008 agreed with these demands.
Madhurima Dhanuka, Programme Head of Prisons Reforms, and part of the Commonwealth Human Rights Initiative notes that for foreign nationals it is always worse.
In a media report, she says, that they end up facing “blanket denial of bail and parole, curbs on communication with family and lawyers, suspension of regular hearings in courts, delayed consular access, suspension of international flights.”