Leaked copy of Nimish Commission report, which is with The Hindu, terms arrests of terror accused Khalid Mujahid and Tariq Kasmi as suspicious

In the early hours of December 22, 2007 the Uttar Pradesh police Special Task Force (STF) claimed to have arrested two persons with explosive substances -- gelatin rods, detonators and RDX -- from the Barabanki Railway station. The detained persons, Khalid Mujahid of Jaunpur and Tariq Kasmi of Azamgarh, police claimed were Harkat-ul-Jihad-al-Islami (HuJI) operatives and involved in the serial court blasts that rocked Faizabad, Lucknow and Gorakhpur that year.

However, the police version was strongly contested and after much uproar, the then ruling Bahujan Samaj Party constituted a one-man Commission under former Judge R.D. Nimish to probe the arrests.

During the process of enquiry, which lasted nearly 4-1/2 years, the Commission examined oral and documentary evidence of several witnesses relating to State authorities, the prosecution, the accused and social rights groups.

Noting the discrepancies in the police versions, it concluded that the “arrests on December 22, 2007” were "suspicious" and incongruous with the facts narrated in the FIR.

As significantly, the Commission also calls for possible criminal proceedings against the officers who implicated the two persons.

Though the Nimesh report was submitted to the State last August, neither it is yet to be made public nor has it been acknowledged in any of the applications moved by the State while seeking to withdraw cases against the two. In its election manifesto, the SP had promised to withdraw cases against innocent Muslims implicated in terror cases.

In the latest instance, an affidavit to a Barabanki court on May 3, mentions "public interest and maintaining communal harmony" as the reasons for withdrawal. There is no mention of the Nimesh report. The application was out rightly rejected.

As per procedure, the report should have been tabled in the UP Assembly within six months. However, various RTI queries seeking it to be released in the public domain have gone unanswered, such that a PIL has now been filed for the same in the Allahabad High Court. The Hindu has a leaked copy of this 237-page report, which raises key questions about the arrests. The versions offered by the two accused, as acknowledged by the Commission, indicate that they were "abducted" by unknown persons days before they have been arrested by the STF. Tariq, a Yunani doctor, was abducted on December 12, 2007 in Azamgarh by men in a white Tata Sumo. He was then taken to a location in Varanasi and later in the evening transported to Lucknow and shut in an undisclosed room. Call details indicate that after the last call made on December 12, from his locality, his mobile's location on December 13, 17, 18, 19 and 20, was shown to be different places in Lucknow.

Four days after Tariq's abduction, Khalid was allegedly picked up in similar fashion from a market in Madiyahu, Jaunpur and taken to Lucknow. In their statements, both accused alleged that they were assaulted during this period and threatened that their relatives would be harmed if they did not confess to the crime. They were also allegedly forced to sign on some documents. The report, however, admits that it cannot be said "that the persons who abducted the two were indeed STF personnel."

Significantly, on the day of the alleged abductions, Tariq's grandfather Azhar Ali and Khalid's uncle Zaheer Alam Falahi filed FIRs at the local police stations. Mr. Falahi also sent applications to the National Human Rights Commission and UP Director General of Police. In the following days, several letters, representations and applications were also sent to the Chief Minister, District Magistrate and other authorities. Yet, why was no action taken, the report asks, while also questioning why despite Tariq's phone being switched on and off, as noted in the FIR, there was no attempt to trace its location.

When Mr. Falahi sought general diary entries through RTI from December 16-23 relating to "Khalid’s abduction and (or) arrest", the Madiyahu Circle Officer informed him that Khalid was arrested on Dec. 16 at 6.30 p.m. by the STF from Madiyahu. Since it was a criminal case further information could not be provided as it was barred under

Section 8(j) of the RTI Act, the reply said. The Hindu has a copy of the document.

Also, in the intervening night of December 18-19 some plain-clothed persons reached Khalid's house and took away his personal belongings without any explanation.

The STF's claim that Khalid was found with a bus ticket and a cycle stand coupon dated December 16 from Varanasi has also been flayed. “If he was abducted and his motorbike stolen on the same day, how was it possible that he could park his bike at a cycle stand in Varanasi?”

Moreover, the Commission is doubtful on the explosives the two men were allegedly caught with. If the two men were abducted days before their supposed arrests, then who was the source of the explosives?

The news of the abductions were carried in local dailies; in Khalid's case on December 17, 2007 and on various dates till December 22, 2007 for Tariq.

On December 17, Hindi Daily Hindustan reported the dharna staged by the National Loktantrik Party (NLP) to protest Tariq's abduction. Days later, the NLP sent a plea to the Chief Minister to search Tariq. The youth state head of the party even wrote to the Governor that if Tariq was not found till Dec 22, he would commit suicide in

public. The Commission also questions a news report that says that the two men were under the IB's lenses for the past six months.

Taking view of these developments, the Commission states that without proper cause, the FIRs and dharna could not have been held.

With the custodial death of Khalid, there is mounted pressure from civil groups on the State to make the report public and act on it. On Tuesday, Chief Minister Akhilesh Yadav announced that the UP cabinet had accepted the report and it, along with an action taken report, would be tabled in the upcoming session of the legislature.

Responding to this, Mr. Falahi called for the arrests of the 42 police personnel, including senior officers, whom he has named in the FIR after Khalid's death.

"Their testimonies have been proven false by the (Nimish) Commission. They must be arrested. Justice will be done when the guilty are punished. If the State had to table the report, why did my nephew have to die for it?" he asks.