As New Delhi prepares to confront Islamabad with evidence that arrested jihadist Muhammad Naveed was recruited and trained at a Lashkar-e-Taiba camp in Pakistan, The Indian Express has learnt that over 150 Pakistani nationals captured in similar circumstances, including two suspects in the 2000 Chattisinghpora killings, have been repatriated home quietly because police and prosecutors either failed to secure convictions, or only established guilt on relatively minor charges.
Earlier this month, New Delhi repatriated a group of eight jihadists held in a Jammu and Kashmir prison. The repatriated men included Karachi resident Tanvir Ahmad Tanavali, arrested while infiltrating across the Line of Control in November 2009, and sentenced to six years in prison and a fine of Rs 1,000.
WATCH VIDEO: How Pak Terror Suspects Held, Sent Back After Cases Collapsed
Fakhruzzaman Khokkar, held in Srinagar in September 2008 in possession of a Kalashnikov assault rifle, pistol and hand grenade, was also sent home after serving a sentence of four years.
The repatriations, conducted without public disclosure of the prisoners’ past crimes, began in 2004, as part of the India-Pakistan normalisation process initiated by Prime Minister Atal Bihari Vajpayee and Pakistan’s military ruler, General Pervez Musharraf. The normalisation process, kicked off in the wake of the 2001-2002 near-war between the two countries, was to lead to a sharp reduction of violence in Jammu and Kashmir over the next decade.
The prisoners repatriated to Pakistan, documents accessed by The Indian Express show, include Muhammad Suhail Malik and Waseem Ahmad, alleged to have participated in the killing of 36 Sikhs in the south Kashmir village of Chattisinghpora in 2000, but acquitted because witnesses failed to identify them.
Nasrullah Mansoor ‘Langriyal’, the jihad commander who co-founded the Harkat-ul-Jihad-e-Islami, and claimed responsibility for dozens of terrorist attacks, was also never convicted of murder. He was repatriated home to Gujranwala in 2011, marrying months later at a ceremony attended by the who’s-who of the jihadi world.
This year alone, nine alleged terrorists, along with 13 others held for crossing without proper documents, as well as dozens of fishermen held after they crossed the border inadvertently, have been repatriated home from prisons in Jammu and Kashmir.
Large numbers of alleged terrorists, the documents show, succeeded in returning home inside of just a few years, despite the seriousness of their alleged crimes and their foreign nationality.
Even though 16 of the 23 Jammu and Kashmir terrorism-related suspects, whose cases The Indian Express studied, were arrested with weapons or explosives, only three were charged with attempted murder, and one with murder. Just three of the 23 served more than 14 years in prison — the typical, though non-binding, duration of a murder sentence.
In a January 6, 2004 statement, which followed a SAARC summit in Islamabad, General Musharraf “reassured Prime Minister Vajpayee that he will not permit any territory under Pakistan’s control to be used to support terrorism in any manner”.
The statement was to lead to multiple meetings between secret interlocutors for both governments, including at least one between the head of India’s Research and Analysis Wing, C D Sahai, and his counterpart at Pakistan’s Inter-Services Intelligence Directorate, Lieutenant General Ehsan-ul-Haq.
Prior to the statement, Pakistan often refused to take back prisoners held on terrorism charges, insisting they were not its nationals. India, in turn, rarely informed Pakistan of the arrest of alleged terrorists.
The repatriation programme set in place in 2004 thus marked a major break. And in order to avoid public embarrassment to Pakistan, the transfers were conducted without publicity.
“I have no personal knowledge of how the decision on prisoner repatriation was taken or why,” said Sahai. “However, the January 6 declaration was the first explicit promise from Pakistan that terrorists were operating against India from its soil — and taking back the prisoners would, therefore, have been an important acknowledgment of the reality of what Islamabad had long claimed was a domestic freedom movement,” he added.
The agreement helped hundreds of Pakistani nationals held for minor crimes get relief. From Jammu and Kashmir alone, 168 Pakistani nationals held for offences unrelated to terrorism — for example, crossing the Line of Control to visit family, or trafficking — have been sent home since 2004. However, 137 alleged terrorists have also been released from the state’s prisons during this period.
Documents show that neither Jammu and Kashmir nor the United Progressive Alliance at the Centre tried to seek evidence from Pakistan in these cases. Though the two countries created a joint anti-terrorism mechanism in 2006, the records show, it was not used to press for evidence that might have altered the course of the prosecution.
In several cases, the prosecution collapsed altogether. Raja Kifyat Ali, held in June 2010, allegedly in possession of a bag full of ammunition, was acquitted by a trial court in Srinagar and repatriated home the next year. Abdul Hai Malik, held for attempting to murder a civilian in Srinagar’s Maisuma area in 1996, remained in prison until his repatriation 2013 — but only received a two-year sentence for illegally entering India.
Those who were charged often benefitted from poor evidence-gathering. Shahnawaz Malik, arrested near the Line of Control in Handwara in September 1998 after an encounter with the Indian Army, served ten years in prison before being repatriated. Prosecutors did use forensics which could have established he fired a gun — an act that could have raised the sentence to life.
In several other cases, cross-Line of Control infiltrators were simply charged under the Egress and Ingress Movement Control Ordinance and the Indian Passports Act — meaning they were never prosecuted for attempt to murder.
The case of the Chattisinghpora massacre suspects, acquitted by the Delhi High Court in 2012, demonstrates why convictions have been so hard in obtain. Witnesses Nanak Singh and Gurmukh Singh — still living in the village where the attack took place, and potentially fearful — said it was simply too dark to recognise the perpetrators. Rauf Ahmad Rishi, another witness, only stated that “some persons had long beard whereas others had small beard”.
Forensic tests which could have helped the prosecution — for example, fingerprints from the crime scene or gunshot residue tests to establish whether the alleged perpetrators used firearms — were never carried out, since the state police did not have appropriate facilities.
Even though alleged Lashkar terrorist Malik confessed his crime in a custodial interview given to The New York Times, which also established that his relatives in Pakistan were Lashkar-e-Taiba supporters, his confessional testimony to investigators was not admissible as evidence.