Headley's claim about Ishrat has no legal value, says lawyer Vrinda Grover

Pakistani-American terrorist David Headley’s claim on Thursday morning – in response to a multiple choice question – that 2004 encounter victim Ishrat Jahan was a Lashkar-e-Taiba member was greeted with chest-thumping by the Bharatiya Janata Party.

But Jahan’s lawyer Vrinda Grover believes that everything to do with the LeT operative’s court statement is suspect, riddled with problems and seems designed to protect the top brass of the BJP.

The infamous encounter of 19-year-old Jahan was found to be fake in a Special Investigation Team report in 2011, and a charge sheet by the Central Bureau of Investigation implicates BJP’s top leaders – Prime Minister Narendra Modi and party president Amit Shah – in the killing.

Unsurprisingly, then, Headley’s claim is being trumpeted as a vindication of the party’s position that the student was a terrorist. While some BJP leaders have asked Ishrat Jahan supporters to take back their words, others claim it is now time to see the truth as it is.

But according to Grover, Headley’s claim itself is of no legal value, because of the questionable manner in which it was extracted from him.

‘He was asked leading questions’

David Headley is currently being questioned in a Mumbai court in relation to the 26/11 Mumbai terror attacks of 2008, and the role of Pakistani state agents in the attacks. On Thursday morning, while deposing before the court via video conference, public prosecutor Ujjwal Nikam, asked Headley a string of questions about female operatives in the terror outfit LeT.

Headley admitted that the LeT has a women’s wing that is headed by “the mother of Abu Aiman”, but when asked if there are female suicide bombers in the outfit, he said, “No, I don’t know." When asked to name one, he said he could not do so.

Nikam then asked him if there was a botched up operation in India. Headley said he learnt of one while “Zaki-ur-Rahman Lakhvi was talking to Muzammil Bhat”, and that Bhat later told him “there was a female member of the LeT who was killed in a police shootout at a naka”. At this, Nikam listed the names of three women as “options”, and Headley picked Ishrat Jahan.

“By asking such leading multiple choice questions in court, Nikam seems to be crafting a new jurisprudence,” said Grover, while pointing out that Nikam was recently awarded a Padma Shree, one of the highest national honours in India. “By giving Headley three names, he was actually feeding him the information. I am shocked that this has been allowed to enter judicial records.”

The other major problem with Headley’s testimony on Jahan, says Grover, is that he admittedly was not a direct witness. “For the past two days in court, Headley has not been a reticent witness. He has given names of many top LeT leaders without fear,” said Grover. In the case of female suicide bombers, he stated that he did not know any names. “What he claims he knows about the botched-up operation is based on hearsay," Grover said. "In Indian law, a witness can only be someone who has directly seen or heard something. So this cannot be taken as evidence in law.”

A brief history of the Ishrat Jahan case

Ishrat Jahan Raza was a 19-year-old college student from Mumbra, a Muslim-dominated town north of Mumbai. On June 15, 2004, early in the morning, she was killed by the Gujarat police in an alleged encounter on a highway near Ahmedabad. Three others were killed with her: Javed Sheikh, who was also known as Pranesh Pillai, Amjad Ali Rana and Zeeshan Johar.

According to the Gujarat police team, led by former deputy inspector general DG Vanzara, all four were recruits of the Pakistani terrorist organisation, the LeT, and were operatives in a plot to kill Narendra Modi.

Soon after, allegations emerged that the encounter was a fake one and that Ishrat Jahan and the three men with her were in fact murdered by the Gujarat police. Jahan’s mother, Shamima, claimed that her daughter was merely working with Javed Sheikh in his perfume-selling business and had been falsely implicated in the LeT ploy. She had no criminal background, according to Mumbai police records.

A 2004 report by an independent fact-finding team of the People’s Union for Civil Liberties questioned the police version of events, pointing out that there were no bullet marks or other damage in the area where the 30-minute encounter allegedly occurred. After the four were killed, the police did not follow routine procedures such as filing a First Information Report, a charge sheet or any witness statements.

Big bosses named

In 2009, the first report investigating these allegations was submitted by the Ahmedabad Metropolitan Magistrate, SP Tamang. The report backed the claims that the encounter was fake, stating that the four alleged LeT operatives were actually kidnapped on June 12, 2004, and killed in police custody two nights later before their bodies were placed on the highway to make it look like an encounter.

The Gujarat government challenged the Tamang report in the High Court, and in 2011, a special investigation team submitted to the court that the Ishrat Jahan encounter was fake. Murder cases were lodged against Vanzara and other police officers involved in the encounter, and the Central Bureau of Investigation filed a charge sheet in 2013. By this time, Vanzara had already served six years in jail as an accused in the 2005 Sohrabuddin Sheikh fake encounter case.

On June 4, 2013, deputy superintendent of police DH Goswami recorded a statement as a police witness with the judicial magistrate, implicating the top brass of Gujarat’s BJP government in the Ishrat Jahan encounter. Goswami stated that on June 13, 2004, he heard Vanzara telling his junior officer that he had permission to kill Jahan from chief minister Modi and then-home minister Amit Shah. The BJP promptly announced that this was a scam intended to discredit Modi, who was, at the time, campaigning for the prime minister’s chair.

‘Law does not allow killing in custody’

Last February, barely six weeks after Amit Shah was given a clean chit in the Sohrabuddin case, Vanzara was granted bail in the Ishrat Jahan case along with PP Pandey, suspended additional director general of police. As of now, the case is at a standstill in the High Court, with the CBI not pursuing it further.

This, according to Grover, raises questions that must not be forgotten in the midst of all the noise generated by Headley’s claim about Ishrat Jahan.

“Why is the trial not happening in Gujarat? Is it because the former Gujarat chief minister and home minister are mentioned in DH Goswami’s statements? Is the CBI not a free agency?” said Grover. “And why was Headley asked about Ishrat in a 26/11 trial in the first place?”

At the end of the day, however, Grover emphasises that Headley’s statement should make no difference to the cases of murder against various police and Intelligence Bureau officials in relation to the Ishrat Jahan case. “The SIT and CBI investigations already show that the encounter was fake. And the Indian law does not allow the police to kill anyone in custody, even if he or she is a terrorist.”