Terrorist’s killing exposes how the Indian criminal justice system let down Pandits massacred in Nadimarg

Eighteen years after Nadimarg, then, there’s still no closure: the trial meant to establish the Lashkar’s involvement has died along with Zia Mustafa

Each bullet was fired with precision, fired upwards from below the victims’ jaws, exiting through the back of the skull: The killers knew how to make sure their 24 victims would never have a story to tell, not the two-year-old child, not the 65-year-old man, not the 11 women. Then, they calmly walked from home to home, searching for money and gold. Their job done, the terrorists ambled across the stream that runs through the village into the woods behind it, taking with them bullet-proof jackets, rifles and a carbine seized from the local police.

Last week, the Jammu and Kashmir Police shot dead Zia Mustafa, the only perpetrator ever prosecuted for the March 2003, massacre of the tiny Kashmiri Pandit community in the village of Nadimarg—the largest massacre of its kind, after the Wandhama killing, in 1998. Leaders of the Kashmiri Pandit community have said they see Zia’s killing as “divine justice”.

Except, it’s no justice at all.

For an astounding 18 years, court records obtain by Network18 show, incompetent investigators and prosecutors colluded to ensure Zia’s trial was not concluded—which means responsibility for Nadimarg will now never be legally be established. Little evidence was gathered; witnesses never appeared in court.

In those 18 years, meanwhile, Zia emerged at the centre of Lashkar-e-Taiba in Kashmir, recruiting cadre, passing messages and, regularly liaising with the terrorist group’s top military commander, Sajid Jatt—the leader, among other things, of the terrorist group which has killed nine Indian soldiers in Poonch this month.

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Early in 1989, at the dawn of the state’s long jihad, Kashmiri terrorists initiated a savage campaign of assassinations targeting the region’s tiny Pandit community: over a hundred killings, many of influential citizens, led an estimated 58,000 families to flee their homes. From Nadimarg, seven of the village’s eleven Pandit extended families—some with assets or relatives in Jammu, others with nothing—joined the refugees. Four extended families, some 52 people, stayed on, hoping to hang on to their lands and homes.

For years, it seemed that their decision was a pragmatic one. Local terrorists, police investigators were to find, often stopped by in the village, seeking a meal or shelter for the night—but there were no killings or threats.  Earlier that month, two Lashkar terrorists had even watched an India-Pakistan cricket match in one of the Pandit homes, along with police officers stationed in the village for the community’s safety.

Late on the night of 23 March, police constable Abdul Rashid called out to the residents of the Pandit homes, saying army soldiers had arrived to search the village. The victims saw men in uniform, some with scraggly, long beards. Then, they saw death.

From early in the investigation, two police officers involved in the case have told Network18, survivors’ accounts, and the interrogation of the police officers assigned to guard Nadimarg, generated intelligence on exactly which Lashkar-e-Taiba unit had carried out the massacre. Early in April, three Lashkar terrorists the police said were involved in the attack were shot dead near Kulgam; the weapons and bullet-proof jackets stolen at Nadimarg were discovered from the site, according to court documents.

Weeks later, the Lashkar’s Kashmir chief, Manzoor Zahid Chaudhary—alleged to have ordered the Nadimarg massacre, as well as an earlier attack on the Akshardham temple in Gujarat as revenge for the 2002 communal violence—was eliminated by the Border Security Force.

Then, on 11 April, then-Director General of Police AK Suri announced Zia’s arrest—opening the way to the trial of the only Nadimarg perpetrator, intended to establish the Lashkar’s involvement in the massacre, and of its patrons in Pakistan.

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From court records, though, it’s clear investigators didn’t find—or bother looking for—evidence to tie Zia to the crime. Forensic evidence wasn’t sought at the Nadimarg site; Jammu and Kashmir authorities had only rudimentary, and rarely-used fingerprint infrastructure at the time. Even the Kalashnikov assault rifle, and 90 rounds of ammunition, found on Zia wasn’t subjected to any tests. The one-page, hand-written Final Form Report filed by the Jammu and Kashmir Police with the trial court had a single sentence stating investigations had shown Zia’s involvement—but not how.

The witnesses who might have established the truth were never produced in court by the prosecution. From 2003 to 2011, records of the Shopian Principal Sessions Judge’s court show, just 12 of 38 named witnesses appeared to testify; nine did not acknowledge summons from the court, and could not be traced even when arrest warrants were issued. None of the witnesses who did appear named Zia. In Kashmir, and among some human rights groups in the West, claims had proliferated that the Nadimarg killing was an Indian covert operation, carried out by its military to discredit the secessionist movement. The trial was meant to bury these claims once and for all—but was now threatening to unravel.

For the witnesses, though, the prospect of returning to Kashmir was a terrifying one. Faced with demands from Kashmir Pandit groups to transfer the case to Jammu, the state government moved the high court. For reasons that are unclear, though, government lawyers did not press their case for transfer; the high court recorded it was withdrawn.

In December, 2009, the sessions judge gave prosecutors a schedule of eight hearings, beginning in four months and running across two more months, the last chance to produce 17 witnesses, all survivors of Nadimarg. For six of those eight hearings, nothing happened. Then, prosecutors asked for the setting up of a commission that could travel to Jammu and record the survivors’ testimony.

The sessions judge refused: “The case has been listed in this court 120 times in the last eight years and 82 times the accused number 1 has not been produced”, he observed. Zia’s rights as an accused, as well as those of the Nadimarg police guards being tried with him, were being prejudiced by the long delay, the judge reasoned. Prosecutors had eight years to move for the setting up of a commission; their attempt to do so at this stage appeared to an effort to stall the proceedings further.

In 2014, the Jammu and Kashmir government moved the High Court against the sessions court’s decision—but after its lawyers failed to show up for two successive hearings, Justice Mohammad Yaqoob Mir dismissed the appeal.

The government now moved the Supreme Court, and in 2015, won an order condoning its delay in appealing the lower court’s judgment. The Supreme Court asked the Jammu and Kashmir governments to seek reconsideration in the high court.

Again, lawyers for the state government chose not to show up and argue their case. In August, 2017, Justice Mir recorded that this suggested “a lack of interest”. The state government’s plea to have a commission set up to record witness statements was, once again, dismissed.

The case was set to be sent back to the sessions court, for the defence to now present its evidence. “Frankly”, says Zia’s court-appointed lawyer, Mubashir Gattoo, “there wouldn’t have been very much for me to argue, because not one witness had said a single word implicating my client in the massacre”.

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Late in 2018, though, the intelligence services in Jammu and Kashmir had developed a new set of concerns about Zia: along with Waqas Manzoor, Zafar Iqbal, Muhammad Abdullah, Zubair Talha, Muhammad Ali Hussain and Naveed Baloch, the government said the alleged Lashkar terrorist was recruiting cadre from among prisoners, and passing messages to active cells. In petitions heard by the Supreme Court in 2019, the Government also asked for their trials to be transferred out of the state.

Zia, a highly placed intelligence officer told Network18, was using a smuggled cellphone’s 4G service to make encrypted calls to key Lashkar leaders—among them, his own brother, Amir Zia.

Amir Zia is believed to be the head of the Jama’at-ul-Dawa, the Lashkar-e-Taiba’s parent organisation, in Rawlakot, a city in Pakistan-occupied Kashmir. Local media accounts show that Amir Zia has been active in mobilisations on the Kashmir issue. Amir Zia did not respond to Network18’s request for comment.

In addition, a senior Jammu and Kashmir Police official said, Zia was in touch with Sajid Jatt, the Lashkar’s head of military operations targeting Kashmir. Sajid—married to an ethnic Kashmiri, and father to a teenage boy who lives with his grandparents near the south Kashmir town of Kulgam—is among other things alleged to have organised the infiltration of the Lashkar unit operating in Poonch, and arranged drone-drops of weapons used in recent assassinations of civilians.

Zia’s phone communications, the police official said, provided the intelligence services with a valuable source of intelligence on Sajid Jatt’s plans—but then, events showed his communications were as much security threat as information windfall.

Following the killing of the nine soldiers, police obtained legal authorisation to take Zia from Udhampur jail to Poonch, claiming he was needed to help identify terrorist hideouts. There, he was shot dead, under circumstances that remain unclear.

Eighteen years after Nadimarg, then, there’s still no closure: the trial meant to establish the Lashkar’s involvement has died along with Zia. There is now no realistic prospect of ever gaining a credible account of who planned the massacre, and why. There has been an investigation, either, of the poor investigation of the case, and the sloppy prosecution. Even though Zia’s killing might seem to some to be a crude kind of justice, likely to power years of damaging conspiracy theories and propaganda.

“This is how all stories end in Kashmir end”, says lawyer Gattoo, reflectively. “In the end, no-one gets justice”.

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