Convicted By People’s Court

Gulzar Ahmad Bhat alias Gulzar Peer, a self-styled darwash (sufi holy man), is in jail even after the court acquitted him as the government fears the locals will protest violently if he is rel­eased. The court pronounced him ‘not guilty’ of  raping girls in his seminary at Shamsabad hamlet of Budgam district, around 30 km from Srinagar. Bhat had thousands of followers in the Valley—until his fall from grace with his arrest on May 19, 2013 under Section 376 of Jammu and Kashmir’s Ranbir Penal Code.

After his acquittal and protests against his release, the state government has been invoking the preventive detention law, Public Safety Act (PSA), to keep him behind bars. Now he shares the fate—as well as living space—with the large numbers of young men and former militants held in Srinagar’s Central Jail, most of them under PSA.

A local cult figure, Bhat was arrested from his seminary named Noorni Fatima Zuhra after four minor girls alleged Bhat had raped them. In their statement under Section 164 of the Criminal Procedure Code, the girls said Bhat would call them separately to his room, in a mud house, during the night, and rape them. The exercise was call “purification of the soul”, much like the infamous “Pitaji ki maafi” in the Gurmeet Ram Rahim case.

According to the statement of one of the girls—prosecution witness number one—she was taken one evening to “Bub”, a revered name for a sufi. “She entered the room and Bhat asked her to bolt the door,” reads the statement. “He enquired about her family and said he had seven positions, of which he will give one to her, but she should not divulge this secret to anyone. She was happy knowing she may get some position (in the sufi order). Bhat then asked her to give her hand in his hand and to swear in the name of god that she will not divulge this to anyone and the matter shall stay with the two of them. Then he told her that her body is like fire whereas his body is ‘noor’ (blessing). He said any part of her body touched by his body would be safe from the fires of hell and then gave her water to drink and took her to the bed.” The girl all­eged she was raped there, while the tape recorder played at such a high volume that the noise was not heard outside the room. She also alleged he used to chant mantras to put them in a trance.

Bhat could not learn to read and write; he used to tend to animals. His parents got him married in 1993, but the marriage didn’t last long and he became a wanderer. He became popular with his sermons on religion and sufism; people started calling him a ‘peer’. Experts on sufi traditions in the Valley always knew he was a charlatan.

The Valley went into shock when they came to know of the girls’ allegations. Across the political divide, everybody condemned him and demanded severe punishment. The seminary was a boarding school of sorts, where girls used to stay for months to learn texts on sufism developed by Bhat. The police claimed that he raped four of these girls and accused 12 seminary workers of “facilitating ­commission of the offence”.

The prosecution failed to prove the charges against Bhat. On February 17, 2015, the Budgam district judge acquitted him, blaming the prosecution for being lax. According to the judgment, the def­ence had cited “inordinate” and “unexplained” delay of more than 160 days in lodging of the FIR. The verdict provoked disgust across the Valley.

According to the prosecution’s case, the girls had first informed their parents, who rushed to the seminary and created a scene. Later, they approached a cleric in Bandipora and Dukhtaran-e-Millat chief Aasiya Andrabi, who promised they would intervene. When no action was taken, the parents met Anantnag-based religious scholar Moulvi Muhammad Amin, who accompanied them to the pol­ice station in Humhama. That was when the FIR was lodged and the arrests made.

The judgement noted: “In case the families had chosen to refer the matter to religious as well as political institutions...the FIR should (still) have been lodged immediately after the occurrence and they (the police) should not have waited for about six months. What emerges is that the delay in lodging FIR has not been explained by the prosecution and this unexplained delay causes a very serious infirmity over the case of the prosecution.” The judge contended that the political leaders and clerics should have been asked to corroborate as witnesses that the girls and their families had indeed approached them.

Moreover, the three independent witnesses in whose presence the police claimed to have seized the “bedding on which the alleged rape used to take place” denied it. That’s not all—the executive magistrate who had sealed the items, including bed clothes, and sent them to the forensic laboratory, died before the court could record his statement, and the prosecution failed to prove the sealing using secondary evidence.

The girls had alleged they used to be given some sedative drink before being raped, but the prosecution failed to prove this with “cogent evidence”, the court said. It also dismissed the allegation that the accused could make the girls unconscious by reciting mantras, as “not acceptable to modern science”. “[N]or has the prosecution been in a position to establish that the accused...[had] any mantras, the recital of which will make a person unconscious,” the judgement reads. Moreover, “it is ast­onishing to observe that the semen stains have not been compared with that of the accused.”

The court said there were about 80-100 girls in the seminary, but nobody was cited as a prosecution witness and no test identification parade was conducted. “It is true that the FIR is not an encyclopedia of the prosecution case, but once they have named certain girls, it was inc­umbent upon the investigating agency to conduct the test identification parade of the girls mentioned in their statements,” the court said and ordered Bhat’s release.

The acquittal triggered widespread resentment in Kashmir. Fearing law-and-order problems, the police took Bhat into preventive custody under the PSA. Massive public pressure forced the state government to file an appeal in the high court against Bhat’s acquittal, contending that the trial court order revealed “non-application of mind” as “undue weightage has been given to the factum of delay in lodging the FIR and the consistent, coherent and overwhelming depositions of the victims have been brushed aside on flimsy grounds.”

On February 23, 2017, a division bench of Justices Janak Raj Kotwal and B.S. Walia, however, upheld the trial court order acquitting Gulzar and 12 others in the case. “The judgement of acquittal rendered by the learned trial court does not call for any interference by this court and this appeal (against the acquittal of Gulzar by the state government) is therefore dismissed as without any merit,” the division bench said.

“Even though delay in lodging the FIR will not by itself be a ground for dis­believing the prosecution story...a duty is cast on the prosecution to explain the delay and an obligation is cast on the court to take notice of such delay and to adjudicate whether explanation ­tendered by the prosecution is satisfactory and real. If a particular fact is tendered as cause of delay, the prosecution is required to prove the same by leading evidence. Even in cases involving sexual offen­ces, delay is required to be explained, though criteria ­involved in such cases may not be that high as it is in ­other offences,” the division bench said directing the release of Bhat and the others.

Criminal lawyer Mushtaq Ahmad Dar, who pleaded Bhat’s case at the trial court and the high court, tells Outlook his client was falsely implicated and that’s why he won the case both at the trial court and the high court. “Four girls had alleged they were raped by my client. I cross-examined them thoroughly and then the court also conceded my arguments,” he says. “The prosecution failed to prove the case. It failed miserably.”

But even this high court order could not set Bhat free. Neither the government nor the people believe he is innocent. “We have filed an appeal against the HC division bench judgment in the Supreme Court,” J&K advocate-general Jehangir Iqbal Ganai tells Outlook.

By Naseer Ganai in Srinagar