Asif Iqbal Naik : Kishtwar October 19:- Historic judgment of Supreme Court of India in connection with writ petition filed by Prof. Bhim Singh and State Legal Aid Committee, J&K headed by him, challenging detention of over 300 foreign prisoners including Pakistanis in Indian jails. Prof. Bhim Singh has challenged the continued detentions of the foreign prisoners from 10 to 15 years even after completion of their sentences. In a press statement issued today by Prof. Bhim Singh, It was after hearing the arguments of Prof. Bhim Singh, Sr. Advocate and Mr. P.P. Malhotra, the Additional Solicitor General that Supreme Court comprising of JJ Mr. R.M. Lodha and Mr. Anil R. Dave passed the following order;
“By our order dated August 8, 2012, Ms. Dilshad, Additional Secretary, Home Department, Government of Jammu and Kashmir, was directed to remain personally present today to show cause why she should not be proceeded with under contempt jurisdiction of this Court for making a misleading statement in para 5 of her affidavit dated July 26, 2012.
The press statement stated that in pursuance of the above order Ms. Dilshad, Additional Secretary, Home Department, Government of Jammu and Kashmir, is present. She admits that the statement made in para 5 of her affidavit dated July 26, 2012 was not correct and the mistakes crept in the said affidavit in respect of Sikander Azam. She has tendered unconditional written apology for her lapse.
Now, since Ms. Dilshad, Additional Secretary, has admitted her lapse and also tendered unconditional written apology, we are satisfied that no further action needs to be taken against her. Contempt notice issued to her is discharged.We are also informed that Sikander Azam has been repatriated on October 9, 2012.
An additional affidavit has been filed by the Union of India through Mr. Vikas Srivastava, Under Secretary (Foreigners) in the Ministry of Home Affairs, Government of India, New Delhi. It is stated in that affidavit that out of 29 Pakistani nationals as per the list Annexure ‘D’ of the affidavit dated August 2, 2012, nationality of 4 has been confirmed by the Pakistan High Commission. Abdul Hamid s/o Muhammad Maluk (serial No.7), Rahila Akhtar d/o Irfan Ullah w/o Muhammad Afzal (serial No.9), Mohd. Asif Khan s/o Yousuf Khan (serial No.2) and Nadeem Sarwar s/o Akram (serial No.12) as per that list have been repatriated on September 18, 2012, September 18, 2012, October 9, 2012 and October 9, 2012 respectively. As regards remaining 25 prisoners, Mr.P.P. Malhotra, learned Additional Solicitor General, submitted that despite communications sent to Pakistan High Commission, their nationality has not yet been confirmed.
With regard to these 25 persons, we direct that those whose nationality is confirmed by the Pakistan High Commission shall be repatriated as early as may be possible and in no case later than three weeks from the date of receipt of no objection from the Government of Jammu and Kashmir by the Ministry of Home Affairs, Government of India.
We record and accept the assurance given by Ms. Dilshad, Additional Secretary, Home Department, Government of Jammu and Kashmir, to this Court that the Government of Jammu and Kashmir shall henceforth expedite the process of sending no objection for repatriation once the Government of Jammu and Kashmir decides not to challenge the acquittal of the prisoners in the aforementioned list on completion of their sentence.
In so far as Ikram Asif @Kamran s/o Mohd. Asif (serial No. 199) of the above list is concerned, now since the Government of Jammu and Kashmir has decided not to file appeal against his acquittal, we direct the Government of Jammu and Kashmir to send its no objection for repatriation to the Ministry of Home Affairs, Government of India, within 10 days from today. We further direct the Ministry of Home Affairs, Government of India, to repatriate him within three weeks from the receipt of no objection from the Government of Jammu and Kashmir.
In respect of Zulfikar Ali Rana @Iqbal, s/o Mohad. Yaseen (serial No. 129), it is stated in the above affidavit filed by the Government of India that he has been repatriated on October 9, 2012.
As regards Saqib Aziz Malik @Abu Said s/o Abdul Aziz Malik (serial No.231), Allah Ditta s/o Late Jahan Mohd. (serial No. 246), Baber Naseem Wardak s/o Hamid-ul-Rehman (serial No.211), Mohd. Adnan Malik Code Abu Dakda s/o Mohd. Ashraf Malik (serial No. 219), Mohd. Shafqat Shah Code Abu Mavia s/o Mohd. Liyaqat Shah (serial No.221), Ajaz Ahmad Bhat s/o Reyaz Ahmad (serial No. 229)and Mohd.Suhail @Amir s/o Mohd.Anwar (serial No. 20) and Waseem Ahmed @Abu Mohammad, s/o Mohd. Hussain (serial No. 21), it is stated that the Government of Jammu and Kashmir has decided to challenge their acquittal before the High Court or this Court, as the case may be. Obviously, in view thereof, presently no direction can be issued for their repatriation.
Mr. Sunil Fernandes, learned Standing Counsel for the State of Jammu and Kashmir, has informed us that the investigation into the crimes against Jameel Ahmad Awan (serial No.316) and Abdul Majid Ariya (serial No.317) has now been completed and charge-sheet has been filed in the Court of Chief Judicial Magistrate, Jammu. With regard to these two persons as well no further order needs to be passed by us.
We are pained and concerned about Abdul Sharif s/o Gulam (serial No.151 of list Annexure ‘D’ of the affidavit filed on February 24, 2012). As per that affidavit, Abdul Sharif has completed his sentence way back on July 17, 1997.
According to that affidavit, Pakistan High Commission has informed that he was not Pakistani national rather he was an Iranian national. On supply of this information by the Pakistan High Commission, the Ministry of External Affairs, Government of India, was requested to take up the matter with the Embassy of Iran and it is stated that Ministry of External Affairs has made a reference of this person to the Embassy of Iran. Although about 10 months have passed since then but no further information has been supplied to this Court in any of the subsequent affidavits filed on behalf of the Government of India whether the Embassy of Iran has confirmed the nationality of Abdul Sharif s/o Gulam or not.
We direct the Ministry of Home Affairs and the Ministry of External Affairs, Government of India, to file appropriate affidavits before this Court through responsible officers giving the present status regarding confirmation of nationality of Abdul Sharif s/o Gulam.
From the additional affidavit filed by Mr.Payingattery Venkiteswaran Sivaraman, Director (Foreigners) in the Ministry of Home Affairs, Government of India, New Delhi in the month of April 2012, it transpires that he is detained in a separate barrack in Amritsar which has been declared by the Government of Punjab as a detention centre. In our view, his continuous detention even in a detention centre when he has served out his sentence way back on July 17, 1997 is not only not proper but highly deplorable. All necessary steps ought to have been taken by the concerned officials/authorities of the Government of India in getting his nationality established so that he could be repatriated to the nation he belongs without any delay. We now expect the Ministry of Home Affairs and the Ministry of External Affairs, Government of India, to take all necessary steps in having the nationality of Abdul Sharif s/o Gulam confirmed without any further loss of time.
List this Writ Petition on November 29, 2012.
W.P(CRL.) NO.233 of 2011; W.P(CRL.) NO.236 of 2011 and W.P (CRL.) NO.82 of 2010.
List these Writ Petitions along with Writ Petition (Criminal) No. 310 OF 2005 on November 29, 2012.”