Kashmir Report

‘Bona fide photojournalist’: Court blows holes in NIA’s case against a ‘stone pelter’ in Kashmir

Six months after being arrested by the National Investigation Agency in a terrorism funding case, Kamran Yousuf walks out on bail.

Kamran Yousuf, a Kashmiri photojournalist arrested by the National Investigation Agency in September 2017, was released on bail on March 14. Yousuf, aged about 20, is charged with stone pelting and other “subversive activities”.

Granting him bail, Additional Sessions Judge Tarun Sherawat observed, “It is apparent that mere presence of the accused at the site of incident is not sufficient to implicate such accused, who is a journalist, for the offences that allegedly occurred during that period at that site.”

Sherawat noted that Yousuf covered “all kinds of incidents ranging from social, cultural, political and economical and other activities in the Kashmir Valley and as such, in my considered view, his presence on the sites of stone pelting incident etc is intrinsic”.

He also observed that the investigating agency had not “placed on record any single photo/video showing that the applicant/accused was indulging in stone pelting activities at any site”.

To hold that the agency’s “accusation is prima facie true”, the court concluded, “would make a serious dent into the realm of personal liberty of the applicant/accused as guaranteed under Article 21 of the Constitution of India”.

‘Bona fide photojournalist’

Detailing its reasons for granting Yousuf bail, the court said the prosecution had not “levelled any specific allegations against the accused/applicant that he has been a member of any particular banned organisation as per First schedule annexed to the UA(P) A [Unlawful Activities (Prevention) Act].” Even so, “mere membership of a banned organisation” did not make a person liable to criminal prosecution unless they resorted to violence or incited others to violence, the court added, citing the Supreme Court’s judgement in Arup Bhuyan v State of Assam, 2011.

Second, the court said, the prosecution had not been able to show any “direct/indirect linkage” between Yousuf and any of the other accused in the case. Third, he was not found to be involved in any “terrorist activities” or similar offences in the past. Fourth, no incriminating material, “explosive or otherwise”, had been recovered from him.

“On the other hand, the applicant/accused has shown himself a bonafide photojournalist of the disturbed areas of J&K,” the court said.

‘Only covered anti-national activities’

On January 18, the National Investigation Agency had framed charges against 12 people for carrying out “terrorist and secessionist activities in the State of Jammu and Kashmir”. They included Lashkar-e-Taiba chief Hafiz Saeed, Hizbul Mujahideen chief Syed Salahuddin, several leaders of the separatist All Parties Hurriyat Conference and so-called stone pelters. Yousuf featured on the list as one of the stone pelters. Charge were filed under sections of the Unlawful Activities (Prevention) Act.

The chargesheet spoke of a “well-planned criminal conspiracy” hatched in Pakistan under which “the terrorists and the stone pelters are carrying out terrorists attacks and orchestrating violence”. According to the investigating agency, the Hurriyat routed funds from Pakistan to a network of the group’s cadres, who then incited local youth to violence.

Specifically about Yousuf, the agency argued in its chargesheet that had he been a “real journalist” he would have performed his “moral duty” of covering developmental activities in his area. The agency contended that Yousuf never covered any “developmental activity” of any government department or agency, neither did he attend inaugurations of hospitals, school buildings, roads and bridges. He only covered “anti-national” activities, it claimed.

Masks and messages

In the court, the National Investigation Agency’s counsel reiterated that Pakistani intelligence agencies and various terrorist groups, aided by the Hurriyat, trained and equipped Kashmiri youth in their “secessionist agenda”. As such, “masked stone pelters” organised at the local level had become the “armed wing” of the Hurriyat.

The counsel further submitted that WhatsApp groups active in Kashmir had been analysed and certain mobile numbers found to be persistently located near the sites of counterinsurgency operations were identified. From this, the counsel claimed, Yousuf “was found to be involved in several stone pelting incidents” and was in touch with “overground workers”, the term used in Kashmir to describe non-combatants who provide logistical support for militant groups. The prosecution also said call detail records had placed Yousuf at the site of various incidents and submitted statements of three witnesses. The counsel rejected Yousuf’s claim that he was a photojournalist covering the incidents on the grounds that he was not a permanent employee in any media organisation – a contention the court rejected.

The defence counsel countered that the people on whose statements the prosecution’s case rested were deployed as security personnel during such operations and so were “interested witnesses”. Unless their statements were corroborated by “irrefutable linking evidence”, she argued, they would amount to nothing. Moreover, the witnesses had made “vague statements” that did not mention the time or place of any particular incident. She also asked how the witnesses were able to identify the accused if, as the prosecution mentioned, the stone pelters were masked.

The prosecution replied that the description of masked stone pelters had been a “general statement”. The court responded that even then a “TIP”, or test identification parade, should have been conducted to identify the accused.

The court also observed that the investigating officer in the case had not been able to prove any “direct linkage/chat conversation” between Yousuf and the other accused in the case. The defence counsel, the court said, had submitted details of those he was in touch with. They included police officers as well as other journalists but none of the co-accused. If Yousuf was in touch with other suspects, the court said, it was not clear why they had not been named in the chargesheet.

Yousuf was released after the payment of bail bonds with two sureties of Rs 50,000 each. He will have to report once a week to his local police station or the branch of the National Investigation Agency in his area. He will also have to join further investigations as and when required by the investigating officer and attend all court hearings. The next hearing is scheduled for March 28.

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