A summary of the detailed response of People’s Union For Civil Liberties, Rajasthan, to the Governor’s concerns regarding the pardon of Dr Chishty
The General Secretary of the People’s Union For Civil Liberties (PUCL) Rajasthan in a letter dated July 8, 2011 responds point by point to the Governor Rajasthan’s concerns regarding the pardon of Dr Chishty.
In the first place, she notes, “The petitioner (Dr Chishty) has not filed a writ petition before the Hon High Court. The petitioner has rather challenged the legality and validity of the judgement passed by the learned additional district and sessions judge (FT-1), Ajmer, dated 31st January, 2011 by which he has been convicted.
“A bare perusal of the record will go to show that the assailants attacked the house of the present applicant armed with sharp edged weapons. The quarrel took place on the roof of the house belonging to the applicant’s family. In this regard there is evidence of independent police personnel who were present there to stop the quarrel including one who was injured. The police personnel’s statements examined as PW-4 and PW-5 are annexed. (See Annexure- 1-A and I -B) They have specifically stated that the house of the applicant was attacked by the opposite party and even one of the policemen was injured while saving the applicant and the other family members.
She also notes that “the persons who attacked the house of the petitioner (the victim’s family) have also been convicted by the same court on 31st January, 2011 in the case number 178/ 2001-FIR number 98/1992, Thana Ganj and they have been sentenced for ten years rigorous imprisonment. (See Annexure II) Thus the entire finding given by the trial court is erroneous in the sense that on the one hand it convicts the person who attacked the house of the petitioner armed with weapons on the other hand it convicts the petitioner for exercising his right of private defence.”
Regarding the Governor’s opinion that Dr Chishty has exaggerated his medical condition, she notes that the medical report provided by the jail “does not give the history of paralysis heart ailment and the femur bone fracture. If his condition is stable then it is because of the pills that are part of his treatment, which was not mentioned in his report.”
She provides the relevant doctors’ prescriptions and the cardiologist’s opinion that Dr Chishty must continue the prescribed drugs (“which shows that the 2008 heart condition has persisted even now”, a condition that is repeated “when he is taken on 8th April 2011 for a check up”).
She lists a short history of his condition showing that “he has suffered seriously the following ailments”:
1. Benign Prostatic Hypertrophy (since last five years)
2. Ishchemic heart disease since 2008
3. Left ventricular failure (LVF) (in local parlance called congestive heart failure), HTN (Hypertension) and Cerebro vascular accident (In local parlance called brain stroke) since 2008 for which he was admitted in the JLN (Government) hospital in, Ajmer. (See the discharge ticket- 13/02/08) and Prescription (4/11/08) Annexure III- A)
4. Left sided intertrochantrix fracture of femur on 10/03/10.
5. For L.L. fracture he was about to be operated, but developed convulsions and became unconscious during anaesthesia, so was not operated and is recorded in the Mittal Hospital documents ( See Annexure IV-)
6. 23/04/2010 – after six weeks skeletal traction applied pins and needles at the knee joints. He was catheterized for three months, so developed urinary tract infection.
7. 01/07/2010 – Pin traction did not work, so was removed. He got bandaged and was sent home with walker and wheelchair. In the X-ray, fracture sight was not healed. Urination, stool passing, daily bath etc. all on bed in that period.
8. Being without his family, with the trial not reaching any conclusion, living in isolation he suffered physical, mental and emotional trauma which has changed his mood and psychology. He has developed a communication gap with other people, he feels insecure and is irritable, and wants to be left alone. This may be a condition of mental depression which was never examined ever by any Psychiatrist.”
To the Governor’s somewhat bizarre question about why the trial dragged for nineteen years, the PUCL General Secretary responds that the case was “pending in the trial court for more than nineteen years because of the prosecution as well as the procedural complications for which Dr Chishty cannot be blamed. Rather Dr Chishty was living in a situation of house arrest because he was supposed to report to the concerned police station every fortnight. Dr Chishty would have been the last person to get the trial delayed as he would have been the first person to be free after the trial and return to his home in Pakistan. He had no other objective in life other see the trial conclude.
“In fact the court was an ordeal for him as dirty abuses were shouted by the other party constantly in court, almost within the Judge’s earshot,” she adds.
For example on 16th March, 2002, when Sakina Chishty, a witness, was giving her statement in the court, the other party “abused her and Tasleema another witness and all of us, and also threatened us inside the court room” prompting the Honourable Judge to instruct the concerned police station (Roadways Bus Stand Chowki, Civil Lines) to investigate and lodge a case. The Civil Lines Police Station subsequently lodged a case (341, 323, 504 IPC), which was charge sheeted in 2003 (Case number 677 / 2003, State of Rajasthan Vs Shamim and others), which is still under way.
“It is also pertinent to note that Mr Gandevia, the special public prosecutor, got the proceedings delayed for about two years by not cross-examining Dr Chishty during the proceedings. The order sheets can be provided on demand.”
The Governor’s objections included a query relating to reasons for the grant of bail in a murder case, to which the PUCL General Secretary responds, “the grant/rejection of bail is not final determination of the guilt of an accused. There have been innumerable cases wherein bail was rejected but after the completion of trial the accused were acquitted. Bail is basically based on prima facie material available on record. It does not constitute any final opinion with regard to commission of an offence. Dr Chishty was granted bail at the commencement of the trial because prima facie his involvement and alleged role was not found to be the one to come within the definition of section 302 of the IPC. … In the present case Dr Chishty bail continued for approximately for twenty years as he never misused the liberty granted to him. Dr Chishty always followed the condition imposed by the court while granting him bail.
“It is worth noting that in the High Court the victim’s family never opposed the suspension of sentence of Dr Chishty.”
Furthermore, the objections to Dr Chishty’s mercy petition by the wife and son of the victim “are not in consonance with the record of the case and the conduct of Dr Chishty throughout the trial”.
“The representation made by Siddika Devi wife of the victim is basically a representation by the wife of a person who attacked the house in which Dr Chishty was residing with his family. The Victim was part of the same unlawful assembly of persons armed with deadly weapons who entered the house where Dr Chishty and others were living. Moreover even the trial court has convicted the other members of the said unlawful assembly and would the victim have been alive, he would be confined to jail like the other assailants. Thus the representation made by Smt Siddika Bibi cannot be the basis of rejection of the mercy petition.
“It is clear that the Collector and the SP did not study the entire case and were probably biased as Dr Khalil Chishty is of Pakistani Nationality. (Incidentally the bias was there even in the court and in the FIR where instead of his name Dr Chishty, he was called ‘Khaleel Pakistani’.)”
Ms Srivastava contends that “The Collector and SP failed to see spirit of the jail manual” (Prisons Act of Rajasthan, 1894) according to which “the Superintendent shall on the 1st of May every year submit to the Inspector-General a list showing the names of every convict who, owing to old age, illness, and infirmity is permanently incapacitated from the commission of further crime of the nature similar to that for which he has been convicted. In cases which appear to him suitable for reference to the government, the Inspector-General, after obtaining the views of the Magistrate where the convicts reside, whether there is any objection to conditional or unconditional release of the convict, shall report the names of such convicts to the government of Rajasthan with his recommendations whether or not the convict should be released.”
“Dr Chishty’s was a fit case as he has been permanently incapacitated and is in no state to carry out a similar crime for which he has been convicted.”
To the Governor’s question of whether the grant of pardon will affect the judicial proceedings adversely, she gives a negative response because the co-accused with Dr Chishty are already out on bail as are the accused in the cross case. “Thus if Dr Chishty is granted bail like the other co-accused persons on both sides then no prejudice will be caused to either of the party.”
– Beena Sarwar
