The 223-page Encounter Probe report, submitted by the judge to the high court on July 15, was released to the lawyers today. The report also criticises Mumbai police for not having taken enough care to build a strong case.

Justice A P Shah and Justice J A Patil of the Bombay High Court had directed Judge Aguiar to hold a probe into the deaths of Sayama, Pawle and Tandel after hearing a bunch of petitions challenging two separate encounters in which the three were killed. While the Samajwadi Party had filed a petition challenging the killing of Abu Sayama (who police had claimed to be dreaded criminal Jawed Fawda) on August 28 last year alleging that it was a case of mistaken identity, petitions filed by People's Union for CivilLiberties (PUCL) and Committee for Protection of Democratic Rights (CPDR) had questioned the gunning down of the two Gawli gangsters on September 26 last year.

Picking holes in Mumbai police's case the judge observes that they had failed to put forth convincing evidence to prove that any of three men were armed when the encounter took place and that the police had fired at them in self-defence.

In Sayama's case Judge Aguiar observes that the police contention of firing at him in self-defence cannot be appreciated mainly because Sayama was killed at Sprott Road in Mumbai and not at Grand Hotel as claimed by the police. Also, he says that Assistant Police Inspector Vasant Dhobale's admission that there were no blood stains at the spot where Sayama was shot and in the car which took him to a hospital, indicate that he was killed elsewhere. The judge also observes that the previous history of API Dhoble ``as brought out in his cross-examination by Advocate Memon makes him out to be a trigger-happy cop andprobabilises the petitioners case that Javed Fawda was killed in cold blood by API Dhobale.''

The judge observes that the First Information Report (FIR) lodged after Sayama's killing too left much to be desired. ``A copy of the FIR was not sent to the magistrate as required under section 157 of Criminal Procedure Code until the expiry of three months,'' he says. Dealing with the encounter in which Pawle and Tandel were killed the judge observes that the bullet injuries on the vital parts of the bodies of Gawli and Tandel ``disapproved many police theories.'' He says Police have brought no evidence on record to show why they considered Pawle as the most dangerous member of Arun Gawli gang. The criminal history of Pawle too was not made clear by the police, he says.

The judge states that even if police did consider Pawle a dreaded gangster, they should have shown some proof to establish the fact that they did not intend to kill him. ``The police should have established the fact that they had gone to thescene of offence only to arrest him,'' he says.

The judge has observed that though the police claim that they fired at Pawle after he raised an AK-56 in protest, they have not presented any evidence to prove that ```Pawle or Tandel were armed. They have not even preserved the fingerprints on the AK-56 rifle, pistol and other available evidence.''When DCP (zone V) K L Prasad was contacted for his reaction to Judge Aguiar's findings he said: It's only an observation made by an enquiry commission. The police is yet to present their case. However, in future a police officer will have to think twice before even arresting a criminal.''

Judge Aguiar says