Photos by Shome Basu
Nadihal (Jammu and Kashmir): “They are convicted criminals yet they are being released. All these years, our struggle has been nothing but a joke. Sometimes we are given assurances, and sometimes we are left to despair. If the government cannot give us justice, it should hang us. We have spent so many years living in fear, facing threats while everyone deserted us. No minister, no MLA nor any government official came to visit us,” said Jabina Akhtar, wife of Shahzad Ahmed, one of three local civilians killed by rogue army soldiers at Machil in 2010 and passed off as Pakistani militants.
Five army men were tried and convicted by a court martial but a military court last month suspended their life sentence. The decision has turned out to be a major setback for the families of victims who have been fighting for justice for the past seven years.
On April 30, 2010, the army claimed it had killed three young men in an encounter with Pakistani militants. The incident took place in the Machil sector near the Line of Control in Jammu and Kashmir. When the photographs of those killed in the alleged encounter were released, it led to a public outcry as the murdered youth were identified as residents of Baramulla district’s Nadihal area – Mohammad Shafi (19), Shahzad (27) and Riyaz Ahmed (21).
It was alleged that an informer of the army, Bashir Ahmed, lured the three men out of the village on the promise of getting them jobs. The men were then handed over to a group of soldiers in exchange for Rs 50,000.
The army men then brought them to the Machil sector near the Line of Control and killed them. They were buried in the local graveyard.
After the family of the victims lodged a complaint, the local police filed a chargesheet against 11 people, including eight army personnel in July 2010.
During interrogation, Bashir confessed that he had met the trio on April 26 and the day after that. The police also recorded the statement of the driver in whose vehicle the three men were taken to Kupwara from Nadihal.
After news of the fake encounter spread, tension erupted in the Valley. For two months, violent protests were held across the state led by Hurriyat Conference leaders Syed Ali Shah Geelani and Mirwaiz Umar Farooq.
Amidst anti-India slogans and incidents of stone-pelting and arson, the protesters demanded removal of the army from the state. The police and the army resorted to tear gas and pellet guns to control the protesters, claiming the lives of 112, including an 11-year-old girl and several youth.
Life imprisonment to army personnel
Following large-scale violent protests, the then chief minister Omar Abdullah and defence minister A.K. Antony assured a thorough investigation into the matter. The army also admitted that its primary investigation had found substantial evidence against the accused and a court martial procedure was initiated.
In June 2010, the police presented 11 people, including nine army personnel, as accused before the court of the chief judicial magistrate Sopore. But on the request of the army, the Srinagar high court allowed a general court martial against the accused personnel. The procedure of court martial was eventually initiated on December 23, 2013 against Col D.K. Pathania, 4 Rajputana Rifles commanding officer Major Upinder and four personnel. Five of the men were found guilty in September 2014 and awarded life imprisonment.
The chargesheet filed by the J&K police also named Bashir and Abdul Hamid Butt, both of whom are being tried in the Baramulla sessions court.
Abdullah called the court martial verdict a historic moment. It was the first case in nearly three decades where army personnel had been convicted and awarded life imprisonment for a fake encounter.
Later, the five convicts approached the armed forces tribunal, which on July 27 suspended their sentence and granted them all bail.
Army tribunal decision a betrayal to families of victims
The decision of the tribunal came as a shock to Nadihal village locals as a numbing silence pervades the area. The families of the victims claim that they feel cheated.
“My son was a labourer,” said Riyaz’s mother Naseema. “Another local from our village Bashir Ahmed lured him with promises of a job. All these kids used to work as labourers for the army. For two days, they received wages and returned from work in the evening. But after they went for work on the third day, they never returned.”
“My son was innocent,” added Naseema. “I received his dead body after it was dug up from the grave 29 days later. He hadn’t even grown a beard yet. They had used a black marker to draw a beard on his face to make him look like a terrorist. Now that they have granted bail to the other convicts, Bashir will also be released. He keeps threatening us from inside the prison. We are in a lot of trouble. Please get us protection.”
Naseema works as a labourer in the village along with her husband Mohammed Yusuf and their two sons. She claims that after the encounter was proved fake, the government promised a job to her but nothing has been done so far. Survival is difficult for the family.
“They are constantly rubbing salt over our wounds,” says Yusuf. “We are almost ruined. We can only make pleas for justice. Whatever be the court’s decision, we cannot lose faith. Even if it means we are forced to beg for survival, we will hold a protest against it in Baramulla.”
Shahzad’s wife Jabina holds a similar view. Her son is studying in the fifth standard. Jabina works as a labourer in the village where farming is the chief occupation. “My husband was the sole bread earner of the family,” she said. “The government promised a job but it has not been offered yet. Does the country have more than one law? If Afzal Guru can be hanged, why can’t these officers be hanged too?”
Nadihal villagers stand in solidarity with the families of all the three victims and provide them assistance when needed.
Shafi’s father said, “If these army men are released, everyone will lose faith in the Indian democracy. We raise our children so that they can support us in our old age but these people kill our children for no reason. If they don’t get the punishment they deserve today, they will kill more children tomorrow without fear of consequences.”
Riyaz’s brother Aijaz added, “Many people used to tell us that once media and public attention is turned away from the case, the army will release its personnel but we had faith in the judicial process. We came to know of their release from the internet. It is betrayal in the name of justice. It was the same court that sentenced these men and now it has released them. If we hold protests, we are directed from one officer to another. Nobody is ready to hear us. But we will keep protesting against my brother’s murder until we get justice.”
Condemning the tribunal’s decision, a village local Abdul Lone said, “The whole world knows that army officials killed the children of our village to seek promotion and money. They are now conspiring to protect the accused officers. It is not right.”
Rationale behind judgment questioned
A lot of people have questioned the validity of the rationale given in the judgment pronounced by the armed forces tribunal. The bail order states, “The fact cannot be denied that the dead were terrorists because they were wearing pathani suits which is usually worn by terrorists.” In Kashmir, a pathani suit is a common dress worn by men.
The tribunal also states, “There was no justification for the presence of common citizens so close to the LoC at night when there is constant exchange of fire.”
Justice V.K. Shaili and Lieutenant General S. K. Singh presided over the tribunal. Granting bail to the five army men, the court also accused the parents of the deceased of ulterior motives behind the delay in filing a police complaint.
“The complaint was registered only to gain sympathy or to seek monetary compensation after the alleged killing of their children,” the bench remarked.
The tribunal also questioned why all three men carried arms and explosives in their waist belts.
The tribunal concluded in its bail order, “If a person is a common citizen, he will certainly not be dressed in combatant clothing. It is highly unlikely that he would be found carrying arms and explosives.”
In fact, the prosecution’s claim was that the three civilians were abducted and taken to the border area where arms and ammunition were planted on them to establish that they were militants.
Lieutenant General D.S. Hooda, who as commanding officer confirmed the life sentence to the five accused, told The Wire, “I cannot comment on the decision of the armed forces tribunal. I am not in a position. The matter was in the military court for more than five years and all judicial procedures have been followed. It is not right to criticise the army in any way.”
Though the matter is still pending in court for final disposition, a senior army officer speaking on condition of anonymity said that the verdict puts a question mark on the integrity of the judicial process of the army. The officer has been closely associated with the case for a long time. He said, “Between 2010 and 2015 when the verdict was pronounced, several army officials including the corp commander and army commanders have been associated with the case. It seems the armed forces tribunal wants to show that everything has been deliberately spoiled with wrong motives during the past five years. It is absolutely wrong to talk of political pressure or malicious intent of an officer.”
The officers associated with the trial claim that the minimum punishment for killing is life imprisonment which cannot be reduced. It is very difficult for a commander to go against judicial opinion.
The army has clarified that it has played no role in suspending the sentence of the Machil fake encounter accused and granting them bail. Defence ministry spokesperson Rajesh Kalia also clarified that it is the New Delhi bench of the armed forces tribunal (AFT) that suspended the sentence of the accused and not the army per se.
Anger over army tribunal’s order
Following the stay order, former CM of J&K Abdullah tweeted:
"They wore Pathan suits, which are worn by terrorists…..". What an unbelievably scary justification. You can be killed for what you wear! https://t.co/W9cYVEM7fN
— Omar Abdullah (@OmarAbdullah) July 29, 2017
A student of Kashmir University’s Mass Communication and Research Centre, said, “The recent verdict in the Machil encounter case is shocking. If wearing pathani suits makes one a terrorist, does it make every one in the Valley wearing a pathani suit a terrorist?”
According to a Greater Kashmir report, the Jammu and Kashmir government is looking into the possibility of challenging the tribunal’s decision. The law ministry of the state is also examining whether the family of the victims can challenge this decision. A meeting was held under the chairmanship of state law minister Abdul Haq Khan in which advocate general Jehangir Iqbal Ganai and law secretary Abdul Majid Bhat participated.
A Srinagar-based human rights activist and lawyer Parvez Imroze said, “The verdict of the AFT in the Machil fake encounter case is like thousands of other cases of human rights violation in Jammu and Kashmir where the culprits are released in the end. After having witnessed such cases in the past, the latest court order does not surprise me much.”
“Even our state government is not very keen on justice being served in such matters,” he adds. “The M.L. Koul commission constituted to probe such killings handed over its report to the state government last year but the report has still not been made public.”
According to Imroze, despite the fact that during the last three decades 70,000 killings have taken place, more than 8,000 people have gone missing and widespread cases of torture and rape have been reported, there is almost no lawsuit against the military forces in civil courts.
A senior journalist based in Srinagar, Riyaz Wani said, “It was the first time in the past three decades that a sentence was pronounced against army personnel in a fake encounter or human rights violation case. But the kind of verdict that has come now, the message is clear that the army is free to do anything here. The government has their back.”
“In such a scenario, the Kashmiri people who already feel distanced from the mainstream will be further alienated,” Wani adds. “The Kashmiri people feel that the army can do as it wishes in the Valley and they will never be punished for anything. It will widen the chasm.”
“Ever since the sentence of life imprisonment was pronounced in the Machil case,” said Wani, “the number of fake encounters had declined in Kashmir. The army personnel had also started feeling that the government is stern and if they did anything wrong, action will be taken against them. But after the latest court verdict, such incidents are bound to increase. The worst affected from the verdict are the Kashmiri people as it is likely to escalate anger and the separatist sentiment here.”
Other similar incidents
It is noteworthy that several incidents similar to Machil have been reported in the Valley. One such incident took place in south Kashmir’s Pathribal.
On March 21, 2000, 35 Sikhs were murdered in Chittisinghpura village in Anantnag district. Following the incident, the army killed five men in an encounter in Pathribal on March 26. The army claimed that the men were foreign terrorists and were wanted for the Chittisinghpura massacre.
However, locals insisted that all five men lived in neighbouring villages and had been abducted and killed in a fake encounter by the army. Later, a CBI investigation also found that the men were local residents who had in fact been murdered in cold blood.
In the Pathribal encounter, the CBI gave the state police a clean chit but filed murder charges against the army men involved. Despite a voluminous chargesheet and years of foot-dragging by the army and defence ministry, the Supreme Court in 2013 offered the army a final chance of trying their men in a court martial failing which the CBI would be free to prosecute them in a civilian court. The army accepted the court’s offer but soon thereafter declared that its preliminary court of inquiry had found no evidence against the accused soldiers and closed the case.
(With inputs from Shome Basu)
This article was originally published in The Wire Hindi and has been translated by Naushin Rehman.