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Sticking Point


The pathribal killings have brought to the fore wounds that have refused to heal, reports Haroon Reshi
HAROON RESHI | Issue Dated: February 9, 2014, New Delhi
Tags : Sticking Point | Omar Abdullah | CBI |

The Army Court of Inquiry’s dismissal of the infamous Pathribal extrajudicial execution case against five of its soldiers seems to have not only deepened trust deficit in the minds of the common Kashmiris, but also appears to have led to a rift between the security apparatus and the state government.

 The Jammu and Kashmir government’s law department is exploring options to confront the army court’s decision and to re-open the case in a civilian court.

 While strong reactions from Kashmiri separatist leaders and the civil society to the army court's decision was expected, they have been joined by mainstream leaders who have reacted loudly against the move to close the case in which five innocent Kashmiri villagers were killed in a fake encounter in March, 2000, allegedly by the army.

 The army while handing over badly-mutilated bodies to the police had claimed that the five killed were foreign militants responsible of the slaughter of 36 Sikhs at south Kashmir’s Chittisinghpura, on the eve of US President Bill Clinton visit to India in March 2000.

However, later events and investigations confirmed the army claim as fake. The DNA samples of the civilian bodies exhumed matched with those of their family members.
 Interestingly, the CBI had earlier filed a charge sheet against five army officials in a civil court calling the killings ‘a cold blooded murder’. Before the civil court could have arrived at a decision, the army challenged its jurisdiction to try a case against its soldiers in Kashmir who are protected under the Armed Forces Special Powers Act (AFSPA). The Supreme Court while accepting the army perspective, gave it an option to court martial its accused officers.

 After year-long proceedings, the Army Court of Inquiry finally cleared their men saying that the “Evidence recorded by it couldn't establish a prime-facie case against any of the accused.”

 Chief minister Omar Abdullah expressed his ‘disappointed’ with the outcome of court martial proceedings. “Extremely disappointed with the decision of the army regarding Pathribal. Will ask the Law Dept & Advocate General to examine options,” he tweeted, adding: “A matter as serious as Pathribal can’t be closed or wished away like this, more so when findings of the CBI are self evident.”

 That has sparked off a race amongst Kashmir’s politicians to denounce the army court’s judgment. Former union Home Minister, Mufti Muhammad Sayeed, termed the verdict as a ‘miscarriage of justice’. In a statement, he said, “The army's decision is a huge setback to the efforts at reconciliation and delivery of justice, which is prerequisite for building trust. There are many instances in which standards of justice applied to incidents taking place in J&K were short of the universal standards applied to the rest of the country. The Pathribal atrocity stood out even among them for its cruelty and context.”

Clearly, the state government is on a warpath. “We will not allow this injustice. How can killers of innocent people be set free? Justice should prevail and the government will not leave any stone unturned,’’ Tanveer Sadiq, Omar Abdullah’s political secretary told TSI.

 Human right bodies too are up in arms. Human Rights watchdog Amnesty International has sharply criticised the army’s closure decision. “Given the evidence that existed against these soldiers, the army’s decision to conduct a new probe into the case is baffling,” said Christine Mehta, researcher for Amnesty International India. “But perhaps it isn’t surprising that the army, after deciding to investigate its own alleged abuses, has given itself a clean chit,” Mehta added for good measure.

 Families of the fake encounter victims too have expressed disappointment. Abdul Rashid Khan, son of one of those five killed in Patribal, told this reporter: “We lost faith in the Indian judicial system the day Supreme Court allowed the army to try its own erring men. How can one expect justice when the killers themselves become judges?’’

 The chances of more such cases coming to the fore are high. Already, questions are being asked about the Machil fake encounter case in the border district of Kupwara in which three civilians were killed in 2010. In this encounter case, six soldiers, including two officers, are accused of killing innocents for promotions and official rewards.

“After seeing the outcome of the Pathribal case, I am sure soldiers involved in the Machil fake encounter will also be given a clean chit by the army court,” predicts Hameeda Nayeem, chairperson of the Kashmir Centre for Social and Developmental Studies (KCSDS), a civil society group.

The fact is that the closure decision has dented the ongoing peace process initiated by the central government in Jammu and Kashmir. Perhaps the worst thing is that the decision has come at a time when the valley is headed for peace and normalcy for quite a sustained period of time. Points out Mufti Muhammed Sayeed: “The Pathribal case could have been a test case for our institutions to rise above other considerations and uphold the supreme principles of justice to open a new chapter of reconciliation in Kashmir, but it has clearly been wasted.” Analysts, however, believe that this is the right time for New Delhi to come forward with some courageous initiatives in Kashmir to bridge the gap between state and the people. They say wounds can be healed if the government takes some pro-people political decisions in Kashmir – like the removal of the AFSPA. That sadly is one long standing demand on which apparently the state government and the centre do not eye to eye. 

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Issue Dated: Feb 5, 2017