Closure Remains Elusive

The families of five men killed in the fake encounter of 2000 are not convinced that a court martial will deliver justice, reports Baba Umar

JUSTICE IN the Pathribal fake encounter case, in which five villagers were gunned down by the army on 25 March 2000, is being seen as a key to unlock the mystery surrounding the Chattisinghpora massacre of 35 Sikhs by “unidentified gunmen” and the legality of the Armed Forces Special Powers Act (AFSPA) in Jammu & Kashmir.

However, the 12-year-old case has run into a roadblock. The case has passed through the chambers of the Anantnag District Court, the Jammu & Kashmir High Court, and the Supreme Court. Now, the army’s 16 Corps, based in Nagrota cantonment in Jammu, is conducting court martial proceedings against the five accused armymen.

The victims’ families want proceedings shifted back to Kashmir and conducted in full media glare. Otherwise, they want security cover and counsels of their own choice. However, the army has refused to accept the conditions.

“If the army is honest in trying its soldiers for the murders, why is it reluctant to shift the case to Kashmir, instead of making us travel 300 km to Jammu?” asks Ghulam Nabi Malik, whose brother Muhammad Yousuf Malik of Kapran village was one of the five innocent civilians gunned down by the army five days after the Chattisinghpora massacre took place on 20 March 2000. The victims were dubbed Pakistan-based Lashkar-e-Toiba militants responsible for the massacre and were buried in five unmarked graves at two different villages.

Malik, whose DNA matched with the sample taken from the charred body of his brother, says, “What we can or have said in civil courts can’t be said in an army court. Those who staged the encounter and fudged DNA tests can also use our testimonials against us. Let them allow our counsels to talk on our behalf. They can make better arguments than most of our illiterate family members.”

So far, the case has encountered several twists. A CBI inquiry concluded that the victims were indeed civilians. Later, the DNA samples taken from the victims’ male relatives were fudged. The samples turned out to be those of unknown females. Another lot of samples of the male relatives later proved the CBI’S findings. The CBI also nailed the roles of Brigadier Ajay Saxena, Major Bijendra Pratap Singh, Major Sourabh Sharma, Major Amit Saxena and Subedar Idrees Khan in the fake encounter.

The five men killed in the Pathribal encounter were two farmers from Brari Angan, both named Jumma Khan, goatherds Bashir Ahmed Butt and Mohammad Yusuf Malik from Halan, and Zahoor Dalal, a cloth merchant from Islamabad town in Kashmir.

In subsequent trials, the army opposed the chargesheet claiming immunity under AFSPA. Earlier this year, the Supreme Court directed the army to either try the accused in a court martial or allow a civil trial. In June, the army opted for the former.

On 20 September and 3 October, the army sent summons to the victims’ relatives. “They wanted my grandfather Fakirullah Khan to depose before the army. But he has been dead for 30 years,” says Abdul Rashid Khan, 35, whose father Jumma Khan was killed in the Pathribal fake encounter.

“We have already given DNA samples. The whole world knows why my father was killed. I’m sure the army will try to put pressure on us. That’s why we are asking them to allow the trial before the media,” he says.

Rashid also lost his 20-year-old brother Mohammad Rafiq, who was leading a protest against the Pathribal killings on 3 April 2000. Eight other civilians were killed in the incident. “I lost my father and a brother. They have our DNA tests. The CBI has handed over all the evidence. What more evidence am I going to give?” he asks.

Shakoor Khan, 32, whose father Jumma Khan was another victim, has also refused to attend the court martial. “First, they blocked all efforts for a civil trial by invoking AFSPA. Now they are promising us a fair trial. The CBI has already said my father’s death was cold-blooded murder. Why is the army probing it again? They are going to put pressure on us,” he says.

But Shakoor feels that not going to the army’s court could also mean delay or denial of justice. “Tomorrow, the army can say, ‘We called them for evidence, but they didn’t appear in the court.’ So we are in a dilemma. My mind says the army will pressurise us into a compromise, but the heart says rejecting the summons will deny us justice,” he says.

The army’s key reason against shifting the venue stems from the argument that holding the court martial in Srinagar-based 15 Chinar Corps would be unethical as “it had involved itself with the defence of the accused during the past few years”. Brigadier Sanjay Chawla of the Northern Command says the hearings are going on and the families can come with their counsels “if they wish so”. “The trial won’t be shifted to Kashmir. If the families want security, the army is ready to provide it when they reach Nagrota,” he adds.

Meanwhile, human rights activist Khurram Parvez says the SC directive was “unfortunate” because “ethically and according to international laws, the army isn’t supposed to probe and pronounce judgment against itself”. “Its one branch (15 Corps) defended the culprits, while the other in Jammu (16 Corps) is claiming to offer a fair trial. Look at the ranks of the accused. They won’t hurt their own men. By asking the families to travel such a long distance, the army is making sure that justice is inaccessible. It wants to exhaust the families and wear them out,” he says.

Baba Umar is a Senior Correspondent with Tehelka.

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