Rahul Pandita - Tombstones do not remain mute // Sameer Arshad - Clean Chit,Soiled Justice

The Army’s clean chit to the accused in the Pathribal fake encounter case is an insult to the sacrifices made by its men in Kashmir

 “There is no flag large enough to cover the shame of killing innocent people.”

Let us not go to Pathribal first. Let us go to Shopian instead, not very far from Pathribal. In May 2009, two women went to work in their orchard in this town in south Kashmir and did not return till late in the night. In the ensuing search, the two were found dead by a rivulet. The separatist machinery in the Kashmir Valley was quick to cash in on this tragedy. The deaths were immediately dubbed as rape and murder, committed by — who else? — the Indian security forces. Jammu and Kashmir Chief Minister Omar Abdullah had assumed office only a few months before and he was keen to prove that he meant business. He issued orders in haste. Four police officers were suspended and later jailed for almost two months.
It was a CBI investigation that brought out the truth after a few months. The investigation revealed that the two women had drowned in the flooded rivulet while they were attempting to cross it. The CBI filed a charge sheet against six doctors and others, including the brother of one of the deceased, for fabricating evidence. One of the doctors, the CBI found, had fudged the vaginal swab samples to prove that the women were raped. The fake murder case had led to violent protests across Kashmir Valley. But, in the wake of the CBI charge sheet the separatist propaganda rang hollow. Though once in a while, the Delhi lobby of sympathisers still brings it up in TV discussions.
Around three years before its investigation in the Shopian incident, the CBI filed a charge sheet against seven men of the Army’s 7 Rashtriya Rifles unit, accusing them of killing in cold blood five innocent villagers and passing them off as foreign militants. On the night of March 20, 2000, the eve of American President Bill Clinton’s visit to India, suspected militants of Lashkar-e-Taiba had shot dead 35 Sikhs in the village of Chittisinghpora, near Pathribal. Five days later, the Army said that it had, in a joint operation with the police in Pathribal, eliminated five foreign militants responsible for the Chittisinghpora massacre. Prior to this, five men had been picked up from villages around Pathribal on the nights of March 23 and 24, 2000. The picking up of youth by various security agencies was a routine practice those days in Kashmir. But the families of the five missing men got suspicious after the Army’s press conference on the encounter. Subsequent protests forced the State government to orderan exhumation of the bodies of the ‘foreign militants’. It was done two weeks after the killings. They turned out to be the bodies of the five missing men. Apart from being shot, the bodies were badly charred and their body parts were chopped off.
In May 2006, the CBI completed its investigation and found the five Army men guilty of “cold-blooded murder”. It sought trial for “exemplary punishment” of the accused. The CBI investigation exonerated the police chief of the area based on a letter written by an Army major to the police, asking them to file an FIR in an encounter they had conducted in Pathribal. According to standard operating procedure, if it were a joint operation, there would have been no need to ask the police to file an FIR; they would have done it on their own. The Army challenged the CBI charge sheet in the court, claiming immunity under the Armed Forces (Special Powers) Act. The CBI counsel argued that the accused could only seek immunity if there were discharging duty, and in Pathribal it was clear that they were not. In 2012, the Supreme Court gave the Army the option of trying the accused on its own or through a civil court. The Army chose the former and on June 29, 2012, it announced that court martial proceedings would be initiated against the five officers named in the CBI charge sheet.
Left bereaved by the protector: A State-ordered exhumation revealed, in 2000, that the bodies that the Army claimed belonged to militants were those of the missing men picked up from villages around Pathribal by security agencies. Here, the kin of a victim hold up a photograph of his. Photo: Nissar Ahmad
Left bereaved by the protector: A State-ordered exhumation revealed, in 2000, that the bodies that the Army claimed belonged to militants were those of the missing men picked up from villages around Pathribal by security agencies. Here, the kin of a victim hold up a photograph of his. Photo: Nissar Ahmad
But the family members of the victims had no faith in the Army’s justice system, especially after it sent summons to the father of one of the victims who had passed away six years before the fake encounter. On January 23, the Army gave a clean chit to the accused, saying it could not establish a prima-facie case against any of them. It declared the killing of the five innocent men as “closed”.
The people of Kashmir have heard multiple sermons over the last two decades on how they are a part of India. From prime ministers to army chiefs, they have heard it from everyone: there will be zero tolerance against human rights violations. But time and again their rights are violated. In the murky underworld of counter-insurgency, nobody thinks much of a little blood spilled for a medal or a cash reward. But tombstones do not remain mute. They may not come to a court room to testify. But the judgment they pronounce leaves its scar on the nation. They leave stains on the righteousness of other men; they are like razor cuts slashing through this righteousness.
Posthumously undermined
Think of a young man from a humble background who went to a school meant for children so poor that they could not afford uniforms. Through sheer grit and determination he made it to the final steps of the Chetwood Hall at the Indian Military Academy. He fought wars for India — from Sri Lanka to Sopore. His record was unmatchable. In his long stint in the Kashmir Valley, he and his friends from the Army’s elite 9 Para eliminated hundreds of terrorists, many of them foreign mercenaries. During the Kargil war in 1999, he led his men in an assault on the Zulu ridge in the Mashkoh Valley. When the then Army chief V.P. Malik, whose aide-de-camp he had served as earlier, called him up and asked him why he went to lead the assault without acclimatisation, he laughed and replied: “Sir, I am from the hills, I don’t need to be acclimatised.” He was awarded the Vir Chakra for his courage. A month later, on August 29, 1999, the officer led a group of five commandos, on a “search and destroy” mission against a group of foreign terrorists in the Hafruda forests of Kupwara. He jumped in front of their sentries, taking them by surprise and neutralised them. But in the ensuing gunfight, he was shot in his stomach. In spite of this grave injury, he kept on directing his men and refused to be evacuated. By the time he was, it was too late. Major Sudhir Kumar Walia was posthumously awarded the country’s highest peacetime gallantry award, the Ashok Chakra. General Malik and his wife flew in an army helicopter to Palampur in Himachal Pradesh to be with his family.
The events of Pathribal are an insult to the memory of Major Walia and hundreds of other men like him who fell in Kashmir. And no “Operation Sadbhavna” can rectify it. A certain set of retired Army officers may rough it out in TV studios — especially those who maintain a certain kind of moustache — and defend actions like the one in Pathribal. 
The current Army chief, General Bikram Singh, has spilled his blood in Kashmir in a terrorist attack. It is he who should, at this time, remember Howard Zinn’s lines: “There is no flag large enough to cover the shame of killing innocent people.”
The armys decision to close the infamous Pathribal case involving alleged extrajudicial killing of five innocent Kashmiri civilians in 2000 is yet another confirmation of how blatantly impunity thrives in Jammu & Kashmir (J&K).It comes despite compelling evidence of the brutality involved. Justice S R Pandian,who later inquired into killings of seven people demanding a probe into the encounter,noted this when he concluded that security forces had deliberately obliterated evidence of the Pathribal operation by completely charring three of the five bodies.The head of one of the bodies was missing along with the entire portion above the chest.Pandian added this was done with a mala fide intention of getting rid of even the last traces of physical identity,before the disfigured bodies were eventually buried at various places within a radius of around two kilometres from the encounter scene.
This mutilation worked initially.The killings were declared a major breakthrough and the five dubbed as foreign terrorists,who had killed 35 Sikhs on the eve of then US president Bill Clintons visit to India in March 2000.As usual,the encounter was sought to be painted as an end to the story. But that was only the beginning.The story,initially carried verbatim by media,turned on its head within days.The complacency with which five accused Rashtriya Rifles soldiers allegedly went about the encounter underlined the sense of invincibility sweeping powers gave them.They had not even bothered to cover their tracks properly.
Their army unit allegedly coerced villagers into burying the five bodies before leaving the scene,without ensuring the belongings that had been set alight were fully burnt.These belongings proved to be the first major breakthrough in unravelling the plot. More lives had to be sacrificed before the government agreed to exhume the five civilians bodies.The paramilitary CRPF fired and killed seven people demanding a probe into the encounter.This time the slain included a person who had identified his fathers belongings among those of the five killed initially and exposed that encounter drama.
This mounted pressure on the government,forcing it to order a probe.Initial DNA testing to establish identities was sabotaged,before it was established that the five were indeed innocent civilians Zahoor Ahmad Dalal (22),Bashir Ahmad Bhat (26),Mohammad Yousuf Malik (38),Juma Khan (50) and Juma Khan (38).Their corpses were found dressed up in army fatigues. The nose and chin of one of them were found in separate graves.Another was initially identified by his trousers as his head was missing.Zahoors body was completely charred,without any bullet injuries.A portion of his charred sweater was all that was left of a handsome youth.
CBI,which later probed the case,eventually indicted Brigadier Ajay Saxena,Lt Colonel Brijinder Pratap Singh,Major Saurabh Sharma,Major Amit Sharma and Subedar Idrees Khan.It described the killings as cold-blooded murder and presented a charge sheet against these five soldiers before a Srinagar court. The army unsuccessfully challenged this move before the J&K high court,before moving the Supreme Court (SC).It challenged CBIs jurisdiction to file charges.The army argued its men cannot be charged without the Centres permission under the Armed Forces Special Powers Act (AFSPA).It cited the draconian laws immunity clause knowingly,as the Centre has never granted permission for trying armed forces in J&K including in rape and murder cases in the last two decades,despite all its protestations about zero tolerance to rights abuses.
SC presented the last hope in the Pathribal case.But that too was dashed when in April 2012 it upheld the armys contention and allowed it to decide whether to try the five soldiers in a civil court or have them court-martialled.Surprisingly,this ruling came two months after the apex court questioned the extent to which the army can claim immunity under AFSPA.
SC had noted that rape and murder should not be considered as normal crime and there should be no question of sanction from the government to prosecute soldiers in such cases.The court noted AFSPA gave very limited protection in the discharge of duty while hearing a CBI petition challenging the armys invocation of this draconian law to bury the case. The option given to the army to subject the Pathribal accused to in-house proceedings reversed unprecedented gains that had been made in this case.This has reinforced the average Kashmiri Muslims cynicism,that no arm of the Indian state can be trusted to be just to his community.
The army predictably chose the easier path.As is clear now,the brutal killings and mutilation of bodies was too serious an offence to have been left for the opaque military tribunal to adjudicate. It would have been a potential game-changer had justice been allowed to prevail in the Pathribal case.This was perhaps the first time that such a case was allowed to be investigated freely.But the way institutions,otherwise the last hope for helpless masses,have acted in this case will give Kashmiris real cause for doubting their place in the worlds largest democracy.

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