Srinagar: The J&K high court on Wednesday reserved its verdict on maintainability of a petition that raised questions on army’s powers to exonerate its men found guilty by the Central Bureau of Investigation (CBI) for the cold-blooded murder of five civilians in a staged encounter at Pathribal in south Kashmir’s Anantnag district on March 25, 2000.
A single bench of Justice Tashi Rabstan reserved the verdict after hearing advocate Javed Iqbal on behalf of the army and advocate Parvez Imroz representing the kin of five slain civilians. The petition has questioned the army’s internal court’s verdict to exonerate its soldiers including officers involved in the carnage despite the CBI’s clinching findings against them.
“Can provisions of the Army Act 1950 (Section 125), and the Army Rules 1954 (22-24) operate to negate official record and scientific data that establish wanton abduction and murder, and whether investigation by the CBI proceeding such a special process can be completely ignored by the Army authorities in purported exercise of these special powers?” reads the petition filed by the families of the victims.
They also questioned as to whether the bar on the normal criminal process imposed by Section 7 of AFSPA was meant to shield cold-blooded murder. “Can the option given for trial by Court Martial be utilized to terminate the case itself and if so, is such exercise of power not malafide and liable to be struck down,” it asked.
The petition asked as to how the Army revisits an investigation done by the CBI under Army Act.
The petition is based on the findings of the CBI investigation held in 2006 that indicted seven Rashtriya Rifles soldiers–Brig Ajay Saxena, Lt. Col. Brajendra Pratap Singh, Maj. Sourabh Sharma, Maj. Amit Saxena and Subedar Idrees Khan for their involvement in murder of five civilians at Pathribal in Anantnag. The civilians were killed in a staged encounter and passed off as foreign militants involved in the massacre of 35 persons belonging to minority Sikh community on March 20, 2000. While three ‘militants’ were claimed to be foreigners, two others were referred to as unknown militants.
The CBI probe was ordered by the state government and based on DNA tests, the premier investigation agency concluded that the bodies were of Zahoor Ahmad Dalal, Bashir Ahmad Bhat, Mohammad Yousuf Malik, Jumma Khan Son Amirullah Khan and Jumma Khan Son of Faqirullah Khan, all local villagers.
In 2012, the Supreme Court issued directions to Army to opt between a criminal court and court martial to put the accused soldiers to trial. The army chose its own court.
“In contravention of Supreme Court orders, the army refused to conduct trial of the accused personnel even through the Court-Martial. Despite such a strong charge-sheet filed by the CBI, the Army lightly dismissed the serious charges against the accused at the pre-trial stage, through summary of evidence,” said the victims.
On 20 January 2014, the Army via a communication informed the CJM that no prima facie case was made against its accused men following a court martial by it.
Nazir Ahmad Dalal, maternal uncle of Zahoor Ahmad Dalal, who was one of the victims of the infamous encounter, and IGP Kashmir had filed application before CJM Srinagar in 2014, seeking directions to army to provide its judgment exonerating its accused army men. The CJM dismissed the plea citing its locus standi.
The victim families in the instant petition before the high court now seek direction to army’s Court of Inquiry to transfer the proceedings of the case to the CBI Court.
They also seek directions to the CBI court in Srinagar to resume proceedings from where they had been left in wake of the apex court verdict. The victims have sought directions to the CBI to comply with apex court directions and asked the investigating agency to approach the Government of India for grant of sanction for prosecution of the accused army men within four weeks.