Pathribal fake encounter: HC dismisses plea for criminal trial in CBI court

Pathribal fake encounter: HC dismisses plea for criminal trial in CBI court

Srinagar: The J&K High Court on Wednesday dismissed a plea, seeking criminal court proceedings before a CBI court here in the cold-blood murder of five civilians by the army at Pathribal, Anantnag, on 25 March 2000.
F“The relief sought by petitioners for resumption of jurisdiction by the CBI court have already been decided by the Supreme Court. (It) has given liberty to the competent authority in the army to take decision as regards convening of court martial or adjudication of trial by criminal court. The competent authority in army opted to try the case by a court-martial and once an option (was opted for by the army)….the same issue is not permissible to be opened and taken up again and again,” a bench of Justice Tashi Rabstan said, and dismissed the plea filed by the families of the five killed civilians.
In 2006, the Central Bureau of Investigation indicted 7 Rashtriya Rifles’ Brig Ajay Saxena, Lt. Col. Brajendra Pratap Singh, Maj. Sourabh Sharma, Maj. Amit Saxena and Subedar Idrees Khan for the murder of the five civilians, three of whom were claimed by army as being Pakistani militants responsible for the massacre of 36 Sikhs at Chittisingpora on 20 March 2000. Two other slain, the army had claimed, were unknown militants.
“If petitioners are aggrieved of the order impugned passed by trial magistrate (CJM Srinagar) or for that matter of any decision and order of court martial, (they) are free to avail of appropriate remedy available under applicable rules and law,” the bench said.
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 hold a trial of the accused, either through a court-martial or criminal court. 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.
In their plea, the families of victims had contended that the army did not conduct a court-martial but “lightly dismissed the serious charges filed by CBI against the accused at the pre-trial stage, through summary of evidence.”
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 ‘court-martial’ judgment exonerating its accused men. The CJM had dismissed the plea, saying that they have no ‘locus standi’.
This was also contended by the families and the high court held: “There is no ground much less cogent or material one to make interference with the finding returned by the trial magistrate. The trial court rightly held that the petitioner is at liberty to approach the concerned forum to seek a copy of the judgment because the same is a public document and no such direction can be given on behalf of the compliant (Dalal) by this court being of concurrent jurisdiction, more so when effectual proceedings have been filed by the military authority,” the court said.
The victim families in the instant petition had also sought direction to the army’s Court of Inquiry to transfer the proceedings of the case to the CBI Court.
They had also sought directions to the CBI court in Srinagar to resume proceedings from where they had been left in wake of the apex court verdict in 2012.

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