Riyaz ul Khaliq
Srinagar: The J&K government can challenge within 90 days the Indian military court’s decision to suspend the life sentence of five army men convicted of killing three Kashmiri youths in a fake encounter in Machhil area of Kupwara in 2010.
“The case FIR (in the fake encounter) was registered by the state government itself,” lawyer Mian Abdul Qayoom, president of the Kashmir Bar Association, told Kashmir Reader.
He said that the J&K Police had filed a chargesheet against 11 persons in 2010 following which the Sopore Chief Judicial Magistrate issued a notice to the Indian Army. The J&K Police later exhumed the three dead bodies and the deceased were identified as Shehzad Ahmad, Riyaz Ahmad and Mohammad Shafi, all residents of Nadihal village of Baramulla.
“So, it is the state government again which can challenge the decision of the military court which suspended the life sentence of the convicts,” Qayoom explained.
Police had filed their chargesheet against 11 persons — nine army men and two civilians.
They were charged under Sections 302 (murder), 364 (abduction), 120-B (criminal conspiracy) and 34 (common intent) of the Ranbir Penal Code (RPC).
“The state government has 90 days at its disposal to take the case to Supreme Court,” Qayoom said. “If that does not happen, then the victim families can themselves challenge the decision,” he said.
The Machhil fake encounter had triggered a massive anti-India public uprising in 2010 during which more than 120 civilians were killed by government forces.
Former advocate general of J&K, MI Qadri, said that the decision of the army court needs to be studied first. “What are the bases on which the life imprisonment was suspended? And is there a provision under army law under which the decision can be challenged,” he explained.
Qadri added that the state government can “exhaust all remedies” at its disposal. “A writ (against the release of the army convicts) can be filed in J&K High Court as well as in the Supreme Court,” he said. “The bases on which the decision was taken need to be studied properly. The freed army men can flee to any foreign land and in case any higher legal forum upholds the decision of the lower court (court martial), then what will happen?”
The three youths killed in Machhil were lured on the promise of jobs on April 29, 2010, by two locals working as “counter-insurgency agents” — Bashir Ahmad Lone and Abdul Hamid — and a Territorial Army man, Abbas Hussain Shah. They were taken to Kalaroos area in Machhil sector near the Line of Control (LoC) where they were shot dead by Indian Army soldiers of Rajputana Rifles near the Sona Pindi post.
The Opposition National Conference has said that it is the responsibility of the state government to “examine the case and raise it in view of its legal position”.
“State government is responsible for the safety of its citizens,” said NC’s Uri legislator, Muhammad Shafi. “State government has to protect rights of its people if they are being trampled (upon).”
J&K police chief Shesh Paul Vaid told media persons on July 26 in Baramulla that “we will examine the case and take whatever legal course is there.”
The army tribunal has justified the release order of the convicts saying: “It can’t be ruled out that the trio was militants as they were wearing the Pathani dress.”
The tribunal believed that the three young men killed were not civilians because they had ventured too close to the de facto border (Line of Control) between India and Pakistan.
“There was absolutely no justification for a civilian to be present at such a forward formation near LoC, that too during the night when infiltration from across the border was high,” the army court order read.
When sought for his comments on whether the J&K government intends to challenge the army decision, state law secretary Abdul Majid Bhat told Kashmir Reader, “I’m out of station. I can’t comment on it as the case is old.”
Despite repeated attempts, neither J&K Law minister Abdul Haq Khan, nor the state’s advocate-general Jahangir Iqbal Ganaie, responded to calls from Kashmir Reader.
The cell phone of J&K government spokesperson Naeem Akhtar was switched off when this newspaper called him.