Srinagar: The kin of victims of Pathribal fake encounter case can file a review petition before the High Court seeking reopening of the case, according to legal experts.
“The remedy available to the families is to question the verdict of court martial before the High Court. The verdict can be judicially reviewed by High Court under its constitutional power,” prominent lawyer Zafar A Shah told Kashmir Reader.
On January 23, Army announced closure of the case, saying evidence recorded by it clearly established that it was a joint operation of Army and police.
It said that over 50 witnesses were examined “including a large number of civilians,” state government and police officials. “Forensic, documentary and other relevant evidence has also been taken on record. For the convenience of the next of kin of the deceased and other civilian witnesses, the team recording the evidence moved to the Valley to record their statements,” it added
In 2006, the CBI indicted Brig Ajay Saxena, Lt. Col. Brajendra Pratap Singh, Maj. Sourabh Sharma, Maj. Amit Saxena and Subedar Idrees Khan (all belonging to 7 Rashtriya Rifles) for killing the five villagers in cold-blood and dubbing them as foreign militants before the media.
In its charge sheet, the CBI had said the killing of innocents was a “result of tremendous psychological pressure on the Army unit to show results” after the killing of Sikhs.
Shah said the Army authorities have reportedly accepted the position that it killed the five persons at Pathribal. The reason for the killings, according to Army authorities, he said, was that these five persons were militants and had crossed the LoC.
“The stand of the Army was disputed by the people which led to the investigations by the CBI. The CBI, on the basis of DNA testing, concluded that these five persons were not militants but ordinary civilians,” he said.
Shah said the issue, therefore, before the court martial was, whether the Army was justified in any manner whatsoever in killing five unarmed persons.
“The further question was as to who, among the Army personnel had actually caused the death, a matter exclusively within the knowledge of Army authorities,” he added.
Shah said that it was for Army to identify their own personnel who had actually caused the death. He said that obviously, there could be no direct evidence of any person to identify the armed personnel, who actually caused the death.
“In the light of this position, court martial was to hold the enquiry. Reportedly, the court martial has misdirected its trial/enquiry and proceeded on different basis. This has resulted in the miscarriage of justice. Therefore, sufficient grounds exist for seeking judicial review,” he added.
A former High Court judge, who insisted not to be named, told Kashmir Reader that the families, as aggrieved parties, can move a writ application before the court seeking reopening of the case.
“They have ample grounds to challenge the Army court martial. The CBI chargesheet can be one of the strongest grounds for seeking reopening of the case,” he said.
The families, he said, can also pray that the evidence produced by the CBI was not appreciated and analyzed by Army during the court marital. He said that the families can also pray that the Army court martial resorted to wrong application of law and misrepresentation of the facts.
Noted human rights defender Parvez Imroz said that besides the High Court, the victim families can also approach the Supreme Court to get the case reviewed.
“The victim families can file a protest petition before the CJM court and pray before the court that they have a right to be heard before the CJM accepts the closure report filed by Army. Second option is that CBI can file an appeal before the Supreme Court. However, that is unlikely to happen. One more option is that the victims can also go independently to the Supreme Court,” he said.
In the Supreme Court, Imroz said, the victim families can pray that the Army did not follow the due course during the court martial.
Habeel Iqbal, a lawyer, opined that the High Court can also take a suo-moto cognizance of the case even if nobody, including the victim families, file a review petition.