Srinagar: Terming the Pathribal case as an “illustration of impunity” in Jammu and Kashmir, Jammu Kashmir Coalition of Civil Society (JKCCS) on Tuesday said that the case “sends a clear message that there can be no justice by India in the state.”
“Pathribal case serves as an illustration of the Indian states record in Jammu and Kashmir. This case illustrates that questions of impunity in Jammu and Kashmir are beyond mere legal reform or demands for revocation of AFSPA,” JKCCS patron Advocate Parvez Imroz said in a statement on the 14th anniversary of the case on Tuesday.
He said that India, “as a part of a policy, and through the executive, legislature and judiciary, has carried out violations and ensured impunity for the perpetrators in J&K.”
“After 14 years, the Pathribal case sends a clear message to the people of Jammu and Kashmir, including family members and victims of human rights violations, that there can be no justice from the Indian State,” said the statement.
On March 25, 2000, five abducted civilians were killed by Indian Army soldiers in Pathribal and were later dubbed as foreign militants involved in the killing of 36 people, belonging to minority Sikh community, in Chattisinghpora on March 20, 2000.
The JKCCS said that the evidence strongly suggested that the Indian army, specifically 7 Rashtriya Rifles [RR], and the Jammu and Kashmir Police were responsible for the killing.
“Prior to the killings, all five persons were abducted. In the case of two victims, both named Jumma Khan, family members stated that fully armed men in army uniform carried out the abduction. The bodies were burnt in an attempt to hide the identity of the victims and portray them as foreign militants,” the JKCCS said.
The seizure memo showing recovery of arms and ammunitions was falsified, which later contradicted with the Army’s issue voucher of handing over arms and ammunition to the police.
“They later stated that no seizure memo was prepared before them and they were forced to sign on blank papers. Following discovery that there had been fudging of the samples from the bodies, and a re-exhumation, it was confirmed that the five bodies belonged to the five abducted civilians.”
The Army had claimed that the encounter was carried out following the information provided by the J&K Police, specifically by then SSP Anantnag, Farooq Ahmad Khan.
But the Central Bureau of Investigation (CBI), which carried investigations in the case found that on March 21, 2000, Mohammad Yaqoob Wagay, alias Jamrood, was arrested, interrogated by local police, Army and other forces and specifically, Inspector Mukesh Kumar, Special Operations Group, Anantnag.
“Yet, the CBI, ultimately, did not chargesheet the police, whether Inspector Mukesh Kumar or SSP Farooq Khan, almost entirely on the denial of these police personnel. Further, while the CBI accepts that other personnel of 7 RR were involved, only five personnel of the 7 RR were chargesheeted,” JKCCS said.
A mere reading of the chargesheet suggests that other officers of the Army may well have been involved, directly or indirectly, said JKCCS.
It said that Colonel I.J. Peoples, Officiating Commander, 1 Sector RR, sent a confidential “After Action Report” on April 01, 2000 in respect of the Pathribal encounter which refers “to the ‘ISI backed terrorists’ attack at Chattisinghpora, the information provided by Mohammad Yousuf Wagay and passed on to the army by SSP Farooq Khan, and details of the encounter and recovery of arms.”
Clearly, the JKCCS said, the Colonel Peoples “is either part of the conspiracy or involved in the cover up.”
“Other Army officers who must be held accountable are Captain S.S. Pathania, who signed the ‘issue voucher’ that accompanied the arms/ammunition handed over to the police, Captain Puneet Dutta, who sent a ‘situation report’ on the encounter to Victor Force GS (Ops) and Brigadier Deepak Bajaj who SSP Farooq Khan states was the person who informed him of the encounter. The CBI has limited the case to only five army officials,” said JKCCS.
The JKCCS said that currently while large part of the statist discourse revolves around the revocation of AFSPA, the court martial system ensures impunity to the guilty military or paramilitary personnel.
“These proceedings do not always result in an actual court-martial, such as in the instant Pathribal case where the army carried out a summary of evidence and then found that there was no requirement for a court-martial. Any prospect of fair proceedings are obviously eliminated considering that it is the same army trying its soldiers that carry out crimes that are part of the institutional and State policies,” said JKCCS.
It said that the Army’s submission before Chief Judicial Magistrate (CJM) that “the evidence on record did not in any way establish a prima-facie case” is “mockery” of the process.
In 2012, the Supreme Court of Indian ruled that no court, under Section 7 of AFSPA, can take cognizance without seeking sanction of the government.
“This effectively removed all control over proceedings from the courts and allowed the sanction process to kick in even in cases where there can be no question of the armed forces acting in relation to official duties. The Supreme Court then allowed the army the option of a court-martial, which the CJM chose not to resist,” said JKCCS.
It also said that the civilian court retains the option of seeking trial before it. In such a case, the matter is referred back to the executive to decide jurisdiction.
“Today, the Pathribal matter is back with the CJM. The Indian army seeks that the entire proceedings now end as they have carried out ‘effectual proceedings’,” said JKCCS.
It also said that based on the record before it, the CJM, as per Section 7 (ii) of the Jammu and Kashmir Criminal Courts and Court-Martial Rules, 1983, should be persuaded to hold that in this case there have been no effectual proceedings.
“The matter would then be referred to the ‘State Government’ which may, in consultation with the ‘Central Government’ take appropriate steps against the accused in accordance with law,” said JKCCS.
“Therefore, once again, after 14 years, the case, if not shut down by the CJM, would return to the executive. The same executive, who as a part of the Indian State has carried out the crimes, and then ensured impunity,” JKCCS added.