Riyaz ul Khaliq
SRINAGAR: The decision to release five troopers of 4 Rajputana Rifles convicted in Machil fake encounter by an Army Forces Tribunal (AFT) can only be challenged by the Indian army, legal experts say. In their opinion, the J&K government relinquished the powers to take the case to a civilian court when they agreed to army’s request court martial.
“If the army wants, they can challenge the AFT decision in the High Courts of Srinagar and Delhi,” said senior lawyer, Zafar Ahmad Shah. “Every order can be challenged and army can challenge the AFT decision under the Indian Constitution.”
Whether the Indian army was ready to take the step is not clear. But legal experts believe that state government can’t exert any power to approach a higher court.
Explaining the legalities, Shah said that the case pertaining to the fake encounter by the accused army men was handled by army itself. “The prosecutor, the accused and the judge belonged to the army after they chose to run a trial in the army court, which they had a right to,” he said.
After filing of the charge sheet in December 2010, the army decided to hold their own court instead of standing trial in a civil court. Shah said, “All the investigation, prosecution and other things were handed over to the army (by the police).”
So it is up to them now whether to file a writ against the AFT which has stayed the conviction of the army court besides suspending the life imprisonment and release the five men on bail on July 26 this year.”
Shah’s views are seconded by noted advocate G N Shaheen. “Yes, army can challenge the verdict, but the question remains whether it will.”
Another legal expert said that “the AFT order can be challenged under 31st section of Armed Forces Special Powers Act (AFSPA).” He explained that the victim families can also challenge the order “but they will have to seek permission from AFT and then, they can even move to Supreme Court”.
After being handed over life imprisonment and jailed in their home districts in 2015, the five army men appealed before the AFT. In its decision, the AFT on July 25 said, “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 forces tribunal said in its order.
The five troopers were convicted by an army court of murdering three innocent Kashmiris after they went missing from their homes since April 29 in 2010. The army dubbed them as Pakistani militants. The case was exposed after Jammu and Kashmir Police exhumed their bodies and identified them as Shehzad Ahmad, Riyaz Ahmad and Mohammad Shafi from Nadihal village of Baramulla.
Shah said that the army can challenge the AFT decision in Delhi High Court because the AFT sits in Delhi.
However, he added, “there was no adversarial litigation meaning that army men listened, pronounced and executed their own decisions without (involving) any other (opposite) party (in the case).”
The senior lawyer added that the then state government had “technically left the case (Machil fake encounter) in the hands of army”. However, he was quick to add, “This does not exonerate the state government of its duty.”
“State government should provide financial as well legal aid to the victim families if it does not want to do anything,” he asserted.
It may be recalled that the state government through its advocate general have applied for a certified copy of the AFT judgement to examine it.
“Because the offences were committed in state of J&K and the slain innocent civilians were its residents so state government cannot easily wash off their hands (from the case),” he added.
The AFT Act says that the Tribunal shall exercise all the jurisdiction, powers and authority exercisable under this Act in relation to appeal against any order, decision, finding or sentence passed by a court martial or any matter connected therewith or incidental thereto.
“Any person aggrieved by an order, decision, finding or sentence passed by a court martial may prefer an appeal in such form, manner and within such time as may be prescribed,” reads the Act.