Justice Eludes Pathribal

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Buried past A maulvi offers prayers before the exhumed bodies of the two Juma Khans in 2000
Buried past A maulvi offers prayers before the exhumed bodies of the two Juma Khans in 2000, Photos: Abid Bhat

ALONE IN her house in Anantnag town, Raja Begum, 56, is in a constant struggle to forget. Dressed in a pheran with a headscarf wrapped over her shoulders, she is passive to the Army’s decision to close the Pathribal fake encounter case in which five innocent persons were allegedly killed by soldiers of the Indian Army and passed off as terrorists responsible for the massacre of 35 Sikhs at Chittisinghpora village in Anantnag district on 20 March 2000.

For Raja Begum, it is a non-event, as punishing the soldiers will not bring back her only son, Zahoor Ahmad Dalal, who was 23 when he was killed. She rebuffs any attempt to remind her of the dreaded incident. “The whole world knows what happened to my son,” says Begum. “Why do you want me to retell it again and again? Please leave me alone.”

Begum is right. It has been 14 years and she has had to recount the incident ad nauseam. On the evening of 24 March 2000, Dalal, a cloth merchant, went for a walk after having come back home from his shop. After a while, when he didn’t return, a worried Begum and her neighbours went out looking for him. Some people said that they had seen the police pick him up in a red Maruti van outside his house. Dalal’s uncle Mohammad Yusuf searched for him in police stations and security camps, but to no avail.

The same day, four more people — two of them Gujjars — went missing in the area. Incidentally, both Gujjar men had the same name: Juma Khan. The two Khans were taken from their homes at Brariangan, 20 km from Anantnag, in the dead of the night.

“We were sleeping when there was a knock on the door,” recalls Rashid Khan, son of the older Juma Khan, 55. “We were scared to open it, but we soon found uniformed men breaking through the window.” Rashid has recounted this story many times in his life. “They told us they wanted my father to guide them through the hilly track, so we didn’t worry about anything,” says Rashid.

Rashid’s mother, Roshan Jan still can’t believe what happened that night. “He had grey beard and a bent posture, so we thought he would be back in a while,” says Jan. “But they killed him too.”

Memories Six-year-old Shakeela looks at a picture of her grandfather Juma Khan
Memories Six-year-old Shakeela looks at a picture of her grandfather Juma Khan

The other Juma Khan’s family has an identical tale. Juma, 45, had returned just two days ago from Samba in Jammu province where he had travelled through the hills to graze his livestock in winter. “My father was tired from the travel,” says son Shakoor Khan. “He offered to go with the uniformed men instead of me.”

Two more men, Bashir Ahmed Bhat, 26, and Mohammad Yousuf Malik, 38, of Hallen village disappeared from Sheerpora in Anantnag. The ill-fated duo had come to visit their relatives in the locality and had, like Dalal, gone out for a walk.

Four days before the disappearances, on the eve of the then US president Bill Clinton’s visit to India, unidentified gunmen in army fatigues had killed 35 Sikhs at Chittisinghpora — an atrocity now itself shrouded in controversy. Security agencies were quick to blame Pakistani militants for the carnage and announce a manhunt to nab them.

However, the story started unravelling when the villagers of Brariangan, 5 km from Pathribal, went to Anantnag and complained to then district magistrate Pawan Kotwal about the disappearance of the two Khans. The villagers also went to the local court and filed a complaint with the chief judicial magistrate. Soon the news of the three persons missing from the town also started doing the rounds, deepening suspicion that the five eliminated “terrorists” could have been them. This forced the DM to issue an order on 1 April for the bodies to be exhumed so that the families could identify them. The DM also directed that DNA tests be conducted on the bodies to confirm their identities.

Meanwhile, unaware of this order, around 2,000 people from Brariangan and adjacent villages marched towards the DM’s office, when near Brackpora, they were fired upon by the Special Operations Group of the J&K Police, killing seven persons and injuring seven others. In a span of 14 days, between 20 March and 3 April, 2000, around 47 people were killed in the three related incidents.

The government was quick to order a probe into the Brackpora firing. A one-man commission headed by Justice S Ratnavel Pandian was appointed, which held the police and CRPF responsible for the atrocity.

On 5-6 April, the bodies of the Pathribal victims were exhumed and identified by their relatives. According to the chargesheet filed by the CBI, the body of Bashir Ahmed Bhat was “half of skull, face distorted and unidentifiable”. He had 10 gunshot wounds and multiple wounds on his body. The older Juma Khan had 97 percent burns, five fractured ribs on the right side and four bullet wounds; the other Juma Khan had 95 percent burns and three bullet wounds. He was identified by the brass ring on his finger. Mohammad Yousuf Malik’s body was without a head or neck. Zahoor Ahmad Dalal, who was identified on the basis of a shirt and sweater in a plastic bag lying next to his body, had 98 percent burns. DNA tests confirmed that the families were telling the truth and the buried bodies at Pathribal were those of their missing relatives.

Later that year, the state government accepted the Justice Pandian Commission report of the Brackpora firing incident and suspended seven police personnel, including two DSPs and an SP. At a press conference on 31 October 2000, CM Omar Abdullah said that Justice Pandian would also probe into the Chittisinghpura and Pathribal encounters, a promise that didn’t translate into action.

The Pathribal fake encounter case was later probed by the CBI, which, in its chargesheet in 2006, accused five senior army officials of abduction, murder, criminal conspiracy and the destruction of evidence. The Acts and sections slapped were 307, 302, 364, 201, 120-B and 7 and 25 Arms Act.

In its report filed in 2006, the investigating agency claims that the army’s 7 Rashtriya Rifles (RR) unit “was under tremendous psychological pressure to show some results”. The agency accuses five RR personnel — Brigadier Ajay Saxena, Lt Col Brajendra Pratap Singh, Major Sourabh Sharma, Major Amit Saxena and Subedar Idrees Khan — of hatching a “criminal conspiracy” to pick up some innocent persons and stage-managing an encounter to create an impression that the militants responsible for Chittisinghpora massacre had been neutralised. The alleged fake encounter was carried out on 25 March at Pathribal, 15 km from Anantnag district, followed by the announcement that in a joint operation, the army and the J&K Police had eliminated five terrorists who had killed 35 Sikhs. The statement claimed the recovery of arms and ammunition from the spot.

According to the CBI chargesheet, in the After Action Report, the 7RR unit claimed that “Mohd Yaqoob Wagey, arrested in the Chhittisinghpora massacre, had given information on 24 March 2000 about the location of a hideout, where a group of terrorists responsible for the massacre were likely to be hiding”. It later turned out that the names of five persons killed in this encounter did not figure in the list given by Wagey.

However, the army refused to cooperate in the investigation. In his response, the then General Officer Commanding (GOC) of the Srinagar-based 15 Corps said that under the Armed Forces Special Powers Act (AFSPA), the CBI had no authority to chargesheet army personnel, and that the “sanction for prosecution” should have been obtained from the Central government.

In its reply, the CBI said it needed no sanction from the Centre to prosecute the five army personnel. “The five civilians were abducted and killed by the accused and others in a fake encounter to falsely claim that the militants responsible for the Chittisinghpora incident of 20 March 2000 had been eliminated and thereby, to project their operational efficiency and effectiveness in the area,” the CBI reply said. “Thus, the acts of the accused herein do not come under the purview of discharge of official duties… therefore, sanction contemplated under section 7 of the Act is not warranted.”

There was, however, a glimmer of hope when the army took the case to the Supreme Court and the court took a serious exception to the delay in justice. The double bench of Justices BS Chauhan and Swatanter Kumar blamed the army of stone-walling the trial of the accused by the civilian courts and also refusing to take over the case and initiate court martial proceedings against them. In its subsequent order in 2012, the apex court gave the army eight weeks to decide whether its personnel accused of fake encounter should be tried by court-martial proceedings or by regular criminal courts. The army chose court-martial and around one-and-a-half years later, declared the case closed as “the evidence recorded could not establish a prima-facie case against any of the accused persons”.

THE ARMY’S decision has not been along expected lines. Considering that Pathribal has since become a reference point for the impunity and human rights abuse in the state, the justice for the victims here would have gone some way to repair the public trust in the army as an institution. “It is nothing short of betrayal,” says Muneer-u-Din Shawl, advocate for the victims’ families. Shawl was also called by the army to depose at the court martial. “I narrated the entire sequence of events,” says Shawl. “I was asked whether I knew the accused army personnel. I said no. How could I, or, for that matter, the victims’ families known them?”

Raja Begum, on the other hand, has a more nuanced idea of justice. Her son, she says, is gone and nothing will bring him back. “Zahoor was my only son among my four daughters,” says Begum. “My husband died when he was just four-years-old.” But she has one overwhelming wish. “I want to meet the soldiers who killed my son and ask them why they did it.”

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