Pathribal Fake Encounter: A tale of elusive justice

Published: February 5, 2014 - 15:48

The army’s clean-chit to itself in the Pathribal case will only undermine democracy in the valley

Souzeina S Mushtaq Delhi 

The justice system of the world’s largest democracy falls flat on its face when it comes to the human rights violations committed by its army in Kashmir. The Indian army’s decision to acquit itself in the Pathribal case is likely to intensify the already hurt sentiments of the people in the valley, who have been subject to a long list of crimes perpetuated in the name of “security” and “national interest”. The army decided to close this tendentious case after a 14-year long ordeal, taking the line that the evidence recorded could not establish prima facie charges against any of its accused five personnel. 

However, the facts and the entire course of the developments over the past 14 years put the army in the dock. 

In March 2000, five days after 35 innocent Sikhs were brutally killed in front of their families in Chattisinghpora, 17 men “disappeared” from Pathribal village between March 21 and 24. On March 25, the army claimed that they had killed five “foreign militants” responsible for the murder of the Sikhs of Chattisinghpora. According to the official reports, the security forces were engaged in a gunfight with the militants, which led them to blow the hut where they were hiding. After the alleged encounter, the five bodies that were retrieved from the hut were charred beyond recognition, and buried without any postmortem examination. 

This led to a huge uproar, and having been suspicious of the veracity of such earlier reports, the people challenged the official version that those killed were foreign militants, and demanded that the bodies be exhumed. 

A few days later, the Chief Judicial Magistrate ordered the exhumation of bodies. In April 2000, hundreds of people assembled to march to the district headquarters in Anantnag to present a petition, asking them to speed up the exhumation process. At the Brakpora camp, the Central Reserve Police Force (CRPF) opened fire at the protesters, killing eight and injuring 15. They alleged that the protesters had hurled stones, which prompted them to open fire, a claim disputed by eyewitnesses. 

The then government, led by Farooq Abdullah, ordered a probe into the Brakpora killings, in what came to be known as the Pandian Commission. Meanwhile, the protests continued as the bodies of the “foreign militants” were exhumed. Relatives began identifying them – a woman had identified her husband by his nose. DNA samples were collected – 15 samples from the exhumed bodies and eight samples from the relatives. However, the SSP handling the DNA report was found guilty of fudging the case, as was reported in a leading English daily almost two years after the government declared the gunned down men as terrorists. In three cases, the samples of women relatives were found to have come from men. Another commission was set up to probe the DNA fudging case, which found SSP Farooq Khan guilty, who was suspended, along with other officers. 

In January 2009, the Pathribal case was handed over to the Central Bureau of Investigation (CBI) for investigation. In March 2012, the CBI told the Supreme Court (SC) that the encounter at Pathribal was fake, and the killings “were cold-blooded murders and the accused officials deserve to be meted out exemplary punishment.” The CBI indicted five army officers, including a brigadier, and a challaan against them was presented in the Court of Chief Judicial Magistrate (CJM), Srinagar. The army challenged the CJM’s query in the J&K High Court, as well as the additional district and session’s court, which were all rejected. Finally, the army filed a petition in the SC, challenging the CBI’s jurisdiction over them and seeking impunity under the dreaded Armed Forces Special Powers Act (AFSPA). On 23 January 2014, 14 years after the fake encounter, the army closed the case, and got away with another massacre. 

While J&K Chief Minister Omar Abdullah has raised the issue with the Prime Minister, seeking punishment for the accused, this case will seriously undermine the people’s trust in the Indian justice system if the culprits are not brought to book. As Raja Bano, one of the family members of the innocent victims, had said, "I will give more blood, a thousand times if needed. But I don't think I will get justice from the government. Because they are the judges, they are the investigators, and they are the criminals."

The army’s clean-chit to itself in the Pathribal case will only undermine democracy in the valley
Souzeina S Mushtaq Delhi 

Read more stories by Pathribal Fake Encounter: A tale of elusive justice