Closure of infamous Pathribal case proves army cant adjudicate its own crimes fairly

Sameer Arshad

The armys decision to close the infamous Pathribal case involving alleged extrajudicial killing of five innocent Kashmiri civilians in 2000 is yet another confirmation of how blatantly impunity thrives in Jammu & Kashmir (J&K).It comes despite compelling evidence of the brutality involved.
Justice S R Pandian,who later inquired into killings of seven people demanding a probe into the encounter,noted this when he concluded that security forces had deliberately obliterated evidence of the Pathribal operation by completely charring three of the five bodies.The head of one of the bodies was missing along with the entire portion above the chest.Pandian added this was done with a mala fide intention of getting rid of even the last traces of physical identity,before the disfigured bodies were eventually buried at various places within a radius of around two kilometres from the encounter scene.
This mutilation worked initially.The killings were declared a major breakthrough and the five dubbed as foreign terrorists,who had killed 35 Sikhs on the eve of then US president Bill Clintons visit to India in March 2000.As usual,the encounter was sought to be painted as an end to the story.
But that was only the beginning.The story,initially carried verbatim by media,turned on its head within days.The complacency with which five accused Rashtriya Rifles soldiers allegedly went about the encounter underlined the sense of invincibility sweeping powers gave them.They had not even bothered to cover their tracks properly.
Their army unit allegedly coerced villagers into burying the five bodies before leaving the scene,without ensuring the belongings that had been set alight were fully burnt.These belongings proved to be the first major breakthrough in unravelling the plot.
More lives had to be sacrificed before the government agreed to exhume the five civilians bodies.The paramilitary CRPF fired and killed seven people demanding a probe into the encounter.This time the slain included a person who had identified his fathers belongings among those of the five killed initially and exposed that encounter drama.
This mounted pressure on the government,forcing it to order a probe.Initial DNA testing to establish identities was sabotaged,before it was established that the five were indeed innocent civilians Zahoor Ahmad Dalal (22),Bashir Ahmad Bhat (26),Mohammad Yousuf Malik (38),Juma Khan (50) and Juma Khan (38).Their corpses were found dressed up in army fatigues.
The nose and chin of one of them were found in separate graves.Another was initially identified by his trousers as his head was missing.Zahoors body was completely charred,without any bullet injuries.A portion of his charred sweater was all that was left of a handsome youth.
CBI,which later probed the case,eventually indicted Brigadier Ajay Saxena,Lt Colonel Brijinder Pratap Singh,Major Saurabh Sharma,Major Amit Sharma and Subedar Idrees Khan.It described the killings as cold-blooded murder and presented a charge sheet against these five soldiers before a Srinagar court.
The army unsuccessfully challenged this move before the J&K high court,before moving the Supreme Court (SC).It challenged CBIs jurisdiction to file charges.The army argued its men cannot be charged without the Centres permission under the Armed Forces Special Powers Act (AFSPA).It cited the draconian laws immunity clause knowingly,as the Centre has never granted permission for trying armed forces in J&K including in rape and murder cases in the last two decades,despite all its protestations about zero tolerance to rights abuses.
SC presented the last hope in the Pathribal case.But that too was dashed when in April 2012 it upheld the armys contention and allowed it to decide whether to try the five soldiers in a civil court or have them court-martialled.Surprisingly,this ruling came two months after the apex court questioned the extent to which the army can claim immunity under AFSPA.
SC had noted that rape and murder should not be considered as normal crime and there should be no question of sanction from the government to prosecute soldiers in such cases.The court noted AFSPA gave very limited protection in the discharge of duty while hearing a CBI petition challenging the armys invocation of this draconian law to bury the case.
The option given to the army to subject the Pathribal accused to in-house proceedings reversed unprecedented gains that had been made in this case.This has reinforced the average Kashmiri Muslims cynicism,that no arm of the Indian state can be trusted to be just to his community.
The army predictably chose the easier path.As is clear now,the brutal killings and mutilation of bodies was too serious an offence to have been left for the opaque military tribunal to adjudicate.
It would have been a potential game-changer had justice been allowed to prevail in the Pathribal case.This was perhaps the first time that such a case was allowed to be investigated freely.But the way institutions,otherwise the last hope for helpless masses,have acted in this case will give Kashmiris real cause for doubting their place in the worlds largest democracy.


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