News reports of 27.07.2017 state that an Armed Forces Tribunal has suspended the life sentences awarded by a General Court Martial in 2014 and which were confirmed in 2015, to five army personnel for the killings of three Kashmiri civilians in April 2010, at Machil. The reason for suspension rests on presentation of ‘facts’ which have allegedly broken the chain of evidence established in the GCM. Bashir Ahmad Lone, the alleged counter-insurgent who had lured the three civilians to Kalaroos army camp, had not been examined in the Court Martial. Additionally, only in two cases the DNA samples matched and that the FIR was filed only for two missing persons by their families.
Within the road to justice the right to appeal is available to all; however, suspension of sentences is a rarity. It is to be noted that ‘militants’ involved in murder cases do not enjoy such rights. Neither do ‘Maoists’ who languish in jails for years. This begs the question: why Machil? It is one of the few cases in which the army had taken cognizance of the issue of fake encounter following a clear investigation by the police and directions by the courts. Additionally, it was a case which led to public protests and which cost the lives of over hundred people at the hands of the security forces in 2010. Like 2008 before and 2016 after, the bloody months of 2010 marked a watershed in the history of protests. Today, over a quarter of century has passed since the imposition of the AFSPA, and according to the estimates provided by JKCCS (25.07.2017), the period has witnessed over 70,000 killings, more than 8000 enforced disappearances and over 7000 unmarked graves. Prosecutions against armed personnel is a non-issue and the 2014 Machil verdict by the GCM was, perhaps, a ray of hope.
While suspension of sentence is not the same as exoneration of the accused, the exclusion of civilians from army courts makes exoneration in the present instance, an imminent possibility. The question of impartiality is particularly significant as the residents of Nadihal in Baramulla district, the village where the deceased lived, knew Lone as a former special police officer. His property was burnt down in anger when the three bodies were exhumed and brought to the village for proper burial. Since civilians have no locus-standi in army courts, their knowledge about Lone is deemed irrelevant. The J&K police which first cracked the case also exposed the army’s dirty dealings as Lone had lured the three youth, Shahzad Khan, Shafi Lone and Riyaz Lone, on the promise of 50,000/- each. All three were poor villagers who readily fell into the trap. The five army personnel then staged the fake encounter to avail of the army’s incentives scheme for killing militants in Kashmir, and were reported to have received a cash award of 6 lakhs, with some getting rapid promotions. What cannot be forgotten is that the deceased were passed off as foreign militants and today their families have nothing to fall back upon but betrayals at the hands of the Indian army and Indian democracy.
Even though it was an exceptional case, in 2014, PUDR had noted a cynical pattern: how the army’s GCM had acquitted five guilty personnel involved in the Pathribal case (2000) and how the army along with the state and union governments had opposed the re-opening of the Kunan Poshpora case before the Jammu and Kashmir High Court at Srinagar. Besides these characteristic responses, PUDR had also pointed out that the Machil conviction was used to mute criticism for the November 2014 horrific shooting of two youth at Budgam. (http://pudr.org/content/one-sparrow-does-not-herald-spring). In recent times, given the statements made by the Army Chief, these suspension of sentences holds out a political message of confidence for the army to act with impunity. Hence, the suspension raises questions about the army’s seriousness in punishing the guilty.
Anushka Singh and Cijo Joy
Secretaries, PUDR
