Burial Of Innocence

Burial Of Innocence
How the CBI nailed the army's claims on the Pathribal encounter

SAIKAT DATTA

Security forces operating in the Kashmir Valley are familiar with the term 'white terrorism'. For the average Kashmiri, it is a form of state-sponsored action with the tacit approval of the authorities to ensure that "the right message goes out". The skewed idea is to keep the local population terrorised so that they do not extend any help to militants.

Was the killing of five civilians in the early hours of March 25, 2000, by the army following the Chitsinghpura Sikh massacre a case of white terrorism? The chargesheet filed by the CBI, after three years of investigation, raises serious questions about the army's role and the shocking cover-up. The sordid tale in a nutshell is that on the eve of President Bill Clinton's visit, militants struck at Chitsinghpura on May 20, killing 36 Sikhs. Five days later, the army responded by gunning down five villagers in Pathribal, Anantnag district, and passing them off as the militants responsible for the May 20 attack.

The CBI chargesheet, accessed by Outlook, exposes the institutional efforts of the army to cover up the incident and to protect the guilty. A series of letters and documents annexed to the chargesheet show that at every stage army headquarters and its lower formations refused to cooperate with the CBI. The army top brass tried to shield the officers involved from being prosecuted by a civilian agency. But what has also angered many is the fact that the army chose to promote all the accused even while the investigation was on.

Here are some of the documents in the CBI chargesheet:
An official letter to the CBI signed by Brigadier Bikram Singh, on behalf of the then vice-chief of army staff (No. A/38240/MO3A), dated December 31, 2004, states that the officers cannot be prosecuted because they are protected under the Armed Forces Special Powers Act (J&K), 1990. The Act provides immunity from prosecution for actions undertaken in disturbed areas.
A communique to the agency from Major Vinay Bali of Sector 1 Headquarters, Rashtriya Rifles (RR), (No. 1001/P/GS (OPS)), dated July 28, 2003, claims that it is difficult to find the names of the individuals who took part in the Pathribal operation.
A note from Sector 1 RR Headquarters (Letter No 241/1/GS (Ops)) is categoric that Pathribal was a joint police-military operation. This was subsequently denied by the then Anantnag SSP Farook Khan who told the CBI that the battalion conducted the operation after they received intelligence inputs from their own sources.
Codenamed 'Operation Swift', the encounter was conducted by the 7th battalion of the Rashtriya Rifles (RR). The army maintains that the operation was planned after 7 RR received specific inputs from SSP Khan. So far the CBI has named five army personnel in its chargesheet—Colonel Ajay Saxena, Major Brajendra Pratap Singh, Major Sourabh Sharma, Subedar Idrees Khan and Major Amit Saxena.

In a detailed reconstruction of events, the chargesheet records that five local residents were reported missing soon after the encounter. They were Zahoor Ahmed Dalal, Bashir Ahmed Bhat, Mohammed Yousouf Malik and two by name of Juma Khan. Strangely enough, most of their deaths were attributed to severe burns, not bullet injuries. Zahoor died due to 98 per cent burns. The doctors who conducted a post-mortem on the exhumed bodies also recorded that Malik's body was found without the head and the left hand.

All five were disfigured beyond recognition and after several false starts, including reports of samples being tampered with, it was finally established that they were local villagers.

So, were the bodies deliberately burnt to avoid identification? The CBI points out several glaring discrepancies in the claims made by the army:
The 'after action' report of the army states that a local, Mohammed Yusuf Wagey, had given information on March 24, 2000, about the hideout of the militants responsible for the Chitsinghpura massacre. However, the names that Wagey provided do not match with the people killed.
The army claimed that three of the five killed were Pakistanis. The dna reports prove that all five were local residents. This, the CBI says, "is indicative of a preconceived notion with a view to justify the alleged encounter."
The CBI claims there is ample evidence and witnesses to show that the five men were abducted and later evidence was destroyed deliberately.
The CBI found it "highly improbable that RR personnel used such a huge amount of ammunition against five unarmed civilians. This was done to create a false impression of an encounter".
Strangely, nobody from the army suffered any injuries in the operation.
A typed memo of the encounter submitted by the army authorities raises several questions. The CBI says such a typed memo couldn't have been prepared at the site of the encounter if it was genuine. The CBI believes it was prepared much later as a cover-up.
The copy of the seizure memo submitted on April 4, 2000, and the voucher submitted to the police on August 8, 2000, when the seized weapons were handed over, contradict each other. The seizure memo submitted does not mention any damage to the five AK-47 rifles allegedly recovered from the 'militants', but the voucher to the police points to damages. Very clearly this was done because if the 'militants' were charred beyond recognition, then how could their weapons be intact? This, the CBI says, is "manipulation".
Finally, the testimony of inspector Mukesh Kumar of the J&K Police stf that none of the photographs or particulars of the actual militants matched the dead bodies of the villagers.
Despite such serious charges, the army continues to remain tight-lipped. The accused officers have written to army HQ protesting their innocence—their wives have written to defence minister Pranab Mukherjee. The army is keen the trial is conducted in a military court martial. That alone might ensure that some gory facts remain buried. Meanwhile, five families in Pathribal wait in the hope that justice will be done.



Immune To The Law

The army says civil laws cannot apply to it

In January this year, army headquarters wrote to home secretary V.K. Duggal requesting the home ministry to sensitise the civil administration. It stressed that army personnel involved in counter-insurgency operations cannot be prosecuted for human rights violations without the sanction of the central government. The letter written by the military operations directorate quotes relevant sections of the Armed Forces Special Powers Act (J&K), 1990, to say that military personnel cannot be prosecuted for acts done in the discharge of official duty.

"We are coming to a point where our local units are being asked to cooperate in cases of human rights violation allegations to such an extent that it is becoming detrimental to our operational preparedness," a senior army officer told Outlook.

Army officials also say the Pathribal killings had a context. "The unit 7 RR is affiliated to the Punjab regiment with more than 50 per cent Sikhs. Imagine their state of mind after Chitsinghpura," says a senior army officer. However, the CBI has a different take: "The killing of innocent persons in a fake encounter cannot be construed as official duty". Which is why the investigating agency filed its chargesheet in a Srinagar court without consulting the Centre.

ORIGINALLY PUBLISHED BY OUTLOOK MAGAZINE