KL NEWS NETWORK
Just a year after the Supreme Court granted the army permission to try its personnel by a court martial in the Pathribal case, in April 2013, the Supreme Court again granted security forces the option to try their own personnel: this time the Border Security Force. 16-year-old Zahid Farooq Sheikh was killed in 2010 by the Border Security Force personnel as he was walking home from playing cricket with friends in Srinagar.
Unlike many past cases of alleged human rights violations, the state police investigation into Zahid’s killing was conducted swiftly, and within a few weeks of the incident, the police ﬁled charges of murder against two BSF personnel. The BSF did not deny that their soldiers were responsible for Zahid’s death, and began conducting security force court proceedings against the accused after the conclusion of the police investigations, arguing that because their personnel are always considered on “active duty” in a state designated as “disturbed,” they were empowered to try their personnel in a military court.
Zahid’s father, Farooq Sheikh and his family petitioned to have the case tried in a civilian court as they were not convinced they would get justice from the security forces. “We are not told anything when they conduct a trial. We don’t have access to any information. How will we know that the guilty are even punished? The only way we can be sure is to have the trial in the civil court,” said Farooq Sheikh.
In March 2013 Farooq Sheikh was called to testify before the BSF Security Force Court. Farooq says the BSF summoned him several times through the local police, but he was reluctant to attend the proceedings as they were held at the BSF camp at Panthachowk in Srinagar, which only military personnel are usually allowed to enter. He said he felt nervous about entering the BSF premises, and feared intimidation or harassment.
Farooq said that he and another witness, Mushtaq Wani, who was with Zahid when he was killed, went to testify before the Security Force Court, also in March 2013. The BSF had appointed a lawyer for them, who Farooq says was from Jammu. Farooq said, “They repeatedly tried to discredit Mushtaq. They repeatedly projected the incident as if there was stone-pelting at the time. But the police have made ofﬁcial reports that everything was normal at that time. No stone-pelting was going on…The cross-examination was done by a soldier who questioned Mushtaq and kept accusing him of being a militant, asking him about his activities and whereabouts.”
Farooq told Amnesty International India that he did not trust the BSF court proceedings. At the hearing, Farooq says that there were 14 other witnesses produced by the local police and witnesses from the BSF side. When he went to testify, he says, a senior ofﬁcer of the unit fell at his feet and said, “Please forgive me, we have made a mistake.” Farooq replied, “How can I forgive you. You have killed an innocent boy.”
Zahid’s cousin, Nasir Sheikh added: “They [the BSF] will complete the investigation and trial, they have just one or two more witnesses to depose before the court, and then most probably the accused will be transferred to another place, and we will never know what comes of the case. Just like in the Pathribal case, the BSF are saying that there were no eyewitnesses to the incident so they cannot charge the accused with murder.”
The BSF court proceedings were yet to conclude at the time of writing. Farooq Sheikh said he has not been contacted by BSF authorities since he attended the hearing at Panthachowk in 2013.
Farooq Sheikh and his lawyer, Nazir Ronga, continue to ﬁght for the case to be tried in the civilian court: “The fact that the BSF are ﬁghting so hard to bring the case back into the military court makes me suspicious. What are they trying to hide?” says his lawyer. Having had their appeal to the Supreme Court dismissed once, they applied to the Jammu and Kashmir courts again on the grounds that the Border Security Forces did not try their personnel within the time directed by the Supreme Court. However, the Sessions court in Srinagar directed the family to approach the Supreme Court again to seek re-evaluation of its decision in June 2014.