Immune and offensive

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Enjoying the immunity granted to its men under Armed Forces Special Powers Act, the army has consistently sidelined the courts in J&K, yet in a latest offensive, the army chief questioned the fairness of state judiciary. Nasir Ahmad reports.

Here is the latest from the army. The army chief General V.K Singh has raised questions over fairness of judiciary in Jammu and Kashmir. He has cited it as a major reason that hinders Army to produce its personnel involved in civil offences before Courts in Jammu and Kashmir.

The army chief’s comments came in response to questions over why it was resisting a civil trial of its men accused in the Machil fake encounter.

An investigation by state police has found that army men in connivance with local sources lured three civilian youth of Nadihal Rafiabad, killed them on the Line of Control and passed them off as foreign militants.

The army has a history of using the immunity granted by AFSPA to refuse a trial of its men accused of serious human rights violations in civilian courts in J&K.

“I don’t know how much you are aware of the legal system in the Valley. There are various pressures out there. You are aware of Mian Abdul Qayyum, who was president of the Bar Association and is now in detention. He has been rabidly anti-Indian,” General Singh told reporters in New Delhi.

“With this kind of situation, what kind of justice would we expect or legal provisions would be followed, is the question mark. And that is why as per the laws and procedures laid down, we would like to complete our inquiry before we come to a conclusion,” he added.

This is perhaps the first time the institution has cast aspersions on the judiciary itself. For the last many months, the army has religiously been issuing statements against any move to scrap the APFSPA wholly or partially. Breaking a tradition of keeping away from political or policy statements, the army officials, right from its chief to valley based corps commanders have issued statements, at times to the embarrassment of state government.

“Army should not overstep its brief. It is political decision whether to remove AFSPA or not. Omar Abdullah is committed to remove AFSPA where security situation permits. Judiciary in J&K is independent, nobody has a right to raise finger against the working of the judiciary,” Ajay Sadhotra, provincial president and a spokesman for National Conference.

There is shock and disbelief among lawyers and judges in Kashmir over the latest statement indicting the judiciary.

Senior advocate, Zaffer Ahmad Shah says the High Court can take suo motto notice of the statements made by the army chief.

Shah opines that the army chief has lowered the prestige of judicial system in the estimation of common man.

“To accuse the judicial system of being unfair reflects on the conduct of learned judges who are serving the system. The statement needs to be noticed and dealt with according to law,” Shah said.

Senior Additional Advocate General of the state A.M Magray refused to comment on the issue.

“This is between Army and judiciary. I am simply a lawyer and I cannot comment on that,” Magray said.

Former Additional Advocate General of the state Muhammad Amin Rathore says judges are bound by the oath and give judgments in accordance with the law. Rathore who has represented the State in Public Safety Act related matters said that in the last 20 years not a single instance could be found where a judge has been influenced by lawyer and has delivered the judgment as per whims of the lawyer.

“The statement of the army chief is contemptuous and the High Court should take suo motto cognizance of it,” he said.

To substantiate his view, Rathore cites the example to the senior lawyer Mian Qayoom, who was arrested during summer unrest in 2010. “He (Mian Qayoom) engaged best lawyers, who argued his cases before the judges. Where is the bias,” he said.

Qayoom is still under detention.
Former additional advocate general Riyaz Hussain says the army chief wanted committed judiciary in the State that should give judgments as desired by the Army. “We cannot cite any other example in any democratic country of the world where judiciary has been subjected to such contempt,” says Riyaz.

Lawyers are baffled by Singh’s statement, more because of the fact that army has never produced any of its personnel involved in civil offences before the Courts in Kashmir.

Many a time army has filed objections saying the state government has no mandate to order probes and the courts cannot prosecute them as they enjoy immunity under Armed Forces Special Powers Act.

Human Rights activist and lawyer Pervez Imroz said the army statement is questioning the functioning of the judiciary and is contemptuous and misleading. He says army is already enjoying “legal impunity” and now it also wants to get “judicial impunity”.

“And the army is against any sort of accountability of law enforcing agencies. I think contrary to the statement of the army chief the civil liberty groups here feel that the judiciary is exercising self-imposed limitations in human rights related matters to avoid confrontation with the executive,” he said.

Riyaz Khawar, a lawyer in the High Court says there is complete transparency in the criminal justice system. “The trial here is open unlike the court martial where nothing is made public,” he said. He said lawyers were assisting the court and they were not themselves dispensing the justice. “It is judge who delivers justice as per law and constitution,” he said.

The political parties are also taken aback.

“In whatever context chief of army staff has said it, it is matter of concern,” says PDP spokesman Nayeem Akhtar. Akhtar said that for ordinary people the judiciary is the ultimate post. “If army is not able to have trust on its fairness how can you expect ordinary person to trust judiciary,” he asked.

A former judge refused to speak on the matter.

Pathribal killings

On April 3, 2000 eight persons were killed and nearly 14 were injured when Special Operation Group of Jammu and Kashmir Police and Central Reserve Police Force opened fire on a protest procession coming from Brari Angan at Barakpora Bubul Nowgam in south Kashmir’s Islamabad district.

The incident came on top to two other incidents in the area.

On March 20, 2000, 36 Sikhs in Chittisingpora in south Kashmir area were gunned down when the then US president Bill Clinton was on a visit in the country.

Five days after the incident, Police and Army claimed that it killed five foreign militants responsible for Chittisingpora massacre.

Meanwhile, five persons from Brari Angan village had gone missing. The residents started protesting seeking their whereabouts. The protesters were fired upon allegedly by SOG and CRPF personnel at Brakpora.

The incident forced the government to appoint an inquiry commission under the Commission of Inquiries Act 1962. However Chittisingpora and Pathribal incidents were not in the terms and references of the Commission.

The Commission described the killing of eight persons in the SOG firing as nothing but brutal attack amounting to murder. It held seven SOG and CRPF personnel guilty. No one knows whether they were prosecuted or not.

However, the Brakpora incident forced the government to exhume bodies of the five alleged “foreign militants” claimed to be responsible for Chittisingpora massacre.

On exhumation of bodies at Panchalthan village, the relatives identified the charred bodies. They were all locals. However, to settle the issue then the government decided to conduct their DNA test.

It collected 15 samples from five exhumed bodies and eight from their relatives. The investigation was marred by DNA fudging controversy.

In three cases, prepared by forensic laboratory Hyderabad, the samples of women relatives were found to have come from men. The government sat over the forensic report for over a year. The report was leaked by a Delhi based newspaper forcing the government to constitute a commission to investigate the DNA fudging case.

It appointed Justice J.N Kuchay to probe the DNA fudging case. The Commission indicted the then SSP Islamabad and other officers in the DNA fudging case. The government suspended the then SSP after he was found guilty by the Commission of fudging case.

The CBI which investigated Pathribal killings meanwhile indicted five Army officers including a Brigadier for killing five civilians and dubbing them as militants. The CBI presented challan against them in Court of Chief Judicial Magistrate Srinagar.

The Court asked army whether they should be tried in civil Court or they will prefer Court martial.

The army instead filed appeal in the Additional District and Sessions Court and then in High Court on behalf of the five Army officials and GOC 15 Corps, challenging the lower court’s order. The courts dismissed army plea over jurisdiction.

The army finally filed a petition in the Supreme Court challenging the jurisdiction of the CBI to file charge sheet against army without sanction from the central government.

The army said that armymen named in the CBI charge sheet were protected under Para 7 of the Armed Forces Special Powers Act, 1990. They said before charging them, permission of the central government had to be sought. It said since the permission was not sought, the charge sheet produced in J-K courts is not valid. The case is pending before the Apex Court.

Ganderbal encounter
In 2006, five staged encounters surfaced in Genderbal area in which five persons from south Kashmir district Islamabad had been picked up from different places and then killed in staged encounters. The then chief minister Ghulam Nabi Azad had ordered high level inquiry into it.

A carpenter from Islamabad who went missing in December 2005 was killed in a fake encounter in Ganderbal on the outskirts of Srinagar. The Superintendent of Police (SP) Ganderbal Hans Raj Parihar and Deputy Superintendent of Police (DSP) Bahadur Ram were arrested in the case.

Abdur Rahman Padder, 35, son of Ghulam Rasool Padder of Larnoo, Kokernag, went missing from Batamaloo bus stand on December 8. He was taken to Waskura Ganderbal in the night and killed allegedly in a fake encounter by Special Operations Group (SOG) of Police from Ganderbal and Sumbal.

His face was mutilated with bullets and burns. Later the SOG dubbed him as a Lashker-e-Toiba militant, Abu Hafiz of Multan Pakistan and claimed recovery of an AK-47 rifle, three magazines, 36 rounds of ammunition and a grenade, they said.

In similar manner four others persons were killed in separate encounters involving Army and police. Though the police personnel involved in the fake encounters were arrested, not a single armyman has been questioned.

In one of the cases Special Operation Group Ganderbal and Army in March 2006 had killed civilian Ghulam Nabi Wani, a vendor who was selling bed sheets in Lal Chowk and termed him as foreign militant Zulfikhar of Muzafferabad.

The state police filed charge sheet against the Army before a court in Bandipora district of north Kashmir. The court had asked army to exercise option whether it will opt for Court Martial or trial in the civilian court. Army challenged the decision saying army personnel can’t be prosecuted without sanction from the central government.

Haigam killings
On February 14, 2001 a former militant of JKLF Jalil Ahmad Shah was allegedly killed in custody by 22 RR in Haigam Sopore.

Jalil, according to locals, was like hundreds of former militants who had given up gun and was leading a civilian life.

His death shocked the residents and they staged a demonstration blocking Haigam-Sopore road. The residents were now demanding body of Jalil.

Police arrived at the spot and tried to pacify protesters. And when police was doing its job, three trucks of Armed Forces appeared on the scene. They got furious over the blockade and ordered firing killing five persons. The government ordered probe under the Commission of Inquiries Act 1962. It appointed Justice (retired) O.P Sharma as inquiry officer.

The O.P Sharma commission initiated the proceedings.

Pervez Imroz, lawyer and human rights activist, who pleaded the case of Haigam villagers, says that the Commission received ten affidavits from the villagers. The army, he said, also filed the affidavits of four of its personnel.

The army insisted that the firing was not unprovoked. It said it was in response to the violent agitation of masses. Imroz, during the proceedings contested, the army’s assertions and said not a stone or kangri was pelted on the army vehicles. However, when justice Sharma came up with the findings he not only justified the firing that killed five persons and injured seventeen others but also said that army personnel had reasonable apprehension and threat perception in their mind.

He said gun shots from crowd prompted the army to resort to firing. He said firing has become imperative in view of the law and order situation and personal defense of armed forces. He held the villagers guilty of violating the prohibitory orders under section 144 Cr P.C and taking law in their own hands. He held them guilty of causing inconvenience to the people travelling on the highway.

On March 27, 2001 the villagers addressed press in Srinagar. They said the Commission findings were not based on the evidence and statements of villagers and police officials who deposed before the judge.

They said the findings reflect the army view and demanded new commission under new judge having impeccable record.

But army was not happy with the decision that exonerated them. It filed petition in the Supreme Court challenging jurisdiction of the state to order probes in the incidents involving army.

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A journalist with seven years of working experience in Kashmir.

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