Macchil encounter order upsets Army officers who processed case

Last week, the AFT’s Delhi bench suspended the life sentence of five personnel, including a colonel and a captain who were convicted by a General Court Martial in 2015 of staging the killing of three Kashmiri civilians at Macchil in 2010 and branding them as foreign militants. The five include Col Dinesh Pathania, Commanding Officer of 4 Rajput; Captain Upendra, then holding a field rank of Major; Havildar Devendra Kumar; Lance Naik Lakhmi; Lance Naik Arun Kumar; and, Rifleman Abbas Hussain Shah of Territorial Army. Read: Tribunal cites location, attire of victims to suspend sentences of Armymen. Click here.

The Army’s judicial process started in July 2010, when it ordered a court of inquiry into the incident following a J&K Police investigation that led to the filing of charges related to murder and conspiracy to commit murder against 11 persons: two villagers, and nine Army personnel, including three officers. According to police, the three civilians — Shazad Khan (27), Shafi Lone (19) and Riyaz Lone (20) — of Nadihal village in Rafiabad had been lured to an Army camp at Kalaroos in Kupwara. They were killed in an alleged fake encounter on the night of April 29, 2010, at Sona Pindi in the Macchil sector on the LoC, said police.

The Army’s court of inquiry found prima-facie evidence and recommended minor punishment against about a dozen personnel. It also asked for a recording of the summary of evidence against six soldiers, including Shah who was in a civil jail. A summary of evidence is the major step towards determining if a case warrants a trial by a court martial. The Army took up a case through the civil courts for Shah to be made part of its proceedings. He was included in the recording of Summary of Evidence, which started in April 2013. The case was recommended to be taken to a Summary Court Martial, headed by the Commander, 68 Mountain Brigade and held in Kupwara.

The court martial began in December 2013, which took evidence on board, the bulk of which came from the police investigation and included call detail records provided by a private telecom operator. The data from cell towers was critical to proving the charges, according to police, but was rejected by the court martial as it was not signed and attested. This allowed Shah to be freed due to lack of evidence while the other five were given life imprisonment. Also read: Machil and the opaque world of the ‘court-martial’. Click here.

When the judgment reached the Northern Command headquarters in November 2014 for confirmation by the commander, it was returned to the court martial with a request to review the evidence. This was based on the understanding that one of the main conspirators of the case was unpunished, as pointed by the legal advisor in the headquarters. The court reassembled and found the evidence admissible, leading to life imprisonment to all six, including Shah. In September 2015, based on the unequivocal advice of the legal branch of his headquarters, Lt Gen Hooda confirmed the sentence.

Officers involved with the confirmation process said that the minimum punishment for murder is life imprisonment, which cannot be reduced, and that it is “very difficult for any commander to go against legal advice”. When contacted, official sources in the Army said, “It is not prudent to speak on the matter as the case is sub-judice.”