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Saturday, October 23, 2021

Macchil killings: Tribunal suspends life sentence of five Army personnel

The fake encounter was exposed by J&K police investigation after the families of the victims filed a missing report. This triggered massive protests across Kashmir. The government constituted a high-level inquiry commission while army too ordered a high level probe.

Written by Muzamil Jaleel | New Delhi |
Updated: July 27, 2017 4:33:42 am
Family members and relatives of Machil fake encounter victims protest against suspension of life sentence to convicted army men outside DC Office Baramulla. (Source: Express Photo By Shuaib Masoodi)

The Armed Forces Tribunal has suspended the life sentence of five army personnel including a Colonel and a Captain who were convicted by a General Court Martial in 2014 for staging the killing of three Kashmiri civilians at Macchil in 2010 and branding them as foreign militants for brass medals and cash rewards.

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 where they were subsequently killed in a staged encounter during the intervening night of April 29 and 30, 2010 at Sona Pindi in Machil sector on the Line of Control. The army had dubbed them as foreign militants who were killed in an encounter while trying to infiltrate the Line of Control. Their bodies had been buried in a local graveyard near the LoC. To prove that these three youngmen were foreign militants, the armymen had painted the face of Shafi Lone — the youngest among the three -– with black colour to show he had beard and then taken the picture of his face for records. The fake encounter was exposed by J&K police investigation after the families of the victims filed a missing report. Subsequently, when the bodies of these youth were exhumed from Machil graveyard where they had been buried as unidentified Pakistani terrorists, the families identified them as the three missing men from Nadihal village in Rafiabad. This fake encounter triggered massive protests across Kashmir. The government constituted a high-level inquiry commission while army too ordered a high level probe.

The Army finally initiated court martial proceedings in December 2013 after the findings of a court of inquiry report by the then Commander of 68 Mountain Brigade, Brigadier G S Sangha. After the court martial led by Brigadier Deepak Mehra of 68 Mountain Brigade concluded its proceedings, the Army’s Northern Command had confirmed the sentence in 2015, making it the first case in Kashmir where army personnel were awarded life terms for their involvement in a fake encounter. The then Commanding Officer of 4 Rajputana Rifles, Colonel Dinesh Pathania, Captain Upendra, Havildar Devendra Kumar, Lance Naik Lakhmi, Lance Naik Arun Kumar had challenged their sentence before Armed Forces Tribunal.

“Their (life) sentence has been sentenced and they will be out of jail in a day or two. This is a huge victory for us,” said Major Anand Kumar (retired), who represented the convicted army personnel. “(the then) Omar Abdullah government (in J&K) had pressurized the Congress government at Centre and that is why this happened. We are confident that the entire case will be thrown out”.

(Source: Express Photo By Shuaib Masoodi)

He said that the matter was listed before the Armed Forces Tribunal last week. “We argued for the suspension of the sentence because the army court has not done justice,” he said. Kumar said that “it is a case of circumstantial evidence where the chain of evidence has to be complete”.

“The evidence was that one Bashir Ahmad had taken these three persons to the army who killed them. But Bashir was not examined in General Court Martial. This had broken the chain,” he said. He also said that the DNA samples of only two among the three men (killed in Machil fake encounter) had matched (with their kin) while the first FIR was also lodged about missing of two persons only. “They (convicted army personnel) have been granted bail and they will be out of jail soon. For Col Pathania, Aman Lekhi had appeared before Armed Forces Tribunal,’’ he said.

Although this staged encounter wasn’t the first such fake encounter in Kashmir where army, paramilitary or police men had killed civilians and dubbed them as foreign militants, Machil fake encounter probe had exposed a complex narrative of counter-insurgency where greed and penchant for brass medals had become a common cause between a group of army officers and their local collaborators. A visit to Nadihal –- the native village of these three young men –- had vividly explained this complexity where mourning and grief of the families of these three men also Bashir Ahmad Lone. It was Lone who had laid a death trap for Shazad Khan (27), Shafi Lone (19) and Riyaz Lone (20), literally selling them for Rs 50 thousand each to the Army. Lone had been a counter insurgent and along with his policeman brother Qayoom Lone, he had ruled the village through fear ever since militancy started waning out here several years ago. His house was the first causality of the public rage and was burnt down soon after the bodies of these three men were exhumed and brought back to Nadihal for a proper burial. Though these three men had no connection with the armed movement and one of them was even close to the army, they were given a place in the village’s “martyr’s graveyard”. Read: Macchil encounter: ‘How could killers of my brother be set free… mockery of justice’ Click here

How did these three men end up in an army camp in far off Kalaroos near LoC? The answer was also clear inside the village where their homes — situated in three different mohallas of Nadihal -– couldn’t hide their common story of abject poverty. Shahzad Khan (27) used to live in a small mud and brick house with his parents and five younger siblings. He was married to Jabeena and had a three-year-old son Shahid. His family was very poor and he was desperate to help improve the conditions of his family. He didn’t have a job.

Shahzad’s wife Jabeena had given him Rs 50 when he left home at 9 that day because “he had no money and was going to look for work”.

The man who actually helped take the lid off the fake encounter was Shahzad’s close friend — Fayaz Ahmad Wani. The day Shahzad and the other two men went missing on April 29, 2010; Shahzad had spoken to him (Wani) on phone and told him that he was with counter-insurgent Bashir Ahmad Lone. He (Shahzad) had told Fayaz that Bashir Lone had hired him (Shahzad) for two thousand rupees a day to work with the army and he was on his way to Kalaroos. When the families of Shahzad and other two men approached police on May 10, 2010 –- days after they were taken to Kalaroos army camp -– Fayaz Wani’s testimony to J&K Police helped to crack the case.

(Source: Express Photo By Shuaib Masoodi)

The police had immediately analysed the call details of Bashir Lone and cracked the entire conspiracy. The counter insurgent Bashir Lone had been assigned the job to find three men for the fake encounter by his friends – a Territorial Army jawan Abbas Hussain Shah and an army source Hameed – who later accompanied Bashir Lone in to Kalaroos where they handed over these three men to Captain Upendera (who was functioning as Major) of 4 Rajputana Rifles of the army. They were paid Rs 1.5 lakh, two bottles of whisky and two Beer bottles by the Major for their services. Shahzad and the other two men were killed in a staged encounter later at Sona Pindi on the Line of Control.

Shahzad’s story had another twist. Before he became a victim of a staged encounter by the army, he had been close to the army. In fact, the police investigation later revealed Shahzad had even been a witness on behalf of the Army in Bomai case where troops had opened fire and killed two villagers.

Shafi Lone’s story was also equally tragic. Shafi’s family had lost their house in the 2005 earthquake and was living in a half constructed structure. Shafi was the oldest among six siblings and had been working as a manual labourer till his father bought him a small tractor. He had no work and wanted to help his family to run the household. He was so young that he hadn’t even shaved as yet. When the family saw his body, they found his face painted with black colour to make a beard. A neighbour had taken a video clip to keep its record.

Another victim, Riyaz Ahmad Wani was 20 and had been working at a car workshop as a labourer for three years where he was paid Rs 2500 a month. And when the counter insurent Bashir Lone told him that he would be paid Rs 2000 a day – an unexpectedly lucrative offer – he decided to go and work for the army at the Kalaroos camp. He didn’t know it was a death trap.

Thus when army convicted its two officers and men for the fake encounter and sentenced them with life imprisonment, the families of the victims had felt that the perpetrators had been finally brought to justice especially because such a verdict was first of its kind in such a case in Kashmir. Today, the doubts have returned again.

The inside story of Machil fake encounter

How was this fake encounter organized?

The interrogation of the four persons especially the two main kingpins Territorial Army jawan Abbas Hussain Shah and army source Hameed has left no doubt that the officers of the 4 Rajputana battalion of the army were in a hurry to stage a fake encounter on the Line of Control to secure a unit citation and cash award days before they had to shift out of the valley. The fake encounter took place in the intervening night of April, 29 and 30, 2010 while the unit shifted out of valley within a week.

Abbas Hussain Shah had been in constant touch with “Major Upendera’’ ever since he took over as G2 at 19 Div Headquarters at Baramulla. Shah said that his job was to roam around the Baramulla town and adjoining villages to sniff for any useful information. “Major sahib would always ask me to arrange sources. Once I met Hameed and he wanted some liquor – I arranged it and then convinced him to become Major sahib’s source. We gave him a new name doctor sahib and he started working for army,’’ Abbas had told The Indian Express in an interview inside Sopore Police station where he was lodged after his arrest. “In April, Major sahib asked to arrange few young men and told me that we have to send them across to Pakistan to bring weapons and track (group of militant) which we could trap then. Major sahib promised to pay them and I asked Hameed for help’’. Hameed had earlier introduced Bashir Ahmad Lone, a counter-insurgent from Nadihal village in Baramulla to Abbas. “Bashir’s nephew was in army school and he wanted his fee to be waved off and I took him to my officers for help. He was Hameed’s friend and later became my friend too,’’ Abbas said. Thus Hameed talked to Bashir to arrange few men for the army.

The three met in General Cariappa park in Baramulla town and Bashir informed Shah and Hameed that he has arranged three men from his village and has offered them Rs 2,000 a day for work with the army at the LoC. The trip to Kalaroos was scheduled for April, 27. Bashir arranged a Tata Sumo and along with Hameed and the three youngmen traveled to the 4 Rajputana Rifles camp in Kalaroos. “Major asked us to go back home and come on April 29, 2010 as the weather was not good. On April, 29, 2010 Abbas accompanied us,’’ Hameed said. “They (the three men) were happy that they will be paid good sum for the work. They were talking on their cell phone and joking among each other. Abbas bought some coke and chips to eat enroute. At Kupwara, he took us to a hotel where we all had Kanti (fried boneless mutton) with naan. We even smoked charas’’. Hameed told the interrogators that Major was waiting for two army vehicles at Kalaroos. “He asked the three men to get into one truck while he asked us to board the other. He asked Bashir to leave along with the Sumo though,” he said.

Next morning, Abbas and Hameed were given 1.5 lakh cash by the major along with two bottles of whisky and two Beer bottles as their reward. Hammed and Abbas had, however, been separated during the night by the major who took the TA jawan Abbas along with him. The army had taken the three men -– Shahzad Ahmad Khan, Mohammad Shafi Lone and Riyaz Ahmad Lone -– to Sona Pindi on the Line of Control and shot them dead in a staged encounter and later dubbed them as unidentified infiltrating militants. The army had also claimed to have recovered five AK rifles, a large cache of ammunition and Pakistani currency from their possession. The police say that the unit had received Rs 6 lakh as cash award for this operation.

How did the police crack the case?

The police was already suspicious about the authenticity of the encounters on the Line of Control and had been refusing to file FIR about the army claims regarding the encounters unless the army produced the bodies of the militants. In a similar case, Trehgam police had intercepted and arrested a Special police official Imran Joo along with two boys from Kupwara while he (Joo) was taking them for a fake encounter in Keran sector. Then International Peoples Tribunal on Human Rights and Justice – a rights group – had published a report – Buried Evidence: Unknown, Unmarked, and Mass Graves in Kashmir that documented 2,943 unidentified bodies across 55 villages in Bandipora, Baramulla, and Kupwara districts of Kashmir who were killed by the forces in suspicious circumstances and buried without ever ascertaining their identity.

This fake encounter, however, was exposed by a mere coincidence. On May 10, 2010 the families of the three men in Nadihal had registered a missing report with the police Station Panzla in Sopore Police district. The investigators had just one clue: the families had told them that they left home with a local counter-insurgent Bashir Ahmad Lone that day and never returned. Shahzad had called his friend Fayaz Ahmad Wani that day and told him he was with Bashir and was going for work with army in Kalaroos. Wani had informed Shahzad’s family. The police immediately analysed the call details of the victims and Bashir and found out that they had all gone to Kalaroos ahead of Kupwara through the tower location of their respective cell phones. Thus Bashir was picked up on May 21, 2010 and subsequently police arrested Hameed too.

Abbas’s case was a bit complicated as he was a serving soldier. Thus police officially sought his custody from the Commandant of his 161 TA battalion. On May, 27, 2010 Abbas was finally arrested.

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