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The Machil break

Could the army’s decision in the case open a new chapter in the poll-bound state?

Written by Wajahat Habibullah |
Updated: November 26, 2014 12:07:12 am
army-l Could the army’s decision in the case open a new chapter in the poll-bound state?

In what Chief Minister Omar Abdullah described as a “watershed moment”, on November 13, the Indian army sentenced five of its personnel, including two officers, to life imprisonment for the murder of three young Kashmiris. In April 2010, three young men, Muhammad Shafi Lone, Shehzad Ahmad and Riyaz Ahmad were killed in what was claimed to have been an armed encounter with terrorists in Machil, a township across the Kazinag mountains, close to the LoC. Under the chief minister’s orders and in response to complaints of a fake encounter staged to claim the reward dispensed for killing infiltrators, the police registered an FIR. In its preliminary findings, it identified an Indian army major as instrumental in the killing of the three, all innocent, in what was found to indeed have been a fake encounter with the young men having been lured with the promise of employment as labour. The three boys, far from being “infiltrators”, were residents of Nadihal, in the vale of the spectacular but bloodsoaked Lolab. Although the police had withheld the name of the officer responsible for this encounter “as it [could] hamper the investigation”, Srinagar daily Greater Kashmir, quoting sources, had  identified the officer as one Captain Upendra of 4 Rajputana Rifles. The officers now reported sentenced are the commanding officer, Colonel Dinesh Pathania, Major Upendra Singh and others.

But this was not the first encounter of its kind, and police investigations in cases of suspected fake encounters had been ordered before, as early as in 1993, when civilians were allegedly killed in BSF firing in Bijbehara, the first case of which the then nascent National Human Rights Commission had taken cognisance, and more recently in the alleged killing of innocent civilians by the police in response to the murder of 38 Sikhs in Chattisinghpora in the district of Anantnag in March 2000. Earlier, in 2010, on February 5, Zahid Farooq Sheikh, a 17-year-old schoolboy, had also allegedly been shot dead by a BSF trooper in the state capital, triggering public outrage and protest across the Valley. The police had arrested the BSF trooper, who admitted to having shot at the youth but insisted that he did so on the orders of his commanding officer. The CO became the highest officer of the paramilitary to have been arrested in Kashmir and remanded to 10 days judicial custody by the chief judicial magistrate in Srinagar in the high-security central jail. But both the trooper and his CO continue to walk free.

Despite the FIR in the Machil case, by June 2010, Syed Ali Shah Geelani, in a speech in Baramulla, called upon the people to protest what he claimed was an effort at cover-up. And there was massive response from the young people of Srinagar where, on June 11,  2010, 17-year-old Tufail Mattoo was shot dead by the J&K police while returning from tuition, obviously mistaking the child for a stone-pelter from among those with whom they had jousted all day, triggering a state-wide agitation. The Sopore township — the hub of Kashmir’s apple industry — was the first to explode in response, leading to firing by the CRPF that took more lives. An inquiry was again ordered into these killings by the chief minister. It was again fruitless.

From north Kashmir, the uprising spread into south Kashmir, when three teenage boys Shujat-ul-Islam, Ishtiyaq Ahmad Khanday and Imtiyaz Ahmad Itoo were shot dead in Anantnag on June 29, 2010, in a private compound. In none of these cases has a sentence been handed down to the accused police or paramilitary personnel. The Machil decision, then, is a break.

At the time of writing, the civil administration in J&K had received no official intimation of the details of the investigation — or, indeed, of the sentence. Nor is there any need for the army to do so under the Armed Forces Special Powers Act (AFSPA). Chapter V of the Code of Criminal Procedure sets out exactly how arrests are to be made, which does not give an officer the right to cause death, unless there is accusation of an offence punishable by death or life imprisonment. This power is already too broad, allowing the police to use more force than stipulated in the UN Code of Conduct for Law Enforcement Officials. Yet, the AFSPA is even more excessive, allowing the armed forces to kill even a person who is not suspected of so grave an offence. And although it cannot be so construed legally, the public has remained convinced that this has allowed the army to overlook killings of the atrocious kind perpetrated in Machil.

In an article (‘State of transition’, IE, November 7), Lt Gen Syed Ata Hasnain described what he calls the “unfortunate” killing of two young boys and injury to two others in their car as they sped through mobile vehicle check-posts (MVCPs) a few kilometres south of Srinagar without stopping, arguing that “for the past few years, the situation in J&K has been transiting from a typical public order environment to a law and order one”. My own experience and repeated visits to Kashmir and interaction with a cross-section of its people tell me that such “transition” has long since been completed. Can we hope that the Machil decision and the decisive response of army HQ in J&K in the latter tragedy — after an initial goof-up, when it was claimed that a shot had been fired by a non-existent gun in the Maruti — amounts to a recognition, however tacit, of this reality?

The writer is a former chairperson of the National Commission for Minorities

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