Family members of the encounter victims protest in Baramulla. (Express Photo/Shuaib Masoodi) Family members of the encounter victims protest in Baramulla. (Express Photo/Shuaib Masoodi)

The Armed Forces Tribunal cited the location and attire of three Kashmiri men killed in the 2010 staged Machil encounter while suspending life sentence and granting bail this week to five Armymen convicted of the killings. “…reason for grant of suspension of sentence is that the ambush/the alleged encounter has taken place near Sona Pindi Gali which is admittedly very near to the Line of Control (LoC),’’ the order of the Tribunal comprising Justice V K Shali and Lt Gen S K Singh said. “There was absolutely no justification for a civilian to be present at such a forward formation near LoC, that too during the night when the infiltration from across the border was high.’’

The Tribunal said that the fact that “the accused persons were terrorists who have infiltrated across the border or were crossing over to the other side cannot be ruled out because they were wearing pathan suits (a common attire of men, particularly among Muslims, in South Asia) which are worn by terrorists’’. It ignored findings of the Jammu and Kashmir police, Army’s Court of Inquiry and subsequent General Court Martial, which had sentenced the five — then 4 Rajputana Rifles Commanding Officer Col Dinesh Pathania, Captain Upendra (holding a field rank of Major), Havildar Devendra Kumar, Lance Naik Lakhmi and Lance Naik Arun Kumar. “..prima facie the entire chain of circumstances did not lead us to draw an irresistible conclusion that the deceased were civilians and that the accused persons were not innocent,’’ the order said, citing photographs of the bodies of the three civilians. “…ammunition belts around their (the three civilians) waists and admittedly fire arms and ammunition is stated to have been recovered from them. If a person is a civilian, he would certainly not (be) in combat uniform, much less he would carry the fire arm and ammunition with him.”

The Tribunal has questioned why the parents of the three file a police report 10 days after they went missing and concluded that garnering “sympathy” and “monetary compensation” was their motivation. “…the normal conduct of the parents and other family members of the victim should have been to lodge a report about their missing child within 2-3 days of the non-return, but they waited,’’ the Tribunal said. “Therefore, the fact that the parents of the victim having learned about the encounter of their son in the ambush on 29th/30th night for allegedly being terrorist could not be ruled out and the complaint was belatedly filed only to garner some sympathy or getting material/monetary compensation on account of the alleged killing of their child.’’

The Tribunal has got the date of the fake encounter, which took place during the intervening night of April 29 and 30, 2010, wrong. The Tribunal noted that “the ambush has taken place on the night of 29/30th of October, 2010’’.

Jammu and Kashmir police’s investigation had exposed the fake encounter after the families of Shazad Khan, 27, Shafi Lone, 19 and Riyaz Lone, 20, had filed their missing report. It found that a counter-insurgent, an Army source and a Territorial Army (TA) jawan had been used to lure the three from North Kashmir’s Nadihal to a camp in Machil along the LoC. The three civilians were promised jobs as porters but were instead killed in a fake encounter and branded as foreign terrorists for medals and cash rewards. The counter-insurgent, the source and the TA jawan had given testimonies detailing how they took these three civilians from their village to the camp where they handed them over to Upendra. The TA jawan was present when the three were killed.

Court martial proceedings in the case were initiated in December 2013 after Brigadier G S Sangha’s court of inquiry substantiated the police findings. The Army’s Northern Command confirmed the life sentence of the five Army men after the proceedings concluded in 2015. This was the first time in Kashmir that soldiers had been awarded life terms for their involvement in a fake encounter.

The families of the three civilians had identified them as their missing kin when their bodies were exhumed from a Machil graveyard, where they had been buried as unidentified “Pakistani terrorists”.

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