The army’s contention that it has found no ‘prima-facie’ evidence to suggest the involvement of military personnel in the Pathribal fake encounter has taken everyone by surprise and this shocking news has expectedly and very rightly been received with widespread anger and outrage. Pathribal means a lot to the people of Kashmir as it is a case in which there is conclusive proof that innocents have after being killed were passed off as ‘terrorists’ and thus, their demand for justice is legitimate. Yet, with the CBI giving a ‘clean chit’ to the J&K Police and implicating the army and the army in turn finding ‘no prima-facie case’ against those indicted by the CBI, it appears (like in the Jessica Lal case), that ‘no one killed five innocent men in Pathribal’!
The army authorities may claim that there is no evidence against its personnel indicted by the CBI for having been involved in the fake encounter but still, it has a lot to answer for. Firstly, can it deny that army men were involved in the ‘encounter’ in which the five innocent civilians were killed? Secondly, can it deny the fact that the army unit which carried out this operation did Infact lodge a FIR after the ‘encounter’ was over with the Police claiming that weapons were recovered from the site of the incident? Thirdly, can the army deny that it had claimed that those killed were ‘foreign mercenaries’? Lastly, can the army tell us why did it not contest the CBI indictment of army personnel in court if it felt that the CBI was prejudiced and had falsely implicated them?
Though exonerated by the CBI, the Police on its part too has a lot to answer for. Despite claiming to have an extensive intelligence network, how could the Police be fooled by the army into reinforcing its false claim that those killed in the Pathribal ‘encounter’ were ‘foreign mercenaries’? Why did the Police not expose the dubious role played by the army in this entire episode even after it became amply evident that the victims were innocent people and not militants? When the exhumation of the dead bodies and collection of DNA samples were being done under Police supervision, how did switching of DNA samples occur? In 2003, when Farooq Khan, a Police officer was found guilty of fudging DNA samples of the victims by the Justice GN Kuchay Commission, why was he merely suspended and no efforts made to ascertain under whose orders or directions had this been done? Knowing fully well that those who switched the DNA samples were either the real culprits, or their accomplices, why has the Police failed to identify them and bring the perpetuators of this heinous crime to book?
While the CBI deserves credit for having at least reached to some conclusion, why has it given a ‘clean chit’ to the J&K Police? The Police, by its admission has accepted that though not involved, its personnel were present at the site of the alleged ‘encounter’. Then, how is it possible that the Police men at the site could have been so naïve that they were unable to discern whether the army men were actually engaged in an encounter, or were merely ‘staging’ one? When it failed to expose the false claim of the army regarding the so called ‘encounter’ even after facts of the case became public knowledge, then how can the Police be given a ‘clean chit’ and not treated as an abettor in the crime? How has the CBI given a ‘clean chit’ to the Police when one of its officers was indicted by a Judicial Commission for his involvement in the deliberate attempt made to derail the investigations by switching DNA samples?
There is something rotten in the entire episode, something much more than what meets the eye – five innocents have been murdered and no one knows who killed them! While the widespread anger amongst one and all is understandable, the need of the hour is to control our emotions and proceed ahead rationally. This is no doubt a very difficult proposition, as I myself cannot but feel outraged, but then we must ensure that the truth is not silenced in the cacophony of emotional outbursts. We need to follow-up this case and pursue it till the killers of the innocent Pathribal victims are brought to book. The army may have ‘closed’ the case and the Police may have been given a ‘clean chit’ by the CBI, but as this case remains unresolved, it is now for our legal fraternity to ensure that it is pursued diligently until justice is done and the guilty punished.
Though I have only an average knowledge of law and the legal process, yet relying on my logic and common sense, I feel that the CBI, which has investigated this case and indicted the military personnel, will certainly challenge the army’s verdict of having found no prima- facie case against them. And even if it does not do so, with two contradictory versions regarding the involvement of army personnel in the Pathribal fake encounter emerging, the judiciary would have to intervene by asking both the parties to clarify the basis on which one has indicted the army men, while the other has found no prima- facie case against them and then after deliberating on the same, decide the case on merit.
In a scathing attack on the army, Christine Mehta, Researcher for Amnesty International India has stated that, “Given the (CBI) evidence against these soldiers, the army’s decision to conduct a new probe into the case is baffling… but it isn’t surprising that the army, after deciding to investigate its own alleged abuses, has given itself a clean chit.” This observation of hers, echoes the inner feelings of the people of Kashmir and thus, it is now for the army to come up with a convincing explanation for having arrived at the decision to close the case against its personnel, both to assuage the anger of the people of Kashmir as well as convince the Amnesty International and the world community regarding the manner it has proceeded in this case and how it has come to the conclusion that its personnel are ‘not guilty’. Unless it does so, Pathribal will remain the proverbial albatross around the army’s neck!