In the midst of the vast apple orchards of Amshipora in Shopian district of Kashmir, stands a one-storey brick shed. Its main door is locked. In the highlands around 50m from the shed, a shepherd is looking after his herd. Some distance away, closer to the road, an old man is carefully examining apple trees after this year’s bumper harvest. On the road nearby, two men are busy burning wood—from pruning apple trees after harvest—for charcoal. All of them know something about the brick shed: that’s where three Gujjar boys were killed in a fake encounter in July last year, after they were picked up by the Indian Army. They remember hearing bullets being fired that night, even though there was no huge deployment of troops as is normal during such encounters. “That’s because they brought them to the shed to kill them,” the old man said nonchalantly, moving from one apple tree to another. “We know that like in other such cases there won’t be any justice. Life is cheap out here. Everything else has a price,” the old man says.
Six kilometres from the desolated shed in Amshipora, lawyers at the Shopian district court echo his words. Reluctant to disclose their names, they say a chargesheet has been filed in the case. Two civilians have been accused and arrested, but no one from the army. They allege the chargesheet is very weak, with many loopholes, that it won’t stand legal scrutiny. They are suprised the army agreed to a court martial in the case, as under Jammu and Kashmir Armed Forces Special Powers Act (J&K AFSPA), it could have easily challenged the filing of the chargesheet.
What actually happened
According to the chargesheet, filed on July 18, 2020, Major Kush, an adjutant with 62 Rashtriya Rifles (Shopian), had lodged a complaint at Heerpora police station based on “their own input about unknown terrorists in Amshipora village, they laid a cordon and search operation on July 17, 2020… During the operation, three unidentified hardcore terrorists were killed and two pistols with two magazines and four empty and 15 live cartridges, as well as 15 empty cartridges of AK series weapons, and other objectionable items, were recovered from the encounter site”.
Following Major Kush’s complaint, police lodged FIR No. 42/2020 under sections 307 (IPC) and 7/27 (Arms Act). The chargesheet says after DNA profiling of the three bodies was conducted, they were handed over to Auqaf Committee Baramulla for burial in Uri sector, close to the LoC in north Kashmir. At a press conference in Shopian on July 19, 2020, senior army officer Brigadier Katoch said, “Our search party moved toward a small, newly-constructed house. As the search party moved in, they came under fire from inside the house. They immediately retaliated by lobbing grenades. In the ensuing action, three terrorists were neutralised. The dead bodies of the terrorists, along with the arms, ammunition and IED material recovered from them, were handed over to Jammu and Kashmir Police.”
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On August 10, 2020, police received information from Rajouri in Jammu that three youths were missing. Since the construction of the Mughal Road, it has become routine for people from Rajouri and Poonch districts, commonly known as the Pir Panjal region, to travel to and from Kashmir for work. Shopian borders the Pir Panjal area, with Amshipora located close to Mughal Road. The three missing youths were: Abrar Ahmad (16) and Imtiaz Ahmad (20), both of Dharsakri village, and Abrar Ahmad (25) of Tarkassi village.
Their relatives claimed the three had gone to Kashmir to work as labourers in the orchards on July 16, 2020, but since then, their whereabouts were unknown. The Rajouri families identified photographs of the three killed in Shopian as their kin. Subsequently, through DNA sampling, their identities were established. The chargesheet says there was no prior case against any of them.
During the investigation, police arrested Tabish Nazir of Chowgam village in Shopian and Bilal Ahmad Lone of Arabal in Pulwama. According to police, both were in touch with Captain Bhoopendra Singh, alias Major Basheer Khan, of the 62 RR. Among other things, it proves the army uses Muslim aliases to operate in the Valley. On July 17, they reported to Captain Singh at his army camp at Reshingari in an Alto car bearing registration number JK22B-3365. They left with Captain Singh in another vehicle the latter had arranged, for Chowgam village in Shopian, close to the 62 RR camp. At Chowgam, they allegedly abducted the three victims from the latter’s rented accommodation, and transported them to Amshipora, where they left their vehicle to walk down to the pucca shed along a narrow footpath.
After the encounter (Clockwise from left) Display of pictures of victims of Pathribal; funeral of Suhail Ahmad in Pinjura village; report of Chittisingpora massacre in local media
The chargesheet then says the Army’s parallel court of inquiry has led to the arrest of Captain Singh. It says under AFSPA, prior sanction for his prosecution is required. It also says the CO of 62 RR had arrested Captain Singh on August 15, 2020.
The chargesheet says Captain Singh fired 37 rounds from his service rifle to kill the victims, and then had the combat action team cordon off the area.
Police say the captain didn’t inform his seniors. The armymen involved in the cordon told the inquiry team that the captain had arrived there from the camp along with the two accused civilians. As the army unit was nearing the spot, they heard firing, which Captain Singh had then said was of him shooting the three youths as they were trying to escape.
The captain had allegdly tried to destroy evidence by setting the shed on fire, but statements of Major Kush and Major Amit of 62 RR weren’t recorded under Section 161. Instead, they were swiftly transferred to “frontier duty”. The chargesheet is silent on the weapons placed on the bodies, and from where the captain had got them.
In December, police filed a chargesheet against the captain and the two civilians for the alleged abduction and murder of the three labourers. Earlier this week, the first witness—a policeman—was cross-examined in the case.
The lawyers say the police probe was unable to recover money to establish a financial trial. The chargesheet says Captain Singh had “furnished false information to mislead senior officers and to get an FIR lodged, tailored to fit his motive for grabbing the reward, in furtherance of a criminal conspiracy”. The investigation has failed to show the prime motive behind the killings.
According to the chargesheet, the private car arranged by Captain Singh to travel to Chowgam belonged to Aijaz Ahmad Lone of Reshinagri village. Lone deposed that “some soldiers” from the Army camp had come to his home on July 17, 2020, and asked for his car, which he had handed over to the soldiers. Police are yet to identify the soldiers who had fetched the car.
According to a lawyer of the accused, the statement given by Bilal— who has turned approver—indicts the Army and exonerates both civilians, saying they were not involved in the killing.
In Rajouri, Guftar Ahmad Choudhary, a political activist who, along with families of the victims, had demanded investigation, identification and DNA tests, says Lt Governor Manoj Sinha and other officials visited the families of the victims walking a long distance on foot. “They promised justice and jobs to the next of kin of the victims,” he says. “It took us 73 days and several visits to Kashmir to bring the bodies back to Rajouri. Leave aside justice, they didn’t even provide the promised jobs to the families so far,” he says.
Haji Mohammad Yousuf, whose son Abrar Ahmad was killed in the incident, says, “We’re thankful the LG and other officials visited our home. But he promised justice and jobs. So far, we have got nothing.”
“Our children were killed. We cooperated throughout with the administration hoping we’ll get justice. But we got nothing,” he says.
Haji Yousuf says when he managed to bring back his son’s body from Uri to Rajouri after 73 days, they completed the burial quickly without raising an issue for the administration. “I didn’t get a chance to see the killers. I’d have asked them why they killed our sons,” he says, adding, he visited the Rajouri DC’s office several times to enquire about the jobs promised by the LG. “The DC asks for written proof of what we claim,” he says.
Yousuf has been to Shopian to collect the chargesheet, and is desperate to meet the prosecuting officer in the case. “My son was married, with a four-year-old child named Anees. Anees, who called his father Janu, still says Janu will come. We’ve not told him he won’t,” he adds.
The past is the present
Rashid Khan of Brari Angan says justice will not come as long as AFSPA is in place. He has personal experience of trauma and long legal fight.
On the night of March 23, 2000, two men, both named Juma Khan, were dragged out of their houses from Rashid’s village and allegdly killed in a staged encounter at Panchalthan hilltop in neighbouring Pathribal village, along with three others.
The army and police had picked up five men as foreign militants from different areas of south Kashmir, including both Juma Khans from Brari Angan, saying they were responsible for the massacre of 36 Sikhs on March 20, 2000, when the then US president Bill Clinton was visiting India.
The five missing people from different areas led to huge protests. On April 3, 2000, the Special Operation Group (SOG) of J&K Police opened fire on protesters who were demanding exhumation of the five bodies from the Pathribal encounter—killing eight protesters. Under pressure, the government allowed the exhumation of the bodies. After the burnt and disfigured bodies in brand new army fatigues were identified by relatives of the five victims, the case was handed over to CBI.
The CBI found that prima facie, a case existed against Brigadier Ajay Saxena, Lt. Col. Brajendra Pratap Singh, Major Sourabh Sharma, Major Amit Saxena, Subedar Idrees Khan and others. In 2007, CBI presented a chargesheet in the court of Chief Judicial Magistrate, Srinagar. On behalf of the five armymen, the army filed an appeal in the high court, challenging CBI’s move to file a chargesheet against the accused. After the high court dismissed the appeal, they filed a petition in the Supreme Court, challenging CBI’s jurisdiction to file chargesheet against the army without the central government’s sanction. The army said the Centre’s nod was necessary before the accused could be prosecuted by CBI, as they were protected under Section 7 of AFSPA.
The army sought immunity under Sections 6 and 7 of AFSPA, 1958, which had been rejected by lower courts as well as the J&K high court. “The Supreme Court, in 2011, gave the Army the option to court martial the accused,” says Rashid.
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In September 2012, the army started proceedings in a court martial. On January 24, 2014, the army court dismissed all charges against the five personnel, claiming lack of evidence. Rashid Khan says he took his mother to the court martial proceedings, only to hear that all accused were acquitted. “My mother died as there was no closure,” he says. “People say we’ve given up, that life has no meaning any more. But I won’t give up,” he says.
Rashid doesn’t say what he’d do next. “I’ll let you know at an appropriate time,” he adds.
Watchful eyes in Srinagar’s Gaw Kadal. (Photograph by Getty Images)
A lawless law
The Armed Forces Jammu and Kashmir Special Powers Act [AF(JK)SPA] was enacted by Parliament in September 1990. It got concurrence of the then Governor and became an Act on September 10, 1990. With it, notification was issued under the act, declaring the Valley as a disturbed area. Later, on August 10, 2001, an order was issued by the state government, extending the Disturbed Areas Act to Jammu province. The order says: “Whereas the Governor is of the opinion that the state is in such a disturbed condition that the Armed Forces, in aid of civil power, are necessary to prevent activities involving terrorist acts directed towards striking terror in the people. Now, therefore, in the exercise of the powers conferred by Section 3 of the Armed Forces (Jammu and Kashmir) Special Powers Act 1990, the Governor hereby declares the districts of Jammu, Kathua, Udhampur, Poonch, Rajouri and Doda to be disturbed areas, in addition to the districts Srinagar, Budgam, Anantnag, Pulwama, Baramulla and Kupwara that already stand so declared.”
AFSPA comes into force in “disturbed” areas. Over the years, out of the different regions of the state, only Ladakh was not declared disturbed. Hence, the law is in vogue in Ladakh only notionally, not practically. Legal experts say the government only needs to withdraw the “disturbed area” notification to make the law toothless.
In 2015, BJP and PDP signed an electoral Agenda of Alliance (AoA), agreeing to dilute the law. The AoA conceded that both parties have historically held differing views on AFSPA and its need in J&K, that as part of the agenda for governance, the coalition will examine the need to de-notify “disturbed areas”. “This, as a consequence, would enable the Union government to take a final view on the continuation of AFSPA in these areas,” the AoA read. However, during their turbulent alliance, neither PDP nor BJP did anything.
In December 2010, the then CM Omar Abdullah repeatedly issued statements about a phased withdrawal of AFSPA, after being assured by the then Union home minister. Omar wanted AFSPA to go first from Srinagar and towns in Jammu, and subsequently from other places. But the army dismissed such statements as a move to please hardline separatists and “their ISI handlers in Pakistan”.
Funeral of Suhail Ahmad. (Photograph by Getty Images)
“The law should go. It gives impunity to the army to such an extent that they can kill anyone in ‘good faith’, and those who do the killing also have the power to determine ‘good faith’,” says CPI(M) leader Mohammed Yousuf Tarigami. “If the law goes, it will make the armed forces accountable. They will think they come under the ambit of constitutional bodies,” Taragami adds. He says wherever it is in place, the law is a threat to the security of the population.
National Conference spokesperson Ifra Jan says legal statutes and societal perceptions of what is ‘wrong’ and what is ‘right’ draw heavily from each other. “AFSPA not only allows a blanket immunity to the forces from criminal prosecution in a judicial court of law, it also helps them believe they truly don’t have a deterrent in law, and lowers the incentive to not commit horrific crimes like that in Kashmir or Nagaland,” she adds.
On the evening of November 15, three people, including shopkeeper Altaf Ahmad Bhat, Dr Mudasir and his helper Amir Magray, were killed in an alleged encounter at Srinagar’s Hyderpora. Police initially called Bhat a militant associate, but later described him as a civilian. After protests by families and political parties, they handed over bodies of Bhat and Mudasir to their families, which they had secretly buried at the LoC. The government promised a probe report within 15 days. So far, neither has the probe report been revealed, nor whether Army or police were involved in the operation. Families of the victims are yet to be given copies of the FIR. “They haven’t given us a copy of the FIR or autopsy report, despite promising that those who tortured and killed my uncle (Altaf Ahmad Bhat) will be identified and punished,” says senior journalist Saima Bhat. Amir’s father’s Mohammad Lateef Magray is well known for having killed a militant with a stone. All along, he has worked with the army and security forces. Even he is waiting to receive his son’s body.
“In the case of Nagaland, at least an FIR was registered and the Home Minister took notice of the incident. In case of J&K, they don’t even return the bodies,” says former CM Mehbooba Mufti. “We want AFSPA to be vacated not only from Nagaland but also from J&K, so that incidents like Hyderpora don’t recur,” says Mehbooba.
Brick shed in Amshipora where three Rajouri youths were killed
Death of a thousand cuts
Omar Abdullah believes the alleged fake encounter in the Machil sector of north Kashmir by the army, in which three labourers were killed and passed off as foreign militants, led to the 2010 uprising in the Valley, in which 112 youths were subsequently killed in police and paramilitary firings.
He is referring to the incident in which, on April 27, 2010, three youths—Muhammad Shafi (19), Shezad Ahmad (25) and Riyaz Ahmad (19)—went missing from Nadihal Rafiabad. On May 10, when they didn’t return, their families filed missing person’s reports at the Panzla police station under Sopore police district.
In the police probe, it was proved the three civilians had been taken to an army camp at Kalaroos in Kupwara. The army had dubbed them as foreign militants killed while trying to cross the LoC, and buried them in a graveyard near the LoC. On May 29, 2010, after massive protests, the bodies were exhumed by police, and identified by their parents. Parents of the youngest victim say his face had been painted black to pass off his bullet-ridden body as that of a foreign militant. The revelation sparked further protests across the Valley.
In July 2017, the Armed Forces Tribunal suspended life sentences of five army personnel, including a colonel and a captain, who were court martialed in 2014 for the Machil encounter.
Over the years, the Union home ministry has invoked AFSPA to refuse sanction to prosecute the army in over 50 similar cases in Kashmir itself. No wonder then, that Kashmiris exude such despondency.
(This appeared in the print edition as "Darkness at Noon")