STRUCTURES OF VIOLENCE

122
| Structures of Violence
serve the summons. This summon was issued from
Army's Nagrota camp in Jammu. Abdul Rashid Khan,
son of Jumma Khan says, “One SSP became a DIG
[referring to SSP Farooq Khan] for killing my father.
Who knows what promotions others would be given
for throwing us into a nallah in Nagrota?” It was only
with the help of media were they able to get fresh
summons issued in his own (Rasheed Khan) name
and also get the case transferred to Army's
Awantipora camp, which is in South Kashmir. They
had demanded that the case be transferred to Army's
Khundroo Camp, which is close to their village, but
the Army transferred it to their Awantipora camp.
According to Rasheed Khan, summons were also
sent to several persons who had nothing to do with
the case, and eventually it was on the basis of these
irrelevant testimonies that the accused were
acquitted.
The summary of evidence was held at the Victor
Force Headquarters in Awantipora. They appeared
before the summary of evidence on two days. While
entering the camp they were frisked and kept away
from each other. They were informed that whatever
they would testify about the incident would be
recorded. They testied that they had been struggling
for justice for the past twelve years. They were asked
how could they appear in the proceedings without a
lawyer or any security. The victim families replied that
they appealed to the government to provide them with
a lawyer and security but they did not receive
anything.
Then Rasheed Khan was asked about the incident
th
itself. He explained in great detail how on 24 March
2000 at around 2:00 am, his father Jumma Khan was
abducted by the Army. At the time of the abduction,
the army had assured him that his father would return
in half an hour. At the summary of evidence
proceedings, they asked him as to how he could be
certain that it was the army that had abducted his
father. He gave a very detailed factual account of the
events of the night. He said that when his father was
abducted, his uncle had insisted that he should
accompany Jumma Khan. But the army did not allow
the uncle to go with them. After that Rasheed Khan
and other witnesses were informed that they need to
stay in the army camp for the night so that they could
be cross-examined the next day. But somehow the
army ofcials were told that if these people
(witnesses) of Brari Angan were kept in the army
camp for the night, it would cause uproar in the
village. It was only then that the witnesses including
Raheed Khan were released on that day and were
told to come again the following day.
On the next day Rasheed Khan noticed that the
accused army personnel were kept separately, and
one amongst them questioned him as to how he was
able to identify that it was army only who had
abducted his father. Rasheed Khan replied that
when they had entered inside their house on that
fateful night, he had switched on the light, and seen
that the men who had entered the house were
wearing chitra (camouage) uniform. When he
looked out of the house, he could tell that they were
more than a hundred persons.
Rasheed Khan was further cross examined by the
accused themselves as to how he could say with
certainty that it was the army only because even the
militants could come dressed up in camouage
uniformsto which Khan replied that even the militants
may be wearing chitra uniforms but militants cannot
be 100-200 in number at one place. Moreover, how
could such huge numbers of militants be moving
around together when the army camp is just 2 kms
away from the house? Obviously, if they were
militants then they would have been far fewer in
number?
He was further questioned that on how he could
identify that the dead bodies were of civilians and not
militants given that they were badly burnt. He replied
that usually subsequent to any militant encounter, the
villagers living nearby are asked to identify whether
the militants were Kashmiri or Pakistani. But in
Pathribal, the dead bodies were so badly burnt that no
one could identify them. However, Khan could identify
his father's body as he was able to recover his identity
card from his clothes. When he was asked to show
the identity card to the, he testied before the
summary of evidence proceedings that he had
submitted all the evidence recovered on the spot to
the Sessions court.
Sanction required to prosecute
What happened in the Pathribal massacre underpins
the complete lack of accountability of the security
forces even when they commit severe human rights
violations. Court-martial proceedings have promoted
impunity for serious human rights crimes in Jammu
and Kashmir for over two decades now.
Essentially, whenever the security forces commit
human rights violations, two-fold legal provisions
hamper accountability: rstly, the concerned
personnel can choose to be tried in the forum he
desires, and in most cases they choose court martial.
Secondly, particularly after the Supreme Court
decision in Pathribal, the issue of sanction for
prosecution.
The relevant sections of the various laws regarding
prior sanction for prosecution of the armed forces
include:
“Section 45(1), CrPC- Notwithstanding anything
contained in Sections 41 to 44 (both inclusive), no
member of the Armed Forces of the Union shall be
arrested for anything done or purported to be done by
him in the discharge of his ofcial duties except after
obtaining the consent of the Central Government.”
“Section 197(2), CrPC- No Court shall take
cognizance of any offence alleged to have been
committed by any member of the Armed Forces of the
Union while acting or purporting to act in the
discharge of his ofcial duty, except with the previous
sanction of the Central Government.”