The other Machil case: Running parallel to the army trials is a quiet struggle for justice

Ghulam Mohammad Khan, who lives in North Kashmir’s Nadihal village, has meticulously collected documents for seven years. Photocopying them is expensive for Khan, whose family depends on meagre paddy fields for a living. He fiercely guards these fattening files, printed closely with Urdu or English letters. They include First Information Reports and chargesheets that detail how his son, Shahzad Ahmed Khan, was killed in an alleged fake encounter in Machil in April 2010. Khan does not know what the precise charges are – he cannot read.

To decode the documents, one has to travel to the additional sessions court in Sopore, to the lobby where the lawyers sit. Naseem Gani, the public prosecutor representing the victims’ families, was appointed in November 2016 and is not yet familiar with the details. But Faizal Amin, former public prosecutor for one of the defendants, flips through the case files with an expert eye.

There are two significant FIRs in the case. FIR number 67 was filed by the army in the Kalaroos police station in the Machil sector of the Line of Control, says Amin, containing charges under Section 7/27 of the Arms Act. It claims that the skirmish started when an army patrol in Machil spotted some movement. When the patrol asked the prowlers to stop, they opened fire. Three men were killed in retaliatory fire and their identities could not be verified at the time, the army claimed. The bodies were handed over to the local auqaf committee (an Islamic charitable trust) and buried in the local graveyard.

But FIR number 23-10, filed at Panzalla station in North Kashmir’s Baramulla district and on May 20, 2010, tells a different story. It names eight army men, one member of the Territorial Army, Abbas Hussain Shah, and two civilians, Abdul Hamid Bhat, a resident of Kawhar Sheeri, and Bashir Ahmed Lone, of Nadihal village, as the accused. They are charged under various provisions of the Ranbir Penal Code: Section 364, abduction with an intention to kill, Section 302, murder, Section 120B, criminal conspiracy, and Section 34, common intent.

While the armed forces personnel are out on bail, the two civilians are still behind bars.

The other case

In May 2010, the bodies of Riyaz Ahmad Lone, 20, Shahzad Ahmed Khan, 27, and Mohammad Shafi Lone,19, would be found in the Machil area of Kupwara district. Shahzad pushed a cart in the Baramulla market and was married with a young son. Shafi had studied till Class 6 and then become a labourer. Riyaz had never been to school. He worked as a mechanic at a workshop in Sangrama, also in Baramulla district, and made Rs 50 a day, according to his father. All three were from Nadihal. According to police reports, they were killed sometime on April 30, 2010, and buried as foreign militants.

In November 2014, an army court handed out life sentences to five soldiers for murdering the youth in a fake encounter. In July this year, the Armed Forces Tribunal granted bail to these five men. The tribunal’s bail order summed up the arguments of the defence. It stated, among other things, that the three men had worn “Pathan suits”, just like “terrorists” do, and that the family had waited several days to file a FIR in order to get sympathy. On October 31, the tribunal will hear the case again.

Back in 2010, the killings had triggered mass protests in the Valley and the court martial of 2014 was called a “watershed moment” by then Jammu and Kashmir Chief Minister Omar Abdullah. But when the families of the victims heard about the conviction in the army court, they felt no particular relief.

For months, they said, the case had been heard at the army camp in Drugmulla, a small town in Kupwara district. When they were summoned, they went. They spent money they did not have to hire a car and waited for hours while their testimonies were heard, losing out on a vital day of work in the fields. But when the verdict was read, none of them were called, they said. “We didn’t even know when they were sentenced,” said Mohammad Yusuf Lone, Riyaz’s father. “We were told they were punished.”

The army case, now shifted to the tribunal in Delhi, feels remote for the families. “We can’t even go there for the case, so there is no point,” said Khan. Running parallel to the army trial is a quieter struggle for justice: the case still lying in the Sopore court. For the families of the victims, this is the case that they must fight.

Missing person

Riyaz hardly ever went home, says his mother, Naseema Bano. But in April 2010, he returned to Nadihal for three days. On April 27, he went off for the day with Bashir Ahmad, also from from their village, and came back very pleased. “You would have never imagined the place we went to today,” he told her. “It was very beautiful, it was like a picnic, and he gave us Rs 500.”

For Riyaz, who worked “24 hours” at the dim workshop in Sangrama, it must have felt like a break, said the grieving mother. But she had warned him not to go with Bashir again. The man had been a special police officer and had a brother in the special operations group, the counterinsurgency wing of the Jammu and Kashmir Police. In the villages of Kashmir, the police, especially its counterinsurgency wing, is regarded with fear. Naseema did not want her son embroiled with them. But around noon, a couple of days later, Riyaz claimed he wanted to get his shoes fixed and left, she said.

When Riyaz’s family realised he was missing, it was not the legal route that they took first. Naseema says they went, along with the nambardar (village headman), to confront Bashir Ahmed. “He started shivering, he didn’t say anything,” she said. “That’s when we thought something was wrong.”

Shahzad’s family found he was missing when Naseema Bano went to their house. “Naseema came and said your son has taken my son along,” recalled Aisha Begum, Shahzad’s mother. Then the search began in earnest.

According to newspaper articles from the time, the family had filed a missing report at the Panzalla police station on May 10. As the days wore on and there was no sign of the three youth, they held a protest on the highway running past Nadihal. That is when it came to the notice of a senior police officer, who took them to Panzalla to file an FIR, they said. Shahzad’s family called one “Gazi”, who had been a close friend of their son, to the police station.

According to Khan, Shahzad had confided to his friend that Bashir took them to meet a “healthy” looking man with a weapon. The two friends later fell out over Shahzad’s plan to go along with Bashir. On Gazi’s testimony, Bashir was arrested. He in turn named Hamid and Abbas.

After the protests and the FIR, the media took up the case. So it was from the papers that they learnt that three men, believed to be foreign militants, had been buried in Kalaroos village. The families still have a copies Urdu newspapers dated May 28, 2010. The front pages bear photographs of three dead faces, bearded, moustached and mutilated, believed to be foreign militants. Each family recognised their son in the pictures.

“He didn’t have a beard,” said Yusuf Lone, holding up the report in the Kashmir Uzma. “They were dressed up.” Both Naseema and Aisha remembered that when their sons left home, they were wearing trousers, a shirt and a sweater. But their bodies were found in “Afghan clothing”.

After the reports, the Baramulla district commissioner ordered that the graves in Kalaroos be dug up. “The whole village went in cars for the exhumation,” said Khan. As the bodies returned to Nadihal, said Shafi’s mother, the village rushed to Bashir Ahmed’s house and ransacked it. Soon afterwards, the family sold their land and moved to Rangwar village, some distance away.

The chargesheet

After the Panzalla FIR, the police started investigations. A police chargesheet, presented before the chief judicial magistrate in Sopore in July 2010, suggests that the case rests on the Sumo which ferried the three youth to the army camp, about three hours away. The Sumo driver, according to Amin, was crucial to the case. “He is a star witness, the only person with a link between Nadihal and the army camp,” pointed out Amin. But the driver had since turned hostile, he said.

The police statement gives details of three runs made by the Sumo number, beginning in the first week of April. Bashir and Hamid had gone from Baramulla to Kupwara town and had a meal at Hotel Raj Palace. Then they went to the 4 Rajputana Rifles Camp in Machil and stayed almost two hours, according to the statement. “There they conspired with Major Abbas Hussain Shah, previously working at the Baramulla headquarters of the Territorial Army,” said Amin, browsing through the police files. “The major told them to get some boys. His aim was to get a promotion.” The plan, suggests the report, was to kill these boys, pass them off as militants and collect rewards or promotions for it.

The second run took place on April 27, 2010, when Abbas, Hamid and Bashir took Shahzad and Riyaz to the army camp, promising them work as porters. According to the police chargesheet perused by Amin, they had to turn back around 4 pm that day because of bad weather and were “unable to complete the plan”. Riyaz and Shahzad were dropped back at Nadihal.

A couple of days later, the Sumo made its third run. Bashir and the three youth boarded the car at Baramulla. On the return trip, Bashir was joined by Abbas and Hamid at Handwara, a few kilometres south of Kupwara town, says the police statement. Once they reached Baramulla town, they shared Rs 1,50,000, doled out to them at the army camp, among themselves.

“They way the police have conducted the investigation, I don’t think they will be able ever be able to get the conviction of these two accused,” said Amin, who had represented Hamid until 2015.

The trial

The trial has proceeded at snail’s pace. Until 2012, the focus was on the jurisdiction of the civil courts over the army officers named in the FIR. They refused to appear before the court of the chief judicial magistrate and appealed before the district and sessions court in Baramulla.

When the Baramulla court upheld the magistrate’s order, they turned to the high court, which reversed the decision of the lower courts. The case against the military men then disappeared into the army fold. Abbas’s case was also tried by military courts since he had been part of the Territorial Army. The case against the civilians went back to the Baramulla District and Sessions Court.

Again, it was held up for a number of administrative reasons. First, around the end of 2013, Amin says, it was transferred to the newly created additional sessions court in Sopore. This seems to have delayed the recording of witness statements even further. The police chargesheet names 37 witnesses, of which about 20 have been taken.

Second, public prosecutors kept changing, especially when there was a change in the political dispensation, said the lawyers. Amin himself was shifted from the case after a bail petition was not admitted in 2015. When asked about their lawyer, Shahzad’s parents said they did not know his name or have his number.

Third, with the Valley caught up in protests and violence since 2016, when courts were shut for months, progress has been slow. Hearings now take place every fortnight or so. The last one was scheduled for October 10.

Fear

Back in Nadihal, the victims’ families live in fear. Every time Bashir is produced in court, they say, he threatens them with dire consequences once he is let out. “The army men got bail, what if he gets bail tomorrow?” asked Naseema.

Bashir’s current lawyer, Suhail Wani, refused to comment on the case but dismissed claims that he had threatened the witness. “How can he threaten them? He is behind bars and he is almost paralysed now. He has a disc problem and a multiplicity of other problems,” said Wani.

But the families are taking no chances. Shahzad’s family lock up as darkness falls and are scared to let the children leave the house. Outside in the yard, the cart that Shahzad used to push in Baramulla lies unused in a corner.

In seven years, they have wound from police station to district courts to the high court and back. But Khan vows to keep fighting, even if it means selling his land and hiring their own lawyer. The sense of disbelief has not faded with time. “They were mazdoors, how could they become militants in two days?” asked Yusuf Lone.