The Pathribal fake encounter and the Brakpora killings

The Chattisinghpora massacre

On the night of 20 March 2000, as the President of the United States, Bill Clinton, began a visit to India, gunmen in army-style uniforms came to Chattisinghpora, a Sikh village in Anantnag district of Indian-occupied Kashmir, ordered the men out of their houses and shot them. Thirty-five or thirty-six Sikh men were killed. They were Kashmiri civilians, shot down in their own village, and nothing about their killing belongs to Kashmir’s struggle for freedom.

The Indian government blamed the Pakistan-based group Lashkar-e-Taiba. In 2010 David Headley, an operative of that group, was reported to have told India’s National Investigation Agency that Lashkar had carried out the massacre. One survivor, Karamjeet Singh, said: “Now, I can rest in peace. I finally know who killed our brethren.” Another, Nanak Singh, asked the government to investigate further and to find out why the Sikhs had been chosen. Sikh organisations had demanded a federal inquiry for years and asked for the report of the state’s inquiry commission to be made public. The police had filed a charge sheet in November 2000 against some twenty men, most of them said to be Pakistanis, and the trial was later moved to a court in Kathua. Most independent investigations by human rights groups, Human Rights Watch found, concluded that the Sikhs had been killed by armed groups.

Five “foreign militants”

On 25 March the army and the police announced a success. Troops of the Indian army’s 7th Rashtriya Rifles said that they had killed five “foreign militants” in a herdsmen’s hut on the Zontengri hillock at Pathribal, above the Panchalthan villages, and that these were the men who had carried out the massacre. The army later described it as a joint operation with the police “based on specific intelligence”.

Three of the bodies were completely charred and another had no head. No post-mortem was carried out, and the five were buried in different villages, away from the hillock. Villagers who reached the site could not recognise them, but a cleric from Pathribal identified one of the dead as his brother-in-law, and an identity card belonging to one of the missing men was later found at the site. India now had an answer to Chattisinghpora.

Five men taken from home

In the same days five men had disappeared from villages around Pathribal, abducted, as Kashmir Life later put it, “by army and police in a couple of days before the encounter”. Zahoor Ahmad Dalal kept a hosiery shop in Anantnag town. Bashir Ahmad Bhat and Mohammad Yousuf Malik were cattle traders from Halan. Two others, both named Juma Khan, were older men from a hill village; one, Juma Fakirullah Khan, was a farmer and occasional blacksmith.

Their families described the same thing: armed men in uniform at night, doors broken in, the men taken away. Mirza Noori, the widow of Juma Amirullah Khan, told the federal investigators that ten to twelve men broke open the window and door of her house and barged in, and took her husband away, saying they needed him to show them the way. Abdul Rasheed Khan, whose father was one of the Juma Khans, was nearly twenty-seven when soldiers came and asked his father to go with them to the nearest garrison. “My father resisted but they forced him to accompany them,” he said. “We knew there are no militants inside and we also knew they were not after militants.”

When the families heard that five burned bodies had been buried, they concluded that these were their men, and they began to demand that the graves be opened. An army spokesman answered: “Genuine terrorists have been killed. Do not give much credence to these reports about a fake encounter. People are twisting facts.”

The firing at Brakpora

On 3 April 2000 the relatives of the missing men, joined by villagers from Halan and from Anantnag town, set out for the district headquarters at Anantnag to press that demand. The People’s Union for Democratic Rights put the marchers at nearly five thousand, Human Rights Watch at several hundred. At Brakpora, on the outskirts of the town, India’s Central Reserve Police Force and the police Special Operations Group opened fire on them from their camp. Eight people were killed in most accounts, and one Kashmiri account gives nine. The police claimed that the marchers had thrown stones, that gunmen among them had fired on the camp and that the dead had been shot from behind; eyewitnesses disputed it.

One of the dead was Mohammad Rafeeq Khan, a ninth-class student and the younger brother of Abdul Rasheed Khan. In ten days the family lost a father to a staged encounter and a son to the bullets fired at the march for his body.

The chief minister, Farooq Abdullah, suspended several police officers and appointed a one-man commission under a retired judge, S. R. Pandian. Its report of 27 October 2000 called the shooting “nothing but a sort of butchery” in which eight innocent people had died and fourteen were wounded, and “nothing short of an unwarranted brutal attack amounting to murder, attempt to murder and causing grievous and simple hurt, without any justification and authority”. It held seven men responsible: three policemen and four members of the Central Reserve Police Force. The chief minister promised murder charges against the policemen and said that the cases of the paramilitaries would be sent to New Delhi. Six years later Human Rights Watch found that the three policemen had not been arrested or charged, and that nothing was known of any action against the four paramilitaries.

The graves opened

After the shooting the authorities could no longer refuse. The chief judicial magistrate at Anantnag had already told a deputy superintendent of police, Abdul Rehman Sheikh, to find out whether the dead were civilians, and the district magistrate ordered the bodies exhumed. They were dug up on 6 and 7 April. Three were completely burned, a fourth had no face and the fifth no head. Two had army uniforms pulled over their civilian clothes. Still, the families knew them. One of the Juma Khans, whose arms and face were intact, “was identified by a cyst on his head and a ring on his finger beside his henna-dyed beard”.

Even policemen who had been involved were blunt. Bashir Ahmad, the assistant sub-inspector of the Special Operations Group who had gone to the scene with the army, told the federal investigators: “It is impossible for the killed persons to have suffered such extensive burn injuries in a genuine encounter.” The head constable assigned to the case of the encounter told them: “It was clearly visible that the dead bodies were first burnt and then placed into the kotha deliberately to show that the persons were killed in a genuine operation.” No soldier had been wounded in the battle the army described, and the investigators found that a huge quantity of ammunition had been used to create the false impression of one. The Pandian commission, too, found that the bodies had been deliberately charred and mutilated to wipe out every trace of identity.

Samples that did not match

Samples were taken from the bodies and from the families by a team of doctors from the Government Medical College in Srinagar and sent for DNA testing to the Centre for DNA Fingerprinting and Diagnostics in Hyderabad and the Central Forensic Science Laboratory in Kolkata. The results did not match. In February 2001 the Hyderabad laboratory told the police that some of the samples were spurious: one said to come from a female relative had come from a man, and another was the blood of two different men. On 8 March 2002 the chief minister admitted in the state assembly that officials had tampered with the samples. Fresh samples had to be taken after new exhumations.

The second tests confirmed what the families had said from the start: the five “foreign militants” were the five missing men. On 16 July 2002 the chief minister released the final report of the Kolkata laboratory: “It has been clearly established that the deceased were not foreign terrorists as claimed by the forces who led the operations, but they were innocent civilians.” A commission under a retired judge, G. A. Kuchai, inquired into the tampering; its report of December 2002 was never made public. According to press reports it found that the district police chief, Senior Superintendent Farooq Khan, “might have managed behind the scene that blood samples collected turn fake by indirect methods”. Khan denied it. He was suspended and later reinstated, and in 2005 the federal investigators cleared him. Disciplinary action was ordered against the deputy superintendent who had organised the collection, and the doctor who led it was told of the government’s strong displeasure.

The charge of murder

The deputy superintendent’s report, submitted on 11 April 2000, concluded that the five were local civilians killed in a fake encounter. In February 2003 the case was given to the Central Bureau of Investigation, India’s federal investigating agency. In May 2006 it filed charges of abduction, murder, criminal conspiracy and destruction of evidence against five officers and men of the 7th Rashtriya Rifles: Brigadier Ajay Saxena, Lieutenant Colonel Brajendra Pratap Singh, Major Sourabh Sharma, Major Amit Saxena and Subedar Idrees Khan.

The charge sheet was explicit. “From facts and circumstances of the case, it is established that these five innocent civilians were picked up by the personnel of 7RR,” it said, and “eliminated in a fake encounter”. It gave the motive: “There was tremendous psychological pressure on the army to show results after the massacre of 35 Sikhs. The encounter was stage-managed with a view to obliterate the identity of the killed persons with an oblique motive.” In 2012 the bureau told the Supreme Court that the killings were cold-blooded murder.

Sanction and the Supreme Court

The army did not answer the charge. It argued that its men could not be tried at all without the permission of the central government under the Armed Forces Special Powers Act, and took the question to the Supreme Court of India.

On 1 May 2012 the court ruled that no permission had been needed for the investigation but that it was needed before a trial in the ordinary courts, and it gave the army eight weeks to decide whether to try the men itself by court martial. In June 2012 the army chose its own courts. The chief judicial magistrate, Rajeev Gupta, then accepted that the “criminal court lacks jurisdiction to try the case”. The murder charge left the civilian courts and passed into the hands of the institution whose officers stood accused.

The army clears itself

There was no court martial. The army held its own inquiry instead, examined more than fifty witnesses, and on 24 January 2014 announced that it had closed the case. “The evidence recorded could not establish a prima facie case against any of the accused persons,” an army spokesman said, adding that it had been established that “it was a joint operation by the police and the Army based on specific intelligence”. The People’s Union for Democratic Rights called the decision a requiem for justice denied.

The men charged by the country’s own investigators with murdering five civilians were never tried by anyone. When an applicant under the Right to Information Act asked for the army’s inquiry proceedings, the defence ministry refused; in November 2016 the Central Information Commission ordered them disclosed.

The families’ long fight

The families have not stopped. Abdul Rasheed Khan, who lost his father at Pathribal and his brother at Brakpora, said: “I am ready to go to any place in this world for bringing the killers of my father to book.” Mohammad Shakoor Khan, son of the other Juma Khan, said: “We are desperate to see the killer brought to book. We faced miseries after his killing.” Mirza Noor, a widow of seventy, said that her daughter Shakeela became a heart patient after her father’s killing. “But we will continue our fight for justice.” Shakeela later died of cardiac arrest.

In 2017 Zahoor Dalal’s uncle went to the Supreme Court asking for the trial to be restored to the bureau’s court, and the court issued a notice asking the army to explain how it had exonerated its men. When this article was reviewed, none of the five accused had been tried. The herdsmen’s hut on the Zontengri hillock still stands where the bodies were found.

What Pathribal shows

Pathribal is the best documented staged encounter in Kashmir because, unusually, every stage left a record: the families’ complaint, the exhumation, the tampering with the samples, the federal charge sheet and the Supreme Court’s judgment. None of it was enough. The law that requires New Delhi’s consent before a soldier can be tried turned a charge of murder into a file closed by the accused men’s own institution. The same pattern returned at Machil in 2010 and at Amshipora in 2020, where young men were again killed and presented as fighters.

By one Kashmiri count, forty-nine civilians were killed in those first fifteen days, among them the Sikhs of Chattisinghpora, the five men of Pathribal and the marchers of Brakpora. Not one of the killings at Pathribal and Brakpora has ended in a conviction. The families of Pathribal and Brakpora still petition the courts, and survivors of Chattisinghpora have asked the government to find out why their men were chosen.