Machil Fake Encounter: AFT Gives Bail to 5-ex Army Men On Life Term,Says Victims Were Dressed Like Terrorist In Pathan Suit [Read Order]

The Armed Forces Tribunal (AFT) has granted bail to five of the six Army personnel sentenced to life imprisonment in the Machil fake encounter case of 2010.

The tribunal held that it could not be ruled out that the victims, three Kashmiri civilians, were terrorists since they were at a forward formation at Line of Control wearing pathan suits as worn by terrorists.

A bench of Justice VK Shali and Lt Gen SK Singh granted bail to ex-Colonel Dinesh Pathania, Ex-Captain Upendra, Havildar Devender Kumar, Lance Naik Lakhmi, Lance Naik Arun Kumar of 4 Rajput Battalion of 53 Infantry Brigade.

The AFT noted that the victims were wearing pathan suits which are worn by terrorists.

As the second reason for granting bail to the accused, the AFT said, “The ambush/ alleged encounter has taken place near Sona Pindi Gali, which is admittedly very near to the Line of Control (LoC). There was absolutely no justification for a civilian to be present at such a forward formation near LoC, that too during the night when the infiltration from across the border was high. The fact that the accused persons were terrorists who have infiltrated across the border or were crossing over to the other side cannot be ruled out because they were wearing pathan suits which are worn by terrorists”.

 “This is a case of circumstantial evidence and prima facie the entire chain of circumstances did not lead us to draw an irresistible conclusion that the deceased were civilians and that the accused persons were not innocent. The reason for saying so is that we have seen the photographs of the deceased persons. They were in combat pathan fatigue with ammunition belts around their waists and admittedly fire arms and ammunition is stated to have been recovered from them.

“If a person is a civilian, he would certainly not in combat uniform, much less he would carry the fire arm and ammunition with him…,” the tribunal said.

The five Army personnel along with rifleman Abbas Hussain, already on bail, were sentenced to life term by an Army court for killing three civilians – Shahzad Khan, Shafi Lone and Riyaz Lone— on the intervening night of April 29-30, 2010, in Machil sector of Kupwara district for claiming awards for gunning down militants. Their bodies were buried in a graveyard. The bodies were exhumed and identified by their relatives only when the families of the victims lodged a missing report exposing the fake encounter.

In jail for two-and-half years now, the five Army personnel came in appeal before AFT while arguing that the conviction is based on circumstantial evidence and the chain of evidence is not complete to lead to their conclusive guilt.

In its order granting bail, the AFT also relied on wireless intercepts to say that it could not be ruled out that one of the victims was a terrorist.

It also weighed in the ground that the missing complaint was filed belatedly by the victims’ families and “therefore, the fact that the parents of the victim having learned about the encounter of their son in the ambush on 29th/30th (April, 2010) night for allegedly being terrorist could not be ruled out and the complaint was belatedly filed only to garner some sympathy or getting material/ monetary compensation on account of the alleged killing of their child”.

The tribunal also noted that the judicial magistrate had rejected their request to examine a witness called Bashir Ahmed who, as per the prosecution, had visited the house of one of the victims a night before April 29, 2010, when the alleged incident took place.

“The net result is that the Judicial Magistrate seems to be controlling the court martial proceedings. This greatly prejudiced defence of the accused,” the AFT said.

“…there was another person by the name of Abdul Hamid Bhat who was accompanying Bashir Ahmed, who was also not similarly examined, which raises serious doubt that the evidence within the control and power of the prosecution was deliberately withheld because the same would have been produced which would have been gone in favour of the applicants,” it noted as the fourth reason for granting bail to the accused ex-Army personnel.

The AFT has asked the five men to not visit Kashmir and to surrender their passports.