On October 29, the High Court of Jammu and Kashmir and Ladakh ordered that the trial in the 2003 Nadimarg case could resume after over a decade.
On March 23 that year, 24 Kashmiri Pandits had been shot dead in the village of Nadimarg in South Kashmir’s Shopian district, allegedly by militants from the Pakistan-based Lashkar-e-Taiba.
In February 2011, trial proceedings were halted as the government had failed to produce witnesses in the case in the eight years since the massacre. The trial court in South Kashmir’s Shopian district had dismissed the government’s petition against the halting of trial proceedings.
Now, 11 years later, the High Court has restored the same petition. Witnesses should now be examined and their statements recorded, the court said, in “expeditious proceedings so as to conclude the matter at the earliest.
The Nadimarg massacre was one of the most high-profile cases that involved the targeting of Kashmiri Pandits in the Valley. The court’s decision comes at a time when the community faces attacks once more after years of relative calm.
It also comes months after the film, The Kashmir Files, presented a gory, distorted version of the incident. The film added to tensions that contribution to at least one episode of communal violence, in April.
The Nadimarg trial will resume but after nearly two decades, who will be prosecuted for the mass murder?
Eleven men were named as accused in the case. The four Pakistani militants accused of the killings are dead. That leaves the seven policemen who were posted at Nadimarg for the security of local Kashmiri Pandits as the community had already faced attacks in the Valley, prompting many to leave Kashmir.
The policemen were charged with dereliction of duty, which carries a maximum punishment of three months imprisonment or a penalty not exceeding three months’ salary, or both.
“It won’t be a trial for murder as the accused are already dead,” said Sheikh Mubarak, the lawyer representing the seven policemen. “The trial will be for the charge of dereliction of duty. The government needs to prove that in the trial.”
The witness
According to most accounts, on the night of March 23, 2003, a group of masked gunmen wearing army fatigues descended on Nadimarg, an isolated village on the banks of a stream. They announced it was a security crackdown, the kind that was common in those turbulent times. They asked some of the Kashmiri Pandits in the village to come out of their homes. Then they lined up 24 members of the community and shot them dead. Among those killed were 11 women and two infants.
The police personnel deployed to guard the Pandit families later said the gunmen had overpowered them, locked them up in the picket and stolen their weapons.
Thirty-seven-year-old Mohan Lal Bhat said that on the night of March 23, 2003, his family had been woken up by screams and noises in the village. “I made everyone get up,” said Bhat, who was then 18. “We thought if something was wrong, we would hide here or there.”
Bhat said their family took shelter in the second floor of their house. He claimed masked men broke in after smashing a window.
“My mother told me to save myself as I was the youngest one,” he said. “I [went up and] hid in the attic and had no idea what was happening downstairs.”
Bhat never saw his family alive again.
After a while, Bhat said, he saw two militants leave the house but there was no trace of his family. “After five to 10 minutes, I heard my mother’s cries from a distance,” he said.
They had been taken to a temple next to a large chinar tree. “Before I reached the spot where the cries came from, there was firing,” said Bhat. “Maybe the militants saw me too. But since they were running, they didn’t do anything. By the time I reached the spot, all of them were dead.”
Four members of his family, including his parents and his sister, were killed that night.
“I didn’t testify before because I didn’t feel safe appearing in court,” said Bhat, who fled to Jammu soon after the killings. “Now, I will.”
Missing testimonies
The 50 Kashmiri Pandits who lived in Nadimarg in 2003 had stayed back even though much of the community had fled in the 1990s, targeted by militant groups.
After the massacre, the Kashmiri Pandits left alive in Nadimarg fled the Valley, never to return. This proved to be the main hurdle for the government in producing witnesses for the case.
Until 2011, out of a total 38 witnesses for the prosecution, only 13 recorded their statements. Only one of these 13 was a Kashmiri Pandit man who was visiting relatives in Nadimarg the night of the killings.
“The rest of them are police officials, doctors, and local revenue officials at the village level,” said Mubarak, the policemen’s lawyer. “At least 16 Kashmiri Pandits from Nadimarg village are on the list of prosecution witnesses. So far, none of them have got their statements recorded.”
The prosecution’s futile attempts to get testimonies are reflected in the court’s observations. The recent high court order refers to the observations of the Shopian trial court in 2011. In spite of “strenuous efforts”, the trial court had noted, the prosecution had “not been successful in securing the presence of the other witnesses”. They refused to turn up in the Shopian trial court despite court notices and warrants.
According to the prosecution, Kashmiri Pandits from Nadimarg were fearful of deposing before the trial court in Shopian district. Early in 2011, the prosecution filed an application to examine witnesses on commission in Jammu.
The Shopian trial court had dismissed the application, saying that the government had filed the plea at a “belated stage just to avoid the disposal of the case”.
Trial by delay
Even after trial proceedings were halted, a tortuous judicial process continued. The Jammu and Kashmir government challenged the Shopian court’s decision in the high court that same year. In December 2011, the high court dismissed the petition.
In 2014, the government appealed to the Jammu and Kashmir High Court to reconsider its order. The court dismissed the plea after the government failed to appear for a hearing. The government then approached the Supreme Court.
In 2015, the Supreme Court directed the high court to consider the government’s plea and revisit its December 2011 decision. “But the prosecution even failed to appear before the high court to argue for the petition,” said Mubashir Gatoo, the lawyer who represented one of the Pakistani militants accused of the massacre. “Thus, on August 11, 2017, the high court dismissed the petition once again, citing ‘lack of interest’.”
The same year, Gatoo said, the prosecution filed another appeal in the high court, asking it to reconsider its decision. Meanwhile, it appealed to the Shopian trial court to delay arguments in the case until the high court decided. Finally, in August this year, the high court recalled the December 2011 order. On October 29, it restored the government’s petition to be allowed more time to record witness statements.
“Technically speaking, it’s not the norm to give so much time to produce witnesses,” said a lawyer who has tracked the case for many years. “The court has given the prosecution several chances to produce witnesses but every time the state has failed to produce them. Now, they have been given another chance. But the reality of the case now is different. There’s nobody left to be punished for the murder and, more importantly, it will be impossible to prove now whether the accused committed the massacre or not.”
Of arrests and gunfights
On March 24, 2003, a first information report was filed at the Zainapora police station in Shopian district. The police in Kashmir claimed they had swiftly made a breakthrough in the case.
On April 10, 2003, the police announced that they had made an arrest 10 days earlier – 25-year-old Zia Mustafa, a resident of Rawalakot in Pakistan-occupied-Kashmir and a commander of the Lashkar-e-Taiba. According to the police, Mustafa had planned and executed the massacre on the orders of the Lashkar leadership in Pakistan. The police also said they had found a rifle, ammunition, a wireless set and other incriminating documents with him.
On April 11, the Lashkar-e-Taiba denied its involvement in the killings and claimed that Mustafa had been arrested on March 16, 2003, a week before the massacre. According to a Daily Excelsior report from the time, the Lashkar alleged that disclosures by Mustafa had led to the death of three Kashmiri militants during a gunfight with security forces in Nowbugh in South Kashmir’s Kulgam district on March 31, 2003. The police had confirmed this, the report said, claiming they had reason to believe the militants killed were involved in the Nadimarg incident.
Days later, the police claimed that Mustafa had led them to three other Pakistani militants. According to contemporary reports, the police believed they were also involved in the Nadimarg killings. They were shot dead on April 18, 2003, in the course of a gunfight with security forces in Yaripora in Kulgam district.
Gatoo, who had been Mustafa’s lawyer, said the Rawalkot resident echoed these claims. He admitted to being a militant but denied his role in the massacre, saying he had been arrested a week before it happened.
It was only in June 2003 that the police filed a chargesheet in the case. Of the four militants accused of the killings, only Mustafa faced formal charges. None of the 13 witnesses testified against Mustafa but he remained in custody. Over the years, the Nadimarg massacre faded from memory – until October 2021.
That month, security forces launched one of the longest anti-militancy operations in recent years in Jammu and Kashmir. The police and army combed the forests of Poonch, a district on the Line of Control in Jammu division, looking for infiltrators. Nine soldiers would be killed before the operation was over.
Suddenly, Mustafa, who had been imprisoned in Jammu’s high-security Kot Bhalwal jail, was in the spotlight again. On October 22, 2021, he was brought on a 10-day remand to Mendhar, a forested area in Poonch district. According to a police statement, he was to help them identify a “terrorist hideout” in the Bhatta Durian forest in Mendhar. They said he had been in touch with them from inside prison and helped them navigate the forested terrain after they slipped in from across the Line of Control.
When they approached the hideout on October 24, the police statement said, the infiltrators opened fire, injuring two policemen, an army jawan and Mustafa. His body could not be extracted from the spot because of “heavy fire”, the statement said. It was retrieved later.
The main accused in the Nadimarg massacre was dead.
Lingering questions
Kashmiri Pandits who remained in the Valley speculate that the date of the Nadimarg massacre may not have been a coincidence.
Earlier on March 23, 2003, unknown gunmen had shot down Abdul Majeed Dar, commander of Kashmir’s largest local militant group, Hizbul Mujahideen. Dar had declared a unilateral ceasefire in July 2000, much to the dismay of the Hizb leadership based in Pakistan and – according to some claims – of the Pakistani establishment. Dar was believed to be parlaying with Indian officials and considering the prospect of peace talks.
In May 2002, Syed Salahuddin, the Hizbul Mujahideen chief based in Pakistan, suspended Dar and four other commanders loyal to him. In less than a year, Dar was killed.
Still, Sanjay Tickoo, who heads the Kashmiri Pandit Sangharsh Samiti, a body that represents Kashmiri Pandits still living in the Valley, is not convinced about the official version of the massacre.
“I refuse to believe the police version that the massacre was carried out by ABC,” he said. “Questions still remain.”
Tickoo said he had visited Nadimarg in the fall of 2002, along with a few other Kashmiri Pandit civil society members. They had left with a vague sense of disquiet.
“I could sense something was wrong,” he said. “We put our apprehensions in writing to the civil administration as well as the police. But they didn’t take it seriously.”
For instance, he remembered that there had been a Border Security Force camp in the village but it was replaced with the ill-fated police picket.
Tickoo also had other questions. For example, where were the bodies of the three militants killed in 2003? “Who identified them? Did the survivors of the massacre identify any of those bodies? No,” he said.
Then there was the question of Mustafa’s death – Tickoo wondered why security forces would take the prisoner to the site of a live gunfight.
According to him, the trial was a matter of optics for the Bharatiya Janata Party government at the Centre, under fire for failing to protect Kashmiri Pandits from recent attacks.
“It’s a cover up by the government, just to show the Indian people that we are working for the justice of Kashmiri Pandits,” said Tickoo. “Whereas they have done nothing in the last nine years.”