[2003 Nadimarg Massacre] Jammu and Kashmir High Court paves way for resumption of trial

The High Court of Jammu & Kashmir and Ladakh recently paved the way for resumption of trial in the 2003 Nadimarg massacre in which 24 Kashmiri Pandits were brutally killed in the Shopian district of south Kashmir [State of J&K through police station Zainapora v. Zia Mustafa & Ors.]. .Single-judge Justice Vinod Chatterji Koul allowed a revision petition moved by the police seeking to set aside a February 2011 order of the Sessions Judge who had dismissed a plea for for recording the statement of the witnesses and had closed the prosecution evidence.The High Court directed the Principal Sessions Judge to take all necessary measures to ensure the expeditious examination of witnesses, thereby effectively resuming the trial."Accordingly, this revision petition is allowed and order dated 09-02-2011, passed by the Court below is set aside, and the application for issuance of commission for examination of witnesses moved by the prosecution-State/petitioner is allowed. The Court below shall now take all the necessary measures for ensuring the examination of the witnesses concerned by issuing commission and/or recording their statement videoconferencing and shall ensure expeditious proceedings so as to conclude the matter at the earliest", the judgment stated..The order of the Sessions Court had dismissed the police's plea for recording the depositions of several witnesses on commission as the prosecution, despite its best efforts, was unable to do the same.As many as 38 witnesses were cited in the calendar of witnesses and after the trial commenced, the prosecution was able to record the depositions of only 13 of them.However, the Sessions Court had opined that the application was filed at a belated stage just to avoid the disposal of the case. It also said that that since all the witnesses are very important, their statements cannot be taken on commission..Before the High Court, it was argued on behalf of the prosecution that the Sessions Court had not appreciated that the basic purpose of the criminal justice system is defeated if the true facts are not revealed before the court and for that purpose, it is the duty of the court to exhaust all the means at its disposal to ensure that the relevant evidence is brought on record. The rejection of the application of the prosecution has caused grave miscarriage of justice, it was contended..The High Court concurred with this argument and further opined that the Sessions Court had not appreciated the difficulty of the prosecution in procuring the presence of the witnesses. It also said that the endeavor of the court in a case of heinous nature like one on hand, should be to examine all the witnesses on commission, so as to unveil the truth.Accordingly, it allowed the revision petition and set aside the order passed by the Sessions Court. The application for issuance of commission for the examination of witnesses moved by the prosecution also allowed by the High Court..Deputy Advocate General Asif Maqbool appeared for the prosecution. The respondents were represented by advocate I Sofi..[Read Judgment]