STATE OF J & K Vs. ZIA MUSTAFA

JUDGEMENT

(1.) Through the medium of this criminal revision petition, the petitioner is seeking setting-aside of the order dtd. 9/2/2011, passed by the court of the learned Principal Sessions Judge, Shopian (for short "court below") in a case-FIR No.24/2003 u/s 302, 450, 395, 120-B, 307, 326, 427 RPC, 7/27 Arms Act & 30 P.Act, titled State through Police Station Zainapora vs. Zia Mustafa Alias Ubaz Alias Abdullah Umar and others, whereby the court below has application of the petitioner for recording the statement of witnesses on commission has been dismissed and the evidence of the prosecution has been closed.

(2.) It is stated in this revision petition that a case FIR no.24/2003 was registered in police station Zainapora in connection with the brutal killing of 24 individuals at Village Nadimarg in the year 2003 and all the assassinated persons were belonging to the minority community and that the brutal killings of the minority community members resulted in mass migration of the remaining people of the minority community from the said village and are reported to be living at Purkhoo Camp, Muthi Camp and Mishriwala Jammu. It is also submitted that after completing the investigation in the case, the concerned police filed a challan before the trial court at Pulwama wherefrom the case was committed to the court of Sessions at Pulwama and as many as 38 witnesses were cited in the calendar of witnesses and after creation of Shopian District, the case was transferred to the court below for further trial. It is contended that the prosecution was able to have got recorded depositions of 13 witnesses and the prosecution despite the strenuous efforts has not been successful in securing the presence of the other witnesses and even the learned court below issued notices and warrants for securing the presence of the witnesses, but they did not chose to appear and record their depositions and therefore, the prosecution filed an application before the court below so that the commission is to ensure the examination of the witnesses, list of whom was also provided along with the application, who are presently residing at Purkhoo Camp, Muthi Camp and Mishriwala, Jammu. It is also submitted that after calling objections from the defence, in which the defence objected to the application and after hearing the matter, the court below opined that the application has been filed at a belated stage just to avoid the disposal of the case with further observation that since all the witnesses are very important and their statements cannot be taken on commission.

(3.) I have heard the learned counsel for the parties and considered the matter.