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| Transfer Petitions in alleged Ganderbal fake encounter case | | |
JAMMU, APRIL 25, 2007
Justice Hakim Imtiyaz Hussain of J&K High Court Jammu wing in much publicized alleged Ganderbal fake encounter case filed petitions for transfer of trial from Srinagar Court to Jammu or outside State, today dismissed both the petitions filed by SSP Hans Raj Parihar and DySP Bhadur Ram Kaith on various grounds.
Both the petitions for transfer of trial of the case were filed through the wives of the accused who are facing trail in alleged fake encounter u/s 364, 302 and 120-B RPC along with other six accused. According to the facts of the case are that on December 14, 2006 one Ghulam Qadir Padder r/o Larmo Kokernag, Anantnag lodged a written report in the Batmaloo police station in which the complainant submitted that on December 8, 2006 Abdul Rehman Padder was missing from Batmaloo and since then he was not traceable. A missing report diarized and a missing file was opened in the P/S Batmaloo Srinagar. During the search for the missing person it revealed that Abdul Rehman Padder possessed a cell-phone Nokia with BSNL Simcard. These details were forwarded to the concerned service provider wherefrom it was found that a BSNL sim bearing cell No 9419599929 registered in the name of one Bashir Ahmed Bhat r/o watnoo, Tangmarg was being used in the cell phone of missing person. When enquired from Bashir Ahmed Bhat informed that his BSNL Sim was being used by one Abdul Rashid Wagay alias Kuabli r/o Kathpora, Hajan Sonawari presently residing in room No 2 tourist hotel Kohankhan, Dalgate Srinagar. As the mobile phone of the missing person was traced it raised the suspicion that the missing person had been abducted with intention to murder him. A case FIR No 6/2007 was u/s 364 RPC was registered at Police Station Batmaloo Srinagar. On the basis of the statements recorded and the evidence collected during investigation, it surfaced that in furtherance to criminal conspiracy hatched by Hans Raj Parihar Ex-SSP Ganderbal and other co-accused including Bhadur Ram kaith DySP, Abdul Rehman Padder s/o Ghulam Rasool Padder a carpenter by profession was abducted on December 8, 2006 from Batmaloo Srinagar and was subsequently murdered at Waskoora Ganderbal. The abductee was dubbed as foreign terrorist “Abu Hafiz r/o Multan, Pakistan” and a case was registered.
In the transfer petition filed on behalf of Bhadur Ram Kaith it has been submitted that petitioner was posted as DySP Operation SOG and had been involved in various counter-insurgency operations and his personal devotion towards his duty and marinating peace because of the active involvement in counter-insurgency operations, he was also an eyesore for the militants both underground and their over ground sympathizers and anti-national elements who are on parole to implicate the petitioner in false and frivolous allegations to cause damage to his service and reputation. In this regard even attempts have been made number of times to physically eliminate the petitioner.
In another petition filed by SSP in which it has been stated that Mr. Gopal Sharma DGP of J&K, Mr. SM Sahai IGP Kashmir Zone and Farooq Ahmed DIG CKR, Srinagar were not pulling on well with the petitioner from quite sometime for the reasons best known to them. It was further submitted that print& electronic media has already held the trial of the petitioner and given its verdict of guilt against him. Chief Minister has been making self-contradictory statements in the assembly as well as in the press release because of the political pressure mounted on him by the political parties. Both the petitioners have sought transfer of criminal challan from the court of Srinagar to any other court at Jammu on two main grounds, firstly that no legal service of advocates of the choice of the petitioner is available to the petitioners at Srinagar, secondly that the immensely hostile and surcharged atmosphere has been created against them in the entire Kashmir valley in the name of alleged innocent killings by Ganderbal Police.
Justice Hakim Imtiyaz Hussain after hearing Advocates Ashok Parihar, Sunil Sethi and Veenu Gupta appearing for the petitioners and Advocate General Mr. AH Naik appearing for the state observed that there is no material on file to show that the alleged hostile atmosphere has made it impossible even for the Session Judge to conduct the trial impartially, even the petitioners have not made any such averments in the petitions, they, however, that the atmosphere is surcharged and various political parties have given statements on this issue, Chief Minister too has made statements in this behalf and the matter has also been discussed in the State Legislature. So for the ground of non-availability of a lawyer is concerned on this count too the petitioners do not have any case. They allege that they cannot get a lawyer at Srinagar as the atmosphere in the valley is so surcharged that the lawyers are reluctant to accept their briefs. Petitioner Hans Raj Parihar has in this behalf given list of some lawyers who according to the counsel were conducted but who have reportedly declined to accept the case. Court does not find any force in this plea. Order dated March 17, 2007 of the Trial Court shows that 3 accused out of the 8 accused persons in the challan are already represented by advocates MA Dar and Shiekh Yasir. Since the advocates are available and willing to appear for other accused person, the ground raised in this behalf by the petitioners appear to be without any basis.
Justice Hakim Imtiyaz Hussain while dismissing both the petitions further observed that counsel for the petitioners placed reliance on KC Padhi and Others case (sex-scam) to show that the Supreme Court in a similar circumstances directed transfer of a sensational case pending in the
Srinagar Court
to the Court of District & Sessions Judge Chandigarh. Perusal of the judgment of the Supreme Court, shows that in matter which was being investigated by the CBI, a part of the criminal investigation was complete for which charge-sheet were filed before the court of sessions judge Srinagar while rest of the investigation was being monitored by the High Court. Apex Court transferred the case for trial from the
court of Sessions Court Srinagar
to Court of Principal Sessions Judge Chandigarh with the direction to District Judge Chandigarh to try the cases himself or assign it to appropriate court. Supreme Court did not apply the order on the investigation being monitored by the High Court, perusal of the judgment of the Apex Court further shows that this was a case where both the state as well as the CBI has given their “NO Objections” for the transfer of the case and had not opposed the prayer for the same. Advocate General submitted that in that case the Kashmir Bar Association had given a boycott call and had asked the members not appear before the court on behalf of the accused, but such is not position in the present case as no such call has been by the Kashmir Bar Association. He further stated that there is no material on file to show that situation is such which would prevent a lawyer to appear before the court. With these observations court dismissed both the petitions as court does not find any force in the petition. |
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