The necessity for ensuring the protection of witnesses and the impossibility of a fair trial in Srinagar due to threats faced by witnesses and the refusal of lawyers to provide legal assistance.

JUDGMENT :

RAJNESH OSWAL, J.

1. “Witnesses are eyes and ears of justice”

-----Bentham

“A witness is a man whose life and faith are so completely one that when the challenge comes to step out and testify for his faith, he does so, disregarding all risks, accepting all consequences”

-----Whittaker Chambers

2. The Hon’ble Supreme Court of India has quoted Bentham and Whittaker Chambers in case titled, Mahender Chawla vs. Union of India, (2019) 14 SCC 615, while emphasizing the necessity for ensuring the protection of the witnesses, as good number of cases fail in the courts only because the witnesses for one reason or the other turn hostile. Any misadventure, which is aimed at distorting the vision and impairing the ears of justice, is required to be thwarted.

3. The Union Territory of Jammu and Kashmir filed the present application seeking transfer of the challan No. 5 titled, State vs. Shahid Shafi Mir and Others Arising Out of FIR No. 62/2020 of P/S Lal Bazar, pending before the court of Special Judge Designated under NIA Act, Srinagar (hereinafter to be referred as ‘the trial court’) to any other court of competent jurisdiction in District Jammu.

4. It is stated that FIR bearing No. 62/2020 under Sections 307 IPC, 7/27 Arms Act, 16 & 18 ULA(P) Act was registered at Police Station, Lal Bazar as some unknown terrorists fired upon one Advocate, namely, Babar Qadri at his residence Zahidpora, who was shifted in an injured condition to Soura hospital, but later succumbed to injuries. During investigation of the case, six accused persons were found involved in the commission of offence and accordingly, the charge sheet was laid against six accused persons on 05.06.2021. Respondent Nos. 4 and 5 were granted bail by the learned trial court vide order dated 31.01.2022. It is stated that during further investigation, the supplementary statements of the father and brother of the deceased were recorded, wherein they revealed that the deceased had uploaded one video on his facebook account on the day he was murdered. During the course of further investigation, the said video was taken on record in the case and transcript of audio contents of the said video was prepared wherein the deceased had made serious allegations and comments upon the functioning of the Bar Association. Thereafter, SDPO Zadibal formed a SIT and started further investigation on this aspect of the case to ascertain the role or involvement of any other person in the said heinous terror act. During investigation, search warrants were obtained from the court and searches were conducted at the residential houses and offices of some of the Advocates and various electronic gadgets were seized during search of those premises and the gadgets were sent to FSL, Srinagar for forensic analysis. The report from FSL Srinagar is still awaited. It is further stated that during trial of the case, a motion was laid by the complainant and the learned trial court directed for further investigation in the matter pursuant to the revelation of the material facts by the complainant in respect of conspiracy hatched by few lawyers working in the Kashmir Division. It was also alleged by the complainant that he had not been in a position to engage the services of any lawyer from Kashmir as no lawyer was willing to contest his case due to fear, threat and hostile atmosphere in the valley. The complainant, as such, was forced to engage the services of Advocate based at Jammu, seeking intervention of the trial court. After the order of further investigation was passed by the trial court, the investigation in the case was transferred to State Investigating Agency (SIA) vide PHQ J&K’s Order No. 2152 of 2023 dated 20.07.2023, taking into consideration the sensitivity of the case.

5. It is further stated by the applicant that the family of the deceased has been approaching the applicant for protection of their life and liberty and also that the vital witnesses other than the complainant have also been constantly