HIGH COURT OF JAMMU & KASHMIR AND LADAKH

AT SRINAGAR

…

CRR No.18/2011

Reserved on: 27.09.2022

Pronounced on: 29.10.2022

State of J&K through police station Zainapora

…….Petitioner(s)

Through: Mr. Asif Maqbool, Dy. AG

Versus

Zia Mustafa and others

……Respondent(s)

Through: Mr. I. Sofi, Advocate for

respondents 2 to 6.

CORAM:

HON’BLE MR JUSTICE VINOD CHATTERJI KOUL, JUDGE

JUDGEMENT

1.

Through the medium of this criminal revision petition, the petitioner

is seeking setting-aside of the order dated 09.02.2011, 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

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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.

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3.

I have heard the learned counsel for the parties and considered the

matter.

4.

The learned counsel for the petitioner has stated that the court below

has not appreciated in its right perspective the ultimate goal of the criminal

trial, which is not only to comply the procedural requirements of the Code of

Criminal Procedure but also to find out the truth and subject all the

concerned to the process of law and that the basic purpose of the criminal

justice administration 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 and it is with this view that the prosecution has resorted to the section

503 Cr.P.C. but the application of the prosecution has been rejected, which

has caused miscarriage of justice.

5.

The learned counsel f