Justice G D Sharma
It is a known fact that the religious orientation of Kashmiri Muslims is different for being blended one in certain respects with Hindu and Sufi cultures. As an example, prayers offered in Muslim mosques in the Kashmir valley to a stranger would appear on their face value resembling with prayers being sung in the Hindu temples. Other shining instance is the obeisances offered at “Mizares and Esthans” of spiritual saints. They are equally revered by Hindus. It is a historical fact that after the introduction of Muslim rule in Kashmir valley, Sanskrit language for more than 200 years survived as official language till the rule of religiously bigoted ruler by the name of Yusuf Shah Chack (widely known as idol breaker) started. He under religious frenzy destroyed hundreds of Hindu temples. During his rule for the first time in the history of forcible migration of Kashmiri Hindus which started at a mass scale.
Suicidal bombing of February 14, 2019 in Pulwama District of Kashmir is an ice breaker incident because for the first time, radicalised Kashmiri youths intentionally blasted a bus which was wholly boarded by CRPF Personnel. This is the result of constant unchecked radicalisation let loose by print media in Kashmir valley for young generation equally encouraged as vote bank ploy by politicians. Such smouldering evil practice surfaced in the Kashmir valley after the open spurt of militancy in 1990. The volcano had erupted as Government headed by Dr. Farooq Abdullah as head of National Conference had totally collapsed and Chief Minister had absolved himself by going to London. The void created by abdicating lawful duty proved a fertile ground for the spread of wahawbi cult which does not recognise the liberal practice of following Islam. For the first time in the Islamic history, wahawbi cult emerged from Palestine and West Asia to kill non Muslims by all means and in this manner Allah would be pleased to give entry in Heaven. It latter spread to Syria, Afghanistan and ultimately percolated to Pakistan which now has become its epicentre. Pakistani grown and nurtured militants are found every where in the world to carry on Jihadi activities. ISI is its front face. It is the strongest arm wing of the Pak Army. After the notorious rigged elections of 1987, infiltration of religious clerics accompanied by hard core militants to disseminate the wahawbi cult had started. They founded a dreaded militant organisation known as Lashkar-e-Toiba (LeT). The recruitment of Kashmiri youths started after their brain were washed. The result was killings of non- Muslims and even Muslims who did not toe their line of thinking. The result was en masse exodus of Kashmiri Pandits population from Kashmir valley.To achieve the object of purging non- muslims, this militant organisation (alongwith other different like minded organisations) established their bases in mosques. Already established Muslim Madarsaas numbering 106 in the state were also used as brainwashing grounds of poor strata of young population. Prior to present Pulwama attack by local Jehadis all suicidal attacks were perpetuated by Pakistani militants though they had the logical support from local radicalised youths.
When the infiltration from Pakistan started Mulana Masood Azhar along with his few cohorts had also infiltrated . Mulana Masood Azhar had the object of spreading wahawbi cult culture while acting as a cleric. When he was travelling with his few associates in a three wheeler auto rickshaw near by the town of Anantnag he was accidently arrested by the personnel of J&K Police with the aid of Central forces while conducting search operations. After thorough investigation he was found a most hard core and committed militant possessing a venomous convincing tongue power. He was lodged in high security Kot Bhalwal jail of Jammu.
The Central Government vide Notification SO 551(E) dated 17th of June 1995 after identification of highly dangerous militants who had committed heinous crime transferred their trials outside the State of Jammu and Kashmir. It is advantageous to reproduce the above said SO 551 (E) dated17th June 1995
” Whereas the Central Government is of the opinion that the situation prevailing in the State of Jammu and Kashmir is not conducive to a fair, impartial, or speedy trial, as there exits a grave risk to the safety of the accused, witnesses, public prosecutor and the judge of the Designated Court:
Whereas , the Attorney General of India moved motion for transfer of cases specified in the table below. The concurrence of the Chief Justice of India for such transfer ,vide orders dated 4th January 1994 in motion numbers 305 and 307 of 1991 and order dated 6th January 1994 in motion numbers 308,309 and 310 of 1991.Now therefore, in exercise of the powers conferred by sub section (2) of section 11 of the Terrorist and Disruptive Activities (Prevention) Act,1987 (28 of 1987) the Central Government with the concurrence of the Chief Justice of India hereby transfers the cases specified in the table pending before the Designated Court at Jammu and Kashmir to the Designated Court at Ajmer in the State of Rajasthan”
Some of the accused challenged the above said Notification through the medium of Five writ petitions before the single Judge of Srinagar wing of J&K High Court. The writ petitions were registered OWP No 221/95 titled Jawid Ahmad Zargar and others petitioners V/S Attorney General of India and ors respondents. OWP No.222/95 titled Showkat Ahmad Bakshi V/S Attorney General of India and ors. OWP No 223/95 titled Mohammad Salim Zargar v/s Attorney General of India and ors. OWP No224/95 Mohammad Iqbal Gandroo v/s Attorney General of India and ors. OWP No.227/95 titled Rouf Rasool and others V/S Attorney General of India and ors. The single Judge after entertaining the writ petitions issued show cause notices to the respondents. Simultaneously vide order dated 2nd of August 1995, he stayed the operation of Notification mainly on the ground that the accused who were also alleged to have committed offences including the murders and waging war against the State under the provisions of Ranbir Penal Code which local law has its application only within the territorial limits of the J&K State. That such trials cannot be held outside the State. As important questions of law was involved so he requested the Chief Justice of J&K High Court to refer the cases for disposal to the Division Bench. Some of the petitioners were top ranking ideologues of on going militancy. Few among them were those who were exchanged for the release of passengers of the hijacked Indian Airlines flight from Kathmandu to Kandhar (Afghanistan). The murderers of the Vice Chancellor of the Kashmir University Mushir-ul-Haq, general manager Harbans lal Khera of The Hindustan Machine Tools Srinagar, abductors of Dr. Rubiya Sayeed (Daughter of ex Home Minister of India Mufti Mohammad Sayeed) including Mulana Masood Azhar were involved in the trials of those cases. The Division Bench was constituted presided over by Hon’ble Justice V.K.Gupta and Hon’ble Justice G.D.Sharma (myself). The above stated writ petitions were decided on 4th of May 1996 with dissenting Judgments. The findings of both the Judges in a summary manner are reproduced for the interest of the readers. Reference book “Plight of Jammu and Kashmir : The Unknown Files” authored by Justice G.D. Sharma (Retd. Judge J&K High Court -PP440 to 443)
Per Gupta, J — “where the passing of Notification effecting transfer of pending cases from Jammu to Ajmer was based upon the situation of threat and perception prevailing at the relevant time and 5 years had lapsed from the date of initiation of motion to transfer the cases before the Chief Justice of India and the actual passing of Notification, the time-lag would give rise to a reasonable and bona fide belief in the minds of the accused petitioners, that the situation may have witnessed some changes where it might be possible to hold an impartial, fair and speedy trial at Jammu itself. The Central Government was therefore directed to re-examine the question with regard to the shifting of the trial as there was possibility of emergence of new facts which, on a fair assessment and equitable considerations, would bring a change in the entire perception of the Central Government. The concurrence of Chief Justice of India though imperative does not compel the Government to pass any order if, for any other intervening causes, the Central Government even after obtaining the concurrence decides that there is no necessity of transferring any case. Therefore, the impugned notification would be liable to be quashed by reason of the time-lag of five years as aforesaid.”
Per Sharma J: ” Mere fact that the circumstances impelling the Central Government to transfer these cases to Ajmer having disappeared, the impugned notification does not perish. Whether or not those circumstances still exist and if it exist to what extent, the High Court has no source or means to collect any evidence or material to justify the conclusion that such circumstances have ceased to exist. By striking down the notification on the ground of delay, the High Court would take away its right from the Central Government to re-assess the situation in the State and take a decision in regard to the trial of the cases in the State itself. Therefore, the impugned notification issued by the Government with the concurrence of Hon’ble Chief Justice of India is still valid and cannot be quashed on any ground whatsoever.”
The result of this dissenting judgment was that stay granted by single Judge (Justice A.M.Mir) remained in operation and the trials of the cases as desired by the Central Govt. Could not be held before designated court at Ajmer Rajasthan. Under High Court Rules the then Chief Justice of J&K high Court Shri Rama Krishana referred the matter to the third (Ist Pusine) Judge Justice Bhawani Singh who did not decide the matter and when he himself became the Chief Justice (J&K High Court), suo moto transferred the case to another Judge who too intentionally delayed the hearing in such a sensitive matter of national importance.
After considerable delay, the Central Govt. Itself for some political reasons withdrew the notification in question. The trial of these cases in the result remained within the territorial Jurisdiction of the TADA court Jammu. The result was obvious as some of the witnesses were won over by the accused and some out of fear to their lives and family members turned hostile and in none of the cases conviction and sentence could be awarded.
There is known legal maxim which is to the effect that “when Judge quals Justice wails”. It in all fours applies to these five cases. In the centre, after the elections NDA Government headed by Late Atal Bihari Vajpayee as Prime Minister came into power for 2nd stint which completed its full term of five years. Mulana Masood Azhar who was lodged in Kot Bhalwal jail, Jammu as under trial prisoner along with some others of the same dreaded category after the hijacking incident of Indian Airline flight from Kathmandu Airport to Afghanistan had to be released by the central Government under compelling circumstances in exchange of the hi-jacked passengers. This deal took place between 24th December 1999 to 31st December 1999. Had the concerned Judges of the J&K High Court discharged their judicial functions according to the mandates of oaths taken by them under the Constitution, Mulana Masood Azhar would have been surely convicted and sentenced for all the offences. In such like cases capital punishments were likely to be awarded unless some intervening exceptions would have crept in . By the time of Mulana Masood Azhar’s compelled release , he would have become a convict and under Law it was very difficult to exchange him, had he been even alive. Under TADA Law the burden to prove innocence was on the accused. Assassinated former Prime Minister Rajiv Gandhi’s case is an instance that accused could be convicted in that case with the aid of provisions of TADA(Act).
Mulana Masood Azhar owes his survival and acquired status as world class killer of humanity because of the failure of Judicial system to uphold the rule of law. Ultimately public is the Judge of the Judges next to God.
(The author is former Justices, J&K High Court, presently Non-Official Member of Governing Council National Foundation For Communal Harmony, Govt. Of India.)
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