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The high court has therefore allowed the application of the state government seeking recall of an order which had dismissed a criminal revision petition challenging a lower court order which had denied the prosecution to examine witnesses & materials
The Jammu and Kashmir & Ladakh High Court has ordered the reopening of the Nadimarg Massacre case, in which 24 Kashmiri Pandits were brutally murdered at the hands of Islamist Lashkar-e-Taiba Terrorists in 2003.
Justice Sanjay Dhar stated that recall of the order dated December 21, 2011 of this court by which the criminal revision petition against a sessions judge order was dismissed will stand as it is within its jurisdiction to recall orders that are a nullity in the eyes of law as the High Court had passed an order without giving any reasons.
After the massacre took place, an FIR was registered in Zainapore and as many as seven accused persons were challaned post the investigation before Court of Principal sessions judge, Pulwama. This was later transferred to the Court of Principal Sessions Judge, Shopian.
Justice Dhar has mentioned in his order that "it seems that during the pendency of the trial, prosecution moved an application before the trial court seeking permission to examine material prosecution witnesses on commission, as according to the prosecution, these witnesses had migrated out of Kashmir Valley and they were reluctant to depose before the trial court at Shopian in view of the threat perception", however, the application was dismissed by the sessions judge on February 9, 2011. When it was challenged in High Court via Criminal Revision petition, it was dismissed as well.
The judge has rejected that the contention of the respondent, Zia Mustaffa, the Islamist Pakistani terrorist and considered to be the mastermind of the 2003 massacre that the judge cannot review its own order by highlighting difference power of recall from the power of review of the judgment.
"this Court does have jurisdiction to recall an order which is a nullity in the eyes of law... As already noted, the criminal revision petition against the impugned order passed by the learned Sessions Judge, Shopian, has been dismissed by this Court without hearing the petitioner and without giving reasons for its dismissal," Justice Dhar stated.
Case Title: State Through P/S Zainapora Vs. Zia Mustaffa & Ors.
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