“Witnesses Being Threatened To Depose In Accused's Favour, Counsels Unwilling To Take Case": J&K High Court Transfers Advocate Babar Qadri's Murder Trial From Srinagar To Jammu

Qadri, a prominent lawyer was fatally attacked at his residence in Srinagar, on September 24, 2020. The attack, carried out by unknown terrorists, involved firing upon Qadri, leaving him critically injured and ultimately led to his demise.

Babar Qadri, known for his outspoken views and legal expertise, was a well-respected figure in the legal fraternity. The incident occurred on the day he uploaded a video on his Facebook account, making serious allegations and comments about the functioning of the Bar Association.

The incident, registered under FIR No. 62/2020 at Lal Bazar Police Station, involved unknown terrorists firing upon Qadri, who later succumbed to his injuries at Soura hospital. The investigation identified six accused persons and charged under Section 302 IPC, 7/27 Arms Act and 16, 18, 20, 39 ULA(P) Act.

Seeking transfer of the trial UT of J&K through Senior AAG Mr Mohsin Qadri cited threats and hostility faced by witnesses, including the complainant and family members of the deceased.

The family of the deceased has been approaching the applicant for the protection of their life and liberty and also that the vital witnesses other than the complainant have also been constantly alleging that they are being threatened for not participating in the investigation and as such, there is no possibility of conducting the fair and impartial trial in Srinagar, Senior AAG submitted.

Allowing a transfer plea moved by the Govt seeking transfer of the trial from Srinagar to Jammu Justice Rajnesh Oswal observed,

“In view of the peculiar facts and circumstances of the case as mentioned above, this Court is of the considered view that once the material witnesses are facing threats for deposing in favour of the accused persons and no counsel was willing to render legal assistance to them in court at Srinagar, the present application deserves to be allowed for fair, transparent and impartial trial”

Noting the challenges faced in conducting a fair trial in Srinagar Justice Oswal observed that for a fair and impartial trial of a criminal case, it is imperative that the witnesses are in a position to depose in an atmosphere, which is free and not hostile.

“Because of this reason only, appropriate measures have been put in place to ensure the protection of the witnesses, more particularly in criminal cases”, the bench remarked.

Acknowledging the genuine concerns raised by the witnesses, particularly the father and brother of the deceased the court noted,

“It is evident that the father and brother of the deceased Advocate have been making complaints to the trial court as well as the applicant against threats advanced to them from various quarters so as to dissuade them from prosecuting the case and to force them to depose in favour of the accused persons”.

Furthermore, the bench also noted the inability to find legal representation in Srinagar and opined.

“Normally, this Court would have directed the applicant to provide security to the witnesses but it is also borne from the record that the complainant could not lay a motion before the learned trial court for seeking further investigation as no lawyer from Srinagar was willing to render legal assistance to him, due to involvement of some influential lawyers based at Srinagar….This court does not have even an iota of doubt that the fair trial of the case is not possible in Srinagar”.

Considering the peculiar circumstances of the case, Justice Oswal ruled in favor of the transfer, ensuring the fair, transparent, and impartial trial of the accused persons. The court directed the case to be heard in the court of Special Judge Designated under NIA Act in Jammu.

Case Title: Union Territory of Jammu and Kashmir through Sr. Superintendent of Police, State Investigation Agency (SIA) Vs Shahid Shafi Mir

Citation: 2024 LiveLaw (JKL) 14

Counsel For State: Mr. Mohsin Qadri, Sr. AAG Mr. Mudassir Zubair, Advocate.

Counsel For Respondent: Mr. Anil Raina, Advocate Mr. Suhail Ahmed Dar, Advocate