Nadimarg Kashmiri Pandit massacre: Case in limbo for 11 years, HC orders swift trial

Justice Vinod Chatterji Koul, in his judgement, said: “This revision petition is allowed and order dated 09.02.2011, passed by the court below is set-aside, and the application for issuance of commission for examination of witnesses moved by the prosecution-State/petitioner is allowed.”

“The court below shall now take all the necessary measures for ensuring the examination of the witnesses concerned by issuing commission and/or recording their statement videoconferencing and shall ensure expeditious proceedings so as to conclude the matter at the earliest,” he said.

On the evening of March 23, 2003, gunmen wearing military-style clothing dhowed up in the remote Nadimarg village of Shopian and asked the Kashmiri Pandits there to assemble outside. The gunmen lined up the Pandits and then opened fire, killing 24 Pandits including several women and two infants. Before killing the Pandits, the gunmen overpowered the policemen guarding the village, took their weapons and locked them up.

While most Kashmiri Pandits had left the Valley when militancy began in 1989, the Pandits of Nadimarg had stayed back. The massacre led to another Pandit exodus, among them the survivors of Nadimarg.

In April 2003, police said they had arrested a Pakistani militant Zia Mustafa, that he, along with other Lashkar-e-Toiba militants, had carried out the massacre on the directions of the LeT leadership in Pakistan.

A week later, police arrested three Pakistani militants in Yaripora village of Kulgam and said they were associates of Mustafa.

In October 2003, the Shopian court framed charges in the case against 11 people including 7 policemen charged with dereliction of duty. While three of the accused militants had already been killed, the court observed there is “some material against Mustafa which justifies charging him with murder”.

Trial in the case dragged on as the prosecution found it hard to get witnesses to court. In eight years of trial, the prosecution could produce only nine of the 38 listed witnesses. In November 2011, the trial court closed the evidence of prosecution, saying no more time could be granted to produce witnesses.

In 2014, the J&K government approached the High Court, challenging the trial court order on closing evidence. The High Court dismissed the plea as the state government failed to appear for hearing of the petition.

The J&K government then went to the Supreme Court. In 2015, the apex court directed the High Court to consider the petition again.

But the prosecution again failed to appear before the court. On August 11, 2017, the High Court dismissed the petition citing “lack of interest” by the prosecution.

Following the dismissal, the prosecution filed a review petition before the court. On August 24, the High Court recalled its earlier order.

On Saturday, the High Court, while allowing the review petition, said, “It has been rightly stated by counsel for the petitioner that the court below has not appreciated the difficulty of the prosecution in procuring the presence of the witnesses and that endeavour of the court below in a case of commission so as to unveil the truth.”

“Heinous nature like the one on hand should be to examine all the witnesses… In view of the above well settled legal position laid down by the Supreme Court, I am of the view that the court below has dismissed the application of the prosecution-State for examining the witness on commission on the irrelevant consideration while overlooking the material and relevant aspects of the case. The said application of the prosecution for recording statements of witnesses on commission deserved to be allowed,” it stated.

The main accused, the Pakistani militant Zia Mustafa, died in custody in October last year. Police said Mustafa was taken to identify a militant hideout in Poonch. During the searches, militants opened fire leading to a gunfight in which Mustafa was killed, police said.