Text of the petition filed by Yasin Malik

IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR In the matter of: Muhammad Yaseen Malik V/S State of J&K and Ors In the matter of: I N D E X S. No. Particulars _____ Pages 1. Public Interest Litigation 2. Annexures 3. Affidavit 4. Power of Attorney 5. Copies of sets annexed with the Petition. 6. C. M. P. Petitioner through counsel M/S Zaffar Law Associates Dated: 14.01.2010 S Y N O P S I S That the petitioner has filed a Public Interest Litigation. The writ petition involves questions of larger public importance. The petition deals with the events/ situations/ offences committed between January, 2010 to December, 2010 by the armed police/ armed personnel resulting in the death of 117 persons and the course followed consequent to these deaths by law enforcing agencies. Detailed submissions in this behalf have been made in the writ petition. L I S T O F D A T E S 1. January, 2010 to 117 people are killed consequent to state action. December, 2010 M E M O O F P A R T I E S Muhammad Yaseen Malik, S/O Kh. Ghulam Qadir Malik, R/O Maisuma, Srinagar. .. Petitioner V e r s u s 1. State of Jammu and Kashmir, Through Financial Commissioner (Home), Civil Secretariat, Jammu/Srinagar. 2. Director General of Police, Government of Jammu and Kashmir, Police Headquarters, Jammu. 3. Director General, Central Reserve Police Force (CRPF), C.G.O. Complex, Lodhi Road, New Delhi. 4. General Officer Commanding, Northern Command, C/O 56 A.P.O. .. Respondents IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR In the matter of: Muhammad Yaseen Malik, S/O Kh. Ghulam Qadir Malik, R/O Maisuma, Srinagar. .. Petitioner V e r s u s 1. State of Jammu and Kashmir, Through Financial Commissioner (Home), Civil Secretariat, Jammu/Srinagar. 2. Director General of Police, Government of Jammu and Kashmir, Police Headquarters, Jammu. 3. Director General, Central Reserve Police Force (CRPF), C.G.O. Complex, Lodhi Road, New Delhi. 4. General Officer Commanding, Northern Command, C/O 56 A.P.O. .. Respondents In the matter of: Public Interest Litigation in respect of killings/ deaths of 117 persons between January, 2010 to December, 2010 caused due to state/ police action. May it please your Lordships, The petitioner states as under: 1. That the petitioner is a permanent resident of the State. Petitioner is a public thinker. Petitioner is the Chairman of Jammu and Kashmir Liberation Front. Petitioner and his party believe that the legal frame work, International commitment on human rights, historical processes/events and other factors publicly project/demonstrate issues confronting the people of the State. It is the effort of the petitioner and his party to seek resolution of the issues, project concern of the people and above all to vindicate cause of justice. The petitioner states that legal wrong/ legal injury has been caused to determinate class of persons/ group of people/students/minors/youth by reason of violation of law. The petitioner states that in the death of 117 persons between January, 2010 to December, 2010, the entire society was shocked beyond imagination. All the deaths caused by police/ security personnel were culpable. The mechanism of accountability, if any, failed to deliver. Serious offences committed by armed personnel have not been registered. Those very armed personnel, responsible for maintaining law and order, indulged in serious acts of omission and commission, throwing to winds rule of law. The deaths caused have been ignored and guilty allowed to go unpunished. 2. That the petitioner is a responsible public spirited person. The petitioner is not acting for any personal gain or private profit or out of political motivation and or any other consideration. The petitioner has ‘sufficient interest’, as a member of public and seeks judicial redress for those who are no more alive. Petitioner considers it to be a part of his public duty that the persons killed due to state action, do not go unaccounted for and the system, at present, in place must deliver and hold killers accountable and bring them to justice. Persons who have suffered death as a consequence of 'state action their dependents, relations on account of social and economic disability, being in a disadvantageous position are unable to approach this Hon’ble court for appropriate relief. 3. That before approaching the Hon’ble Court the petitioner made enquiries into the matter. According to the information, which has become available to the petitioner, total number of deaths which have taken place between January, 2010 to December, 2010 is 117. The persons who have been killed during this period consequent to the state action with their full particulars and the date of death are mentioned hereinbelow: Sr. No. Particulars Residence District Date of Death 1. Ab. Rashid Wani Kandi Baramulla 6-01-2010 2. Inayatullah Khan Dalgate Srinagar 8-01-2010 3. Manzoor Ahmad Sofi ParhasPora Pattan Baramulla 22-01-2010 4. Wamiq Farooq Rainawari Srinagar 31-01-2010 5. Zahid Farooq Brain Nishat Srinagar 05-02-2010 6. Zubair Ahmad Bhat Sopore Baramulla 13-04-2010 7. Habib-ullah Lolab Kupwara 14-04-2010 8. Mohd.Shafi Lone Nadihal Baramulla 29-04-2010 9. Reyaz Ahmad Nadihal Baramulla 29-04-2010 10. Shahzad Ahmad Lone Nadihal Baramulla 29-04-2010 11. Tufail Ahmad Matoo Sadakadal Srinagar 11-06-2010 12. Rafiq Ahmad Bangroo Danamazar Safakadal Srinagar 19-06-2010 13. Javaid Ahmad Malla Bagwanpora Qamerwari Srinagar 20-06-2010 14. Firdous Ahmad Sopore Baramulla 27-06-2010 15. Tawqeer Ahmad Rather Dalina Baramulla 28-06-2010 16. Tajamul Bashir Wadoora Sopore Baramulla 28-06-2010 17. Ishtiyaq Ahmad Khanday Islamabad Anantnag 29-06-2010 18. Imtiyaz Ahmad Itoo Islamabad Anantnag 29-06-2010 19. Shujat-ul-Islam Islamabad Anantnag 29-06-2010 20. Muzaffar Ahmad Bhat Gagibug Srinagar 06-07-2010 21. Fayaz Ahmad Wani Gagibug Srinagar 06-07-2010 22. Yasmeen jan [Fancy] Dandikha Batmalloo Srinagar 06-07-2010 23. Abrar Ahmad Khan Maisuma Srinagar 06-07-2010 24. Faizan Rafiq Batamulla Baramulla 17-07-2010 25. Fayaz Ahmad Khanday Kreeri Baramulla 19-07-2010 26. Tariq Ahmad Dar Panzula Rafiabad Baramulla 25-07-2010 27. Showkat Ahmad Chopan Amargadh Sopore Baramulla 30-07-2010 28. Adil Ramzan Sheikh Pallhallan Pattan Baramulla 30-07-2010 29. Nazir Ahmad Lone Qawpora Sheeri Pattan Baramulla 31-07-2010 30. Mudasir Ahmad Lone Harpora Naidkhai Baramulla 31-07-2010 31. Javaid Ahmad Teli Bugloobagh Baramulla 31-07-2010 32. Rayees Ahmad Wani Pompore Pulwama 01-08-2010 33. Nayeem Ahmad Shah Galwanpora Hyderpora Budgam 01-08-2010 34. Afroza Bano Khrew Pulwama 01-08-2010 35. Javaid Ahmad Sheikh Wuyan Khrew Pulwama 01-08-2010 36. Mohd.Amin Lone Shail Naj Khrew Pulwama 01-08-2010 37. Ghulam Ahmad Lone Shail Naj Khrew Pulwama 01-08-2010 38. Tariq Ahmad Dar Simhattan Bigbehera Anantnag 02-08-2010 39. Ashiq Hussain Bhat Okaloo Kulgam Kulgam 02-08-2010 40. Rameez Ahmad Bhat Labdipora Kulgam Kulgam 02-08-2010 41. Basharat Ahmad Reshi Watchgam Fresl Anantnag 02-08-2010 42. Arshad Ahmad Reshi Pora Awantipora Anantnag 02-08-2010 43. Khurshid Ahmad War Shamnag Kupwara Kupwara 02-08-2010 44. Er. Mohd. Yaqoob Zadoora Pulwama 02-08-2010 45. Sameer Ahmad Rah Batmalloo Srinagar 02-08-2010 46. Mehraj-ud-Din Lone Barthana Qamerwari Srinagar 03-08-2010 47. Reyaz Ahmad Bhat Khrew Pulwama 03-08-2010 48. Anees Ahmad Ganie Dangerpora Narwara Srinagar 03-08-2010 49. Suhail Ahmad Dar Zanakote HMT Srinagar 03-08-2010 50. Jehangir Ahmad Bhat Thangam Fresl Kulgam 03-08-2010 51. Mohd. Iqbal ‘khan Chanipora Srinagar 04-08-2010 52. Mohd Yaqoob Bhat Bemina Srinagar 04-08-2010 53. Ghulam Nabi Badyari Ganpatiyar Habba kadal Srinagar 05-08-2010 54. Shabir Ahmad Malik Pulwama Pulwama 05-08-2010 55. Rameez Ahmad Reshi Waripora Sopore Baramulla 07-08-2010 56. Fida Nabi Usman abad Srinagar 09-08-2010 57. Aisha Sheikh Basant Bagh Srinagar 07-08-2010 58. Fida Nabi Usman Abad HMT Srinagar 08-08-2010 59. Farookh Bukhari Kreeri Baramulla 10-08-2010 60. Mudasir Ahmad Zargar Trehgam Kupwara 13-08-2010 61. Ali Muhammad Khanday Palhalan Pattan Baramulla 13-08-2010 62. Sameer Ahmad Lone Bumai Sopore Baramulla 13-08-2010 63. Muhammad Arif Mir Bumai Sopore Baramulla 13-08-2010 64. Irshad Ahmad Latoo Islamabad Anantnag 14-08-2010 65. Muhammad Umar Dar Bazar Mohalla Narbal Srinagar 14-08-2010 66. Muhammad Abbas Dobhi Mattan Islamabad Anantnag 17-08-2010 67. Meelad Ahmad Dar Wampora Kulgam 19-08-2010 68. Mudassir Ahmad Hajam Arampora Sopore Baramulla 20-08-2010 69. Nazir Ahmad Wani Bijbehara Anantnag 20-08-2010 70. Bilal Ahmad Sheikh Singpora Pattan Baramulla 23-08-2010 71. Umar Qayoom Bhat Malik Sahib Soura Srinagar 25-08-2010 72. Irshad Ahmad Parray Purana Iddgah Anantnag 30-08-2010 73. Showkat Ahmad Malik Rawpora Palhallan Baramulla 06-09-2010 74. Noor-ud-din Tantray Tantray Mohalla Palhallan Baramulla 06-09-2010 75. Mohd. Ramzan Mir Naik Mohalla Pattan Baramulla 06-09-2010 76. Mudasir Ahmad mir Wasankhai pattan Baramulla 06-09-2010 77. Ghulam Mohd. Guroo Maloora Khawajabagh Sumbal Bandipora 09-09-2010 78. Mohd Ashraf Mir Bhat Mohalla Palhallan Baramulla 12-09-2010 79. Ghulam Rasool Tantray Bilal Mohalla Humhama Budgam 13-09-2010 80. Nisar Ahmad Kuchay Bilal Mohalla Humhama Budgam 13-09-2010 81. Showkat Ahmad Mir Hungan Budgam Budgam 13-09-2010 82. Adil Gafar Teeli Bilal Mohalla Humhama Budgam 13-09-2010 83. Rafiqa Teeli Ompora Budgam 13-09-2010 84. Danish Nabi Charisharif Budgam 13-09-2010 85. Nisar Ahmad Bhat Ajas Bandipora Bandipora 13-09-2010 86. Tariq Ahmad Ganie Teligam Pattan Baramullah 13-09-2010 87. Abdul Qayoom Wani Wanloo Hajibal Barmullah 13-09-2010 88. Mudasir Ahmad Parray Tangmerg Baramullah 13-09-2010 89. Muhammad Iqbal Malik Tangmerg Baramullah 13-09-2010 90. Majid Khan Iqbal Colony Baramullah 13-09-2010 91. Muhammad Rafiq Teeli Chanakhan Sopore Baramullah 13-09-2010 92. Aijaz Ahmad Wagay Kadilibal Pampore Pulwama 13-09-2010 93. Javaid Ahmad Rather Kadlebal Pampore Pulwama 13-09-2010 94. Muhammad Maqbool Sheikh Tengan Chadoora Budgam 13-09-2010 95. Aqib Ahmad Wagay Sarnal Anantnag 13-09-2010 96. Maroof Ahmad Nath Nath Mohalla Khanibal Anantnag 13-09-2010 97. Muhammad Yaqoob Khan Keeri Patan Baramulla 13-09-2010 98. Shameem Ahmad Jagal Mandhar 15-09-2010 99. Irshad Ahmad Khan Erari Mandhar 15-09-2010 100. Alamdar Shah Gola Mandhar 15-09-2010 101. Baghdad Hussain Mandhar 15-09-2010 102. Mudasir Ahmad Kana Batpora Sopre Barmulla 15-09-2010 103. Yasir Hamid Sheikh Maisuma Srinagar 15-09-2010 104. Fayaz Ahmad Dar Churpora Budgam 15-09-2010 105. Imtiyaz Ahmad Malla Pahlipora Shopian 17-09-2010 106. Fayaz Ahmad Naikoo Boat Colony Bemina Srinagar 18-09-2010 107. Insar-ullah Tantary Tantary Mohalla Palhalan Baramulla 18-09-2010 108. Noor-ul-Daga Nai Basti Anantnag 18-09-2010 109. Ali Muhammad Waza Palhalan Patan Barmulla 18-09-2010 110. Shabir Ahmad Dar Lader Mand Pulwama 19-09-2010 111. Muhammad Amin Ganie Ganie Mohalla Tapar Patan Baramulla 19-09-2010 112. Bilal Ahmad Najar K.P. Road Anantnag 19-09-2010 113. Mubeena Akhtar Nathipora Sopore Baramulla 19-09-2010 114. Sajad Ahmad Pandit Sheikh pora Humhama Budgam 22-09-2010 115. Umar Suliman Sheikh Pathukha Sopre Baramulla 02-10-2010 116. Bashir Ahmad Chicken Khadipora Anantnag 09-10-2010 117. Ghulam Nabi Mir Kadlabal Pampore Pulwama 04-10-2010 4. That the enquiries have further revealed that out of 117 persons mentioned above, F.I.R. has been lodged and cases registered only in respect of 37 deaths. Challan has been produced in the court of law in respect of only 7 cases. As regards the others petitioner states that except the Police Report no formal case has been registered. 5. That in view of the aforesaid factual position the events/ offences can be categorized into three: i) Cases were F.I.R. was registered, followed by investigation and final report, under Section 173 Cr. P.C, filed in the court. ii) Cases were First Information Reports (FIR) has been registered but investigation is not concluded. iii) Cases were only report has been lodged in respect of the offences but no case registered. 6. That in the present proceedings the petitioner submits that inter alia on two specific issues intervention of the Hon’ble court is sought for: a) Monitoring of the investigation of the cases which are pending investigation, and b) Registration of the cases, which have not been registered so far. 7. That another important issue which also arises for consideration and requires investigation/ enquiry is; Whether the response of the police/ security forces against the stone pelters, many among whom have been killed during aforesaid period, was disproportionate to the act complained of? The petitioner states that no law, either domestic or international, supports any ‘state action’ which is disproportionate to the external stimuli or cause. Deaths have been caused to these 117 persons patently in contravention of law and no legislation guarantees immunity to any armed personnel against causing of death in civil action. Disproportionate and excess use of force to quell any public demonstration is punishable under law. 8. That the petitioner before approaching this Hon’ble court visited the residential houses of each and every person who has suffered death. Upon talking to the relatives of the deceased persons petitioner was told that no action had been taken against the killers of their kith and kin. This story/ fact was told to the petitioner by many persons, during his visit. 9. That unfortunate death of these 117 persons has been caused by armed personnel. The armed police personnel of the State Government as well as the armed personnel of the Central Government both actively participated in suppression of peaceful public demonstrations. Both used fire arms. It is submitted that when a case is registered in any local police station, within whose jurisdiction offence of causing death has occurred, the involvement of armed personnel in causing death influences the act of registration of the case and follow up investigation. The whole process from beginning suffers from “institutional bias” and every effort is made to hush up the matter and or record incorrect and or distorted facts so that no armed personnel, to whatever force he may belong, is harmed. There is no check on the contents of the report or the F.I.R. as regards the recording of facts disclosing commission of serious offences. It is the submission of the petitioner that it has become absolutely necessary for this Hon’ble court to monitor investigation and to ensure that proper evidence is collected, killers identified and their prosecution sought from the competent court. Without the Hon’ble court’s intervention to monitor the investigation, investigation, collection of evidence necessary for sustaining conviction, it will not be fair and despite serious offence of murder committed by armed personnel the guilty will go unpunished and may even earn reward. 10. That the armed forces detailed by the Central Government to assist the State Police also claim immunity from prosecution under the provisions of Armed Forces (Special Powers) Act, 1990. The petitioner states that in the matter of causing of death, or use of excessive force or use of disproportionate force, or use of fire arms in contravention of the norms/ rules prescribed for their use and or killing of innocent persons who have not violated law, do not afford any protection to such armed personnel who commit heinous offence of causing death by use of fire arms against a minor/youth/person who peacefully demonstrates, may not even be a part of any public demonstration. 11. Petitioner finds it relevant to mention that some time back the State Government constituted a Commission of Enquiry headed by Justice (Rtd) Syed Bashir-ud-Din (Chairman) and Justice (Retd) Y. P. Nargotra (Member). As per the Notification issued by the said Commission only 17 cases have been referred to the Commission. These 17 cases of death relate to the period between 11.6.2010 to 19.7.2010. Why only selective number of cases have been referred to the Commission is not understandable. In the Notification issued by State Government it has been admitted by the Government that the deaths are a matter of public importance and to enquire into the circumstances leading to the deaths it is necessary to constitute Commission of Enquiry. The petitioner states that the questions which holds true for the 17 deaths cases referred to the Commission, also hold true for other deaths. The methodology/ strategies used in confronting the public demonstrations were the same as are used in combat military operations. The persons killed were totally unarmed. Some of them were only bystanders. Some of them were killed in their own houses. According to the petitioner each and every death which has occurred during this period, has its own story to tell. Hereinbelow are the facts attending the death of some of the persons, showing the circumstances in which these persons were physically eliminated: i) Zubair Ahmad Bhat S/O Ghulam Hassan Bhat, R/O Jamia Qadeem Sopore, age 15 years. Reportedly on 13th April, 2010 at about 3 p.m. a group of armed police chased him without any reason and because of threat of police he jumped in the River Jehlum. Alongwith him one Mehraj-ud-Din Radoo also jumped in the River and said Mehraj-ud-Din could not swim and he provided help to save said Mehraj-ud-Din from drowning, police threw stones upon them because of which said Zubair Ahmad got injured and he drowned in the river and after several hours of search his dead body was recovered from River. ii) Farah Bashir Bukhari S/O Bashir Ahmad R/O Kreeri Pattan, age 17 years. Reportedly on 28th July, 2010 there was a big procession at Chooru Sopore. Police tried to stop the said procession and used shells to disperse the same. In the meanwhile police personnel arrested said Farah Bashir and took him alongwith. Till late evening his relations were in search of the exact whereabouts of the said Farah Bashir who was in police custody. After four days his dead body was found near the police post. iii) Sameer Ahmad Rah S/O Fayaz Ahmad Rah R/O S.D. Colony, Batamalloo, age 8 years. Reported on 2nd August, 2010 at about 3.30 p.m. the said Sameer Ahmad left his home to have some purchases in the local shop. Since the shops were closed he was asked to come back but in the meanwhile there was hue and cry in the locality and gun shots heard. After the firing stopped, his relations came out for his search and in the meanwhile it was heard that some child has sustained injuries. His parents sought help from Police Control Room where they were told that a child has received injuries and he has been taken to SMHS Hospital. His parents proceeded to SMHS Hospital where they found his son admitted in Ward No: 17 and he had received injuries on his head and almost was dead. He later on died. As per report of the parents he was beaten to death. iv) Umer Qayoom S/O Abdul Qayoom R/O Soura near Sabzi Mandi, age 16 years. Reportedly said Umer Qayoom left his home to offer Friday prayers. Stone pelting and fire shots were going on between civilian and para military forces. In the process three persons were arrested. One among whom was Umer Qayoom. He was tortured on spot. As per the eye witnesses he was so much tortured that he could not have survived. He was taken away by the police and due to severe torture his lungs were damaged. When the father approached the police, as per his statement, police handed over Rs. 500/- to him to get him bailed out. As per the statement of his father the doctors also examined him who had stated that his lungs have been damaged and he was also given six points of blood and on following Wednesday he died. When his dead body was taken out from the Hospital, even the police did not spare the said procession and used indiscriminate firing as a result of which about three dozen of people got injured. Even when his dead body was being carried for burrial, police used indiscriminate firing on the said funeral procession. v) Rafiqa Bano W/O Abdul Gani Teli R/O Ompora Budgam, age 55 years. Reportedly on 13th September, 2010 the said Rafiqa Bano was in attic floor of her house. The STF People shot her there and she succumbed on spot. vi) Ghulam Rasool Tantray S/O Muhammad Jamal R/O Humhama. Reportedly on 13th September, 2010 there was a peaceful procession on which STF people and police Personnel resorted to indiscriminate firing in which more than 30 people received injuries. Some of them were seriously injured and taken to hospital. Among them one was Nissar Ahmad Kuchay S/O Ghulam Mohi-ud-Din Kuchay. Ghulam Rasool Tantray accompanied him to hospital. When said Ghulam Rasool Tantray was on the way from District Hospital Budgam to his home, Maruti Car in which he was travelling was stopped near police post and six bullets were punctured in his body and on the way to hospital he succumbed. vii) Aadil Ramzan Sheikh S/O Muhammad Ramzan R/O Palhalan Pattan, age 13 years. Reportedly on 30.07.2010 said Aadil Ramzan had received injuries and he was admitted in the hospital where he was under treatment. The police personnel and CRPF raided the hospital wherefrom the said Aadil Ramzan was dragged in injured condition and shot at outside the hospital where he succumbed on spot. viii) Mudasir Bashir Kachroo S/O Bashir Ahmad Kachroo R/O Khushal Matoo Sopore, age 22 years. Reported on 1.5.2010 at about 5.35 p.m. (Wednesday), there was normalcy in the area. The moment he left his home, without any justification he was shot at and killed on spot. The said Mudasir Bashir was a football player and had represented the State on National Level also. ix) Ghulam Nabi Mir S/O Abdul Ahad R/O Namblabal Pampore, age 62 years. Reportedly on 17.10.2010 the said Ghulam Nabi was on the way from the market wherefrom he was carrying the fruits for his family. He was stopped by the para military forces and beat him to death on spot. x) Khurshid Ahmad War S/O Muhammad Maqbool War R/O Shumnar Kupwara, age 30 years. Reportedly on 2nd of August, 2010 a friend of Khurshid Ahmad was being married and he had to attend the said marriage function. On reaching Khazan-Mitti Kralpora Kupwara he was fired upon by STF and on way to hospital he succumbed. 12. The petitioner states that before the month of June, 2010 the Army and Central Reserve Police Force caused death of several innocent persons. The petitioner states that three young boys, namely, Shahzad Ahmad Lone, Muhammad Shafi Lone and Reyaz Ahmad, were put to death by the Army in an area called Machhil in a fake encounter. This was widely reported by the press and people in Baramulla and Kupwara Districts expressed their resentment against the killing by holding peaceful public demonstrations. The people in District Srinagar also held peaceful demonstrations against the killings. Further killings occurred during these demonstrations one after the other. The dates of death mentioned in the petition show how peaceful demonstrators were killed in quick successions almost on every alternate day. Against the killings demonstrations were held throughout nook and corner of the State. The news papers extensively reported about these deaths as also the circumstances under which they had occurred. 13. That the petitioner states, notwithstanding his personal view the systems which are in place make detailed provisions with regard to use of fire arms against demonstrators. The petitioner submits that against peaceful public demonstrations lead bullets cannot be used. Public demonstrations, where demonstrators resort to stone pelting, lead bullets cannot be used. A demonstration is a visible manifestation of the feelings of an individual or a group of people. It is the communication of one’s ideas to others to whom it is intended. Petitioner submits that a public demonstration is also a form of speech. A peaceful public demonstration falls within the purview of Article 19. The petitioner contends that even if a public demonstration becomes disorderly for any reason whatsoever and resorts to stone pelting against which armed personnel are duly protected, no law authorizes the armed personnel to resort to firing. It is publicly given out by the respondents that the demonstrations were not peaceful and to crush public resentment and in exercise of right of self defence fire arms were used as also tear gas guns at the demonstrators. This version is not shared by the public at large. Unless the matters are thoroughly investigated by an impartial agency, constituted by this court under its supervisions, it will not be possible to unearth the truth. Circumstances under which deaths have been caused have to be identified and established on the basis of established circumstances the guilt or otherwise of the killers has to be determined. In no case the respondents can put the deaths under carpet and offer lip service to rule of law either by simply registering a case without effective and meaningful investigation or by constituting Commission of Inquiries for enquiring into selected killings and or for not registering the cases at all but leaving them as it is in utter disregard of the constitutional and legal obligations. Petitioner states that every death has to be accounted for. Circumstances under which death has occurred, people responsible for causing death identified and the entire factual situation assessed and evaluated to see whether norms prescribed, while dealing with the public demonstrations were, satisfied or not. There is no credible report to show that before resorting to firing any magisterial permission was obtained. There is no credible evidence to show that before shooting directly at the demonstrators the armed police/ armed personnel followed the sequence of warning, firing in air, then on the ground, at the legs and in the event all these fail then at vital part of the body. Even before resorting to firing it needs to be established that the act of the demonstrator was of such a magnitude that the armed personnel were left with no other choice but to shoot directly at the demonstrator. There is no credible evidence to show that rubber bullets or water cannons were used at the demonstrators with a view to disperse them. The petitioner states that the death of these 117 persons is not a death caused by the respondents in their effort to control the demonstrators but these death qualify as ‘murder’ within the meaning of law and all those persons who caused these murders and or were responsible for it, need to be punished. 14. That the writ petition filed in public interest involves larger questions. The petitioner states that the subject matter of the writ petition does not only relate to the causing of deaths, which of course is a specific issue, but the larger question involved relates to use of fire arms by the State Police/ Central Armed Forces detailed in the State against the demonstrators. Despite the laws being in place none is enforced. It is virtually a jungle raj perpetrated by the armed personnel on the people of the State. Inadequate and ineffective mechanism of accountability has not worked. In the case of Central Armed Personnel, separate courts have been created for trying the central armed personnel involved in offences. Similar is the position in the case of military who also have the pleasure of having separate courts for trying the offenders under the Army Act. None of these forces are subject to civil courts except under circumstances as recognized by law. The State Police though subject to civil courts, is primarily responsible for moving criminal machinery for investigation of offences. Since the State Police Personnel jointly carry out operations with the Central Forces against the demonstrators, therefore, it is a case of quid pro quo between these forces resulting in meaningless registration/ investigation of the cases and or in almost ignoring the offences. The petitioner submits that this Hon’ble court, as at present, is the only hope for the bereaved families that justice will be done and that the killers will not go unpunished. Because of the untimely and premature loss of their kith and kin the bereaved families continue to be under shock and cry for justice before every one who visits them. Petitioner has taken upon himself the task of bringing their situation, grievances and the complaint to the notice of this Hon’ble court being the only effective and meaningful form available so that the bereaved families will have the satisfaction that the offenders have been punished by the system under which these offenders operate. The further larger question is that effective mechanism of accountability of the Police/ Security Forces, needs to be created to prevent such acts of omission and commission in future. The petitioner has advisedly filed this Public Interest Litigation only in the interest of those who are no longer alive became victims of ‘state action’ between January, 2010 to December, 2010 and in the interests of the bereaved families, who continue to be under shock and trauma. Effective orders passed in this petition would provide some solace to the bereaved families. 15. That the petitioner has not filed a similar writ petition before this Hon’ble court or before Supreme Court of India. It is submitted that the Public Interest Litigation can only be filed in the Hon’ble High Court. It is accordingly prayed that the following reliefs be granted: a) That the respondents be directed to register the cases wherever deaths have occurred and where the cases having not been registered under proper First Information Report. b) Cases were First Information Report has been registered and are pending investigation, this Hon’ble Court may be pleased to monitor and supervise such investigation and ensure that proper evidence is collected and the investigation taken to its logical conclusion. c) That this Hon’ble Court may also constitute, appoint and directed constitution of a High Level Committee comprised of men of eminence to suggest ways and means of preventing such deaths in future and to lay down norms to be publicly observed by the armed personnel before resorting to firing against the demonstrators. d) To direct that in the case of peaceful demonstrators and or those who resort to stone pelting, no lead bullets are used but instead only rubber bullets or water cannons may be used to disperse the demonstrators. It be further directed that in the event any situation requires resort to firing, it shall not be so done without the express permission/ order of a Magistrate who has at least 20 years service and is a man of integrity. It be further directed that such Magistrates should be qualified in law so that while taking the decision the Magistrate would take into consideration relevant elements of law before taking a decision as regards firing. e) That this Hon’ble court may further be pleased to direct that the Commission of Inquiry, already constituted and or to be constituted, having regard to the importance of the matter, to identify, ascertain and evaluate the circumstances attending the death of these 117 persons between January, 2010 to December, 2010 except those where the final report, consequent to investigation, has already been submitted before the competent court. f) That this Hon’ble court may also be pleased to declare that in the event any armed personnel is found guilty of any act of omission and commission attracting penal provisional such armed personnel would not be entitled to claim immunity under the provisions of Armed Special Powers Act and or any other statute governing the field. g) That this Hon’ble Court may also be pleased to pass further orders and directions keeping in view the importance of the subject matter and in the larger interests of the people of the state so that the lives of the people are protected against wanton, arbitrary state action. h) Any other order or direction as the Hon’ble court may deem fit in the facts and circumstances of the case be also passed. Petitioner through counsel M/S Zaffar Law Associates Dated: 14.01.2011 IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR In the matter of: Muhammad Yaseen Malik, S/O Kh. Ghulam Qadir Malik, R/O Maisuma, Srinagar. .. Petitioner V e r s u s 1. State of Jammu and Kashmir, Through Financial Commissioner (Home), Civil Secretariat, Jammu/Srinagar. 2. Director General of Police, Government of Jammu and Kashmir, Police Headquarters, Jammu. 3. Director General, Central Reserve Police Force (CRPF), C.G.O. Complex, Lodhi Road, New Delhi. 4. General Officer Commanding, Northern Command, C/O 56 A.P.O. .. Respondents In the matter of: Application for grant of interim directions. May it please your Lordships, The petitioner states as under: 1. That in order to avoid repetition, petitioner adopts all the submissions and statements made in the Writ petition in support of this application as well. 2. That the petitioner has a prima face case, balance of convenience is also in favour of the petitioner. In case the interim relief prayed for is not granted irreparable loss and injury will be caused to the petitioner. Besides the writ petition is likely to become infructuous. It is accordingly prayed that the Director General of Police be directed to report to this court the position as reflected in the police records in respect of all 117 deaths as have taken place between January, 2010 to December, 2010 on the dates and in respect of the persons mentioned in para 03 of the writ petition. Any other interim order as the Hon’ble court may deem fit be also passed in favour of the petitioner. Petitioners through counsel M/S Zaffar Law Assocites Dated: 14.01.2011 IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR In the matter of: Muhammad Yaseen Malik V/S State of J&K and Ors In the matter of: Affidavit in support of Writ Petition. I, Muhammad Yaseen Malik S/O Kh. Ghulam Qadir Malik R/O Maisuma, Srinagar, do hereby solemnly affirm and state as under: 1. I state and submit that I have read the contents of the enclosed Writ Petition. 2. I state and submit that all the statements and submissions made in the Writ Petition are true and correct to the best of my knowledge. 3. That the annexures appended to the petition are true copies of the originals. Deponent Verified at Srinagar on 14.01.2011 that whatever is stated hereinabove same is true and correct and nothing has been suppressed or concealed thereof. Deponent IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR In the matter of: Muhammad Yaseen Malik V/S State of J&K and Ors In the matter of: Affidavit in support of application for interim directions I, Muhammad Yaseen Malik S/O Kh. Ghulam Qadir Malik R/O Maisuma, Srinagar, do hereby solemnly affirm and state as under: 1. I state and submit that I have read the contents of the enclosed application for interim directions. 2. I state and submit that all the statements and submissions made in the writ petition be adopted in support of the enclosed application to avoid repetition. 3. I state and submit that the averments made in the enclosed application are true and correct. Deponent Verified at Srinagar on 14.01.2011 that whatever is stated hereinabove same is true and correct and nothing has been suppressed or concealed thereof. Deponent

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