Yaseen Malik's petition for stay on trial to be heard in Jammu

The Jammu and Kashmir High Court Wednesday ordered listing of a petition of arrested JKLF chief Yasin Malik seeking stay on trials before a designated TADA court in Jammu in three-decade-old cases of kidnapping of the then Union home minister's daughter and killing of IAF personnel.

Chief Justice of the High Court Geeta Mittal passed the order after hearing arguments on two applications filed by the CBI seeking transfer of Malik's petition to the Jammu Wing of the High Court as well as vacation of an interim stay order of November 26, 2009 on holding trial before a TADA court in Jammu.

The JKLF chief has been out since April 2009, when the Srinagar wing of the Jammu and Kashmir HC stayed his trial in a designated TADA court in Jammu in two high-profile cases -- kidnapping of the then union Home Minister Mufti Mohammad Sayeed's daughter Rubaiya Sayeed on December 8, 1989, and the killing of the four Indian Air Force (IAF) officials on January 25, 1990 -- based on CBI charge sheets.

Squadron leader Ravi Khanna, Corporal DB Singh, Corporal Uday Shankar and Airman Azad Ahmad were gunned down at Rawalpora Chowk, when over 40 IAF personnel were waiting for their morning bus on the outskirts of Srinagar.

Malik had approached the Srinagar bench of the HC in 2009 seeking stay of trial and challenging the trial court's order of shifting the case to Kashmir.

The HC in 2009 had directed that the proceedings before the trial court shall remain in abeyance and there was no further movement on the writ petitions which have remained pending ever since and the trial also stands interdicted since November 26, 2009, Justice Mittal observed in her order.

The CBI, which approached the High Court recently, had contended that the matters pertain to charge sheets which have been filed before the designated TADA Court in Jammu and as such, the matter falls entirely within the jurisdiction of Jammu Wing of the HC which alone can adjudicate upon the subject matter.

The counsel representing Malik contended that the CBI has acquiesced in the orders granting permission and no application was filed for nine years. But the lawyer representing the CBI drew attention of the Chief Justice on counter affidavits to the writ petitions in which the agency had contested the maintainability of the writ petitions.

While directing for listing of the petitions before the Jammu wing of the High Court, the Chief Justice said "the permission granted by the (then) Chief Justice...was on the administrative side, which permission was given exparte without hearing the other side.

"Even if the CBI in the present case could be held to have recorded its consent or acquiesced to hearing of the writ petitions by the Srinagar Wing, such proceedings in this Wing would be by a court which does not have the jurisdiction to do so. The adjudication would be without authority of law and completely without jurisdiction," the 26-page order said.

Malik is the main accused in the kidnapping of Rubiya Sayeed, daughter of former Jammu and Kashmir chief minister Mufti Mohd Sayeed, and the killing of four IAF personnel in Srinagar. Sayeed was then the Union Home Minister.

Rubiya, who is sister of former state chief minister Mehbooba Mufti, was kidnapped at gunpoint from a mini-bus while she was on her way home from Lala Ded Hospital in Srinagar where she worked as a doctor. The incident took place on December 8, 1989.

JKLF terrorists were behind Rubiya's kidnapping and had demanded the release of five of their colleagues who were in prison. After 15 days of hectic negotiations, five terrorists were released by the Centre in exchange for Rubaiya's freedom.

The five released by the then VP Singh government were Abdul Hamid Sheikh, a Pakistani terrorist Sher Khan, Noor Mohammad Kalwal, Altaf Ahmed and Javed Ahmed Jargar. The case was handed over to the CBI on February 22, 1990.

The charge sheet in IAF officers killing was filed by CBI on August 31, 1990, under Section 120-B read with Section 302 of RPC, Sections 3 and 4 of TADA and Section 27 of Arms Act in the Court of 3rd Additional Session Judge (TADA cases Jammu) against the accused.