Srinagar, Oct 18: The Chief Judicial Magistrate (CJM) on Monday listed the BSF application seeking transfer of Zahid Farooq’s murder case to security
forces court for October 20.
Court had listed the case for concluding the arguments today. However, due to absence of Public Prosecutor and BSF’s counsel, court could not conclude arguments of complainant’s counsel, Nazir Ahmad Ronga.
Ronga argued that the case had to be tried in ordinary criminal court as accused paramilitary BSF Commandant R K Birdhi and his subordinate Lakhvinder Kumar were not on active duty at the time of the incident that led to Zahid’s killing.
Ronga submitted that even though the BSF Act and the Armed Forces Special Powers Act (AFSPA) justify the presence of these forces in civilian
areas, but Act has made it clear in what situations maximum force can be used. Ronga said there was no justification for the accused to open fire on two unarmed teenagers killing one of them Zahid Farooq.
Ronga said the accused were posted in Gulmarg and were not posted in Srinagar on the fateful day. Hence they were not on active duty to maintain law and order in the city, he said, adding that the activities of the accused did not fall within the ambit of BSF Act.
He said Section 47 of BSF act was clear about the offences which cannot be tried by security forces court and included murder, culpable homicide not amounting to murder and rape of a person who is not subject to BSF Act.
He said the BSF had waved their option for the trial of the accused in the favour of the ordinary criminal court after it voluntarily handed over the accused to the police authorities. BSF was made aware that the accused have committed a murder of an innocent boy, who was not subject to the BSF Act, he said.
The BSF had prayed before the CJM to stay proceedings in the court against the accused persons and requested to forward all connected documents and exhibits this case and custody of accused persons to the undersigned as per Section 549 of CrPC 1989 of J&K for instituting proceedings against them under the Act and Rules made there under.
Contending the BSF application Ronga said, “Section 549 of CrPC is pplicable to military authorities liable to be tried by the Court Marshal. Under the provision of BSF Act of 1968 no Court Marshal is provided, since the offences did not fall under Arms Act so section 549 is non-applicable.”
Ronga would continue to advance his arguments against the transfer of the case on October 20.
Both the accused Commandant R K Birdi and his subordinate, Lakhvinder Kumar were present in the court. Zahid was shot at and severely injured after he was hit by bullets fired by BSF constable Lakhvinder near Brein Nishat on February 5.
He was rushed to SK Institute of Medical Science here where doctors declared him brought dead. The killing had evoked massive protests across the Valley.

Lastupdate on : Mon, 18 Oct 2010 21:30:00 Makkah time
Lastupdate on : Mon, 18 Oct 2010 18:30:00 GMT
Lastupdate on : Tue, 19 Oct 2010 00:00:00 IST