Petition of person charged of hijacking dismissed

Srinagar: The High Court on Friday dismissed a petition filed against the verdict of a special judge who had charged the petitioner of hijacking a plane from Srinagar Airport to Pakistan 36 years ago. The court, quoting Section 14 of the Enemy Agents Ordinance Act said the HC had no jurisdiction on proceedings in the court of special judge under the Ordinance.
On December 26, 2002, the special judge Hakim Imtiyaz Hussain, who was then principal District and Sessions Judge Srinagar, charged the accused under Section 3 of the Enemy Agents Ordinance and Sections 365, 392, 440, 120-B RPC in an offence of hijacking a plane from Srinagar airport.
The prosecution had pleaded the case before the Court of the special judge saying the accused Hashim Qureshi who had served as sub-inspector in paramilitary BSF, hijacked an Indian Airways Friendship Aircraft, Ganga in 1971.
Qureshi informed the court he was challaned for the offence in police station Sadder under section 365,392, 435, 12b RPC and under the Enemy Agents Ordinance in FIR 15 of 1971.
The prosecution however said since he was in Pakistan, no progress took place in the investigation of the case. Now when the accused returned to Srinagar in 2000, the police approached CJM Srinagar seeking permission to reopen the investigation of the case. The permission was granted and the accused was arrested and challan was filed before the court. The prosecution said on the investigation it was found that the accused at the instance of Pakistani government hijacked the plane and in the process abducted passengers confining them wrongfully and later set ablaze the plane at Lahore Airport.
However, the defense counsel RA Jan argued that accused was prosecuted in Pakistan under charges under section 3 of Enemy Agents Ordinance 1943, section 3 of official secrets act and other acts.
He said the accused was tried and convicted by the Special Court of Pakistan. Later, the accused filed an appeal before the Supreme Court of Pakistan. The counsel furnished copies before the court proving he was tried along with other accused Mir Maqbool Bhat, Abdul Qayoom and Dr Farooq Hyder.
Since the accused has been tried by the Supreme Court of Pakistan and has been already punished for the offence, there is clear bar to the present prosecution under Article (2) of the Constitution of India under principal of double jeopardy, the counsel argued.
After hearing the arguments of both the counsels the court observed the allegations under which the accused was charged in Pakistan were entirely different from the allegation for which he is being prosecuted in present case. So the Court observed the principal of double jeopardy is available and fundamental right and the courts are under an obligation to follow it. The court held that in certain cases even a foreign court could be taken as court of competent jurisdiction. But the court ruled the offences under which he was prosecuted and convicted in Pakistan were not substantially and materially same with the offence with which he is being prosecuted in the present case except offence under section 435 RPC. So the court charged the accused under section 3 of Enemy Agents Act.
The legal effect of these proceedings is that the accused will have to face trial before the special Judge.
31/03/07 GreaterKashmir.com (press release)

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Categories: Foreign Apr 2007, Indian Apr 2007, Safety Apr 2007