Jammu & Kashmir High Court
State Of J&K vs Shabir Ahmed S/O Ghulam Mohd. Keen on 12 August, 2025
2025:JKLHC-JMU:2290-DB
Sr. No. 39
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Reserved on:- 07.08.2025
Pronounced on:- 12.08.2025
CRAA No. 95/2011
IA No. 25/2014
State of J&K. .... Petitioner/Appellant(s)
Through:- Mr. Raman Sharma, AAG with
Ms. Saliqa Sheikh, Advocate
V/s
Shabir Ahmed S/o Ghulam Mohd. Keen .....Respondent(s)
R/o Massri, Tehsil Doda.
Through:- Mr. Masood Ahmed, Advocate vice
Mr. Ashwani Gupta, Advocate.
CORAM: HON'BLE MR. JUSTICESANJEEV KUMAR, JUDGE
HON'BLE MR. JUSTICE SANJAY PARIHAR, JUDGE
JUDGMENT
(Per:- Sanjay Parihar-J)
1. In this acquittal appeal challenge is thrown to Judgment dated 03.05.2011 drawn by Additional Session Judge, Doda (hereinafter referred to as the "trial Court") in case titled "State Vs. Shabir Ahmed", in terms, whereof, the respondent who was facing trial for offence under Section 302/34 RPC and 7/27 Arms Act on the strength of case FIR No. 99/03 of Police Station, Bhaderwah has been acquitted of the charge.
2. Precisely the case set up in this appeal happened to be that the judgment so drawn is against facts and law as the trial Court has failed 2 CRAA No. 95/2011 2025:JKLHC-JMU:2290-DB in appreciating the testimonies of PW-1 Mst. Khalida, PW-3 Nazia Bano, PW-6 Nazira Begum, who had fully supported the occurrence in asmuch as identified the respondent as the accused. So much so, the case was also supported by PW-11 Bashir Ahmed Mir. However, the trial Judge has not appreciated the evidence in its proper perspective. Thus, by rendering the judgment of acquittal, has caused miscarriage of justice leading to acquittal being based upon perverse finding. That the judgment needs to be upset as the prosecution had successfully proved its case, but the trial Court has not appreciated the documentary and oral evidence.
3. Briefly stated the case of the prosecution happened to be that it was on 07.10.2003 when Police Station Bhaderwah received information that around three to four militants under the supervision of respondent No.1 an active militant in Pranu area of Tehsil Bhaderwah called deceased Mohd. Yousuf, village „Headman‟ from his home on the pretext of providing drinking water. Thereafter, they took him along and later fired upon him with illegal weapons thereby, killing him on spot. Thereafter, the respondent and other militants taking advantage of darkness, absconded towards jungles. On that basis case FIR No. 99/2003 under Sections 302/34 RPC and 7/27 Arms Act was registered and investigated by PW-SI Bashir Ahmed. The assailants could not be traced. Thus, investigation proceeded in their absence, in which the dead body of the deceased was taken control of by the police. According to prosecution, after collection of postmortem report and further investigation, a charge-sheet was filed in absence of accused. 3 CRAA No. 95/2011
2025:JKLHC-JMU:2290-DB During investigation it concluded that the incident was perpetrated by respondent-Shabir Ahmed in active complicity with one Bashir Hussain, who were armed with weapons and had killed the deceased village „Headman‟, which was witnessed by PW Nazia Akhter, daughter of deceased, PW Nusrat Bano and widow of deceased PW Nazira Begum. Since the assailants after committing the crime had absconded, who could not be located, it was only after respondent had surrendered before the Army that he could be arrested and brought to justice. Chargesheet initially was laid against him in his absence and subsequently, he joined the trial. Accused/respondent No. 1 was formerly charged on 08.02.2006 for offence under Sections 302/34 RPC, 7/27 A. Act, in which he pleaded not guilty, thus, claimed to be tried.
4. It was relevant to state here that respondent No. 2-Bashir Ahmed at the time of acquittal of respondent No. 1 still was absconded and during the currency of the appeal appears to have been arrested in pursuance to warrant under Section 512 Cr.P.C and produced before the trial Court. He had laid a separate motion before this Court for grant of bail, which was dismissed as withdrawn. Inasmuch as, further motion was laid for his deletion on 08.10.2013 from the array of the parties because of having been arrested and produced before the trial Court. So, respondent No. 2 was deleted and appeal in terms of submissions made by the appellant was said to survive qua respondent No. 1only.
5. We have gone through the judgment of the trial Court and perused the evidence and in our considered view, the appellant has placed reliance 4 CRAA No. 95/2011 2025:JKLHC-JMU:2290-DB upon the testimony of PW Mst. Nusrat Bano, Nazia Bano and Nazira Begum. However, we have minutely perused their statements and find that, though in the FIR, it was recorded that the killing of the deceased was perpetrated by respondent No. 1, but despite the incident having taken place on 06.10.2003 at 19:30 hours, these three witnesses have come forward to narrate the incident for first time only on 07.12.2003 i.e. after around two months of the date of incident. The trial court had taken note of the submission made by the defence that the testimonies of these three witnesses need to be discarded because of their belated narration of the incident, seeking implication of respondent in the incident dated 06.10.2003 and delay occasioned thereof until 07.12.2003 has not been explained.
6. The Investigating Officer visited the incident site on the very next day of the occurrence; nowhere in the case diaries there is even a whisper as to why there was delayed examination of these three witnesses. The trial Court has taken note of the case diaries and even recorded that until 17.12.2003, it was not known as to who has committed the incident, rather the police agency was making all out efforts to ascertain and identify the assailants. PW Mst. Nazia, categorically is found narrating that she knew respondent from the very beginning, who had joined militancy. She claimed that accused fired bullets in dark and at the time of incident, she was at the upper floor of her house. After hearing the noise of gunshot, she came down. By that time, the assailants had fled away. PW-Nussrat Bano is found narrating that she saw her father dead and on enquiring from her mother, she 5 CRAA No. 95/2011 2025:JKLHC-JMU:2290-DB was told that a day prior to the incident, her father was shot by the accused and that she told her that accused had fired upon her father. Their versions have not been relied upon by the trial Court and we agree with this submission of the counsel for the respondent that none of these two witnesses had identified the respondent No. 1 as the assailant in the incident dated 06.10.2003.
7. PW Khalida Bano, another daughter of the deceased claimed that two people came to their house asking for water and it was getting darker. She further deposed that she knew accused prior to the incident, though she did not know the co-accused. She also knew the father of respondent No. 1 and admits that after accused/respondent No. 1 was arrested by Army and police, they told her that they have caught the killer of their father. Rather she admits that it all was confided by the police and the Army to PW Nussrat Bano and from her, the witness came to know that respondent No. 1 was the killer of her father. The testimony of this witness appears to be on hearsay. PW-Nazira Begum is the widow of the deceased though identified respondent No. 1 as the person, who had come to her house on 06.10.2003 and asked for water and she has also found narrating that her husband went along with them, but in cross-examination admits that incident of killing of deceased took place in the paddy fields, but when the deceased was fired upon, she was not present there. Rather she was back home and that her neighbourer-Faquar Din was rounded on suspicion.
8. According to trial Court, PW-Nazira Begum though had identified the accused as the assailant, however, her testimony is full of improvement 6 CRAA No. 95/2011 2025:JKLHC-JMU:2290-DB because the investigating officer is categorically found admitting that on 06.12.2003 when he visited the scene of the crime, he was not told by the witness about the complicity of accused/respondent No. 1, rather on 07.12.2003, the police had called thirty-forty personnel of the village so as to receive information as to who the assailants were. However, they could not identify as to who assailant were though, it was believed that the incident might have been perpetrated by the militants, as police believed that since a militant group headed by the respondent was active in the area where the killing of the deceased had happened. So, they apprehended that the killing may have been affected by the said group.
9. On going through the evidence, especially the narration of the family members of the deceased including PW Nazira Begum, widow of the deceased in the light of the testimony of investigating officer, right from the day of incident until surrender of respondent before Army, the investigation proceeded on the assumption that it was a militant killing. However, neither the family of the deceased nor there was any other witness or circumstance to have led the police to believe that the occurrence had happened at the behest of respondent. It is nowhere divulged in the prosecution case as to when the surrender of respondent happened because the case proceeded on the assumption that it was a militant killing and even the charge-sheet was filed in absence of the accused, which goes on to show that it is only after the respondent surrendered before the Army personnel before whom he may have admitted his involvement in the incident of killing of 7 CRAA No. 95/2011 2025:JKLHC-JMU:2290-DB deceased, when thereafter the family of the deceased were told by the Army personnel that respondent is the killer of their bread earner. It is not the case of the prosecution that respondent ever made any extra- judicial confession before the Army authorities, which led them to believe that the incident has happened because of the complicity of respondent. Had that been the case, then may be the course of event might have been different.
10. On going through the record as well on critical appraisal of the finding of acquittal returned by trial Court, we see no reasons for our interference in it. Certainly, the evidence, if any, against the respondent is on hearsay, that has no evidentional value and the fact that the witnesses on which the learned counsel for the appellant is placing reliance, they have spoken about the complicity of the accused after two months of the incident, without an iota of explanation for such delay. This all goes on to show that the prosecution has proceeded to implicate the respondent on mere assumptions and presumptions, without any clinching evidence. The narration of PW-11 Bashir Ahmed Mir SI too, is of no use for the appellant, as the trial court has clearly dissected the narration of the said witness and has rightly concluded that prosecution case of identifying the respondent as the assailant on spot is outcome of due deliberation and consultation, so as to cultivate a story against the respondent to be the perpetrator of the crime. Admittedly, the deceased had been killed by gunshot, but the actual culprit had neither been identified by the eye-witnesses due to 8 CRAA No. 95/2011 2025:JKLHC-JMU:2290-DB darkness and probability of respondent being roped in after having surrendered before the Army cannot be ruled out.
11. In light of the aforesaid discussion, we find no reasons to interfere with the finding of acquittal recorded by the trial Court in favour of the respondent. The appellant has also failed to show any material warranting interference to the acquittal of the respondent. Consequently, we see no merit in the instant appeal, which is, accordingly, dismissed along with connected application by upholding the impugned order of acquittal of the respondent dated 03.05.2011 passed by the trial Court.
(Sanjay Parihar) (Sanjeev Kumar)
Judge Judge
JAMMU
12.08.2025
Diksha
Whether the order is speaking? Yes
Whether the order is reportable? Yes