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Jammu & Kashmir High Court - Srinagar Bench

Zahoor Ahmad Kasab vs Union Territory Th. Police Station ... on 12 August, 2024

Author: Javed Iqbal Wani

Bench: Javed Iqbal Wani

                                                                            Sr. No. 47
                                                                           Regular Cause List

 IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                    AT SRINAGAR

                           CrlA(D) No. 15/2024
                           CrlM No. 1102/2024

Zahoor Ahmad Kasab                                                 ...Petitioner(s)/Appellant(s)

Through:    Mr. Wajid Mohammad Haseeb, Adv.

                                      Vs.
Union Territory Th. Police Station Dooru                                     ...Respondent(s)

Through:    Mr. Mohsin Qadiri, Sr. AAG with Ms. Maha Majeed, AC

CORAM:

HON'BLE MR. JUSTICE ATUL SREEDHARAN, JUDGE
HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE
                                ORDER

12.08.2024 The present appeal has been filed under Section 21 of the NIA Act 2008 by the appellant who is aggrieved by the order passed by the learned court below dated 30.12.2023 in FIR no. 98/2020 of Police Station Dooru, whereby the application for grant of bail moved by the appellant was dismissed by the learned Court-below.

The brief facts of the case are as follows:

On 14.08.2020, a missing report was filed by the father of one Mohd Altaf Shah, that his son was missing since 06.08.2020. The police informed the father that they are unable to search for Mohd Altaf Shah as they have reports to the effect that he has joined Hizbul Mujahideen and is an active militant. On 02.09.2020, an FIR was registered against Mohd Altaf Shah as the main accused and also there was an allegation in the said FIR that there were others who were working as Over-Ground Workers (OGWs).

There are 25 prosecution witnesses in this case and as on date, 20 have been examined. Learned counsel for the appellant has referred to the statements of PW-7, 9, 15, 16, 17, 20 and 21.

PW-7 has stated that he could not identify the appellant in Court and he came to know that the appellant is an OGW for Kashmir Tiger. In cross- examination, he has no personal knowledge and whatever he has stated is based on hearsay.

PW-9 likewise has not been able to identify the appellant and says that he has not seen the appellant working as OGW and further stated that the Dy. SP told him that the appellant is an OGW. He further says that he made the allegations against the appellant upon information received from the Dy. SP and that he does not know the source of information of the Dy. SP. In other words, PW-9 has also stated that the information with regard to the involvement of the appellant as an OGW is hearsay.

PW-20 states that he is working as a Chowkidar in the area and that he heard that an encounter took place on 28.08.2020 in which Mohd Altaf Shah was killed and that the appellant was associated with the deceased militant in supporting. He further stated that he does not know their name and in cross- examination through VC, this witness was also not able to identify the appellant and he says that he has never personally seen the appellant with the militant who was killed. This witness is also hearsay.

PW-21 is the Numberdar who was declared hostile by the prosecution and in cross-examination by the PP has stated that it is wrong to suggest that Mohd Altaf Shah has engaged the accused person as an OGW. He also says that it is wrong to suggest that he is giving a false statement under influence and that he has not given any statement to the police. In cross-examination by the defence, this witness says that he cannot identify the appellant and he has seen him for the first time and has not seen the appellant meeting the deceased militant or anyone.

As regards PW-15, 16, and 17 are concerned, they have also not stated anything in their deposition which incriminates the appellant herein in the said offence.

The appellant has been in judicial custody since 01.04.2021 and the trial has not been concluded. Prima facie, the evidence that has come on record does not incriminate the appellant as an OGW of the Kashmir Tiger or any other organization.

Under the circumstances, the appeal is allowed. The appellant shall be enlarged on bail upon his furnishing a personal bond in the sum of Rs.50,000/- (Rupees Fifty Thousand Only) with one solvent surety in the like amount to the satisfaction of the Registrar Judicial of this Court.

The observations made in this appeal with regard to the factual aspects of the case having been made only for the purposes of deciding the bail appeal and the learned trial court shall ignore the same and not take them into consideration even remotely while deciding the case of the appellant and the same proceed strictly in accordance with law.

                  (JAVED IQBAL WANI)                                (ATUL SREEDHARAN)
                             JUDGE                                             JUDGE
SRINAGAR:
12.08.2024
Altaf




                                    Mohd Altaf Nima
                                    I attest to the accuracy and
                                    authenticity of this document
CrlA(D) No. 15/2024                                                           Page 3 of 3
                                    14.08.2024