UNION OF INDIA Vs. STATE OF J&K

JUDGEMENT

(1.) Shri Showkat Ahmad Khan S/o Ghulam Mohammad Khan Resident of Nadihal, on 20th April, 2010, lodged a written report with police Station, Panzalla, alleging therein that Shri Bashir Ahmad Lone S/o Ghulam Nabi Lone Resident of Nadihal about 24 days prior to lodging of the written report, persuaded Shazad Ahmad Khan S/o Ghulam Mohammad Khan and Riyaz Ahmad Lone S/o Mohammad Yousuf Lone Residents of Nadihal to accompany him to Sogam, Kupwara paying Rs. 5,000/- to each of them and also extended a promise to procure employment for them and that the duo were not heard of since then. The report further alleged that Shri Bashir Ahmad Lone, when approached to disclose the whereabouts of the two, refused to have any knowledge, giving rise to the suspicion that the two had been either eliminated by him or were kept in wrongful confine ment, to endanger their lives. The receipt of the report prompted SHO, Police Station, Panzalla to register a case FIR No. 23 of 2010, under Section 364 RPC at Police Station Panzalla.

(2.) The investigation was taken over by Shri Shakeel Ahmad, Inspector 4459 NGO. The material collected during investigation allegedly revealed that Shri Bashir Ahmad Lone S/o Ghulam Nabi Lone Resident of Nadihal, Abdul Hamid Bhat S/o Abdul Gaffar Bhat Resident of Kawhar Sheen and Abbas Hussain Shah S/o Kalander Shah Resident of Shadrah, Kamalkote, Uri, hatched a criminal con spiracy with Colonel D. K. Pathania Commanding Officer, Major Moriya, Adjutant, and Major Opendera, all belonging to 4th Rajput and five other members of the Armed Forces, to abduct/entice civilians using bait of employment, eliminate the abductees in a fake encounter and claim cash rewards and promotions and that in execution of criminal conspiracy so hatched Shri Bashir Ahmad Lone, Abdul Hamid Bhat and Abbas Hussain Shah abducted three civilians namely Shazad Ahmad Khan, Riyaz Ahmad Lone and Mohammad Shafi Lone, handed them over to Army Officers and eliminated them in a fake encounter at Sonapindi in Machil Sector and projected before the authorities that three civilians were militants and had been killed in a successful military operation, conducted by Colonel D. K. Pathania and others. The object was to collect the rewards and promotions that would come their way for eliminating the so called militants. S. Shri Bashir Ahmad Lone and his alleged accompanies-party to the said conspiracy, were paid Rs. 1,50,000/- in cash. The material collected during investigation and the statements of the witnesses recorded, made the Investigating Officer to conclude that the accused-08 Army personnel and three civilians had committed offence punishable under Section 364,302,120-B and 34 RFC. The investigation was concluded as proved against the accused and the charge-sheet presented in the Court of Chief Judicial Magistrate, Sopore, on 15th July, 2010.

(3.) Though the Superintendent of Police, Sopore, vide letters dated 24th June, 2010 and 30th June, 2010, made a request to the Commander, 53 INF Brigade to hand over Colonel D. K. Pathania, Commanding Officer, 4th Rajput and seven other Army personnel to the Investigating Officer, yet the Army personnel towards whom the needle of suspicion pointed were not handed over to the Investigating Officer. The Brigade Commanding Officer, in reply to the aforesaid communica tions informed the Superintendent of Police that a "Court of Enquiry" had been ordered by the Army authorities and the Army personnel sought to be handed over were essential witnesses in the said "Court of Enquiry". The Officer however, volunteered to make available the aforesaid Army personnel for question ing/in vestigation within the Army premises. The stand was reiterated in communication dated 19th July, 2010 of Colonel Adjutant General for General Officer Commanding to the DIG, Baramulla. The charge-sheet in the circumstances was presented before the Chief Judicial Magistrate in absence of Colonel D.K. Pathania and other 07 Army personnel, listed as accused in Column 2 of the charge-sheet.