NAZIRA BEGUM Vs. STATE J&K

JUDGEMENT

(1.) ON 23rd September, 2011 Shri Parvez Imroz Advocate, learned Counsel for the petitioners ' addressed arguments at length and referred to the facts and events reflected in the petition and documents appended thereto that, according to Mr. P. Imroz must persuade the Court to grant reliefs sought in the petition. On 30th September 2011, Shri Prashant Bhushan, Learned Senior Advocate appearing for the petitioners, concluded arguments in presence of Mr. Magray Senior Additional Advocate General ' Counsel for the respondents. Against the backdrop of case set up and arguments advanced, Learned Advocate General/ Counsel on behalf of the State Government, was requested to assist the Court on the next date of hearing. The respondents were given liberty to submit written arguments, if so advised. Learned Advocate General, accordingly, submitted written arguments, which are taken on record. Heard and perused the petition with it 'sannexures and material available on record.

(2.) S /Shri Fazal Hussain Dar, Fareed Hussain Dar Son of Fazal Hussain, Mohamad Hussain Son of Abdul Razaq, Talib Hussain Son of Shri Ghulam Nabi Lone all Residents of village Malani Tehsil Baderwah, were allegedly abducted on 3rd. January, 1996 and were later with the exception of Shri Talib Hussain, killed by their abductors near Premnagar on the banks of river Chenab. Shri Talib Hussain, who was allegedly also thrown by the abductors in river Chenab, escaped the bullets, spent the night at the place of occurrence and reported the matter next morning i.e. 4th January, 1996, to the locals from village Malani, who had assembled at Pul Doda to enquire about whereabouts of the abducted. The occurrence prompted Police Station, Baderwah to register case FIR No. 7/1996. The Investigating machinery was set into motion. The investigation, revealed that one Shri Mohamad Ashraf Son of Shri Gulab Shah Resident of Doda ' respondent No. 6 herein, had prior to the occurrence become notorious, for his criminal and anti -social activities. He was time and again reprimanded by respectables of the locality for indulging in criminal and anti - social activities including the offences against women. S/Shri Fazal Hassan Dar and others according to investigation, took a lead role in local effort to pursuade the respondent to refrain from his criminal and anti -social activities. The respondent No. 6 who on 30th September, 1995 was appointed as Special Police Officer (SPO) and associated with anti -militancy operations, annoyed by attitude of the deceased and Shri Talib Hussain, to wreck vengeance, hatched conspiracy with Shri Tariq Hussain Son of Mohamad Shafi Resident of Kokernag and one Abdul Sattar Resident of Anantnag to eliminate the deceased. In furtherance of criminal conspiracy so hatched, the respondent No. 6 and his accomplices on 30th January, 1996 abducted Fazal Hussain and others in a police vehicle, with the intention to liquidate them, took them to the banks of river Chenab near Premnagar, Doda, opened fire on them with the weapons procured from local police and killed Fazal Hussain, Mohamad Hussain and Fareed. Shri Talib Hussain, however, though thrown in river, clung to a stone escaped bullets and survived to tell the sordid story to the inhabitants of Malini who as stated had by the next morning day (4th January, 1996) assembled near Pul Doda to enquire about whereabouts of Fazal Hussain and others. The Investigating Officer, was lead to the place of occurrence by Shri Talib Hussain, where a few bullet shells were recovered and blood socked -soil and blood stained stones seized. The investigation was concluded as proved against the respondents 6 and 7 in the petition and one Abdul Sattar Resident of Anantnag. The accused were prima -facie, found to have committed offences punishable under Sections 302, 307, 364, 201 and 120 RPC and 3/27 Arms Act.

(3.) IT appears that a few days after case FIR 7/1996 was registered and investigation started, as per claim set out in the petition, the petitioner No. 1 submitted an application to Chief Judicial Magistrate, Doda for 'judicial investigation '. The application was sent to Sub Divisional Police Officer, Baderwah for appropriate action. However, the Sub Divisional Police Officer, Baderwah according to the petitioner No. 1 did not take any action in the matter and ignored the order of Chief Judicial Magistrate. The petitioner No. 1 thereafter on 8th April, 1996 approached National Human Rights Commission, with an application for re -investigation of the matter. The Director General of Police pursuant to a direction issued by National Human Rights Commission on 24th June, 1997 directed re -investigation of the matter by Crime Branch. However, as already pointed out the investigation in case FIR No. 7/1996 Police Station, Baderwah by that time was concluded as proved against the respondent No. 6 and his two alleged accomplices and Charge - sheet presented before the competent Court on 23rd December, 1996. The case was also committed to the Court of Sessions and proceedings commenced thereupon. The order dated 24th June, 1997 was not brought to the notice of learned Sessions Judge Baderwah. The trial therefore proceeded unmindful of the investigation directed by the Director General of Police in compliance of the order of National Human Rights Commission. However, while the trial made the progress the re -investigation of the matter by Crime Branch also continued.