ABDUL RASHID Vs. STATE

JUDGEMENT

(1.) ON 16.08.1997 Abdul Hamid Malik son of Abdul Ahad Malik of Badargund -Ganderbal instituted a report in concerned Police Station that his brother namely Ghulam Nabi Malik had been lifted by accused Irshad Ahmad Sofi, Mohmmad Yasin Sofi and Mst. Khati on 21.06.1977 sic 1997 with help of local army unit while they were accompanied by an unknown person and till 16.08.1997 he did not get any clue regarding whereabouts of his aforesaid brother. Meanwhile on 22.06.1997 while he had gone to police station, Ganderbal he was prevented by accused Abdul Rashid Sofi constable from lodging the FIR by physically assaulting him, and asking him to go back as he would manage release of his lifted brother which did not happen whereupon he filed complaints before IGP, DIG, SSP and Dy. Commissioner of Srinagar district, one of which was endorsed to concerned SDPO also, but still then nothing happened and he started searching for his brother during which he came in contact with accused Mohammad Sultan who assured his brother's release on payment of Rs. 10,000/ - but despite payment nothing happened and ultimately the dead body of his brother was recovered from Ganderbal Power Canal which was decomposed and bore signs of torture.

(2.) ON receiving the report police registered FIR No. 173/1997 under Sections 302, 364, and 109 RPC and started investigations during which they claim to have prepared the recovery and injury memos alongwith map of the alleged scene of occurrence and arrested accused Muhammad Sultan Mir. The police also claim to have been informed that the local army unit of Kumaun rifles had lifted the boy which was denied by concerned Commanding Officer. Vide order No. 1447 of 1999 dated: 21.05.1999 issued by Police headquarters investigation of the case was assigned to crime branch who recommenced the same and recorded statements of witnesses under Section 161 Cr.P.C. On completion of investigation they concluded that on 19.06.1997 the daughter of accused No. 3 namely Jameela Akhtar informed her mother that the deceased Ghulam Nabi Malik had molested her when she went to his shop for purchasing some under -garments whereafter the deceased went to the house of 3rd accused for explaining his position where he was beaten etc. The investigation reportedly also revealed that accused No. 1 the brother of 3rd accused who was posted as SGCT in Ganderbal police station and had contacts with one of the police informers, the accused Mohammad Sultan Mir, organized a raid on the house of deceased on 21.06.1997 at around 9 PM and accompanied by accused 1 to 4 who were dressed in army uniform lifted the deceased and despite efforts the complainant could not have a case registered in police station in time because of the covert activities of first accused, who prevented and persuaded the complainant to get in touch with accused Mohammad Sultan Mir who was working in State Task Force but nothing happened till ultimately the dead body was recovered from power Canal of Ganderbal tied in a rope and bearing torture marks. During interrogation the accused Mohmmad Sultan Mir who became an approver in the case had his statement recorded before the competent magistrate under Section 164 Cr.P.C on 01.09.2003 according to which the accused No. 5 namely Maj. Parera of 3rd Kamanoon Rifles who was posted in Ganderbal at that time was stated to have been involved in commission of the offences and disposal of the dead body on a promise that the accused would given him Pashmina Shawl costing Rs. 60,000/ -.

(3.) FOR the sake of convenience it would be appropriate to first take the petition No. 36/2004 under Section 561 -A purported to have been filed by Maj. Parera against order dated: 11th December, 2003 passed by City Magistrate, Srinagar whereunder while committing the case to Court of Sessions for the second time he has declared him as an absconder and proceeded ahead in the matter. Grounds pleaded in support of prayer for quashment of aforesaid order are that for want of statutory sanction under Section 197 Cr.P.C and Section 7 of Armed Forces Special Powers Act, 1990; the initiation of criminal proceedings by institution of case in hand against him was bad because such sanction for taking cognizance of offence against him was necessary and also that without allowing him to exercise the option whether he would like to be tried by a Civil Court or Army Court, the case could not have been committed to the Court of Sessions and finally that there was no material reliable enough to rope him in, so far as the liability for commission of alleged offence was concerned etc.