MOHD RAFIQ Vs. STATE

JUDGEMENT

(1.) THIS petition has been filed under section 561 -A of the Code of Criminal Procedure for quashing the proceedings pending in the Court of Sessions Judge, Poonch arising out of FIR no. 177/2006 registered at Police Station Mandhir.

(2.) PETITIONER , accused was charge sheeted for offences under sections 302/307 read with section 120 -B RPC by the Sessions Judge Poonch vide order dated September 8, 2007 the correctness of which is under challenge in this petition.

(3.) SHORT facts which are necessary for disposal of this case are that on December 8, 2006 the army and local police of Mandhir were jointly conducting search operation in Banola, Kanetti, Salwah and other villages of Mandhir. While doing so, they received information that accused Mohd Rafiq along with his son Ranees, who were alleged to be upper -ground members of the banned organization, Lashkar -e -Toyba, had entered into a criminal conspiracy with a militant for making murderous attack on the searching party. In furtherance of the conspiracy, they had concealed a militant alongwith arms and ammunition in the house. When the searching party broke open the locks of an almirah of the house, the militant concealed therein fired indiscriminately upon the searching party, resulting in death of an army personnel, namely, Virender Singh, and a civilian, namely, Mohd Sharief, besides causing injuries to some others. On receipt of this information, Police Station Mandhir registered a case FIR no. 177/2006 for the commission of offences under sections 302/307/120 -B RPC and sections 7/25, 26 and 27 of the Arms Act. During investigation police recovered dead body of the killed militant and the army person and recorded statements of witnesses, seized arms and ammunitions on spot and a cell phone. The investigation resulted in charge sheeting the accused and his son for the above said offences. The learned trial Judge considered the evidence and framed charge against the accused in terms of sections 268/269 Cr. P. C. vide his order dated September 8, 2007. After hearing the accused and the prosecution, the trial Judge came to the conclusion that there is no reason to discharge the accused. The learned Judge referred to the report made for lodging the FIR, statements of witnesses recorded under section 161 Cr, P. C., seizure of arms and ammunitions along with the cell phone; radio wireless seized from the place of occurrence and recovery and seizure of dead bodies etc. The learned Judge noticed as per index of the challan that PWs 3, 4, 5 and 6 are eye witnesses to the occurrence. Reference was also made to PWs 7 and 8 who were witness to the criminal conspiracy and the seizure of arms and ammunition. Learned Judge also referred to the statements of PWs 11 and 12 and concluded that the evidence which the prosecution had collected prime facie established involvement of the accused in commission of offences under sections 302/307 read with section 120 -B RPC. The accused were, accordingly, charge sheeted under the aforesaid offences.