Shafkat Hussain And Another vs Public Prosecutors Additional ...
2021 Latest Caselaw 811 j&K

      THE HIGH COURT OF JAMMU AND KASHMIR AND LADAKH
                          AT JAMMU

                                              Reserved on: 15.07.2021
                                           Pronounced on: 04.08.2021

                         Bail App No.194/2020




Shafkat Hussain and another                          ...PETITIONER(S)

          Through: Mr. S.A.Hashmi , Advocate.

Vs.

Public Prosecutors Additional Session Court ....RESPONDENT(S)
Doda
          Through: Mr.Sunil Malhotra G.A.


CORAM:HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE

                                JUDGMENT

1) The petitioners along with others are facing trial in case FIR

No. 35/2017 registered in Police Station, Gandoh for offences under

Sections 302/307/458/436/511/201/120-B RPC and 7/27 Arms Act

which is pending disposal before the Court of learned Additional

Sessions Judge, Doda (hereinafter referred to as the „trial Court‟).

2) Before filing the instant application, the petitioners along with

two others had moved a similar application for bail before the trial

Court which the trial Court rejected vide its order dated 19.03.2020 in

so far as the petitioners herein are concerned. The two other accused,

namely, Bashir Ahmed and Altaf Hussain were, however, enlarged on

bail by the trial Court. Feeling aggrieved and with a view to seek their 2 Bail App 194/2020

enlargement on bail in the aforesaid case, the petitioners have moved

this Court through the medium of instant application.

3) Before I advert to the grounds urged by the petitioners seeking

concession of bail, it would be appropriate to take note of the

prosecution story and the outcome of the trial so far held in the instant

case:

"The prosecution story as it goes is that on 08.05.2017 at 2:50

am, an information was received from reliable sources that some

unknown militants armed with illegal weapons had attacked the

Police Picket situate at Tanta and by indiscriminate firing,

seriously injured SPOs Kikker Singh and Mohd Younis. The

militants after accomplishing the attack had run away from the

spot taking the benefit of dark. On this information, FIR

aforesaid was registered in the Police Station, Gandoh for the

offences under Sections 307/120-B RFC & 7/27 Arms Act and

the investigation set in motion. The injured were referred to

Hospital at Thathri for treatment and some jackets and other

blood stained items were recovered from the spot. The

statements of witnesses under Section 161 Cr.P.C too were

recorded. Injured Mohd Younis, however, succumbed to his

injuries in the hospital at Jammu on 19.05.2017. Looking to the

nature of crime and the manner in which it was accomplished, a

Special Team of police headed by ASP Bhaderwah was

constituted to investigate the matter. The petitioner Abdul Rashid 3 Bail App 194/2020

was arrested on 11.05.2017 and pursuant to his disclosure

statement, one AK-47 Rifle along with some empty cartridges

was recovered on his identification from Ganori Bhoath, Tanta.

On his further statement, the accused Showket Ali, Akhtar

Hussain and the petitioner Shafkat Hussain were also

apprehended and their confessional statements separately

recorded. On the disclosure statement made by the accused

Akhtar Hussain and on his identification, two Magazines along

with 60 cartridges were recovered and the same were sealed on

the spot to preserve the proof. Similarly, on 13.05.2017, as per

the confessional statement made by the petitioner Abdul Rashid,

one employee of Territorial Army was called and on his

confessional statement, accused Altaf Hussain, SPO No. 576 too

was arrested on the same day. Samsung mobile phones of the

petitioners Abdul Rashid and Shafkat Hussain were also seized

and sent for examination to CFSL, Chandigarh to get the expert

opinion for retrieving dates and the call details. It is the further

case of the prosecution that during the investigation, it was found

that AK-47 Rifle, which was recovered and seized at the instance

of the petitioner Abdul Rashid, had been acquired from Police

Station, Doda with regard to which there was already FIR

registered under Section 409 RPC.

From the evidence collected and also the call details, it was

found that all the accused persons including the petitioners 4 Bail App 194/2020

herein were in contract with each other since long and were also

in touch with each other even on the day of occurrence. It further

revealed that Abdul Rashid alias Abdullah was a LeT militant

and was involved in so many militant activities. In the year 2008,

he had surrendered before the Territorial Army from where he

had come in contact with Bashir Ahmed and two other accused

persons. All of them, having criminal intention, had hatched a

conspiracy to destabilize the sovereignty of India. It was also

found that the petitioner Abdul Rashid and Akhtar Hussain were

also involved in so many cases and were in contact with LeT

militant Mohd Ameen. The petitioners and Akhtar Hussain used

to be instigated by the aforesaid LeT militant, whereas the

accused Bashir Ahmed, an employee of Territorial Army was in

contact with his close relative Altaf Hussain, SPO who had been

requested by the accused Bashir Ahmad to arrange arms. Said

Altaf Hussain, SPO on 03.01.2017 obtained a rifle along with

ammunition from the Armory of Police Line with criminal

intention. He, instead of getting the rifle issued in his own name,

got the same in the name of one Ghulam Nabi by playing a fraud

and took it to the house of accused Bashir Ahmed. The accused

Bashir Ahmad hatched a criminal conspiracy with the petitioner

Abdul Rashid and asked him to get it changed with the weapon

from some banned organization. In pursuance of aforesaid

conspiracy, the petitioner Abdul Rashid contacted the militant 5 Bail App 194/2020

Mohd Ameen and roped in the accused Showket Ali and Akhtar

Hussain in his plan.

On 22.04.2017, the petitioner Abdul Rashid got the gun from

the house of accused Bashir Ahmad, packed it in a solar plate

with the help of accused Showket Ali and took it to Tanta.

Thereafter, the petitioner Abdul Rashid contacted Showket

Hussain, a teacher in Madrasa and asked him to keep an eye on

the movement of the police personnel posted at Police Picket,

Tanta. He was also asked to kill the police picket employees and

was given the assurance that if he accomplished the task, he

would be adjusted in Territorial Army. During the intervening

night of 7th/8th May, 2017, the accused Showket Ali and Akhtar

Hussain as per pre-plan attacked the police picket at 12:30 am.

The Accused Showket Ali fired from his Rifle, whereas the

accused Akhtar Hussain gave a lit of fire to the stairs of the

Picket, as a result of which, both the inmates of the Picket got

injured and one of them, SPO Mohd Younis later on died. After

committing the offence and while the accused Akhtar Hussain

was running away, his mobile phone fell down in the way and

the accused Shoket Ali who was in contact with the petitioner

Abdul Rashid asked the petitioner Abdul Rashid to give a call on

the mobile phone of Akhtar Hussain so that he could trace out his

fallen cell phone. The petitioner Abdul Rashid obliged and on his

giving repeated rings to Akhtar Hussain, Akhtar Hussain traced 6 Bail App 194/2020

out his mobile phone and took it along with him from the spot.

The prosecution witnesses have seen both the aforesaid accused

persons running away after committing the crime. After the death

of SPO Mohd Younis, offence under Section 302 RPC was also

added and upon receiving the report from the CFSL, Chandigarh,

a supplementary challan too was presented before the trial Court.

This is in nutshell the prosecution story".

4 On presentation of challan, the trial Court took cognizance and

vide its order dated 22.12.2017 framed charges against all the accused

persons for offences under Sections 302/307/458/436/120-B/511/201

RPC and 7/27 Arms Act. The prosecution was directed to lead

evidence. Up to the date, the application for bail was moved before

the trial Court, the prosecution had examined 16 witnesses and two

had been dropped. There is a total of 54 witnesses, proposed to be

examined by the prosecution in the instant case. After the dismissal of

bail application by the trial Court vide its order dated 19.03.2020 till

the matter was heard by this Court, the prosecution had examined 40

witnesses. Only 14 witnesses which of course includes injured Kikker

Singh are yet to be examined.

5 It is also relevant to note that two accused who had

accomplished the attack on the Police Picket and injured and killed

one SPO and injured another, are in jail as under trials and have not

moved an application for bail before the trial court, nor they are

before me seeking such concession. Out of the four accused, who had 7 Bail App 194/2020

applied before the trial court, the two i.e accused Bashir Ahmed and

Altaf Hussain have been granted bail by the trial Court in terms of its

order dated 19.03.2020, whereas bail plea of petitioners herein has

been rejected.

6 Against the aforesaid backdrop, the petitioners claim that their

role in the crime as ascribed to them by the prosecution is in no

manner more than the accused Bashir Ahmed and Altaf Hussain who

have been let off on bail by the trial Court and, therefore, the trial

Court, while rejecting their bail application, has applied two different

yardsticks to the similarly situated cases. It is submitted that as per the

persecution story, the occurrence has been done by the two persons i.e

Accused Akhtar Hussain and Showket Ali. Both are in the jail and

have advisedly not applied for bail. So far as the petitioners and

accused Bashir and Altaf are concerned, they have been ascribed a

peripheral role in the occurrence and in the absence of any material on

record, to demonstrate that there was a conspiracy hatched by all the

six accused and in furtherance whereof, the police picket was attacked

by Akhtar Hussain and Showket Ali, no offence can be said to have

been proved against the petitioners. It is the further argument of

learned counsel for the petitioners that going by the statements of 40

witnesses recorded so far during the trial, it is now a foregone

conclusion that there is no likelihood of the petitioners being

convicted in the trial. The prosecution witnesses have not supported 8 Bail App 194/2020

the prosecution version and in that view of the matter, keeping the

petitioners languishing in jail would be a travesty of justice.

7 Mr. Hashmi, learned counsel for the petitioners took me to

statements of some of the important witnesses recorded during trial

and submitted that having regard to the nature of evidence that has

come on record, it cannot, by any stretching of reasoning, be said that

the petitioners were party to a conspiracy hatched by all the accused to

accomplish a fatal attack on the police picket Tanta.

8 Per contra, Mr. Sunil Malhotra, learned counsel representing

the respondents would submit that the disclosure statements made by

the petitioners and the consequent recovery of arms and ammunition

made on their identification would leave no manner of doubt with

regard to the involvement of the petitioners in the horrendous crime

committed by them in association with other four accused. It is

submitted that petitioner Abdul Rashid is involved in many militancy

related activities and it was in pursuance of a conspiracy hatched by

him along with other militants, and accused Showkat Ali, a Madrasa

Teacher, the attack on the police picket was accomplished on the

intervening night of 7/8th May,2017. In the said attack, SPO Kikker

Singh was seriously injured, whereas SPO Mohd Younis succumbed

to injuries during his treatment at Jammu. It is further submitted by

Mr. Malhotra that it is not true that the prosecution witnesses, whose

statements have been recorded during the trial, have not supported the

prosecution. It is further submitted that father of SPO Mohd Younis, 9 Bail App 194/2020

namely Mohd Rafiq has supported the prosecution version. Mohd

Rafiq, who had remained with his son deceased SPO Mohd Younis

during his treatment, was told by Mohd Younis the name of both the

accused, who had attacked the police picket. It is argued that the bail

plea of the petitioners does not deserve to be considered at this stage,

more particularly when the statement of one very important witness

i.e injured Kikker Singh is yet to be recorded. Learned counsel also

took a plea that without there being any change of circumstances, after

the dismissal of their bail application by the trial Court, the petitioners

are not entitled to file the successive bail application before this Court,

for, the jurisdiction of this Court and the trial Court in the matter of

grant of bail is concurrent.

9 Having heard learned counsel for the parties and perused the

record, I am of the view that considering the stage at which the trial

has reached and the nature of evidence that has come on record and

that which is yet to be recorded before the trial Court, the petitioners

are not entitled to bail at this stage.

10 It is true that out of the 40 witnesses recorded, many have not

supported the prosecution case and even some of them have turned

hostile or given up by the prosecution. However, the fact remains that

some of the important witnesses like the injured Kikker Singh are yet

to be examined. Out of the total 54 witnesses cited by the prosecution,

as submitted by learned counsel for the parties, 40 witnesses have

already been examined. That means, the trial is virtually nearing its 10 Bail App 194/2020

completion. At this stage, evaluating the evidence for the purpose of

considering the question of bail to the petitioners, is neither

permissible nor advisable. The petitioners have been roped in the case

by the prosecution on the basis of conspiracy theory and as is well

settled, the conspiracy is not hatched in the public view or in the

presence of witnesses, but has to be inferred from the circumstances.

It is without any doubt that the circumstances proving the conspiracy

are require to be established by the prosecution by leading sterling

evidence and proved beyond reasonable doubt. In this regard, a view

is required to be taken by the trial Court after considering whole

gamut of evidence, oral as well as circumstantial. While considering

whether bail should be granted in a particular case or not, the Court

should avoid consideration of details of evidence as it is not a relevant

consideration. While it is necessary to look for a prima facie case, but

a detailed exploration of the merits of the case ought to be avoided. I

have deliberately not discussed the statements of the witnesses

recorded so far as doing so, may expose the parties to prejudice when

the matter is finally considered by the trial Court.

11 In the instant case, the prosecution story as it goes makes out

the offences alleged against the petitioners in the aforesaid FIR. The

charges in the instant case were framed as far back as on 22.12.2017.

Neither the petitioners, nor any other accused have challenged the

charges framed against them and have gone for trial. It is true that

most of the witnesses in the instant case have been recorded and only 11 Bail App 194/2020

few are yet to be recorded. Since 40 out of 54 witnesses have already

been recorded, it would be appropriate to allow the trial Court to

record rest of the witnesses without any further waste of time so that

the trial is concluded at the earliest and final verdict in the matter is

passed. This would also inure to the benefit of the accused if they feel

that there is no evidence against them and that they are entitled to

acquittal. Without delving much on the issue and borrowing the

reasoning given by the trial Court, I am not inclined to accept the bail

plea of the petitioners. The contention of learned counsel for the

petitioners that two other accused, who have been ascribed similar

role in the alleged crime, have already been let off on bail by the trial

Court and, therefore, on parity, the petitioners are also entitled to be

admitted to bail is totally misconceived and deserves to be taken note

of only for the purpose of rejection. The trial Court having considered

the evidence recorded before it and being, prima facie, of the view

that the role ascribed to the other two accused, who were let off on

bail by the trial Court, was far less serious than the petitioners herein,

granted bail to them. The case of the petitioners and the case of the

other two accused, who were released on bail by the trial Court is

quite dissimilar looking to the role played by them in the alleged

crime. It is well settled that simply because the co-accused has been

admitted to bail is no ground to claim bail by the other accused. It

depends upon the facts and circumstances of each case.

                                     12                      Bail App 194/2020




12     Having given my thoughtful consideration to all aspects of the

matter in the light of submissions made by learned counsel appearing

for the parties, I am of the view that the petitioners have not been able

to make out a case for grant of bail, in the heinous offences they are

charged with at this stage. Accordingly, this application is found to be

without merit and is, accordingly, dismissed. However, the trial Court

is requested to expedite the trial by recording the remaining witnesses

and conclude the same as early as possible so that the petitioners, who

are under trial prisoners are served justice at the earliest.

(SANJEEV KUMAR) JUDGE Jammu 04.08.2021 "Sanjeev, PS"

                Whether the order is speaking:         Yes/No
                Whether the order is reportable:       Yes/No