Jammu & Kashmir High Court
State Of J&K vs Shabir Ahmed S/O Ghulam Mohd. Keen on 12 August, 2025
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Sr. No. 39
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Reserved on:- 07.08.2025
Pronounced on:- 12.08.2025
CRAA No. 95/2011
IA No. 25/2014
State of J&K. .... Petitioner/Appellant(s)
Through:- Mr. Raman Sharma, AAG with
Ms. Saliqa Sheikh, Advocate
V/s
Shabir Ahmed S/o Ghulam Mohd. Keen .....Respondent(s)
R/o Massri, Tehsil Doda.
Through:- Mr. Masood Ahmed, Advocate vice
Mr. Ashwani Gupta, Advocate.
CORAM: HON'BLE MR. JUSTICESANJEEV KUMAR, JUDGE
HON'BLE MR. JUSTICE SANJAY PARIHAR, JUDGE
JUDGMENT
(Per:- Sanjay Parihar-J)
1. In this acquittal appeal challenge is thrown to Judgment dated
03.05.2011 drawn by Additional Session Judge, Doda (hereinafter
referred to as the "trial Court") in case titled "State Vs. Shabir
Ahmed", in terms, whereof, the respondent who was facing trial for
offence under Section 302/34 RPC and 7/27 Arms Act on the strength
of case FIR No. 99/03 of Police Station, Bhaderwah has been acquitted
of the charge.
2. Precisely the case set up in this appeal happened to be that the
judgment so drawn is against facts and law as the trial Court has failed
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in appreciating the testimonies of PW-1 Mst. Khalida, PW-3 Nazia
Bano, PW-6 Nazira Begum, who had fully supported the occurrence in
asmuch as identified the respondent as the accused. So much so, the
case was also supported by PW-11 Bashir Ahmed Mir. However, the
trial Judge has not appreciated the evidence in its proper perspective.
Thus, by rendering the judgment of acquittal, has caused miscarriage
of justice leading to acquittal being based upon perverse finding. That
the judgment needs to be upset as the prosecution had successfully
proved its case, but the trial Court has not appreciated the documentary
and oral evidence.
3. Briefly stated the case of the prosecution happened to be that it was on
07.10.2003 when Police Station Bhaderwah received information that
around three to four militants under the supervision of respondent No.1
an active militant in Pranu area of Tehsil Bhaderwah called deceased
Mohd. Yousuf, village „Headman‟ from his home on the pretext of
providing drinking water. Thereafter, they took him along and later
fired upon him with illegal weapons thereby, killing him on spot.
Thereafter, the respondent and other militants taking advantage of
darkness, absconded towards jungles. On that basis case FIR No.
99/2003 under Sections 302/34 RPC and 7/27 Arms Act was registered
and investigated by PW-SI Bashir Ahmed. The assailants could not be
traced. Thus, investigation proceeded in their absence, in which the
dead body of the deceased was taken control of by the police.
According to prosecution, after collection of postmortem report and
further investigation, a charge-sheet was filed in absence of accused.
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During investigation it concluded that the incident was perpetrated by
respondent-Shabir Ahmed in active complicity with one Bashir
Hussain, who were armed with weapons and had killed the deceased
village „Headman‟, which was witnessed by PW Nazia Akhter,
daughter of deceased, PW Nusrat Bano and widow of deceased PW
Nazira Begum. Since the assailants after committing the crime had
absconded, who could not be located, it was only after respondent had
surrendered before the Army that he could be arrested and brought to
justice. Chargesheet initially was laid against him in his absence and
subsequently, he joined the trial. Accused/respondent No. 1 was
formerly charged on 08.02.2006 for offence under Sections 302/34
RPC, 7/27 A. Act, in which he pleaded not guilty, thus, claimed to be
tried.
4. It was relevant to state here that respondent No. 2-Bashir Ahmed at the
time of acquittal of respondent No. 1 still was absconded and during
the currency of the appeal appears to have been arrested in pursuance
to warrant under Section 512 Cr.P.C and produced before the trial
Court. He had laid a separate motion before this Court for grant of bail,
which was dismissed as withdrawn. Inasmuch as, further motion was
laid for his deletion on 08.10.2013 from the array of the parties
because of having been arrested and produced before the trial Court.
So, respondent No. 2 was deleted and appeal in terms of submissions
made by the appellant was said to survive qua respondent No. 1only.
5. We have gone through the judgment of the trial Court and perused the
evidence and in our considered view, the appellant has placed reliance
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upon the testimony of PW Mst. Nusrat Bano, Nazia Bano and Nazira
Begum. However, we have minutely perused their statements and find
that, though in the FIR, it was recorded that the killing of the deceased
was perpetrated by respondent No. 1, but despite the incident having
taken place on 06.10.2003 at 19:30 hours, these three witnesses have
come forward to narrate the incident for first time only on 07.12.2003
i.e. after around two months of the date of incident. The trial court had
taken note of the submission made by the defence that the testimonies
of these three witnesses need to be discarded because of their belated
narration of the incident, seeking implication of respondent in the
incident dated 06.10.2003 and delay occasioned thereof until
07.12.2003 has not been explained.
6. The Investigating Officer visited the incident site on the very next day
of the occurrence; nowhere in the case diaries there is even a whisper
as to why there was delayed examination of these three witnesses. The
trial Court has taken note of the case diaries and even recorded that
until 17.12.2003, it was not known as to who has committed the
incident, rather the police agency was making all out efforts to
ascertain and identify the assailants. PW Mst. Nazia, categorically is
found narrating that she knew respondent from the very beginning,
who had joined militancy. She claimed that accused fired bullets in
dark and at the time of incident, she was at the upper floor of her
house. After hearing the noise of gunshot, she came down. By that
time, the assailants had fled away. PW-Nussrat Bano is found narrating
that she saw her father dead and on enquiring from her mother, she
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was told that a day prior to the incident, her father was shot by the
accused and that she told her that accused had fired upon her father.
Their versions have not been relied upon by the trial Court and we
agree with this submission of the counsel for the respondent that none
of these two witnesses had identified the respondent No. 1 as the
assailant in the incident dated 06.10.2003.
7. PW Khalida Bano, another daughter of the deceased claimed that two
people came to their house asking for water and it was getting darker.
She further deposed that she knew accused prior to the incident,
though she did not know the co-accused. She also knew the father of
respondent No. 1 and admits that after accused/respondent No. 1 was
arrested by Army and police, they told her that they have caught the
killer of their father. Rather she admits that it all was confided by the
police and the Army to PW Nussrat Bano and from her, the witness
came to know that respondent No. 1 was the killer of her father. The
testimony of this witness appears to be on hearsay. PW-Nazira Begum
is the widow of the deceased though identified respondent No. 1 as the
person, who had come to her house on 06.10.2003 and asked for water
and she has also found narrating that her husband went along with
them, but in cross-examination admits that incident of killing of
deceased took place in the paddy fields, but when the deceased was
fired upon, she was not present there. Rather she was back home and
that her neighbourer-Faquar Din was rounded on suspicion.
8. According to trial Court, PW-Nazira Begum though had identified the
accused as the assailant, however, her testimony is full of improvement
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because the investigating officer is categorically found admitting that
on 06.12.2003 when he visited the scene of the crime, he was not told
by the witness about the complicity of accused/respondent No. 1,
rather on 07.12.2003, the police had called thirty-forty personnel of the
village so as to receive information as to who the assailants were.
However, they could not identify as to who assailant were though, it
was believed that the incident might have been perpetrated by the
militants, as police believed that since a militant group headed by the
respondent was active in the area where the killing of the deceased had
happened. So, they apprehended that the killing may have been
affected by the said group.
9. On going through the evidence, especially the narration of the family
members of the deceased including PW Nazira Begum, widow of the
deceased in the light of the testimony of investigating officer, right
from the day of incident until surrender of respondent before Army,
the investigation proceeded on the assumption that it was a militant
killing. However, neither the family of the deceased nor there was any
other witness or circumstance to have led the police to believe that the
occurrence had happened at the behest of respondent. It is nowhere
divulged in the prosecution case as to when the surrender of
respondent happened because the case proceeded on the assumption
that it was a militant killing and even the charge-sheet was filed in
absence of the accused, which goes on to show that it is only after the
respondent surrendered before the Army personnel before whom he
may have admitted his involvement in the incident of killing of
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deceased, when thereafter the family of the deceased were told by the
Army personnel that respondent is the killer of their bread earner. It is
not the case of the prosecution that respondent ever made any extra-
judicial confession before the Army authorities, which led them to
believe that the incident has happened because of the complicity of
respondent. Had that been the case, then may be the course of event
might have been different.
10. On going through the record as well on critical appraisal of the finding
of acquittal returned by trial Court, we see no reasons for our
interference in it. Certainly, the evidence, if any, against the
respondent is on hearsay, that has no evidentional value and the fact
that the witnesses on which the learned counsel for the appellant is
placing reliance, they have spoken about the complicity of the accused
after two months of the incident, without an iota of explanation for
such delay. This all goes on to show that the prosecution has proceeded
to implicate the respondent on mere assumptions and presumptions,
without any clinching evidence. The narration of PW-11 Bashir
Ahmed Mir SI too, is of no use for the appellant, as the trial court has
clearly dissected the narration of the said witness and has rightly
concluded that prosecution case of identifying the respondent as the
assailant on spot is outcome of due deliberation and consultation, so as
to cultivate a story against the respondent to be the perpetrator of the
crime. Admittedly, the deceased had been killed by gunshot, but the
actual culprit had neither been identified by the eye-witnesses due to
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darkness and probability of respondent being roped in after having
surrendered before the Army cannot be ruled out.
11. In light of the aforesaid discussion, we find no reasons to interfere
with the finding of acquittal recorded by the trial Court in favour of the
respondent. The appellant has also failed to show any material
warranting interference to the acquittal of the respondent.
Consequently, we see no merit in the instant appeal, which is,
accordingly, dismissed along with connected application by upholding
the impugned order of acquittal of the respondent dated 03.05.2011
passed by the trial Court.
(Sanjay Parihar) (Sanjeev Kumar)
Judge Judge
JAMMU
12.08.2025
Diksha
Whether the order is speaking? Yes
Whether the order is reportable? Yes
