STATE OF J&K Vs. MUSHTAQ AHMAD WANI

JUDGEMENT

(1.) APPLICANT - - State, seeks condonation of delay in filing the Acquittal Appeal against the judgment of acquittal dated 16 -6 -2009 recorded by Sessions Judge, Kupwara in case titled State v. Mushtaq Ahmad Wani in FIR No. 250/ 2003, registered with Police Station, Kupwara under Section 302 RPC read with Sections 7/27 Arms Act.

(2.) THE application is edificed on the ground that after the judgment proposed to be impugned in the acquittal appeal was rendered, requisite steps were taken for obtaining certified copy of the judgment; that though the certified copy of the judgment was made available on the day it was announced, it took the authorities in the Law Department a few months to examine the judgment as also the record of the case. It is pleaded that the sanction for filing the acquittal appeal was accorded vide Government Order No. 2342 -LD(Acq) of 2009 dated 23.10.2009 and after taking necessary steps and completing the departmental formalities, the memo of appeal was prepared and filed on 24 -10 -2009. The sanction and procedural formalities are said to have caused delay of 79 days and prevented the Applicant/ State from filing the acquittal appeal within time prescribed. The application is supported by duly sworn affidavit. Certified copy of the judgment dated 16 -6 -2009 is appended with the Memo of Appeal.

(3.) FROM perusal of available record, it transpires that on 3 -10 -2003, Shri Ghulam Hassan Wani R/o Duni Wari, Lolab lodged a written report with Police Station, Kupwara, alleging therein that on 03 -10 -2003, S/Shri Riaz Ahmad Sheikh S/o Gani Sheikh R/o Duni Wari and Mushtaq Ahmad Wani R/o Madmadow, Lolab shot dead Tanveer Ahmad Khan, a surrendered militant working with the Armed Forces and that the assailants had also laid their arms before the security forces and were working for the Army. The report led to registration of case FIR No. 250/ 2003 under Section 302 RPC read with Sections 7/27 Arms Act at Police Station, Kupwara. One of the accused named in the FIR, Riaz Ahmad Sheikh was killed in an encounter between the Security Forces and militants on 16 -12 -2003. After usual investigation, formal charge sheet alleging commission of offence punishable under Section 302 RPC read with Sections 7/27 Arms Act was presented against non -applicant/ respondent in the Court of Judicial Magistrate, Kupwara on 9 -7 -2004. The accused was formally charged of the offence alleged in the charge sheet on 15 -3 -2005. The prosecution proposed to bring home guilt to the accused on the strength of testimony of five witnesses to the occurrence namely; Abdul Khaliq Wani, Ghulam Hassan Peer, Zia -ud -din Peer, Mst. Gulshan Bano and Ghulam Hassan Wani. The prosecution also expected to find support from testimony of Constable Ghulam Mohi -ud -din and Constable Abdul Khaliq/witnesses to the disclosure Memo. The prosecution in all examined 11 witnesses to prove its case. Three of the prosecution witnesses namely; Dr. Bashir Ahmad, Shakeel Ahmad, Sub Inspector and Feroz Ahmad, Inspector were not examined. None of the five witnesses to the occurrence connected the accused/respondent, Mushtaq Ahmad Wani with the alleged occurrence. The prosecution witnesses including PW Gulshan Bano w/o of the deceased and her father PW Ghulam Hassan deposed that Riaz Ahmed Sheikh S/o Gani Sheikh R/o Duni Wari, Lolab (deceased accused) had shot dead deceased, Tanveer Ahmad Khan. The prosecution witnesses have even denied that the accused/respondent was accompanying said Riaz Ahmed Sheikh when the later opened fire on deceased Tanveer Ahmad Khan.