Jammu & Kashmir High Court – Srinagar Bench
Ut Of J&K Through P/S Chandoosa vs Mushtaq Ahmed Bhat on 7 April, 2025
S. No. 5
Regular Cause List
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
CrlM No. 909/2024
In CrlA(AS) No. 23/2024
UT of J&K through P/S Chandoosa ...Appellant/Petitioner(s)
Through: Ms. Rahella Khan, Assisting Counsel
Vs.
Mushtaq Ahmed Bhat ...Respondent(s)
Through: Mr. Arshid Bashir, Advocate
CORAM:
HON'BLE MR JUSTICE RAJESH SEKHRI, JUDGE
ORDER
07.04.2025
1. Instant application is for leave to institute the acquittal appeal.
2. Having heard learned counsels for the parties I have carefully gone
through the impugned judgement.
3. Before a closer look at the grounds urged in the application, it shall be
apt to have an overview of the background facts, giving rise to present
case.
4. On 15.04.2005, Police Station, Chandoosa, received a source
information that about 8.00 PM, while one Abdul Rehman Lone after
offering Nimaz in a local Masjid, was on his way to his house, he was
fired upon by some unknown person. He was seriously injured and was
evacuated to Baramulla Hospital for treatment. On the receipt of said
information, FIR No. 11/2005 for offences under Sections 307 RPC and
7/27 Arms Act came to be registered and investigation came into
vogue. The investigation culminated in the presentation of final report
against the respondent for the aforesaid offences.
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CrlM No. 909/2024
In CrlA(AS) No. 23/2024
5. The respondent was charged by the Trial Court for offences under
Sections 307, 326, 201 RPC and 7/27 of the Arms Act, whereby he
pleaded innocence and claimed trial, prompting the trial court to ask for
the prosecution evidence.
6. The prosecution, in order to bring home guilt of the respondent,
managed to examine 5 witnesses out of 15 cited in the case and
pertinently out of 5 witnesses examined by the prosecution, two
witnesses; PWs Mohammad Maqbool Dar and Abdul Majeed Parra
turned hostile and two witnesses; PWs Naseema and Abdul Khaliq
Lone, are hearsay, as they deposed that they were informed by the
victim that he was fired upon by the respondent. In the circumstances,
the entire prosecution case hinges upon the testimonial potency of the
injured, Abdul Rehman Lone.
7. PW Abdul Rehman Lone has deposed in chief examination that about
three years back he was accompanied by Mohammad Maqbool Malik
and while he was on his way home, after offering prayer in the Masjid,
he was fired upon by the accused with a pistol. When accused fired the
first bullet, he started running and then accused fired second bullet,
which hit his leg, he fell down and thereafter, accused fired third bullet,
which hit his shoulder. On raising hue and cry, his niece, Naseema, and
his brother came to the spot, who shifted him to Baramulla Hospital. In
cross-examination, the injured has stated that though it was dark, he
recognized the accused because there was electricity in the village at the
time of occurrence.
8. Now, if statement of the victim is carefully glanced over, it is categoric
stand of the victim that he was thrice fired upon by the respondent.
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CrlM No. 909/2024
In CrlA(AS) No. 23/2024
However, as per the prosecution case, only 2 empties came to be
recovered during investigation. The prosecution has failed to examine
the Investigating Officer to explain this discrepancy. The victim also
stated that at the time of occurrence, his niece Naseema and his brother
came to the spot. However, PW Naseema is a hearsay witness and has
not supported the prosecution case.
9. Another aspect of the matter, which needs attention is that respondent,
inter alia, has been charged with the commission of offences under
Sections 307, 326 RPC. However, prosecution has failed to examine the
Medical Officer in a trial that lasted for about ten years.
10. In the circumstances, I do not find any illegality or impropriety in the
impugned judgement of acquittal recorded by the Trial Court and
persuaded to take a view different from the one taken by learned Trial
Court.
11. Having regard to aforesaid, the present application is dismissed and
leave to file appeal is declined. Resultantly, appeal is also dismissed.
12. Disposed of.
(RAJESH SEKHRI)
JUDGE
SRINAGAR
07.04.2025
Manzoor
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CrlM No. 909/2024
In CrlA(AS) No. 23/2024
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