Ghulam Qadir Mir vs UT Of J&K

Sanjay Dhar, J

1) The petitioner has challenged the challan emanating from FIR No.22/2012 for offences under Section 420, 467, 468, 471, 120-B RPC read with Section 5(2) Prevention of Corruption Act.

2) As per the contents of the FIR, which has resulted in filing of the impugned challan, the respondent conducted a preliminary enquiry in respect of a complaint lodged by the Secretary, J&K Muslim Wakaf Board. During the enquiry it was found that one Mukhtar Ahmad Zargar adopted son of Ghulam Nabi Zargar had donated a stretch of land measuring 06 kanals and 08 marlas situated at Rangpora Zakura to Holy Shrine of Hazratbal and Khankahi Moula in the ratio of 04 kanals 4½ marlas and 02 kanals 3 ½ marlas respectively. It was further revealed that management of the Muslim Auqaf Trust had leased out this piece of land to one Ishtiyaq Ahmad Ashai S/o Mohammad Ashraf Ashai R/o Aali Kadal, Srinagar, vide its decision dated 26.10.2002, but instead of execution of a lease deed with the aforenamed Ishtiyaq Ahmad Ashai, the stretch of land in question was sold to him on the basis of a forged order bearing No.ERMAT/360-64 dated 05.08.2003, issued under the forged signature of Late Shri Gh. Nabi Kochak, the then Vice Chairman of the Trust. In the FIR it is further alleged that Shri Ishtiyaq Ahmad Ashai, in pursuance of a criminal conspiracy hatched with other concerned, fabricated the sale documents to the detriment of the Muslim Auqaf Trust and, prima facie, offences under Section 420, 467, 468, 471, 120-B RPC were disclosed.

3) After investigation of the case, a charge sheet came to be laid by respondent against six accused, namely, Abdul Rashid Wani (Collector, Revenue Estates/Assistant Secretary, Muslim Auqaf Trust), Mohammad Farooq Hakak @ Jan, Ghulam Qadir Mir (the petitioner herein), Mohammad Lateef Misgar, Ali Mohammad Bhat (Land Revenue Officer, Muslim Auqaf Trust) and Ghulam Ahmad Hajam. Accused Ali Mohammad Bhat and Ghulam Ahmad Hajam are stated to have expired.

4) The allegation against the present petitioner is that he had managed an application on behalf of Ishfaq Ahmad Ashai for purchase of the land in question offering a rate of Rs.2.60 lacs per kanal. It is alleged that the said application in the name of Ashfaq Ahmad Ashai was made without his knowledge and actually had been prepared by the petitioner herein, which has been confirmed by the report of the FSL. The investigation has revealed that the petitioner, in connivance with the officials of the Wakaf Board i.e., accused Abdul Rashid Wani and Ali Mohammad Bhat, submitted the aforesaid application on behalf of Ishtiyaq Ahmad Ashai but mentioned the name of Ishfaq Ahmad Ashai in the said application. This, according to the investigation, paved way for forging of allotment order in respect of the land in question in favour of Ishtiyaq Ahmad Ashai.

5) I have heard learned counsel for the parties and perused the record of the case including the challan which has been filed before the trial court.

6) Without going into the allegations made in the charge sheet against the other accused and without dilating on the grounds of challenge which have been raised by the petitioner in this petition, it would be apt to notice certain startling gaps in the investigation which has been conducted by the respondent in the instant case.

7) From a perusal of the challan which includes the statements of the witnesses recorded under Section 161 of Cr. P. C, it is revealed that the investigating agency has neither questioned nor examined Shri Ishtiyaq Ahmad Ashai, the person in whose favour the order of allotment has been made, which is claimed to be forged. The Investigating Officer has not taken trouble to make any effort to summon Ishtiyaq Ahmad Ashai or to examine him. If it is the case of the prosecution that the fraud was committed in the name of Ishtiyaq Ahmad Ashai without his knowledge, then he is certainly a very important witness in the case and in case the forged allotment was made with his knowledge and connivance, then he has to be impleaded as an accused in the challan. The investigating agency has conveniently ignored this aspect of the matter without assigning any reason, much less a cogent reason.

8) Another aspect of the matter which has not been probed is relating to the identity of Ishfaq Ahmad Ashai. The probe agency has not investigated as to whether Ishtiyaq Ahmad Ashai and Ishfaq Ahmad Ashai are one and the same person or they are two different persons or else whether the person by the name of Ishfaq Ahmad Ashai does not exist at all. The challan in this regard is silent. and the material annexed to the charge sheet also does not suggest anything in this regard.

9) For the foregoing reasons, the petition is disposed with a direction to the investigating agency to conduct further investigation in the matter in the light of the observations made hereinbefore and thereafter to file a supplementary report before the learned trial court, preferably within a period of two months from the date a copy of this order is provided to the respondent. Till such time the supplementary report is submitted by the respondent before the trial court, the proceedings in the impugned challan before the trial court shall remain stayed. It shall be open to the petitioner to approach this Court afresh, if he so desires, after the filing of the supplementary report.

10) Copy of the order be sent to the learned trial court for information and compliance.