Jamshed Khan vs State of U.P.

Kundan Singh, J.—All the above noted appeals have been filed against the judgment and order dated 1181995 of the Sessions Judge, Saharanpur, in respect of an incident which took place on 3091989 at about 8.00 a.m. on a road in Mohalla Pathanpura, Police Station Deoband, district Saharanpur in which four persons lost their lives and two persons sustained injuries. All the appeals have been connected by order dated 11101995, Muufait appellant has been granted bail by this Court on 2181995 while Sultan and Ismail have been refused the facility of bail by Hon''ble R. N. Ray, J. on 2231995. Hon''ble G. S. N. Tripathi, J., released the matter and directed the papers to be laid before the Hon''ble the Chief Justice for nominating another Judge for disposing of these matters and this is how these appeals have come up before me in pursuance of the order, dated 1521996.

Sri A. D. Giri, learned senior counsel appearing for the appellants, at the out set submitted that the Supreme Court has laid down principles in a very recent case for grant of bail to the accused who are behind the bars in the case of TAD A where the detenus except of Bombay blast case and hard core criminals are in Jail for more than 5 years and their trial is not likely to be concluded within six months can be released on bail. The appellants in this case have been in Jail for more than six years and now the appeals of the year 1979 to 1980 are being taken up for hearing. Seeing the huge pendency of criminal appeals, paucity of Judges and the rate of disposal of the appeals par year, these appeals are not likely to come up for hearing for next 20 years. Munfait Ali, Yasin and Ismail are old persons of 72, 75 and 72 years, respectively. Yasin who was 70 years old has died in Jail. It is difficult to say which of the accusedappellants will survive by the time these appeals come up for final disposal.

Besides above submissions, the contention of the learned counsel for the appellants was fourfold, firstly, there was serious dispute about the time of incident and authenticity of the FIR. According to him, neither the incident took place at the time alleged by the prosecution nor the FIR was lodged at the time when it is said to have been lodged. If the incident had taken place at 8.00 a.m., in no circumstance the FIR could have been lodged at 8.45 a.m. inasmuch as Mahmood Khan (PW 1) took his son in an injured condition on a rickshaw to Hospital, being at a distance of 28 kilometres from the place of incident but his son died when he was being examined by the Doctor at 8.30a.m. Then he went to market where he got the FIR typed oat and then lodged it at the police station at 8.45 a.m. on the same day, particularly when another son named Haud Khan had already died on the spot. It is also doubtful whether PW 1 had taken his son to Hospital. It is also doubtful whether the case was registered as Crime No. 514 or 525. Even according to the prosecution, the complainant party had gone to take fodder and to work in their fields. In the incident four persons last their lives, it is surprising enough that large intestines of all the four deceased persons were found full of faecal matter and their stomach were found empty, even none of them took food (sic). Dr. G. P. Tanoli (PW 5) stated that the deceased had not (sic) before their death between 3.00 and 4.00 a.m. on 29/3091989 was more probable. The dead bodies were sent to mortuary for postmortem examination in the noon of 3091989 but detained at police lines Saharanpur from 6.00 p.m. till next day only for the preparation of the FIR and other papers which were not actually ready by that time, when the FIR and other papers were prepared after cooking up a false case and they were sent to police then the deadbodies alongwith a copy of the FIR and other papers were sent to mortuary next day. The papers of the case diary were sent to the great delay by the Investigating Officer to higher officials for which the Investigating Officer was warned by the Circle Officer. As such the incident does not appear to have taken place at the time alleged by the prosecution nor the FIR was lodged at the time as alleged by the prosecution and hence no sanctity can be attached to the FIR.

Secondly, the presence of witnesses at the scene of occurrence is highly doubtful inasmuch as Mahmood Khan (PW 1) is said to have taken his son to Hospital for medical examination but Mahmood Khan''s name does not figure in the memo sent by the Hospital to the police station regarding the person who brought Saud Khan to Hospital. It is also Alleged that Mahmood Khan took his son from the place of occurrence to Hospital on a rickshaw but his clothes were not stained with blood of Saud Khan, which was oozing from his injuries. Had he been present at the scene of occurrence, he must not have escaped unhurt from the six firearms and six palkalees of the assailants, particularly when Mahmood Khan and his son Badood Khan were main target of the accused but they did not suffer even a single scratch in the incident. Part of the testimony of PW 1 is false regarding the fact that Ilyas PW 3 was not his surety in the murder case of Mussaraf and his father married once in Nanauta and Rashida came to his house with step mother and that the place of occurrence was a metalled road of Kharanja. It is also doubtful as to whether Mashooq Ali (PW 2) sustained any injury in the incident and he was medically examined at the Nursing Home or District Hospital Muzaffarnagar or at Saharanpur.

Presence of PW 3 Ilyas at the place of occurrence was also doubtful at the place of occurrence as he was interrogated by the Investigating Officer after 18 days of the incident and he was going to his tea shop which is not in his name but in the name of Mustaqeem, his son and he was passing through a longer route which was not believable.

Thirdly, the participation of some of the accused persons is highly doubtful inasmuch as some of the accused persons had not participated in the present incident but they have been roped in the present case due to enmity. Munfait Khan has pleaded alibi and it is fully established that he remained present through out in the election of Smt. Chamni Devi at Kailashpur from 7.30 a.m. to 4.30 p.m. on the day of occurrence, Akram and Imamullah had no community interest in the commission of crime and that the accused Yamin Khan, Munfait Khan, Yasin Khan and Ismail were too old for participating in the incident and they were between 62 and 75 years of age and out of them one died in Jail during the course of trial.

Fourthly Munfait Ali one of the accused has been granted bail on merit but not on account of any special circumstance. The case of other appellants is exactly identical, hence other appellants are also entitled to bail on the ground of parity. Though two appellants have been refused bail by this Court but it is wellsettled rule of law that parity is claimed for granting the bail and not for refusing the facility of bail.

Sri Viresh Misra, learned counsel for the complainant, contended that it is broad day light incident in which three persons died on the spot and one died subsequently in the Hospital and two persons also sustained injuries. The prosecution has proved its case by a reliable evidence and the court below has found the appellants guilty of the offences charged with. He has moved an application in one of the appeals for expediting the hearing of the appeal.

Nothing new was argued by the learned A. G. A. in opposition of the prayer for bail.

I have considered the respective submissions of the learned counsel for the parties made at the bar and perused the judgment under appeal. Of course, an application is alleged to have been moved by Sri Viresh Misra for expediting the hearing of the appeals but that can be decided by the Hon''ble the Chief Justice alone, am doubtful whether the hearing of the appeals of 1995 would be expedited at this stage and if so, it is also doubtful whether those appeals can be heard and disposed of within next few years. As all the appeals are connected and arise out of one common judgment, hence the prayer for bail in all the appeals is being disposed of by this common order.

Criminal Appeal Nos. 1567 of 1995, 1578 of 1995, 1579 of 1995 and 1651 of 1995 have not yet been admitted. Let them be admitted and notice issued to the opposite parties. However, in the facts and circumstances noticed above, without prejudice to the rights of any party and also without expressing any opinion on the merits of the case. I direct the appellants Jamshed, Yasin, Akram, Dilawar, Nifasat alias Naffo, Imamullah, Irshad and Anwar to be released on bail on each of them executing a'' personal bond and furnishing two sureties, each in the like amount, to the satisfaction of the Chief Judicial Magistrate, Saharanpur. Realisation of fine will also remain stayed.

The prayer for bail on behalf of lamail and Saltan has already been refused by Hon''ble R. N. Ray, J. and they have moved fresh bail application, which can be considered by the same Hon''bla Judge under the rules of the Court, Office is directed to list the bail applications of Sultan and Ismail before the appropriate Bench.

Decided accordingly.