Nazir Ahmad Wani and Others vs State and Others

Sunil Hali, J.—One Ayaz Ahmed Wani, (here-in-after referred to as the deceased) was taken to police custody by the Incharge Police

Station Banihal namely Sonoullah Naik, on 3rd of Nov'95, on the pretext that he is to be recruited as Constable in the Police department. When

the deceased did not return to his home, his father Abdul Rashid Wani, approached the police officials concerned including the then Addl. SP,

Ramban Sh. Shafqat Ali Watali, for release of his son who was lodged in the lock up. The deceased thereafter was shifted to police station,

Ramban, where his condition became critical on account of the injuries alleged to have been inflicted upon him in police station, Ramban. He was

then taken to Emergency Hospital, Ramban, from where he was shifted to Government Medical College, Jammu, where he is stated to have

succumbed to injuries on 10th of Nov'95.

It was alleged by the complainant-father of the deceased that as a result of physical torture of his son in police station Ramban by Shafqat Ali

Watali, then, Addl. SP Ramban,Sonauulah Naik, SHO, Police Station, Banihal, Adbdul Qayoom Mirza, SI, Police Station, Ramban, Nazir

Ahmed Ward, Mohd Rafiq Naik and Mohd Ashraft @ Gazi, both surrendered militants, the deceased died. An enquiry was conducted by the SP

Ramban and on the basis the said enquiry, FIR No. 65/98 came to be registered at Police Station, Ramban, u/s 302/34 RPC.

The facts of the case as are revealed from the report u/s 173 Cr.P.C, as also on the basis of the evidence are as under:

a/ That the deceased was taken into custody by the then Incharge Police Station, Banihal, Sh. Sonaullah Naik on 3rd of Nov'95;

b/ That the deceased remained under police custody until 8th of Nov'95 and thereafter was brought to Government Medical College, Jammu for

treatment on account of the injuries which he sufferred in the police Station, Ramban.

c/ That it was during his custody in police station, Ramban, that the deceased seems to have been tortured as a result of which he sufferred multiple

injuries which ultimately resulted in his death on 10th of Nov'95.

d/ That the cause of death is stated to be due to haemorrhage and shock as a result of upper Gastro-Intestinal bleed, which is possible by physical

torture also;

The involvement of present petitioners is based upon what was narrated by the deceased to his father. In the report u/s 173 Cr.P.C, it is no

where revealed as to what role has been played by the petitioners who admittedly are not the officials of the police department and could not be

said to be involved in interrogation of the deceased or the investigation of the case. The only reference which has been made against one of the

petitioners' is by Abdul Rashid Kohstani, who states that petitioner No. 1 was present in Dak Bungalow Banihal along with the Tehsildar and SHO

concerned. The other reference made against him that he was travelling in the Maruti car with Addl. SP, Shri Watali. Regarding other petitioners, it

is stated that they are surrendered militants.

It is admitted fact that the role of present petitioners in inflicting injuries on the person of the deceased or torturing him has not been proved by

any legal evidence. The prosecution seems to be building the case against the present petitioner-applicants only on the basis of their background as

surrendered militants and presence of one of them in Dak Bungalow Banihal along with the Tehsildar and SHO concerned and also, on the basis

that he was found travelling in a Maruti car along with the then Addl. SP Sh. Shafqat Watali.

The case seems to be based only on circumstantial evidence as there is no eye witness to the alleged crime. In such a case, not only the

culpability or mensra of the accused should be prima facie established, the court has also to consider the question as to whether the circumstantial

evidence is such in which the link in the chain is complete. The only circumstances which is said to be against the petitioners, as indicated above, is

that one of them was present in Dak Bungalow Banihal and other two are surrendered militants. The theory of criminal conspiracy which is sought

to be introduced in the case is also not forthcoming either from the report u/s 173 or on the basis of statement made by any of the witnesses'

including Abdul Rashid Koustani on whose statement, the learned trial court has rejected the bail application of the petitioners.

The considerations which normally weigh with the court in the matter of granting bail in non bailable offences basically related to the nature and

seriousness of the offence; the character of the evidence; the circumstances which are peculiar to the accused; a reasonable possibility of the

presence of the accused not being secured at the trial; reasonable apprehension of the witnesses being tampered with and the larger interest of the

public or the State and some other similar factors which may be relevant in the facts and circumstances of the case.

Applying the above principles in the present case, it would be revealed that as on today, there is no reasonable ground to believe that the

present petitioners are alleged to have committed the crime. I say so because admittedly, the present petitioners are not the police officials who are

entrusted with the job of investigation and there are no circumstances under which they could have influenced the course of investigation which led

to the alleged torturing of the deceased. It is neither revealed from the record nor any witness has stated so. Unless and until, there is a specific

evidence which hints towards the involvement of the present petitioners in torturing the deceased, their involvement in the case perse cannot be

presumed.

As indicated above, the learned trial court while rejecting the bail application, has placed reliance on the statement of Addul Rashid Quastani.

As already discussed here-in-above, the statement of the said witness does not, in any way, pin point the involvement of the petitioners except for

the fact that petitioner No. 1 was present in Dak Bungalow along with the Tehsildar and SHO and was also seen travelling in a Maruti car along

with the then Addl. SP, Shri Watali. It is surprising to note that said Shri Shafqat Watali, then Addl. SP, who was also approached by the father of

the deceased, has been exonerated by the investigating agency. His role in the arrest of the deceased and investigation was apparent. However,

without dilating on this issue as this is not the subject matter of the controversy in the case in hand, for the reasons stated above, I allow the present

application.

The petitioners, accordingly, are allowed bail for a period of six months subject to furnishing of bail bonds to the tune of Rs. 25000/- each with

one surety each of the like amount to the satisfaction of learned Sessions Judge, Ramban. The petitioners, however, will not leave the jurisdiction of

Sessions Judge, Ramban, without prior permission from the said court and they will not tamper the evidence or influence the witnesses in any

manner. Meanwhile, the prosecution will be at liberty to produce the remaining witnesses more particularly the police officers who investigated the

case. However, in case during the examination of the remaining witnesses, if any material comes on record which points towards the involvement of

the petitioners in the crime, the prosecution is well within its rights to file the application for cancellation of their bail before the court below.

It is further observed that in case, sufficient evidence to implicate the petitioners is not produced during the above period, the petitioners will

also be at liberty to file application for extension of bail. In case, any such application is filed, the trial court will consider the same and pass

appropriate orders uninfluenced by any observation made above, keeping in view the facts and circumstances of the case. Disposed of

accordingly.