State of J & K vs Mushtaq Ahmad Wani

Applicant State, seeks condonation of delay in filing the Acquittal Appeal against the judgment of acquittal dated 1662009 recorded by

Sessions Judge, Kupwara in case titled State Vs. Mushtaq Ahmad Wani in FIR No. 250/2003, registered with Police Station, Kupwara under

Section 302 RFC read with Sections 7/27 Arms Act.

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. 2342LD(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 241020p9. The sanction and

procedural formalities are said to havecaused 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 1662009 is appended with the Memo of

Appeal.

Heard and considered.

For just disposal of the condonation of delay application, it would be both relevant and appropriate to have a closer look at the Memo of

appeal and the background facts.

From perusal of available record, it transpires that on 3102003, Shri Ghulam Hassan Wani R/o Duni Wari, Lolab lodged a written report with

Police Station, Kupwara, alleging therein that on 03102003, 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 RFC read with Sections 7/27 Arms Act at Policy 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 16122003. After usual investigation, formal charge sheet alleging commission

of offence punishable under Section 302 RFC read with Sections 7/27 Arms Act was presented against nonapplicant/respondent in the Court of

Judicial Magistrate, Kupwara on 972004. The accused was formally charged of the offence alleged in the charge sheet on 1532005. 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, Ziauddin Peer, Mst. Gulshan Bano and Ghulam Hassan Wani. The prosecution also expected to find support from

testimony of Constable Ghulam Mohiuddin 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, Tan veer 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 Tan veer Ahmad Khan.

The learned trial Judge for convincing reason given in the judgment did not believe the disclosure statement (EXPW 6/1) and the recovery

claimed to have been made pursuant thereto. The prosecution having failed to bring any evidence connecting the accused with the offences, of

which the accused/respondent was charged, acquitted the accused vide judgment against which the appeal is proposed to be filed. Having regard

to the evidence on the file, there is no scope for disagreement with the learned trial Judge, that the prosecution had failed to prove its case against

the accused.

So viewed, appeal being without any merit and no cogent ground having been pleaded to assail and question the"" judgment of acquittal, it would

serve no purpose to condone the delay in filing the appeal. The appeal being meritless, condonation of delay shall result in sheer wastage of time

and inefficient use of time resources of the Court as well as parties.

For the reasons discussed above, the condonation of delay application is dismissed. The fate of appeal can be no different. The appeal is,

accordingly, dismissed.