Mohd.Khan vs State of J & K

Syed Bashiruddin, Judge.

Ghulam Mohammad Khan moved his petition u/s 491 Cr. P.C. to secure liberty of this son Mohd Ashraf Khan on allegation that he was

arrested on 09021991 from his home at Batmaloo, Srinagar by Security Forces who continued him under illegal detention all along. Petitioner

pursuant to communication of SSP CID CIKashmir (Annexure p1) visited JIC Jammu but failed to locate Mohd Ashraf there. He visited District

Jail Coimbtore (Tamil Nadu) but was disappointed not to find him there too. He also visited Kotbalwal Jail Jammu. JIC Srinagar and Airport

(Gogoland) Interrogation Centre at Srinagar but failed to trace him. Hence writ of Habeas Corpus to direct the respondents to produce his son

Mohd Ashraf Khan in court and show law and authority in the matter.

The respondents filed the ob jections/counter. The then Additional Chief Secretary Govt. of J&K (Incharge Home Department) as also Addl.

SP CID. CI Srinagar filed affidavits to refute that the said Mohd Ashraf Khan was ever arrested by the State or its agencies. The alleged arrest

and custody of Mohd Ashraf Khan is unequivocally refuted and denied by the State Govt. Regarding the communication AnnexurePl, heavily relied

on by petitioner, to show that Mohd Ashraf Khan was lodged in JIC Jammu. it is stated that the matter has gone in routine on typed proforma at

the behest of petitioner. It is not an admission on the part of State and its functionaries of having taken Mohd Ashraf Khan in custody. Petitioner in

his rejoinder has reiterated the position as in the Habeas Corpus petition. He has further alleged that Mohd Ashraf Khan was arrested on

09021991 by B.S.F with his lodgement in JlCJammu as evidenced by AnnexurePl, the communication of the then Additional DIG Police CID,

CIKashmir. The issuance of this letter (AnnexurePl) in routine is denied.

This court on 03121996 after examining the case and on hearing the parties passed the following order:

...The respondents State, has come with the definite stand that Shri Mohammad Ashraf Khan S/o Ghulam Mohd Khan R/o Batmaloo, Srinagar

has not been lodged in any JIC's named by the CID organisation at Srinagar/Jammu, so this becomes a case of custodial disappearance as

averments are made by the affidavit of (the affidavit of) the petitioner also. So in view of the Judgment given by the Division Bench of this Court, I

send this case to IV Additional Session Judge Srinagar for conducting an inquiry into the matter. The learned Judge will hold an inquiry after

recalling and summoning the parties and file the report within six months time.

The 4th Additional District & Session Judge conducted the inquiry as directed. It took the court over two years to hold and complete the

enquiry. In terms of enquiry and the record submitted by the Additional District & Session Judge, Srinagar, the Learned Addl. District Judge has

concluded:

.. .Keeping in view the facts of the case in hand and evidence as produced by the petitioner responsibility of lifting Ashraf Khan cannot be

ascertained due to lack of proper evidence. So report is submitted as desired...

Objections to this report of petitioner are record. The counsel are heard.

Perusal of record reveals that after State Govt. of J&k and the police officials (respondents to the petition) unequivocally refuted and denied

arrest of Mohd Ashraf Khan and his custody with State Govt. in their counter and affidavits sworn, the matter was referred by this court to 4th

Addl. District & Session Judge, Srinagar for enquiry. The 4th Addl; District and Sessions Judge conducted inquiry. He has given ample

opportunities to parties to produce evidence. Petitioner led the evidence. On analysis of the evidence led and appreciating evidentially value of the

depositions of petitioner's witnesses, the 4th Additional District & Session Judge, Srinagar has come to a clear conclusion that the responsibility for

lifting/arresting Mohd Ashraf Khan cannot be ascertained due to lack of proper and sufficient evidence. The evidence led has been discussed.

Objection to this report by petitioner is selfsame case/allegations as put forthwith in this H.C. petition by petitioner. No further evidence, additional

material or information is on record than what has been available during the course of proceedings, so as to warrant any further probe in the

matter. Much reliance cannot be placed on letter of then Addl. DIG of Police, CID, CIKashmir addressed to Dr. A.K. Bhan SSP CID, ClJammu

(Anx.P1) for the reason that this letter is in terns of the counter affidavit filed, issued in routine at the behest of relative/father of Mohd. Ashraf

Khan. The counsel further submits that this letter is issued without verification and does not necessarily indicate that the said Mohd Ashraf Khan

was held in JIC Jammu, as on the day. Moreso, when said Jaswant Singh Addl. DIG Police is dead and Shri A.S. Bali Addl. SP CID, CIKashmir

has sworn affidavit giving the facts and circumstances in the context of counter filed showing that the letter was issued in routine and that letter

nowhere shows that the said Mohd Ashraf Khan was received in any JiC of the State. Besides, the petitioner has in his rejoinder specifically stated

that said Mohd Ashraf Khan was arrested and detained by B.S.F. Neither the particulars of the BSF party nor the the personal constituting such

party have been given. Even the BSF has not been made party to the H.C. Petition. In such circumstances the finding of the enquiry officer, that the

responsibility for lifting, thereby mean ing arresting Mohd Ashraf Khan, cannot be ascertained, is justified and based on fact situation of the case,

as established on evidence in inquiry.

In view of the finding and report of 4th Addl; District Judge coupled with stand taken by respondents in their counter and as also in sworn

affidavits in support of the counter by Addl. Chief Secretary Home and Addl. SP, CID, CIKashmir it cannot be said that the said Mohd Ashraf

Khan was arrested by the Govt. of J&K and detained by the State and its official respondents at any stage. Obviously no responsibility can be

fixed on respondents. In such circumstances it is to be presumed that said Mohd Ashraf Khan was not arrested and detained by the State

Government and its officials. The contention of Ld. Counsel for petitioner that the petitioner's case may be referred to Police Station Batmaloo for

registration of case, holding of investigation and producing of challan against unnamed and unknown persons is devoid of merit, once the Ld.

District Judge has found that even prima facie no case of custodial disappearance against respondents for that matter against any other person is

made out. The Police Station is not under legal obligation to register the FIR in the matter in absence of primafacie case and some material to

support it. The petitioner could have approached the police on his own for registration of FIR soon after alleged disappearance of Mohd Ashraf

Khan in Feb. 1991 but no steps whatsoever had been taken in that direction hereto for last nine years. This circumstance speaks for itself, moreso,

when there is no allegation whatsoever against the police that it failed to register the case or refused to register any such case.

On cumulative analysis of the facts and evaluation of the circumstance and material, the case is not merited to proceed any further. In result the

matter is closed and the proceedings are dropped. This H.C. Petition is accordingly disposed of.