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2002 DIGILAW 166 (JK)

Ab. Rashid Khan v. Union Of India

2002-05-21

SYED BASHIR-UD-DIN

body2002
Subject Fayaz Ahmed Khan is alleged to have been taken in custody by one Major Yadav Prashad Commanding Officer, 197-Bn. Army Camp Nuner Kangan during the search on the intervening night of 25/26th November, 1997 at his home at Athwajan Srinagar. Javid Auto and Muhamad Yousuf Akhoon the two militants accompained the commanding officer while said Fayaz Ahmed Khan was detained and taken away by the commandant. The petitioner-brother of the subject Fayaz Ahmed Khan approached the surrendered militants and Army and ultimately he was at the end of day told that the said Fayaz Ahmed Khan (subject) was with Romo Bn.Zakoora. Petitioner alleges that he met commanding officers (respondents 2 & 3) on 22.11.1997 who assured him of release of the subject from time to time. He was informed that the subject is OK but as he was not released, he became suspicious and filed this petition for release of subject Fayaz Ahmed Khan. As said Fayaz Ahmed Khan was not heard of and did disappear, therefore, he prays for registration of FIR against respondent No. 3 and investigation of the matter as also compensation of 5 lacs. 2. Respondents Union of India has filed counter. While refuting the petition allegation it is averred that the subject Fayaz Ahmed Khan was a informer of the army and used to give information and leads to the unit. His arrest is denied but it is stated that on 30.11.1997 said Fayaz Ahmed Khan and even his representatives were informed that he was contact and casual informer of the Security Forces, therefore, the question of award of damages/compensation does not arise. In reply it is further stated that the subject was involved in two murder cases and was booked by P/S Nishat where he failed to report. 3. In view of the dispute raised as to the arrest, detention and disappearance of the subject the matter was referred for enquiry and report by District & Session Judge, Srinagar. The report has been received with a finding :- "On the basis of material on record it is evident that the army personal under the command of Major Parshad Yadav arrested the boy namely Fayaz Ahmed Khan S/o Abdul Rehman Khan resident of Panthachuk, Srinagar during the night intervening 25th and 26th November, 1997 and till date the boy did not return to his family." 4. To this report, writ petitioner has not taken any objection but Union of India through its counsel has filed objections. 5. Counsel for the parties heard. The chief objection to this report advanced by Mr. Anil Bhan Sr. CGSC, is that no notice was served on the respondents and that the report has been given at the back of U.O.I without any opportunity to partcipate in enquiry proceedings. Alleged Major Yadav Prashad is not an officer commanding the Army unit in terms of the addressed given by the petitioner. There cannot be any report against the non-existing officer. In fact it is denied that respondents 2 and 3 were at all visited by concerned at Zakura, as alleged. Besides it is stated that Fayaz Ahmed Khan was informer and a contact of army who did visit the army personnal. He left the army camp on his own after disclosing information and details of militants and their activities to the Army. The name `Major Yadav Prashad is just parrot like narration of the witnesses produced by petitioner who are not and cannot be expected to know whereabouts and other particulars of Army officer and the commandant. 6. Mr. Haqani submits that the Union of India and other respondents were served as they failed to appear and participate in the proceedings they were set ex-parate and the report was given ex-parte after recording statement of witnesses produced before enquiry officer. The conclusion of the enquiry officer that said Fayaz Ahmed Khan was arrested during the night intervening 25/26th Nov. 1997 and thereafter did not surface or has not gone to his family is based on facts and circumstances of this case. 7. The order dated 3.11.1998 is reference order of matter for enquiry. It direct the enquiry officer (District & Session Judge, Srinagar) specifically to issue notice to respondents 2 and 3 in the first instance. The enquiry file received from District & Session Judge, Srinagar would reveal that the respondents 1 to 3 have not been at all summoned. On 9.4.99 in the interim order it is recorded that one Mr. Hakak has appeared on behalf of respondents. However, Mr. Hakak failed to appear thereafter, who, Mr. Hakak is not clear from the record. Admittedly respondents have not been served notice. On 9.4.99 in the interim order it is recorded that one Mr. Hakak has appeared on behalf of respondents. However, Mr. Hakak failed to appear thereafter, who, Mr. Hakak is not clear from the record. Admittedly respondents have not been served notice. This is all the moreso, as in counter to the petition allegation it is specifically stated that respondents 2 and 3 as shown in the petitioner are non-existing entities in the ranks of the Army. Besides the address given of respondents 2 and 3 is incorrect. It is specifically stated that no Major by name Major Yadav Commanding officer 197 Bn. Army Camp Nunar Kangan (respondent No. 3) is at all in the army and posted at Nuner Kangan. Petitioner has examined just 7 persons locals from the area to which applicant belongs, who have in routine in their oral statements stated/described that the subject Fayaz Ahmed Khan was picked up and taken along by the Army with some civilians. The evidence by itself in absence of cross examination by the otherside, in the circumstances explained above, do not prove anything. The allegation that subject was involved in two murder cases in respect of which FIR is registered in P/S Nishat, is not also taken note of. What has been status and progress in the FIRs and whether the said Fayaz Ahmed Khan appeared in the two FIRs before investigating agencies or not are matters, which have a material bearing on this case. 8. In these circumstances the report cannot be accepted as it is faulty. The report is set-aside and the matter remanded back to District & Sessions Judge, Srinagar for fresh enquiry in accordance with the provisions of law, after notice and opportunity to the parties. Disposed of.