Research › Search › Judgment

J&K High Court · body

2009 DIGILAW 479 (JK)

Mohd. Maqbool Dar v. State Of J&K

2009-10-06

Hakim Imtiyaz Hussain

body2009
1. This petition under Article 226 of the Constitution of India read with Section 103 of the Constitution of Jammu & Kashmir has been filed by one Mohd. Maqbeol Dar. The petitioner's case is that his brother namely Mohd. Yousuf Dar who was a labourer by profession, he was apprehended by Army (7 RR) during the intervening night of 6/7 June 1995 during search operation. Alongwith the brother of the petitioner two other persons namely Zahoor Ahmed Kuchay and Khurshid Ahmad Dar were also apprehended but subsequently after three days both these persons were released but the petitioner's brother was neither released nor his whereabouts were furnished to the petitioner. He made an enquiry from the Army concerned but they denied having apprehended the petitioner's brother. He thereafter approached various jails to get whereabouts of his brother but he could not find him lodged in any such jail. 2. Through the medium of the present petition the petitioner apprehends that his brother has been killed while in custody by the respondents as such he claims compensation as also ex-gratia relief as admissible under rules in his favour. 3. During the pendency of this petition the matter was referred to the Principal District & Session Judge, Anantnag for enquiry into the matter. The District Judge has conducted a thorough enquiry and has submitted a detailed report. He has found that the petitioner has established that the army personal arrested brother of the petitioner and subsequently caused his disappearance. The learned District Judge has further found that there is nothing in rebuttal on record which would lead to some other conclusion. The respondent-Additional Director General of Police has submitted his reply to the present petition. The Army has also submitted their objections to the report of Id. Principal District Judge. In the reply submitted by the Additional Director General of Police, CID, J&K, Srinagar it is stated that the contentions raised by the petitioner have been denied. It is submitted that the petitioner did not inform the police or lodged any report in the Police Station about his brother. It is however, stated that one Abdul Rehman Dar S/o Gh. Mohd. R/o Bagi Saklo has approached Police Station Qazigund on 8.6.1995 and lodged report about the lifting of his son namely Khurshid Ahmed Dar alongwith two other persons namely Zahoor Ahmed Kuchay and Mohd. It is however, stated that one Abdul Rehman Dar S/o Gh. Mohd. R/o Bagi Saklo has approached Police Station Qazigund on 8.6.1995 and lodged report about the lifting of his son namely Khurshid Ahmed Dar alongwith two other persons namely Zahoor Ahmed Kuchay and Mohd. Yousuf Dar by 7 RR during intervening night of 6/7th of June, 1995. On this a report vide Daily diary No. 19 dated 8.6.1995 was entered in the daily diary of said Police Station. The Additional Director General of Police has further stated that the answering respondents cannot be held responsible for any consequences. The Army have in their objections denied that any operation was conducted by the RR at village Bagi Saklooon during night of 6/7 June, 1995. They have denied that any person was arrested by the said unit on the said date. They further state that the possibility of the individual running away/crossing over to POK or having been picked up by the troops posing as Army person in uniform cannot be ruled out. They have disputed the findings of Id. District Judge as according to the respondents the two persons who the petitioner states were arrested alongwith the petitioner have in an affidavit denied that they were picked up by the army. Numberdar of the Area has also stated that no such search operation was conducted on the date(s) mentioned in the petition. 4. Heard. I have considered the matter. I have gone through the annexures placed on file and have minutely considered the objections filed by the Army to the enquiry report submitted by the Principal District & Session Judge. 5. As noticed above the learned Principal District Judge has conducted a thorough enquiry into the matter. He has recorded statements of various witnesses examined by the parties. He has heard the parties at length and has on proper appreciation of the evidence led in the matter come to the conclusion that it was the army personal of 7RR stationed at Camp Behibagh that they picked up petitioner's brother alongwith two persons namely Khurshid Ahmed and Zahoor Ahmed. Both these persons namely Khurshid Ahmed and Zahoor Ahmed were later on released but Mohd. Yousuf Dar i.e, the petitioner's brother was not released and he disappeared while being in custody of 7RR. Both these persons namely Khurshid Ahmed and Zahoor Ahmed were later on released but Mohd. Yousuf Dar i.e, the petitioner's brother was not released and he disappeared while being in custody of 7RR. In this behalf learned District has observed as under:- "Coming to the evidence vehemently relied upon by the petitioner, it takes us to the conclusion that admittedly the brother of the petitioner namely Mohd. Yousuf Dar S/o Ahsan Dar was lifted from his house during the intervening night of 6/7 June 1995 by army personals of 7 RR stationed at Camp Behibagh, alongwith to other persons namely Khursheed Ahmed and Zahoor Ahmed. The two persons namely Khursheed Ahmad and Zahoor Ahmed have been subsequently released but the fact remains that the said Mohd. Yousuf Dar disappeared while being in custody of 7 RR." Learned Principal District Judge has further observed as under- "Undoubtedly the petitioner has proved and established that it were the arms personals who arrested the brother of the petitioner and subsequently caused his disappearance and there is nothing in rebuttal on record which would lead us to some other conclusion. There is otherwise also sufficient material on record to suggest that the subject Mohd. Yousuf Dar was arrested during the intervening night of 6/7 June 1995 by 7 RR and subsequently not released and caused to disappear. There is also sufficient material on record to suggest that the said person has not been involved with any anti social or subversive activities neither has he been associated with any banned militant organization as was reported by the concerned agency including the concerned S.P'." 6. While coming to this conclusion learned District Judge has relied on the statements of the witnesses examined before him and also the communication of SP Kulgam which would show that on a verification conducted by the said SP it was found that the Army had conducted search operation during which they have picked up the brother of the petitioner. Copy of the report of Superintendent of Police Kulgam in this behalf has also been placed on file as Annexure-G. The report is in the shape of a communication submitted by the SP to Dy. Commissioner, Anantnag. It has been observed in the said communication that on verification it was found that during intervening night of 6/7th June, 1995 Army 77R camped at Behibagh has lifted one Mohd. Yousuf Dar. Commissioner, Anantnag. It has been observed in the said communication that on verification it was found that during intervening night of 6/7th June, 1995 Army 77R camped at Behibagh has lifted one Mohd. Yousuf Dar. Later his home people approached the said unit for his release but army denied his arrest. Another communication by the same SP addressed to Additional Dy. Commissioner, Anantnag dated 19.8.99 reads as under.- "In this connection report obtained from SDPO Kuglam reveals that spot verification as conducted into the matter and statements of some villagers were recorded as witnesses which include Abdul Rashid Dar S/o Mohd. Ramzan Dar, Mohd Yousuf Malik SIL, of Sonaullah Dar and Mohd. Shafi Dar S/o Habibullah Dar all residents of Village Bagi Sakloo. All the three witness in general stated that they don't remember exact date but in the month of June 1995 they were sleeping in their respective homes and next day in the morning they woke up and as usual proceeded on a stream which flows in the said village for washing their faces etc. While reaching near the house of late Mohd, Ahsan Dar they saw that a crows of people had assembled their in the compound of the said house and some persons including women were weeping bitterly and making hue and cry. They reaching the spot inquired the matter and came to know that during intervening night Army personnel 7RR of Camp Behi Bagh had entered in the said Village Bagi-Sakloo and conducted search of some residential houses. During searchs three persons namely Mohd Yousuf Dar S/o Ahsan Dar, Zahoor Ahmed Kuchay, S/o Ahmad Kuchay and Khurshid Ahmed Dar S/o Rehman Dar of the said village were taken alongwith them. After three days two persons namely Zahoor Ahmad Kuchay and Khurshid Ahmad Dar were released by the Army personnel but Mohd. Yousf Dar was not released and was kept under their captivity." These facts have not been denied by the Additional Director General of Police though he has not furnished to the Court any information regarding conducting of enquiry by the Police. Yousf Dar was not released and was kept under their captivity." These facts have not been denied by the Additional Director General of Police though he has not furnished to the Court any information regarding conducting of enquiry by the Police. It is, however, admitted by the Additional Director General of Police that father of Khurshid Ahmed Dar namely Abdul Rehman Dar lodged a report in Police Station Qazigund on 8.6.1995 in which he informed the police that the army people have arrested his son Khurshid Ahmed alongwith two, other persons namely Zahoor Ahmed and Mohd. Yousuf Dar Thus even the police got information on the very next date i.e. 8.6.1995 about the arrest of petitioner's brother namely Mohd. Yousuf Dar by 7RR during the night of 6/7th June, 1995. 7. In view of these facts I could not find any force in any of the submissions of the Army taken in the objections to District Judge report or made during the arguments by Mr. Bhan. Respondents have in their objections stated that both the persons namely Khurshid Ahmed and Zahoor Ahmed filed an affidavit that they were not picked up by the Army. They have further stated that `Numberdar of the village has also given a statement that no search operation took place. When Mr. Bhan was asked to produce the relevant record on this behalf, he placed on file photostat copies of two certificates issued by Ahmed Kucahy, Khurshid Ahmed Dar , Ab. Majid Dar, Mohd. Shafi Dar, Gh. Rasool Dar and Sabir Mohd. Dar but it is not Clear nor could Mr. Bhan explain that before whom these Statements have been made and that whether these statements actually bear the signatures of the persons whose names are mentioned in the statement as the documents are not in the shape of affidavits on the stamp paper as prescribed under the rules nor or these attested by any Magistrate, Notary or Oath Commissioner. In these circumstances no reliance can be need on it nor can the contention of the army raised in this behalf be accepted. 8. From all these circumstances I find the petitioner has succeeded to establish that the Army (7 RR) apprehended his brother namely Mohd. Yousuf Dar from his house during intervening night of 6/7th June,1995. He was not released from custody nor has the army satisfactorily explained his custody or whereabouts. 8. From all these circumstances I find the petitioner has succeeded to establish that the Army (7 RR) apprehended his brother namely Mohd. Yousuf Dar from his house during intervening night of 6/7th June,1995. He was not released from custody nor has the army satisfactorily explained his custody or whereabouts. The whereabouts of the missing person namely Mohd. Yousuf Dar are not known since 1995. The only presumption, in these circumstances is that he has been killed during custody be the respondents. In these circumstances I find the petitioner is entitled to a compensation for the loss of life of the deceased Mohd. Yousuf Dar. Accordingly this petition is allowed. The State is directed to pay an amount of Rs. 10 lacs to the petitioner as compensation for the loss of the life of his brother namely Mohd. Yousuf Dar. Besides the State shall process the case of the petitioner for grant of ex-gratia relief as admissible to him under rules. The SHO Qazigund shall proceed in the matter on the FIR lodged by Khurshid Ahmed Dar and conduct an investigation and identify the person who picked up the petitioner's brother and take appropriate legal action against him after registration of case, in the matter.