Papa Kishtiwari’s death during murder trial no grounds for co-accused’s bail, says court

Srinagar: The High Court of Jammu and Kashmir and Ladakh, last week, disposed of the bail application with a direction to the trial court to decide the application expeditiously, preferably within the period of 15 days.

The bail application was filed by Ghulam Rasool Ganai, through his counsel, in 2020. It was finally heard and reserved for orders by Justice Sanjay Dhar on 31-03-2022.

The petitioner along with other co-accused, Khurshid Ahmad Mir and  Ghulam Mohammad Lone Alias Papa Kishtiwari,  are facing the allegations of abducting and murdering the deceased Ali Mohammad Mir under a well-knit conspiracy.

The accusations against the accused are that they bundled the deceased into their vehicle and took him to the residence of Papa Kishtiwari.

The allegations in the charge sheet, as quoted in the High Court order,  go on to suggest that the deceased was wrongfully restrained by the accused persons in a bid to extract a ransom amount from him.

Unsuccessful in extracting ransom money, it is alleged, during the intervening night of 26th/27th June 1996, the deceased was brought out from the residence of Papa Kishtiwari, tied in a gunny bag, and thrown into river Jhelum.

While the proceedings- emanating from the FIR registered in 2007 under Section 302, 364, 342, 120-B, 201 RPC-  are going on in the Trial court Srinagar since 2008, the petitioner has approached the High Court multiple times, questioning the protracted trial.

Resultantly, the High Court of J and K and Ladakh has passed multiple orders, from time to time, including in the year 2012, and 2018  directing the Trial court to decide the bail application of the accused within stipulated time and also to expedite the trial.

However, neither the trial concluded nor the bail application came to be decided, forcing the petitioner to approach the High court yet again, in 2020.

Sajad Ashraf, the counsel appearing for the state placed before the court year-wise events that have taken place before the trial court.

S T Hussain, Senior Counsel, appearing for the petitioner raised multiple grounds in support of his bail application.

He primarily questioned Trial Courts’ noncompliance with High Court orders passed from time to time that had directed the trial court to expedite the trial and decide bail application.

Elongating trial to so many years alone entities his client to the benefit of bail, senior counsel contended.

Pertinently, the main accused Ghulam Mohammad Lone Aka Papa Kishtwarai has expired during the course of trial as such, the senior advocate argued: the proceedings against the other co-accused, who were only alleged to be the part of the conspiracy, cannot stand.

Justice Sanjay Dhar rejected this contention holding: “…the allegations against the petitioner are not merely that he was part of the conspiracy or that he was only an abettor of the crime but … that he actively participated in the commission of the crime.”

The court observed that he along with other co-accused was allegedly involved in the abduction of the deceased as well as participated in the commission of the crime -Packing the accused into a gunny bag before throwing him into the river.

“The law does not provide that if one of the many accused facing trial for a charge dies during the pendency of the trial, the trial against the other accused would abate, particularly when the other accused are alleged to be the part of a conspiracy and specific roles are attributed in the charge sheet against them.” the HC order reads.

The  counsel appearing for the State informed the court that the bail filed in the Trial court is listed in April and in  view of this submission the High Court held: “It would be appropriate that the effect of delay in conclusion of the trial as also the right of the petitioner to get bail on merits is decided and determined by the trial court.”

If such an exercise is undertaken by this Court in the present petition, it may prejudice the case of either of the parties before the trial court.