Bail App No.150/2024 IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR Reserved on: 17.12.2025 Pronounced on: 26.12.2025 Uploaded on: 26.12.2025 Whether the operative part or full judgment is pronounced: Full Bail App No.150/2024 FAHAD MAQSOOD KHAN ...PETITIONER(S)/APPELLANT(S) Through: - Mr. Z. A. Qureshi, Sr. Advocate, with Ms. Rehana, Advocate. Vs. UT OF J&K ...RESPONDENT(S) Through: - Mr. Mohsin Qadiri, Sr. AAG, with Mr. Maha Majeed, Assisting counsel. CORAM: HON’BLE MR. JUSTICE SANJAY DHAR, JUDGE JUDGMENT 1) The petitioner has invoked jurisdiction of this Court under Section 483 of BNSS seeking his enlargement on bail in a case arising out of FIR No.135/2012 for offences under Section 302, 307, 326, 324, 506, 201, 120-B, 34 RPC registered with Police Station, Sadder, Srinagar, which is stated to be pending before the Court of learned Additional Sessions Judge, Srinagar. 2) As per case of the prosecution, on 04.07.2012, a complaint was received from one Mst. Shameema to the effect that on the said date at about 9.00 p.m., while she along with her family members were in their house, co-accused Maqsood Bail App No.150/2024 Hussain Khan, who is residing in their neighbourhood, along with his two sons, namely, Fahad Maqsood (petitioner herein) and Sadat Maqsood Khan and wife Rozy, started pelting stones on their main gate. It was alleged that the assailants were carrying lathies and iron rods. When the husband of the complainant came out of his house and asked the assailants the reason for their aforesaid action and further asked them to stop pelting stones/bricks, they caught hold of him and ruthlessly beat him with lathies, bricks, knife with an intention to kill him. The victim was rescued by some neighbours and was taken to hospital in an injured condition. 3) On the basis of the aforesaid report, FIR No.135/2012 for offences under Section 307, 120-B, 34 RPC was registered with Police Station, Sadder and investigation was set into motion. The petitioner and co-accused were arrested on 06.07.2012. During investigation of the case, injured Ghulam Mohammad Shah succumbed to the injuries in SKIMS on 05.07.2012. After completion of investigation, offences under Section 302, 307, 34, 120-B, 326, 324, 506 and 201 RPC were found established against the petitioner and co-accused and the chargesheet was laid before the trial court on 01.09.2012. 4) It seems that during pendency of the challan, co- accused Maqsood Hussain Khan and Mrs. Almas Ara alias Rozy have been enlarged on bail. Bail App No.150/2024 5) The petitioner has sought bail only on the ground of his long incarceration and on account of violation of his right to speedy trial. According to the petitioner, he is in custody for the last more than 13 years but the trial has not concluded as yet. It has been contended that there is no likelihood of completion of trial in near future, as such, the petitioner deserves to be enlarged on bail. 6) I have heard learned counsel for the parties and perused record of the case including the trial court record. 7) Learned counsel for the petitioner, during the course of his arguments, has reiterated speedy trial is a fundamental right of an accused and once this right is violated, the accused is entitled to be enlarged on bail. 8) Learned Senior AAG, appearing on behalf of the respondent, has submitted that the petitioner has committed a heinous offence by committing murder of his neighbour and there is enough evidence on record to prima facie show his involvement in the alleged crime, as such, rigour of Proviso (1) to Section 437 of the Criminal Procedure Code 1973 (which corresponds to Section 482 (1) (i) of BNSS) is attracted to the instant case having regard to the fact that the offences committed by the petitioner carry maximum punishment of death sentence. It has been further contended that the Bail App No.150/2024 petitioner had moved a bail application on similar grounds before this Court vide Bail App No.64/2023, which came to be rejected by this Court in terms of order dated 26.09.2024 and a direction was issued to the learned trial court to dispose of the application for grant of bail made by the petitioner within a period of thirty days. It has been contended that thereafter the bail application of the petitioner came to be dismissed by the learned trial court vide order dated 09.11.2024. It has been submitted that there is no change of circumstances since the dismissal of bail application of the petitioner by the learned trial court. 9) A perusal of the record shows that in the instant case, the petitioner has been arrested on 06.07.2012. At the time when he had moved earlier bail application before this Court, as per Nominal roll, he had completed almost 12 years in custody as on 30th June, 2024. A perusal of the trial court record reveals that thereafter he has not been released from custody even of a day. Therefore, as on date, the petitioner has been in custody for almost thirteen and a half years. The record of the trial court further reveals that when earlier bail application of the petitioner was dismissed by this Court, out of 33 prosecution witnesses, 27 witnesses had been examined and six witnesses were yet to be examined. The record further shows that after the dismissal of previous bail application of Bail App No.150/2024 the petitioner by the learned trial court on 09.11.2024, statements of two more witnesses have been recorded by the learned trial court despite strenuous efforts having been made by the trial court for procuring attendance of the witnesses. Thus, four prosecution witnesses are yet to be examined which includes the Investigating Officer of the case. 10) In the light of aforesaid facts, the question arises as to whether a person who has been accused of having committed a heinous offence like murder, is entitled to be enlarged on bail on the ground of his long incarceration of more than 13 years. This Court while considering the aforesaid issue in the case of Manzoor Ahmad Mir vs. UT of J&K(Bail App No.109/2022 decided on 30.12.2022), after taking note of the statement of law laid down by the Supreme Court in the cases of Hussainara Khatoon vs. Home Secretary, State of Bihar, (1980) 1 SCC 81, Supreme Court Legal Aid Committee vs. Union of India, (1994) SCC 731, Umarmia vs. State of Gujarat, (2017) 2 SCC 731, Union of India vs. K. A. Najeeb, (2021) 3 SCC 713, Ashim alias Asim Kumar Haranth Bhattacharya vs. National Investigation Agency, (2022) 1 SCC 695, and Jagjeet Singh & Ors. Vs. Ashish Mishra @ Monu & anr. 2021 LiveLaw (SC) 376, has observed as under: Bail App No.150/2024 “From the foregoing enunciation of the law laid down by the Supreme Court, it becomes clear that long incarceration of an undertail without any likelihood of conclusion of trial in near future infringes upon the right of speedy trial of such undertrial. While the Supreme Court has, in some cases, gone to the extent of quashing the trial itself but consistent view of the Supreme Court has been that in case the delay in conclusion of the trial amounts to oppression or harassment, the Court can interfere in such situations and grant bail to an accused in a heinous crime like murder also. While doing so, the Court has to take into consideration several factors like, length of delay, the justification for the delay, the accused's assertion of his right to speedy trial, and prejudice caused to the accused by such delay. It is also clear that the Criminal Courts are not obliged to terminate the trial or criminal proceedings only on account of lapse of time and acquit the accused but in appropriate cases, the Court can grant appropriate relief or suitable directions in favour of the accused. Thus, in deciding bail applications, one of the important factors which should be taken into account is the delay in concluding the trial. If an accused is denied bail but is ultimately acquitted, nobody is going to compensate him for the period he has spent in custody. Therefore, long incarceration of an accused may not be by itself a ground for grant of bail but it certainly becomes a ground for grant of bail to an accused, if the delay in conclusion of trial is attributable to the prosecution.” 11) Thus, it is clear from the foregoing analysis of the legal position that the delay in conclusion of trial is one of the important factors which is to be considered while deciding the plea of bail of an accused even if the said accused is facing trial in a heinous offence like murder. 12) Coming to the facts of the present case. It is apparent from a perusal of the trial court record that out of 33 Bail App No.150/2024 witnesses, at present 29 prosecution witnesses have been examined by the trial court during the long drawn trial of more than 13 years and four prosecution witnesses are yet to be examined. After the dismissal of previous bail application of the petitioner by the learned trial court on 09.11.2024, only two prosecution witnesses could be examined by the trial court till date. It appears that the learned trial court has made tireless efforts to procure attendance of prosecution witnesses to complete the trial for which the trial court deserves appreciation. In fact, one of the witnesses has been examined by the learned trial court on video conferencing as the witness was stationed in Punjab. Despite these efforts, it appears that there is no possibility of conclusion of trial in near future. In fact, the trial court in its order dated 17.05.2025, has noted that the proceedings in the challan have got protracted on account of inability of the prosecution to produce the witnesses. On 04.07.2025, the learned trial court has directed the SSP, Srinagar, to constitute a team headed by a Sub Inspector to procure the attendance of the prosecution witnesses. The SSP has been apprised about the protraction in trial on account of failure of the prosecution to procure attendance of the witnesses. 13) From the foregoing sequence of events, it is clear that the delay in conclusion of the trial is solely attributable to the Bail App No.150/2024 prosecution. The prosecuting agency has been unable to produce attendance of the witnesses despite repeated directions by the trial court. The witnesses, whose statements are yet to be recorded, are the experts and the police officials. Therefore, it is not a case where some civil witnesses, who may have been won over by the accused and avoiding to depose in support of the prosecution but it is a case where even the official witnesses are avoiding to help the prosecution in speedy trial of the case. 14) The trial court does have power to terminate the trial by closing the prosecution evidence but I am conscious of the fact that in heinous offences like murder, the Courts generally do not take this extreme step, particularly when the witnesses to be examined are expert witnesses and the investigating officer. The Courts refrain from closing the evidence in such cases lest it may amount to failure of justice but this cannot be taken as a device by the prosecution to protract the trial. In such circumstances, the only course open to a criminal court is to enlarge the undertrial accused to bail. 15) In view of the foregoing discussion, this Court finds that the petitioner has carved out a case for grant of bail on account of his long incarceration for more than 13 years and on account of the fact that by the conduct of the prosecution Bail App No.150/2024 and the police department, there is hardly any chance of conclusion of trial in near future. 16) Accordingly, the petitioner is directed to be released on bail subject to the following conditions: (I) That he shall furnish personal bond to the satisfaction of the In-charge of the concerned Jail, along with two local sureties in the amount of Rs.1,00,000 (rupees one lac) each to the satisfaction of the trial court; (II) That, in case he has a passport, he shall surrender the same before the trial court and he shall not travel out of the Union Territory of Jammu and Kashmir without permission of the trial court; (III) That he shall not tamper with the prosecution evidence and he shall not indulge in any act or omission that is unlawful or that would prejudice the proceedings in the pending trial; (IV) That he shall appear before the trial Court on each and every date of hearing; 17) The application stands disposed of in above terms. 18) Trial court record along with a copy of this judgment be sent back. (SANJAY DHAR) JUDGE SRINAGAR 26.12.2025 “Bhat Altaf” Whether the judgment is speaking: Yes/No Whether the judgment is reportable: Yes/No