HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU … Bail App No. 33/2023 Reserved on: 02-05-2025 Pronounced on:16 .05.2025 Shakeel Ahmed Petitioner(s) Through: Mr. Naheim Sheikh, Advocate. Vs. UT of J&K …..Respondent(s) Through: None. CORAM: HON’BLE MR JUSTICE SANJEEV KUMAR, JUDGE O R D E R 1. This is an application by the accused, namely, Shakeel Ahmed, for grant of bail in case FIR No. 31/2020 dated 20-03-2020 registered at Police Station Surankote, Poonch for commission of offences under Section 376,363,343 & 109 IPC and 6/17 POCSO Act, 2012. 2. Briefly stated, the case put up by the prosecution before the Court of learned Sessions Judge, Poonch [‘the trial Court’] is that on 20-03-2020 the father of the prosecutrix, namely, Feroz Din submitted a written application at Police Station Surankote against the applicant herein, Jameel Ahmed, Mukthar Ahmed, Khleel Ahmed, Imtiaz Ahmed, Mumtaz Ahmed, Sageera Bi and Saleema Bi, all residents of Marhote Tehsil Surankote, alleging therein that on 26-01-2020 his daughter, the prosecutrix, who had gone to 2 Bail App No. 33/2023 the Sewing Centre situated at Marhote, had not returned till evening. He searched but could not trace her. He then realized that his daughter had been kidnapped by the applicant herein in conspiracy with the other accused persons with criminal intention of committing rape upon her. It was alleged that the applicant had kept her at some unknown place. On the basis of written information received from the complainant, Feroz Din, the Police of Police Station Surankote swung into action and registered FIR no. 31/2020 at the Police Station. The investigation of the case was entrusted to SI Mohd Rashid Kassana. During the course of investigation, the IO of the case visited the alleged place of occurrence, inspected the scene of crime, prepared the site plan and recorded the statements of the witnesses under Section 161 Cr.P.C. Later the prosecutrix was recovered and subjected to medical examination at SDH Surankot. The statement of the prosecutrix was got recorded before the learned Magistrate under Section 164 Cr.P.C. The applicant herein was arrested on 01-07-2020. 3. The IO, on the basis of the evidence collected, concluded that the applicant herein alongwith Mohd Ajmal and Sageera Bi alone were involved in the commission of offence under Sections 363, 376, 343, 109 IPC and 6/17 POCSO Act, however, no offence was found proved against other accused and, therefore, their names were deleted from the array of accused persons. 4. The challan was presented before the learned Magistrate on 12-07- 2020, which, on committal, came up before the trial Court on 13-07-2020. After framing of the charges, the prosecution commenced its evidence, and, till 17-11-2022 the prosecution had examined only three (3) out of 14 listed witnesses, including the mother of the prosecutrix- Zulfan Bi- PW3. 3 Bail App No. 33/2023 5. After the challan had remained pending for more than two years, the application for bail was moved by the applicant before the trial Court on 08- 09-2022. The application was contested by the prosecution and the trial Court, after appreciating the rival contentions and the material on record, came to the conclusion that the applicant had failed to make out a case for bail. Vide order dated 17-11-2022, the trial Court rejected the bail application of the applicant. Feeling aggrieved and being dissatisfied with the order of the trial Court, the present application for bail was filed before this Court on 02-02-2023. During the pendency of this application, which is more than two years, as stated by learned counsel for the applicant, the prosecution has recorded the statement of six (6) more witnesses till date. 6. The bail application is contested by the prosecution and in the objections filed to the application, the SHO, Police Station Surankot has only narrated the manner in which the investigation in the matter was undertaken and challan presented. 7. Having heard learned counsel for the parties and perused the material on record, I am of the considered opinion that the applicant has made out a case for grant of bail at this stage. 8. Undoubtedly, the offences alleged to have been committed by the applicant in conspiracy and with active connivance of two other accused are heinous and call for severe punishment extending to life. However, having regard to the fact that the applicant is in incarceration for the last about five years having been arrested on 01-07-2020, and that prosecution has examined only 9 out of 14 witnesses till date, I am of the firm opinion that the applicant cannot remain in incarceration pending conclusion of the trial. There is undoubtedly inordinate delay in concluding the trial. There are only 4 Bail App No. 33/2023 14 listed witnesses in the challan, and, out of which, only 9 witnesses have so far been examined. With the pace the prosecution is adducing its evidence in the case, the trial is not likely to be concluded in the next few years. If this Court does not consider the bail plea of the applicant, there is every likelihood of the applicant being virtually subjected to punishment without being convicted. That apart, the story projected by the prosecution in the challan and the testimony of the witnesses so far examined do not prima facie inspire confidence of this Court. There is contradiction with regard to the actual date of birth of the prosecutrix. The occurrence is said to have happened on 26th of January, 2020 while the prosecutrix had gone to attend a Sewing Centre. Normally on a National holiday, like 26th January, all Government institutions including the Sewing Centres are closed. It is also pertinent to note that in the written complaint made by the father of the prosecutrix to the police, six accused had been named but on investigation the IO could not find any evidence against three of them and consequently they were let off and their names were deleted from the array of accused persons. The medical evidence on record does not prima facie indicate any indication of sexual act. Even the statement of the prosecutrix-PW-2 and her mother-PW-3 are highly contradictory and prima facie put the entire prosecution story in the realm of doubt and suspicion. 9. In view of the nature of evidence on record and also keeping in mind that the right to speedy trial is a fundamental right of the applicant, I am inclined to extend the concession of bail to the applicant at this stage. As noted above, the applicant has been in jail for almost five years and the prosecution, during the span of four years and ten months has examined only 5 Bail App No. 33/2023 nine (9) out of fourteen (14) witnesses. The inordinate delay in concluding the trial has also given a right to the applicant to seek bail. 10. For the foregoing reasons, the application is allowed and the applicant-Shakeel Ahmed, is enlarged on bail subject to following conditions:- (i) That the applicant shall submit personal bond in the amount of Rs. 25,000/- with two sureties of the like amount, to the satisfaction of the trial Court. (ii) That the applicant shall not leave the UT of J&K without prior permission of the trial Court. (iii) That the applicant shall not directly or indirectly come in contact or influence the prosecution witnesses yet to be examined in the case. (iv) That the applicant shall remain present during the trial unless exempted by the trial Court. 11. It is made clear that anything said herein above is only for the purposes of disposal of this application and shall not be construed as an opinion of this Court on the merits of the case pending trial before the trial Court. (Sanjeev Kumar) Judge JAMMU: May 16, 2025 Anil Raina, Addl. Registrar/Secy Whether the order is reportable: Yes/No