1 CrlM No. 909/2024 In CrlA(AS) No. 23/2024 S. No. 5 Regular Cause List IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR CrlM No. 909/2024 In CrlA(AS) No. 23/2024 UT of J&K through P/S Chandoosa …Appellant/Petitioner(s) Through: Ms. Rahella Khan, Assisting Counsel Vs. Mushtaq Ahmed Bhat ...Respondent(s) Through: Mr. Arshid Bashir, Advocate CORAM: HON’BLE MR JUSTICE RAJESH SEKHRI, JUDGE O R D E R 07.04.2025 1. Instant application is for leave to institute the acquittal appeal. 2. Having heard learned counsels for the parties I have carefully gone through the impugned judgement. 3. Before a closer look at the grounds urged in the application, it shall be apt to have an overview of the background facts, giving rise to present case. 4. On 15.04.2005, Police Station, Chandoosa, received a source information that about 8.00 PM, while one Abdul Rehman Lone after offering Nimaz in a local Masjid, was on his way to his house, he was fired upon by some unknown person. He was seriously injured and was evacuated to Baramulla Hospital for treatment. On the receipt of said information, FIR No. 11/2005 for offences under Sections 307 RPC and 7/27 Arms Act came to be registered and investigation came into vogue. The investigation culminated in the presentation of final report against the respondent for the aforesaid offences. 2 CrlM No. 909/2024 In CrlA(AS) No. 23/2024 5. The respondent was charged by the Trial Court for offences under Sections 307, 326, 201 RPC and 7/27 of the Arms Act, whereby he pleaded innocence and claimed trial, prompting the trial court to ask for the prosecution evidence. 6. The prosecution, in order to bring home guilt of the respondent, managed to examine 5 witnesses out of 15 cited in the case and pertinently out of 5 witnesses examined by the prosecution, two witnesses; PWs Mohammad Maqbool Dar and Abdul Majeed Parra turned hostile and two witnesses; PWs Naseema and Abdul Khaliq Lone, are hearsay, as they deposed that they were informed by the victim that he was fired upon by the respondent. In the circumstances, the entire prosecution case hinges upon the testimonial potency of the injured, Abdul Rehman Lone. 7. PW Abdul Rehman Lone has deposed in chief examination that about three years back he was accompanied by Mohammad Maqbool Malik and while he was on his way home, after offering prayer in the Masjid, he was fired upon by the accused with a pistol. When accused fired the first bullet, he started running and then accused fired second bullet, which hit his leg, he fell down and thereafter, accused fired third bullet, which hit his shoulder. On raising hue and cry, his niece, Naseema, and his brother came to the spot, who shifted him to Baramulla Hospital. In cross-examination, the injured has stated that though it was dark, he recognized the accused because there was electricity in the village at the time of occurrence. 8. Now, if statement of the victim is carefully glanced over, it is categoric stand of the victim that he was thrice fired upon by the respondent. 3 CrlM No. 909/2024 In CrlA(AS) No. 23/2024 However, as per the prosecution case, only 2 empties came to be recovered during investigation. The prosecution has failed to examine the Investigating Officer to explain this discrepancy. The victim also stated that at the time of occurrence, his niece Naseema and his brother came to the spot. However, PW Naseema is a hearsay witness and has not supported the prosecution case. 9. Another aspect of the matter, which needs attention is that respondent, inter alia, has been charged with the commission of offences under Sections 307, 326 RPC. However, prosecution has failed to examine the Medical Officer in a trial that lasted for about ten years. 10. In the circumstances, I do not find any illegality or impropriety in the impugned judgement of acquittal recorded by the Trial Court and persuaded to take a view different from the one taken by learned Trial Court. 11. Having regard to aforesaid, the present application is dismissed and leave to file appeal is declined. Resultantly, appeal is also dismissed. 12. Disposed of. (RAJESH SEKHRI) JUDGE SRINAGAR 07.04.2025 Manzoor