diana's serinity: 2012

State Vs. Zahoor Ahmad Wani and ors.

(Accused)

Case FIR No.77 of 2005 under sections 302,364,376,120-B and 201 RPC of police station Khanyar.

JUDGEMENT ORDER

The chain of circumstances which leads to this gruesome tale of lust and crime is one which is not only horrifying but can shake the very conscious of every and any sane human being who is a part of the civilized society.

The terrible crime that forms the basis of this tale is described with such staggering veracity, in such subtle detail, that one finds oneself involuntarily experiencing the perpetrators of this drama with all its psychic springs and devices, traversing the heart’s maze from the first inception within it of the criminal idea to its final development …

… a depiction of all those conditions which capture the human soul, draw it towards crime; we see the crime itself; and at once, in complete clarity, with criminal’s soul we enter into an atmosphere, hitherto unknown to us, of murk and horror in which it is almost as hard for us to breathe as it was for HER …

… no one knew who to make the subject of judgment, or whom to pick as suspect, how to go about it, no one could agree about what should be considered evil and what good. No one knew who to blame or who to acquit ?

Yet the small traces of evidence, the fragments of the tale meticulously stitched together could unfold the whole puzzle, leading to a crystal clear picture, unveiling the faces of those who planned and executed this gory tale of crime, each playing his own part leading to the ultimate commission of this occurrence which is the story of Case FIR 77 of 2010.

“ Qareeb hai yaaron roz-e-Mehshar

Kushton ka khoon kyonkar

Jo chup rahey gi zubban-e-khanjar

Lahoo pukarey ga aasteen ka…”

-Amir Minai. [AIR 2011 SC. 3692]

1. Story is quite simple, that deceased Shazia went with Sameena, out to the market and did not return back that evening. When she did not return back home, her guardians enquired from the person(Sameena) with whom she had left for the market, and in turn she fiends her ignorance, stating that, she had left her at her door. (April, 2005, at about 6.30 p.m. accused, namely, Samena, came to their house and told her that she wants deceased to accompany her to market. The deceased asked for some money so that she could purchase some shampoo and other articles from the market )

2. Next day when still her whereabouts are unknown, her mother (adoptive) reports the matter to Police with of course a candid story of her chance of elopement, whereby Police suggests them to look for her at their own end and they will also, and that she should provide a photograph of the girl and a missing report is registered in Police Station Khanyar.

3. 7^th May,2005 Daily Alsafa carries news item of a dead body being fished out by Police Sumbal,.( On 7^th of May, 2005 a news item was published regarding an unidentified female dead body recovered from river Jhelum in Daily News paper Alsafa, mark-7.) which is unclaimed and buried at Sumbal by Wakf Committee Sumbal

4. Easier said than done, for the local Police its an open and shut case, and inquest started under section174 Cr.P.C. is closed with a medical report depicting cause of death as drowning.

This news item is an event which brings twist in the story and it no longer remains that simple as it initially started…( On 7^th of May, 2005 a news item was published regarding an unidentified female dead body recovered from river Jhelum in Daily News paper Alsafa, mark-7.)

THE PROSECUTION STORY:

As per prosecution, on 28th of April, 2005 PW No.1 filed a missing report before police station Khanyar stating therein that one Mst. Shazia D/o Gulzar Ahmad Tota had left her house on 25-04-2005 at evening for purchasing some domestic articles with a neighborhood girl, Sameena but did not return and when they asked said Samena where Shazia was, Samena told them that they had returned within half an hour and despite looking for the whereabouts of Mst. Shazia they could not trace her. Missing report was registered by police station Khanyar and they started looking for said Shazia. Thereafter on 29^th of May, 2005 the police station received an information through reliable source that Mst. Shazia was infact kidnapped by accused No.1 and 2 at Babademb de-watering pump in a Tata sumo No.JK01F-3520 with an intention to commit rape and after subjecting said Shazia to rape and physical assault she was murdered and thereafter in order to destroy the evidence the said accused had thrown body of Mst. Shazia in river Sindh at Ganderbal in order to pass it as a drowning case. Body of deceased Shazia was recovered from river Jhelum by the people at Sonawari on 07-05-2005 and the body was handed over to police station Sumbal and for want of identification and the dead body being decomposed, the body was buried in Sumbal through local Auquaf. The family of the deceased after seeking permission for exhumation of the body on 10-05-2005 brought the body to Srinagar and buried it at Rainawari Malakah.

After receiving this information FIR No.77 of 2005 under sections 302,364,376,120-B and 201 RPC came to be registered by police station Khanyar and the investigation in the matter was conducted. During the investigation it got revealed that on 25t^h of April, 2005 accused No.1 and 2 hatched a conspiracy with accused No.3 in furtherance of which accused No.1 and 2 with the help of accused No.3 at about 7 p.m. kidnapped the deceased in a Tata Sumo (white colour) bearing No.3520-JK01F and then at 90’ road bye-pass accused No.1 and 2 subjected the deceased to rape and physical assault and killed her and thereafter in order to destroy the evidence threw the body of Mst. Shazia in river Sind at Gagerhama Ganderbal. Accused No.1 and 2 were apprehended on 28-05-2005 for questioning and it was at their instance that the site map of spot of occurrence, kidnapping, rape and murder and then destroying the evidence were prepared. After getting the substantial evidence accused No.1 and 2 were ultimately arrested on 29-05-2005 and were put to sustained interrogation. Accused No.1 and 2 made disclosure statements in furtherance of which wearing articles of deceased were recovered at the instance of accused No.1 and 2 in presence of the witnesses. The papers of inquest proceedings were obtained by the I.O. from P/S Sumbal during the initial investigation. During the investigation the body was re-exhumed from Malkajh Rainawari Graveyard and detailed postmortem of the deceased was conducted by .a team of Doctors which confirmed the evidence of rape and death being caused by asphyxia by suffocation. Accused No.1 committed suicide in police lock up during the intervening night of 8/9^th of June, 2005 by hanging himself in bathroom of the police lock up in order to escape wrath of people, shame and to avoid yoke of law. During the postmortem, samples were collected by the team of Doctors and were sent to FSL which confirmed the evidence of rape and death of the victim Shazia due to “asphyxia as a result of suffocation”. Moreover hair of the deceased taken from the dead body and the hair recovered from the said Tata Sumo used for commission of offence were sent for FSL examination and were found to be of the same person as per FSL report. DNA test of the seized scarf and other samples taken from the dead body of the deceased during the postmortem were also sent for expert opinion and the investigation proved the offences under sections 302,364,376,120-B and 201 RPC against accused No.1 and 2 and offence under section 120-B and 201 RPC against accused No.3 and charge sheet was presented against the accused No.2-3 in the court.

Since the case being triable by the court of Sessions, the charge sheet was committed to this court vide order dated 19-07-2005 and was received in this court on 19-07-2005.

After hearing the arguments of learned PP as well as defence counsel this court came to the conclusion that offences under sections 120-B, 302,364,376,201 RPC were prima facie made out against accused No.2 as well as accused No.1 who committed suicide during the police custody. Offences punishable under sections 120-B, 364,376,302 RPC for facilitating and abetting the commission of offences. The above offences were found prima facie made out against accused No.3. Consequently accused No.2 was charge sheeted under sections : 120-B, 364, 376, 302 and 201 RPC whereas accused No.3 was charge sheeted for the offences punishable under sections 120-B, 364, 376, 302 RPC. The charges were put to the accused and they were confronted with the substance of the allegations against them in detail. The accused persons denied the charges and prayed for their trial.

In order to prove the charges against the accused persons, prosecution has examined Jalla Begum, Ab. Aziz Kawa, Reyaz Ahmad Kawa, Gh. Mohd Shera, Instiyaq Ahmad Kenu, Fayz Ahmad Dar HC, Altaf Hussain Shah, Tariq Ahmad Sub Inspector, 7870/NGO, Gh. Rasool HC,2798/S; Mohd Subhan HC No.825/S, Mohd Ismail No.6955/NGO, Aijaz Ahmad Pathan, Dr. Balbir Kour, Khalil Ahmad, Gh. Rasool Wani, Tehsildar, Mr. Shuhul Ahmad Kant, Assistant Scientific Officer, FSL, Srinagar, Maimona Akhter Member CPM, Inspector Tariq Ahmad Khan.

EVIDENCE ON RECORD :

A brief resume of the prosecution as well as defence witnesses is given as under:

(i) PW No.1, Jalla Begum, on being questioned in examination in chief by learned PP, stated that Shazia, the deceased her nice was raised by her her when Shazia was only four months old due to the death of her both parents. She raised the deceased nicely and educated her upto class 12^th. In the month of April, 2005, at about 6.30 p.m. accused, namely, Samena, came to their house and told her that she wants deceased to accompany her to market. The deceased asked for some money so that she could purchase some shampo and other articles from the market. She gave Rs.20/- to the deceased. At that time her son, Reyaz Ahmed, Nissar Ahmed, her husband Abdul Aziz and daughter Semi were sitting together when the deceased left for the market with accused No.3. When the deceased did not return for a hour to the house she went to the house of accused Samena and questioned her where Shazia was. Accused No.3 told her that she had returned with her. She told the accused that Shazia did not return and then she came back to her house and told her family members that accused No.3 was saying that Shazia had returned to the house. On hearing this she and all her family members went to the accused No.3 where accused again stated that Shazia had returned from the marked. They searched for Shazia but could not find her. On the next day she went to the police station and narrated whole story but concerned police told her that since it was a matter pertaining to a young girl they should wait for 1-2 days. They again went in search of Shazia but could not find her and then on 28^th of April, 2005, she filed an application before the concerned police with regard to Shazia being missing. She had admitted the contents of the written application filed before the concerned police, EXPW-1 to be true and correct. She had affixed the photograph of Shazia on EXPW-1 and had identified the same which is marked as Mark – “J” During the investigation it got revealed that accused Mst. Samena had taken the cell phone of deceased Shazia which had been given by fiancée to Mst. Shazia, deceased. It is also got revealed that infact accused No.3 had sold Shazia to some people from Darga Hazratbal who had killed Shazia and the whereabouts of those people were also given to the police by accused, Samena. Then a news item appeared in the newspaper that at Mujgund, a dead body was fished out of the river Jehlum and then her sons, Nissar and Reyaz Ahmnad and Ab. Aziz Kenu, her husband, went for identification of that dead body and then she was informed that the dead body was of Shazia as they had indentified the clothes of Mst. Shaziz. Thereafter the dead body was brought home by her sons and was buried. This witness identified the wearing apparels of deceased in the court and got emotional. She has further stated that their family had very good relations with in-laws of accused No.3 and she would treat accused No.3 as her daughter.

In her cross examination by learned counsel for accused No.2 the witness has stated that she visited police station2/3 times. When visited third time then her statement was recorded by the police. When she filed EXPW-1 in the concerned police, her statement was recorded and the statements of her two sons and husband were also recorded by the concerned police. It is true that on 28^th of May, 2005 she had not mentioned the name of Mst. Samena, accused No.3, before the police as she was treating accused Samena as her own daughter and when during the investigation the facts got revealed then she mentioned the name of Samena. Why the scribe of EXPW-1 did not wrote that Samena had come to their house and wanted the deceased Shazia to accompany her, she does not know. It is also true that there is no mention of Shazia having cell phone and also that the cell phone was given to the deceased by her finacee. When her statement was recorded by the police at that time the dead body Shazia had already been recovered 12/13 days after the occurrence. She would visit the police station prior to the burial of the deceased and after her burial as well. After the burial of Mst. Shazia she lost her memory for about three months. She did not visit Police Sumbal. She denied that she ever went toPolice Station Sumbal for identifying the wearing apparels of the deceased. The witness has expressed ignorance about the fact that the dead body was exhumed from the graveyard at Sumbal. Since she was not in her proper frame of mind she was not shown the cell phone of Shazia given by her fiance. When the dead body was brought to their house their relatives and neighbours including the father-in-law and mother-in-law of Samena also visited their house but accused Samena did not visit their house but was watching from her Veranda. There is only a distance of 6 meters in between the house of her and the accused Samena. Ishtiyaq Kenu was also called for questioning and was in police custody for 14 days. She did not visit the police station in order to ask Ishtiyaq Kenu where her daughter was.

(ii) PW No.2, Abdul Aziz Kawa, in his examination in chief has stated that deceased Shazia was raise by him and his wife as their adopted daughter as Shazia's parents had died when she was only 4 months old. Shazia was daughter of his wife's sister. On 25^th of April, 2005 at about 6.30 p.m. Mst. Samena accused No.3, who is married in her neighbourhood came to their house and wanted to take Mst. Shazia with her to Khanyar market and at that time all their family members were present in the house. When Shazia left with Samena she asked for Rs.20/- in order to purchase some shampo from the market and then left the house with accused Samena. After offering “Magreb” prayers her wife went to the neighbours house and saw Sameena, accused, present in the house and then asked Samena that when they had returned from market and where Shazia was. In reply Samena told his wife that Shazia was dropped by her on the door of her house. The conversation between Mst. Samena and his wife was revealed to him by his wife when Shazia did not return. Thereafter he alongwith all family members went to Samena's house and asked her where Shazia is and Samena replied that she had dropped Shazia on their door. Then they went in search of Shazia in the houses of their neighbours and relatives. Then on 26^th of April, 2005 at about 5 p.m. they went to concerned police station and narrated same to the police. But were told by police people that it was a matter of a girl and advised them to look for the girl for 1-2 days themselves. Then they again visited the police station on 28-04-2005 and lodged a written missing report with regard to Shazia. They did not mention the name of Mst. Samena in that missing report as they were treating Mst. Sameena as their own daughter. Thereafter on 8^th of May,2005 they read in the newspaper that police station Sumbal had fished out a dead body from river Jehlum which could not be identified and had been burried in the local grave yard by the locals and Auquaf people of Sumbal. Then they went to Police station Sumbal and enquired about the dead body. Police Sumbal showed them two ear rings, one sweeter, one shirt which had been recovered from dead body burried in Sumbal and they identified them as the wearing apparels and ear rings shown to them as being of the deceased Shazia. Then they demanded the dead body from the police and on the advice of police they approached DC Baramulla on 09-05-2005 by submitting an application and on 10^th of May, 2005 at the orders of DC Baramulla who had empowered SDM Sopore for exhumation of dead body and the dead body was exhumed from Sumbal graveyard and was brought home and burried in the ancestral graveyard. On 13^th of May, 2005 they observed 4^th day of Mst. Shazia and on14th of May they heard that police had arrested Ishfaq Ahmed Kenu. There was lot of protest in the locality for unveiling the real culprits and in that connection they were visiting the police station. On 26^th of May, 2005 police visited their bouse and questioned them with whom and how Shazia had left the house and they narrated the facts. Thereafter police went to Samena's house but Samena's was not there. But Samena was thereafter arrested and after confronting Sameena and Ishfaq Kenue with each other, Ishfaq Kenue stated before the police that Sameena had given him a cell phone and Ishfaq Kenu remained in police custody for 14 days. Upto 26^th of May, 2005, Samena would be kept in police custody and would be permitted to visit her house as well and when the police found clue then she was arrested. In police station they saw Samena and two other persons who had been apprehended by police concerned. Samena, accused, present in the court was identified by this witness. The two other persons arrested by the police were not known to him. But were the residents of the neighourhood of Mst. Samena paternal family. On 30^th of May, 2005 police took out two persons, Zahoor Ahmed and Bashir Ahmnad from lock up and put them in a vehicle and he, his son, Reyaz and relative Ghulam Mohammed Shera were made to sit in another vehicle and they were taken towards Soura which is known as 90' road. Then both the vehicles were stopped and Zahoor Ahmed and Bashir Ahmed also alighted from the vehicle, whereas Zahoor Ahmed accused took out one scarf and chapal from under grass on the roadside of the road and accused No.2, Bashir Ahmed took out one kada, hair band and watch which had been concealed under stone near black colour gate and police prepared recovery memo EXPW-3/2 which bears his signature. The witness has admitted the contents of EXPW-3/3 to be true and correct and identified the recovered items in the court. The identification memo EXPW-3/4 was also admitted by this witness to be true and correct. The witness has identified the accused Bashir Ahmed in the court as being the same person who had recovered the items mentioned in EXPW-3/2. Shazia had not married but was engaged to one Nasir Maqbool. When Shazia had left her house she was carrying a cell phone.

In his cross examination by the learned counsel for the accused No.2, the witness has stated that Ghulam Mohammed Shera is his cousin and lives at a distance of 800 meters from his house. On 28^th of April, 2005, Ghulam Mohammed Shera had not mentioned anything with regard to the deceased. When the daughter was shown to him by a child, he, his wife and Ghulam Mohammed Shera went to the police station and then their neighbours also visited the police station. Mst. Jalla Bano also visited the police station, Sumbal but was in a shock. In police station Sumbal they saw the shirt purple colour of deceased and he identified the shirt as being of the deceased. At the time when the dead body was exhumed the police personnel from police station, Khanyar were also present. They did not mention before the police that the deceased was wearing a hair band, a silver kada and a watch as well. When when 1-2 months elapsed from the date of occurrence he mentioned about the missing wearing items to the police on 28^th of May, 2005. He told the police that the deceased was carrying a cell phone and she be contacted on the same and he also tried to contact the deceased on the said cell phone but found the cell phone switched off. When the deceased left the house on 26^th of April, they had not contacted the deceased on her cell phone but tried to contract the deceased on 27^th of April. They could not contact the deceased on cell phone on 26^th of April because all the family members were looking here and there for the deceased. He tried to contact the deceased from STD booth. They made mention of the cell phone in the application filed before the police. Upto 28^th of May, 2005 only Ishtiyaq Ahmed Kenu S/o Abdul Ahad Kenu R/o Akalmir Khanyar was in police custody and he had been arrested because the cell phone of the deceased Mst. Shazia waqs with Ishtiyaq Kenu. When Ishtiyaq Kenu was questioned by the police with regard to the possession of mobile he revealed before the police that the cell was given to him by Mst. Samena and then Mst. Samena was being called to the police station for questioning from time to time. They were not knowing that the cell phone of the deceased had been with Ishtiyaq Kenu. He first saw Zahoor Ahmed Wani and Bashir Ahmed Sheikh in the police station on 30^th of May, 2005. On 29^th of May, 2005, Mst. Samena had been taken into custody. When they accompanied the police for effecting the recovery they were not knowing for what purpose police were taking them that is why they had not offered to the police for taking alongwith any respectable of their Mohalla. They signed some papers on spot at the time of recovery but does not remember how many.

In his cross examination by learned counsel for the accused No.3, the witness has stated that on 29^th of May, 2005 Mst. Sameena was in the custody of lady police. Mst. Sameena was a frequent visitor to their house. On 28^th of May, 2005 police visited their house and told them that they had collected some clues which lead to accused, Mst. Sameena. They had not borrowed any money from Samena's in-laws or husband. The witness has denied that he had borrowed Rs.50,000/- from Samena's family and since the demands for repaying the amount was made by Samena's family, they implicated Samena.

(iii) PW Reyaz Ahmed Kawa, has stated that Shazia was his cousin and since the mother of Mst. Shazia had died when Shazia was only 4 months old. Shazia was adopted by his family and was brought up in their house at Khanyar and was studying in TDC in Nawakadal College. On 25^th of April, 2005 at about 6.30 p.m. they were in their house when accused No.3, living in their neighbour hood visited their house and asked the permission of his mother for taking Mst. Shazia with her for some shopping at Khanyar market near shrine. When Shazia did not return upto 7.30 p.m. they went to the house of accused No.3 and asked her where Shazia was and they got the reply from accused No.3 that she had dropped the deceased at their door. Upto 26^th of April, 2005, they enquired about the whereabouts of Shazia from the neighouring houses and their relatives but could not find Mst. Shazia. Then they went to the police station Khanyar on 26^th of April, 2005 and informed the police about the Mst. Shazia having gone missing but were advised by the police to go in search for Mst. Shazia again. On 28^th of April, 2005 Mst. Jalla Begum lodged a written missing report in the police station. On 8^th of May, 2005, they wrote a news item in the newspaper that a dead body had been fished out from river Jehlum by police station Sumbal and the dead body was unidentified. Then they went to police station Sumbal and informed the police that Shazia was missing and also wanted to know about the wearing items of the unidentified body. Thereafter the police Sumbal showed them the ear rings and shirt, sweeter and they identified the said items of being Shazia and thenm they demanded the dead body from Sumbal police. But Sumbal police expressed their inability and advised them to approach DC Baramullah. They approached DC Baramulla for the possession of the dead body of the deceased. Then DC marked their application in the name of SSP Barmulla and SSP Barmulla marked the said application in the name of SP Ganderbal and SP Ganderbal sought report from SHO Sumbal with regard to the application. After getting the comments from SHO Sumbal they again approached DCBaramulla and thereafter SDM Sopore was authorized to exhume the body in presence of police and BMO and the dead body was exhumed and handed over to them and then was burried in their ancestral graveyard situated at Rainawari on the same day i.e. 10^th of May,2005 when it was exhumed. On 13^th of May, 2005 fourth day of the deceased was observed by them and on the same day police concerned apprehended one Ishtiyaq Ahmed Kenu S/o Ab. Ahad R/o Kawamohalla. Ishtiyaq Ahmed remained in police custody for 14 days and during that period the cell phone of Shazia was recovered from him which had been taken by her when she left for market with accused No.3. After 14 days in police clock up Ishtiyaq Ahmed disclosed that he had been given the cell phone by accused No.3, Mst. Samena bearing No.9906707109 and on 26^th of May, 2005 police arrested accused No.3 and on 26^th of May, 2005 Ishtiyaq Ahmed Kenu confronted Samena in his presence that she had given him the mobile and also confronted Samena that she was having witness in whose presence Samena had given him the mobile. On 26^th of May, 2005 Mst. Samena stated that she had committed a mistake and she be saved. She also stated in his presence that infact she had enticed the deceased and took the deceased with her and handed to Zahoor Ahmed and Bashir Ahmed, the accused persons and on the same day Zahoor Ahmed was arrested and Bashir Ahmed was arrested on 27^th of May, 2005. The accused persons Zahoor Ahmed and Bashir Ahmed made a statement before the police that they had hatched a conspiracy with Mst. Samena and Mst. Samena had brought Shazia to them and then both had illicit intercourse with the deceased and then on 30^th of May, 2005 the accused Zahoor Ahmed and Bashir Ahmed Sheikh took the police to Soura 90’ feet where Bashir Ahmed recovered from under a stone Shazia’s hair band. Watch and silver kada and accused Zahoor Ahmed recovered scarf and chapel of deceased Shazia and then police prepared some documents with regard to the said recovery and he put his signatures on the same. The witness has identified his signatures and has admitted the contents of EXPW-3 to be true and correct. He has also admitted his signatures on the receipt of body, EXPW-3/1 and also recovery memos EXPW-3/2 and EXPW-3/3. The identification memo EXPW-3/4 was also admitted by this witness and also another memo of identification EXPW-3/5 and EXPW-3/6. The witness was shown the recovered items mentioned in EXPW-3/2 and 3/2 in the court and has identified the same which were recovered in his presence by the concerned police at the instance of accused persons. The items identified by this witness in EXPW-2/3 and 3/2 are marked as A, B,C ,D and E respectively. The shirt/sweeter and golden ear rings recovered by police Sumbal from the deceased at the time of her burial were shown to the witness and the witness identified the same which were put in one bundle and have been marked as Mark ‘F’.

In his cross examination by accused No.2, the witness has deposed that police concerned visited Samena’s house on 26^th of May, 2005 but she did not present herself before the police and then the police concerned directed the mother-I n-law of Mst. Samena to produce Mst. Samena in the police station at 10 and then Mst. Samena was produced in the police station and it was at the instance of Mst. Samena that accused Zahoor Ahmed and Bashir Ahmed were arrested. Zahoor Ahmed was arrested in the evening of 26^th of May, 2005 whereas Bashir Ahmed was arrested on 27^th of May, 2005. If the police has shown the arrest of Zahoor Ahmed and Bashir Ahmed prior to Samena it would be incorrect and can be explained by the police itself. Ishtiyaq Ahmed Kenu had been apprehended by police concerned prior to 29^th of May, 2005. He had deposed before the police on 28^th of May, 2005 and had informed the police verbally on 26^th of May, 2005 and then a written missing report was lodged by her mother on 28^th of April, 2005 when he was accompanying his mother. On 28^th of April, 2005 they had stated before the police that the deceased had left the house with Mst. Samena and did not return. What was got written in the application by his mother he does not know? At the time when deceased left with Samena for the market he, his father Ab. Aziz Kawa, his mother, Jalla Begum, Mst. Kulsuma, his sister Arifa, brother Nissar Ahmed were present in the house. They were having very deep relations with the in-laws of Mst. Sameena. They had informed the police prior to 14^th of May,2005 that deceased was carrying a cell phone on 28^th of May, 2005. On 29^th of May, he did not go to 90’ road and Ab. Aziz Kawa and Gh Mohammed Shera were also with them. The Mohalla President Abdul Ahad Kenu did not accompany them to the police station as his own son, Ishtiyaq Kenu was in police custody at that time in connection with this case. They straightway went to 90’ road and reached the spot within 10 minutes. The accused alighted from the vehicle together but Bashir Ahmed was walking ahead of Zahoor Ahmed. Accused persons were in one vehicle and they were traveling in another vehicle and there was only four feet distance in between the two vehicles. On whose instance the police gypsy stopped he does not know because he was traveling in another vehicle. Police had not called any other person from the locality as locality is far away from the spot and no person was passing that way. On the right and left side of the spot, where they alighted from the vehicles, there was no house adjacent and the land is vacant from right and left side of the road. The accused, Zahoor Ahmed, took out scarf and chapel from under litter. No person was walking at that time on the road and when Bashir Ahmed accused took out the hair rubber band and silver kada from under the stone no person passed by that way. The stone was not seized by the police’s presence. The litter was in the shape of some wet grass. He did not sign the documents in the police station but the papers regarding the recovery were prepared on 90’ road and he put his signatures over there. Zahoor Ahmed, accused, recovered seized items from one side of the road, whereas Bashir Ahmed took out the recovered items from the otherside of the road.

In his cross examination by learned counsel for the accused No.3 he has stated that in-laws of Mst. Samena and they are living as neighbors for the last 27 years and Samena is known to him right from the date when she got married in their neighbours house. First his mother went to Samena’s house in order to enquire about Shazia and then all the family members including him went to know about Mst. Shazia from Samena and visited their house. On 26^th of April, 2005 Mst. Samena was in her in-laws house. In his presence Mst. Samena confessed that she committed a mistake. At that time four police personnel were present. He last saw Shazia leaving with Mst. Samena and then 14 days after he saw the dead body of Mst. Shazia. Mst. Shazia and Samena accused were having good rapo but were not friends. They used to treat Samena as their own sister. Deceased and Samena were not having any transaction. When the deceased left the house with Samena she was wearing purple colour shirt and shalwar, black sweeter and black dupata. Mst. Samena never talked to any body in the neighborhood in a raised tune. Deceased would leave for the college and would return back at 4 p.m. Deceased was having a mobile phone which had been given to her by Nasir Maqbool her Fiance. Deceased was engaged to Nasir Maqbool prior to the occurrence. Ishtiyaq Ahmed Kenu is resident of their mohalla.

(iv) PW Ghulam Ahmed Shera has stated that deceased Shazia was known to him who was friendly with accused Samena. He does not know how the deceased got killed. Dead body of deceased Shazia was brought from Sumbal and he was with the dead body which has been exhumed from Sumbal graveyard and then was buried in Kakasarie graveyard. He also accompanied the police and the accused persons when the police went to 90’ road. He was traveling in a sumo whereas accused No.1 and 2 were traveling in gypsy and then at a instance of accused persons some articles were recovered which were not shown to him as he was standing at a distance of 12 meters and he put his thumb impression on a paper. This witness has admitted the contents of recovery memos EXPW-3/2 and 3/3 to be correct and true. He had not seen the accused No.1 and 2 prior that day when they visited 90’ road alongwith the police in connection with the recovery. He did not put his thumb impression on any of the papers at Sumbal. Deceased was buried in the graveyard situated at the backside of Rainawari hospital. He does not know who had kidnapped Shazia and who had murdered her. No question was put to this witness by defence counsel for accused No.3 and has replied to the question of defence counsel of accused No.2 that he does not know what accused means.

(v) PW, Ishtiyaq Ahmed Kenu, has stated that Mst. Samena is known to him as she was his customer. His medicine shop is situated at Kawa Mohalla and Samena would purchase medicines from his shop. A year back one day Samena came to his shop and handed over a cell phone to him by saying that the cell phone belong to her friend and then he kept the cell phone with him. At that time accused Samena was disturbed when she handed over the cell phone to him. But Samena did not came back to take the cell phone from him. He went to Pulwama to attend some work and took the mobile with him because his daughter was not well and he carried the cell phone in order to know about the health condition of his daughter. He made a phone call from Pulwama to his residential phone in order to know about the health of his daughter. When he returned back he heard that a dead body of a girl was brought and police was enquiring about the cell phone. When he heard about the same he got nervous and he threw the cell phone in river Jehlum at Fatehkadal. The dead body was brought to the house of Abdul Aziz Kawa. Kawa Mohalla is adjacent to Kulepora. He was called to the police station by a telephone call and he went to the police station. Police asked him that a call was made to the mobile phone from his house and he admitted about the same. His residential phone No. is 4599865 and he had called on the said number from the mobile phone on 8^th of May, 2005. When Mst. Samena gave him the mobile she was nervous and when he insisted why she was nervous Mst. Samena told him that her husband if spotted the mobile with her he would ask her where from she got the mobile.

In his cross examination by the learned counsel for the accused No.3 the witness has stated that in 2005 he was married. It is also true that he made phone call to Mst. Rozy. But it is wrongly written in 161 statement attributed to him that he made some SMS from mobile phone No.9906504937 to the telephone of his girl friend. When he came back from Pulwama on 8^th of May he threw the cell phone in river Jehlum at about 5 p.m. and then on the same day he was called to police station. He deposed before the police where from he had thrown the cell phone in river Jehlum. He was not friendly with Mst. Sameena. The witness has denied that he was instrumental in getting the deceased Shazia kidnapped and that is why he threw the mobile phone into river Jehlum.

In his cross examination by learned counsel for the accused No.2 the witness has stated that he remained in police custody for 20 days. He threw the mobile in river Jehlum because the dead body had been recovered and he got scared. Shazia deceased was not known to him. Samena had given him the cell phone. Since the police was in search of a mobile phone he got nervous and then threw the mobile phone in the river. After the dead body of the deceased was recovered the police would call him to the police station for questioning and during the questioning he admitted that mobile phone was with him.

(vi) PW, Fayaz Ahmed Peer, HC 459/CR has stated that in April, 2005 he was posted as HC in police station, Khanyar and he conducted photography of the spot where from the deceased had been kidnapped and then also viedographed the spot where the deceased was rapped and then was thrown into the river. This witness has admitted the photographs Mark A to Mark-G to be true and correct and has identified the photographs as being the same which were taken by him.

In his cross examination at the hands of defence counsel of accused No.2 has stated that he clicked the photographs Mark A to G at the orders of SHO Khanyar. No question was put to this witness by defence counsel for accused No.3.

(vii) PW Altaf Hussain has stated that in the month of May, 2005 he was posted in PCR as constable photographer and was directed by his officer to assist the investigating agency in one case in police Station, Khanyar. He then vedeographed the statement of accused, Zahoor Ahgmad Wani, in presence of SHO and then also vediographed the spot of Babademb where from the deceased had been made to sit in a vehicle and then taken to 90' road where the girl was rapped and killed and he also vedeographed the spot where the dead body of the deceased was thrown into the river. On 4^th of June, 2005 he again went to the police station Khanyar and videographed the postmortem which was conducted of the dead body. He videographed the disclosure statement of accused Zahoor Ahmed Wani and the accused Bashir Ahmed and they led the investigating agency to the spot at Babadem wherefrom the girl was made to sit in a sumo and then was taken to 90' road and was rapped. Thereafter the accused persons also led the investigating agency to the spot where the dead body of the girl was thrown into the river. The whole process was vediographed by him. He also vedeographed the exhumation of the dead body. The river in which the dead body was thrown flows through Ganderbal. After taking the vedeography vedeo casettee was handed over by him in the office of Crime Photo section PCR through which the vedeo casette were handed over to the I.O. After making the arrangements for viewing the vedeography of the disclosure statements and the recovery the witness identified the vediography being the same which had been vediographed by him and the vedio casettee put with an exhibt EXPW-7. Whatever statements the accused persons deposed before the investigating agency he heard and also vediographed the same.

In his cross examination at the hands of defence counsel of accused No.2, the witness has stated that in the intervening nighthe went to police Station, Khanyar. He conducted the vediography of the disclosure statement as well as spots on 28^th of May, 2005 till 6 P.m. in the evening.Their vediography in presence of SHO and DYSP and the disclosure statement was not recorded by SHO in presence of Dy.SP. the accused was being questioned by SHO and DY SP and the accused, Zahoor Ahmed Wani was replying. After completing the vediography his statement was recorded byf SHO. He does not remember whether the statement of Zahoor Ahmed Wani which was vediography by him was recorded by any of the police personnel. The accused whose disclosure statement was vediographed by him has died. The accused Zahoor Ahmed disclosed in his presence that during rape the deceased died. Accused zahoor Ahmed had not said any thing whether accused Bashir Ahmed had also raped the deceased. No question wass put to this witness by the defence counsel of accused No.3.

(viii) PW, Tariq Ahmed No.7870/NGO has stated in examination in chief that in May, 2005 he was posted as Probationary Sub Inspector in P/s Khanyar and he conducted 80% of the investigation of the case. In the month of April, 2005, Mst. Jalla Banoo, maternal aunt of deceased Shazia approached police station Khanyar and stated that the deceased had left in the evening of 24^th of april, 2005 for purchasing some shampoo and did not came back. He advised Mst. Jalla Bano that since it was a matter of a young girl she should look in discreetly here and there for her and if the girl is not found then they will start looking for the girl. During a light conversation it was told by Jalla Bano that Shazia wanted to marry a boy of her choice and then after some initial resistance their family consented and Jalla Bano expressed that she apprehended that Shazia may have eloped with that boy. He then told Jalla Bano that it was not convincing because there was no reason to elope with the boy for Shazia when she was expected to get married with that boy and then asked Jalla Bano to give a photograph of Shazia to him. Two days after Mst. Jalla Bano again approached police station and stated that despite their search for Shazia, Shazia was not traced. Mst. Jalla Bano also told him that the girl Shazia was raised by her as her own daughter as being orphan and nobody looked after her in her house. Then Mst. Jalla Bano lodged a written complaint in the police station and also handed over the photograph to them and also gave photograph of that boy with him Shazia was having affair. He first interrogated the boy whose photograph was presented before the police station by Jalla Bano and during questioning came to know that Mst. Shazia was carrying a cell phone which had been given to her by that boy. Thereafter he went to Shazia’s aunt’s house and came to know that Shazia was having a cell phone which she would hide and he was satisfied that the girl would be having love affair with some boy with whom she may have eloped. Three days after he was sitting in his residence situated at Bemina when he was informed by Munshi of the police station that the missing girl Shazia’s dead body was found in Sumbal and also told him that the news item was carried regarding the dead body in the local newspaper. But Shazia’s relatives were saying that the dead body was of Shazia. After hearing this news he rushed to the deceased house where many relatives had assembled. He alongwith six police personnel and some respectable persons of Kaawa Mohalla including some women boarded vehicle and went to Sumbal police station. When he enquired about dead body from SHO Sumbal he was told that the body was decomposed and after preliminary postmortem the dead body was buried and the SHO also expressed his opinion that perhaps the deceased had died due to drowning. SHO had taken photograph of that decomposed body. He showed that photograph to the two maternal cousins of Shazia and one of the cousin cried loudly and said that the body was of Shazia and then SHO informed them that certain articles were recovered from dead body in the shape of black colour sweeter, purple shirt, ear rings. Sweeter and shirt had been torn and was used as a shrowed. Then he told the relatives of the deceased that if they wanted exhumation of the body then had to seek permission from DC concerned. Then three persons boarded a sumo and came back with the permission of exhumation in the evening to Sumbal. One copy of the permission was handed over to SHO Khanyar and another copy was handed over to Medical Officer, Sumbal and another to NT Sumbal. After that the dead boy was exhumed in presence of a lot of people who had assembled and the police had to lathi charge in order to control the mob. The condition of the dead body was very bad. Sumbal police had completed the inquest proceedings under section 174 Cr. P.C. and during the inquest proceedings the Medical Officer had opined that it appear a case of drowning, Asphyxial death. When he saw the dead body he at that point of time got convinced that the matter is a rape case because both the legs of the deceased were broken and her eyes were open. He then told the Medical Officer that if a thorough postmortem of the dead body is needed, then he should do that immediately so that the decomposed dead body is buried but the Medical officer told that there was no facility available with him and he could not do complete postmortem. Since the people were angry and the body was also in a bad shape they got the dead body immediately to P/s Khanyar and then brought the respectable of Kaw Mohalla and after inter acting with the respectable of Kaw Mohalla the dead body was buried in Malkah graveyard and there was a law and order situation due to the said occurrence. On the next day the inhabitants of Khanyar area took out the protest rally and since there was a lot of anger in the area and law and order situation deteriorate and most of the women folk were raising slogans that the accused be brought to the book. He apprehended that boy with whom the deceased had an affair so that he was not harmed. When he interrogated the said boy he became satisfied that the boy was not involved in the occurrence. Meanwhile the younger brother, of that boy with whom Shazia was having love affair came to police station and told him that he had rang the cell phone which was with Shazia but some body disconnected. He advised both the brothers not to divulge this fact of cell phone to any body and then approached the Airtel people for call details of Shazia’s cell phone and got the call details and as per call detail of 24^th of April, at evening at about 6.40 p.m. a call was made to the cell phone from one BSNL cell phone No. which was of Shazia’s sweet heart. From 24^th April, from 6.49 p.m. there was no call made to the said cell phone No. or from cell phone to any other number. But perhaps between 16^th to 18^th as per call details three calls were made from the said cell phone and one SMS was also sent from the cell phone. He tried all the four numbers. One Number which was recorded in the cell phone of Shazia had been made to landline and he then gave a ring to the landline which was picked up by some Ab. Ahad Kenu. When he tried to enquire about Shazia’s case from Ab. Ahad, the said person avoided. Then two numbers which figure in the call details were also given ring by him which led him to a girl of Rainawari and he directed the girl to appear in the police station alongwith some elder of the family. Then he questioned that girl thoroughly. Then she knew one Ishtiyaq Ahmed Kenu S/o Ab. Ahad Kenu and the SMS which had been received on Shazia’s cell phone had been received from unknown boy from Khanyar who was Ishtiyaq Kenu’s friend. That girl disclosed that she had given her cell phone to Ishtiyaq Kenu and he got satisfied that Shazia’s cell phone was with Ishtiyaq Kenu. Then he directed Ab. Ahad Kenu to present Ishtiyaq Kenu in the police station. Next day Ab. Ahad Kenu produced his son, Ishtiyaq Ahmed Kenu in the police station alongwith two other respectable of the locality. When he asked Ishtiyaq to handover Shaziyaz’s cell phone to the police he first avoided and when he disclosed about the four calls given from Shazia’s cell phone and also revealed the disclosure of the girl of Rainawari who had been talking to Ishtiyaq Ahmed Kenu and threatened him that he will divulge the whole matter to his fater, then Ishtiyaq Kenu, disclosed that when he came to know that the police station was in search of cell phyone of Mst. Shazia he threw the cell phone in river Jehlum at Fatehkadal. When he questioned why he threw cell phone in the river Jehlum he replied that since the police was looking for Mst. Samena who had handed over the cell phone to him, he got nervous and threw the cell phone in river. When he went in search of Mst. Samena to her in-laws house he came to know that Samena had gone to her parental house and then he left a direction to the in-laws of Mst. Samena to produce her before the police station alongwith husband. On the next day Mst. Samena came to Police station alongwith her husband, brother-in-law and four respectable of the Mohalla and he questioned Samena in presence of her husband. First Samena denied that she ever gave cell phone to Ishtiyaq Kenu despite their lot of pursuation Samena stated that she had not handed over the cell pyhone to ishtiyaq Kenu but when Ishtiyaq Kenu contronted Samena, she broke down and admitted and at the instance of her husband who told Samena that if she would not co-operate with the police their house will be burnt down by the people and he will be forced to divorce her and them Mst. Samena gave the real story about how Mst. Shazia went missing and disclosed that on the fateful day when the deceased went missing , one day prior to that one boy, Zahoor Ahmed R/o Hazratbal, gave her a phone call and insisted that she should arrange a meeting of Zahoor Ahmed with Shazia and on the date of occurrence deceased accused, informed Mst. Samena that he will come in his own vehicle and she must get Shazia to meet him on any excuse and will be accompanied by his brother in law Bashir Ahmed, accused. Samena also stated that 10 minutes to 7 on the date of occurrence the accused No.1 and 2 who were in a vehicle stopped near transformer Babademb and Samena reached that spot alongwith Shazia. Bashir was driving vehicle and Zahoor came down. Samena also admitted that she brought Shazia at Babadem on the pretext that why Shazia had abused Zahoor Ahmed despite having received some articles from Zahoor. Then Zahoor told that it was a matter between Shazia and him and suggested that they will settle the matter in the vehicle as it was raining. As per Samena’s statement, mst. Shazia seated on the back seat of the vehicle. Then accused Zahoor told Samena that he will talk to Shazia on his own and asked her to get down from the vehicle and promised Samena that they will get Shazia back after some time. Samena also stated that when she got down from the vehicle, the accused took Shazia with them and despite waiting for 20 minutes there when Shazia did not come back then she went to her own house. It was also stated by Samena that when Shazia did not return to the house, Jalla Bano and other family members of Shaziz came to their house and enquired about Shazia and when Samena’s in-law told them that Shazia had not come in the evening to their house, Shazia’s cousin told Samena that Shazia had left the house with her for getting some shampoo and it was also stated by Samena that she told the cousin of Shazia that when she had left for making purchases Shazia received a phone call from her sweet heart and may be Shazia has gone to meet her sweet heart. When Shazia’s family went to the house of that boy which is situated near Babademb bridge and asked about Shazia that boy said that since he was getting married to Shazia why should he keep Shazia with him and expressed his ignorance about the whereabouts of Shazia. Shazia’s family had also looked for Shazia in the houses of different friends of Shazia and the phone numbers of the friends of Shazia were provided to Shazia family by that boy. When they again interrogated Sameena, she broke down and confessed that Shazia was killed. Thereafter at the orders of DIG, investigation was handed over to Inspector Tariq Ahmed in the overall supervision of SP, North, Bashir Ahmed Khan and SDPO, Ali Mohammed Shah. Then the I.O. again questioned Samena in his presence. When accused 1 and 2 came to know about the arrest of Samena, the team of investigation including him went in civic to the house of Zahoor Ahmed but Zahoor Ahmed was not there and Zahoor Ahmed’s brother told tham that he has taken his vehicle and gone some where. On this information many Naka’s were erected within the city. When Zahoor came to his house, his brother was driving the vehicle and then he introduced him and arrested Zahoor Ahmed and kept Zahoor Ahmed with the army police bunker. Within two minutes SHO came on spot and Zahoor Ahmed was arrested and taken in the vehicle of police to police station for investigation In the vehicle Zahoor Ahmed was asked about where Bashir was who lead them to the shop of Bashir Ahmed, situated opposite University and then on their way to police station they arrested Bashir Ahmed as well and brought them to the police station. During their questioning the accused persons 1and 2 made disclosure statements and they recorded the disclosure statement of both the accused persons. In his presence Zahoor Ahmed disclosed that Shazia was seen by Zahoor in the parental house of Mst. Samena in a marriage party and liked the girl. Accused also revealed that Samena and Zahoor were having love affair from their childhood and wanted to marry each other but Samena’s parental family did not agree to the match and in order to dissuade him from meeting Samena some milintant intervention was sought from the family of Samena and they could not marry. Then Samena got married. But the illicit relations continued between Zahoor and Samena despite Samena’s marriage and birth of two children. Since accused Zahoor was having illicit laison with Samena, he planed to approach Shazia through Samena. Shazia was a student of women college, Nawakadal and Zahoor Ahmed approached Shazia 2-4 times and pastered Shazia to have illicit laison with him. As per disclosure statement of Zahoor Ahmed Shazia told frequently to Zahoor Ahmed that she was already involved with a boy and wanted to marry the boy of her choice and had requested Zahoor not to pester her for any kind of connection. Zahoor also disclosed that when he failed to have any laison with Shazia he planned to take Shazia forcibly and then a day before Shazia got missing approached Samena for meeting Shazia and in order to give shape to his plan Zahoor alongwith Bashir, the other accused, reached near Zindshah Masjid at about 5 p.m. and had planned the same. Meantime Samena, as per the disclosure statement of Zahoor, received a phone call from Zahoor and Samena insisted that her husband was not at home Zahoor must come and meet her. Zahoor blackmailed Samena that in case she cannot arrange a meeting between Shazia and him, he would not come to meet her. Then Samena promised that she will get Shazia to meet him. Since Zahoor and Zahoor’s brother-in-law, Bashir, had old friendship and were knowing each others secrets, Zahoor as per the disclosure asked Bashir to accompany him. Then Zahoor left his brother at Rainawari. When Bashir asked Zahoor where they were going, first Zahoor avoided and then disclosed that he was going to meet one girl Shazia and if Shazia would not consent to illicit intercourse they will lift her forcibly. In furtherance of this intention, both the accused persons planned how they will lift the Shazia and then as per Zahoor’s disclosure statement, Shazia was got into the vehicle and was taken to many places in the pheripery of Srinagar and at least was brought to 90’ road and the vehicle was stopped. At the instance of Zahoor Ahmed, basher got down from the vehicle. Then Zahoor Ahmed Smuthered Shazia’s mouth and nose with Shazia’s vail and then tore away pajama of Shazia and raped her. Zahoor also threatened Shazia that if she would not allow him illicit intercourse he will harm his family members as well as her fiance. Zahoor ahad also disclosed that when he completed the rape he found the girl without any life and told Bashir that Shazia was without any life. Zahoor also disclosed that he had promised Bashir that first he willhave illicit intercourse with Shazia and then Bashir will do the same. It was also disclosed by Zahoor that he found Shazia bleeding after the intercourse and then he removed the vail from Shazia’s mouth and nose. Then 1-2 slaps were given to Shazia by both the accused persons. When there was no movement in the body of Shazia they came to know that Shazia was no more. Then Zahoor pleaded Bashir to save him as Samena knew about the same and then when Bashir expressed his unwillingness, Zahoor told him that both of them will get wrapped in the same occurrence. Thereafter Zahoor and Bashir planed to throw the dead body into the river and both of them took the dead body to Ganderbal. After removing one silver bangle, hair band from the dead body, the dead body was thrown into Sindh Nalla which passes through Ganderbal and which joins river Jhelum and then when the accused were returning back from Ganderbal a cell phone of Shazia rang which was lying in the vehicle and they switched off the cell phone. Then Bashir told Zahoor to see in the vehicle whether any of Shazia’s article is lying in the vehicle and after searching the vehicle Shazia;s chappal, hair band (blue coloured) and silver bangle and scraf was found. Then Bashir suggested to Zahoor that they will destroy these articles so that no evidence remains available and then both the accused went to 90’ road and the (Shazia’s) above mentioned articles were buried there. The disclosure statements of the accused were recorded separately. He also put his signature on both the disclosure statements. Accused Zahoor Ahmed made disclosure statement in Kashmiri language that he had concealed veil and chappal of Shazia near a gate under stones and can get the same recovered. The articles which were disclosed by the accused zahoor Ahmed were recovered at the instance of Zahoor near the gate under from the stones and Bashir also lead the investigating agency to the recovery of one silver bangle, watch and hair band which he had concealed in a heap of garbage. The witness admitted his signatures on the disclosure statement of Zahoor Ahmed which has been marked as EXPW-8. This witness ,has also admitted the contents of disclosure statement made by accused, Bashir Ahmed, EXPW-8/1. After recording the disclosure statements of the two accused persons SHO, HC-Ghulam Rasool and some other police personnel boarded two vehicles and the accused persons were taken to the spot in two different vehicles for identifying the spots and also for recovery so that no doubt remains in the investigation. In first vehicle accused, Zahoor Ahmed was taken to the spot in the supervision of SHO while Bashir Ahmed accused were taken to the spot under his supervision in another vehicle. Both the accused persons identified the spot wherefrom Shazia was taken into the vehicle and then the spot where the rape and murder was committed, was also identified by the two accused persons. They were accompanied by photographer and vediographer who photographed and vediographed the spots. The accused Zahoor Ahmed who had concealed the articles of deceased near the gate under the stones and the recovery and seizure memo EXPW-3/2 was prepared. He also signed the same. The recovered articles mentioned in EXPW-3/2 were shown to the witness in the court and he identified the same in the open court being the same which were recovered at the instance of accused No.1. Then another recovery memo, EXPW-3/3 was prepared which was signed by him, regarding the articles which were recovered at the instance of accused No.2, which had been already given the mark of identification as mark D&E. The scaraf was not shown to the witness. After effecting the recovery they went to the spot where the accused 1 and 2 had thrown the dead body of Shazia into river Singh. Then they came back to the police station. The application which was filed by Mst. Jalla Bano in the police station alongwith photograph was shown to him, has been given Mark “T” had been proved and had been exhibited as EXPW-1 and the photograph of Shazia, Mark “J” was also shown to this witness. A copy of Urdu Daily Alsafa dated 08-05-2005 mark T/1 was obtained by him which had carried the news item regarding the dead body of the deceased. He obtained the photographs of the dead body from Police station Sumbal, marked as T/2 and T/3 which were taken by police station Sumbal during the inquest proceedings under section 174 Cr. P.C. the call details which had been sent to him through E-mail by Airtel concern consisting 3 pages marked ¾ regarding which seizure memo EXPW 8/TA bearing his signature and its contents are true and correct. The arrest memo EXPW-8/TA of Zahoor Ahmed bears his signature and its contents are true. The dead body after its burial at Malkah grave yard was exhumed as per orders and was subjected to postmortem which was shown to a team of Doctors under the supervision of Dr. Balbir Kour. At the time of exhumation of dead body of the deceased family memgers were also present alongwith Executive Magistrate and him. As per the statement of Samena, Samena had enquired from accused, Zahoor Ahmed on telephone why Shazia had not come back and accused had told her that since there was some scuffle due to which Shazia has to be hospitalized and will return within ½ days. Samena also told them that then she went to Hazratbal and asked where Shazia was and Zahoor told her that Shazia was not well and directed her not to disclose the same to any body and then handed over Shazia’s cell phone to Samena and that is how Samena has procured the cell phone of Shazia from Zahoor. As per Samena’s statement Zahoor had given her Rs.10,000/- for not divulging the facts to any body that Shazia had been taken by the accused persons in a sumo vehicle.

In his cross examination by the learned counsel the accused No.2, the witness has stated that Zahoor Ahmed accused was arrested on 28^th of May, 2005 whereas Samena was arrested on 2^nd of June, 2005. Accused Zahoor ahad committed suicide, most probably within 10-15 days from his arrest. They have conducted the proceedings under section 176 Cr. P.C. with regard to the suicide of accused, Zahoor Ahmed, by Judicial Magistrate and statements were also recorded. One year prior to the occurrence, accused had seen Shazia at Hazratbal in a marriage ceremony in the parental house of Samena. During investigation he alongwith other two officers would sit for questioning. Two days after when Shazia was buried in Malakah graveyard Ishtiyaq Kenu admitted that he had thrown the cell phone in river jehlum which they could not recover despite their many attempts. Mst. Shazia fiance was also brought for questioning but he does not remember his name but can identify the same. The phone call which Shazia had received on cell phone when she left her house with Samena it was the phone call from her fiance. The STD booth was owned by Mr. Kenue wherefrom Samena made phone calls. They could not get the details because many people make phone calls from STD booths. Whatever he did during the investigation was at the orders of SHO. Whether STD booth owner Mr, Kenu has been cited as a witness he does not know, I.O. must be knowing. Bashir Ahmed, Samena and STD booth owner, Mr, Kenu deposed regarding Samena making phone calls from STD. It was when Samena disclosed that Shazia had been murdered that at the orders of DIG, the investigation was handed over to Inspector Tariq Ahmed and Samena had been taken into custody by I.O. Till the investigation was handed over to Inspector Tariq Ahmed by DIG, he was investigating the matter. Case diaries were properly maintained after the investigation was handed over to Inspector Tariq Ahmed till then he was looking for Shazia when the missing report was filed by Jalla Bano and he was recording the minutes in a diary. He did not prepare any document during the investigation but I.O. did. When the fiance of Shazia was brought for questioning to the police station and no clue could be found, they let him go. They were calling Ishtiyaq Kenue to police station for 5/6 days. His statement under section 161 Cr. P. C. was recorded by the I.O. He did try to call the cell phone of the deceased from the landline of police station. Whatever he would bet connected to the cell phone of Shazia it would get disconnected and most of the time it would be signaled that the cell is switched off. They asked for the mobile details from Airtel concern through a written docket. They did not approach the Airtel concern between 24^th April, 2005 till 08-05-2005 and it was only after the brother of fiance of deceased divulged about the phone call he had made to the cell phone of Shazia then they approached the Airtel concern for the call details. Samena was brought for questioning prior to the registration of the case but her statement was not recorded. Prior to the disclosure statement made by Sameena that Shazia had been killed no case had been registered but they were conducting the proceedings to locate the missing person. The disclosure statement was made by Samena in his presence and there was other officers also at that time but the disclosure statement whether was then recorded by I.O. he does not know. The disclosure statement of Samena when made before him and the other persons was not recorded in his presence. When they went to 90’ road for recovery they went in one police gypsy and other private vehicle. He, Bashir Ahmed accused and Crime Photographer and other police personnel were sitting. He does not exactly remember who else was sitting in that vehicle but SHO was sitting in the Gypsy. It is true that the spot where the crime of murder and rape had been committed was videographed and some articles from the spot where videographed and the spot was also photographed from which the dead body had been thrown into the Nalla. The accused persons were taken to the spot of crime and recovery only once. It is true that Jalla Bano produced the photographs of Shazia and her fiance before the police. Then Shazia’s fiance was brought to the police station who mentioned about the Shazia having a cell phone. Jalla Bano had not told them that Shazia was carrying any cell phone. The Airtel concern was approached through a communication of SP North. The inquest proceedings under section 174 were conducted by police station Sumbal and not by police Khanyar. The Doctor during the inquest proceedings initiated by Sumbal police conducted postmortem and had given opinon that the death has taken placed due to drowning. The inquest proceedings record was handed over to police station Khanyar by police station Sumbal. When he expressed his opinion with SHO that the matter appears to be a rape and murder when he saw the dead body at Sumbal. SHO told him that police Sumbal was conducting inquest proceedings ,under section 174 and were waiting for medical opinion that is why case was not registered. Accused, Mst. Samena, Zahoor Ahmed and Bashir Ahmed were knowing about the occurrence. One more person knew about Shazia having been boarding the vehicle who is resident of Kawa Mohalla and that person only deposed that Shazia was with Samena and then boarded a vehicle and this was disclosed by that person of Kawa Mohalla only after the case was registered. When there was lot of public hue and cry about Shazia’s getting missing they asked that resident of Kawa Mohalla whe he had not disclosed that that time and he told them that Shazia was frequently accompanying Samena when they would go any where. The accused persons made a disclosure statement in the presence of some relatives of deceased. The person from Kawa Mohalla stated that he had seen Shazia and Samena boarding sumo on the day when Shazia got missing.

(ix) PW, Ghulam Rasool, HC No.2798/S stated that he was posted in police station Khanyar in the month of April-May, 2005. On 28^th of May, 2005 accused, Zahoor Ahmed Wani had been arrested by SHO and brought to the police station. From his personal search one cell phone, gray colour, make Nokia was recovered and seized. Seizure memo was prepared and he put his signature on the same. On 30^th of May, 2005 accused zahoor Ahmed made disclosure statement in Kashmiri language before SHO which was reduced into writing and he put his signature on the same. The witness has identified his signatures on the same. Accused Zahoor Ahmed disclosed that one hair band, watch and bangle of deceased Shazia had been concealed by them near an iron gate at 90’ road under stones and can lead to the recovery of the same. He has admitted the contents of disclosure statement, EXPW-8 to be true and correct. On the next day SHO arrested Mst. Samena through an arrest memo which bears his singnature and its contents are true and correcft and has been marked as EXPW-9. On 3^rd of June, 2005 he was on patrol duty alongwith ASI, Mohammed Ismail near Babademb Gali near a Patrol Pump when ASI, Mohammed Ismail caught a sumo and same was searched and on the back seat of the sumo ASI, Mohammed Ismail recovered two long hair strands which were sealed on spot, seizure memo, EXPW-9/1 was prepared and he put his signature on the same and admits the contents of the same. On 6^th of July, 2005 deceased date of birth certificate was issued by SHO by virtue of seizure memo EXPW-9/2 which bears his signature and he admits the contents of the same. On 30^th of May, 2005 a person, namely, Ghulam Mohammed Shera, appeared in the police station and stated before SHO that he had seen accused Zahoor Ahmed, Bashir Ahmed near Babadem talking to the deceased. Ghulam Mohammed Shera also stated before SHO that he had asked Shazia what she was doing there and deceased had replied that she had come to bazaar for making some purchases and will go back. Then EXPW-9/3 identification memo was prepared which bears his signature and has admitted the same to be true. The certificate of deceased seized by the SHO shown to the witness Marked as ‘GR’ has been identified by this witness to be the same which was seized by the SHO.

In his cross examination by learned counsel for the accused No.2, the witness has stated that he does not know whether Ghulam Mohammed Shera was related to the deceased or not. Ghulam Mohammed Shera had not revealed the name of two persons which were found by him talking to Shazia near Babademb on 30^th of May, 2005. Ghulam Mohammed Shera had seen the Shazia talking to two persons on 25^th of April, 2005. He does not know whether Ghulam Mohammed Shera was asked to identify those two persons and whether any identification parade was conducted by the I.O. Identification memo EXPW-9/3 does not disclose the names of two persons. At the time of disclosure statement of Zahoor Ahmed, He, SHO, Tariq Ahmed, SI were present. First accused No. 1 and 2 were arrested and then Mst. Samena was arrested by SHO and Tariq Ahmed, SI, who were accompanied by lady constable, namely Khalida. In his presence only Zahoor Ahmed made a disclosure statement. At the time of disclosure statement of Zahoor Ahmed no civilian was present in the police station. It is true that passengers travel in a sumo vehicle including female passengers and on 25^th of April, 2005 till June, many passengers have travelled in the vehicle which was caught by Mohammed Ismail ASI.

In his cross examination by learned counsel for the accused No.3 the witness, has stated that at the time of recording the disclosure statement no Magistrate was present in the police station. Ghulam Mohammed Shera’s age may between 45-50 years but he was not wearing any spectacle at that time when his statement was recorded by SHO. His statement was recorded by SHO on 30^th of May, 2005. Ghulam Mohammed Shera had not said any thing about the time when he found Samena, deceased and two persons talking on the relevant day. The two hair strands were recovered and seized and sealed from the middle seat of the sumo vehicle.

(x) PW, Mohammed Subhan No.825/S, has stated in examination in chief that on 30^th of May, 2005 accused, Bashir Ahmed Sheikh was arrested In FIR No.77/05 under sections 302 RPC and was in police custody in P/s Khanyar. Accused, Bashir Ahmed, made a disclosure statement on 30^th of May, 05 in his presence before the I.O. that Shazia’s scarf black colour and red chappal had been concealed by Bashir Ahmed Sheikh at Soura 90’ road under a heap of garbage and he can lead to the recovery of the same. The disclosure statement was reduced into writing and he put his signature on the same as a margial witness. The witness has admitted the contents of disclosure statement EXPW-8/1 to be true and correct and has identified his signature on the same. Accused Zahoor has died.

In his cross examination th learned counsel for the accused No.2, the witness has stated that on 28^th of May, 2005 the case was registered when SHO concerned received an information through his own source that Shazia had been murdered and on this information he recorded the report in Roznamcha. Prior to 28^th of May, 2005 none of the accused had been arrested and were in police custody. After the accused wass arrested disclosure statement was made by accused Bashir in the office of SHO on 30^th of May, 2005 in his presence. Sofar as the disclosure statement of Zahoor Ahmed accused is concerned he had not entered that in the Roznamcha. Neither he made the disclosure statement in his presence. Some other police official must have entered that disclosure statement in the Roznamcha. At the time when accused Bashir ahad made the disclosure statement, I.O. .Tariq Ahmed Inspector and one Tariq Ahmed Sub Inspector and he were present. Prior to 30^th of May, 2005, Bashir Ahmed had not made any disclosure statement. Bashir Ahamed had been arrested on 29^th of May, 2005 at 1300 hours. Bashir Ahmed made disclosre statement in his presence. On 30^th of May, 2005 since accused Samena was not available at Khanyar she could not be arrested on that day.

(xi) PW, Mohammed Ismail, ASI, 6955/NGO, has stated that in June, 2005 he was posted in P/s Khanyar and on 3rd of June, 2005 at the orders of SHO he got the remand of accused Samena. He took accused, Samena from police station Rambagh to LD Hospital for Medical examination and then got the remand from court of competent jurisdiction and after obtaining the remand handed over Mst. Samena to Womens Police Station Rambagh. During investigation SHO had given a direction that whenever vehicle No.3520-JK01F, which was owned by accused, is spoted it should be seized and they were also directed that after seizing such vehicle they should thoroughly inspect and check the said vehicle from inside for finding any kind of evidence. After dropping the accused Samena with Women Police station Rambagh he spoted the vehicle at Ikhwan chowk near Patrol Pump and he at once seized the same in presence of HC, Ghulam Rasool. Aijaz Ahmed driver was driving the seized vehicle. After searching the vehicle he recovered two long hair strands from the middle seat of the sumo which were glued with the seat and it appeared that the hair strands were of a women. He measured the strands which were found 27 cm long and were measured separately. Then he put the hair strands in a paper and seized them in presence of ghulam Rasool HC and driver Aijza Ahmed. Seizure memo EXPW-9/1 is in his hand writing and bears his signasture and its contents are correct. Then he brought the seized vehicle and sealed strands of hair to the police station and handed over the same to the I.O. Seizure memo EXPW-9/1 was written at his dictation by HC Ghulam Rasool. The month which figures in the date of seizure memo was first written by Ghulam Rasool HC as (5) but then was correct and written as (6) because seizure memo was made in June. Since they were under the instrucdtions from SHO/I.O. for seizing the vehicle after spotting the same and he seized the vehicle and prepared the seizure memo. He has got prepared the site map regarding the recovery through Ghulam Rasool HC who prepared the same at his dictation. Any male, female or children passenger can board a commercial vehicle. It is true that male sex have also long hair.

In his cross examination by learned counsel for the accused No.3, the witness has stated that he got the measuring tape from a shopkeeper but he does not remember the name of that shopkeeper and also did not seized the measuring tape. When he seized the vehicle he did inform the police station through a telephonic call but none of the police personnel came on spot. Sumo driver himself disclosed his name and put his signature voluntarily on the seizure memo and he tallied the name of sumo driver with his identity card but did not seize the identify card.

(xii) PW, Aijza Ahmed Pathan, has stated that deceased accused Zahoor Ahmed was known to him who was working in Kashmir University in the Department of Sports. Bashir Ahmed accused is also known to him but accused No.3 is not known to him. Tata Sumo bearing registration No.3520-JK01F was owned by accused Zahoor Ahmed and he was driver of the same. Police would ask the accused to present the same vehicle in the police station and thereafter Zahoor Ahmed’s uncle Ghulam Rasool Wani, he and Ghulam Rasool’s son had brought the vehicle to the police station where the police would obtain his signature on any paper. Though EXPW-9/1, seizure memo reveals his name, but he has not put any signature on the same. The contents of the seizure memo EXPW-9/1 is not true because the vehicle was not seized from the Ikhwan chowk but was presented by them in the police station.

In his cross examination by the learned counsel for the accused No.2, this witness has stated that Zahoor Ahmed had purchased the vehicle from him and then he continued to drive the said vehicle. The model of the vehicle was most probably 2002. From the date when the vehicle was purchased by the accused it was produced in the police station by him. None else plied the vehicle nor did he ever asked him that he will ply the vehicle himself. Zahoor did not bid farewell to him at Rainawari by saying that he will ply the vehicle himself. In his presence no hair stranded was recovered by the police.

The learned counsel for the accused No.3 has adopted the cross examination of the learned counsel for the defence on behalf the accused No.2.

(xiii) PW Dr. Bablbir Kour, Ex Professor Foreinsic Medicines GMC, has stated on examination in chief that on 4^th of June, 2005 he was posted as Professor and HOD of Foreinsic Medicines GMC, Srinagar. On 30^th of May, 2005 principal GMC, Srinagar, was requested by SP City North to conduct re-exhumation of the dead body of one Shazia D/o Gulzar Ahmed R/o Kawa Mohalla, Khanyar and in turn she was requested by Pr. GMC to constitute a team for re-exhumation of the body of Shazia. Consequently she constituted a team comprising of Dr. Mohammed Ashraf, Surgeon Specialist, CMO, SMHS, Srinagar, Dr. Manzoor Ahmed CMO, SMHS, Srinagar which was headed by her. A copy of order of re-exhumation of the body of said Shazia passed by District Magistrate, Srinagar, was endorsed to Principal GMC, Srinagar in turn marked to her and then the team constituted visited graveyard Malkah behind JLNMH, Rainawari, Srinagar, in presence of Magistrate and body of Shazia was re-exhumed and a detailed postmortem was conducted. Few samples from the body of Shazia were taken and sealed and handed over to I.O. for conducting necessary tests from FSL and for DNA test. The reports from FSL were received which are on the file. The report bearing No.73/FM-PM-EXHU/DNA dated 04-06-2005 is signed by her and other members of the team. The witness has admitted the contents of the report, EXPW-MA to be true and correct and has identified her signatures on the same which comprises of 4 leaves. The report received from FSL on the file also mentiones the reports and final opinion and is on the file. The final opinion, EXPW-MA/1 is also in her hand and bears her signature and has been admitted to be true and correct. The final opinion of the team regarding cause of death of the deceased Shazia was “Asphyxia and may be result of suffocation. The report from Histopathologist placed on the file was also considered while giving the final opinion regarding the cause of death.

During her cross examination by learned counsel for the accused No.2 the witness has stated that she was not required to make any examination of anti-mortem of body of Shazia. Anti-mortem means before death and there was no occasion for her to examine Shazia when Shazia was alive. Mortem to her means death and postmortem after death and Anti-mortem means before death. Asphyxia means non entry of air into lungs of a person. Suffocation means making blockade of entry of air into respiratory system. They had found external injury on the body of Shazia which are detailed on page 2 of the postmoretem report, EXPW-MA. The injury No.2 lacerated wound on the tip of tongue is shown as anti-mortem injury meaning thereby that the injury must have been sustained or inflicted just before the death of Shazia. The injury in question can be caused if the tip of tongue is crushed in between the teeth. Their team had not mentioned that the death could be caused by drowning as they had not find any positive finding of death caused by drowning. So it was not necessary for them to make a mention thereof.

During the cross examination by the learned counsel for the accused No.3, the witness has stated that her opinion based on findings is certain. Mr. Ghulam Rasool, Executive Magistrate was present on the spot at the time of re-exhumation.

(xiv) PW, Dr. Mohammed Ashraf, Surgeon Specialist, has stated on examination in chief that a team of Doctors consisting of Dr. Balbir Kour, he and Dr. Manzoor conducted postmortem of a female body namely, Shazia D/o Gulzar Ahmed at graveyard situated at Malkah and team was headed by Dr. Balbir Kour. Postmortem report was prepared in the hand writing of Balbir Kour and bears his signature as well and what ever was observed during the postmortem conducted is reflected in the postmortem report, EXPW-MA. The samples were sent to Pathology Department for analysis and at the same time samples were sent to FSL, consequent thereof reports were received, Marked, ‘MA’ and ‘MA2’. Team of doctors as per the reports received framed the opinion, EXPW-MA/1 that the cause of death was Asphyxia and may be as a result of suffocation. The opinion received from FSL was sent by him in the office of Dr. Balbir Kour which was considered while framing the opinion and for identification purposes was Marked as Mark-M/3.

During his cross examination by learned counsel for accused No.2, the witness has stated that he did see the body personally. The anti mortem position of dead body was face and lips swallon, distorted and blackish in colour, hair loose on scuffle which has been reflected in the report EXPW-MA. The body was opened and vicera was taken from it. Stomac with its contents, scuffle hair, uterus and lungs were taken out of the body. Prior to the conduct of postmortem team and the other members body had not been opened. So in his opinion no previous postmortem had been conducted. Since the body had been recovered from the water therefore, they wanted to ascertain as to whether the death was due to some other cause or due to drowning. Asphyxia means death casued due to suffocation i.e. stopping of breath of a person. Suffocation means stopping one to breath leading to death.

During his cross examination by learned counsel for the accused No.3 the witness has stated that in the dead body no water was found. He has conducted numerous postmortems.

(xv) PW, Dr. Manzoor Ahmed has stated in examination in chief that in June, 2005 he was posted as CMS SMHS Hospital, Srinagar and a team of three members was constituted by Professor Foreinsic Medicines and HOD, Dr. Balbir Kour. After exhumation of the dead body postmortem report was prepaed by HOD which was signed by him as well and report EXPW-MA prepared by HOD also bears his signature and the witness has identified his signatures on the same. After conducting the postmortem samples of various organs of the body were taken and sent for FSL and Pathalogy department. Reports were received, Marked as ‘A’ and Mark-3. After the reports were received final opinion , EXPW-MA/1 was framed which bear his signatures as well. In his opinion the cause of death was Asphyxia because of suffocation.

In his cross examination witness has stated that no letter by police regarding conduct of any previous postmortem or framing of opinion about the death of deceased was produced before him. Drowning can also cause suffocation leading to death. If a person is kept for along time in a vehicle with closed windows, suffocation can be caused which can lead to death. Same cross examination was adopted by accused No.3 as well.

(xvi) PW, Jaleel Ahmed has stated that on 7^th of May, 2005 he was posted as Tafteeshi HC in police station Sumbal and on the relevant date they recieived an information that at Mujgund Sumbal a dead body was lying on one side of the river. On this information he went to the spot and the dead body which was taken into their possession. The recovery memo EXPW-16 was prepared by him which bears his signature and contents are true. He has also admitted the contents of EXPW-16/1 to be true and correct. For identification purposes the dead body was kept in Police station Sumbal for some time but when it could be identified then they took the deadbody to CHC, Sumbal for postmortem. He also prepared the site map of recovery of the body EXPW-6/2 which is true and correct. Before sending the dead body for postmortem he had examined the dead body but had ,not find any mark of violence on the same. He also prepared injury memo EXPW-16/3 and FARD TASHADUD EXPW-16/4 and after conducting the postmortem the dead body was buried through Awqaf committe Sumbal in the local graveyard and obtained receipt from Awqaf committee EXPW-16/5. He also seized the wearing apperals of the decdeased women and prepared EXPW-16/6 the seizure memo regarding the same. On 9^th of May, 2005 the heirs of deceased came to police station Sumbal who were shown the wearing appearls and the golden ear rings and the heirs of the deceased identified the same of Shazia. When the deceased heirs expressed their desire to see the dead body they were advised by him to get the orders from District Magistrate and then the exhumation orders were obtained from district Magistrate Baramulla and the body was exhumed. The dead body was handed over to the heirs of the deceased against the proper receipt. The dead body was identified by the heirs of the deceased in presence of BMO Sumbal and Teshsildar Sumbal regarding which EXPW-3, identification memo was prepared by him. The witness has also identified his signatures and has admitted the contents of EXPW-3/1 The receipt of dead body to be true and correct. The witness also identified the wearing apparals and the golden ear rings of the deceased in the court. Then he recorded statements of the witnesses and after completing the procedure handed over the documents to police station Khanyar.

In his cross examination by learned counsel for the accused No.2 the witness has stated that he conducted the inquest proceedings under section 174 C r. P.C. and during those proceedings he has sent the body for post mortem and had obtained the post mortem report. At the time of post mortem he was not present and thereafter the dead body was handed over to him. The cause of death was given by the Doctor after conducting the postmortem as drowning. After receving the doctors opinion he closed the proceedings under section 174 Cr. P.C. and submitted the report to his officer. His report Mark “X” is on the file consisting of4 leaves. At the time of exhumation of the dead body, the dead body was wrapped in a shrowed and was wearing Qmeez Shalwar. His statement was recorded by P/s Khanyar in Police station Sumbal. After dead body was handed over to the heirs one Officer from P/s Khanyar visited police station Sumbal and stated that the matter regarding the said occurrence was registered in police station Khanyar as well. Inspector Tariq Ahmed Khan, enquired from him verbally about the inquest proceedings and took his statement in Sumbal itself. It was recorded then and there. At the time of exhumation of body he was under the orders of SHO Sumbal to be present on spot and he had led the exhumation team to the graveyard of the deceased.

In his cross examination by the learned counsel for the accused No.3 he has stated that he took the possession of dead body of the deceased at Mujgund when the dead body was found on one side of the river. He had not put any distint mark or stamp on the seized apparels.

(xvii) PW, Ghulam Rasool Wani, Tehsildar, has stated that on 4^th day of June, 2005 he was posted as Naib Tehsildar, circle Khanyar. At the orders of District Magistrate, Srinagar the dead body had to be exhumed from graveyard Malkah. As per the order Mark ‘GR’ passed by District Magistrate, Srinagar, he alongwith police personel and doctors team went to Malkah graveyard on 4^th of June, 2005. After the grave of the deceased was identified by her relatives the body was exhumed and in the graveyard itself the postmortem was conducted byd the team of doctors. During the postmortem the team of doctorts collected some samples which were sent tor FSL examination and then after the post mortem of the body the body was again buried.

In his cross examination by the learned counsel for the accused No.2, he has stated that the order of District Magistrar, mark GR, the dead body had to be exhumed and postmortem had to be conducted. But he has not prepared any format on spot. He had not made any written report to the District Magistrate with regard to the exhumation and postmortem of the dead body.

In his cross examination by learned counse for the accused No.3 the witness has stated that that the time of exhumation and after re-burial of the body police conducted photography of the same. Four doctors were there and many police personnel were also on the spot. He put his signatures on the documents prepared by the police.

(xviii) Mr. Shahul Ahmed Kant, Assistant Scientific officer, FSL, Srinagar, stated in examination in chief that in June, 2005 he was posted as Asstt. Scientific Officer, FSL Srinagar. On 8^th of June, 2005 hye received two small packets and on opening one packet he found one strand of hair and then another packet containing two strands of hair He gave them mark to the packet of single strand of hair as K.132/05 and two strands hair as mark K-133/05. On examination he found the strand of hair mark as K 132/05 were human specices and belong to a female individual. He also found thast hair sample K132/05 and K133/05 were similar charechateristics. He recorded the details of examination and also his opinion in writing which bears his signature and the contents of his opinion EXPW-18/1 is true and correct. He also received from department of Foreisic medicine one plastic container containing stranum of deceased and another container received from …….. Toxicology…. Containing the water sample collected from the site of drowning. He examined the contents of both the containers marked as K-130/05 and K-131/05 but did not find diatoms in the same. He reduced into writing the details of the examination and opinion, EXPW-18/2 framed by him is true and correct and bears his signatures.

In his cross examination by learned counsel for the accused No.2 the witness has stated that he had not measured the stranded hair mark K-123/05 or the two stranded of hair mark K-133/05. He has recorded his opinion that the hair strand mark K-132/05 and K-133/05 were similar. There is difference between male and female hair and such difference relate to distribution of skull……………… He has not recorded the date of sealing the packets in EXPW-18/1. Diatom is small meager organizam which are always found in water bodies and he had not find such thing in sternum of deceased or the sample mark K-131/-5.

During his cross examination by learned counsel for the accused No.3, the witness has stated that in case of death caused outside water and thereafter if dead body is drowning in the water the diatom test is always negative. If there is no water present the diatoma test obviously would be negative. And after death diatom is positive.

(xix) PW, Maimona Akhtar Principal CMP High School Dawalatabad, has stated that she continues to work in CMP School right from 1982 and Mst. Shazia has remained the student of her school. She is admitted the contents of the date of birth certificate of Mst. Shazia, EXPW-19 to be true and correct. She has admitted that in the school register as per school records the admission No. is 880 at Srl. No.102 where Shazia’s photograph is glued. As per date of birth entered in the school records Shazia’s date of birth is 10^th of October, 1985. This witness was not put to corss examination by either of the learned counsel for the defence.

(xx) PW, Tariq Ahmed Khan, I.O. has stated that in April, 2005 he as posted as SHO, P/s Khanyar. On 28^th of April, 2005 a written report was filed by one Jalla Begum W/o Abdul Aziz R/o Kawa Mohalla to the extent that Mst. Shazia D/o Ghulam Mohammed Tota R/o Watalkadal, Srinagar who was brought up by her got missing at 6.30 p.m. on 26^th of April, 2005 who was looked here and there but they could not trace her. The missing report, EXPW-1 with regard to Mst. Shazia was registered in the police station which bears his endorsement EXPW-20 and then the police started searching for the missing girl but could not trace her. On 7^th of May, 2005 a news item was published regarding an unidentified femade dead body recovered from river Jehlum in Daily News paper Alsafa, mark-T/1. It was also mentioned in the news item that since the dead body could not be identified, the same was buried in Sumbal itself. The said news item was also noticed by heirs of Mst. Shazia who came to the police station and then they alongwith the police party proceeded to Sumbal police station from Khanyar police station. At Sumbal they came to know that the dead body had been buried after completing the proceedings under section 174. During the proceedings under section 174 police Sumbal had seized one woolen sweater, and golden ear rings which were shown to the heirs of the deceased who identified the same being of deceased Shazia. When the heirs of Shazia requested the police for exhumation of the body from the grave at Sumbal, Sumbal police advised the heirs of the deceased to get the roders for exhumation of the body from district Magistrate, Baramulla. Consequently the orders for exhumation were obtained by the heirs of the deceased and on the next day on the orders of District Magistrate Sumbal and Sumbal police opned the grave and exhumed the body which was identified by the heirs of the deceased as of Shazia and then the body was taken into possession against the proper receipt by the heirs of Shazia from Sumbal police and then was buried at Srinagar. During the proceedings under section 174 a routine postmoretem had been conducted of the dead body and Medidcal Officer had opined that the death has been caused due to drowning. After the news was received in Khanyar area the public got very angry and protests started. From from the day when Shazia got missing from the area the police station Khanyar was looking for the culprits of Shazia here and there secretly. Then on 28^th of May, 2005 they came to know that infact Shazia had been gone missing but was kidnapped and then on this information FIR 77/05 was registered in the police station. They received the information from reliable source that infact Shazia had been kidnapped by Bashir Ahmed Sheikh and Zahoor Ahmed Wani with the aid of Samena W/o Mohammed Altaf Lone and had been subjected to rape and murder and was thrown into river so that it can be a suicide cas by jumping into the river. During the investigation he arrested Bashir Ahmed and Zahoor Ahmed Wani under section 54 Cr.P.C. and subjected them to questioning. After completing the questioning the two accused were arrested by him for commiting the ofence under sections 364, 302, 120-B RPC and prepared a arrest memo EXPW-8/A and EXPW-8/A-1. During the investigation accused Samena was also being called to the police station who after questioning during the day would go back to home. During the interrogation both the accused admitted that with the aid of accused, Samena, Shazia was got by them at 6.30 p.m. on 25^th of April, 2005 near Babademb dewatering station wherefrom Shazia was taken away in sumo vehicle bearing No.3520-JK01F and was kidnapped and after instrudcting accused Samena to wait at Babademb. It was also disclosed by the accused persons that thereafter deceased Shazia was kidnapped and after driving through foreshore road upto Nishat near to kill some time so that it could get dark and they had the intention to commit rape upon the deceased. Accused also disclosed that when it got dark the accused persons Bashir Ahmed and Zahoor Ahmed brought the deceased Shazia to 90’ road to Buchpora and stopped the vehicle. Bashir Ahmed got down from the vehicle, opened bont of the vehicle and Zahoor Ahmed Wani, accused caught hold of the deceased and after toring away pajama of Mst. Shazia and smothering the mouth of the deceased girl with Shazia;s scraf, the deceased was raped by Zahoor Ahmed Wani and it was also disclosed by the accused persons that Bashir Ahmed Sheikh who had opend the bonet of the vehicle was waiting for his turn to rape the girl. When the accused Bashir Ahmed came to have the illicit intercourse with Shazia, Zahoor told him that Shazia’s pluse was not beating. It was also stated by accused, Bashir that when Shazia’s body could not get any response he told Zahoor that Shazia had died and then both the accused got perturbed and then in order to pass the death of the deceased as an accident both accused persons took the dead body for disposal to Ganderbal where the dead body of Shazia was thrown into river Sindh at Gagerhama, Ganderbal and then started back travelling. It also transpired during the disclosure statements of accused that accused persons notices the deceased belongings; one cell phone of deceased, one iron bangle, chappal, scaraf, hair band in the vehicle and then both the accused persons got perturbed and planed to conceal the said articles and also translated that plan into action. It was also disclosed by accused Zahoor Ahmed and Bashir Ahmed that they will lead the investigating agency to the place where the above said belongings were concealed by the accused persons. Accused Zahoor Ahmed made disclosure statement in Kashmiri and said that he ahd committed rape upon Shazia and then the dead body was thrown into river and the Shazia’s wrist watch, bangle, hair band was concealed by the accused persons on 90’ road where Shazia was raped by accused Zahoor Ahmed near iron gate under stones and can get the same recovered. The disclosure statement EXPW-8 was recorded in presence of the witnesses and then accused Zahoor Ahmed alongwith police and other police personnel went to the spot at the instance of accused Zahoor Ahmnad, the articles mentioned in the disclosure statement, EXPW-8 were recovered and seized. The whole process of recovery was photographed. When they went for recovery at the spot they took the relatives of the deceased with them who also put their signatures on EXPW-3/2. Since all the articles of deceased could not be recovered, accused Bashir Ahmed, during questioning made a disclosure statement in Kashmiri language that he had concealed Shazia’s scarf and chapel at 90’ road under garbage and can get the same recovered. The disclosure statement, EXPW-8/1, of accused Bashir Ahmed was also recorded and then Bashir led the investigating agency to 90’ road Buchpora where Shazia had been subjected to rape and at the instance of Bashir the seized articles of deceased were recovered and seized by virtue of EXPW-3/3. He prepared the site map of the recovery spot, EXPW-20/1 and EXPW-20-X Since the scarf was having blood like substance on it, it was sent to FSL for expert opinion. Meanwhile they keep on questioning Samena and Samena admitted during investigation that on 25^th of April, 2005 accused Zahoor Ahmed asked her on telephone to get Shazia whom he like from the day when Shazia was spotted in the parental house of Samena by accused Zahoor Ahmed. Samena also stated before investigating agency that she had been friendly with Zahoor Ahmed but the parents did not allow them to marry and Samena got married to one Altaf Ahmed of Kawa Mohalla. At the instance of accused Zahoor Ahmed, Mst. Samena, promised Zahoor that he will arrange a meeting between Zahoor and Shazia and then accused Zahoor and Bashir Ahmed brought sumo No.3520-JK01F and came to Khanyar. Accused Samena also admitted that she got Shazia from her house on the pretext of making some purchases at Khanyar and got her out to dewatering point Babademb where accused Zahoor and Bashir were present in the vehicle and both the accused persons took Shazia in the vehicle and Samena was asked by the accused persons to wait at the dewatering point. As per the statement of Samena accused, Bashir and Zahoor did not return with Shazia for quite some time and then she went back to her house and when Shazia’s family members questioned Samena where Shazia was, Samena disclosed thatr she told them that she must have also returned to the house. Samena also disclosed that she remained perturbed during the night and on 27^th of April, 2005 Samena called Zahoor Ahmed and asked why Shazia did not return to her house, on which Zahoor told Samena, as per his statement that decedased was not well and will return to her house. The accused, Samena also disclosed that on 28^th of April, 2005 she again called Zahoor Ahmed and asked about the whereabouts of Shazia and then Zahoor as per statement of Samena called to her to Hazratbal near J&K Bank and consequently Samena went to meet Zahoor Ahmed at Hazratbal and then the matter of death of Shazia was disclosed by Zahoor Ahmed to Samena and Samena was directed by Zahoor not to divulge the same to any body otherwise she would also got involved in the matter. As per statement of Mst. Samena Shazia’s dead body has been disposed of and was asked to remain quite composed and Zahoor also gave Mst. Samena Rs.500/- and cell phone and also promised to give her more money for not divulging the facts to any body. Samena also disc losed thatshe handed over the cell phone given to her to a medical shop at Kawa Mohalla by saying that her husband will get crossed and will question wherefrom she got the cell phone. Thereafter accused, Samena, was arrested on 02-06-2005 by virtue of arrest memo EXPW-0 which is true and correct. On the next day i.e. on 3^rd of June, 2005, his subordinate officer, namely Mohammed Ismail, ASI, seized Zahoor’s sumo vehicle by virtue of seizure memo. Since he had directed his subordinate officer to check the seized vehicle for any clues from inside. Mohammed Ismail ASI effected seizure memo of the vehicle and recovered two long hair strands from the sumo. During the investigation Samena lead them to the spot where the two accused persons had taken the deceased in the sumo vehicle. At the instance of the accused persons they prepared the site maps of the place wherefrom the deceased was kidnapped in the vehicle and again the spot of crime where the rape and murder was committed and then again where the dead bodyf was drowned into the river. The whole proceedings were got viedographed by him. The witness has admitted the contents of all the site maps EXPW-20/3 to EXPW-20/5 to be true and correct and has identified his signatures on the same. Mohammed Ismail ASI, also prepared the site map of the recovery and seizure and the sumo vehicle who had recovered two strands of hair from the sumo and had sealed the same which were thereafter sent to FSL examination. They could not recover the cell phone of Shazia as Ishtiyaq Kenu admitted that he had thrown the cell phyone into the river. They had obtained the call details of Shazia’s cell phone from Airtel concern and as per call details, the deceased had made a call to a body who was engaged to Shazia on 25^th of April, 2005 and theafter two calls were made from that cell phone of Shazia by Ishtiyaq Kenu; one to his house and another to a girl of Rainawari. The endorsement on the call details was put by him alongwith his signatures and sel which have been exhibited as EXPW-20/6 to 20/8. The call details procured from Airtel concern were seized by virtue of seizure memo EXPW-8/1 and then he got orders from District Magistrate for exhumation of body and the order of exhumation of District Magistrate Srinagar also bears his endorsement EXPW-20/9 on its back. Since Sumbal police had not conducted a detailed postmortem he got the orders for exhumation and postmortem of the dead body. First the grave was identified by the elatives of the deceased regaring which identification memo EXPW-3/5 was prepared by him and then he also prepared EXPW3/6 when the dead body was identified by the relatives and while the doctors team headed by Dr. Balbir Kour conducted postmoretem of the dead body in presehnce of Exdcutive Magistrate an many samples were collected by the team of Doctors which were sent for expert opinion including the hair strands of the dead body. All the samples taken from the dead body at the time of postmortem were sealed in presehnce of the Magistrate and were sent for FSL examination and for comparison the hair strand collected from the Sumo vehicle and the dead body was again buried by the relatives after the postmortem. Post mortem report was colleted by them and the doctors had opined that the death of Shazia had been caused due to suffocation. The endorsement EXPW-20/10 on the postmortem report is in his hand writing and bears his signature. Then he received the expert opinion from FsL vis-à-vis the hair strand collected from the crime vehile as well as the hair strand of the deceased which was collected at the time of postmortem and FSL opined that both the samples of hair strand were of same female. The opinion of FSL regarding the hair strands bears his endorsement EXPW-20/11 and bears his signature. No poison was detected in the samples sent for FSL as per report, EXPW-20/11 and EXPW-20/13. Identification memo pertaining to bangle, hair band and chappal bearing exhibit No.EXPW-20/14 is true and correct as well as the memo of identification of scarf EXPW3/4 is also true and correct. Seizure memo pertaining to the date of birth certificate EXPW-19 is also in his hand writing and is true and correct. He got the whole record of the proceedings under section 174 Cr. P.C. from police station which were made part of the charge sheet and he recorded statements of the witnesses. From his investigation offences under sections 364,376,302,120-B RPC were found made out against the accused persons. During the investigation the proceedings of disclosure and recovery were photographed and vediographed at his instance. Accused Zahoor Ahmed committed suicide during the police custody during intervening night of 8/9^th of June and he conducted proceedings with regard to the said under section 174. Deceased’s chappal, sweater were shown to him in the court but the bangle has not been shown to him. The vediography with regard to the disclosure statement of accused No.1 and the spot which was identified by the deceased accused ,where the dead body was thrown in the river and also the spot where the deceased had been subjected to rape by accused No.1 was vediographed under his supervision and the vedio cassettes were prepared of the said vediography and were produced before the court. He has seen the vediography in the court which is true and correct and the cassette has been marked as EXPW-7. The photographs of the place where the rape was committed, Shazia was abducted and then her dead body was thrown into the river were made part of the charge sheet. Photograph mark “E” figures Bashir Ahmed who disclosed and identified the spot of crime and in phogograph mark “A” Babademb is figuring. Whereas photograh mark “F” shows the place of abduction. Photographs mark G, B, C.D show the places wherefrom the dead body was thrown into the river. Photographs total 36 pertain to the post mortem containing P-1 toP-36. Four photographs mark R1 to R4 with regard to spot of recovery were also placed with the charge sheet.

In his cross examination by learned counsel for accused No.2 the witness has stated that vediography was done on 29^th of May, 2005 and not on 28^th of May, 2005 which has been entered inadvertently by the vediographer. Accused No.1 Zahoor Ahmed made a disclosure statement on 29^th of May, 05, which was vediographed and he has written all the details in the case diaries about the dislcosure statement of accused No.1 on 30^th of May, 05. In pursuance of disclosure statement made by accused No.1 on 29^th of May, 05, he prepared the site maps of the spots of abduction, rape and murder and then of the places where the dead body was thrown into river and he prepared all the site maps on 29^th of May,05 itself. On 30^th of May, 2005, he had not got the vediography done. The photographs are of accused No.1. Vediographer was Altaf Hussain and Fayaz Ahmed also assisted him in the investigation. If the photographer has said that the photographs were taken on 29^th of May, 05 it is wrong. Initially a missing report was lodged with police station Khanyar to the effect that Samena had come to the house of deceased and had taken Shazia with her for making some purchases. Up to 28^th of May, 05, no inquest proceedings were conducted by police station Khanyar under section 174 but the police was secretly searching for the culprits of the missing girl. When the dead body of the missing girl was recovered, the missing report was closed. But secretly they continued with their inquest and in police station Khanyar the FIR was registered on 28^th of May, 2005 and till that day he had not taken the papers of inquest proceedings ,in his possession from police station Sumbal. There is no eye witness to the occurrence. But as per statement of Ghulam Mohammed Shera, Pw, the deceased was spotted by him last time in the company of the accused persons near Sumo vehicle near Babademb. Ghulam Mohammed Shera is an important witness in this case ass he has last seen the deceased in the company of the accused persons. Gh. Mohammed Shera PW disclosed the fact of seeing the deceased in the company of the accused one and half month after the deceased got missing. The investigating agency never disclosed the names of source wherefrom they got any important information and reliable source means when they trust the person who comes with information during investigation. On 28^th of May, 2005 they received an information from reliable source that infact Shazia had been abducted on 25^th of April, 2005 at about 7 p.m. near Babademb dewatering point by Zahoor ahmd and Bashir Ahmed with an intention to commit rape in tata sumo No.3520-JK01F. It was also disclosed by the reliable source that thereafter deceaded had been murdered and then her body had been thrown into river sindh Neither he recorded statement of said important witness nor had he cited him as a witness but since he had such trust in the source that he registered a case on the said information. Police Sumbal had got the postmortem report of the dead body conducted nonseriously. He obtained the papers of inquest proceedings from police station Sumbal on Ist of June, 2005. Altaf Ahmed shah, photographer was called by him on 29^th of May, 2005 and the disclosure statement of accused Zahoor Ahmed Wani was vediographed by Altaf Ahmed Shah on 29^th of May, 2005. During the vediography the accused No.1 admitted that at 90’ road he had asked Bashir to get down from the vehicle as he had to talk to Shazia. The two accused persons identified the spot of crime of 90’ road and he vediographed the said identification and thereafter the statements were recorded in the polkice station. He also vediographed the disclosure statement of accused Bashir Ahmed Sheikh in the police station itself and then accused No.2 disclosed during the vediography that he could identify the place at 90’ road where in the sumo the accused Bashir Ahmed examined the deceased at the instance of accused No.1. the deceased accused disclosed during the vediogrpahy that when they stopped the vehicle at 90’ road Bashir Ahmed, accused left the bonet of the vehicle and both the accused threw the body in the river and then also disclosed how they disposed of the belongings of the deceased. The disclosure statements were made by the accused persons separately and he vediographed the said disclosure statements separately and afterwards recovery was also made separately. The disclosure statements of the accused were also reduced into writing by virtue of EXPW-8 and EXPW-8/1 and then at the instance of accused persons recovery memos EXPW-2/3 and EXPW-3/3 dated 30-05-05 were also prepared. The accused persons had made a disclosure statements on 29^th of May, 2005 and the disclosure statements were viedographed on the said date and then during the investigation on 30^th of May, 2005, at the instance of the accused persons the recovery memos were prepared on 30^th of May, 2005. Since SI, Tariq Ahmed was also posted in P/s Khanyar, he is a witness to the investigation. This is totally wrong that he took accused Bashir Ahmed also alongwith accused No.1 Zahoor Ahmed in the Sumo vehicle in order to get the recovery effected. After completing the recovery they returned to the police station at 4.30 p.m. and on the same day Bashir Ahmed made a disclosure statement after 4.30 at about 5./05 p.m. and the accused Bashir Ahmed was taken foreffecting recovery immediately after his disclosure to 90’ road at 6.10p.m. At the time of their departure from police station they took the relatives of the deceased alongwith them who had also accompanied the police team with when the accused No.1 had led them to 90’ road for the recovery and identification of the crime spot. When a suggestion was made to this witness that the signatures of the witnesses were obtained on EXPW-3/2 and EXPW-3/3 in the police station the witness refuted the same. This is true that as per vediography disclosure statement of accused No.1, accused No.1 had instructed accused No.2 to get down from the vehicle and when accused No.1 found that the deceased was not alive and then called accused, Bashir to see the deceased. During the investigation it was revealed that when accused No.1 was having illicit intercourse with the deceased he has put his hand on the mouth and nose of the deceased which resulted in suffocation and then accused 1 and 2 tried to review the deceased who had already died. It is true that the accused Samena knew that Shazia was taken by accused No.1 and 2 but where, she was not sure ? He seized the cell phone of accused No.1 and collected the call details of the cell phone from the concerned. Since the accused No.2 was not carrying any cell phone, as such, he could not seize the said cell phone from accused No.2. Shazia’as cell phone was given to her by her fiancé whose name he does not remember. At the time of recording the disclosure statement of accused Bashir Ahmed relatives of the deceased were present in the police station.

In his cross examination by accused No.3 the witness has stated that in the missing report Samena’s name was not mentioned. Samena was arrested on 2^nd of June from the compound of shrine of Nakasband Sahib by women police in his presence and was kept in the custody of women police in Rambagh and then was brought for interrogation to police station, Khanyar. Accused admitted in presence of women constable and Sub Inspector, Tariq Ahmed, in police station, Khanyar, that she had taken out Shazia from her house in order to keep her promise to arrange a meeting between Shazia and zahoor. From his investigation it transpired that at the time of rape and murder of the decedased accused No.3 was not present there. But if the accused No.3 would not have got the deceased out of her house, the rape and murder of the deceased would not have taken place. The conspiracy to get the deceased out of the house was hatched by accused No.1 to 3 as being the condition put by the accused No.1 to meet accused No.3.

Prosecution evidence was closed vide this court order dated 02-03-2009. After going through the charge sheet, evidence adduced by the prosecution to substantiate its case. This court recorded the satisfaction in terms of section 273 Cr. P.C. that an order of acquittal could not be recorded and the accused were asked to enter into their defence and adduce defence evidence. The statements of accused No.2 and 3 were recorded. The prosecution evidence was put to the accused persons in detail. Accused No.2 in reply stated that none of the witnesses has stated any thing against him that the deceased was handed over to him by accused No.3, Mst. Samena and he alongwith (deceased accused), Zahoor Ahmad Wani, then kidnapped and committed rape upon deceased, Shazia and then destroyed the evidence by throwing dead body of Mst. Shazia into river Sindh. He did not choose to adduce any evidence in his defence.

Similarly the statement of Samina accused No.3 was recorded to whom the statements of prosecution witnesses were put in detail but she denied that on 25th of April, 2005 she went to the deceased’s house situated at Kawa Mohalla Khanyar at 6.30 p.m. and took the deceased with her for making some purchases from the market. She has also denied the statements of prosecution witnesses that any family member of deceased Shazia came to her house in order to enquire about why Shazia did not return to the house. She also denied any knowledge with regard to the mobile phone of ( deceased ) to Ishtiyaq Kenu and also that she ever went to the shop of PW Ishtiyaq Kenu and handed over the cell phone of deceased to the said witness for taking it back after some time. Accused No.3 has also stated that she was taken into custody by the police concerned under the influence of the family members of the deceased as they had borrowered Rs.50,000/- from her family and wanted to grab that amount. She has also denied that accused Zahoor Ahmad and Bashir Ahmad had given her the cell phone as a gift for getting the deceased, Shazia from her house and handing her over to Zahoor Ahmad Wani and accused No.2, Bashir Ahmad Sheikh. Accused No.3 has also denied that she was present on the date of occurrence with deceased Shazia near transformer Babademb and has denied that she knew the accused persons. She has also denied any telephonic conversation with them. She has categorically denied that she ever knew who kidnapped deceased Shazia and who thereafter raped and killed her. She has also denied that she was having any affair with deceased accused, Zahoor Ahmad Wani and wanted to marry him. She also denied in her statement that she met accused No.1, Zahoor Ahmad near J&K Bank Hazratbal when she was informed by the deceased accused that Shazia was dead and she was also warned not to divulge any thing about the occurrence to any body. She has further stated that she never went to the house of the deceased on the date of occurrence but she has not denied that the relations between the families of the deceased and her in-laws having been quite thick and the family members of the deceased had borrowed Rs.50, 000/- from her in-laws which they could not repay and in order to grab that amount the family members of the deceased involved her in a false and frivolous case.

Accused No.3 has examined Gh. Mohd Baba in her defence and then made a statement before this court on 15-05-2009 that she was not inclined to record any further evidence in her defence. Accordingly the defence evidence was closed on the same day and the file came up for arguments.

PROSECUTION HAS PLACED RELIANCE ON THE FOLLOWING LAW:

2011 STPL (W) 284 SC. (Sahebrao Mohan Berad V/S State of Mahrashtra)

(2007) 2 SCC 310.

AIR 2001. SC. 2274. (Bibhachha V/S State of Orrissa.)

AIR 2001. SC. 2043. (Raju V/S State of Haryana.)

AIR 2003 .SC. 3131. ( Amit @ Ammu V/S State of Maharashtra.)

AIR 2004. SC. 2282. ( Insp. Of Police V/S N.M.T.Joy.)

Learned defence counsel Mr. Pandit argued that it is not mentioned in missing report lodged by PW No.1 Mst. Jalla Banoo that Shazia when accompanied by accused No.3 left her house on 25^th of April, 05 she was carrying a cell phone. Since no mention of cell phone was made in the missing report by Mst. Jalla Banoo it cannot be said that Shazia was carrying cell phone on the date when she got missing on 25^th of April which circumstance cannot be ignored by this court as the prosecution evidence revolves round the cell phone. He has further submitted that the innocence of the accused persons can be substantiated from the fact that when the body of the deceased was recovered from river Jehlum by police Sumbal and post mortem conducted the opinion about the cause of death by the doctor was given “death caused due to drowning”. Mr.Pandit stressed that there being two theories of causes of death it cannot be surely said that the actual cause of death was drowning or asyphyxia ? Mr. Pandit laid much stress on the point that even after exhumation of the body from Sumbal graveyard and performing the last rites of the deceased, the relatives of the deceased Shazia never disclosed before the police that the deceased was carrying a cell phone. More over no cell phone number was disclosed before the police during the investigation, as such, version of the investigating agency in the shape of charge sheet is totally belied that on the date of occurrence, deceased Shazia was carrying a cell phone.

Mr. Pandit also forcefully argued that the prosecution story to the extent that the information from reliable source was received about Shazia not having been actually missing but had been actually abducted by accused No.1 and 2 near Babademb dewatering station in a Sumo bearing No. JK01F-3520 with the intention to commit rape and murder and on the information Khanyar policed station registered case against accused 1 and 2 on the same day when the information was allegedly received on 28^th of May 2005 and the accused 1-2 were arrested under section 54 Cr. P. C. for questioning which raises a question why the source who knew about the abduction of the deceased on 25^th of April, 2005 and thereafter her rape and murder did not inform the police for 33 days which creates doubt vis-a-vis the prosecution case that Shazia was abducted on 25^th of April, 2005 by accused 1 and 2 with the aid of accused No.3. When the investigating officer was asked by the defence counsel to disclose the identity of that source, investigating officer has categorically refused to disclose his identity which establishes that there is no eye witness in the present case.

RELIANCE PLACED BY DEFENCE ON THE LAW SETTLED IS AS FOLLOWS:

2008 Cri.L.J. 3184 SC. ( Roop Singh@ Rupa V/S State of Punjab.)

1892 Cri.L.J.1243. SC. (Gambhir V/S State of Maharashtra.)

1990 CRI.L.J. 2289. SC. ( Kishore Chand V/S State of Maharashtra)

2011 AIOL 413. SC. (SK.Yusuf V/S State of W.B.)

2011(2) JCC 1501.SC. (State NCT of Delhi V/S Giripal @ Ginni.)

AIR 1980.SC. 1168. ( Naresh Kumar V/S State of Mharashtra.)

1980.Cri.L.J. 1292. (Shripad Shivram Kuklkarni V/S State of Mharashtra.)

1999.CRI.L.J. 135 Delhi HC. ( Chanderpal & etc. V/S State.)

1985 CRI.L.J.1479. SC. (State of U.P. V/S Sukhbashi & ors.)

1996. CRI.L.J.883.SC. ( Balwinder Singh V/S State of Punjab.)

1980 CRI.L.J.928. SC.( Babu Krishan Kamble V/S State of Mharashtra.)

1995 CRI.L.J. 1477 Delhi.H.C. (Jaivir Singh V/S State.)

AIR 1990 SC.79. ( Paddla Veera Reddy V/S State of A.P. & ors.)

1993 CRI.L.J. 1871. SC. ( Surinder Pal Jain V/S Delhi Adm.)

Before discussing and analyzing factual aspect, it has to be kept in mind that it is not necessary that the crime must be seen to have been committed and must in all circumstances be proved by direct evidence by examining before the court those persons who had seen its comission. The offence can be proved by circumstantial evidence also. A witness may lie but circumstances do not lie but loudly and clearly prove an offence.

It has been persistently laid down by Hon'ble Apex Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompaliable with the innocence of the accused or the guilt of any other person. ( Hukum Singh Vs. State of Rajasthan AIR 1977 SC 1063, State of U.P. Vs. Sukhbasi & ors. AIR 1985 SC 1224). The court in such cases has to remain careful to the extent that it has to ascertain whether every circumstance from which an inference of guilt of an accused is drawn is proved beyond reasonable doubt and also that the circumstances is closely connected with the principal fact i.e. the commission of the offence.

2011 STPL (W) 99 SC. (Wakkar & anr. V/S State of U.P. and othertied matters.)

“ Murder – Circumstancial Evidence –

Para. (7) ……. A short question that arises for our consideration is whether the various circumstances available on record forms a chain pointing only to the guilt of the accused ? Whether the evidence adduced by the prosecution proves particular facts relevant for the purpose of the case and further question arises whether the facts are capable of giving rise to only to any inference of the guilt of the accused persons ?

Para. (8) ……. It is well settled and needs no restatement at our hands that the principle for basing a conviction on the basis of circumstancial evidence is that each and every incriminating circumstances so proved must form chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the accused is possible. “ That there is a long mental distance between ‘may be true’ and ‘ must be true’ and the same divides conjenctures from sure conclusions”

CRIMINAL APPEAL NO: 384 of 2002. SC. (Insp.of Police V/S John David.)

“ Case on circumstancial evidence: The principle for basing conviction on the edifice of circumstancial evidence has also been indicated in number of decisions of this Court and the law is well settled that each and every incriminating circumstances must be clearly established by reliable and clinching evidence and the circumstance so proved must form a chain of events from which the only irresistible conclusion that could be drawn is the guilt of the accused and that no other hypothesis against the guilt is possible. This Court has clearly sounded a note caution that in a case depending largely upon circumstancial evidence, there is always a danger that conjencture or suspicion may take the place of legal proof. The court must satisfy itself that various circumstances in the chain of events have been established clearly and such completed chain must be such as to rule out reasonable likelihood of the innocence of the accused.”

AIR 2001. SC. 2274. (Bibhachha V/S State of Orrissa.)

“ Penal Code, S.300- Murder – Circumstancial evidence – accused and deceased last seen together – recovery of clothes at instance of the accused – Clothes recovered identified to be worn by accused when he was last seen with deceased – human blood of blood group of deceased found on the clothes- Recovery of gold chain belonging to deceased sold at the instance of the accused – opinion of the doctor that injuries found on the deceased could be inflicted by weapon recovered – Held cumulative effect of all circumstances undoubtedly indicate guilt of the accused excluding any other hypothesis – Moreso when defence of accused was of total denial – Accused held guility of offence of murder.”

In C. Chonga Reddy & Ors Vs. State of A. P. (1996) 10 SCC 193, Hon'ble Apex Court observed as under:

“ In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and as such ircumstance must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistant only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence.......”

In AIR 1967 J&K 22, it has been observed by our Hon'ble High Court as under:

“Circumstantial evidence is evidence which without going directly to prove the existence of a fact gives rise to a logical inference that such a fact does exist. The conviction can safely be based on circumstantial evidence provided to several circumstances relied upon by the prosecution are established beyond doubt that the incriminating facts are such as to be incompatible with the innocence of the accused and incapable of explanation on any reasonable hypothesis other than that of the accused' s guilt. The circumstantial evidence, however, in case where a conviction is based thereupon, should be scrutinized properly and then alone a conviction can be based on circumstantial evidence where the facts proved are incapable of explanation except the guilt of the accused. In certain cases the circumstantial evidence may be stronger than what is called direct evidence.”

In Gambhir Vs. State of Maharashtra, 1982 Cr. L.J. 1243, Hon'ble Apex Court laid down:

“ When a case rests upon the circumstantial evidence, such evidence must satisfy three tests. (I) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established (2) those circumstances should be of a defini9te tendency unerringly pointing towards guilt of the accused;(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused. The circumstantial evidence should not only be consistent with the guilt of the accused but shall be inconsistent with his innocence.”

In S. K. Yousuf Vs. State of Bengal, 2011 AIOL 413, Hon'ble Apex Court has observed:

“Circumstances from which conclusion of guilt is to drawn should be consistent with hypothesis of the guilt of accused and they should not be explainable on any other hypothesis than that........ chain of evidence should be so complete as not to leave any reasonable ground for conclusion consistent with innocence of accused and must show that in all human probabilities the act must have been done by accused.”

The authorities relied upon by the L.C. Mr. Pandit, i.e. 2008. Cri.L.J.3184. and 1982. Cri.L.J. SC. 1243., 1990.CRI.L.J. 2289., also say that chain of evidence with regard to the facts of the case based on circumstancial evidence shall be so complete as not to leave any reasonable ground for conclusion consistent with innocence of the accused.

Keeping in view the principles laid down in the aforesaid rulings, it is abundantly clear that while assessing the evidence imaginary possibilities have no role to play. What is important to be considered are ordinary human probabilities. In other words when a case entirely rests upon circumstantial evidence, the circumstances relied upon by the prosecution must be fully established. If any of the circumstances proved in a case is consistent with the innocence of the accused or the chain of continuity of circumstances is broken the accused is entitled to the benefit of doubt.

Now coming to the Chain of circumstances from which the conclusion of guilt can be conclusively drawn:

1. As per the testimony of PW Jalla Bano and PW Abdul Aziz Kawa and PW Reyaz Kawa. And EXPW-1. on 25^th April, 2005, at about 6.30 p.m. deceased Shazia went with Sameena ( Accused.3.) out to the market and did not return back that evening. When she did not return back home, her guardians enquired from the person(Sameena) with whom she had left for the market, and in turn she feinds her ignorance, stating that, she had left her at her door.PW Jalla Bano further stated that, “On the next day she went to the police station and narrated whole story but concerned police told her that since it was a matter pertaining to a young girl they should wait for 1-2 days.

2. On 28^th April 2005, when she(deceased Shazia) could not be found, PW Jalla Bano, her mother (adoptive)reported the matter to Police and Police suggested her to look for her on their own.And pacified her that they will also look for the missing girl, and that a photograph of the girl may be provided to them. When the girl could not be traced by Mst Jalla and her family members, she lodged a missing report EXPW-1 in Police Station Khanyar on which photograph of missing girl Shazia exhibitted as Mark-J was pasted. The statement of I.O. Tariq Khan, “On 28^th of April, 2005 a written report was filed by one Jalla Begum W/o Abdul Aziz R/o Kawa Mohalla to the extent that Mst. Shazia D/o Ghulam Mohammed Tota R/o Watalkadal, Srinagar who was brought up by her got missing at 6.30 p.m. on 26^th of April, 2005 who was looked here and there but they could not trace her. The missing report, EXPW-1.”

3. 7^th May,2005 “Daily Alsafa” Mark-T/1, carried a news item of an unidentified female dead body which had been fished out by Police Sumbal from river Jehlum, which was buried unclaimed at Sumbal by Wakf Committee.[ PW. Jaleel Ahmed HC. Police Station Sumbal in his testimony stated that, a dead body was lying on the side of the river, at Mujgund Sumbal . On this information he went to the spot and the dead body was taken into their possession. The recovery memo EXPW-16 was prepared by him which bears his signature and contents are true. He has also admitted the contents of EXPW-16/1 to be true and correct. For identification purposes the dead body was kept in Police station Sumbal for some time but when it could not be identified then they took the deadbody to CHC, Sumbal for postmortem. He also prepared the site map of recovery of the body EXPW-6/2 which is true and correct. Before sending the dead body for postmortem he had examined the dead body but had not found any mark of violence on the same. He also prepared injury memo EXPW-16/3 and FARD TASHADUD EXPW-16/4 and after conducting the postmortem the dead body was buried through Awqaf committe Sumbal in the local graveyard and obtained receipt from Awqaf committee EXPW-16/5. He also seized the wearing apperals of the deceased women and prepared EXPW-16/6 the seizure memo regarding the same. ]

4. Local Police had started inquest under section174 Cr.P.C. which was closed with a medical report depicting ‘cause of death as drowning’.given by Astt.Surgeon SDH Sumbal which is recorded as Mark- X.

5. The relatives after going through the news item in , Mark-T/1, rush to Police Station Sumbal accompanied by Police from Khanyar, and insisted to see the dead body,since the dead body had already been buried the police concerned showed them the belongings, i.e. Gold earrings, salwar , kameez, etc. and one of her ( Shazia’s) cousin broke down after identifying the belongings of the missing girl Shazia. The photograph of the dead body and belongings were confirmed to be Shazia’s. [ PW Reyaz Kawa, in his statement states that; “Thereafter the police Sumbal showed them the ear rings and shirt, sweater and they identified the said items of being Shazia and then they demanded the dead body from Sumbal police. But Sumbal police expressed their inability and advised them to approach DC Baramullah. They approached DC Baramulla for the possession of the dead body of the deceased. Then DC marked their application in the name of SSP Barmulla and SSP Barmulla marked the said application in the name of SP Ganderbal and SP Ganderbal sought report from SHO Sumbal with regard to the application. After getting the comments from SHO Sumbal they again approached DCBaramulla and thereafter SDM Sopore was authorized to exhume the body in presence of police and BMO and the dead body was exhumed and handed over to them and then was burried in their ancestral graveyard situated at Rainawari on the same day i.e. 10^th of May,2005.” The said statement is corroborated by the testimony of Tariq Khan I.O., “On 7^th of May, 2005 a news item was published regarding an unidentified femade dead body recovered from river Jehlum in Daily News paper Alsafa, mark-T/1. It was also mentioned in the news item that since the dead body could not be identified, the same was buried in Sumbal itself. The said news item was also noticed by heirs of Mst. Shazia who came to the police station and then they alongwith the police party proceeded to Sumbal police station from Khanyar police station. At Sumbal they came to know that the dead body had been buried after completing the proceedings under section 174. During the proceedings under section 174 police Sumbal had seized one woolen sweeter, and golden ear rings which were shown to the heirs of the deceased who identified the same being of deceased Shazia.”

6. Dead body of Shazia is exhumed from graveyard in Sumbal in presence of Magisrate and Police from Khanyar as well as Sumbal Police Stations and relatives.[Thereafter the police Sumbal showed them the ear rings and shirt, sweater and they identified the said items of being Shazia and thenm they demanded the dead body from Sumbal police. But Sumbal police expressed their inability and advised them to approach DC Baramullah. They approached DC Baramulla for the possession of the dead body of the deceased. Then DC marked their application in the name of SSP Barmulla and SSP Barmulla marked the said application in the name of SP Ganderbal and SP Ganderbal sought report from SHO Sumbal with regard to the application. After getting the comments from SHO Sumbal they again approached DCBaramulla and thereafter SDM Sopore was authorized to exhume the body in presence of police and BMO and the dead body was exhumed and handed over to them and then was burried in their ancestral graveyard situated at Rainawari on the same day i.e. 10^th of May,2005.[ as per HC. Jalil Ahmed PW., as per EXPW-3 and EXPW-3/1].

7. The dead body was buried in Malkhah Khanyar, however the opinion as to cause of death stated to be “asyphyxia due to drowning”. (as per the statement of Tariq Khan S.I. (PW) He then told the Medical Officer that if a thorough postmortem of the dead body is needed, then he should do that immediately so that the decomposed dead body is buried but the Medical officer told that there was no facility available with him and he could not do complete postmortem.] and is exhibited as Mark-X.and opined, that “dead body stayed for two weeks in water”.]

8. On 28^th May, 2005 Police Khanyar received information from reliable source that infact Shazia has been kidnapped and subjected to rape and subsequently murdered and thrown into Sindh, on receipt of this information FIR no 77 of 2005 was registered at Police Station Khanyar. [PW. SHO Tariq Ahmed Khan, I.O. stated: “Then on 28^th of May, 2005 they came to know that infact Shazia had not gone missing but was kidnapped and then on this information FIR 77/05 was registered in the police station. They received the information from reliable source that infact Shazia had been kidnapped by Bashir Ahmed Sheikh and Zahoor Ahmed Wani with the aid of Samena W/o Mohammed Altaf Lone and had been subjected to rape and murder and was thrown into river so that it could be passed over as a suicide case by jumping into the river. During the investigation he arrested Bashir Ahmed and Zahoor Ahmed Wani under section 54 Cr.P.C. and subjected them to questioning. After completing the questioning the two accused were arrested by him for commiting the ofence under sections 364, 376., 302, 201. and 120-B RPC and prepared arrest memoes EXPW-8/A and EXPW-8/A-1. ]

9. After legal formalities the dead body is re-exhumed in presence of doctors, executive magistrate, and Police party of both Police stations and relatives.the need for re-exhumation is mentioned by PW Mohd Ashraf Surgeon Specialist, when he was suggested by the defence counsel for accused No.2 as to why they had to open the dead body, the said expert has stated in categorical terms that prior to the conduct of postmortem by him and other doctors, body had not been opened and opined that no previous postmortem had been conducted upon the dead body. [Mark-GR.]

10. Detailed and thorough post-mortem has been conducted by a team of Doctors headed by Dr. Balbir Kour.(The said expert witness has stated in categorical terms that lacerated wound was found on the tip of tongue of the deceased meaning thereby that the injury must have been sustained by the deceased before death. This aspect of the case also establishes that the injury on the tip of tongue of the deceased found during the postmortem by Dr. Balbir Kour, Head of the postmortem team would have been caused when the accused No.1 subjected the deceased to rape and when she tried to raise her voice the accused no.1(dead) covered her mouth and nose with his hand. During the resistance the deceased must have received the lacerated wound on the tip of the tongue.)

11. Different samples were collected from the body of Shazia which were sealed by Magistrate present on spot and then handed over to I.O for conducting necessary tests and DNA from FSL. [ Exhibit K-130/05.,K-131/05.,K-132/05 and K-133/05 and also SAY-283/05

12. The team of Doctors headed by Dr.Balbir Kour opined in EXP-MA-1., “asphyxia due to suffocation” as the cause of death.

13. Also confirm rape. [EXP-MA.]

14. And inquest proceedings at Sumbal merge with the FIR 77 of 2005. The first suspect is picked for questioning; of course, it has to be her fiancé as candidly reported by the guardian of Shazia. Police in order to protect the fiancé of deceased Shazia from the public wrath [ as there were protests of people in Khanyar] apprehend him and was being questioned, meanwhile the younger brother of the said fiancé came to the police station and disclosed that he had dialed the cellphone of Shazia( given to her by this fiancé) but somebody disconnected.

15. Police told them not to mention the same to any one and called for call record of the cell phone bearing no: 9906707109 , gifted to Shazia by this fiancé

16. However one of the most crucial and critical pieces of linking evidence is provided by this fiancé which is cellphone to his fiance Shazia AIRTEL No; 9906707109, and it is the call record obtained from this cell phone which links the chemist Ishtiyaq Ahmed Kenu S/O Ab. Ahad Kenu.[ Mark-T/4]

17. The said Ishtiyaq Ahmed Keanu has been identified by a girl from Khanyar, who admited her calling him and also sending SMS to him and disclosed that he runs a STD shop.[ Mark-T/4]

18. Initially Ishtiyaq Ahmed Kenu refutes him having any cellphone but when confronted by the call record that he had made a phone call from the cellphone no: 9906707109 to his residential landline, he admits having received the cell phone from Sameena, as she had given him the same to be kept in safe custody to avoid scrutiny of her husband as to possession/ownership of same.

19. Had the poor fellows (kenu’s) daughter been not unwell, and had he not gone to Pulwama, on a wedding, he would not have made a phone call from landline, which got recorded at the cell phone’s log in its AIRTEL office, and led investigation to this Ishtiyaq Ahmed Kenu.[ Mark-T/4]

20. Ishtiyaq Ahmed Kenu divulges that the said cell phone was given to him by Sameena.

21. Sameena initially refused having given any such cell phone to Ishtiyaq Ahmed Kenu, later when confronted, confessed her giving the same to Ishtiyaq Ahmed Kenu and further divulged the name of the main culprits Zahoor and Bashir, and stated that Shazia was NO MORE.

22. An unfulfilled desire of lost love and a liaison continuing beyond matrimonial ties was the deep rooted motivation of Sameena to succumb to the wishes of accused no: 1. Zahoor, who wanted to marry her since they were very young, but parents never agreed to their desires and she (Sameena) was married elsewhere while Zahoor was about to be married to sister of accused no.2. Bashir, however the liaison (illicit) continued between them ( Sameena and Zahoor ) and had a physical angle to it as well. She (Sameena) would invite Zahoor when her husband would not be home.

23. Since Sameena and Zahoor belonged to the same locality, (maternal house of Sameena at Hazaratbal ) One year prior to the occurrence, accused had seen Shazia at Hazratbal in a marriage ceremony in the parental house of Sameena.)Deceased Shazia had attended one wedding at Sameena’s ( accused no:3) maternal house where Zahoor ( accused no:1.) was also an invitee, both having friendly terms with Sameena, it was this critical factor which led Sameena to be a conduit in order to satisfy her own desire at the behest of her paramour Zahoor, who had eyed Shazia in that wedding and thereafter had made advances towards Shazia proposing her, but was rebuffed by her ( Shazia) as she was already involved with this boy, with whom of late she was engaged after initial resistance by her family and is designated as her fiancé in the instant case, who could not have kidnapped her as is reflected in some suggestions by the defense, and also initially suspected by the investigating agency.

24. It was this demand of Sameena ( accused no:3) to meet Zahoor ( accused no:1.) at her residence, which was declined by him, and the condition precedent that he will see her if she initiates his friendship with Shazia.[EXPW-8/1 and EXPW-8 also EXPW-7.]

25. Consequent to this demand she tried to introduce and mediate between the two; however Shazia was content as she was engaged to the love of her life, having been agreed upon by her guardians after their initial resistance. So she was not interested in Zahoor, but Sameena was interested in Zahoor very much, and could do any thing for him, to seek his company. .[EXPW-8/1 and EXPW-8 also EXPW-7.]

26. Since Zahoor could not get Shazia, but he wanted her at all costs, he conspired with his would be brother-in-law, Bashir ( accused no:2.) a confidante of Zahoor who virtually shared everything with him. .[EXPW-8/1 and EXPW-8 also EXPW-7.]

27. They planned to have Shazia forcibly and used Sameena as an instrument to further their design .[EXPW-8/1 and EXPW-8 so EXPW-7.]

28. In order to execute the plan accused no.3.,Sameena got Shazia (deceased Shazia) out of her house on the pretext of making some purchases at Khanyar Bazaar, (which she did) and brought her to dewatering station at Babdemb and handed her over to accused.1 Zahoor and accused no.2 Bashir who were waiting in a TATA SUMO No: JK01F-3520 owned by accused as per their plan.[EXPW-8/1 and EXPW-8 also EXPW-7.][EXPW-9/1]

29. They picked her up, as planned, and after going around city periphery,kept moving till it was dark. .[EXPW-8/1 and EXPW-8 also EXPW-7.]

30. They took her to the road leading to Ganderbal popularly known as 90’(ninety feet road) and after seeing some isolated spot stopped the SUMO, and (accused no:2) alighted down from the SUMO and lifted its bonnet and the inside of SUMO did not had frontal access of light, that, Zahoor (accused no:1) forced himself on Shazia, who might not have had suspected the evil designs so far, and she started struggling for herself.( that with the aid of accused, Samena, Shazia was got by them at 6.30 p.m. on 2^5th of April, 2005 near Babademb dewatering station wherefrom Shazia was taken away in sumo vehicle bearing No.3520-JK01F and was kidnapped and after instructing accused Samena to wait at Babadem. It was also disclosed by the accused persons that thereafter deceased Shazia was kidnapped and after driving through foreshore road up to Nishat, to kill some time so that it could get dark and they had the intention to commit rape upon the deceased. Accused also disclosed that when it got dark the accused persons Bashir Ahmed and Zahoor Ahmed brought the deceased Shazia to 90’ road to Buchpora and stopped the vehicle. .[EXPW-8/1 and EXPW-8 also EXPW-7.]

31. Bashir Ahmed got down from the vehicle, opened bonnet of the vehicle and Zahoor Ahmed Wani, accused caught hold of the deceased and after tearing away pajama of Mst. Shazia and smothering the mouth of the deceased. The deceased was raped by Zahoor Ahmed Wani and it was also disclosed by the accused persons that Bashir Ahmed Sheikh who had opened the bonnet of the vehicle was waiting for his turn to rape the girl. .[EXPW-8/1 and EXPW-8 also EXPW-7.]

32. When the accused Bashir Ahmed came to have the illicit intercourse with Shazia, Zahoor told him that Shazia’s pluse was not beating. It was also stated by accused, Bashir that when Shazia’s body could not get any response he told Zahoor that Shazia had died and then both the accused got perturbed and then in order to pass the death of the deceased as an accident both accused persons took the dead body for disposal to Ganderbal where the dead body of Shazia was thrown into river Sindh at Gagerhama, Ganderbal and then started back travelling .[EXPW-8/1 and EXPW-8 also EXPW-7.]

33. Accused no 1 ( dead) made the disclosure statement on camera recorded and exhibited as EXPW-7 has demonstrated, how he raped the poor girl in the middle seat of the SUMO. And when the deceased girl tried to raise alarm, accused no 1., covered her mouth and nose resulting into asyphyxia due to suffocation, and the said fact stands corroborated by EXPW-M- ( Exhibit SY-283/05 by the FSL expert and jar 2 which was received in FSL was forwarded to Serology biological section for detection of diatoms.” Exhibit No. SAY-283/05, the stomach that contains FSL opinion that no poison was detected in the said exhibit. The sealed packet which was found to contain plastic container containing the sternum given the Exhibit No.K103/05 in the serology section and the other sample containing water sample collected from the place of drowning exhibit No.K135/05. Both the samples were put to FSL test and it was found that exhibit No.K-130 /05 did not contain any diatom. If the deceased would have died due to drowning then diatom would have been found present in sternum lifted from the dead body during the postmortem.

34. When Mr. Shahul Ahmad Kant, Assistant Scientific Officer, FSL was examined in this court during his cross examination by the learned counsel for the accused No.3 has stated that in case of death caused outside water and thereafter dead body is thrown in the water diatom test is always negative. Since the sternum did not contain any water so diatom test was opined to be negative after putting the sternum to examination by FSL [ EXPW-18/2]and [Mark-MA/2].This scientific evidence also establishes the prosecution case that the deceased's death was caused due to “asphyxia by suffocation” which again is strengthen by the disclosure statement given on camera by the deceased accused when he was questioned during the investigation of the case.

35. Postmortem team, as stated in cross-examination.They had found external injury on the body of Shazia which are detailed on page 2 of the postmortem report, EXPW-MA. The injury No.2 lacerated wound on the tip of tongue is shown as anti-mortem injury meaning thereby that the injury must have been sustained or inflicted just before the death of Shazia. The injury in question can be caused if the tip of tongue is crushed in between the teeth.

36. After Zahoor was finished, he came to his senses, and tried to wake her up, as she had fallen unconscious, that, she is not responding.(It was also disclosed by Zahoor that he found Shazia bleeding after the intercourse and then he removed the veil from Shazia’s mouth and nose. Then 1-2 slaps were given to Shazia by both the accused persons. When there was no movement in the body of Shazia they came to know that Shazia was no more. Then Zahoor pleaded Bashir to save him as Samena knew about the same and then when Bashir expressed his unwillingness, Zahoor told him that both of them will get wrapped in the same occurrence. )

37. Than they realize, she is no more, she dies of asphyxia, (blockade of air passage, resulting into pulmonary cardiac arrest) Bashir tells Zahoor, what have you done, however Zahoor tells him you are equall partner in the crime so you better co-operate, or else, you too will be booked along with me.(It was also disclosed by Zahoor that he found Shazia bleeding after the intercourse and then he removed the vail from Shazia’s mouth and nose. Then 1-2 slaps were given to Shazia by both the accused persons. When there was no movement in the body of Shazia they came to know that Shazia was no more. Then Zahoor pleaded Bashir to save him as Samena knew about the same and then when Bashir expressed his unwillingness, Zahoor told him that both of them will get wrapped in the same occurrence. Thereafter Zahoor and Bashir planed to throw the dead body into the river and both of them took the dead body to Ganderbal.)

38. Realizing the consequences of their act they further conspire to dispose of the dead body. .[EXPW-8/1 and EXPW-8 also EXPW-7.]

39. Evidences which now connect the vehicle and its owners, and the instant culprits to the crime scene, viz: hair strands(female) which match the length of the hair sample taken from the re-exhumed dead body and the DNA pattern of the said hair. (During investigation SHO had given a direction that whenever vehicle No.3520-JK01F, which was owned by accused, is spoted it should be seized and they were also directed that after seizing such vehicle they should thoroughly inspect and check the said vehicle from inside for finding any kind of evidence. After dropping the accused Samena with Women Police station Rambagh.[EXPW-18/1 and Mark-MA/3.] also EXPW-9/1

40. PW. ASI.Mohammed Ismail,spoted the vehicle at Ikhwan chowk near Petrol Pump and he at once seized the same in presence of HC, Ghulam Rasool. Aijaz Ahmed driver was driving the seized vehicle.[EXPW-9/1 and Mark-D]

41. PW. ASI.Mohammed Ismail,spoted the vehicle at Ikhwan chowk near Petrol Pump and After searching the vehicle he recovered two long hair strands from the middle seat of the sumo which were stuck with the seat and it appeared that the hair strands were of a women. He measured the strands which were found 27 cm long and were measured separately. Then he put the hair strands in a paper and seized them in presence of Ghulam Rasool HC and driver Aijza Ahmed. Seizure memo EXPW-9/1 is in his hand writing and bears his signature and its contents are correct. And Mark-D.

42. The two hair strands were recovered and seized and sealed from the middle seat of the sumo vehicle. As per EXPW-9/1.

43. The rubber band of the prosecutrix and her nylon slipper which was recovered at the instance of the accused. (when the accused were returning back from Ganderbal a cell phone of Shazia rang which was lying in the vehicle and they switched off the cell phone. Then Bashir told Zahoor to see in the vehicle whether any of Shazia’s article is lying in the vehicle and after searching the vehicle Shazia;s chappal, hair band (blue coloured) and silver bangle and scraf was found. Then Bashir suggested to Zahoor that they will destroy these articles so that no evidence remains available and then both the accused went to 90’ road and the (Shazia’s) above mentioned articles were buried there.) .[EXPW-8/1 and EXPW-8 also EXPW-7.]

44. It was already night, so the accused had no time to have a thorough search for cleansing of clues. It was not possible, the dead body needed to be disposed of before sunrise, and while doing so they should not have been identified or traced.

45. They proceeded further towards Ganderbal, and at Gangerhama, they threw, the Dead body into Sindh nullah, which travelled downstream, and via Jhelum, surfaced at Sumbal. .[EXPW-8/1 and EXPW-8 also EXPW-7.]

46. They knew that Police would treat it as another case of suicidal drowning. ( accident )

47. HOWSOEVER CLEVER A CRIMINAL MAY BE, ( which the accused herein tried to be) THE BASICS OF FORENSICS IS THAT CRIME ALWAYS LEAVES SOME CLUES AND TRACES, WHICH IF COLLECTED BY AN INTELLIGENT INVESTIGATOR ARE SUFFICIENT IN THE ORDINARY COURSE OF NATURE TO PIN THE CRIME ON ITS PERPETARTORS.AND IN THIS CASE THE FIRST AND FOREMOST OF THEM ALL IS CELLPHONE No.9906707109 OF THE PROSECUTRIX, WHICH THEY DID NOT DISPOSE OFF, BUT CARRIED IT ALONG…

48. It was this cell phone no: 9906707109 which connects them all to the deceased prosecutrix.

49. Shazia had this cell phone, gifted to her by her fiancé, and nobody else knew it, not even the accused.

50. They (accused 1 & 2 ) found it in the SUMO and accused no 1., gave it to the accused no. 3., Sameena along with cash , to keep shut. As she enquired from accused no.1., about Shazia, and accused no.1., had replied that she is not feeling well, and is hospitalized, and shall be fine within a day or two.

51. Subsequently when Sameena enquired once again from accused where Shazia was ? then Zahoor told her that she is dead and she better remain shut, or else even she will be a party to the whole crime, (As per the statement of Tariq Ahmed. S.I. on 27^th of April, 2005 Samena called Zahoor Ahmed and asked why Shazia did not return to her house, on which Zahoor told Samena, as per his statement that deceased was not well and will return to her house. The accused, Samena also disclosed that on 28^th of April, 2005 she again called Zahoor Ahmed and asked about the whereabouts of Shazia and then Zahoor as per statement of Samena called her to Hazratbal near J&K Bank and consequently Sameena went to meet Zahoor Ahmed at Hazratbal and then the matter of death of Shazia was disclosed by Zahoor Ahmed to Samena and Samena was directed by Zahoor not to divulge the same to any body otherwise she would also get involved in the matter. As per statement of Mst. Sameena Shazia’s dead body had been disposed of and was asked to remain quite composed and Zahoor also gave Mst. Samena Rs.500/- and cell phone and also promised to give her more money for not divulging the facts to any body.)

52. And it was this time that Sameena was paid some money and cell phone of the deceased prosecutrix. (PW. Tariq Ahmed S.I. stated that;. After 14 days in police clock up Ishtiyaq Ahmed Kenu disclosed that he had been given the cell phone by accused No.3, Mst. Samena bearing No.9906707109 and on 26^th of May, 2005 police arrested accused No.3 and on 26^th of May, 2005 Ishtiyaq Ahmed Kenu confronted Samena in his presence that she had given him the mobile and also confronted Samena that she was having witness in whose presence Samena had given him the mobile. On 26^th of May, 2005 Mst. Samena stated that she had committed a mistake and she be saved. She also stated in his presence that infact she had enticed the deceased and took the deceased with her and handed to Zahoor Ahmed and Bashir Ahmed, the accused persons and on the same day Zahoor Ahmed was arrested and Bashir Ahmed was arrested on 27^th of May, 2005. )

53. Samena was quiet till she was confronted by the statement of Ishtyaq Ahmed Kenu( confronted Samena in his presence that she had given him the mobile and also confronted Samena that she was having witness in whose presence Samena had given him the mobile. After 14 days in police clock up Ishtiyaq Ahmed Kenu disclosed that he had been given the cell phone by accused No.3, Mst. Samena bearing No.9906707109 and on 26^th of May, 2005 police arrested accused No.3 and on 26^th of May, 2005 Ishtiyaq Ahmed Kenu confronted Samena in his presence that she had given him the mobile and also confronted Samena that she was having witness in whose presence Samena had given him the mobile. )by now Ishtyaq had thrown the cell phone in river Jhelum fearing, police, as disclosed by him and could not be traced.

54. On 26^th of May, 2005 Mst. Samena stated that she had committed a mistake and she be saved. She also stated in his presence that infact she had enticed the deceased and took the deceased with her and handed to Zahoor Ahmed and Bashir Ahmed, the accused persons.

55. On 27^th May both accused were arrested.[EXPW-8A-1 and EXPW-9.]

56. They make disclosures before the Police which are video-graphed, and find corroboration in terms of recoveries effected at 90’ road leading to Buchpora as per Ehibits .[EXPW-8/1 and EXPW-8 also EXPW-7.]

57. The disclosure of spot wherefrom victim is picked-up in the first instance, corroborated by the testimony of Ghulam Ahmed Shera, Mst. Jalla Begum who states that Shazia went out with Sameena, and admission of Sameena, who handed over her to Accused 1&2 at Babdemb. The same finds its corroboration from the testimony of Ishtiyaq Ahmed Keanu, who discloses about the possession of Shazia’s Cellphone, with Sameena( Accused no:3) and who had handed it over to him for safe custody. .[EXPW-8/1 and EXPW-8 also EXPW-7., EXPW-20/3.]

58. The disclosure of site wherefrom deceased was disposed off in Nulah Sindh at Gangerhama Ganderbal and its corroboration in its video-recording EXPW-7., and EXPW-20/5.

59. Recovery of dead-body of Shazia from Jhelum near Sumbal after 12 days, while it flows downstream as Nullah Sindh merges into Jhelum, and Sumbal is downstream of Ganderbal (Gangerhama) as a matter of fact and needs no corroboration.[EXPW-16., 16/1. And 16/3.]

60. The water sample from Sumbal containing “diatoms” and absence of the same “diatoms” in the sternal sample of the deceased confirms the fact that, the dead-body was thrown in the river (Sindh Nulla) when it was dead and not that a live person had jumped for drowning; for the reason had the living person jumped into the river for drowning, the diatoms would have definitely found their way into the deadbody.

(MEDICAL JURISPRUDENCE & TOXICOLOGY [ALT Publications 2000] “Diatoms are unicellular colonial algae, with their walls impregnated with silica and chlorophyll and diatomin. They resist heat and acid. Varying with a size of 2microns to 1mm. Diatoms upto 60microns are said to enter the pulmonary circulation during drowning. Only a live body with circulation could transport diatoms from lungs to brain, bone marrow, liver and other viscera, and skeletal muscles.”)

APRECIATION OF ARGUMENTS AND EVIDENCE ON RECORD IN THE LIGHT OF LAW LAID DOWN:

I strongly disagree with Mr. Pandit. PWs Jalla Begum, Abdul Aziz Kawa and Reyaz Kawa had no animousity with accused persons particularly when accused No.1 and accused No.2 were not known to them and Accused No.3 was treated just like a daughter who was enjoyhing complete confidence and trust of these close neighbours. So there was no occasion for these witnesses to implicate the accused persons falsely. Out of these relatives of the deceased Abdul Azxiz Kawa and Reyaz Kawa are the witnesses to the disclosure statement of Accused No.1 and Accused No.2 and also to the recovery of the wearing articles of the deceased effected in pursuance of the disclosure statements EXPW-8 and EXPW-8/1. The L.C. for defence Mr.Pandit placed reliance on 1999 CRI.L.J. 135.

“ Penal Code [45 of 1860],Section 300- Murder- Circumstancial Evidence- Evidence of witnesses regarding circumstance of deceased last seen with accused person not inspiring confidance, alleged recovery of clothes of deceased at the instance of both accused jointly- not admissible in evidence under Section 27 of Evidence Act.- also recovery of ring and wrist watch belonging to deceased not preceded by disclosure statement of accused.- Non-joining of public witnesses though available to said recovery rendering prosecution case doubtful- Chain of circumstances not completed to establish guilt of accused persons- Their conviction set aside.”

Though Mr.Pandit has tried to challenge the credibility of PWs as being interested witnesses, and under the circumstance, the disclosure to be un –trustworthy, thereby creating doubt in the mind of the Court, yet the law has been very clear and categoric in this instance as reported in; 2011 STPL (W) 284 SC. (Sahebrao Mohan Berad V/S State of Mahrashtra)

“Para. (19) ……. It is true that recovery of certain incriminating articles at the instance of the accused under Section 27 of the Evidence Act itself cannot form the basis of conviction. The recovery of incriminating articles and its evidentiary value has to be considered in the light of other relevant circumstances as well and the chain of events suggesting the involvement of the accused.”

So far as the contradictions in the PW's statement highlighted by Mr. Pandit he places reliance on 1993 CRI.L.J. 1871.

“Penal Code(45 of 1860), Ss.300, 203. Murder- Circumstancial Evidence- Evidence relating to disclosure statements and recovery of ornaments of deceased- Discrepant and contradictory- Suffering from glaring infirmities and probabilities- Evidence of convenient witnesses and investigation untrustworthy- Nail clippings of deceased and hair recovered from dead body not connecting accused with the crime- Cryptic FIR- Acquittal of accused was proper.”

The contradictions pointed out are not of such magnitude which will affect the veracity of these witnesses. The above mentioned witnesses are rustic witnesses and this court cannot ignore their state of mind and behavioral pattern when the disclosure statements of the Accused No.1 and accused No.2 lead to the recovery of the wearing articles of the deceased. Moreover the minor contradictions in the statements of the prosecution witnesses does not affect the truthfulness of the prosecution witnesses at all as the fact remains that the wearing articles of the deceased have been recovered at the instance of Accused Nof.1 and Accused No.2 in presence of Pws Ab. Aziz Kawa, Reyaz Kawa, Sub Inspector Tariq Ahmad and Ghulam Mohammad Shera. The opinion of this Court is supported by, (2007) 2 SCC 310.

“This Court had said that, when on the basis of information given by the accused there is recovery of an object of crime which provides a link in the chain of circumstances, then such information leading to discovery of object is admissible.”

(39) Minor loopholes and irregularities in the investigation process cannot form the crux of the case on which the respondent can rely upon to prove his innocence when there are strong circumstancial evidences deduced from the said investigation which logically and rationally points towards the guilt of the accused.”

As far as this argument of Mr. Pandit is concerned that there is no eye witness to the occurrence it is true as the whole prosecution case rests on circumstantial evidence.The first circumstance in the chain of prosecution case rests upon the first circumstance that the deceased Shazia was last seen in the company of the deceased accused No.2 and 3 on 25^th of April, 2005 as per the statement of Pw Ghulam Mohd Shera who disclosed the said fact to the investigating agency during his statement recorded on 28th of May, 2005 as stated by I.O. Tariq Ahmad, SHO and PW Sub Inspector, Tariq Ahmad. (2007) 2 SCC 310.

In Paras Yadav v. State of Bihar it was held that if the lapse or omission is committed by the investigating agency or because of negligence the prosecution evidence is required to be examined dehors such omissions to find out whether the said evidence is reliable or not, the contaminated conduct of officials should not stand in the way of evaluating the evidence by the courts; otherwise the designed mischief would be perpetuated and justice would be denied to the complainant party.[ National Human Rights Commission Vs. State of Gujarat & Ors. [2009] INSC 870 (1 May 2009) ]

PW, Ghulam Mohd Shera has proved the recovery of the seized items of Mst. Shazia at 90' road. He has in categorical terms stated that at the instance of accused Zahoor Ahmad Wani,( the deceased accused), one wrist watch, hair band and one iron bangle was recovered near an iron gate from under the stone. He also states in categorical terms that one black scarf and Rexsine chapal were recovered at the instance of accused Bashir Ahmad Sheikh from a garbage dump at 90' road in his presence which were identified by Reyaz Ahmad Kenu and Abdul Aziz Kenu as being the articles of Mst. Shazia at the time when she went missing.

So far as the argument of defence counsel that PW Ghulam Mohd Shera denied that Shazia was last seen by him in the company of the accused persons is not true when the statement is scrutinized. The contention of the defence counsel that the deceased was related to Ghulam Mohd Shera is refuted by the said witness during his cross examination when the suggestion was put to him but he has admitted that Shazia was known to him because she was living in his neighbourhood. So the argument of Mr. Pandit falls on the ground when he says that the circumstance of the accused having been spoted in the company of accused falls flat as the same has been proved by the I.O. Tariq Ahmad, SHO and Tariq Ahmad Sub Inspector when Ghulam Mohd Shera PW stated before them that Shazia was last seen by him in the company of the accused. If it is presumed that Pw Ghulam Mohd Shera has not last seen the deceased in the company of the accused persons even then the accused persons involvement in the heinous offences of abduction, rape, murder and destruction of evidence cannot be ruled out in view of the disclosure statements made by the accused No.1 and 2 separately which have been reduced into writing and proved sufficiently by the marginal witnesses and also by videography and photography by the investigating agency when the video casette which was sealed and viewed by this court in presence of the defence counsel as well as learned PP. AIR 2001. SC. 2274. (Bibhachha V/S State of Orrissa.)

The accused, Zahoor Ahmad concludes whole story on camera how he had planned the abduction of poor victim alongwith Bashir who knew his inns and outs of (Zahoor) and then how accused No.3, Sameena executed the plan by getting the deceased near the dewatering station at Babadem wherefrom the deceased was abducted by the accused 1 and 2. Accused No.1 has revealed the whole facts on camera and also in the disclosure statement, EXPW-8 how the deceased Shazia was abducted and then subjected to rape and suffocation which resulted in her death and thereafter throwing her body in river Singh at Gangerhama Ganderbal. Disclosre statement made by accused No.2, EXPW-8/1, sufficiently prove the prosecution case that Mst. Shazia was got out of her house by accused No.3 on the pretext of making some purchases at Khanyar Bazar and the innocent girl having tremendous trust in accused No.3 accompanied the said accused and then near dewatering station Babadem was handed over by accused No.3 to accused No.1 and 2 who abducted the deceased in sumo vehicle belonging to accused No.1 bearing registration No. JK01F-3520. Videography of disclosure statements of the accused, Zahoor also reveals that they after going around the city periphery in order to wait to get dark the two accused brought Shazia to 90' road where the accused No.1(deceased) asked accused No.2 to get down and then after tearing the pajama ofShazia started raping her. Accused No.1 also disclosed on camera that when Shazia fought back and tried to shout, accused No.1 put his hand on the nose and mouth of Shazia in order to stop her shouting so that no passerby would get aware of the act of the accused. He has also disclosed on camera that when he found Shazia had stopped struggling and her hand fell down, he examined the deceased who did not move and then called Bashir, accused No.2, to see as to what had happened to the deceased and when accused No.2, after giving slaps to the deceased tried to get some reaction from Shazia and also felt the pulse of the deceased he could not find the same and then both the accused persons as per disclosure statement of accused No.1 on camera, both the accused made a plan to dispose of the dead body by throwing it into river Sind which was executed as per disclosure statement on camera and also in writing.

If the argument of defence counsel that the disclosure statements cannot be relied upon as the same have not led to any recovery; the law on the subject as laid down by Hon’ble Supreme Court is abundantly clear:

AIR 2001. SC. 2043. (Raju V/S State of Haryana.)

“(A) Penal Code, Ss.300. 376 – Rape and Murder – Evidence clearly established that accused enticed deceased young girl aged about 11 years to accompany him at about 6.pm.- accused and deceased last seen together – accused alongwith deceased was not traceable on night of incident – search continued whole night and dead body of deceased traced in morning – not lodging of FIR during night time, therefore, no ground for doubting evidence – that apart, accused had made extra judicial confession before independent witness who was resident of locality and had sought help from him – accused had also pointed out place of incident and where he had thrown dead body – defence of accused that accused was falsely implicated by the father of the ccused for non payment of rent as baseless- conviction maintained.

AIR 2004. SC. 2282. ( Insp. Of Police V/S N.M.T.Joy.)

“ (B) Evidence Act [1 of 1872], S.25- Cr. P.C. [2 of 1974], Ss. 93.to 101, 165. – Search and seizure – confession made in police custody – and recovery of incriminating articles in pursuance of – Evidentiary value of – cannot be excluded merely on ground that it was obtained under illegal order of remand to police custody- effect of confession and recovery to be strictly examined in accordance with provisions of Evidence Act.

The disclosure statements of accused No.1, Zahoor and accused No.2, Bashir has led to the recovery of wearing articles of the deceased which had been concealed by them under a stone and garbage dump at 90; road. Both the recovery memos, EXPW-8 and EXPW-8/1 establish the prosecution case that the black scarf and chappal was concealed by accused No.2 under a garbage dump which had been recovered at the instance of accused No.2 by virtue of recovery memo EXPW-3/3.

The other link in the prosecution case vis-a-vis recovery of other wearing items i.e. ladies wrist watch, an iron bangle, hair band have been recovered at the instance of accused No.1 Zahoor Ahmad Wani by virtue of EXPW-3/2. All the marginal witnesses to the disclosure statements EXPW-8 and EXPW-8/1 have stated in one voice that the disclosure statement s were made in their presence i.e. HC Mohd Subhan, 8251/S Tariq Ahmad, SI, 7870/NGO and then the disclosure of accused No.2 led to the recovery of black scarf and chappal at 90' road in presence of Reyaz Ahmad Kawa, PW Tariq Ahmad 7870/NGO, Ghulam Mohd Shera and Abdul Aziz Kawa. The whole process of disclosure statements have been viedographed as well and there is no doubt that the disclosure statement have been made by the accused 1 and 2 in presence of the witnesses to these documents. So the second link in the prosecution case is proved sufficiently that when the police station Khanyar received the information from reliable source regarding the deceased having been abducted and subjected to rape and murder by accused No.1 and 2, who was got out of her house by the accused No.3, Accused No.1 and 2 were taken into custody where during the questioning they made the disclosure statements EXPW-8 and EXPW-8/1 respectively which were videographed as well.

1995 CRI.L.J. 1477 SC. ( submitted by L.C. for defence) :

“Circumstancial evidence – circumstances regarding relationship of accused with co-accused and prior concert between them and identification of accused, not proved- requirements of Section 100.(4) Cr.PC.requiring two joining witnesses for carrying out search of room of accused – recoveries of robbed properties, blood stained clothes and weapon of offence at the instance of the accused, doubtful- Guilt of the accused not proved beyond reasonable doubt- conviction not proper.”

However, the said authority holds no water as the disclosures which are captured in camera through Videography, which is also proved, having been seen in the court by the witness Mohd Altaf, the videographer when the court arranged the equipment for viewing the viedography on TV in the court. The disclosure statements led to the recovery of the wearing articles of the deceased which was affected at the instance of the accused No.1 and 2 and were shown to the witness in the court who identified the articles of recovery of being the same as were recovered on the date of recovery from 90' road in their presence. This recovery at the instance of accused in terms of Section 27 of the Evidence Act can be read in evidence and is a strong circumstance supported by AIR 2001. SC. 2274. (Bibhachha V/S State of Orrissa.)

As per the prosecution case when the information regarding the occurrence was received from reliable source wherein names of accused No.1 and 2 were disclosed by the source to the police, case was registered under section 364, 376, 302 RPC and on the same day accused Zahoor Ahmad and Bashir Ahmad Sheikh were arrested as per arrest memos EXPW-8 a/1 and then they were subjected to sustained interrogation during which they made the disclosure statements separately which lead the investigating agency to the recovery of the wearing articles of the deceased as mentioned herein above. When the disclosure statements were made on 29^th of May and were reduced into writing on 30^th of May, 2005 as per investigating agency, a request was made for ordering the re-exhumation of the body of the deceased to the District Magistrate, Srinagar. When the order of re-exhumation was passed by the District Magistrate, Srinagar, than a request was made by SP city north to Principal GMC for conducting the postmortem after re-exhumation. At the orders of Principal GMC, Srinagar a team of doctors headed by Dr. Balbir Kour, Professor and HOD Forensic Medicines GMC, Srinagarand Dr. Mohd Ashraf, Surgeon Specialist and Dr. Manzoor CMO, SMHS, Srinagar was constituted.

Dr. Balbir Kour, Ex Professor GMC, Srinagar has in categorical terms stated that after re-exhumation of the body of said Shazia on the orders of District Magistrate, Srinagar, endorsed by Pincipal GMC, Srinagar and marked to her and the team constituted visited the graveyard Malakah JLNMH, Rainawari, Srinagar in presence of Magistrate, Ghulam Rasool, NT Tehsildar, the body was re-exhumed and different samples were collected from the body of Shazia which were sealed by Magistrate present on spot and then handed over to I.O for conducting necessary tests and DNA from FSL. The said witness has admitted the contents of the postmortem report, EXPW-MA comprising of 4 leaves to be true and correct. She has also admitted the final opinion given by him after receiving the FSL report, EXPW-MA 1 to be true and correct which as per the witness were signed by the other two team members. As per the final opinion of the team the cause of death of deceased Shazia was given because of “asphyxia due to suffocation”. The report from Histologist placed on the file was also considered while giving the final opinion regarding the case of death in EXPW-MA-1. The said expert witness has stated in categorical terms that lacerated wound was found on the tip of tongue of the deceased meaning thereby that the that the injury must had been sustained by the deceased before death. This aspect of the case also establishes that the injury on the tip of tongue of the deceased found during the postmortem by Dr. Balbir Kour Head of the postmortem team would have been caused when the accused No.1 subjected the deceased to rape and when she tried to raise her voice her mouth and nose was covered by the hand of the accused No.1 and during the resistance the deceased must have received the lacerated wound on the tip of the tongue.

One of the members of the postmortem team PW Mohd Ashraf Surgeon Specialist, was suggested by the defence counsel for accused No.2 as to why they had to open the dead body, the said expert has stated in categorical terms that prior to the conduct of postmortem by him and other doctors, body had not been opened and opined that no previous postmortem had been conducted upon the dead body. It is often seen that when a body is recovered from any water body or river when the doctors are asked to conduct the postmortem of any unidentified unclaimed body they take the matter very lightly and give the opinion that the cause of death is because of drowning. When the dead body had not been opened at Sumbal, how could the opinion of postmortem conducted at Sumbal be authentic especially when the relatives of deceased reached Sumbal in order to ascertain the identity of the dead body and after ascertaining the same as being of Shazia when they got the exhumation orders they and the police concerned requested the medical officer to conduct the autopsy of the dead body but the doctor as per evidence on the file expressed his inability to do so for want of facilities? This attitude of the Medical officer itself points the finger that he had not opened the body for postmortem but had given a general opinion about the cause of death since the body was recovered from river Jehlum, he has given the opinion, that the “cause of death was drowning” But he has also opined that the death was caused due to asphyxia due to drowning. The postmortem report of Community Medical Health Block Hajan Mark- “X” though says the cause of death asphyxia but is further elaborated that asphyxia has been caused due to drowning. The medical team consisting of Dr. Balbir Kour, Dr. Mohd Ashraf and Dr. Manzoor Ahmad who had to open the deceased's body when the body was re-exhumed have stated in categorical terms that the cause of death was asphyxia but since no water was found in the lungs of the deceased, asphyxia would have been caused due to suffocation and not by drowning. The opinion has been framed by the team of doctors when the team received the reports; Mark - MA and MA-2. Mark MA-1 and MA-2 is the opinion of FSL to whom samples during the postmortem report by the team of doctors were sent for FSL examination. In mark MA-1 two samples were sent. Jar one which contain stomach and contents which was given Exhibit SY-283/05 by the FSL expert and jar 2 which was received in FSL was forwarded to Serology biological section for detection of diatoms. After examining the exhibit No. SAY-283/05, the stomach that contains FSL opinion that no poison was detected in the said exhibit. The sealed packet which was found to contain plastic container containing the sternum given the Exhibit No.K103/05 in the serology section and the other sample containing water sample collected from the place of drowning exhibit No.K135/05. Both the samples were put to FSL test and it was found that exhibit No.K-130 /05 do not contain any diatom. If the deceased would have died due to drowning then diatom would have been found present in sternum lifted from the dead body during the postmortem. When Mr. Shahul Ahmad Kant, Assistant Scientific Officer, FSL was examined in this court during his cross examination by the learned counsel for the accused No.3 has stated that in case of death caused outside water and thereafter dead body is thrown in the water diatom test is always negative. Since the sternum did not contain any water so diatom test was opined to be negative after putting the sternum to examination by FSL.This scientific evidence also establishes the prosecution case that the deceased's death was caused due to “asphyxia by suffocation” which again is strengthen by the disclosure statement given on camera by the deceased accused when he was questioned during the investigation of the case. Having regard to the above said facts and circumstances, Hon’ble Apex Court has highlighted the importance of opinion esp. Doctor in :

2011 STPL (W) 284 SC. (Sahebrao Mohan Berad V/S State of Mahrashtra)

“ Relying on (1992) 4 SCC 69. ……. It is needless to say that the doctor who has examined the deceased and conducted the post – mortem is the only competent witness to speak about the nature of injuries and the cause of death. Unless there is something inherently defective the court cannot substitute its opinion for that of the doctor.”

The prosecution has sufficiently established the chain of circumstantial evidence against the acused persons as disclosed herein above to the extent how the deceased got missing and missing report came to be lodged with P/s Khanyar and when during the period up to the news items in ‘Alsafa’ about an unidentified female body recovered from river Jehlum at Sumbal, Khanyar police did not close the report but were looking for the missing person and when the police was looking for the missing girl, Mst. Jalla produced two photographs before the concerned police; one of the missing girl and another of the boy with whom the girl was having an affair and then engaged and then as per prosecution case the said boy was called to the police station. After Tariq Ahmad, Sub Inspector visited the deceased's house wherein he was told by cousin of the deceased that at the time of leaving the house the deceased was talking on the cell phone to some one and was also told that Shazia would conceal the said cell phone as she would often talk to her fiance on the said phone that is how cell phone emerged during the investigation. It was after the Shazia's sweetheart was lifted for questioning and was grilled but nothing came out where Shazia was and then Shazia's fiance's brother as per Tariq Ahmad Sub Inspector, approached the police station that he had given a call to the cell phone of Shazia, though the cell phone rank but somebody switched it off. The investigating agency approached Airtel who E-mailed the call details of the said cell phone. From the call details it was revealed that after Shazia went missing one call was made from Shazia's cell phone to a landline and the same was traced to PW Ishtiyaq Kenu that is how Ishtiyaq Kenu was called to the police station by the investigating agency for interrogation and he admitted that the cell phone was given to him by accused No.3 Sameena and since he came to know that the police was in search of Shazia's cell phone, he threw that into the river Jehlum at Fatekadal. Accused No.3 was arrested on 2^nd of June, 2005 after the accused No.1 and 2 made disclosure statements which lead to the recovery of the wearing articles of the deceased.

Learned counsel for the defence argued that the disclosure statement of accused No.2 has not been proved sufficiently as all the witnesses to the seizure memo EXPW-3/3 Ghulam Mohd Shera, Abdul Aziz Kawa, Reyaz Ahmad Kawa and Tariq Ahmad SI 7870/NGO have given contradictory statements about the recovery of the wearing articles alleged to have been recovered at the instance of accused No.2 i.e. scarf and chappal of the deceased.

1980 CRI.L.J. 928: “ Application of Evidence – Accused convicted and sentenced under Section 302. r/w Section 34 IPC. – Participation of one accused in assault on deceased not adequately established – Supreme Court can interfere and set aside his conviction.”

But the argument of the defence counsel Mr. Pandit cannot be entertained because the statements of the witnesses have been recorded before this court after a gap of almost one year right from the date of recovery and human memory cannot be expected to be as accurate as a computer because humans are affected by circumstances and the pressure of grief. The fact of the matter is that the disclosure statements have been proved by these marginal witnesses by stating that the wearing articles of the deceased were recovered in their presence by the investigating agency at the instance of the accused persons. Pw Ghulam Mohd Shera remained present at the time of recovery as admitted by him but he has stated that he does not remember which articles were re covered at the instance of which of the accused. Minor contradictions can occur in the statements of the witnesses as the time factor also plays a role in such matters. Moreover the videography shows Bashir identifying the spots wherefrom the deceased was abducted, then taken to 90’ road where deceased was subjected to rape and death. Then Bashir himself shows on camera the spot where the dead body was disposed by both the two accused together.

AIR 2003 .SC. 3131. ( Amit @ Ammu V/S State of Maharashtra.)

“(A) Penal Code, Ss.300. 376 – Rape and Murder – Proof – Allegations that accused took deceased, a school girl to secluded place and committed rape on her and strangulated her to death – last seen evidence – testimony of witness who saw accused along with deceased prior to incident is trustworthy and reliable – time of death of deceased established on examination of evidence – close proximity of place and time between the event of the accused having been last seen with deceased and the factum of death – no explanation given by accused as to how and in what circumstances the victim suffered the death – conviction of accused proper.”

So the argument of defence counsel cannot be entertained, in view of the clinching evidence in the shape of viedography of the disclosure statements of Zahoor and also identification of the spots of crime by the accused No.2.

So far as the plea of torture given to the accused No.1 raised by learned defence counsel Mr. Pandit is concerned it runs in conflict with the viedography when viewed. Accused No.1 is no more now, and he has confessed on camera that how he had a eye on Shazia when he spotted the unfortunate girl in a function at Hazratbal in the parental house of accused No.3 and then tried to pursue her for having a illicit liason but got from her clear signals that his intentions would not be welcomed by the deceased girl. Then he hatched a conspiracy with the accused No.2, his close friend and would be brother in law, in order to get Shazia out of house, for which the accused No.3, who had an illicit relationship with the accused No.1, was used to get Shazia out of her house in order to favour her with a meeting with accused No.1. The plan was executed by accused No.1 and 2 on the relevant date when Shazia went out with accused No.3 who knew the intentions of accused No.1 towards the deceased. So neither the accused No.2 can be said to be innocent nor the accused No.3. If accused No.2 had some decency and morality, he would have never agreed to the plan of accused No.1 to abduct the deceased near Babademb. Accused No.2 could have refused to carry out the plan but instead he lent him a helping hand by driving the vehicle as is evident from the evidence on the file. This attitude of accused No.2 cannot absolve him from the criminal liability under sections 364,376,302, 120-B,201 RPC. Even if it is presumed that the accused No.2 had no intention to harm Shazia even then he knew that accused No.1(would be brother in law) was lusting after Shazia and that was the reason why Shazia was being abducted. He did not even stop when the girl was taken in the crime vehicle around the city periphery, why he remain quiet and did not protest, is again a circumstance which goes against the accused No.2. This proves that he had criminal intentions and he aided and abetted the offence of abduction, rape, murder and destruction of evidence. Even when the girl was dead he slaped her 2/3 times in order to ascertain whether any life was left in the girl and then also felt her pulse. This again satisfies this court that he is not a human being but a beast who aided and abetted another beast in destroying life of an innocent girl and then throwing the body alongwith the accused No.1 into river Sindh in order to obscure the murder as a drowning case.

AIR 2001. SC. 2043. (Raju V/S State of Haryana.)

One more circumstance in the chain of prosecution case, is the recovery of two hair strands of the deceased from the crime vehicle when it was stopped by HC Mohd Ismail, being driven by Aijaz Ahmad Pathan. These two hair strands were sealed on the spot and sent to FSL alongwith one hair strand taken from the dead body at the time of re-exhumation and postmortem conducted by a team of Doctors headed by Dr. Balbir Kour also is clinching evidence against the accused persons that infact on the fateful day of occurrence Shazia was abducted in the crime vehicle belonging to accused No.1 with the aid of accused No.3 and then was taken to 90’ road by accused No.1 and 2, then subjected to rape and murder and thereafter was thrown into river Sind in order to destroy the evidence of murder and to pass it of as a case of drowning.

All the links in the chain of circumstancial evidence have been proved by the prosecution not only by oral evidence but also videography, photography as well as by scientific and medical evidence. All the circumstances only point to one conclusion that the accused No.2 and 3 aided and abetted in a well planed manner the commission of offences under sections 364, 376,302,201 and 120-B RPC. The chain of evidence is so complete as it has not left any reasonable ground for any other alternative conclusion, and all the circumstances show in all probability the said offences have been committed by the accused.

It is also clear that the accused No.3 played a leading part in taking away the deceased away from her house on the pretext of doing some shopping and then handed over her to accused No.1 and 2. Though it cannot be said that the accused No.3 would be knowing that the intention of accused No.1 would be to kill the deceased. But she cannot be absolved because she knew that accused No.1 had the intention of raping Shazia as had been expressed by accused No.1 to accused No.3 many times before. It is disgusting that the accused No.3, being a woman, did not even care for the honour of a friend who had blind trust in her. Thus accused No.3 cannot be absolved from the aiding and abetting the offences of 364,376, 302,120-B RPC.

61. The criminality and the manner in which accused Sameena, roped in deceased Shazia,driven by her lust towards Zahoor, obeying his command to handover innocent and un-suspecting Shazia, to the wolves clothed as sheep in the shape of Zahoor, who has an illicit lustful liaison with her old-flame Sameena and pushes her through her cyclic desire for him to get his lustful design to be satisfied in conspiring with his confidante and partner in all such illicit activities, and relative ( brother-in-law) who in turn, as a greedy inhuman lupus, thriving on the carcases of left over of the hunt; connives and supports Zahoor in fulfilling his desire,and in turn seeking a new venture in the shape of hunt, assists actively, and drives the vehicle of Zahoor, accompanies him throughout the pursuit of his illegal act of seeking Shazia and defiling her forcibly, and aiding the carriage of the deceased prosecutrix, initially from Baba-demb, via Nishat till 90’ road proceeding towards Ganderbal. Letting Zahoor have his turn, rather allowing him space to accomplish his part of the act(rape) and waiting for his turn.

62. The act of Zahoor is so dastardly that he inflicts such a serious gag on the innocent girl with her scarf, who is subjected to forcible rape, that she dies of asyphyxia, struggling so hard that her toungue is chopped in between her teeth, while this animal of a man, Zahoor did not realize the life passing out of his victim, till he was not over. Instead he slaps the dead body and when it does not respond and it was only when he saw the victim bleeding from her nostril did he realize she is no more.

63. Bashir who is not only coward,but like a hyena, preys on the dead, arrives for his turn and sees Zahoor perplexed, and suddenly realizes, Shazia is dead, so now he does not want to be a party to all this, but on the thought that he will be an abettor of the crime, he connives with Zahoor and aids and abbets, in furtherance of a common objective of disposing of the dead body, and passing it off as an accident, they both drive upto Gangerhama, Ganderbal and throw away dead body into Sindh Nallah.And while they are returning back when her cell phone rings, they turn it off. Now they realize there could be other pieces of evidence and they collect them also in order to dispose them also off, which include, cell-phone, slippers, scarf, bangle, and rubber-band, etc. Which they bury on their wayback home.

64. Samena on the other end is least bothered, as to what fate Shazia met at the hands of Zahoor and Bashir, while her neighbours and Shazia’s guardians are constantly enquiring about her whereabouts, from her, and she lies to them, that she had dropped Shazia at her door, while she knew, she had handed her over to her paramour in order to seek his constant support. Not only that she constantly, lies and despite her knowing what fate Shazia met at the hands of Zahoor and Bashir, she receives money and cell-phone in lieu of her silence as well as to screen herself off from the said crime. She very cleverly passes on the cell phone to Ishtiaq Ahmed Kenu, as one her friends to be kept in secrecy from her husband, and to be used as and when needed. And later when Ishtiyaq had not confronted her, she still refused having passed on any cell-phone to Ishtiyaq Ahmed Kenu, or having it received from Zahoor and Bashir and what all they had done with Shazia. The mockery still does not end here, she still tries to create defence of credit and false implication into the instant case at the behest of the guardians of the deceased victim, a plea which stood belied by her own father and husband.

65. Zahoor knew his fate and could foresee, his future, so he met with his destiny, however so far as the accused no: 2, and 3, i.e. Bashir and Sameena are concerned, they may not have actually murdered or raped the deceased Shazia, but it was Sameena in the first instance, who had her own reasons and motivations to hand over Shazia to the wolves, though she was fully aware of the design of Zahoor and his accomplice Bashir, and what they were upto, OR what they wanted from Shazia. And throughout maintained silence despite knowing the truth about the fate of Shazia, not only concealing what all she knew, but at the same time allowing twice exhumation and defilement of even a dead body (of Shazia though the same was necessary for the purposes of investigation; inspite of the fact that Samena knew what had happened) and tried to do away with the evidence is liable in the first instance under Section 364 RPC, and later 376RPC culminating into 302RPC readwith 201 & 34 RPC. Apart 120-B.RPC masterminding the execution of initial plan in connivance with her paramour and his brother-in-law, accuseds 1&2, and deserves no concession whatsoever, rather deserves an exemplary treatment at the altar of Justice. And keeping in view the unflinching evidence which connects them all through the game of lust and criminality, this Court finds her guility on all counts of charges as mentioned above.

66. So far as Bashir is concerned, a hyena in nature who preyed upon his brother-in-law’s hunt and was his active partner in all the acts, aiding, assisting and abetting right from the moment, they took custody of Shazia from Samena, knowing well that what lied in store for her, especially in the mind of Zahoor and in his own mind, and thereafter, actively participating in disposing off the dead body of the victim Shazia, passing it off as accident and concealing it, as well as aiding and participating actively in destruction of evidence of murder and rape,maintaining silence on his part,is equally found guility of offences under Sections, 364,376,302,201,34.RPC.alongwith 120-B as he knew where they were going, what was in store for him and his accomplice accused no:1, i.e. forcible defilement of victim and finally planning and executing in equal terms the disposal of evidence including dead-body of the hapless victim, thus inculpating himself on all counts and deserves exapmplary punishment to meet the ends of justice.

67. The chain of circumstances is complete and in all probability exercised by any prudent mind, does inevitably lead to one and only one explanation that the accused and accused alone are the perpetrators of crime, and there could be no other logical explanation to their acts; therefore this Court is satisfied beyond any shadow of doubt that, the accused and accused alone have jointly and severally commited this crime and are equally liable for the same.

In view of the above it is abundantly clear that the prosecution has sufficiently proved its case beyond reasonable doubt as such the accused No.2 is convicted under sections 364,376,302,120-B 201 RPC and accused No.3 is convicted under section 364,376, 302,120-B RPC.

So far as the law submitted on both sides, I shall be failing in my duty if the same is not appreciated in its proper perspective, having regard to the facts and circumstances of the instant case:

Let the file come up for arguments on the quantum of punishment.

Put up on 8^th March;2012.

Announced: 28^th February,2012. Kaneez Fatima

diana's serinity

Tuesday, March 20, 2012

Spark of the Soul

the Review of AAM AADMI....

the Review of AAM AADMI....

Sunday, March 11, 2012

The Wolf, the Hyena & the Fox ..... Gruesome tale of Lust n Crime