Srinagar, Aug 11: Observing that the court cannot in its writ jurisdiction determine the disputed questions of fact relating to the cause of death of the deceased, the High Court of Jammu & Kashmir and Ladakh dismissed a plea of a father seeking compensation and enquiry into the death of his deceased son killed in 2004 encounter at Larnoo, Anantnag.
The court passed the observation in a plea by father, Abdul Razak Ahanger, who died during the pendency of the petition, seeking compensation for the death of his son and an enquiry into the circumstance in which the death of petitioner’s son has taken place.
It was alleged by the petitioner that on March, 19, 2004, police personnel of Special Task Force (STF), Camp Achabal, apprehended his son, Bashir Ahmad Ahangar and handed him over to 5 PARA of Army that was camped at Vailoo Kokernag.
The petitioner had alleged that his deceased son was "shot dead" by the army personnel and his dead body was handed over to the petitioner by the police station, Dooru.
"There were visible signs of torture and interrogation on the body of the deceased as he had been mercilessly beaten by iron rods," he had alleged.
The petitioner had claimed that his deceased son was not involved in any militancy related activity nor he had any criminal antecedents.
However, the respondents disputed the contentions of the petitioner stating that the DSB Camp Achabal apprehended the deceased son of the petitioner on the grounds of suspicion.
They claimed that during his preliminary questioning he admitted to be an active militant of LeT operating with codename “Abu Humeera.”
Respondents further claimed that the deceased further revealed details about a hideout of the divisional commander of LeT, “Abu Maaz" which was located at Mati Gawran Larnoo.
It was also claimed by the respondents that the deceased, Ahanger had died in the incident while leading the forces for the purpose of recovery of arms and ammunition from the hideout during which "the militants fired indiscriminately from inside the hideout which was retaliated by the government forces and, as a result of this, Ahangar received a bullet injury and he succumbed to the same."
Perusing the material on record, Justice Sanjay Dhar noted that there are certainly contradictions in the version of respondents to the extent that while as per the version of the police, it is the personnel of 5 PARA of the Army who were involved in the joint operation but as per the version of Union of India, it is the personnel of 1 PARA (SF) of the army who were involved in the joint operation.
"However, there is unanimity in the stand of the respondents that the death of the deceased occurred as a result of the encounter between troops and the militants," the court said.
The court underscored that the respondents have not given any contradictory version as regards the cause of death of the deceased, though there may be contradictions in their versions as regards the identity of the battalion to which the forces of the Army who had participated in the joint operation, belonged.
Justice Dhar noted that the presence of Major Patil of 5 PARA, whose statement under Section 161 of the Cr.P.C has also been recorded during the investigation of the case, may be doubtful because of the stand taken by the Union of India.
"But then the other material on record of the Case Diary clearly points towards the fact that the death of the deceased had taken place as a result of the encounter and not as a result of the custodial torture committed by the troops upon the deceased, as has been claimed by the petitioner," the court pointed out.
The bench recorded that there is also material on record of the Case Diary to prima facie suggest that the deceased was "working' for a proscribed militant organization.
The court said it becomes clear that the cause of death of the deceased in the instant case as claimed by the petitioner is seriously disputed by the respondents.
It noted that it is not a clear-cut case where the petitioner’s claim that the death of the deceased has been caused by the respondents is substantiated by the material on record or that the same stands admitted by the respondents.
"In view of this, this Court in exercise of its writ jurisdiction would not venture into the arena of determining the disputed questions of fact that have arisen in this case, particularly the one relating to the cause of death of the deceased on which hinges the fate of this case," the bench said while dismissing the plea of father.