MOHD TARIQ TH WIFE SHANAZ AKHTER vs UT OF J AND K TH COMMISSIONER SECRETARY HOME DEPT AND ANOTHER

IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
(through virtual mode)
Bail App No. 305/2024
Pronounced on: 12.11.2026
Uploaded on: 12.11. 2026
Whether the operative part or full
judgment is pronounced: Full
Mohd. Tariq , Age: 36 years
S/o Abdul Samad
Through his wife namely
Shanaz Akhter, Age: 31 years
W/o Mohd. Tariq,
R/o Village Loran, Tehsil Mandi,
District Poonch.
…Petitioner(s)/Appellant(s).
Through: Mr. Mumtaz Choudhary, Advocate
Vs.
1. Union Territory of Jammu & Kashmir
...Respondent(s).
through its Commissioner/Secretary, Home
Department, Civil Secretariat, Srinagar
2. The Station House Officer , Police
Station, Loran, District Poonch.
Through: Mr. Eishaan Dadhichi, GA
CORAM:HON’BLE MR. JUSTICE MOHD YOUSUF WANI, JUDGE
JUDGEMENT
12.11.2026
1. Through the medium of the instant successive bail petition filed in terms
of the provisions of Section 439 of the Code of Criminal Procedure, 1973
(hereinafter referred to as the “Code” for short), corresponding to the
provisions of Section 483 of the Bharatiya Nagarik Suraksha Sanhita,
2023 (hereinafter referred to as “BNSS” for short), bail on behalf of the
petitioner/accused in the case bearing FIR No. 30/2020 dated 30.11.2020,
registered at Police Station Loran, District Poonch, under Sections 302,
109, 201 IPC, has been sought on the grounds, inter alia, that he is a
citizen of India and a resident of village Loran, Tehsil Mandi, District
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Poonch, UT of J&K and thus entitled to seek enforcement of his
constitutional and other statutory rights available to him. That he has
been falsely and frivolously implicated in the case FIR in question, when
he is innocent and has not committed the alleged offences. That he has
been involved in the murder of one Sheraz Yousif S/o Mohd. Yousif, R/o
Loran, District Poonch, without any tangible evidence. That the deceased
was in the habit of taking narcotics who died on account of an overdose
of narcotic substances, and the petitioner is in no way involved in the
commission of the murder of the deceased, as alleged. That he, being a
friend of the deceased, could not even have thought of killing him, and
there was no enmity between them.
That the trial of the case is going on in the Court of learned
Additional Sessions Judge, Poonch (hereinafter referred to as the “Trial
Court” for short), and out of 35 listed witnesses, 29 witnesses have been
examined at the trial. That the material witnesses have not in any way
connected the petitioner/accused with the commission of the alleged
offences. That only some of the official witnesses, including police
personnel and FSL officials, remain to be examined, who are not
witnesses to the occurrence. That there is no ocular evidence against the
petitioner and the whole prosecution case rests on circumstantial
evidence, which should be so strong and cogent as to connect the
petitioner/accused with the alleged crime. That the trial of the case is
likely to take much more time and, as such, the petitioner is entitled to
seek the concession of bail on account of his long incarceration, coupled
with no immediate prospect of conclusion of the trial at the earliest.
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That three other co-accused in the case, namely, Ajaz Ahmed,
Kosser Parveen and Waqar Ahmed, have already been granted bail by
this Court, in the case FIR in question on 10.07.2024 and, as such, the
petitioner/accused deserves his enlargement on the principle of parity.
That the petitioner/accused earlier moved a bail application before the
learned Trial Court, which was, however, rejected vide order dated
22.11.2024 passed by the learned Trial Court. That the witnesses so far
examined at the trial have not incriminated the petitioner/accused. That
since, in the light of the statements of the witnesses so far recorded at the
trial, the involvement of the petitioner/accused has not been prima facie
revealed, as such, the bar in terms of the provisions of Section 437 of the
Code, corresponding to Section 480 of BNSS, is not attracted. That bail is
a rule and its denial an exception, especially in cases where there are no
apprehensions of misuse of the concession of bail by tampering with the
prosecution evidence or by absconding during the trial. That the
petitioner/accused has deep roots in the society and has respect for the
rule of law and, as such, there is no question of his misusing the
concession of bail, if granted in his favour. That continuous detention of
the petitioner/accused tantamounts to his pre-trial conviction. That the
long incarceration of the petitioner/accused, with no immediate prospect
of conclusion of the trial, has violated his fundamental rights guaranteed
to him under the Constitution.
2. The Respondent-State has resisted the bail application on the grounds
that the petitioner/accused is involved in the commission of heinous
offences punishable under Sections 302, 295 and 201 IPC and, as such,
he does not deserve the concession of bail. That the offence punishable
under Section 302 IPC carries the punishment of death and, as such, the
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petitioner/accused, if admitted to bail, is likely to abscond during the trial
under the threat of conviction. That the offence punishable under Section
302 attracts the bar in terms of the provisions of Section 437 of the Code,
corresponding to Section 480 of BNSS. That the evidence collected
during the investigation of the case and also recorded at the trial by the
prosecution has connected the petitioner/accused with the commission of
the offences charged against him. That the circumstantial evidence
collected during the investigation of the case and brought on record at the
trial fully connects the petitioner/accused with the commission of the
crime. That on 22.10.2020, the deceased Sheraz Yousif S/o Mohd. Yousif
Tantray, R/o Loran, Poonch, aged about 22/23 years, did not return home
and his mobile phone got switched off, whereafter his father/complainant,
Mohd. Yousif Tantray, approached Police Station Loran with such report,
which led to the registration of a missing report at the concerned Police
Station. That during the search for the deceased, he was found in a
mosque at Danna Loran in an unconscious condition and was
immediately brought to PHC Loran for medical examination, where he
was declared brought dead by the doctor. That inquest proceedings under
Section 174 of the Code came to be initiated by Police Station Loran vide
DDR No. 21 dated 22.10.2020 to ascertain the cause of death of the
deceased. That the dead body of the deceased was taken to District
Hospital Poonch on 23.10.2020 for post-mortem examination. That after
the post-mortem examination of the deceased, the viscera of the deceased
was sent to FSL, Jammu, and GMC Jammu, for chemical analysis. That
thereafter, the dead body of the deceased was handed over to his family
members for performance of his last rites.
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That during the course of enquiry proceedings and upon receipt
of the FSL opinion as well as the pathology report, it surfaced that on the
date of occurrence, the petitioner/accused, Mohd. Tariq, along with co-
accused Ajaz Ahmed, called the deceased at Danna Loran. That when the
deceased reached Danna Loran, all the accused persons, with criminal
intention, took him to the house of co-accused Kouser Parveen and
forcibly administered poison to him, whereafter he was locked in a
bathroom in the house of co-accused Kouser Parveen. That when the
deceased died in the bathroom, they shifted the dead body to the nearby
mosque of the Mohalla. That thereafter, on the basis of the evidence, the
inquest proceedings were closed with the registration of FIR No. 30/2020
under Sections 302, 109, 295 and 201 IPC, and formal investigation was
started. That during the investigation of the case, the statements of some
of the material witnesses were got recorded in terms of the provisions of
Section 164 of the Code. That the final opinion was obtained under rules
on the basis of the FSL/pathology report. That the commission of
offences punishable under Sections 302, 295, 201 and 109 IPC was found
established against the accused persons, including the petitioner, who
were formally arrested in the case.
That all the accused persons, including the petitioner, already
stand charged in the case for the commission of the offences under the
challan, and upon their pleading not guilty to the charge, the prosecution
was directed to lead evidence in the case. That the prosecution has
examined as many as 29 witnesses out of the total list of 35 witnesses so
far at the trial. That the petitioner/accused seems to be prima facie
involved in the case in view of the evidence recorded at the trial by the
prosecution. That the offences committed by the petitioner/accused are
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highly heinous in nature and have also been committed under grave
circumstances. That the petitioner/accused was indebted to the deceased
for an amount of Rs. 50,000/- and the demand for recovery made by the
deceased infuriated the petitioner/accused, who, in connivance with the
co-accused, called the deceased to Danna Loran, whereupon he was taken
to the house of Kousar Parveen and administered poison. That he, in an
unconscious condition, was kept locked in the bathroom, whereafter, at
sunset, he was shifted to the nearby mosque.
3. I have heard the learned counsel for the parties in respect of the matter.
4. The learned counsel for the petitioner/accused, while reiterating his stand
already taken in the bail petition, submitted that the petitioner has been
falsely and frivolously implicated in the case FIR, when he is innocent
and has not committed the alleged offences. That the deceased was a drug
addict and is likely to have consumed an excessive dose of drugs, leading
to his death. That the petitioner/accused, being a friend of the deceased,
could never ever have thought of committing the alleged act. That there is
no concrete evidence against the petitioner/accused and the statements
already given by the material listed prosecution witnesses have not
inculpated him. That the case of the prosecution is based on
circumstantial evidence, which is too weak to prima facie establish the
involvement of the petitioner. That the death of the deceased took place
on 22.10.2020, whereupon inquest proceedings came to be initiated to
ascertain the cause of his death. That the FIR was registered after a
period of more than one month from the date of his death in order to
falsely and frivolously involve the petitioner in the case.
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He further contended that the bar in terms of the provisions of
Section 437 of the Code is not attracted in the case, as there appear to be
no reasonable grounds for his involvement in the case in the light of the
evidence adduced by the prosecution at the trial. He further contended
that the personal liberty of the petitioner stands curtailed for a long period
of more than five years and the trial against him has become oppressive.
He contended that long incarceration is a well-established ground for
release of the accused on bail. He further contended that the petitioner
has deep roots in the society and, as such, there is no question of his
misusing the concession of bail, if granted in his favour. That the
petitioner shall abide by the conditions that may be imposed by this Court
and shall face the trial punctually.
The learned counsel further contended that the co-accused have
already been granted bail by this Court on similar allegations and, as such,
the petitioner deserves bail on the principle of parity.
5. Per contra , learned counsel for the respondent-State, contended that the
petitioner/accused does not deserve any concession of bail, as he has
committed a brutal murder without any excuse. He submitted that the
petitioner/accused was indebted to the deceased and, upon the latter's
persistent demand for return of the money, he, i.e., the petitioner/accused,
in league with the co-accused, called the deceased to take back the money.
That when the deceased approached the petitioner/accused at the stated
place, he was taken to the house of the co-accused Kousar Parveen,
where he was murdered by administering poison, which fact has been
confirmed upon the FSL/pathology reports as also the final opinion of the
Medical Board relating to the cause of his death. The learned GA
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submitted that the Jammu and Kashmir Forensic Laboratory, Jammu,
vide its report dated 09.11.2020, addressed to the Medical Superintendent,
District Hospital Poonch, reported that “ An Organ oph osphorus
Insecticide was detected in the Exhibit No’s P-4559/2020 to P-
456/2020” . He further contended that the Medical Board, on the
basis of the FSL opinion, gave its final opinion to the effect that, in
the opinion of the Board, the deceased person had died due to
cardiorespiratory arrest as a result of organophosphorus poisoning .
The learned Government Counsel contended that the circumstantial
evidence collected during the investigation of the case and also adduced
at the trial fully connects the petitioner/accused with the commission of
the crime. He contended that there is an express bar on the grant of bail in
favour of the petitioner in terms of the provisions of Section 437 of the
Code, corresponding to Section 480 of BNSS, as he is, inter alia,
involved in the commission of the offence of murder punishable with
death. He contended that the enlargement of the co-accused on bail is no
ground for the grant of bail in favour of the petitioner/accused, being the
main culprit in the case.
6. I have perused the instant successive bail petition, the objections filed in
rebuttal and the scanned copy of the Trial Court record. The order dated
22.11.2024 of the learned Trial Court, rejecting the petitioner’s earlier
bail petition has also been perused.
7. I have also given my thoughtful consideration to the rival arguments
advanced on both sides.
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8. Keeping in view the aforementioned perusal and consideration, the Court
is of the opinion that the petitioner/accused has not made out a case for
grant of bail in his favour in the case in hand.
9. The petitioner, along with the co-accused, stands formally charged for the
commission of offences punishable under Sections 302, 109, 295 and 201
IPC arising out of case FIR No. 30/2020 of Police Station Loran, Poonch.
The petitioner is alleged to have committed the murder of the deceased,
namely, Sheraz Yousuf S/o Mohd. Yousuf, aged about 22/23 years, with
the aid and assistance of the co-accused. It is the case of the prosecution
that the petitioner/accused, Mohd. Tariq, was indebted to the deceased to
the extent of Rs. 50,000/- and that the deceased demanded the return of
the money on account of his personal need, which infuriated the
petitioner, who, on 22.10.2020, called the deceased for taking the money,
who accordingly reached the spot, wherefrom the petitioner/accused and
Ajaz Ahmed took him to the house of Kowsar Parveen, wherein his death
was caused by administration of poison. The deceased upon his death is
alleged to have been taken and kept in a nearby mosque during evening
hours, to screen the evidence, which act has also caused the defiling of a
place of worship. The inquest proceedings in terms of the provisions of
Section 174 of the Code came to be initiated immediately to ascertain the
cause of death of the deceased, which led to the registration of the formal
case FIR No. 30/2020 under Sections 302, 109, 295 and 201 IPC against
the petitioner and the co-accused. During the course of the investigation,
the Investigating Officer got the statements of some of the material
witnesses recorded before a Magistrate in terms of Section 164 of the
Code. The FSL opinion regarding the viscera of the deceased, collected
upon his post-mortem examination, came to be received by the concerned
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doctors, who, on the basis of the same, gave their final opinion as
regards the cause of death, being cardiorespiratory arrest as a result
of organophosphorus poisoning. The Court has gone through the
evidence recorded at the trial and hesitates to refer to the same to
avoid any prejudging of the case.
10.Admittedly, there is no direct ocular evidence in the case, but the
circumstantial evidence collected during the investigation and also
adduced at the trial of the case appears to be of such a nature which,
subject to the final outcome of the trial, does not rule out the existence of
reasonable grounds for believing that the petitioner/accused is not guilty
of the offence under Section 302, inter alia, charged against him.
11.The Court is not required to conduct a mini-trial while considering a bail
petition. The relevance and appreciation of evidence is to take place at
the conclusion of the trial for the purpose of pronouncement of judgment.
12.It is needless to mention that heinous and pre-planned offences are most
often committed in secrecy. Under such circumstances, the Investigating
Agency necessarily has to search for and collect circumstantial evidence
to trace the actual offenders. However, circumstantial evidence has to be
considered on the basis of its rules of appreciation. Circumstantial
evidence cannot be brushed aside for want of ocular evidence in aid of
the same. Admittedly, in a case of circumstantial evidence, the
circumstances so collected must form such a chain of events as would
permit no conclusion other than the one of the guilt of the accused.
13.The learned counsel for the respondent-State, during his arguments, inter
alia, submitted that the character of the petitioner, the motive behind the
occurrence, and the evidence collected during the investigation and
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adduced at the trial support the prima facie involvement of the petitioner
in the case.
14.As hereinbefore mentioned, the petitioner/accused stands formally
charged for the commission of the offences punishable under Sections
302, 109, 295 and 201 IPC vide order dated 24.07.2021 passed by the
learned Trial Court. The accused persons pleaded not guilty at the trial
after the contents of the charge-sheet (charge form) were read over and
explained to them, whereafter prosecution evidence was called.
As on the date of filing of the instant bail application and
submission of the scanned copy of the record, by the learned Trial
Court, as many as 29 witnesses out of a total of 35 witnesses had been
examined. As on date, the prosecution evidence is reported to have
already been closed with the examination of all the prosecution
witnesses . The case is reported to be fixed for final arguments.
15.Admittedly, the co-accused in the case stand already admitted to bail by
this Court vide order dated 10.07.2024. The petitioner/accused stands,
inter alia, charged for the commission of the offence punishable
under Section 302 IPC as the main offender. The offence under
Section 302 IPC, in view of the punishment of death also prescribed
thereunder, attracts the bar in terms of the provisions of Section 437 of
the Code, corresponding to Section 480 of BNSS.
16.A criminal court while recording its satisfaction as to whether there
appear “reasonable grounds” of involvement of an accused in the
commission of an offense attracting the bar in terms of provisions of
Section 437 of the Code (Section 480 BNSS), has to use its discretion in
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a judicious manner so that no miscarriage of justice happens either by
grant of bail or by denial of the same.
The “reasonable grounds” of involvement can be inferred from
the facts and circumstances of the case especially, the nature of the
evidence. The Court is supposed to consider the broader probabilities to
reach its supposition regarding the existence of reasonable grounds of
involvement of the accused.
Admittedly, the words “reasonable grounds” cannot be read to
mean proved as used in ‘ Bharatiya Sakshya Adhiniyam’ , as such an
interpretation would set at naught the power vested in a court to grant bail
pending trial.
The expression “reasonable grounds” would obviously mean
something more than mere suspicion and conjectures and something less
than proof. It would necessarily mean such grounds or material that
would prima facie enable a person of ordinary prudence to believe that
the accused is or is not guilty.
It is no doubt true that the object of the legislation of such
disabling provisions in respect of heinous offences carrying sentence of
death or imprisonment for life in alternative is to prevent the offenders
from immediately granting bail in heinous offences. In this view of the
matter, the court is required to examine the material placed before it and
then to arrive at a conclusion that there exist “reasonable grounds” to
believe that accused is guilty or not guilty
The “reasonable grounds” would vary from case to case and
from one accused to another. What may be reasonable in one case may
not be so in another and therefore the words “reasonable grounds” cannot,
on account of a discretion vested in the court, be put into a straight-jacket.
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Each case would have to be dealt with and examined on its own facts and
decided keeping in view the mandate of law. The consideration at the
time of taking up of the bail application for disposal is different from the
consideration adopted at the end of the trial for holding an accused guilty
or not guilty. In considering an application for bail, court is not required
to conduct a preliminary trial. The Courts while deciding bail
applications will be traversing beyond their ambit and would be
exceeding their limit of functions if they engage themselves in
discovering the guilt or innocence of the accused which can only be
determined at the trial stage. The courts should not go at a tangent in
order to find out the possible excuses for grant bail. Whether there are
“reasonable grounds” or not is the question which must be decided
judicially, that is to say there should be some tangible evidence on which
the Court might come to the conclusion that if unrebutted, the accused
might be convicted. Whether there are reasonable grounds for believing
that a person is guilty of such an offence depends on what evidence is
offered by the prosecution to the charge against him.
In order to come to the conclusion, that a person is guilty, the
Court must consider the evidence which if unrebutted may lead to
conclusion that the charge against him stands proved and cannot
unjustifiably hold that there are “reasonable grounds” for believing that
he is guilty. It is a settled position of law that the real question whether
there are reasonable grounds for believing that a person is guilty of
offences attracting bar under Section 437 of Code (Section 480 BNSS),
depends upon what evidence is offered by the prosecution to prove the
charge against him. While reaching such conclusion, the Court must
consider the nature and character of evidence against him.
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17.Apart from the statutory bar, if any, two paramount considerations viz.
likelihood of accused fleeing from justice and tampering with the
prosecution evidence relate to the ensuring of a fair trial of the case in a
court of law. It is essential that due and proper appreciation and
weightage should be bestowed on these factors apart from others. The
grant of bail or the denial of the same falls within the purview of the
judicial discretion meant to be exercised on sound legal principles upon
the logical interpretation and application of the same in the given facts
and circumstances of the case.
18.No single rule or a golden litmus test is applicable for consideration of a
bail application and instead some material principles/guidelines are
needed to be kept in mind by the Courts and the Magistrates for
consideration of a bail application especially including:
i. The judicial discretion must be exercised with the utmost
care and circumspection;
ii. That the Court must duly consider the nature and the
circumstances of the case;
iii. Reasonable apprehension of the witnesses being tampered;
iv. Investigation being hampered or
v. The judicial process being impeded or subverted.
vi. The liberty of an individual must be balanced against the
larger interests of the society and the State.
vii. The court must weigh in the judicial scales, pros and cons
varying from case to case.
viii. Grant of bail quo an offence punishable with death or
imprisonment for life is an exception and not the rule;
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ix. The court at this stage is not conducting a preliminary trial
but only seeking whether there is a case to go for trial;
x. The nature of the charge is the vital factor, the nature of
evidence is also pertinent, the punishment to which the party
may be liable also bears upon the matter and the likelihood of
the applicant interfering with the witnesses or otherwise
polluting the course or justice, has also a bearing on the
matter.
xi. The facts and circumstances of the case play a predominant
role.
19.The petitioner/accused is likely to misuse the concession of bail, if
granted in his favour under the threat of his possible conviction.
20.In Prahlad Singh Bhati v. NCT, Delhi, (2001) 4 SCC 280 , the Hon’ble
Apex Court has laid down the special factors for taking into consideration
while exercising the bail jurisdiction and the relevant para 8 of the said
judgment is reproduced as hereunder for ready reference:-
“8. The jurisdiction to grant bail has to be exercised on the basis
of well-settled principles having regard to the circumstances of
each case and not in an arbitrary manner. While granting the bail,
the court has to keep in mind the nature of accusations, the nature
of the evidence in support thereof, the severity of the punishment
which conviction will entail, the character, behaviour, means and
standing of the accused, circumstances which are peculiar to the
accused, reasonable possibility of securing the presence of the
accused at the trial, reasonable apprehension of the witnesses
being tampered with, the larger interests of the public or State and
similar other considerations. It has also to be kept in mind that for
the purposes of granting the bail the legislature has used the words
“reasonable grounds for believing” instead of “the evidence”
which means the court dealing with the grant of bail can only
satisfy it (sic itself) as to whether there is a genuine case against
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the accused and that the prosecution will be able to produce prima
facie evidence in support of the charge. It is not expected, at this
stage, to have the evidence establishing the guilt of the accused
beyond reasonable doubt.”
21.The observations of the Hon’ble Apex Court laid down in State of U.P. v.
Amarmani Tripathi, (2005) 8 SCC 21 at para 18 of the judgment also
deserve a needful mention:
“18. It is well settled that the matters to be considered in an
application for bail are (i) whether there is any prima facie or
reasonable ground to believe that the accused had committed the
offence; (ii) nature and gravity of the charge; (iii) severity of the
punishment in the event of conviction; (iv) danger of the accused
absconding or fleeing, if released on bail; (v) character, behavior,
means, position and standing of the accused; (vi) likelihood of
the offence being repeated; (vii) reasonable apprehension of the
witnesses being tampered with; and (viii) danger, of course, of
justice being thwarted by grant of bail [see Prahlad Singh Bhati
v. NCT, Delhi and Gurcharan Singh v. State (Delhi Admn.)].
While a vague allegation that the accused may tamper with the
evidence or witnesses may not be a ground to refuse bail, if the
accused is of such character that his mere presence at large
would intimidate the witnesses or if there is material to show that
he will use his liberty to subvert justice or tamper with the
evidence, then bail will be refused.”
22.The presumption of innocence of an accused pending trial is not
disturbed, even if he is denied bail, on justified grounds. The learned
Trial Court has also rejected the earlier bail petition of the petitioner on
the basis of its opinion that there appear reasonable grounds of his
involvement in the case.
23.In the backdrop of the aforementioned discussion, the grant of bail in
favour of the petitioner/accused at this stage is likely to cause a
miscarriage of justice. As hereinbefore mentioned, the trial case is listed
for final arguments and, as such, the final outcome of the trial is likely to
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come out soon. It is, however, very needful to mention that nothing in
this order shall be construed as any prejudging of the merits of the case,
as this order is passed for the limited purpose of consideration of the bail
petition.
24.However, the learned Trial Court is requested to conclude the trial of the
case at an earliest, with the passing of the final judgment.
25.Before parting, it is needful to mention that in the case in hand, all the
accused persons stand charged for the commission of the offences
punishable under Sections 302, 109, 295 and 201 IPC. The alleged main
accused also stands charged for the offence of abetment. The order
regarding the framing of charge has to be in accordance with the
provisions of Chapter XVIII of BNSS (corresponding to Chapter XVII of
the Code). No doubt, there are enabling provisions in Chapter XVIII of
BNSS (corresponding to Chapter XVII of the Code) to the effect that no
errors in framing or stating the charge shall be regarded at any stage of
the case as material unless the accused was, in fact, misled by such error
or omission and unless the error has occasioned a failure of justice. A
Criminal Court is also within its powers to modify the charge at any time
before judgment is pronounced. The learned Trial Court is required to
look into this aspect while concluding the trial in the case.
26.The bail application is accordingly disposed of.
(MOHD YOUSUF WANI)
JUDGE
SRINAGAR
12.11.2026
“Mubashir ”
i. Whether the order is speaking: Yes
ii. Whether the order is reportable: Yes
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