2 death sentenced Hizb militants get HC relief

Srinagar: The J&K High Court on Monday acquitted two former Hizbul Mujahideen militants, one of whom had been sentenced to death by Sessions Court Kathua in 2011.
A division bench of Justices Mohammad Yaqoob Mir and Muzaffar Hussain Attar also commuted death sentence of another person to 10-years imprisonment.
The Principal Sessions Judge Kathua had convicted Mohammad Shabir alias Gazi and Raj Din under Section 7/27 (3) Arms Act and sentenced them to death with fine of Rs. 10,000 in connection with an FIR registered against them in 2002.
The court had also convicted the duo under Section 302 RPC and sentenced them to imprisonment for life and fine of Rs 10,000.  Besides, they were also convicted under Section 460 RPC and sentenced to imprisonment for life and fine of Rs. 10,000 by the Sessions Court.
Further, the duo was directed to suffer imprisonment for one year and fine of Rs 5,000 under Sections 148/149 RPC.
Similarly, the court had convicted another person, Nazir Ahmed under Section 212 RPC and sentenced him to imprisonment for three years with fine of Rs. 5,000.
Aggrieved of the judgment, they filed separate appeals before the High Court, and the division bench announced its ruling on Monday.
“Awarding of death sentence in the facts and circumstances of the case was impermissible. Present case even otherwise by any standard on the strength of the evidence as produced and manner in which offence has been committed does not fall within the ambit of rarest of rare case. The judgment and order of sentence impugned are not in consonance with law,” the bench said after weighing prosecution evidence in the case.
While Raj Din and Nazir Ahmad were acquitted, the court convicted Mohammad Shabir for offences under RPC sections of 304-II, 460 and 5/27 (1) Arms Act.
For offence under Section 304-II RPC, the division bench sentenced Gazi to undergo imprisonment of ten years and fine of Rs 15.000.
For section 460 RPC, the court said that he shall suffer imprisonment of ten years while it awarded imprisonment of seven years and fine of Rs.20.000 on Gazi for offence punishable under Section 5/27(1) Arms Act.
“All the sentences shall run concurrently. Period of detention undergone shall be set off,” the bench said, adding, “In default of fine, he shall further undergo imprisonment of six months. In case fine is deposited same shall be paid to the victim, family of the deceased.”
Setting aside sentence against remaining two, the division bench said, “It is quite disturbing how the trial court has recorded conviction against accused Nazir Ahmed for the commission of offence punishable under Section 212 RPC when there is not an iota of evidence against him. The trial court unfortunately appears to have been swayed as a result thereof has committed blunder in law in recording conviction against accused Nazir Ahmed under Section 212 RPC and against Raj Din under Sections 302/460/148/149 RPC and 7/27 Arms 33.”

The Case
As per police, on November 27, 2002, Police Station Bani received information that on the intervening night of 26/27 November at about 11  pm, seven militants belonging to Hizbul Mujahideen armed with deadly weapons led by Mohammad Ashraf and Farid at the instance of “ISI of Pakistan” entered into the house of one Abdul Majid and started beating him whereas accused Mohammad Shabir opened fire and injured him. The other accused, police said, inflicted injuries with the butts of their rifles and thereafter fled from the scene of occurrence.
On the hue and cry of family, villagers assembled and took Majid to hospital located at Bani. Subsequently, case was registered by police under Sections  302/460/148/149/ 201/212  RPC  and 7/27 Arms Act.
On completion of investigation, police said it was found by the Investigating Agency that on the intervening night of 26/27 of November, 2002 accused Mohammad Shabir, Mohammad Ashraf, Raj Din, Farid, Ashaq, along with two other unknown militants entered into the house of Majid and started beating the him and then tied his legs and arms. Police said Gazi opened the fire which hit the right leg of the Abdul Majid,  who finally succumbed to the injuries.