Jammu & Kashmir High Court – Srinagar Bench
2026:Jklhc-Sgr:99 vs Ut Of J&K And Others on 8 May, 2026
Author: Sanjay Dhar
Bench: Sanjay Dhar
2026:JKLHC-SGR:99
HIGH COURT OF JAMMU &KASHMIR AND LADAKH AT
SRINAGAR
Reserved on: 05.05.2026
Pronounced on: 08.05.2026
Uploaded on: 08.05.2026
Whether the operative part or
full judgment is pronounced:
Full
Bail App No.240/2025
BASHARAT AHMAD ABBASI ALIAS BASHIR AND
ANOTHER
...PETITIONER(S)/APPELLANT
Through: - Mr. Syed Aabid Parvez, Advocate
Vs.
UT OF J&K AND OTHERS ...RESPONDENT(S)
Through: - Mr. Jahingeer Dar, GA.
CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT
1) The petitioners, who are facing trial for offences under
Section 302 and 120-B IPC before the Court of learned
Additional Sessions Judge, Baramulla (for short “the trial
court”), have moved the instant application for grant of bail.
2) In the application, it is contended that the petitioners
are in custody for last more than five years in connection
with FIR No.02/2020 of Police Station, Bijhama, Uri, despite
being innocent. It has been submitted that the entire
prosecution case is based on circumstantial evidence and
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death of the victim was a result of suicide and not homicide.
It has been submitted that the petitioners had filed an
application before the learned trial court for grant of bail
which came to be dismissed vide order dated 01.08.2025
despite the fact that all the material witnesses have already
been examined. It has been submitted that pre-trial
incarceration of the petitioners violates their right
guaranteed under Article 21 of the Constitution.
3) On merits, it has been submitted that forensic evidence
completely demolishes case of the prosecution, inasmuch as
the recovery that was effected from the kitchen of the
accused was relating to Zinc Phosphide whereas the poison
detected in the viscera of the deceased was found to be
Organo Phosphorus Insecticide. It has been contended that
out of 33 listed witnesses, 22 prosecution witnesses have
already been examined and none of these witnesses has
attributed any specific act or role to the petitioners and there
is no evidence on record with regard to the conspiracy.
4) The respondents have contested the bail application by
filing their reply. In the reply it has been submitted that the
petitioners are involved in a heinous crime of murder, as
such, they cannot be enlarged on bail unless it is shown that
they are not guilty of the said offence. It has been contended
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that there are reasonable grounds for believing that the
petitioners, if enlarged on bail, would jump the concession
of bail and will tamper with the prosecution witnesses. It has
also been contended that there is sufficient material on
record of the trial court to connect the petitioners with the
crime.
5) I have heard learned counsel for the petitioner and
learned Government Advocate for the respondents. I have
also gone through record of the trial court.
6) As per prosecution case, on 24.01.2020, Police Station,
Bijhama, received information from reliable sources that at
Bela Reshiwari adjacent to a bridge on right side of the road,
an unknown person was found in unconscious condition.
The said person was taken to hospital at Uri by some
passersby but the doctors declared him brought dead. On
receiving this information, the police started inquest
proceedings during which the dead body was taken into
custody. The deceased was identified as Mohammad Syed
Abasi. The postmortem of the dead body was conducted
whereafter it was handed over to the family members for its
burial. The mobile cellphone of the deceased was seized and
the statements of the witnesses under Section 175 of
Cr. P. C were recorded.
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7) Upon completion of inquest proceedings, it was
revealed that cause of death of the deceased was poisoning,
therefore, FIR No.02/2020 for offences under Section 302
and 120-B of IPC was registered with Police Station,
Bijhama, and investigation of the case was set into motion.
During the course of investigation, statements of the
witnesses were recorded and the suspects were also
questioned.
8) After investigation of the case, it was revealed that for
the last five years, the deceased was having a love affair with
one lady, namely, Zahida Bano, who happens to be the sister
of accused Shahida Begum and both were interested to
marry but the family members of the lady were not happy
with this relation. Accused Shahida Begum and another
accused, namely, Hilal Ahmad Malik, who happens to be the
brother of Zahida Bano, along with the petitioners herein,
hatched a conspiracy under which they brought the
deceased to the house of accused Shahida Begum and Hilal
Ahmad Malik. The accused had already procured rodent
killer poison, which they mixed with Lipton tea and offered
the same to the deceased after giving assurance to him that
his marriage will be contracted with Zahida Bano. The
deceased was seen off whereafter he was found lying near a
bridge near Reshiwari.
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9) On the basis of disclosure statement and identification
of accused Shahida Begum and Hilal Ahmad Malik, the
remaining portion of the rodent killer poison was recovered
from their kitchen and the same was sent to FSL, Srinagar,
for examination. Accused Shahida Begum and Hilal Ahmad
were arrested.
10) During the course of investigation, it was found the
deceased had, on the day of the occurrence, before this death
at 7.00 p.m. called PW Altaf Hussain from his mobile
No.80899022700 to mobile No.9596844013 and had asked
him to record the call which he did. PW Altaf Hussain
produced his mobile phone before the police which was
seized. During the conversation, besides petitioners herein,
the deceased had also named accused Asia Begum as
accused persons responsible for his death. Accordingly, the
petitioners were also arrested.
11) It was found during the course of investigation that the
petitioners had chalked out the plan on phone with other
accused on 24.01.2020. Petitioner Basharat Ahmad gave
assurance to the deceased that his marriage with Zahida
Bano would be solemnized. He brought the deceased in his
vehicle bearing registration No.JK02AR-4510 upto
Reshiwari bridge and asked him not to disclose anything to
any person and further asked him to go to Jabadar to the
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residence of accused Shahida Begum and Hilal Ahmad Wani.
The deceased went there and he was offered tea mixed with
rodent killer poison, whereafter he was seen off.
12) The investigating agency, after investigation of the case,
came to the conclusion that the petitioners and co-accused
have committed the offences punishable under Sections 302
and 120-B of IPC for having participated in the conspiracy
to kill the deceased poisoning. Accordingly, the challan was
laid before the learned trial court on 22.04.2020. Vide order
dated 06.07.2021, the learned trial court framed charges for
offences under Section 302 and 120-B of IPC against the
petitioners and co-accused.
13) It seems that vide order dated 28.04.2023, the female
accused, namely, Shahida Begum and Asis Begum, were
enlarged on bail where as bail application of the petitioners
was rejected. It also appears that the petitioners moved
another bail application before the trial court on 18.09.2024,
which came to be dismissed by the said court in terms of
order dated 01.08.2025. Thereafter the petitioners have filed
the present application on 20.11.2025.
14) Before discussing the grounds urged by the petitioner
for grant of bail in his favour in the light of the facts narrated
hereinbefore, it is necessary to notice the legal position
relating to grant of bail in heinous offences like murder.
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15) The consistent view of the Supreme Court as well as of
this Court, is that the matters to be considered in a bail
application for grant of bail are as follows:
1. Whether there is a, prima facie, reasonable
ground to believe that the accused had committed
the offence;
2. Nature and gravity of the charge;
3. Severity of punishment in the event of conviction;
4. Danger of accused absconding or fleeing, if
released on bail;
5. Character, behavior, means, position and
standing of the accused;
6. Likelihood of the offence being repeated;
7. Reasonable apprehension of the witnesses being
tampered with;
8. Danger of course of justice being thwarted by grant
of bail;
16) So far as the instant case is concerned, the petitioner
is facing the charge of murder which is punishable with
death sentence or imprisonment for life. The Supreme Court
in the case of Kalyan Chandra Sarkar v. Rajesh Ranjan
alias Pappu Yadav and another, (2004) 7 SCC 528, while
laying down the guidelines for grant or refusal of bail in
serious offences like murder, has observed as under:
“11.The law in regard to grant or refusal of bail is
very well settled. The Court granting bail should
exercise its discretion in a judicious manner and
not as a matter of course. Though at the stage of
granting bail a detailed examination of evidence
and elaborate documentation of the merit of the
case need not be undertaken, there is a need to
indicate in such orders reasons for prima facie
concluding why bail was being granted
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2026:JKLHC-SGR:99particularly where the accused is charged of
having committed a serious offence. Any order
devoid of such reasons would suffer from non-
application of mind. It is also necessary for the
court granting bail to consider among other
circumstances, the following factors also before
granting bail; they are,
(a) The nature of accusation and the
severity of punishment in case of conviction
and the nature of supporting evidence;
(b) Reasonable apprehension of tampering
of the witness or apprehension of threat to
the complainant;
(c) Prima facie satisfaction of the Court in
support of the charge; (See Ram Govind
Upadhyay Vs. Sudarshan Singh and others
and Puran Vs. Rambilas and another.
12. In regard to cases where earlier bail
applications have been rejected there is a further
onus on the court to consider the subsequent
application for grant of bail by noticing the
grounds on which earlier bail applications have
been rejected and after such consideration if the
court is of the opinion that bail has to be granted
then the said court will have to give specific
reasons why in spite of such earlier rejection the
subsequent application for bail should be
granted. (See Ram Govind Upadhyay, supra)
17) In the aforesaid judgment, the Supreme Court has also
observed that the conditions laid down in Section 437(1)(i) of
Cr. P. C are sine qua non for granting bail even under Section
439 of the Code, meaning thereby that in a case where a
person is alleged to be involved in an offence punishable with
death sentence or imprisonment for life, he cannot be
released on bail if there appear reasonable grounds for
believing that he has been guilty of such an offence. So, the
petitioner in the instant case, in order to succeed in making
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2026:JKLHC-SGR:99out a case for grant of bail in his favour on merits, has to
satisfy this Court that on the basis of the evidence led by the
prosecution and the evidence that is proposed to be led by
the prosecution, there is absence of reasonable grounds for
believing that he has committed the offence.
18) Learned counsel for the petitioner has taken this Court
through the statements of prosecution witnesses recorded
before the trial court. He has particularly referred to the
statements of PW 20 Altaf Hussain and PW 21 Mohammad
Rafiq as also the statement of the doctor and the report of
FSL. According to the learned counsel, these are the star
witnesses of the prosecution and there are contradictions on
vital aspects of the case in the statements of these witnesses.
On this ground it is being urged that this Court can safely
conclude that there are no reasonable grounds for believing
that the petitioners are involved in the commission of alleged
crime.
19) Before dealing with the argument of learned counsel for
the petitioner, we need to be clear as regards scope of this
Court in appreciating and examining the evidence led by the
prosecution at this stage of the proceedings.
20) The Supreme Court in the case of State of UP through
CBI v. Amaramani Tripathi, (2005) 8 SCC 21, while
dealing with this aspect of the case has observed that a
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detailed examination of the evidence is to be avoided while
considering the question of bail, to ensure that there is no
pre-judging and no prejudice. The Court further observed
that a brief examination to be satisfied about the existence
or otherwise of a prima facie case is necessary. Keeping these
principles in view, the contention of learned counsel for the
petitioner on merits of this application is required to be
tested.
21) The statements of prosecution witnesses, which have
been referred to by learned counsel for the petitioner,
particularly the statements of PW-20 Altaf Hussain and PW-
21 Mohammad Rafiq, reveal that they have, prima facie,
supported the prosecution version. Both these witnesses
have stated that the deceased immediately before his death
contacted PW Altaf Hussain on his cellphone and asked him
to record the conversation. During the conversation, the
deceased clearly told him that he has been tricked by the
petitioners whereafter he was poisoned. PW-21 Mohammad
Rafiq has confirmed the same in his statement. The
investigating agency has collected the call data record and
has also seized the cellphone of PW Altaf Hussain, in which
the conversation was recorded. The said cellphone has been
sent to CFSL and as per the report submitted by CFSL, there
is no editing in the conversation.
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22) The statement made by the deceased immediately
before his death which relates to the circumstances
pertaining to his death becomes admissible in evidence and,
therefore, the contention of learned counsel for the
petitioners that there is no material on record of the trial
court that would connect the petitioners with the alleged
crime, is misconceived. There may be minor contradictions
here and there in the statements of PWs Altaf Hussain and
Mohammad Rafiq but at the stage of considering the bail
application, it is not open to this Court to critically analyze
their statements.
23) Coming to the medical evidence on record, it is clearly
opined in the postmortem report that death of the deceased
has resulted due to poisoning. The issue as to whether the
poison detected in the viscera of the deceased was the same
kind of poison which was recovered by the police from the
kitchen of the two accused, may not be of much relevance at
this stage for the purposes of considering the prayer of the
petitioners for grant of bail. Thus, on merits, it cannot be
stated that there are reasonable grounds for believing that
the petitioners are not involved in the alleged crime.
24) That takes us to the next ground urged by learned
counsel for the petitioners which relates to long
incarceration of the petitioners and non-completion of the
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prosecution evidence. In this context, it is to be noted that
the challan was filed before the trial court at a time when
Covid Pandemic was at its peak. The minutes of the
proceedings of the learned trial court would reveal that
physical functioning of the courts was not taking place and
in the absence of robust and reliable means of internet
connectivity, the proceedings were being conducted through
WhatsApp video calls. In these circumstances, the physical
production and even virtual production of the accused before
the trial court was seriously hampered for a pretty long time,
as a result whereof, the formal charges against the accused
could be framed only on 06.07.2021, which is more than one
year after the presentation of challan. The record further
shows that the situation continued to be so even after
framing of charges during the trial of the case. Thus, for
about two years from the date of filing of the challan, there
was hardly any progress in the trial of the case.
25) The minutes of the proceedings of the trial court would
reveal that after the Covid Pandemic was over, the trial has
progressed at a reasonable pace and most of the prosecution
witnesses stand already examined by the trial court. The
record shows that only a few formal witnesses are to be
examined by the trial court and the material witnesses stand
already examined. In the face of this material on record, it
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cannot be stated that there has been any delay in progress
of the trial which can be attributed either to the court below
or to the prosecution. Therefore, in the facts and
circumstances of the case, it cannot be stated that the right
of speedy trial of the petitioners stands violated in the instant
case. On this ground also, the petitioners do not deserve the
concession of bail.
26) For what has been discussed hereinbefore, I do not find
any merit in this petition. The same is dismissed accordingly.
However, the learned trial court is directed to expedite the
trial of the case so that the challan is finally disposed of at
the earliest.
27) Copy of this order be sent to the learned trial court for
information and compliance.
(Sanjay Dhar)
Judge
SRINAGAR
08.05.2026
“Bhat Altaf-Secy”
Whether the judgment is reportable: YES/NO
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