Jammu & Kashmir High Court – Srinagar Bench
Muneer Aziz War vs Ut Of J&K on 8 July, 2026
Author: Sanjay Dhar
Bench: Sanjay Dhar
Item No.5
Regular List
IN THE HIGH COURT OF JAMMU & KASHMIR AND
LADAKH AT SRINAGAR
Pronounced on:08.07.2026
Uploaded on: 09.07.2026
Bail App No.61/2025
MUNEER AZIZ WAR ...PETITIONER(S)
Through: - Mr. Parvaiz Nazir, Advocates
Vs.
UT OF J&K ...RESPONDENT(S)
Through: - Mr. Mohsin Qadiri, Sr. AAG, with
Ms. Maha Majeed, Assisting Counsel.
CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
ORDER(ORAL)
1) The petitioner has sought bail in a case arising out of FIR
No.59/2012 for offences under Section 302 and 201 RPC
registered with Police Station, Batamaloo, Srinagar.
2) As per the case of the prosecution, on 15.05.2012 Police
Station, Batamaloo, received an information that whereabouts of
one Wali Mohammad Hajam S/o Ghulam Rasool Hajam R/o
Wangath Handwara are not known and that the said person is
missing since 13.05.2012. In the report, an apprehension was
expressed that some unknown persons may have killed him and
may have concealed the dead body at some unknown place. On the
basis of this information, FIR No.59/2012 was registered and
investigation was set into motion. During the course of
Bail App No.61/2025 Page |2
investigation, statements of witnesses acquainted with the facts
and circumstances of the case were recorded under Section 161 of
Cr. P. C and the search was conducted.
3) During the course of investigation, it came to the fore that
the petitioner, who was a religious cleric (Imam) of Masjid Salafia,
is involved in the occurrence. He was taken into custody and
during his interrogation, he admitted that he has committed the
murder of Wali Mohammad Hajam, whose dead body was
recovered during the course of investigation. It was also admitted
by the petitioner that co-accused Izhar-ul-Islam Ganai, had
assisted him in commission of crime. The co-accused was also
interrogated separately and he confirmed the version of
occurrence given by the petitioner. The police, on the basis of
disclosure made by the accused persons, recovered the dead body
of the deceased from an open land at Firdous Abad Batamaloo
Srinagar. Thereafter postmortem of the dead body was conducted
and the wearing apparels of the deceased were seized. On the basis
of identification of the accused persons, the weapon of offence, a
sword, was also recovered.
4) After investigation of the case, it came to the fore that the
petitioner was discharging the functions of Imam of Masjid Salafia
at Firdous Abad, Batamaloo, Srinagar, and he was residing in a
room situated at Lane No.5 Firdous Abad, Batamaloo, Srinagar.
The said room, belonged to one of the relatives of the petitioner,
and it was situated at a distance of 60 yards from the house of one
Bail App No.61/2025 Page |3
Mohammad Sultan in which his daughter, namely, Raziya
Sultana, was also residing. It was revealed that the petitioner had
developed relationship with the said girl, whereafter he also
developed physical relations with her. It was found that father of
the girl was a mason and deceased Wali Mohammad Hajam was
also a mason and because of this, deceased Wali Mohammad used
to visit the house of Mohammad Sultan, father of the girl. It was
also found that the deceased was trying to impress the daughter
of Mohammad Sultan and he was also expressing his love for her,
to which she was objecting. The investigation further revealed that
the girl, Raziya Sultana, revealed the actions of the deceased to her
lover, the petitioner herein, whereafter the petitioner asked Raziya
Sultana to stop the deceased from visiting her house but she was
unable to do so. It was also found that the girl narrated to the
petitioner that she cannot stop the deceased from visiting her
house because her family considers him like a family member.
5) Thereafter the petitioner, in order to keep the deceased away
from the house of his beloved and with a view to remove him from
his way thought of a plan to commit his murder with a sharp edged
weapon (sword) which he purchased from the market at Srinagar
and kept the same at his residence. The petitioner was waiting for
the appropriate time to strike against the deceased so as to
accomplish his plan.
6) On 13.05.2012, after completion of Isha prayers, while the
deceased was coming out of the house of Raziya Sultana, the
Bail App No.61/2025 Page |4
petitioner wanted to accomplish his plan but he was not having
the weapon with him, therefore, he asked deceased Wali
Mohammad Hajam to come to his residence. When both of them
reached inside the room, they started conversing with each other
and when the deceased was leaving the room, the petitioner
availed the opportunity and he repeatedly inflicted the blows of
sword upon the head of the deceased, as a result of which he
received grievous injuries and fell down on ground, whereafter the
petitioner called his friend, co-accused Izhar-ul-Islam, on
telephone. The said accused reached the spot and found that the
deceased had breathed his last. Thereafter the petitioner,
apprehending that the deceased may still be alive, cut the penis of
the deceased with the sword. After committing the murder of the
deceased, the petitioner with the help of co-accused carried the
dead body of the deceased and dumped it in a drum and in the
morning, the two accused, after wrapping the dead body in a
blanket, dumped the same in a pit in an open plot and covered it
with soil.
7) After investigation, offence under Section 302 RPC was
found established against the petitioner whereas offence under
Section 201 RPC was found established against the co-accused.
Accordingly, the challan was laid before the trial court on
08.08.2012. On 01.09.2012, the learned trial court framed
charges for offences under Section 302/201 RPC against the
petitioner whereas charge for offence under Section 201 RPC was
Bail App No.61/2025 Page |5
framed against the co-accused. Both the accused denied the
charges and the prosecution was directed to lead evidence in
support of the charges.
8) The petitioner has sought bail only on the ground of his long
incarceration and on account of violation of his right to speedy
trial. According to the petitioner, he is in custody for the last about
14 years but the trial against him has not concluded as yet. It has
been contended that there is no likelihood of completion of trial in
near future, as such, the petitioner deserves to be enlarged on bail.
9) I have heard learned counsel for the parties and perused
record of the case including the trial court record.
10) Learned counsel for the petitioner, during his arguments,
has reiterated that the speedy trial is a fundamental right of an
accused and once this right is violated, the accused is entitled to
be enlarged on bail.
11) Learned Sr. AAG, on the other hand, has submitted that the
petitioner has committed a heinous offence by murdering an
innocent person to satisfy his lust and there is enough evidence on
record to prima facie show his involvement in the alleged crime,
as such, rigour of Proviso (1) to Section 437 of the Criminal
Procedure Code is attracted to the instant case having regard to
the fact that the offence committed by the petitioner carries
maximum punishment of death sentence. It has been contended
Bail App No.61/2025 Page |6
that the learned trial court, vide its order dated 21st December,
2024, has rightly declined to enlarge the petitioner on bail
12) A perusal of the record shows that the petitioner has been
arrested in the instant case on 09.06.2012 and the challan against
him was laid before the trial court on 08.08.2012. The record
further shows that 23 witness have been cited in the challan, out
of which the prosecution has examined as many as 20 witnesses
and three prosecution witnesses are yet to be examined.
13) In the light of aforesaid facts, the question arises as to
whether a person, who has been accused of having committed a
heinous offence like murder, is entitled to be enlarged on bail on
the ground of his long incarceration of about 14 years. This issue
has been a matter of discussion before the Supreme Court in a
number of cases including Hussainara Khatoon vs. Home
Secretary, State of Bihar, (1980) 1 SCC 81, Supreme Court
Legal Aid Committee vs. Union of India, (1994) SCC 731,
Umarmia vs. State of Gujarat, (2017) 2 SCC 731, Union of
India vs. K. A. Najeeb, (2021) 3 SCC 713, Ashim alias
Asim Kumar Haranth Bhattacharya vs. National
Investigation Agency, (2022) 1 SCC 695, and Jagjeet Singh
& Ors. Vs. Ashish Mishra @ Monu & anr. 2021 LiveLaw
(SC) 376. In all these judgments, the Supreme Court has observed
that no accused can be subjected to unending detention pending
trial, especially when law presumes him to be innocent until
proven guilty. It has been further observed that even when
Bail App No.61/2025 Page |7
statutory provisions expressly bar the grant of bail after a
reasonably long period of incarceration, such stringent provision
will melt down.
14) Recently, the Supreme Court has, in the case of Syed
Iftikhar Andrabi vs. National Investigation Agency, 2026
SCC OnLine SC 881, after analyzing its previous judgments on the
issue, emphasized that the ratio laid down in K. A. Najeeb‘s case
(supra), which is a three Judge Bench of the Supreme Court, is a
binding precent and any other judgment delivered by the benches
of lesser strength of the Supreme Court do not change the legal
position when it comes to grant of bail on the ground of long
incarceration. Para (31) of the judgment is relevant to the context
and the same is reproduced as under:
“31. In K.A. Najeeb, a three-Judge Bench of this
Court was clear and unequivocal in holding that
once it is obvious that a timely trial would not be
possible and the accused has suffered
incarceration for a significant period of time, the
courts would ordinarily be obligated to enlarge the
accused on bail. We have already extracted supra
paragraph 17 of the said judgment where it has
been clearly stated that the presence of statutory
restrictions like Section 43D(5) of the UAP Act per
se does not oust the ability of the constitutional
courts to grant bail on grounds of violation of Part
III of the Constitution. Whereas at the
commencement of the proceedings, the courts
are expected to appreciate the legislative policy
against grant of bail but the rigors of such
provisions will ‘melt down’ where there is no
likelihood of the trial being completed within a
reasonable time and the period of incarceration
already undergone has exceeded a substantial
part of the prescribed sentence. In the facts of that
case, this Court observed that it was conscious of
the fact that the charges levelled against the
Bail App No.61/2025 Page |8accused were grave and a serious threat to
societal harmony and had it been the case at the
threshold, perhaps the Court would have
outrightly rejected such a prayer. However,
keeping in mind the duration of incarceration and
the unlikelihood of the trial being completed in the
near future, the accused had to be enlarged on
bail.”
15) From the foregoing analysis of the legal position law laid
down by the Supreme Court, it is clear that long incarceration of
an undertail without any likelihood of conclusion of trial in near
future infringes upon the right of speedy trial of such undertrial.
While the Supreme Court has, in some cases, gone to the extent of
quashing the trial itself but consistent view of the Supreme Court
has been that in case the delay in conclusion of the trial amounts
to oppression or harassment to an undertrial, the Court can
interfere in such situations and grant bail to an accused in a
heinous crime like murder also. While doing so, the Court has to
take into consideration several factors like, length of delay, the
justification for the delay, the accused’s assertion of his right to
speedy trial and prejudice caused to the accused by such delay. It
is also clear that the Criminal Courts are not obliged to terminate
the trial or criminal proceedings only on account of lapse of time
and acquit the accused but in appropriate cases, the Court can
grant appropriate relief or suitable directions in favour of the
accused. Thus, in deciding bail applications, one of the important
factors which should be taken into account is the delay in
concluding the trial because if an accused is denied bail but is
ultimately acquitted, nobody is going to compensate him for the
Bail App No.61/2025 Page |9
period he has spent in custody. Therefore, long incarceration of an
accused may not be, by itself, a ground for grant of bail but it
certainly becomes a ground for grant of bail to an accused, if the
delay in conclusion of trial is attributable to the prosecution.
16) Turning to the facts of the present case, as already stated,
the charges against the petitioner were framed by the learned trial
court on 01.09.2012. A perusal of the minutes of the proceedings
of the trial court would reveal that out of 23 cited witnesses, 20
witnesses have been examined by the prosecution during last
more than 13 years and three more prosecution witnesses are yet
to be examined.
17) A perusal of the trial court record would show that as back
as on 07.02.2020, the learned trial court had noted that the
accused are entitled to speedy trial which cannot be denied to
them by the prosecution under the garb of production of
witnesses. It was noted by the trial court that eight years had been
consumed in completing the prosecution evidence and still there
are 14 witnesses yet to be examined. The Investigating Officer of
the case was directed to remain present before the court so as to
ensure that other witnesses are produced before the Court.
18) In spite of aforesaid harsh order, it seems that the
prosecution has not been able to produce the witnesses before the
trial court with reasonable dispatch, as a result of which the
prosecution evidence is still not complete. Although it does appear
Bail App No.61/2025 P a g e | 10
from the perusal of minutes of the proceedings that on a few
occasions, even the defence has contributed to the delay as the
counsel appearing for the accused has sought adjournment on a
few occasions to examine the witnesses present, yet an overall
analysis of the minutes of the proceedings would reveal that the
delay in completion of prosecution evidence is largely attributable
to the negligent conduct of the prosecution.
19) A perusal of the minutes of the proceedings dated
09.07.2024 would reveal that the prosecution was directed to
ensure presence of PWs 22, 23 and 24 before the trial court and
summons were issued to the said witnesses but only PW-23 has
been produced by the prosecution, whereas PWs 22 and 24 are yet
to be examined. On 17.10.2024, the learned trial court has noted
that the case is pending since 2012 and while majority of the
prosecution witnesses have been examined, the doctor and the
Investigating Officer are not being produced. On the said date, a
direction was issued to the Investigating Officer to remain present
before the Court and to ensure the presence of other witness but
neither the statement of the doctor nor the statement of the
Investigating Officer has been recorded by the trial court as the
said witnesses have failed to put in their appearance before the
Court.
20) From the foregoing sequence of events, it is clear that
conclusion of trial of the case is being delayed primarily because
of non-appearance of the Investigating Officer before the trial
Bail App No.61/2025 P a g e | 11
court. The Investigating Officer is an official of the Police
Department, therefore, if due to his non-appearance before the
trial court, the trial of the case is being delayed, the only party who
is responsible for delay in trial is the prosecution itself. The
officers and officials of the Police Department are obliged and duty
bound to assist in the speedy trial of the cases and if they start
avoiding to appear before the Court as witnesses, the trial is bound
to be protracted.
21) This Court has, in the case of “Manzoor Ahmad Mir vs.
UT of J&K” (Bail App No.109/2022 decided on 30.12.2022),
while expressing its anguish with regard to non-cooperative
attitude of the police officials in completion of the trial, observed
as under:
“17) From the foregoing sequence of events, it is
clear that the delay in conclusion of the trial is solely
attributable to the prosecution. The officers and
officials of the police department, who are obliged
and duty bound to assist in the speedy trial of the
cases, are avoiding to appear before the Court as
witnesses thereby protracting the trial. It is not a case
where some civil witnesses, who may have been won
over by the accused and avoiding to depose in
support of the prosecution but it is a case where even
the police officials have scant regard for the process
of the Court and they are avoiding to help the
prosecution in speedy trial of the case. Without the
cooperation and assistance of the prosecuting
agency and the police department, the speedy trial
will always remain a distant dream. The present case
is a classic example of prolongation of the trial by the
prosecuting agency and the police department
whose officials are duty bound to render assistance
in speedy trial of cases. It is high time that the
respondents should put their house in order and
instruct their officers and officials to render all
Bail App No.61/2025 P a g e | 12possible assistance in conclusion of criminal trials
instead of blaming the Criminal Courts for the delay.
18) The trial court does have power to terminate the
trial by closing the prosecution evidence but I am
conscious of the fact that in heinous offences like
murder, the Courts generally do not take this extreme
step, particularly when the witnesses to be examined
are material witnesses like witnesses to memo of
disclosure and recovery and the investigating officer,
as is the present case. The Courts refrain from
closing the evidence in such cases as it amounts to
failure of justice but this should not be taken as a
device by the prosecution to protract the trial.”
22) In view of the foregoing discussion, it is clear that the delay
in conclusion of the trial, in the present case, is largely attributable
to the prosecution and having regard to the legal position
discussed hereinbefore, long incarceration of the petitioner has
resulted in violation of his right to speedy trial and, therefore,
rigour of 1st Proviso to Section 437 of the Cr. P. C would not come
in the way of considering the case of the petitioner for grant of bail
as the said rigour, in the light of the ratio laid down by the
Supreme Court in K. A. Najeeb‘s case (supra) would melt down.
23) For what has been discussed hereinbefore, I find that the
petitioner has carved out a case for grant of bail on account of his
long incarceration of about 14 years and also on account of the fact
that having regard to the conduct of the prosecution and the police
department, there is hardly any chance of conclusion of trial in
near future.
24) Accordingly, the application is allowed and the petitioner is
directed to be released on bail subject to the following conditions:
Bail App No.61/2025 P a g e | 13
(I) That he shall furnish personal bond along with two
local sureties in the amount of Rs.1,00,000 (rupees
one lac) each to the satisfaction of the trial court;
(II) That, in case he has a passport, he shall surrender
the same before the trial court and he shall not
travel out of the Union Territory of Jammu and
Kashmir without permission of the trial court;
(III) That he shall not tamper with the prosecution
evidence and he shall not indulge in any act or
omission that is unlawful or that would prejudice
the proceedings in the pending trial;
(IV) That he shall appear before the trial Court on each
and every date of hearing;
25) The application stands disposed of in above terms.
(SANJAY DHAR)
JUDGE
Srinagar,
08.07.2026
“Bhat Altaf-Secretary”
Whether the Order is speaking: Yes/No
Whether the Order is reportable: Yes/No
