In the first order related to the detention of a political leader in the Valley post-August 5, when the special status was scrapped, the Jammu & Kashmir High Court dismissed the plea moved by Awami National Conference (ANC) leader Muzaffar Ahmad Shah directing him to “prove (his) arrest by evidence” before a “proper forum” and in “appropriate proceeding.”
Shah, son of former J&K Chief Minister Ghulam Mohammed Shah, had on September 11, along with his family, moved the High Court alleging that they had been “illegally and unlawfully detained and kept under house arrest” at their own residential house in Srinagar since August 5.
They had also claimed that the “detention” had violated, “with impunity,” their fundamental rights guaranteed under the Constitution. The other petitioners include Ghulam Shah’s wife Begum Khalida Shah and Mustaffa Kamal, son of Sheikh Abdullah.
On Tuesday, the single bench of Justice Ali Mohammad Magrey dismissed the plea “as being not maintainable and unnecessary.” And said it was “leaving the petitioner free to take appropriate remedy available to him under the law before appropriate forum.”
The order comes after a reply filed by police on October 23 that the political family were neither under house arrest nor had their liberty been curbed.
The HC, had on the same day, asked the petitioners to respond to the police reply. In doing so, the court said, “Rais-ud-Din Ganai, the learned Government Advocate, submits that in view of the stand taken by the respondents in the aforesaid communications, it is clear that the petitioners have neither been put under any house arrest nor has their liberty been curbed/ jeopardized….Having heard the learned Government Advocate, coupled with a perusal of the communications of the Senior Superintendent of Police and Additional Deputy Commissioner, Srinagar, this Court is satisfied that the instant petition is unnecessary and, as such, liable to be dismissed.”
Replying to the court on the police claims, Shah on Tuesday said he was “legally entitled to prove his case and needs to be granted permission to produce evidence”.
Records show that Shah submitted “paper cuttings” to prove his claim that the family was under house arrest. He further claimed that on October 24, the family was stopped by the police and this was witnessed by two sitting Members of Parliament Justice (Retd) Hasnain Masoodi and Mohammed Akbar Lone.
Justice Magrey, however, rejected Shah’s plea to produce evidence and witnesses in the case.
The judge said that that under Article 226 of the Constitution, the “writ court is neither to hold an enquiry into allegation made in a petition, nor take oral evidence.”
“In writ proceedings, a fact is to be supported and proved by authentic documentary evidence. Press cutting cannot be relied upon as authentic documentary evidence,” Justice Magrey said.
Justice Magrey further observed that the court “cannot hold enquiry into disputed facts”.
“In the instance case, the respondents (police) have clearly disputed the statement made in the writ petition about the house arrest of the alleged detainees. The petitioner asserts that he can prove the arrest by evidence. This court will not debar him from doing so but that can be done only before the proper forum and in appropriate proceedings,” Justice Magrey said.