Srinagar: J&K and Ladakh High Court today rejected the request of Mohammad Latief Magrey of Ramban for exhumation of the body of his son, killed last year in the Hyderpora encounter but directed that the family be allowed after burial rituals at the graveyard in north Kashmir.
Magray’s son, Mohammad Amir, was killed along with three other persons in an encounter by security forces on 15th of November 2021. The slain were later buried by police with assistance from Auqaf Committee at Wadder Payeen Graveyard of north Kashmir.
Dead bodies of two other persons, killed in the encounter, Dr Mudasir Gul and Altaf Bhat of Srinagar, were returned to their respective families following relentless protests and were stated to be non combatants by Police.
Magray had approached the authorities and requested them for return of dead body of his son for performing his decent burial in his home town in Rambana, which was turned down for the reason that he was a militant.
Magray’s writ petition refutes the police assertion saying that he has all along been fighting militancy and that his son was innocent.
Hearing the case Chief Justice Pankaj Mithal and Justice Javed Iqbal Wani said the prayer of Magray that “he and his family members be permitted to see the face of deceased by opening the grave of the deceased, cannot be accepted and permitted”.
The dead body would start decomposing immediately after burial, and secondly in view of the statement made by the writ petitioner before the Apex Court while giving up the prayer of exhumation of the deceased, the judges said.
They appreciated the arguments of D C Raina, the Advocate General of the government who said the petitioner (Magray) was not entitled to any of the reliefs prayed in the petition.
The court however noted that the appellants (the government authorities) admittedly did not provide opportunity to Magray and his family to associate in the burial and performance of last religious rites of the deceased.
“Appellants (the authorities) prima facie have acted unfairly inasmuch as unreasonably in this regard notwithstanding the allegation of appellants that person deceased was a terrorist even if it may be assumed”, it observed.
It said “the deceased (did not) relinquish his right to be buried after performance of last rites by his family members in accordance with the faith professed by him”.
Yet the right of burial and performance of last religious rituals of deceased available to father Magray and his family members could not have been denied, it added.
It admitted that father of the deceased and his family manifestly has been subjected to emotional and sentimental melancholy and such an act cannot be endorsed in law.
The court directed the authorities to allow Magray and his family members (maximum 10 persons) to perform Fatiha Khawani (religious rituals after burial) of deceased at Wadder Payeen Graveyard of north Kashmir.
It further directed them to pay compensation of Rs Five Lakhs to the family of the youth killed in the encounter.
The court said the payment of compensation to the family of the killed youth shall not form a precedence for future because of the peculiarity of the case.
