Srinagar: The case against three men accused of involvement in the sensational triple murder in 2020 of a Bharatiya Janata Party (BJP) district president and his family members was “fundamentally undermined” by “prosecution’s own witness list,” a special National Investigation Agency (NIA) court has observed.Acquitting the accused by citing the benefit of doubt, the court of district and session judge Bandipora Mir Wajahat observed on March 11 that the hostile statements of two police officers who deposed in the case was “a direct contradiction of the prosecution’s narrative”.The NIA-designated court observed that two officers had “directly” implicated the investigators “in the manipulation of witness statements”. “When two police officers who spent a full year at the home police station of this case confirm that they had no knowledge whatsoever of the three accused, the foundation of the prosecution’s portrait of the accused as notorious Over Ground Workers (OGWs) is fundamentally undermined from within the prosecution’s own witness list,” the court observed.The term ‘OGW’ or Over Ground Worker has been used in the police FIRs and chargesheets against the alleged sympathisers of militants in Jammu and Kashmir. In its chargesheet, the police said that the accused – Abrar Gulzar Khan, Muneer Ahmad Sheikh and Mohammad Waqar Lone, all Bandipora residents – “knowingly and intentionally” were OGWs who aided four militants directly involved in the killing of saffron party leader Waseem Bari along with his father and brother on July 8, 2020.The chargesheet said that a Pakistani national Abdul Usman and Sopore resident Sajad Ahmad Mir along with two more Bandipora residents, Abid Rashid Dar and Azad Ahmad Shah, identified as members of the proscribed Lashkar-e-Tayyeba and Tehreek-ul-Mujahideen, were directly involved in the killing of Bari, then district president of BJP. Usman and Mir were killed in an encounter after the killings while Dar and Shah are believed by police to have joined militancy and are absconding in the case. The police booked Khan, Sheikh and Lone under Section 39 of the stringent Unlawful Activities (Prevention) Act.The chargesheet said that the trio shared information about the movement of security forces and local politicians to militants, and also allegedly provided them “logistical support” and “safe passage” to facilitate the attack.However, citing 18 deficiencies in the prosecution’s case, the court said that the investigators failed to establish the culpability of the accused under Section 39 of the stringent anti-terror law. “The specific intention to further the activity of a terrorist organization the mens rea that Parliament has expressly embedded in each sub-clause of Section 39 has not been established through any legally admissible, reliable, and credible evidence before this Court,” the court said.In a 89-page judgement, the court observed that the circumstantial evidence cited by the investigators was “legally insufficient, procedurally defective, internally self-contradicted, and incapable of sustaining the inference of the specific criminal intent” which raised questions about the “integrity of the investigative process itself.”The court said that the evidence was “inadmissible in its electronic form, self-contradicted in its recovery aspect, tainted by undisclosed conflict of interest in its surveillance dimension, publicly disowned by two of the prosecution’s own witnesses in its attribution of specific terrorist associations, affirmatively negative in its CCTV dimension, and wholly insufficient in its failure to establish any specific overt act … under which the accused are charged”. The prosecution had told the court that six posters of the banned outfit Tehreek-ul-Mujahideen were recovered from Khan, five from Sheikh and three from Lone along with two mobile phones. However, in at least one of the cases, the court observed that the prosecution witnesses couldn’t corroborate where the posters were recovered from. The court also noted that the station house officer of Bandipora offered contradictory descriptions of one of the phones. The court said that the process of the recoveries shown to have been made from the accused was filled with “systemic procedural failures that have rendered the recovery evidence worthless” while turning the investigation into a “catalogue of investigative deficiencies and evidentiary infirmities”.“The two phones from accused Waqar the i-Phone and the Xylo were taken by another agency in connection with a different case and were not produced before this court. Their contents were never examined,” the court observed, terming the inconsistency as an “independent chapter of concern”.The court said that the investigating agency didn’t rely on magistrate or independent witnesses under Section 100 of the Code of Criminal Procedure during search and seizure proceedings in the case.“It is not a technical defect to be glossed over; it is a substantive evidentiary deficiency that goes to the root of the reliability of the recovery proceedings,” the court observed. The court said that the cross-examination of the police official in-charge of the area in Bandipora where the shooting took place “produces two admissions that individually and far more so collectively constitute a demolition of the prosecution’s case”. During cross-examination, the police official told the court that a portion of his statement under Section 161 CrPC which was part of the chargesheet had been “incorrectly recorded” by the investigators to falsely show that the three men were associated with Tehreek-ul-Mujahideen. While referring to the “procedural lapses” in the investigations, the court observed that the chargesheet was filed against the trio before the sanction for prosecution under the anti-terror law was obtained from the government, as is mandatory under the UAPA.The approval was granted by J&K’s home department on January 14 2021 while the chargesheet was filed on January 9 2021.“The sanction is not a formal administrative exercise. It is a substantive safeguard against the invocation of a stringent special law against a citizen without the independent approval of a responsible governmental authority,” the court said.The court also observed that no ballistic comparison was conducted on the cartridges recovered from the scene of the shooting in Bandipora and the weapons recovered from Usman and Mir, who were gunned down by security forces and accused of involvement in the killing of Bari and his family members.The court said that there was “no technical evidence beyond call detail records (CDRs)” against the accused while ruling that the CDR evidence was inadmissible “for the want of a certificate under Section 65-B of the Indian Evidence Act, 1872” which was not obtained by the investigators.