BURHAN AHMAD MATTOO vs UNION TERRITORY THROUGH POLICE STATION SRIGUFWARA (HOME)

Court
Jammu and Kashmir High Court

HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR




CJ Court


Reserved on: 20.04.2026
Pronounced on: 07.05.2026
Uploaded on: 07.05.2026



Whether the operative part or full
judgment is pronounced : Full

Case No. Crl A(D) No. 22/2025







Burhan Ahmad Mattoo, 23 years old
S/o. Mohammad Azad Mattoo R/o
Gangipora Mirbazar Tehsil and
District Anantnag, through his father
namely Mohammad Azad Mattoo
…..Appellant(s)/Petitioner(s)


Through: Mr. Parvaiz Amin Wani, Adv.
Mr. Rayees Ahmad Dar, Adv.

vs

Union Territory of Jammu and Kashmir
through SHO Police Station Srigufwara
Anantnag
…..Respondent(s)

Through: Mr. Mohsin Qadiri, Sr. AAG with
Mr. Maha Majeed, Adv.


Coram: HON’BLE THE CHIEF JUSTICE
HON’BLE MR. JUSTICE RAJNESH OSWAL, JUDGE



JUDGMENT
PER OSWAL-J




1. This appeal has been filed against the judgment dated 20.02.2025
rendered by the Court of learned Special Judge (UAPA), Anantnag
(hereinafter to be referred as „the trial court‟), whereby the application
filed by the appellant for grant of bail in charge sheet arising out of FIR
No. 102/2020 for offences punishable under Sections 307 IPC, 7/25

Arms Act and Sections 13, 18-B, 20, 23, 33 and 39 Unlawful Activities
(Prevention) Act, 1967 (for short „the Act), has been rejected.
2. It is stated that the appellant was arrested on 17.11.2021 pursuant to the
statement made by the accused Hafiz Abdullah Malik and no
incriminating material has been seized from the appellant. It is
contended that the statement made by the accused-Hafiz Abdullah
Malik during the Police custody is not valid in the eyes of law. It is also
urged that out of 30 witnesses cited by the prosecution, only 13
witnesses have been examined till date and the witnesses examined so
far have not implicated the appellant in the commission of offences
under sections 13 and 39 of the Act for which the appellant has been
charged.
3. Respondent has filed the response, stating therein that on 08.11.2021,
Police Station, Sirgufwara received specific information about hiding of
the militants in Village Wahadan. On receipt of the said information,
said village was cordoned off by the security forces along with police
personnel of Police Station, Srigufwara and search was launched to
trace out the hiding militants. During search, one militant of banned
outfit Lashkar-e-Taiba was apprehended in injured condition at Village
Wahadan. During initial interrogation, the apprehended militant
revealed his name as Hafiz Abdullah Malik and one pistol, one
magazine and seven cartridges of pistol were recovered from his
possession. During questioning, the alleged accused disclosed that the
appellant (Burhan Ahmed Mattoo) was working as „Over Ground
Crl A(D) No. 22/2025 Page 2 of 6

Worker‟ with the terrorist organization, Lashkar-e-Taiba. After
completion of the investigation, charge sheet was produced before the
competent court of law on 30.04.2022. Out of 30 witnesses cited by the
prosecution, statements of 13 witnesses have been recorded. It is further
averred that the learned trial court has rightly dismissed the bail
application.
4. Learned counsel for the appellant has submitted that the appellant has
been arrayed as accused only on the basis of disclosure statement made
by accused-Hafiz Abdullah Malik and except that statement, there is no
evidence against the appellant with regard to his involvement in
commission of any offence. He has further argued that the appellant has
been in custody for the last nearly four and a half years and the
witnesses examined by the prosecution so far have not deposed against
the appellant. Learned counsel for the appellant further submitted that a
single-line insertion was made into the disclosure statement of the
accused, Hafiz Abdullah Malik, alleging that the appellant was working
as Over Ground Worker. He has placed reliance upon the judgment of
the Co-ordinate Bench of this Court in case, titled, Shabnam Akhter
vs. U. T. of J&K, numbered as Crl A(D) No. 37/2025 dated
12.02.2026.
5. Mr. Mohsin Qadiri, learned Sr. AAG has submitted that except the
disclosure statement made by the accused-Hafiz Abdullah Malik, there
is no other evidence against the appellant, but as the appellant has been
charged for the commission of offences punishable under Sections 39
Crl A(D) No. 22/2025 Page 3 of 6

of the Act, therefore, in view of the bar contained in Section 43-D (5)of
the Act, the bail cannot be granted to the appellant.
6. Heard and perused the record including the trial court record.
7. The record depicts that the appellant has been arrayed as accused No. 2
in charge sheet, titled, “U. T. of J&K vs Hafiz Abdullah Malik and
others” only on the basis of the statement made by accused No. 1, Hafiz
Abdullah Malik, wherein he has stated that the appellant was working
as Over Ground Worker. There is no recovery of any incriminating
material from the appellant.
8. The appellant was arrested on 17.11.2021 on the basis of the disclosure
statement made by the accused Hafiz Abdullah Malik on 08.11.2021
and he has been in custody ever since.
9. In National Investigation Agency v. Zahoor Ahmad Shah Watali,
(2019) 5 SCC 1, it has been held that the Court must assess whether
there are reasonable grounds for believing that the accusations are
prima facie true, based on the totality of the material. In the instant
case, except the disclosure statement made by the co-accused, no
material has been brought to the notice of this Court incriminating to
the appellant.
10. The Hon‟ble Apex Court in Union of India v. K. A. Najeeb, (2021) 3
SCC 713, has observed that the prolonged incarceration and the
unlikelihood of an early conclusion of trial are relevant considerations
in appropriate cases.
Crl A(D) No. 22/2025 Page 4 of 6

11. Over the course of more than four years, the prosecution has produced
only 13 out of 30 cited witnesses, highlighting the slow progress of the
trial. Though Section 43-D (5) of the Act provides stringent condition
for granting bail where the accused is arrested for the commission of
offences punishable under Chapters IV and VI of the Act, but in view
of the only material against the appellant in the form of disclosure
statement made by the accused Hafiz Abdullah Malik, we are of the
considered view that the appellant has successfully crossed the hurdle
of 43-D(5) of the Act. No material has been brought to our notice that
the release of the appellant will hamper the trial or the appellant would
indulge in influencing the witnesses.
12. Accordingly, we allow the present appeal and set aside order dated
20.02.2025, impugned in this appeal. The appellant shall be released on
bail, subject to the following conditions:
(i) that he shall furnish two solvent sureties for an amount of
Rs. 1,00,000/ each, to the satisfaction of the Trial Court and
personal bond of like amount
(ii) that he shall appear before the Trial Court on each and every
date of hearing and shall not leave the territorial jurisdiction of
the Union Territory of Jammu and Kashmir without prior
permission of the Trial Court;
(iii) that he shall not indulge in any offence similar to the one for
which he stands charged.
Crl A(D) No. 22/2025 Page 5 of 6

(iv) That he shall not contact any of the prosecution witness
physically or through any other mode.
13. The appeal stands disposed of accordingly. Copy of the order be sent to
the Trial Court for compliance.


(RAJNESH OSWAL) (ARUN PALLI)
JUDGE CHIEF JUSTICE

Jammu
07.05.2026

Rakesh PS
Whether the order is speaking: Yes/No.
Whether the order is reportable: Yes/No.
\
Rakesh Kumar
2026.05.07 13:30
I attest to the accuracy and
integrity of this document
Jammu
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