STATE OF JAMMU AND KASHMIR vs SHAKEEL AHMED AND ORS.

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HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU




CRAA No. 53/2011

Reserved on: 15.10.2026
Pronounced on: 29.10.2026

Uploaded on: 29.10.2026
Operative part or full judgment - Full



State of Jammu & Kashmir


…Appellant(s)

Through: Mr. Raman Sharma, AAG with
Ms. Shaliqa Sheikh, Adv &
Mr. Kartikay Sharma, Adv.




Vs.



1. Shakeel Ahmad @ Khateeb Ansari (Dead)
S/O Zulfikar Ali Bhat
R/O Bhain Tehsil Chenani
2. Musthaq Ahmed @ Bittu
S/O Sher Mohammad
R/O Krawa
Teshil Ramnagar
3. Mohammad Hussain,
S/O Gh. Qadir
R/O Mong
Tehsil Ramanagar
4. Gul Mohammad
S/O Alim Din
R/O Punara
5. Mohammad Abass ( 512 CrPC)
S/O Abdullah, R/O Mong
Tehsil Ramanagar
6. Mohammad Abass (Dead)
S/O Gh. Qadir Wani
R/O Punara
Tehsil Ramnagar
7. Irfan S/O Khursheed (512 CrPC)
R/O Bast, at present Latti,
Tehsil Chenani.
…Respondent(s)

Through: Mr. M A Bhat, Advocate with
Mr. Tauqir Mustafa Khan, Adv.

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CORAM: HON’BLE MR. JUSTICE SANJEEV KUMAR, JUDGE


HON’BLE MR. JUSTICE M. A.CHOWDHARY, JUDGE


JUDGMENT

PER M A CHOWDHARY-J


1. Through the medium of this Criminal Acquittal Appeal,
the appellant-State (now UT) of Jammu & Kashmir
challenged the judgment dated 30.10.2010 passed in
Sessions case No.15/2001/2005, titled ‘State v.
Shakeel Ahmed @ Khateeb Ansari & Ors’ , whereby,
the respondent nos.2 to 4 namely Mushtaq Ahmed,
Mohammad Hussain and Gul Mohammad respectively,
were acquitted of all the charges framed against them in
the case arising out of FIR No. 4/1999, for the
commission of offences, punishable U/Ss 364, 302,
124-A RPC and 3/25 Arms Act registered at P/S
Basantgarh, extending them the benefit of doubt.
2. The impugned judgment has been assailed on the
ground that the same is misconceived against the law
and facts of the case; that there was sufficient material
on record to convict them for commission of crime; that
they had committed heinous crimes and deserve no
leniency/concession. It was prayed that the impugned
judgment be set-aside and the respondent nos.2 to 4, be
convicted and sentenced to exemplary punishment.

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3. Briefly stated the facts of the case are that on
18.04.1999, Ct. Mohd Shafi, In charge local Police
Picket, based on reliable source, transmitted
information to P/S Basantgarh that in the intervening
th th
night of 17 and 18 of April 1999, accused Shakeel
Ahmed @ Khateeb Ansari, Mushtaq Ahmed, Gul
Mohammad, Mohammad Hussain, Mohammad Abass
accompanied by other 5/6 unknown terrorists armed
with automatic weapons entered into the residential
house of SPO Mohammad Farooq S/O Abdul Gani R/O
Morha Gond, Tehsil Ramnagar and kidnapped him at
gun-point, with intention to kill him; that he was taken
to the bank of river Ujh, where he was killed and his
dead body was lying on spot.
4. Based on this information, a case was registered vide
FIR No. 4/1999 at P/S Basantgarh for the commission
of offences punishable under Sections 302/364/124-A
RPC and 3/25 Arms Act and investigation was
commenced. After investigation of the case, the police
concluded that the deceased SPO Farooq, was abducted
at gun-point from his house with an intention to kill
him by Shakeel Ahmed @ Khateeb Ansari R/O Bhain
Chenani; Mushtaq Ahmed @ Bittu R/O Krawa,
Mohammad Hussain R/O Mong, Tehsil Ramnagar; Gul
Mohammad R/O Punara, Mohammad Abass S/O
Abdullah R/O Mong, Mohd Abass S/O Ghulam Qadir

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Wani R/O Punara and Irfan R/O Basht, at present
Latti, Tehsil Chenani and chargesheet was laid before
the court of law for the commission of aforementioned
offences, in absence of the accused, who had been
absconding.
5. Mr. Raman Sharma, learned AAG, appearing for the
appellant, submits that the prosecution had succeeded
to lead sufficient and credible evidence, so as to connect
the respondents with the commission of the charge; that
the respondents had committed heinous offences of
kidnapping a Special Police Officer, with an intention to
kill him from his house and was slaughtered at bank of
River Ujh, wherefrom his dead body was recovered. The
prosecution had examined eye-witnesses as well as led
circumstantial evidence, which were sufficient in the
ordinary course of law to connect the respondents with
the commission of the offences and it was foolproof case
to record their conviction. He further argued that the
Trial Court had misdirected itself, not to appreciate the
evidence in proper perspective and recorded acquittal of
the respondents on flimsy ground and prayed that
appeal be allowed and the respondents be convicted and
sentenced to exemplary punishment.
6. Learned counsel for the respondents nos. 2 to 4, ex
adverso, argued that the seriousness of the allegations
is beyond dispute yet the gravity of an accusation

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cannot take the place of legally admissible and reliable
evidence establishing the guilt of the respondents-
accused beyond reasonable doubt; that the prosecution
was required to establish through reliable evidence, the
occurrence of the alleged offences and the involvement
of each accused in the commission thereof; that mere
registration of an FIR and the allegations contained
therein could not, by themselves, constitute proof of the
guilt of the respondents-accused; that a general
assertion that the evidence has not been appreciated
correctly is not, by itself, sufficient to warrant reversal of
an acquittal; that the appellant must demonstrate, with
reference to the evidence on record and the findings
recorded by the trial Court, the particular material
which has been overlooked, misread or incorrectly
assessed and the manner in which such error has
affected the ultimate conclusion; that the appeal cannot
be allowed merely on the basis of the grounds couched
in general terms, without demonstrating a material
error in the impugned judgment.
7. Further, it is argued that the prosecution case rests
solely on alleged eyewitness identification, but the
identity of the accused at the place of occurrence has
not been proved beyond reasonable doubt; that the
impugned judgment is passed after proper and
meticulous appreciation of the entire prosecution

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evidence; that the prosecution evidence regarding FIR
itself creates the defence rather than the prosecution;
that the medical and forensic evidence proves the
homicidal death, but does not establish the identity of
the perpetrators; that the prosecution thus failed to
establish the most fundamental link in the chain –
presence and identity of the respondents at the place of
occurrence; that the contradictions are not minor
discrepancies attributable to lapse of memory; that the
prosecution cannot seek reversal of the acquittal merely
by pointing to the seriousness of the offence or by
relying upon the general allegation that the deceased
was killed by militants; that the gravity of the offence
cannot substitute proof of the identity and participation
of the accused. Lastly, it is prayed that the criminal
acquittal appeal be dismissed.
8. Heard learned counsel for the parties and perused the
material available on record.
9.
Accused Shakeel Ahmed @ Khateeb Ansari and
Mohammad Abass S/O Ghulam Qadir Wani expired and
two of the accused Mohd. Abass S/O Abdullah and Irfan
were proceeded against in terms of Section 512 of CrPC
declaring them as absconders. As a result, the Trial
Court vide order dated 29.06.2005 chargesheeted
respondent nos. 2 to 4 Mushtaq Ahmed @ Bittu, Mohd
Hussain and Gul Mohammad, for the commission of

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offences punishable U/Ss 302/148/149/124-
A/458/364/114 RPC and 7/27 Arms Act, with the
th
accusation that in the intervening night of 17/18 of
April 1999, all of them, with common intention in
association with other accused, armed with automatic
weapons, entered into the residential house of SPO
Mohd Farooq at Lodhra Gund Tehsil Ramnagar and
kidnapped him with an intention to kill him; that he
was taken to the bank of river Ujh, where he was
slaughtered by accused Mohd. Abass with ‘Khokri’ at
the instance of accused Shakeel Ahmed.
10. The prosecution, in order to prove its case to bring
home the charge against the accused examined Mohd.
Sharif, Shamshad Begum, Javed Iqbal, Parveen Begum,
Mohammad Fareed, Suram Chand, Mohammad Latief,
Nasreen Begum, Rafiq Ahmed, Mohammad Shafi,
Shahnaz, Ghulam Nabi, H C Bhagat, I M Malik and Dr.
Zakir Hussain as its witnesses.
11.
The prosecution case was mainly based upon direct
evidence, as many of the witnesses had been cited as
eye witnesses to the occurrence, besides, some official
witnesses associated with the investigation of the case
like Patwari, Naib Tehsildar, Doctors and Investigating
Officers, PW-Mohammad Sharief, Shamshad Begum,
Javed Iqbal, Parveen Akhtar, Mohd. Fareed, Mohd

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Latief, Nasreen Begum and Shahnaz Begum have been
cited as eye witnesses, as per the prosecution case.

12. PW-Mohd Sharief is stated to be paternal uncle of the
deceased SPO Mohd Farooq and that residing at a
distance of one kilometer from the place of occurrence
deposed that he was informed about the occurrence by
PW Mohd Latief and Mohd Fareed, and reached on spot
when the occurrence had already taken place, therefore,
he cannot be said to have seen the occurrence, involving
the accused in the commission of crime, charged
against them. PW-Shamshad Begum, as per the
prosecution case, is the star witness, stated to be
present at the place of occurrence, being wife of
deceased Mohd Farooq, deposed that in the darkness of
night, two persons, one of whom was identified as
Mohd. Hussain entered into their room; that the
militants were wearing masks on their faces and they
were numbered 15/20. She, however, resiled from her
earlier statement made to the police, during
investigation and was declared hostile by the
prosecution. According to her, occurrence had been
witnessed by Shahnaz Begum, Mohd Latief and Parveen
Begum only.
13. PW-Javed Iqbal is the real brother of the deceased and
was stated to be present, on spot, along with his wife, at
the time of occurrence. He deposed that he was pushed

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and confined inside a room by militants. He, however,
managed to escape from the room through a window
and chased the accused, who were not wearing masks
on their faces. He, however, admitted that there was no
electric light at the time of occurrence. PW-Nasreen
Begum, wife of PW-Javed Iqbal deposed that accused
were chased by Latief, Fareed and Shamshad Begum.
She also resiled from her earlier statement made to the
police, during investigation and, as such, was declared
hostile; on her cross examination by the prosecution,
she deposed that at the time of occurrence, she along
with her husband PW-Javed Iqbal was at their residence
situated at Village Rai Chak, which was at a distance of
about 10 to 15 Kms, from the place of occurrence.
14. PW-Parveen Begum, sister of the deceased stated that
she, along with her husband, had gone to her parental
house on the day of occurrence and at mid-night, she
heard a knock at the door of the room of her brother
Mohd Farooq who opened the door and militants
entered into his room, took him out of the wooden box;
that besides her, the occurrence had been witnessed by
her husband and PW-Shamshad only; that it was dark
night and all the militants were wearing masks on their
faces. The accused militants were chased by her
husband and her uncle, PW-Mohd Farooq, husband of
PW-Parveen Begum. She saw two militants were

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standing in the lawn of the house, but he could not
identify them; he has not supported the prosecution
story and has not stated anything incriminating the
accused. PW-Mohd Latief stated that accused Mushtaq
and Mohd Hussain knocked the door of room of
Shamshad Begum, and Mohd Farooq was brought out
of the box by them, while the other accused were
standing in the Verandah of the house. The deceased
was subjected to physical torture and was taken away,
with them. He deposed that none of the accused was
wearing masks; he denied the correctness of his
statement, recorded by the police in which he had
named accused as Mohd. Hussain, Mushtaq Ahmed,
Liaqat Ali, Riaz Ahmed, Shakeel Ahmed, Akhtar
Hussain, Mohd Irfan and Mohd Abass were standing in
the Verandah and he also claimed to have chased the
accused persons.
15. PW-Shanaz Begum, another sister of the deceased, also
reached spot after hearing the noise. She resiled from
her earlier statement recorded by the police, in which,
she had named Mohd Abass, Liaqat, Gul Mohd, to have
entered into the room of Mohd Farooq and that he
(witness) was allegedly confined inside the room by the
militants.
16. Besides the above eye witnesses examined by the
prosecution, another set of prosecution witnesses

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comprised of Suram Chand Naib Tehsildar, Mohd Rafiq,
H C Bhagat, I M Malik and Dr. Zakir Hussain. PW-Rafiq
prepared the copy of khasra Girdwari of the place of
occurrence, PW-Suram Chand, Naib Tehsildar resealed
and dispatched the sealed items to FSL for chemical
analysis, PW- H C Bhagat and I M Malik have
chemically examined the seized articles and have given
their opinion, Dr. Zakir Hussain had conducted post-
mortem on the dead body of the deceased. PW-Mohd
Shafi, Incharge STF Picket Punara, had stated to have
allowed deceased Mohd Farooq to visit his home on the
relevant day and on the very next day, he heard that the
deceased was killed by militants. He accordingly,
informed SHO P/S Basantgarh through wireless
message, about the death of the deceased by militant
group of Shakeel Ansari.
17. PW-Inspector Gh. Nabi Mir had conducted the
investigation of the case, recorded the statement of the
witnesses, prepared the seizure memos and completed
the investigation. He deposed that he had received the
information from PW-Mohd Shafi regarding the
occurrence, through wireless at about 7.30 on
18.04.1999. Site plan was prepared by him on the
identification of PW-Shamshad Bano and other relatives
of the deceased; that houses of Zahoor Ahmed and
Qamar Din are situated near the place of occurrence

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but none of them was cited as prosecution witnesses;
that the militants were not wearing any masks, electric
supply and there was no electric light at the time of the
occurrence, as it generally remained disrupted in the
area.
18. On a keen perusal of the statements of those
prosecution witnesses, who have been cited as eye
witnesses, it is apparent that there are material
contradictions not only in their testimonies during the
investigation and later during trial but also inter se
witnesses with regard to the identity of the
assailants/accused, their number, wearing or not
wearing of masks at the time of occurrence, particularly,
when there was no light about the identification of the
any of the witnesses. The testimonies of the eye
witnesses to the occurrence must be natural, reliable,
unimpeachable, trustworthy and inspiring confidence in
them, as basic principle of criminal jurisprudence is
that in order to bring home the guilt of the accused, the
prosecution is under an obligation to prove the charges
against the accused beyond any shadow of doubt.
However, in a case based on circumstantial evidence of
commission of crime, the chain of circumstances should
be so compatible with the commission of offence that it
should irresistibly point out the guilt of the accused
only. We are aware of the legal position as is an

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established principle of law, that the testimony of
interested/related witnesses cannot be discarded out-
rightly, however, testimonies are required to be closely
and critically analyzed with their earlier statements,
other surrounding circumstances while appreciating
their evidentiary value.
19. PW-Mohd Sharief, though has been styled as eye
witness in the challan stated that he was informed
about the occurrence by PW-Mohd Latief and Mohd
Fareed and that he had reached the place of occurrence
when the militants had left the place of occurrence. He
has, however, stated that he saw the accused fleeing
from the place of occurrence though it was darkness of
night and there being no arrangement of light. The
version of this witness is highly improbable in the given
facts and circumstances of the case and the possibility
of witnessing the occurrence by him is to be thus ruled
out. His presence on spot has also not been confirmed
by PWs- Shamshad Begum and Shahnaz Bano, as such,
his deposition cannot be stated to be reliable and worth
of any credence.
20. PW-Shamshad Begum, wife of deceased, who was stated
to be present at the place of occurrence along with
deceased in their room, wherefrom, he was alleged to
have been abducted while materially contradicting with
the prosecution case denying taking place of occurrence

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in the manner she has disclosed to the IO on the very
next day of occurrence shows the involvement of other
accused persons in the commission of crime. Though
she had named Shakeel Ahmed, Mushtaq Ahmed, Mohd
Hussain, Mohd Abass, Irfan and Riaz Ahmad, present in
the Verandah of her house, therefore, improvement in
her statement during trial from that made at the time of
investigation makes her testimony unreliable and
untrustworthy of any credence. Even the prosecution
itself has not relied upon her version as she was
declared hostile and subjected to cross examination,
wherein, she had totally denied and contradicted
materially in the mode and manner of the incident as
alleged in the prosecution case; that her husband was
taken out of the room by the militants and killed in the
lawn of the house, whereas other witnesses stated and
rightly so that he was killed somewhere on the bank of
river Ujh, wherefrom his dead body was recovered which
was situated at a considerable distance from the house
of the deceased; that about recognizing/identifying the
accused persons on spot again appears to be highly
improbable and unbelievable on her part when she
states that it was pitch dark night and militants were
wearing masks on their faces contrary to her statement
made in the court where she stated to the police during
investigation that accused Gul Mohd, Akhtar Hussain,

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Liaqat Ali and Mohd Abass had forcibly entered into her
room while enquiring about her husband. In view of the
aforesaid infirmities and material contradictions in her
statement, the testimony of this claimed star
prosecution witness also cannot be relied upon.
21. PW-Javed Iqbal and his wife PW-Nasreen Begum have
also been cited as eyewitnesses but their presence on
spot had been completely ruled out by all other
witnesses. PW-Nasreen Begum had admitted in her
cross examination that she along with her husband PW-
Javed Iqbal was at her house situated at Village Rai
Chak at a distance of about 15 Kms from the place of
occurrence. PW-Shamshad Begum, Parveen Begum and
Shahnaz Bano had also admitted in her statement that
Javed Iqbal and his wife were not present, at the place
of occurrence at the relevant time. PW-Javed Iqbal and
his wife PW-Nasreen Bano were thus not present at the
place of occurrence, and their version again is
improbable when they stated they were pushed and
confined inside the room from where PW-Javed Iqbal
managed to get out of the room through a window to
chase the accused persons upto the watermill (Gharat),
as the perusal of the site plan does not show existence
of any window in either of the rooms of the house. The
IO PW-Gh. Nabi Mir had not shown any window or
ventilator in any of the rooms in the site plan prepared

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during investigation, as such, this is also a serious
infirmity in view of law laid down by the Apex Court in
AIR 2003 SC 2098 , wherein it had been held that the
preparation of a site plan is not a mere formality but is
an essential feature in order to reach to a firm
conclusion in order to ascertain whether the offence has
been committed by accused or not. In this backdrop,
the statements of PWs-Javed Iqbal and Nasreen Begum
are not found credible to be accepted as there is a great
doubt about their very presence on spot, at the relevant
time.
22. PW-Parveen Begum and PW-Mohd Fareed are residence
of Village Lodara and claimed to have visited the house
of the deceased Mohd Farooq, therefore, their presence
on spot is highly suspicious and it appears that they
had been implanted as prosecution witnesses, being
close relatives of the deceased.
23. PW-Mohd Latief claimed to have reached the place of
occurrence on hearing noise; that the deceased was
brought out of the wooden box by the accused and at
that time, he was standing in the Verandah, that the
militants were wearing army uniforms and that their
faces were not covered and he named two of them,
however, police has wrongly recorded, of its own, in his
statement U/S 161 CrPC that he had seen Mohd
Hussain, Mushtaq Ahmed, Liaqat Ali, Riaz Ahmed,

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Shakeel Ahmed, Akhtar Hussain, Mohd Irfan and Mohd
Abass standing in the Verandah, when he reached on
spot. He in his cross examination however denied his
earlier statement recorded by police to the extent that
Gul Mohd and Mohd Hussain were knocking the door of
the deceased, as such, materially denying his earlier
statement.
24. PW-Shanaz Begum, real sister of the deceased, also
stated that she had seen 5/6 militants standing inside
the Verandah of their house when she came out of the
room; that all the accused were wearing masks on their
faces except accused Mohd Hussain and Mushtaq
Ahmed and it was pitch dark night when the accused
entered inside the room of Mohd Farooq; she was also
pushed inside the room by the accused persons and
later on rescued by PW Shamshad Begum. The version
of this witness is materially contrary to the prosecution
version, as such, the same is devoid of any reliance.
25.
PW-Javed Iqbal had stated that the place of occurrence
was surrounded by residential houses of Nizam Din,
Mohd Hussain, Zahoor Ahmed, Qamar Din, Angrez
Singh, Badri Nath and Thakur Dass and IO had also
admitted in his statement that houses of Zahoor Ahmed
and Qamar Din were situated near the house of the
deceased Mohd Farooq; that no reason has been
assigned for not citing the immediate neighbours as

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prosecution witnesses in the charge sheet nor they have
been associated with the investigation of the case,
though it was obligatory on the IO to examine the
independent witnesses but they were deliberately
dropped and only close relatives of the deceased had
been cited/examined in support of the prosecution case
which gives rise to the reasonable doubt about the
occurrence and non examination of the independent
witnesses causes a serious blow to the prosecution case
and the veracity of its story.
26. Having regard to the evidence brought on record before
the Trial Court by the prosecution and as discussed
hereinabove, it appear that the statements of the eye
witnesses suffer from material contradictions and
inherent infirmities as all the eye witnesses, while
making material contradictions in their statements
recorded by the police, have improved on their
statements to be tailored with a different version of facts
while making depositions during trial of the case which
casts a serious doubt upon their credibility rendering
their depositions totally unsafe to accept as they do not
inspire any confidence.
27. It appears that in those days, a militant group led by
Khateeb Ansari was active in Basantgarh area when the
occurrence had taken place; the information had been
received at the Police Station Basantgarh through

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Incharge local STF Picket, that the deceased SPO was
kidnapped and killed by that group; that during
investigation, no accused was apprehended and the
charge sheet was produced in their absence. Later, on
apprehension of respondents no. 2 to 4 Mohd Hussain,
Mushtaq Ahmed and Gul Mohd, three of the accused
the trial against them commenced.
28. It was highly improbable to identify a person during
night when the arrangement of any light especially
when the accused persons were stated to have hidden
their faces by face masks. The two of the witnesses
Mohd Latief and Parveen Begum, whose, presence at the
place of occurrence as already pointed was doubtful had
stated that they had identified the accused in the light
of the torch and earthen lamp, respectively but none of
these equipments were seized during investigation, so
as to substantiate that fact.
29. The prosecution had not succeeded to lead credible and
inspiring evidence so as to record conviction of the
accused, who were charge sheeted, as whole of the
prosecution case was based upon shaky evidence,
suffering from inherent infirmities and material
contradictions. The depositions of the prosecution
witnesses, particularly, eye witnesses had not appeared
to be natural and trustworthy, so as to be relied upon to
record conviction. The Trial Court has, thus, rightly held

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that the prosecution had failed to bring home any of the
charge against any of the accused namely, Mushtaq
Ahmed, Mohd Hussain and Gul Mohd, who were
acquitted and ordered to be released.
30. An accused is under a legal presumption to be innocent
till held guilty. An acquittal reinforces the presumption
of innocence. The Appellate Court may interfere only, if
the view taken by the Trial Court is perverse or
impossible. There is a limited scope of interference in an
appeal against acquittal by this court; that an appellate
court may interfere only if the view taken by the trial
court is perverse or impossible as the Hon’ble Supreme
Court in ‘Chandrappa V. State of Karnataka’, reported
as (2007) 4 SCC 415 , ‘Murlidhar @ Gidda V. State of
Karnataka’, reported as (2014) 5 SCC 730 and ‘Sampat
Babso Kale v. State of Maharahstra’ reported as (2019)
4 SCC 739 held that where two reasonable views are
available, the one favouring the accused must prevail
and the appellate court cannot substitute its own view
because another view is possible. Though the
respondents had been acquitted of the serious offences,
however, the acquittal cannot be overturned in view of
the seriousness of the offences, merely, relying upon the
general allegations that the deceased was killed by
them. Gravity of the offences cannot substitute poof of

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identity and participation of the accused, as suspicion,
however, grave cannot take place of legal proof.

31. The Trial Court vide impugned judgment had recorded
acquittal of the respondents by a reasoned judgment,
which in our considered opinion, does not call for any
interference by this court, while exercising appellate
jurisdiction. The prosecution case based on shaky
evidence suffering from inherent infirmities, material
contradictions and failing to establish the guilt of the
accused beyond reasonable doubt, the Trial Court has
rightly concluded the case into an acquittal.
32. Viewed thus, the appeal, in hand, is found to be bereft
of any merit and substance, and is hereby dismissed .
33. Trial Court record be sent down forthwith, along with
copy of this judgment, for information and record.
34. CRAA No. 53/2011 is, accordingly, disposed of.


(M.A.CHOWDHARY) (SANJEEV KUMAR)
JUDGE JUDGE



Jammu
29.10.2026
Raj kumar

Whether the order is reportable: Yes
Raj Kumar
2026.10.29 16:23
I attest to the accuracy and
integrity of this document