POK An Integral Part Of India; Foreigners Act Not Applicable To Persons Entering From The Region: J&K Court Discharges Couple

The order was passed on Thursday by Judicial Magistrate 1st Class Syed Tayoub Bukhari, concerning an FIR registered at Police Station CIK, Srinagar.

Acquitting the accused, the court remarked,

"… The prosecution has failed to establish the essential ingredients of offences under Sections 2/3 E&IMCO or Section 14 of the Foreigners Act. No overt act, mens rea, or illegal act attributable to the accused persons has been proved on record".

Background of the Case:

The criminal proceedings arose from allegations that Mohammad Maqbool Rather, a resident of Budgam, had crossed over to Pakistan-occupied Kashmir around two decades ago. He allegedly received arms training and later returned to India along with his wife, Parveena Akhtar, a resident of Mirpur, POK, without valid travel documents.

Acting on information received from reliable sources, the police registered an FIR under Sections 2/3 Enemy Agents Ordinance/E&IMCO and Section 14 Foreigners Act. Upon completion of the investigation, a charge sheet was presented before the Court on May 14, 2018. Charges were framed on June 28, 2018, to which both accused pleaded not guilty and claimed trial.

The prosecution had contended that the accused had illegally crossed into POK, stayed there for several years, married, and returned to India without valid documents, thereby committing offences under E&IMCO and the Foreigners Act.

It was asserted that the accused had engaged in activities prejudicial to the security of the State, including alleged training in the use of arms.

Courts Observations:

Adjudicating the matter, the Court noted that although the prosecution had cited eight witnesses, only two witnesses were examined, and notably, the Investigating Officer was never produced, despite several opportunities. This omission, the Court observed, "creates a serious dent in the prosecution version".

The court was also of the view that the testimony of PW-03, a police official, was found to be purely hearsay, as he admitted having no personal knowledge of the accused ever having gone to Pakistan.

Significantly, PW-03 admitted during cross-examination that "accused No. 02 [Parveena Akhtar] belongs to Azad Kashmir, which is a part of Pakistan". However, the Court dismissed this statement.

Similarly, PW-06, a village Numberdar, failed to support the prosecution during cross-examination and went to the extent of stating that the allegations against the accused were false and baseless, admitting that his statement recorded under Section 161 CrPC was not correct.

In an important observation, Judge Bukhari noted,

"Moreover POK is not a part of Pakistan, it is an integral part of India, and has been illegally occupied by the other country. Therefore foreigners act has not been attracted to the accused persons".

The Court also reiterated the settled principle that suspicion, however grave, cannot take the place of proof. It added that the prosecution had failed to produce "any documentary evidence such as travel records, border crossing details, recovery memos, [or] intelligence inputs" to establish illegal entry or arms training.

Thus, on an overall appreciation of the evidence, the Court concluded that the prosecution had miserably failed to prove its case beyond a reasonable doubt and that the evidence on record was insufficient and unreliable.

Accordingly, both accused were acquitted, and the Court ordered the discharge of the bail bonds and the release of any seized property upon expiry of the appeal period.

Case Title: State Of J&K Vs Mohammad Maqbool Rather

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