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2006 Supreme(J&K) 76
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
Mansoor Ahmad Mir, J.
Maqbool Hussain & Ors. - Appellant
Versus
State Of J&K & Ors. - Respondent
Review Petition No. 15/2003
Decided On : 05 April, 2006
Advocate For Appellant: G.A. Lone
Advocate For Respondent: M.A. Rathore
The prosecution must prove the elements of a criminal conspiracy and the accused's status as enemy agents beyond reasonable doubt. The recovery of arms and ammunition must be proven with corroborative evidence.
Headnote:
Enemy Agents Ordinance - Conviction under Section 3 EAO and 7/25 Arms Act - [SUMMARY]
Fact of the Case:
The petitioners were convicted for offenses under Section 3 EAO and 7/25 Arms Act based on allegations of crossing the border illegally, obtaining training from ISI, and possessing arms and ammunition to escalate militant activities. The prosecution presented evidence of the accused's arrest, recovery of arms, and surrender after an encounter.
Finding of the Court:
The court found that the prosecution failed to prove the accused's involvement in a criminal conspiracy or their status as enemy agents. The court acquitted the accused of the offense under Section 3 EAO but maintained the conviction under Section 7/25 Arms Act.
Issues: The key issues were the establishment of a criminal conspiracy, the accused's status as enemy agents, and the possession of prohibited arms and ammunition.
Ratio Decidendi: The court held that the prosecution failed to prove the foundation of the case, including the criminal conspiracy and the accused's status as enemy agents. The court also found that the recovery of arms and ammunition was proven beyond reasonable doubt.
Final Decision: The review petition was partly allowed and partly rejected. The conviction under Section 3 EAO was set aside, leading to the acquittal of the petitioners. The conviction under Section 7/25 Arms Act was maintained, with the period of custody treated as a set-off.
FACTS
2. On 28th September, 1995, in the morning police station, Mendhar, had received information from reliable sources that one Mohammad Maqbool, along with other 12 trained militants equipped with arms, ammunitions, grenades, detonators and fuses etc., had crossed the actual line of control at the instance of secret agency of Pakistan, namely, ISI, in pursuance of the well organized criminal conspiracy, which set the police in motion FIR No.164 of 1995 came to be registered and challan came to be presented against the accused.
The allegations as put-forth by prosecution against all the accused are as under:-
3. That during the intervening night 27/28 September, 1995, a joint search operation carried out by the army and civil police in village Mendhar and accused, namely, Maqbool Hussain, Ghulam Mohammad Wani, Irshad Ahmad, Mohammad Shafi, Mohammad Hussain, Mohammad Yousuf, Kaka, Mohammad Latief, Mohammad Aslam, Barkat Hussain, Mohammad Shafi, Ghulam Hussan Wani, Nissar Hussain and Lal Hussain were apprehended and arms, ammunition and explosives were recovered from their possession details of which are given in the seizure memos.
4. Accused had brought the arms, ammunitions, explosives from Paskistan after crossing border and obtaining training from ISI, in order to escalate the militant activities in the valley in conspiracy with each other, how to use the arms and ammunition for sabotage and subversive activities to endanger life, property and security of the State to stall the political process and destabilize the Government.
5. All the accused were charged sheeted for the commission of offence punishable under Section 3 E.A.O, 120-B RPC, 7/25 Arms Act and 2/3 E&IMCO who pleaded not guilty and claimed to be tried.
6. Prosecution examined, Nasir-ul-Hussain Constable, Baldev Singh Dy. Commandant CRPF, Som Raj Head Constable, Mehar Chand, Karnail Singh Superintendent of Police, Major John Cyricoe, Dharamvir Singh, Dr. Mukarib Hussain, Krishan Chand and Talib Hussain Inspector Vigilance.
It is profitable to give brief resume of the prosecution evidence herein.
7. PW Nasir-ul-Hussain, stated that on 28th September, 1995, an information was received by police about the hiding of Maqbool Hussain along with other militants with arms and ammunition within the limits of police station, Mendhar, during the intervening night of 27/28 September, 1995. Sub-Divisional Police Officer (SDPO), Station House Officer, Mendhar, police personnels and CRPF forces held "Nakah" at Nallah Darkas. One party headed by S.I. Talib Hussain was at upper side of Dak Banglow Mendhar, and second party headed by SDPO was at upper side of post office. He (witness) along with SHO, Balwant Singh Dy. Superintendent of Police CRPF with other CRPF personnels were at Darkas Nallah. Suddenly firing started from the side of Government Middle School Gulad and SDPO informed SHO through wireless a
