'POK integral to India, Foreigners Act inapplicable': J&K court acquits couple in enemy agent case

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• J&K court rules POK is integral to India, not subject to Foreigners Act
• Mohammad Maqbool Rather and wife acquitted due to lack of evidence
• Court cites prosecution's failure to prove illegal entry or arms training

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In a notable ruling touching upon the constitutional position of Pakistan-occupied Kashmir (POK), a court in Jammu and Kashmir has held that POK forms an integral part of India though it remains under illegal occupation, and therefore individuals allegedly arriving from that region cannot be prosecuted under the Foreigners Act.

On this basis, and citing serious shortcomings in the prosecution case, a Judicial Magistrate 1st Class (JMIC) court at Chadoora acquitted Mohammad Maqbool Rather and his wife Parveena Akhtar, who had been booked under the Enemy Agents Ordinance (E&IMCO) and Section 14 of the Foreigners Act.

The order was delivered on Thursday by Judicial Magistrate 1st Class Syed Tayoub Bukhari in a case arising out of an FIR registered at Police Station CIK, Srinagar. While recording the acquittal, the court observed, "… 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".

The court further made a categorical observation on the legal status of the territory in question: "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".

Case background and allegations

The criminal proceedings stemmed from allegations that Mohammad Maqbool Rather, a resident of Budgam, had crossed over to Pakistan-occupied Kashmir roughly two decades ago, where he allegedly underwent arms training. According to the prosecution, he later returned to India along with his wife Parveena Akhtar, stated to be a resident of Mirpur in POK, without possessing valid travel documents.

Based on information purportedly received from reliable sources, police registered an FIR under Sections 2/3 of the Enemy Agents Ordinance/E&IMCO and Section 14 of the Foreigners Act. After completing investigation, a charge sheet was filed before the court on May 14, 2018. Charges were framed on June 28, 2018, to which both accused pleaded not guilty and sought trial.

The prosecution maintained that the accused had illegally crossed into POK, remained there for several years, solemnised marriage, and subsequently re-entered India without lawful permission. It was further alleged that their conduct was prejudicial to the security of the State, including claims of arms training received by Mohammad Maqbool Rather.

Evidence, witnesses, and reasons for acquittal

While assessing the evidence, the court took serious note of the fact that although eight witnesses were cited by the prosecution, only two were examined. Crucially, the Investigating Officer never appeared before the court despite multiple opportunities. The magistrate remarked that this lapse "creates a serious dent in the prosecution version".

The testimony of PW-03, a police official, was found to be of little evidentiary value. The witness admitted that he had no personal knowledge of the accused having gone to Pakistan, making his statement purely hearsay. During cross-examination, PW-03 stated that "accused No. 02 [Parveena Akhtar] belongs to Azad Kashmir, which is a part of Pakistan", a contention the court did not accept in view of its own finding on the status of POK.

Another key witness, PW-06, a village Numberdar, failed to support the prosecution case and even stated that the allegations against the accused were false and baseless. He also acknowledged that the statement attributed to him under Section 161 CrPC was incorrect.

The court reiterated that suspicion alone cannot substitute proof and found that the prosecution had not produced "any documentary evidence such as travel records, border crossing details, recovery memos, [or] intelligence inputs" to substantiate claims of illegal entry or arms training.

On an overall evaluation, the magistrate concluded that the evidence was insufficient, unreliable, and fell short of establishing guilt beyond reasonable doubt. Consequently, both accused were acquitted, their bail bonds were ordered to be discharged, and directions were issued for release of any seized property after the expiry of the appeal period.