10 'enemy agents' found not guilty after 10 year detention

Greater Kashmir

Srinagar, Apr 6: Ending ordeal of 10 detainees who were arrested a decade ago and booked under Arms Act and Enemy Agents Ordinance, the review judge in the Ordinance has set aside order of the designated Judge and acquitted the accused from the charges of Enemy Agents Act.
However, the Court has upheld their conviction under Arms Act for which they have already undergone 10 years of imprisonment.
Case history:
On September 28, 1995 police in Mendhar (Poonch) said it arrested 12 persons who were “crossing over Line of Actual Control.”
Police said the accused persons were in a maize field, and when challenged some of them opened fire. On retaliation, one person was injured. However later they surrendered, the police had claimed.
The police had booked them under section 120-B of RPC, 2/3 Egress and Internal Movement (control) ordinance, 2005 (1948) AD, 7/25Arms Act, section 3 of Enemy Agents Ordinance, 2005, 1948 A.D.
The designated judge of Enemy Agents Ordinance Subash Gupta convicted them for commission of offences punishable under section 3 of Enemy Agents Ordinance (3 EAO) and 7/25 Arms Act.
However the trial court acquitted the accused of offences under section 2/3 Egress and Internal Movement (Control) ordinance.
There is no provision of appeal of trial court of Enemy Agents Ordinance.
But the Act says for trial of offences punishable under section 3, the government in consultation with the High Court may appoint a special judge having jurisdiction through out the state or any person qualified to be appointed as judge of High Court or who has exercised the powers of a sessions judge under the code of criminal procedure samvat 1989 or who have for period of not less than 10 years practiced at the bar.
The government issued SRO 131 appointing Chief Justice of the State as review Judge. However, the Chief Justice took strong exception to the wording used by the Government in the SRO and turned down it saying, “the SRO was issued without his consultation.”
The SRO 131 reads: “under section 9, of Enemy Agents Ordinance the government here by direct that the chief justice of the High Court be the person chosen as review judge.”
Humbled by the refusal, government realized its mistake and later appointed Justice Mansoor Ahmad Mir as review judge after completing necessary formalities.
Aggrieved by the trial court judgement, the petitioners filed a review petition 15/2003 titled Maqbool Hussain and others versus State, with the review judge. Senior counsel GA Lone pleaded the case of petitioners.
After hearing the counsel of respondent state and GA Lone, Justice Mansoor Ahmad Mir held, “Crossing of LoC from this side to Pakistan and from Pakistan to this side illegally is an offence punishable under section 2/3 of E and IMCO. All the accused stand acquitted for the commission of the offence punishable under 2/3 E &IMCO. Then what is the proof on the file to support of allegation put forth in the charge sheet that accused are enemy agents.
“There is not an iota of the evidence to speak of proof suggesting the accused were enemy agents and were acting on the instruction of the enemy or were working or acted on the instruction received from ISI.”
However, the Court observed: “I am of the considered view that the prohibited arms and ammunition were recovered from the possession of the accused and trial court rightly convicted and sentenced the accused for the commission of offence punishable under section 7/25 Arms Act.
“In view of the above discussion this review petition merits partly allowed and partly rejected. Viewed thus the order of conviction and sentence passed under section 3 EAO is set aside and petitioners are acquitted.
“The order of conviction and sentence passed against petitioners/accused for the commission of offence under section 7/25 Arms Act is maintained,” the court observed.
“The petitioners accused are in custody right from their arrest till date. The period undergone by them during trial, pendency of review petition is treated as in terms of provisions of 397 code of criminal procedure,” it said.