“There is a serious infirmity to be taken into consideration, as in such a situation, the offences of which the accused were alleged to have committed cannot be said to have been proved”, court ruled
Srinagar: ‘Guilt not proven’, Court acquits a man from militancy and arms carrying charges after 18 years.
Gowhar Ali Ganai, resident of Pulwama was arrested on 30 May,2008 in Dalgate, Srinagar for allegedly carrying a Chinese pistol, four round of cartridges and was alleged to be associated with Lashkar Taiba militant outfit.
He was booked under FIR 139/2008 by police station Ram Munshi Bagh for offences under section 7/25 Arms Act.
7/25 Arms Act essentially indicates a case involving the illegal possession or handling of prohibited firearms and ammunition under the provisions of the Arms Act,1959.If proven, the accused can be jailed for up to fourteen years with fine.
Advocate Mir Urfi representing the accused stated before court that the prosecution has miserably failed to prove guilt of the accused beyond reasonable doubt.
She said that the alleged weapon of offence recovered from the accused was never shown to the witnesses during the trial of the challan. It is pertinent to mention that prosecution had examined five witnesses out of the eight in the case.
She pointed that the Investigating officer failed to prove that the alleged recovered Chinese Pistol and cartridges were sent to the Forensic lab in the absence of which she said it cannot be ascertained whether the alleged recovered pistol is a firearm and the alleged cartridges were the ammunition of said pistol.
Advocate Urfi also stated that Investigating officer admitted that the said alleged pistol and bullets were never sealed on spot and are major discrepancies which hit the basics of the challan and raised doubt on the truthfulness and the veracity of the prosecution story.
Third Additional Sessions Judge, Dinesh Gupta while going through the details of the case recorded that the weapon and explosives, claimed to have been recovered from the accused were neither marked on spot, nor sealed, not sent to any Ballistic Expert to examine whether weapon was in working condition or the explosives were live while giving reference to High Court Judgement in case titled State of J&K. V/s Bashir Ahmed and Ors.
“This is also a serious infirmity to be taken into consideration, as in such a situation, the offences of which the accused were alleged to have committed cannot be said to have been proved,” court recorded from the judgement.
Justice Gupta also gave references to Supreme court directives in case titled Jasbir Singh Vs. State of Punjab AIR 1998 SC 1660 where it was held that “The pistol and the cartridges did not have any mark or any number on them and after seizing the same police had not thought it fit to wrap them and apply a seal over them.”
Court said in the instant case prosecution failed to associate any independent witness with the search of the accused despite the fact that the place of occurrence Tanga Adda, Dalgate was a busy chowk situated in the heart of the city.
“It is also not the prosecution case that no person was willing to join as the witness to the search of the accused,” court noted.
Justice Gupta said, “In absence of these factors, it cannot be said that weapons/explosives were seized and recovered.”
“Hence, in the light of aforesaid discussion, this Court is of the opinion that prosecution fails to prove the guilt of accused beyond reasonable doubt. Accordingly challan is dismissed and accused is acquitted from instant challan,” court said and directed.
Court also directed that the seized material Chinese Pistol CAL-30 Made In China, Magzine Pistol Chinese 1 No.; Round Pistol 4 be send to District Armory, Srinagar.
“Surety of accused shall be discharged from his responsibility after the expiry of Appellate period”, court said.
Discover more from Bench&Law
Subscribe to get the latest posts sent to your email.
