NISAR AHMED Vs. STATE OF J&K

JUDGEMENT

(1.) This Criminal Appeal is preferred by the appellant-Nisar Ahmed, who has been convicted/sentenced by the learned Sessions Judge, Jammu, vide impugned judgment of conviction/order of sentence dated 18.10.2007/24.10.2007 respectively whereby he has been convicted and sentenced to undergo imprisonment for a term of 7 years and to pay fine of Rs.5000/- in proof of offence under section 7 / 25 Arms Act and for a term of 5 years and fine of Rs.5000/- in proof of offence under section 5 Explosive Substances Act. In default of payment of fine he has to undergo further imprisonment for a period of 3 months each. Both the sentences were ordered to run concurrently.

(2.) Learned counsel for the appellant has challenged the impugned judgment of conviction/order of sentence stating that the same is against law and facts of the case. The prosecution in order to prove its case had produced as many as 12 witnesses but none has stated with regard to contentions as projected in the Police Challan that the appellant gave protection to the Pakistani militants. The evidence produced by the prosecution although tried to connect the appellant with the bag alleged to have been recovered from the Baandi (cattle shed) of the appellant, but it is proved in the search and seizure made by them was against the mandatory provisions of law and the same was seized in the presence of the police witnesses only when admittedly the civilians were available, which were not called by the investigating officer that he also admitted in his cross-examination. The prosecution has failed to prove that the alleged Baandi belonged to the appellant. The independent prosecution witnesses produced by the prosecution have specifically stated in their statements that there exists no baandi of the appellant but the trial Judge has not said anything with regard to it. That the prosecution has miserably failed to prove that the alleged seized ammunition although recovery is denied, was in live condition as the same was not sent to the expert for its opinion and there is no evidence as to whether the ammunition so seized can be used or that was explosive. That the seizure made by the prosecution at the spot was against the mandatory provisions with regard to seizure and was ever produced for its seal before any judicial Magistrate or Gazetted Officer. The prosecution has stated that the bag was seized and was brought at JIC Center at Jammu but it has miserably failed to show that the said seized ammunition was ever defused and if defused, where it was done. That even the prosecution has failed to prove that the bag so seized was in actual possession of the appellant as the prosecution has not identified the spot from any Patwari or any revenue authority with regard to actual physical possession of the alleged Baandi. Reliance on the statement of Waqar Shah cannot be read against the appellant. That even otherwise the sanction obtained by the prosecution for production of challan was defective and was cyclostyle copy, which was not proved. The so called sanction letter is not bearing the seal of the sanctioning authority hence it had no evidentiary value. It is further stated that the trial Judge has not appreciated the law properly with regard to alleged recovery made. The trial Judge has also not properly appreciated the evidence in right perspective while passing the impugned judgment/order of sentence. It is also contended by learned counsel for the appellant, that the appellant was arrested on 01.04.1996 and the police challan was produced before the Court on 07.03.2000, hence by compounding the period the appellant remained in custody the conviction period is covered so he was released from the jail by Jail Authority on 24.10.2007. The foremost argument of counsel for appellant is that there was no expert report of FSL that arms and ammunition recovered were in working condition.

(3.) On the basis of afore mentioned submissions, learned counsel for the appellant has prayed that the instant appeal be allowed and the impugned judgment/order of sentence be set aside. In support of his contention, learned counsel for the appellant has placed reliance on the judgments rendered by Apex Court as well as this Court in cases titled Abdulla Pochamma Vs. State of Andhra Pradesh reported in 1989 (Sup2) SCR 152 (Criminal Appeal No.294 of 1988 D/d. 28.3.1989); Jaspal Singh Vs. State of Punjab reported in AIR 1999 SC 1548; Maqbool Hussain and Ors. Vs. State of J&K and Ors. reported in 2007 (1) JKJ 226; Sat Pal and Ors. Vs. State and Ors. reported in 2009 (2) JKJ 703; and Abdul Rashid Vs. State and Ors. reported in 2011 Cr.LJ (J&K) 1280.