POK an integral part of India; Foreigners Act can’t be invoked without proof: J&K court

A Court of Judicial Magistrate on Thursday observed that Pakistan-occupied Kashmir (POK) is an integral part of India and that the provisions of the Foreigners Act cannot be invoked in the absence of cogent and reliable documentary evidence establishing foreign nationality or illegal entry of persons [State/UT of J&K V/s Mohammad Maqbool Rather and Ors.].

Judicial Magistrate 1st Class at Chadoora, Syed Tayoub Bukhari, observed that POK is not a part of Pakistan but remains an integral part of India, though under illegal occupation by another country, and therefore the Foreigners Act could not be invoked against the accused persons on the facts of the case.

"The prosecution has failed to produce any documentary evidence such as travel records, border crossing details, recovery memos, intelligence inputs, or any material to establish illegal entry, arms training, or violation of the Foreigners Act. 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," the Court observed.

The case arose out of allegations that accused Mohammad Maqbool Rather had crossed over to POK two decades ago, received arms training, contracted marriage there, and later returned to Jammu and Kashmir along with his wife Parveena Akhtar and children without valid documents.

On the basis of information allegedly received by police in August 2012, a case was registered under Sections 2/3 of the Enemy Agents Ordinance/E&IMCO and Section 14 of the Foreigners Act.

After completion of investigation, a charge sheet was filed in 2018, and charges were framed the same year. However, the accused pleaded not guilty and claimed trial.

During the course of trial, the prosecution cited eight witnesses. However, despite several opportunities, only two witnesses were examined. Crucially, the investigating officer was never produced before the court. Consequently, prosecution evidence was closed in June 2025.

One of the prosecution witnesses admitted during cross-examination that he had no personal knowledge of the accused having gone to Pakistan, while another witness resiled from his earlier statement and stated that the allegations against the accused were false and baseless.

The Court found the testimonies against the accused to be either hearsay or unreliable.

After completion of trial proceedings spanning over a decade, the Court observed that the prosecution’s case rested largely on hearsay and unsubstantiated allegations.

Out of eight witnesses cited by the prosecution, only two were examined, while crucial witnesses—including the investigating officer—were never produced before the court, the judge noted.

The Court also observed that the prosecution failed to produce any documentary evidence such as travel records, border-crossing details, recovery memos, intelligence inputs, or any other material to establish illegal entry, arms training or violation of the Foreigners Act.

The Court stressed upon settled principles of criminal jurisprudence and observed that suspicion, however grave, cannot substitute proof beyond reasonable doubt. The non-examination of the investigating officer, the absence of material evidence, and the failure to establish the essential ingredients of the offences alleged were held to be fatal to the prosecution case.

Accordingly, both the accused persons were acquitted of all charges, their bail bonds discharged, and directions were issued for release of any seized property.

[Read Judgment]