•The accused is said to have tried to frame and portray his sister and brother-in-law as terror suspects so that he can take over the property worth more than Sh100 million
•DPP surprised that the same court had on February 5, this year, ruled that the businessman had a case to answer
The DPP has appealed against the acquittal of a businessman charged with being in possession of ammunition and giving false information to senior police officers.
Mombasa principal magistrate Charles Ndegwa on Wednesday ruled that the prosecution failed to prove the charges against Noor Mohammed Jan Ashraf.
Ashraf is entangled in a bitter property suit with his elder sister, Zahara Jan Pote. He had been accused of trying to frame and portray her as a terror suspect so that he can take over the property worth more than Sh100 million.
Ashraf claims the wealth is matrimonial property but his sister insists she invested in the assets among them residential and commercial buildings in Mombasa.
In the notice of appeal, prosecution counsel Peris Maina said the DPP was dissatisfied with the acquittal of Ashraf on both charges. The same court had on February 5, this year, ruled that he had a case to answer and put him on his defence on April 1.
He was charged with being in illegal possession of 507 bullets and giving false information to the police.
The police had told the court that Ashraf attempted to frame his sister, Zahara and her husband, Mark Pote, as terror suspects by claiming that the ammunition belonged to them.
In his ruling, Ndegwa said investigators were reluctant to have the accused record a statement although he had reported to CID officers the presence of a green box containing bullets in his sister’s house.
The police also failed to produce an occurrence book. “How did the police know that the accused person was giving false information, and why were the two officers reluctant to appear in court, if they were acting in a responsible manner?” he asked.
Maina said that during a search on January 5, 2016, no recovery of any box or ammunition at the Potes' house was recovered.
“The accused knowingly gave false information. It was clear that he was holding a grudge which arose not only after he was fired as a contractor during the construction of the apartment building. The grudge was also due to a property dispute in which the accused wanted to claim Zahara’s property and inheritance from their late mother,” Maina has told the court last Tuesday.
She said Ashraf had on January 2, 2016, reported that his in-law, Mark Pote, had given him a jungle green box containing ammunition for safe keeping and that he had three similar boxes in his house.
“This criminal case coupled with other pending civil cases involving the accused and his sister has not only injured family relations between the two of them, but has infiltrated into the larger family as was indicative of even the daughter of the accused - a child of 15 years - lying in court about her age during her testimony. She was proved to be an unreliable witness,” Maina said.
She pointed out the inconsistencies of their (father and daughter) on the date when the metallic box with ammunition was allegedly brought to them.
“His (Ashraf’s) vindictiveness is further illustrated by his giving of false information to the investigating authority during his initial reporting and even during the recording of his statement at the station and it, therefore, raises concern as to what length he would go to get back at his sister for his own personal gains,” the counsel said.
She said a search certificate produced as an exhibit and witnessed by Chief Inspector Francis Kipsang and constables Nathan Kipyatich and Dennis Gitonga, indicated that Ashraf had signed the document, meaning he confirmed being in possession of the ammunition.
Ashraf's lawyer, Gikandi Ngibuini, argued that easy accessibility to the house by other people was strong circumstantial evidence that destroyed the inference of guilt.
“The evidence on record has nothing to connect the accused with possession of the contraband except mere suspicion. In law, he who alleges must prove. The prosecution alleged that the accused is the owner of the 507 blank cartridges which amounts to an offence, as he has no licence to hold the same,” Gikandi added.
The magistrate concurred that although the bullets were recovered in Ashraf’s house, other people had access to the house.