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In fact, this is a unique case where there is one most aggravating circumstance that it was a direct attack on the unity, integrity and sovereignty of India by foreigners. Thus, it was an attack on Mother India. This is apart from the fact that as many as three persons had lost their lives. The conspirators 15 had no place in India. Appellant was a foreign national and had entered India without any authorization or even justification. This is apart from the fact that the appellant built up a conspiracy by practicing deceit and committing various other offences in furtherance of the conspiracy to wage war against India as also to commit murders by launching an unprovoked attack on the soldiers of Indian Army. We, therefore, have no doubts that death sentence was the only sentence in the peculiar circumstance of this case. We, therefore, confirm the judgment of the trial Court and the High Court convicting the accused and awarding death sentence for the offences under Section 302, IPC. We also confirm all the other sentences on all other counts and dismiss these appeals.

Red Fort

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                                              1

                     IN THE SUPREME COURT OF INDIA

                   CRIMINAL APPELLATE JURISDICTION

                  CRIMINAL APPEAL NOS. 98-99 OF 2009

Mohd. Arif @ Ashfaq                                             ... Appellant

                                          Versus

State of NCT of Delhi                                       ... Respondent

                                    J U D G M E N T

V.S. SIRPURKAR, J.

1.      The   appellant   (admittedly   a   Pakistani   national)   challenges   his 

concurrent   conviction   by   the   trial   Court   and   the   High   Court   as   also   the 

death sentence awarded to him, in this appeal.  

2.      On 22.12.2000 at about 9 p.m. in the evening some intruders started 

indiscriminate firing and gunned down three army Jawans belonging to 7th 

Rajputana Rifles.   This battalion was placed in Red Fort for its protection 

considering the importance of Red Fort in the history of India.  There was a 

Quick Reaction Team of this battalion which returned the firing towards the 

intruders.   However,   no   intruder   was   killed   and   the   intruders   were 

successful in escaping by scaling over the rear side boundary wall of the 

Red   Fort.     This   attack   rocked   the   whole   nation   generally   and   the   city  of 

                                                2

Delhi in particular as Red Fort is very significant in the history which was 

taken   over  by British Army  way   back  in  1857  and  was  retrieved   back  to 

India   on   15.8.1947.     It   is   also   significant   to   note   that   the   Prime   Minister 

addresses the nation from this very Red Fort on every 15th of August.

        The   three   unfortunate   soldiers   who   lost   their   lives   in   this   attack 

were:- 

        (i)      A civilian Sentry namely, Abdullah Thakur

        (ii) Rifleman (Barber) Uma Shankar

        (iii)    Naik Ashok Kumar, who was injured and then succumbed to 

                 his injuries later on.

3.      The   Red   Fort   comes   within   the   local   jurisdiction   of   Police Station 

Kotwali.    The  Information  was  recorded by DD  No.19A,  Exhibit  PW-15/B 

and   Sub-Inspector   (S.I.)   Rajinder   Singh   (PW-137)   rushed   to   the   spot. 

SHO   Roop   Lal   (PW-234)   who   was   the   Station   House   Officer   of   Kotwali 

police   station   also   reached   the   spot   and   recorded   the   statement   of   one 

Capt.   S.P.   Patwardhan   (PW-189)   which   was   treated   as   the   First Information Report.  This First Information Report refers to two persons in 

dark clothing and armed with AK 56/47 rifles having entered the Red Fort 

from the direction of Saleem Garh Gate/Yamuna Bridge.  It is further stated 

that   first   they   fired   at   the   civilian   Sentry   Abdullah   Thakur,   secondly   they 

came   across   rifleman   (barber)   Uma   Shankar   near   Rajputana   Rifles   MT 

                                                3

lines   and   fired   at   him   due   to   which   he   died   on   the   spot.     It   is   further 

mentioned that lastly the intruders ran into the room in the unit lines close 

to   the   office   complex   and   fired   shots   at   Naik   Ashok   Kumar   who   was 

seriously   injured.     The   FIR   further   mentions   that   thereafter   they   ran 

towards   ASI   Museum   complex   and   fired   in   the   direction   of   police   guard 

room located inside the Museum.   At this stage, the quick reaction team 

started firing at them.  However, they escaped into the wooded area close 

to   the   ring   road.     The   FIR   also   mentions   that   some   fired/unfired 

ammunition was recovered from the spot.

4.      The   investigation   started   on   this   basis.     During   the   examination   of 

the   spot,   one   live   cartridge   Exhibit   PW-115/38   and   number   of   cartridge 

cases   (Exhibit   PW-115/1-37)   and   (Exhibit   PW-189/32-71),   three 

magazines (Exhibit PW-189/1-3) of assault rifles, one of which had 28 live 

cartridges (Exhibit PW-189/4-31) were found and handed over to the police 

vide memo Exhibit PW-189/C and Exhibit PW-115/A.   The empties of the 

cartridges fired by the Quick Reaction Team through the self loading rifles 

were   deposited   with   ammunition   store   of   7   Rajputana   rifles   and   were 

handed over to the police later on vide memo Exhibit PW-131/C.

5.      On   the   next   day,   i.e.   on   23.12.2000,   in   the   morning   at  about  8.10 

a.m.,  the BBC news channel flashed the  news  that Lashkar-e-Toiba  had 

claimed the responsibility for the shooting incident in question which was 

                                             4

entered   in  the  daily diary.   On  the   same  morning  one   AK56   assault  rifle 

(Exhibit PW-62/1) lying near Vijay Ghat on the back side of Lal Qila was 

found  abandoned.    There  were  seven  cartridges  in the  magazine.    They 

were   taken   into   police   possession   vide   memo   Exhibit   PW-62/F.     On   the 

same morning in early hours extensive search went on of the back side of 

the Red Fort.  The police found a polythene bag containing some currency 

notes of different denominations and a piece of paper, a chit (Exhibit PW-

183/B) on which a mobile No.9811278510 was  mentioned.   According to 

the prosecution, the intruders had escaped from that very spot by scaling 

down the rear side boundary wall of Red Fort using the pipe and further a 

small   platform   for   landing   from   below   the   pipe.     According   to   the 

prosecution, while jumping from the platform, the said polythene bag with 

cash and the paper slip fell out of the pocket of one of the intruders.  The 

currency   notes   and   the   paper   slip   were   seized   vide   memo   Exhibit   PW-

183/A.  It was on the basis of this cell phone number that the investigation 

agency   started   tracing   the   calls   and   collecting   the   details   from   which   it 

transpired   that   between   7:40   p.m.   and   7:42   p.m.   on   the   night   of   the 

incident,   two   calls   were   made   from   this   mobile   number   to   telephone 

No.0194452918  which  was  the number of one BBC correspondent in Sri 

Nagar,   Altaf   Hussain   (PW-39).   It   was   also   found   that   three   calls   were 

made from same mobile number to telephone number 0113355751 which 

number was found to be that of BBC correspondent in Delhi, Ayanjit Singh 

                                             5

(PW-41) between 9:25 p.m. and 9:33 p.m.   The police found out that this 

mobile No.9811278510 was being used from two instruments whose IMEI number   (identification   number   engraved   on   the   mobile   handset   by   the 

manufacturer) were obtained from mobile service provider ESSAR.  These 

numbers   were   445199440940240   and   449173405451240.     The   police 

could also find out that the person who had mobile connection card having 

No.9811278510   had   another   mobile   cash   card   of   ESSAR   company   with 

No.9811242154 and from this number large number of calls were found to 

have   been   made   to   telephone   No.2720223   which   was   found   to   be   the 

number of telephone installed at flat No.308A, DDA flats, Ghazipur, Delhi. 

This   flat   was   registered   in   the   name   of   one   Farzana   Farukhi.     Similarly, 

number   of   calls   were   found   to   have   been   made   from   telephone 

No.2720223 to 9811242154.   It was also found that number of calls were 

made   from   cell   No.   9811242154   to   telephone   No.6315904   which   was   a 

landline number installed at House No.18-C, Gaffur Nagar, Okhala where 

a computer centre in the name of `Knowledge  Plus' was  being run.   The 

further investigation revealed that this said computer centre was being run 

by one Mohd. Arif @ Ashfaq (appellant herein) who was residing at the flat 

mentioned   as   flat   No.308A,   DDA   Flats,   Ghazipur   where   landline 

No.2720223  was  installed.    The police, therefore, could connect the said 

flat No.308A at Ghazipur and the computer Centre i.e. Knowledge Plus at 

Okhala   and   could   also   connect   Mohd.   Arif   @   Ashfaq   with   these   two 

                                            6

places.  A surveillance was kept on these places for two days.  During this 

period of surveillance, the computer centre had remained closed.   On the 

basis   of   some   secret   information   the   premises   at   308A,   Ghazipur   were 

raided on the night of 25-26.12.2000 and the appellant-accused Mohd. Arif 

@ Ashfaq was apprehended by the police while he was entering the flat.  It 

was   found   during   the   investigation   that   Farzana   Farukhi   in   whose   name 

telephone   No.   2720223   was   registered   was   a   divorcee   sister-in-law   of 

Mohd. Arif @ Ashfaq i.e. her sister was  married to Mohd. Arif @ Ashfaq 

whose  name was  Rehmana Yusuf Farukhi.   Mother of these  two  sisters, 

namely, Ms. Qamar Farukhi (DW-1), was also a resident of the same flat.

6.     On his apprehension, Mohd. Arif @ Ashfaq (appellant) was cursorily 

searched   by   Inspector   Ved   Prakash   (PW-173)   during   which   one   pistol 

(Exhibit   PW-148/1)   with   six   live   rounds   was   found   with   him.     They   were 

sealed and taken into police custody.   The appellant on his apprehension 

accepted   his   involvement   in   the   incident   inside   the   Lal   Qila   and   gave 

further   information  to   the   policemen  about   the   presence   of  his   associate 

Abu Shamal @ Faizal as also the ammunitions at their hide out at House 

No.G-73 Batla House, Murari Road, Okhala, New Delhi.  

7.     He was immediately taken to that house by the raiding team which 

was   headed   by   Inspector   Mahesh   Chandra   Sharma   (PW-229)   and   truly 

enough, in pursuance of the information given by him, the associate Abu 

                                           7

Shamal was found to be there.  The police party did not approach the flat 

immediately as the house was found to be locked.  However, at about 5.15 

a.m. in the morning one person had gone inside the house and closed the 

door from inside.  The police then asked him to open the door but instead 

of opening the door, he started firing from inside at the police party.   The 

police party returned the firing with their fire arms and ultimately the person 

who was firing from inside died and was identified by appellant Mohd. Arif 

@ Ashfaq to be Abu Shamal @ Faisal.  Substantial quantity of ammunition 

and arms was recovered from that flat being one AK-56 rifle (Exhibit PW-

229/1),   two   hand   grenades   one   of   which   was   kept   in   Bandolier   (Exhibit 

PW-229/5), two magazines (Exhibit PW-229/2-3) one of which had 30 live 

cartridges.  Some material for cleaning arms kept in a pouch (Exhibit PW-

229/6) and Khakhi Colour Uniform (Exhibit PW-229/8) were recovered and 

seized   by   the   police   vide   seizure   Memo   (Exhibit   PW-229/D   &   E).     A 

separate   case  was   registered   under  Sections  186,   353  and   307,   IPC   as 

also Sections 4 & 5 of the Explosive Substance Act and Sections 25, 27 of 

the Arms Act was registered at New Friends Colony in FIR No.630/2000. 

That   case   ended   up   in   preparation   of   a   closure   report   because   the 

accused had already died in the encounter with the police.  After the above 

encounter,  the accused appellant was  brought back to his flat where  the 

search had already been conducted by policemen.  During that search one 

Ration card which  was  ultimately found to be forged (Exhibit PW-164/A), 

                                             8

one driving license in the name of Mohd. Arif @ Ashfaq (Exhibit PW-13/1), 

one   cheque   book   of   HDFC   bank   in   the   name   of   Mohd.   Arif   @   Ashfaq 

(appellant herein), one ATM card, one cheque book of the State Bank of 

India   in  the  name  of  Rehmana  Yusuf  Farukhi,   wife  of  accused  appellant 

was found.  The said rifle was also taken into custody.  One pay-in slip of 

Standard   Chartered   bank   (Exhibit   PW-173/K)   showing   deposit   of   Rs.5 

lakhs   in   the   account   of   M/s.   Nazir   &   Sons   was   found.     The   said   firm 

belonged   to   other   accused   Nazir   Ahmad   Qasid.     This   amount   was 

deposited  by the appellant may be through  Hawala  from the high ups of 

the   Lashkar-e-Toiba.     Mohd.   Arif   @   Ashfaq   (appellant   herein)   was   then 

brought back and there S.I. Harender Singh (PW-194) arrested Mohd. Arif 

@ Ashfaq (appellant herein).   He searched him again when one Motorola 

mobile handset was  recovered from his possession.   The number of that 

instrument was found to be 9811278510.  Its IMEI number which fixed the 

identification   number   of   the   hand   set   engraved   on   the   instrument   was 

445199440940240.  The cell phone was thereafter taken in possession.

8.     In his interrogation by S.I. Harender Singh (PW-194), accused made 

a   discovery   statement   which   is   recorded   as   Exhibit   148/E   about   one 

assault rifle which was  thrown near Vijay Ghat behind the Red Fort after 

the incident by one of the associates (this was  already recovered by the 

police) and one AK-56 rifle and some ammunition behind the rear wall of 

                                           9

Red Fort by his another associate.   In pursuance of that, he was taken to 

the backside of Red Fort and from there on his pointing out one AK-56 rifle 

(Exhibit   PW-125/1),   two   magazines   (Exhibit   PW-125/2-3)   having   live 

cartridges,   one  bandolier   and   four  hand  grenades   were  recovered  in  the 

presence of the ballistic experts S.K. Chadha (PW-125) and N.B. Bardhan 

(PW-202).  The same was taken to the police station. The ballistic experts 

after   defusing   the   hand   grenades   took   the   whole   material   in   their 

possession vide Exhibit memo PW- 218/C.   Another discovery statement 

(Exhibit   PW-168/A)   was   made   on   01.01.2001   through   which   he   got 

recovered   three  hand  grenades   from  the   place  near  Jamia  Millia  Islamia 

University duly hidden.   This spot  was   on the  back  side  of his computer 

centre   `Knowledge   Plus'.     They   were   seized   vide   seizure   memo   Exhibit 

PW-168/B.  A separate FIR was also recorded by FIR No.3/2001.

9.     The prosecution case, as it revealed on the basis of the investigation 

which followed, appears to be that the accused-appellant was a Pakistani 

national   and   eventually   joined   a   terrorist   organization   called   Lashker-e-

Toiba.     The   accused-appellant   took   extensive   training   by   using 

sophisticated  arms  like AK-56 rifles and hand grenades  and  had illegally 

entered   the   Indian   territory   along   with   arms   and   ammunition   in   August, 

1999 and camped himself at Srinagar in the company of other members of 

Lashker-e-Toiba who  were  similarly motivated by that Organization.    The 

                                               10

Organization had also decided to overawe India by their terrorist activities 

in   different   parts   of   India   and   to   fulfill   that   object,   the   accused-appellant 

and   his   fellow   terrorists   had   planned   an   attack   on   Army   stationed   inside 

Red   Fort.     According   to   the   prosecution,   the   money   required   for   this 

operation   was   collected   by   the   accused-appellant   through   hawala 

channels, which was evident from the fact that during the investigation, he 

had led the police to one of the hawala dealers in Ballimaran area in Old 

Delhi.     One   Sher   Zaman   Afghani   and   Saherullah   were   the   said   hawala 

dealers,   but   they   could   not   be   apprehended.     The   police,   however, 

recovered   Rs.2   lakhs   from   the   shop   which   was   left   open.     From   the 

information   given   by   the   accused-appellant,   the   police   ultimately   caught 

hold of 10 more persons, which included his Indian wife Rehmana Yusuf 

Farukhi.     The   other   accused   persons   were   Nazir   Ahmad   Qasid,   his   son 

Farooq Ahmad Qasid, Babbar Mohsin Baghwala, Matloob Alam, Sadakat 

Ali, Shahanshah Alam, Devender Singh, Rajeev Kumar Malhotra and Mool 

Chand Sharma.  Excepting the accused-appellant, nobody is before us, as 

few of them were acquitted by the trial Court and others by the appellate 

Court.  It is significant enough that there is no appeal against the acquittal 

by the High Court.   There were number of other persons according to the 

prosecution   who   were   the   co-conspirator   with   the   accused-appellant. 

However,   they   were   not   brought   to   book   by   the   police.     They   were 

declared as proclaimed offenders.   There is a separate charge-sheet filed 

                                             11

against those proclaimed offenders also.  

10.    In   order   to   establish   an   Indian   identity   for   himself,   the   accused-

appellant had married Rehmana Yusuf Farukhi who was also joined as an 

accused.   According to the prosecution, she had full knowledge about the 

accused-appellant being a Pakistani national and  his nefarious  design of 

carrying out terrorist activities.  Significantly enough, she had married only 

14   days   prior   to   the   shoot-out   incident   i.e.   on   8.12.2000.     She   was   of 

course,   paid   substantial   amounts   from   time   to   time   by   the   accused-

appellant prior to her marrying him and this amount was deposited in her 

bank   account   No.   5817   with   the   State   Bank   of   India.     The   prosecution 

alleged   that   the   accused-appellant   was   in   touch   with   Rehmana   Yusuf 

Farukhi even prior to the marriage.   One other accused, Sadakat Ali was 

arrested   for   having   given   on   rent   his   property   in   Gaffur   Nagar   to   the 

accused-appellant   for   running   a   computer   centre   in   the   name   of 

`Knowledge   Plus'.     Sadakat   Ali   is   said   to   have   been   fully   aware   of   the 

design of the accused-appellant and he had knowingly joined hands with 

the accused-appellant and had not informed the police that he had let out 

his premises to the accused-appellant.   Huge money used to be received 

by   the   accused-appellant   which   he   used   to   deposit   in   the   accounts   of 

accused   Farooq   Ahmed   Qasid   and   Nazir   Ahmad   Qasid   in   Standard 

Chartered   Grindlays   Bank's   branch   at   Srinagar   and   after   withdrawing 

                                              12

money so deposited, the same used to be distributed amongst their fellow 

terrorists   for   supporting   the   terrorist   activities.     According   to   the 

prosecution,   huge   amount   of   money   was   deposited   by   the   accused-

appellant   in   the   two   bank   accounts   of   Nazir   &   Sons   and   Farooq   Ahmed 

Qasid   with   Standard   Chartered   Grindlays   Bank's   branch   at   Connaught 

Place,   New   Delhi.     The   police   was   able   to   retrieve   one   deposit   receipt 

showing deposit of five lakhs of rupees in November, 2000 in the account 

of   Nazir   &   Sons.     The   said   receipt   was   recovered   from   the   flat   of   the 

accused-appellant   after   he   was   apprehended   on   the   night   of 

25/26.12.2000.

11.     Some other accused of Indian origin had also helped the accused-

appellant,   they   being   Devender   Singh,   Shahanshah   Alam   and   Rajeev 

Kumar   Malhotra.     They   got   a   forged   learner's   driving   license   No.   9091 

(Exhibit   PW-13/C)   which   was   purported   to   have   been   issued   by   Delhi 

Transport Authority's office at Sarai Kale Khan, wherein a false residential 

address   was   shown   as   B-17,   Jangpura.     On   that   basis,   the   accused-

appellant   also   got   a   permanent   driving   license   (Exhibit   PW-13/1)   in   his 

name   from   Ghaziabad   Transport   Authority.     The   accused-appellant,   with 

the   cooperation   of   these   three   accused   persons,   had   submitted   a 

photocopy   of   a   ration   card,   again   with   the   forged   residential   address   as 

102, Kaila Bhatta, Ghaziabad.  This very driving license was then used by 

                                                13

the accused-appellant for opening a bank account with HDFC Bank in New 

Friends Colony, New Delhi, wherein he had shown his permanent address 

as 102, Kaila Bhatta, Ghaziabad and mailing address as 18, Gaffur Nagar, 

Okhla, New Delhi.  Needless to mention that even these two were not his 

actual addresses.  These were utilized by him for stashing the money that 

he received from the foreign countries.   Accused Babar Mohsin provided 

shelter to the accused-appellant in his house in Delhi in February-March, 

2000,   so   that   the   accused-appellant   could   prepare   a   base   in   Delhi   for 

carrying   out   terrorist   acts   in   Delhi.     This   Babar   Mohsin   had   also 

accompanied the accused-appellant on his motorcycle to different parts of 

Delhi   in   order   to   show   various   places   of   importance   to   the   accused-

appellant,  which  could be  targeted for  a  terrorist attack.   The police  was 

also able to retrieve a letter (Exhibit PW-10/C) addressed to Babar Mohsin, 

thanking him for the help extended by him to the accused-appellant during 

his   visit   to   Delhi.     This   letter   was   written   from   Srinagar.     This   letter   was 

seized by the police from the dickey of the motorcycle belonging to Babar 

Mohsin  on 07.01.2001.    One  other  accused Matloob  Alam  was  having  a 

ration   shop   in   Okhla   while   accused   Mool   Chand   Sharma   was   the   area 

Inspector of Food & Supply Department.  Both these accused persons had 

helped the  accused-appellant  in getting a ration card  (Exhibit PW-164/A) 

which   contained   false   information.     Accused   Matloob   Alam   was   charged 

for   distributing   number   of   fake   ration   cards   by   taking   bribe   from   the 

                                            14

persons to whom  the cards were  issued.   A separate FIR being FIR No. 

65/2001   was   registered   against   Matloob   Alam   at   Police   Station   New 

Friends Colony, New Delhi.  In fact, the ration card mentioned earlier was 

prepared   by   the   accused   Matloob   Alam   and   the   handwriting   expert   had 

given a clear opinion that the said ration card was in the hands of Matloob 

Alam himself.   The prosecution, therefore, proceeded against 11 accused 

persons, in all, who were charge-sheeted on the ground that they had all 

conspired together to launch an attack on the Army establishment  inside 

the Red Fort so as to pressurize the Government of India to yield  to the 

demand of the militants for vacating Kashmir

12.    The   police   got   examined   all   the   arms   and   ammunition   from   the 

ballistic  expert N.B.  Bardhan  (PW-202), Senior  Scientific  Officer-I, CFSL, 

New Delhi.   Needless to mention that the said witness had found that the 

cartridges of the gun had actually been fired from AK-56 rifles which was 

got recovered by the accused-appellant from the backside of Red Fort and 

Vijay   Ghat.     The   weapons   were   found   by   the   witness   to   be   in   working 

order.     The   hand   grenades   recovered   at   the   instance   of   the   accused-

appellant   from   Jamia   Milia   Islamia   University   were   also   examined   and 

found   to   be   live   ones   and   these   were   defined   as   "explosive   substance". 

The   pistol   and   the   cartridges   recovered   from   the   possession   of   the 

accused-appellant   on   his   apprehension   were   also   got   examined   by 

                                              15

another ballistic expert Shri K.C. Varshney (PW-211), who vide his report 

Exhibit   PW-211/A,   found   the   said   pistol   to   be   in   working   order   and   the 

cartridges to be live ones and being capable of being fired from the said 

pistol.     The   police   also   found   that   the   eleven   empties   of   fired   cartridges 

from Self Loading Rifles (SLRs) of the Army men were actually fired from 

SLRs made by Ordinance Factory at Kirki, India and that they could not be 

loaded in either of the two Assault Rifles recovered by the police.

13.     This   was,  in  short,   a  conspiracy  and   after  obtaining   the  necessary 

sanctions, the police filed a charge-sheet against 11 accused persons.  All 

the cases were committed to the Court of Sessions and though they were 

registered   as   separate   Sessions   cases,   they   were   clubbed   by   the   trial 

Court   and   the   case   arising   out   of   FIR   No.   688/2000   was   treated   as   the 

main   case.     We   do   not   propose   to   load   this   judgment   by   quoting   the 

charges framed against all the accused persons.  Suffice it to say that they 

were   charged   for   the   offence   punishable   under   Sections   121,   121A   and 

120-B   IPC   read   with   Section   302,   IPC.   The   accused-appellant   was 

individually charged for the offence punishable under Section 120-B, IPC 

on various counts as also for the offence punishable under Section 3 of the 

Arms Act read with Sections 25 and 27 of the Arms Act as also Sections 4 

and 5 of the Explosive Substances Act.  Lastly, the accused-appellant was 

                                           16

also charged for the offence punishable under Section 14 of the Foreigners 

Act for illegally entering into India without valid documents.

14.    The prosecution examined as many as 235 witnesses and exhibited 

large   number   of   documents.     Accused   Rehmana   Yusuf   Farukhi   alone 

adduced evidence in defence and examined her own mother and tried to 

show that they did not know the accused-appellant was a militant and that 

the money in the bank account of Rehmana Yusuf Farukhi was  her own 

money and not given by the accused-appellant.

15.    The   accused-appellant   was   convicted   for   the   offence   punishable 

under Sections120-B, 121 and 121-A, IPC, Sections 186/353/120-B, IPC, 

Section 120-B, IPC read with Section 302, IPC, Sections 468/471/474, IPC 

and also under Section 420 read with Section 120-B, IPC.   The accused-

appellant was also held guilty for the offence punishable under Section 25 

of the Arms Act, Section 4 of the Explosive Substances Act and Section 14 

of   the   Foreigners   Act.     We   are   not   concerned   with   the   convictions   of 

accused   Nazir   Ahmad   Qasid,   Farooq   Ahmed   Qasid,   Rehmana   Yusuf 

Farukhi, Babar Mohsin, Sadakat Ali and Matloob Alam.  Barring the above 

accused, all the other accused persons were acquitted by the trial Court. 

The   accused-appellant   was   awarded   death   sentence   for   his   convictions 

under Section 121, IPC as also under Section 302 read with Section 120-

B,   IPC.     He   was   awarded   rigorous   imprisonment   for   10   years   for   his 

                                            17

conviction   under   Section   121-A,   IPC.     He   was   awarded   sentence   of   life 

imprisonment   for   his   conviction   under   Section   4   of   the   Explosive 

Substances   Act,   while   on   other   counts,   he   was   awarded   rigorous 

imprisonment   for   7   years   for   the   conviction   under   Sections 

468/471/474/420, IPC.  He was awarded rigorous imprisonment for 3 years 

for his conviction under Section 25 of the Arms Act.   He was  awarded 2 

years' rigorous imprisonment for his conviction under Section 353, IPC and 

3 months' rigorous imprisonment for his conviction under Section 186, IPC. 

He  was  slapped  with  fines  also with  defaults stipulation.    The  sentences 

were, however, ordered to run concurrently.  The other accused Rehmana 

Yusuf Farukhi, Babar Mohsin, Nazir Ahmad Qasid, Farooq Ahmed Qasid, 

Matloob   Alam   and   Sadakat   Ali   were   awarded   various   convictions; 

however, their appeal was allowed by the High Court.  That leaves us only 

with   the   appeal   filed   by   the   present   appellant.     The   High   Court   also 

confirmed the death sentence awarded by the trial Court to Mohd. Arif @ 

Ashfaq   (accused-appellant).     The   State   had   also   filed   one   appeal 

challenging the acquittal of accused Rehmana Yusuf Farukhi, Sadakat Ali 

and Babar Mohsin for the serious offence of hatching conspiracy with co-

accused   Mohd.   Arif   @   Ashfaq,   Farooq   Ahmed   Qasid   and   Nazir   Ahmad 

Qasid   to   wage   war   against   the   Government   of   India,   so   also   an   appeal 

was   filed   against   the   accused   Farooq   Ahmed   Qasid   and   Nazir   Ahmad 

Qasid for enhanced punishment of death penalty in place of the sentence 

                                              18

of   life   imprisonment   awarded   to   them   by   the   trial   Court.     The   State, 

however,   did   not   file   any   appeal   against   the   four   acquitted   accused 

persons.     The   High   Court,   after   examination   in   details,   confirmed   the 

conviction   and   the   sentence   only   of   the   present   appellant,   while   all   the 

other appeals filed by other accused persons were allowed and they were 

acquitted.  The appeals filed by the State for enhancement, as also against 

the   acquittal   of   other   accused   persons   from   the   other   charges,   were 

dismissed by the High Court.   That is how, we are left with the appeal of 

Mohd. Arif @ Ashfaq, the present appellant herein.

16.     The  first contention  raised by Ms. Kamini Jaiswal,  learned  counsel 

appearing   on   behalf   of   the   respondent   was   that   no   such   incident   of 

outsiders   going   into   the   Red   Fort   and   shooting   ever   happened.     The 

learned counsel further argued that the said shooting was as a result of the 

brawl   between   the   Army   men   themselves.     In   order   to   buttress   her 

argument,   the   learned   counsel   further   said   that   even   the   police   was   not 

permitted   to   enter   the   Red   Fort   initially   and   though   an   enquiry   was   held 

regarding   the   incident,   the   outcome   of   such   enquiry   has   never   been 

declared.     The   learned   counsel   attacked   the   evidence   of   Capt.   S.P. 

Patwardhan  (PW-189)  on the  ground  that  the  report  made by him  which 

was   registered   as   FIR   on   22.12.2000   was   itself   suspicious,   as   it   was 

clearly   hearsay.     The   learned   counsel   further   relied   on   the   evidence   of 

                                            19

Head   Constable   Virender   Kumar   (PW-15)   who   was   a   duty   officer   at 

Kotwali   Police   Station   and   claimed   that   he   received   the   information   at 

about 9.25 pm which he had recorded as DD No. 19A.  It was pointed out 

that the said DD Entry was handed over to S.I. Rajinder Singh (PW-137) 

and Constable Jitender Singh (PW-54) was directed to accompany him.  It 

was also pointed out that SHO Roop Lal (PW-234) was informed about the 

incident and he handed over to S.I. Rajinder Singh (PW-137) the report at 

11.30   pm   and   it   was   on   that   basis   that   the   FIR   No.   688/2000   was 

registered   at   about   12.20   am   on   23.12.2000.     The   learned   counsel  then 

relied upon the report in the newspaper Hindustan Times in which it was 

stated that the police intelligence was not ruling out the possibility of shoot 

out being insiders' job.  The learned counsel also referred to the evidence 

of Constable Jitender Singh (PW-54), Naik Suresh Kumar (PW-122), Major 

Manish Nagpal (PW-126), Mahesh Chand (PW-128), Retd. Subedar D.N. 

Singh (PW-131), Hawaldar Dalbir Singh (PW-134) and S.I. Rajinder Singh 

(PW-137), as also the evidence of Major D.K. Singh (PW-144).  It was tried 

to be argued that there were  inter se  contradictions in the evidence of all 

the   witnesses   and   the   whole   story   of   some   intruders   going  into   the   Red 

Fort and shooting was nothing but a myth.   It was also suggested by the 

learned  counsel  that there was  serious dispute in the  versions regarding 

the ammunition used by the intruders and ammunition used by the Army 

personnel.     Fault   was   found   with   the   timing   of   registration   of   FIR   No. 

                                             20

688/2000.    The learned counsel also stated that the prosecution had not 

brought on record any register which is maintained for recording the entry 

of any vehicle in the Red Fort.   The learned counsel further suggested a 

contradiction in the evidence of Hawaldar Dalbir Singh (PW-134) and the 

statement of Retd. Subedar D.N. Singh (PW-131) regarding as to who took 

the rifle from Hawaldar Dalbir Singh (PW-134), whether it was Major D.K. 

Singh (PW-144) or Major Manish Nagpal (PW-126).   About the timings of 

various police officers reaching including that of SHO Roop Lal (PW-234), 

the learned counsel pointed out that there were some deficiencies.

17.    Before   we   appreciate   these   features   of   the   evidence   and   the 

contentions   raised   by   the   learned   counsel   for   the   defence,   we   must   first 

clarify   that   this   Court   ordinarily   does   not   go   into   the   appreciation   of 

evidence,   particularly,   where   there   are   concurrent   findings   of   facts.     We 

have very closely examined both the judgments below and found that there 

is   a   thorough   discussion   as   regards   the   evidence,   oral   as   well   as 

documentary, and it was only after a deep consideration of such evidence 

that the trial and the appellate Courts have come to the concurrent finding 

against the appellant.   In order to see as to whether the acquittal of other 

accused   persons   can   be   linked   to   the   verdict   against   the   appellant,   we 

have examined even the other evidence which did not necessarily relate to 

the criminal activities committed by the appellant.   Inspite of the fact that 

                                              21

there   has   been   a   concurrent   verdict   against   this   appellant,   still   we   have 

examined   the   oral   and   documentary   evidence   not   only   relating   to   the 

appellant,   but   also   to   the   other   accused   persons.     As   a   result,   we   have 

come   to   the   conclusion   that   the   trial   and   the   appellate   Courts   have   fully 

considered   the   oral   and   documentary   evidence   for   coming   to   the 

conclusions that they did.  In view of the concurrent findings, the scope to 

interfere   on   the   basis   of   some   insignificant   contradictions   or   some 

microscopic   deficiencies   would   be   extremely   limited.     All   the   same,   this 

being a death sentence matter, we ourselves have examined the evidence.

18.     From the clear evidence of Capt. S.P. Patwardhan (PW-189), Major 

Manish Nagpal (PW-126), Retd. Subedar D.N. Singh (PW-131), Hawaldar 

Dalbir Singh (PW-134) and Major D.K. Singh (PW-144), we are of the clear 

opinion that what took place on the said night on 22.12.2000 could not be 

just   set   aside   as   an   internal   brawl   between   the   Army   men   themselves. 

The suggestion is absolutely wild.  We find from the evidence that none of 

these   witnesses   who   have   been   named   above   and   who   were   the   direct 

witnesses   to   the   firing   incident   have   been   given   this   suggestion   in   their 

cross-examination that it was merely a brawl between the Army men.  That 

apart, there are some circumstances which completely belie the theory of 

internal   brawl.     It   would   have   to   be   remembered   that   a   civilian   Sentry 

Abdullah Thakur was the first to lose his life.   There is nothing to suggest 

                                               22

that   the   said   Sentry   Abdullah   Thakur   or   the   second   casualty   Rifleman 

(Barber)   Uma   Shankar,   as   also   Naik   Ashok   Kumar   had   developed   any 

enmity with anybody in the battalion.  Further, if this was a brawl between 

the Army men, there was no reason why Abdullah Thakur was shot at and 

killed.     We  also   do   not   find   any   reason   to   suspect   the   version   of   Major 

Manish Nagpal (PW-126) who himself claimed to have fired six rounds in 

the  direction of Ring Road after taking a self loading rifle from Hawaldar 

Dalbir Singh (PW-134).  In fact, there is no contradiction in his version and 

the   version   of   Hawaldar   Dalbir   Singh   (PW-134).     The   version   of   Major 

Manish Nagpal (PW-126) is in fact corroborated by the evidence of Major 

D.K.  Singh  (PW-144) as  also the  evidence  of Retd.  Subedar  D.N.  Singh 

(PW-131).     Even   Major   D.K.   Singh   (PW-144)   had   fired   alongwith   Major 

Manish Nagpal (PW-126) and they had fired, in all, 11 rounds, the empties 

of   which   were   given   by   these   two   officers   to   Retd.   Subedar   D.N.   Singh 

(PW-131).  Ultimately, these empties were produced before the civil police 

officers   and   were   taken   into   possession   vide   Exhibit   PW-131/A.     This 

version is also corroborated by Hawaldar Dalbir Singh (PW-134).  We have 

carefully  seen   the  evidence  of  all  these   witnesses   mentioned   above  and 

found   it   trustworthy.     It   must   be   mentioned   that   at   9.23   pm,   a   call   was 

made   to   the   Police   Control   Room   (PCR)   by   Major   Manish   Nagpal   (PW-

126)   suggesting   that   some   persons   had   run   away   after   firing   inside   the 

Red Fort and that they had gone towards the Ring Road.  This was proved 

                                          23

by   the   lady   Constable   Harvir   Kaur,   PCR   (PW-77)   and   the   concerned 

document is Exhibit  PW-77/A which  lends full support to the version and 

suggests that there was an incident of shooting in the Red Fort.  DD Entry 

No.   19A   dated   22.12.2000   made   at   Police   Station   Kotwali   supports   this 

version  of  lady Constable  Harvir   Kaur  (PW-77),  which  suggests  that   she 

had flashed a wireless message about some persons having fled towards 

the Ring Road after resorting to firing inside the Red Fort.  The evidence of 

Head Constable Virender Kumar (PW-15) is also there to prove the report 

in  this regard  vide  Exhibit  PW-15/B.   It  must be  remembered  that  Police 

Control Room had received the calls of similar nature at 9.47 pm and two 

calls   at   9.50   pm   vide   Exhibits   PW-42/A,   PW-95/A   and   PW-43/A,   which 

support the version of the prosecution about the incident.  The evidence of 

Constable Indu Bala, PCR (PW-43) about having received a telephone call 

from   one  Karan   Mohan,  the   evidence  of  Col.  A.  Mohan  (PW-51)   that  he 

was informed by the Commanding Officer, 7th  Rajputana, Delhi that some 

civilians had entered Red Fort and the evidence of Constable Harvir Kaur, 

PCR   (PW-77)   that   she   received   information   from   Major   Manish   Nagpal 

(PW-126)  from  telephone  No. 3278234  about some  persons  having fled, 

as also the  evidence of Head Constable  Harbans, PCR  (PW-95) that  he 

had received a telephone call from Col. Mohan (PW-51) by telephone No. 

5693227 stating that his Jawan posted at Red Fort was attacked, supports 

the version that there was incident of shoot out and it could not be merely 

                                              24

dismissed as an internal brawl.    This is apart from the evidence of other 

police witnesses like SHO Roop Lal (PW-234) who had reached the spot 

almost   immediately   after   receiving   the   wireless   message   and   who 

confirmed   the   presence   of   S.I.   Rajinder   Singh   (PW-137)   and   Capt.   S.P. 

Patwardhan (PW-189) on the spot.   The senior officers of the police had 

also   reached   the   spot   and   their   evidence   only   confirms   the   dastardly 

incident of shoot out.  There is enormous documentary evidence in shape 

of DD Entry No. 9A (Exhibit PW-156/C), DD Entry No. 73 B, Exhibit PW-

152/B,   Exhibit   PW-152/F   and   DD   No.   22A,   which   confirms   that   such 

incident had happened.   There is other piece of voluminous documentary 

evidence about seizure of blood sample (Exhibit PW-123/B), seizure from 

the   spots   (Exhibit   PW-122/B),   seizure   of   blood   stained   clothes   (Exhibit 

PW-114/A),   Exhibit   PW-123/A,   Exhibit   PW-122/A,   seizure   of   magazine, 

live   cartridges   and   empties   (Exhibit   PW-189/C),   Exhibit   PW-115/A   to   37 

(37 empty cartridges), Exhibit PW-115/38 (1 live cartridge), seizure of rope 

and   cap   (Exhibit   PW-183/D),   seizure   of   various   articles   from   Red   Fort 

(Exhibit   PW-196/A)   and   Exhibits   PW-230/A   &   230/B   etc.   to   suggest   that 

the incident as, suggested by prosecution, did take place. It is also to be 

seen that the post mortem was conducted on the three bodies by Shri K. L. 

Sharma   (PW-187).     This   witness   has   opined   that   all   the   deceased   had 

bullet injuries by sophisticated fire arms and the shots were filed at them 

from   a   distant   range.     It   is   significant   that   the   doctor   was   not   cross-

                                            25

examined   to   the   effect   that   the   injury   could   have   been   caused   by   any 

weapon which was available with the Army and not with the AK 56 rifles. 

We are, therefore, not at all impressed by the argument that such incident 

was nothing but a white wash given by Army to hide the incident of internal 

brawl.     We   must   reject   the   whole   argument   as   too   ambitious.     We, 

therefore, hold that the incident of shoot out did take place in which three 

persons lost their lives.

19.    Ms. Jaiswal then argued that though the premises were thoroughly 

searched   as   claimed   by   Sub.   Ashok   Kumar   (PW-115)   he   did   not   find   a 

fired bullet.  She relied on the evidence of Hawaldar Dalbir Singh (PW-134) 

who  also claimed that the premises were  being searched all through the 

night.   Similarly, she referred to the evidence of S.I. Rajinder Singh (PW-

137),   Maj.   D.K.   Singh   (PW-144),   Capt.   S.P.   Patwardhan   (PW-189),   and 

S.I.   Naresh   Kumar   (PW-217)   and   Inspector   Hawa   Singh   (PW-228). 

According to her, all these witnesses had suggested that the search was 

going on practically all through the night and that Capt. Patwardhan (PW-

189)   had   also   ordered   the   search   outside.     The   argument   is   clearly 

incorrect.     Merely   because   all   these   witnesses   have   admitted   that   there 

was search going on for the whole night, it does not mean that the incident 

did   not   take   place.     We   have   already   pointed   out   that   number   of 

incriminating articles were found, the most important of the same being the 

                                               26

empties of the bullets fired by the intruders.   It is very significant that the 

prosecution has been able to connect the bullets with the arms seized by 

them.

20.      One   of   the   two   rifles   was   found   near   Vijay   Ghat   from   the   bushes 

while   other   has   been   recovered   at   the   instance   of   appellant   on   26th 

December,   2000.     The   prosecution   has   examined   three   witnesses   who 

were the ballistic experts.  They were N.B. Bardhan (PW-202), A.Dey (PW-

206),   K.C.   Varshney   (PW-211).   N.B.   Bardhan   (PW-202)   has   specifically 

stated that both the rifles were used in the sense that they were fired.   A. 

Dey (PW-206) had the occasion to inspect the rifle recovered from Batla 

House  as   Exhibit  PW-206/B.     The   ballistic   experts  report   was   proved   by 

N.B.   Bardhan   (PW-202)   as   Exhibit   202/A.     He   clearly   opined   that   the 

empties found inside the Red Fort had been fired  from  the rifles (Exhibit 

PW-125/1) and (Exhibit PW-62/1).   He clearly deposed that he examined 

39   sealed   parcels   sent   by   SHO,   Police   Station   Kotwali.     Out   of   these 

parcels,   according   to   the   witness,   parcel   No.34   was   containing   AK   56 

assault   rifle   so   also   parcel   No.36   in   same   parcel,   sub-parcel   No.20 

contained   another   assault   rifle.     He   further   confirmed   in   para   (iii)   of   his 

opinion   that   these   were   7.62   mm   assault   rifles   and   the   cartridges 

contained in bearing mark C-1 in parcel No.3 which were marked as C-49, 

C-52,C-56,C-58, C-64, C-71 contained in parcel No.19 as also 21 7.62 mm 

                                             27

assault rifle cartridge cases marked as C-72,C-74,C-75 to C-80,C-82 to C-

84   and   C-86,   C-89,C-91,   C-94   to   C-96,   C-98,   C-102,   C-106   to   C-108 

contained in parcel No.19A had been fired from 7.62 mm AK assault rifle 

marked as W/1 which  was  recovered  from back side of Lal Quila on the 

disclosure statement made by the appellant.  He further opined in para (iv) 

of his opinion that the cartridge cases marked as C-2 contained in parcel 

No.4, thirty four fired 7.62 mm assault rifle cartridge cases marked as C-32 

to C-48, C-50, C-51, C-53 to C-55, C-57, C-59 to C-63 and C-65 to C-70 

contained in parcel No.19, as also sixteen 7.62 mm assault rifle cartridge 

cases marked as C-73, C-77, C-81, C-85, C-87, C-88, C-90, C-92, C-93, 

C-97,   C-99,   C-100,   C-101,   C-103   to   C-105   contained   in   parcel   no.19A 

were fired from 7.62 mm assault rifle AK-56 marked as W/2 rifle recovered 

from Vijay Ghat.  The report of the ballistic experts was proved as Exhibit 

PW-202/C.   He duly proved and identified the cartridges which were  test 

fired in the laboratory.  He also proved and identified the rifles examined by 

him   and   the   magazines   along   with   the   other   live   cartridges   found   in   the 

same.     There   was   hardly   any   cross-examination   worth   the   name   of   this 

witness   and,   therefore,   it   is   clearly   established   that   the   cartridges   cases 

found inside the Red Fort were fired from the two rifles which were found 

outside the Red Fort.   This witness had also examined 11 empties of the 

self-loading rifles used by the army men firing towards intruders and had 

clearly   opined   that   those   empties   could   not   have   been   loaded   in   AK-56 

                                               28

rifles examined by him.   We must note that one of these rifles i.e. Exhibit 

PW-62/1 was recovered on the discovery made by the appellant.  We shall 

come   to   the   merits   of   that   discovery   in   the   latter   part   of   our   judgment. 

However,   at   this   stage,   it   is   sufficient   to   note   that   the   prosecution   had 

thoroughly   proved   the   nexus   between   the   cartridge   cases   which   were 

found   inside   the   Red   Fort   and   the   incident.     This   nexus   is   extremely 

important   as   while   the   guns   were   found   outside   the   Red   Fort   the   fire 

empties were found inside.  This clearly suggests that the incident of firing 

took place inside the Red Fort while guns were abandoned by the intruders 

outside the Red Fort.   This witness also examined the contents of parcel 

No.34,   namely,   one   rifle   two   magazines,   live   cartridge,   knife   and   a 

Bandolier.     This   was   again   an   assault   rifle   of   7.62   mm   which   we   have 

already   considered   earlier.     However,   along   with   the   same,   as   per   the 

discovery   memorandum   a   bandolier   (Exhibit   PW-202/3)   was   also   found. 

The contents of the Bandolier were in parcel No.35.  It contained four hand 

grenades and four detonators they being Exhibit PW-50/1 to 4 and Exhibit 

PW-50/5 to 8.  Very significantly four detonators had a slip affixed with the 

help of a tag and it was written in Urdu  Khabardar. Grenade firing ke liye  

tyrar he. Safety pin sirf hamle kye waqt nikale.(beware grenade is ready for 

firing. Pin should be taken out only when it is to be thrown).  The existence 

of these bandoliers and the grenades and their recovery goes a long way 

to prove that the theory propounded by the defence that the incident never 

                                               29

took place inside the Red Fort at the instance of the intruders and it was an 

internal   affair   of   the   Army   men   inside   has   to   be   rejected.     In   order   to 

complete the narration, we must also refer to the evidence of Shri A. Dey 

who had examined the rifle found at Batla House during the encounter in 

which one Abu Shamal was killed.  That recovery is not seriously disputed 

by Ms. Jaiswal.  

21.     We have the evidence of Subedar Ashok Kumar (PW-115) about the 

recovery of 37 empties cartridges and one live cartridge from the Red Fort 

so   also   the   evidence   of   Hawaldar   Ramesh   Kakre   (PW-116)   about   the 

empty   cartridges   being   found   near   sentry   post   where   Abudullah   Thakur 

was killed.   One live cartridge also was recovered from there.   He further 

deposed about the two empty cartridges found near M.T. Park where Uma 

Shankar   was   killed.     He   deposed   that   these   empties   were   found     near 

training store while seven empties were found near museum and the same 

was   handed   over   to   Subedar   Ashok   Kumar   (PW-115).     Similar   is   the 

evidence of S.P. Patwardhan (PW-189) about the place from where all this 

spent   ammunition   was   recovered.     SHO   Roop   Lal   (PW-234)   and   Naik 

Suresh   Kumar   (PW-122)   deposed   about   the   places   wherefrom   the 

cartridge cases and the magazines were  found from inside the Red Fort. 

All this supports the prosecution theory that the ghastly incident of firing did 

take place at the instance of some outsiders inside the Red Fort. 

                                           30

22.    This   takes   us   to   another   contention   of   Ms.   Jaiswal   that   in   fact 

nothing was  found behind the Red Fort on the night of 23.12.2000.   The 

learned Solicitor General, Shri Subramanium placed a very heavy reliance 

on the recoveries made in the same night or early morning of next day i.e. 

23.12.2000.     The   recoveries   of   that   day   are   extremely   important.     Ms. 

Jaiswal    invited our attention in this behalf to the evidence of S.I. Sanjay 

Kumar (PW-183) who claimed that in the morning of 23.12.2000 during the 

search of the backside of the wall of the Red Fort abutting to the ring  road 

he   found   some   currency   worth   Rs.1415/-   and   a   slip   contained   in   the 

polythene bag.   It was a short slip on which a mobile number was written 

being   9811278510.     According   to   witness   S.I.   Sanjay   Kumar   (PW-183), 

SHO Roop Lal (PW-234) was called at the place and it was SHO Roop Lal 

(PW-234)   who   pasted   the   telephone   number   slip   on   a   separate   paper. 

There   was   currency   and   both   these   articles   were   seized   by   the   police. 

This polythene bag was a transparent bag.   Besides the evidence of PW-

183, SI Sanjay Kumar, we have the evidence of S.I. Naresh Kumar (PW-

217) and SHO Roop Lal (PW-234).  The amount was separately kept vide 

Exhibit 183/A while the slip was identified as Exhibit PW-183/C.  We have 

seen the photographs of the polythene bag and the currency as also the 

slip which were also proved.   Ms. Jaiswal  attacked this recovery and the 

seizure   thereof   vehemently.     According   to   her   this   was   a   figment   of 

imagination by the investigating agency and there was no question of any 

                                          31

such recovery much less in the wee hours of 23.12.2000 at about 5-6 a.m. 

She pointed out that the two witnesses S.I. Sanjay Kumar (PW-183) and 

S.I.  Naresh Kumar (PW-217) were  clearly lying.    We have  examined the 

evidence of all the three witnesses particularly in this behalf and we  find 

the evidence to be thoroughly reliable.  Ms. Jaiswal could not bring to our 

notice any material in the cross examination  of these witnesses so as to 

render   the   evidence   uncreditworthy.     Some   efforts   were   also   made   by 

relying   on   the   evidence   of   S.K.Chadha   (PW-125)   that   though   he   was   a 

member  of   the  team,   he  reached  the  spot   from   where  the  recovery   was 

made at 10 a.m. on 23.12.2000.   We fail to follow the significance of this 

admission.  It is not as if all the officers must remain at one and the same 

place if they are the members of a particular investigation team.  It may be 

that S. K. Chadha might have reached the spot at 10 O'clock but that does 

not   mean   recovery   team   consisting   of   other   members   did   not   effect 

recovery   of   the   polythene   bag   containing   currency   and   the   slip.     Ms. 

Jaiswal also urged that the premises were being searched thoroughly with 

the help of dog squad and the search light and that it was not possible that 

the search team would miss to notice the polythene bag and the currency 

and the slip lying in it.  The argument is only mentioned for being rejected. 

What the investigating team would be looking for are not the polythene bag 

and   the   small   paper   but   the   weapons   and   the   men   who   handled   those 

weapons.     A   small   transparent   polythene   bag   could   have   easily   been 

                                              32

missed earlier or may not have attracted the attention of the investigating 

agency.    We do  not  find anything  to  suspect  the  claim  that  the  recovery 

was made at about 5-6 a.m.  We must note that this was the longest night 

when the sun rise would also be late.   Under such circumstances, in that 

dark   night   if   the   investigating   team,   after   the   microscopic   search,   took   a 

few ours in recovering the small apparently insignificant polythene bag, it is 

not   unnatural.     They   could   not   be   expected   to   find   polythene   bag 

instantaneously or immediately.   Much time must have been taken in first 

searching inside the Red Fort.   Therefore, if the polythene bag was found 

at   about   5-6   a.m.   as   per   the   claim   of   the   prosecution   agency,   and   not 

earlier,   there   is   nothing   uncreditworthy   in   the   claim.     We   are,   therefore, 

convinced that  the polythene  bag and  the slip mentioning  the cell phone 

number   were   actually   found   at   the   spot.     Ms.   Jaiswal   tried   to   find   some 

chinks in the armour by suggesting that S.I. Sanjay Kumar's statement was 

contrary to the statement of S.I. Naresh Kumar (PW-217).  We do not find 

any discrepancy between the two statements.  Ms. Jaiswal also referred to 

the evidence of Inspector Mohan Chand Sharma (PW-229) who stated that 

recovery   was   made   by   him   at   about   9   a.m.   in   the   morning.     What   the 

witness meant was that it was he who came in the possession of the items 

at 9 a.m.  There is nothing very significant in that assertion.  The evidence 

of SHO Roop Lal (PW-234) was also referred to who claimed that after the 

polythene   bag   was   produced   before   him   which   contained   currency   and 

                                               33

paper slip, he sealed currency in the same polythene with the help of cloth 

and   sealed   under   parcel   given   Exhibit   No.24.     There   is   nothing   to   dis-

believe  this claim after  all SHO Roop Lal (PW-234) was  the senior most 

investigating officer and there is nothing insignificant if S.I. Sanjay Kumar 

(PW-183) finding the polythene bag handed over the same to SHO Roop 

Lal (PW-234).  A specific step has been taken by S.I. Sanjay Kumar (PW-

183)   by   getting   the   said   bag   photographed.     We   have   seen   the 

photographs also.  It is true that no photograph was taken of the polythene 

bag   containing   currency   note   and   the   slip   mentioning   the   telephone 

number.     They   appear   to   be   in   separate   photographs   and   it   is   quite 

understandable   as   immediately   after   the   finding   of   the   polythene   bag   it 

must have been handled by S.I. Sanjay Kumar (PW-183).   It is only after 

finding the slip and the telephone number mentioned thereon that by way 

of abundant caution the photographs were taken.  Anxiety was to show the 

slip   and   the   fact   that   there   was   a   telephone   number   written   on   the   slip. 

Ms.   Jaiswal   then   argued   that   Hawa   Singh   (PW-228)   had   stated   that   he 

was   told   about   the   slip   only   in   the   evening   though   he   joined   the 

investigation   at   10.30   a.m.     We   do   not   find   anything   substantial   in   this 

argument.     Ms.   Jaiswal   further   argued   that   there   is   contradiction   in   S.I. 

Sanjay Kumar (PW-183) and Inspector Mohan Chand Sharma's (PW-229) 

statement  as to who  had recovered  the currency  and slip and that  there 

was material contradiction in the evidence of S.I. Sanjay Kumar (PW-183), 

                                                34

S.K.   Chadha   (PW-125)   and   Inspector   Mohan   Chand   Sharma   (PW-229). 

Further,  she  tried  to  say that  there was  contradiction  in the  statement  of 

S.I. Sanjay Kumar, SHO Roop Lal (PW-234) and S.I. Naresh Kumar (PW-

217) on the question as to whether currency and slip was taken inside the 

Red Fort to be handed over to SHO Roop Lal (PW-234) or whether he was 

called   on   the   spot   of   recovery.     She   also   raised   objections   about   the 

photographs that they were not taken in `as is where is position'.  We have 

already applied our mind to this aspect and we are of the clear opinion that 

the objections raised by the defence are absolutely insignificant.   What is 

material   is   the   polythene   bag   being   found.     The   police   could   not   have 

created   this   polythene   bag   containing   currency   and   slip   with   a   number 

mentioned   on   it.     There   was   no   question   of   any   false   evidence   being 

created   at   that   point   of   time   which   was   hardly   a   few   hours   after   the 

shootout.  It is true that the photographs of the polythene bag are not and 

could   be   on   `as   is   where   is   basis'.     We   have   already   given   the   reason 

thereof.  We have no doubts in our mind and we confirm the finding of the 

trial Court and the appellate Court that the said polythene bag containing 

the   currency   notes   and   the   slip   on   which   the   cell   phone   number   was 

mentioned,   was   actually   found   on   the   spot   which   spot   was   abutting   the 

backside   wall   of   the   Red   Fort.     It   has   to   be   borne   in   mind   that   a   major 

incident of shootout had occurred wherein three lives were lost.  The attack 

was on the Red Fort which has emotional and historical  importance  in the 

                                                35

Indian minds.   Large investigation team was busy investigating the whole 

affair and, therefore, the police could not have produced out of the thin air 

a small polythene bag containing currency and the slip.  The spot where it 

was found is well described and was on the escape route of the intruders. 

That   wall   from   inside   the   Red   Fort   has   hardly   any   height   though   it   is   of 

about 15 to 20 feet from the ground on the other side.  We have seen the 

proved photograph which suggests that from that spot one can easily land 

on   the   extended   pipe   and   from   that   pipe   to   the   small   platform   and   from 

there   to   the   ground.   The   polythene   bag   was   found   near   this   spot. 

Therefore, we accept the finding by the trial Court and the appellate Court 

that this polythene bag must have slipped from a person who scaled down 

to the ground.   At the beginning of the  debate it was  made out as if the 

said wall was insurmountable and that nobody could have jumped from the 

height of about 50-60 feet.  Further on the close look at the evidence, the 

photographs the hollowness of the claim of the defence was writ large.

23.     There   is   one   more   significant   circumstance   to   suggest   that   the 

polythene bag must have been found where it was claimed to have been 

found   by   the   investigating   agency   i.e.   the   finding   of   AK-56   rifle   from   a 

nearby spot in the bushes.   We will  consider the merits of that discovery 

which   was   at   the   instance   of   the   appellant   in   the   latter   part   of   our 

judgment.  Suffice it to say at this stage that the polythene bag was found 

                                            36

in   the   reasonable   proximity   of   the   spot   from   where   AK-56   rifle   was 

recovered.  

24.    Barely within 4-5 hours of the finding out the chit and the currency 

notes,   the   investigating   agency   found   one   AK-56   rifle   with   seven   live 

cartridges from a place near Vijay Ghat in the Ring Road behind the Red 

Fort.  A DD entry to that effect vide Exhibit PW-81/A was made.  There is 

evidence   in   the   shape   of   Exhibit   PW   78A   proved   by   PW-78   Head 

Constable   Narender   Singh   which   is   a   Police   Control   Room   Form.     The 

prosecution also examined Head Constable Upender Singh (PW-89).  The 

evidence of Head Constable Satbir Singh (PW-81) proves the information 

having been given to the PCR.   There was a sketch of recovery  Naksha  

Mauka Baramadgi,  seizure of rifle, magazine and the live cartridges from 

Vijay Ghat is evidenced in Exhibit PW-62/B and also Exhibit 84/XIV.  While 

dealing with the evidence of the ballistic expert we have already shown the 

connection   between   the   empty   cartridges   and   this   rifle.     This   rifle   was 

marked as W/1 in the ballistic experts report and was identified as Exhibit 

PW-125/1.  There is nothing to belie this discovery which is well supported 

by   the   evidence   of   Head   Constable   Narender   Singh   (PW-78),   Head 

Constable Satbir Singh (PW-81) and Head Constable Upender Singh (PW-

89).   In fact Head Constable Upender Singh was the one who had found 

the   said   rifle.     Other   relevant   witness   who   corroborated   this   version   is 

                                            37

Constable   Ranbir   Singh   (PW-35)   who   had   made   the   DD   entry   and   had 

received the message from police Control Room.  The other witnesses are 

SI Ram Chander (PW-62) who presided over the recovery and SHO Roop 

Lal (PW-234) who  was  also present at the time of recovery and saw the 

rifle.     The   other   witnesses,   namely,   SI   Sanjay   Kumar   (PW-183)   and   SI 

Naresh Kumar (PW-217) have provided the corroborating evidence to this 

recovery.  The whole recovery is proved by the prosecution.

25.    However,   even   before   that   the   investigating   agency   started 

investigation   about   the   cell   number   which   was   found   written   in   the   slip 

which was found in the morning at about 5-6 a.m. this cell number was to 

provide   a   ray   of   light   to   the   investigating   agency   which   had   no   clue 

whatsoever   till   then   about   the   perpetrators   of   the   crime.   Ultimately,   the 

investigating   agency   on   the   basis   of   that   number   being   9811278510   not 

only unearthed the conspiracy but also reached the main players including 

the present appellant.

26.    The   investigation   suggests   that   the   said   mobile   number   slip   was 

assigned   to   Inspector   Mohan   Chand   Sharma   (PW-229).     This   was   a 

mobile number on the basis of the cash card.  At the relevant point of time, 

the cash card implied a SIM card, a SIM card loaded with  prepaid value 

and such SIM card were readily available in the open market.  There was 

no necessity of registering with the service provide for obtaining a mobile 

                                               38

connection through cash card.  All that was required was activation by the 

service provider without which the cash card or the SIM card as the case 

may be could not be used.  

27.     It   has  come  in   the  evidence  that   the   active   mobile   phone   has  two 

components   i.e.   the   mobile   instrument   and   the   SIM   card.     Every   mobile 

instrument   has   a   unique   identification   number,   namely,   Instrument 

Manufactured  Equipment Identity, for short, IMEI number.  Such SIM card 

could   be  provided  by the   service  providers  either  with  cash  card   or  post 

paid card to the subscriber and once this SIM card is activated the number 

is   generated   which   is   commonly   known   as   mobile   number.     The   mobile 

service   is   operated   through   a   main   server   computer   called   mobile 

switching centre which handles and records each and every movement of 

an active mobile phone like day and time of the call, duration of the call, 

calling and the called number, location of the subscriber during active call 

and   the   unique   IMEI   number   of   the   instrument   used   by   the   subscriber 

during   an   active   call.     This   mobile   switching   centre   manages   all   this 

through   various   sub-systems   or   sub-stations   and   finally   with   the   help   of 

telephone towers.  These towers are actually Base Trans-receiver Stations 

also   known   as   BTS.     Such   BTS   covers   a   set   of   cells   each   of   them 

identified   by   a   unique   cell   ID.     A   mobile   continuously   selects   a   cell   and 

exchanges   data   and   signaling   traffic   with   the   corresponding   BTC. 

                                             39

Therefore,   through   a   cell   ID   the   location   of   the   active   mobile   instrument 

can be approximated.

28.    As  per the evidence  of Inspector Mohan Chand Sharma (PW-229) 

he collected the call details of the said mobile number which was received 

in a computer installed in his office at Lodhi Road.   He found that mobile 

phone number 9811278510 was constantly used from Zakir Nagar and at 

that   time   the   IMEI   number   of   the   cell   phone   instrument   used   was 

445199440940240.   It was found that the said number was also used for 

making calls to Pakistan.   However, from 11.12.2000, the IMEI number of 

the   mobile   phone   No.9811278510   was   changed   to   IMEI 

No.449173405451240.     It   transpired   from   the   evidence   that   this   IMEI 

number that the mobile phone number 9811278510 with the changed IMEI 

number   had   also   made   calls   to   landlines   which   were   discovered   to   be 

belonging   to   BBC,   Srinagar   and   BBC,   Delhi.     These   calls   were   made 

almost immediately after the incident of shootout.   This number was also 

used for making calls to Pakistan and pager number at Srinagar 01949696 

and   0116315904.     The   latter   number   was   found   to   be   in   the   name   of 

Mohd. Danish Khan at 18C, Gaffur Nagar i.e. the computer centre run by 

the accused appellant.  It was also found that from this number calls were 

made to 0113969561 which was found to have been installed at the shop 

of   one   Sher   Zaman   who   was   allegedly   an   absconding   accused   and   the 

                                               40

Hawala   operator.     The   analysis   of   call   details   of   9811278510   suggested 

that   the  said  mobile   number  was  used   in  two  mobile  instruments   having 

the aforementioned IMEI numbers.  This was done in case of cell number 

9811278510 with IMEI number 445199440940240 only between 26.10.200 

to         14.11.2000         and         recovered         instrument         having         IMEI 

No.4491731405451240   between   11.12.2000   to   23.12.2000.     While 

scanning   earlier  IMEI   No.445199440940240,  it  was   found  that   one   other 

mobile   number   9811242154   was   found   to   have   been   used   in   the   said 

instrument.     This   instrument   used   mobile   number   9811242154   between 

22.7.2000   to   8.11.2000.     From   this,   Shri   Subramanium,   learned   Solicitor 

General urged that there were two mobile numbers, namely, 9811278510 

and   9811242154   which   were   used   and   the   two   IMEI   numbers   namely 

445199440940240 and 449173405451240.   A pattern showed  the use of 

the third number which was 0116315904, the number of computer centre. 

Shri Subramanium learned Solicitor General submitted the following  data 

for our perusal:-

                "011-6315904- Computer Center

                Found connected to Mobile No.9811278510:-

                (1) 14.12.2000 at 125435 hrs

           Found connected to Mobile No.9811242154:-

                (1) 31.10.2000 at 211943 hrs

                                         41

              (2) 08.11.2000 at 082418 hrs

              (3) 10.11.2000 at 144727 hrs

              (4) 19.11.2000 at 163328 hrs

        Found connected to Mobile No.9811242154 :-

              (1) 09.09.2000 at 113619 hrs

              (2) 08.09.2000 at 113753 hrs

              (3) 02.10.2000 at 103130 hrs."

   Learned   Solicitor   General   provided   the   data   regarding   the   telephone 

connection made by above number with the telephone connection of one 

Attruddin who was a proclaimed offender in Kashmir.

 29.    It is also apparent, as argued by the learned Solicitor General that 

number  9811242154  was  constantly in  touch  with  two numbers,  namely, 

0116315904 which was installed at 18C Gaffur Nagar computer centre and 

011 2720223 installed in the name of Farzana, sister of Rehmana, the wife 

of accused at 308A, Janta Flats, Ghazipur.  This number 9811242154 had 

thus   a   definite   connection   with   mobile   No.9811278510   and   the   two 

instruments   bearing   IMEI   numbers   mentioned   earlier   with   each   other. 

Therefore,  these  two points,  namely,  the  computer  centre and   the flat  at 

308A, Janta Flat, Ghazipur were  kept under observation.   Relying on the 

evidence of Inspector  Mohan Chand Sharma (PW-229), learned  Solicitor 

General argued that calls made from No.9811242154 were between Zakir 

                                             42

Nagar and Ghazipur.   It was found that the location of the phone used to 

be at Ghazipur when the calls were made to that number from Zakir Nagar 

and the location of phone used to be at Zakir nagar when the calls were 

made from Ghazipur.  Significantly enough, the `Knowledge Plus' computer 

centre remained closed for two  days after the incident at Red Fort.   The 

investigating agency came to know about the ownership of the `Knowledge 

Plus' computer center and it was established that the accused Mohd. Arif 

@   Ashfaq   who   was   a   resident   of   Ghazipur,   owned   this   centre.     All   this 

evidence   by   Inspector   Mohan   Chand   Sharma   (PW-229)   went 

unchallenged.  The other witness who had produced the whole record was 

Rajiv   Pandit   (PW-98)   who   proved   the   call   record   and   the   report   to   the 

queries   made   to   him   by   the   investigating   officer.   Exhibit   PW-98/A   is   the 

information in respect of the mobile number 9811278510 which was active 

from 26.10.2000 to 23.12.2000.  While Exhibit PW-198/D is the information 

stating that IMEI number 449173405451240 was used by mobile number 

9811278510 and that IMEI number 445199440940240 was  used by both 

mobile numbers, namely, 9811278510 and 9811242154.   There is hardly 

any cross-examination of this witness Rajiv Pandit (PW-198) to dis-believe 

his version.   All this goes to suggest the definite connection between two 

IMEI numbers and the two mobile numbers named above.  It is needless to 

mention that this analysis painstakingly made by Inspector Mohan Chand 

Sharma   (PW-229)   led   the   investigating   team   to   zero   on   the   accused 

                                           43

appellant in the night of 25.12.2000.

30.    It   has   come   in   the   evidence   of   SI   Omwati   (PW-68)   that   she   was 

working as duty officer at police station special cell on 25.12.2000 and on 

that day at about 9.05 a.m. Inspector Mohan Chand Sharma (PW-229) had 

recorded his departure in connection with the case No.688 of 2000 along 

with some other staff.  It has also come in the evidence that on 25.12.2000 

at about 9.45 p.m. a DD entry was made at the police station special cell 

Ashok Vihar that Inspector Mohan Chand Sharma (PW-229) informed on 

telephone that a suspect by name of Ashfaq Ahmed was about to come at 

the house number 308A, DDA flats, Ghazipur and made a request to send 

some officers.  There is another entry bearing a DD No.10 to the effect that 

Inspector Ved Prakash (PW-173) along with R.S. Bhasin (PW-168), SI Zile 

Singh   (PW-148)   ,   SI   Upender   Singh   (PW-89),   SI   Manoj   Dixit,   WSI 

Jayshree   and   S.I.   Omwati   (PW-68),   Constable   Mahipal   Singh   and   Head 

Constable Rameshwar  (PW-166) having left the police special cell Ashok 

Vihar in pursuance  of the message sent by Mohan Chand Sharma (PW-

229).     This   has   been   proved   in   the   evidence   of   Inspector   Ved   Prakash 

(PW-173).     It   has   also   come   in   the   evidence   of   Mohan   Chand   Sharma 

(PW-229) that he along with his team was at Ghazipur on 25.12.2000 while 

SI Daya Sagar was deputed at the knowledge plus computer centre along 

with the staff.   He was  informed at about 9.40 p.m. on his mobile phone 

                                             44

that Mohd. Arif @ Ashfaq was seen at Batla House and may have left for 

Ghazipur.     He   also   informed   ACP   Rajbir   about   it.     ACP   Rajbir   Singh, 

therefore, fixed 11 p.m. as the time for meeting him at the red light where 

he   reached   along   with   his   staff.     This   has   been   corroborated   by   S.I. 

Omwati   (PW-68)   who   speaks   about   DD   entry   No.10   recorded   at   special 

cell at about 10.15 to the effect that certain special officers had left under 

the   supervision   of   ACP   Rajbir   Singh.     As   per   the   evidence   of   Inspector 

Mohan   Chand   Sharma   (PW-229)   that   a   raid   was   conducted   by   them   at 

11.15   p.m.   at   flat   No.308A,   Ghazipur   and   at   that   time   three   ladies   were 

present.   There it was decided that Ved Prakash would go inside the flat 

and the remaining staff would keep a watch from outside.   This has been 

corroborated by Inspector Ved Prakash (PW-173).   It was at about 12.45 

a.m.   that   Mohd.   Arif   @   Ashfaq   (appellant   herein)   came   to   the   flat   of 

Ghazipur and knocked at the gate where he was overpowered by the staff 

present.   At that time one pistol 7.63 mouser and six live cartridges were 

recovered from his possession.  He did not have any licence for this pistol. 

A memo of the seizure is Exhibit PW-148/B proved by sub-Inspector ZIle 

Singh (PW-148).  The entry in the Malkhana register is 32/XI.  Inspctor Ved 

Prakash   prepared   a   rukka   which   is   Exhibit   (PW-173/A)   and   a   DD   entry 

bearing number 9A was made at 2.35 a.m. on 26.12.2000 at police station 

Kalyan   Puri.     A   separate   FIR   number   419/2000   under   Section   25,   Arms 

Act was also registered at police station Kalyan Puri, Delhi.  The FIR is to 

                                              45

be found vide Exhibit PW-136B.  The time of occurrence shown in the first 

FIR   is   12.45   a.m.   on   26.12.2000.     This   pistol   was   identified   by   all   the 

recovery   witnesses   and   experts   in   the   Court   while   its   capability   of   being 

fired   has   been   proved   by  Shri   K.C.   Varshney   (PW-211)   the   FSL   expert. 

The pistol is Exhibit PW-148/1.   At the time of its recovery, the pistol had 

five cartridges in the magazines and one cartridge in the chamber of the 

pistol.   All this has been deposed by SI Zile Singh (PW-148).   It was this 

witness Zile Singh (PW-148) who identified appellant in the Court as also 

proved the recovery of the pistol from his possession.   It was at this time 

after his apprehension that the accused disclosed that his associate Abu 

Shamal   @   Faizal   was   staying   at   his   hide   out   at   G-73,   First   Floor,   Batla 

House, Okhala.  This has come in the evidence of Inspector Mohan Chand 

Sharma   (PW-229).     We   have   absolutely   no   reason   to   dis-believe   this 

evidence of apprehension of the accused by the police team which is also 

supported   by   documentary   evidence.     We   have   also   no   doubt   that   the 

apprehension  of the accused was  possible only because of the scientific 

investigation done by PW-229, Inspector MC Sharma.  

31.     We now consider the argument of the appellant that on the basis of 

the recovery of the piece of paper having Mobile phone No. 9811278510, 

the police did not actually reach the appellant as was their claim.   It was 

argued   by   Ms.   Jaiswal,   learned   counsel   appearing   on   behalf   of   the 

                                           46

appellant   that   Inspector   S.K.   Sand   (PW-230)   himself   had   claimed   in   his 

Examination-in-Chief that he had deputed someone to contact the mobile 

phone company ESSAR for the call details of the said mobile number on 

13.2.2001 and obtained the same Vide Exhibit PW-198/B-1 to 3.   On this 

basis,   the   learned   counsel   claimed   that   the   details   of   the   phone 

conversation on this number as also on other mobile number 9811242154 

could   not   have   been   known   nor   could   their   connection   with   telephone 

number  2720223  at the  house of  the  appellant  in Ghazipur  or telephone 

number 6315904 at the Computer Centre at Gaffur Nagar be established. 

In  this behalf,  it  was  claimed  that  this  evidence is  directly counter  to the 

evidence   of  Inspector  Mohan   Chand  Sharma   (PW-229)  who   claimed   the 

knowledge   about   interconnection   between   23rd  to   25th  December,   2001. 

The   learned   Solicitor   General,   however,   argued   that   the   evidence   of 

Inspector   Mohan   Chand   Sharma   (PW-229)   could   not   be   faulted   as   he 

claimed  to   have   immediately   collected  all  the  call  details  of   the   said  two 

mobile phone numbers from the computer installed in their office at Lodhi 

Road.     It   was   on   the   basis   of   the   information   received   in   computer 

regarding mobile No. 9811278510 that he established its connection with 

mobile   No.   9811242154   on   the   basis   of   IMEI   number.     The   claim   of 

Inspector   Mohan   Chand   Sharma   (PW-229)   that   he   had   collected   the 

information from his computer earlier to 25.12.2010 was not controverted 

nor do we find any cross-examination to that effect.  It is true that Inspector 

                                            47

S.K. Sand (PW-230), the Investigating Officer, had sought the information 

on   13.2.2001,   but   that   does   not   mean   that   Inspector   Mohan   Chand 

Sharma (PW-229) did not have the information earlier.  There was no other 

way otherwise to apprehend the appellant.  It may be that the Investigating 

Officer decided to obtain the details in writing seeking official information 

from the original company and that is why his seeking that information on 

13.2.2001   does   not   affect   the   prosecution   case.     In   our   view,   the 

contention raised by the learned Solicitor General is correct and has to be 

accepted.  It is to be noted that the defence has not refuted the claim of the 

prosecution   that   telephone   No.   2720223   which   was   in   the   name   of 

appellant's Sister-in-law Farzana Farukhi, was installed at Flat No. 308-A, 

Ghazipur,   where   he   was   residing   alongwith   his   wife   Rehmana   Yusuf 

Farukhi and his mother-in-law Qamar Farukhi (examined as DW-1).   It is 

also   not   the   claim   of   the   defence   that   telephone   No.   6315904   was   not 

installed at the computer centre `Knowledge Plus' which the appellant was 

running   alongwith   other   person   Faizal   Mohd.   Khan   (PW056).     We, 

therefore, reject the argument of Ms. Jaiswal, learned counsel that on the 

basis of the chit, the investigating agency could not and did not reach the 

appellant on the night of 25.12.2000.  

32.     The other argument raised by Ms. Jaiswal is that in fact there was no 

evidence to show that the appellant in fact did have any mobile phone with 

                                              48

him  when   he  was   apprehended.  Secondly,  it  was  argued   that  it   was   not 

proved that the appellant ever owned a mobile phone at all. The learned 

counsel pointed out that when the appellant was apprehended, though he 

was   searched,   all   that   the   raiding   party   recovered   was   a   pistol   and   that 

there   is   no   mention   of   the   recovery   of   Motorola   mobile   phone   bearing 

number 9811278510.  The learned counsel was at pains to point out that it 

was during his second search after about six hours that the mobile phone 

was   shown   to   have   been   recovered.     This,   according   to   the   learned 

counsel,   is   nothing   but   a   concoction.     Ms.   Jaiswal   also   pointed   out   that 

there was a substantial delay in formally arresting the appellant and also 

recovering other articles from his person. 

33.     We   shall   consider   the   second   contention   first.   In   this   behalf,   the 

learned   Solicitor   General   relied   on   the   evidence   of   Faizal   Mohd.   Khan 

(PW-56), who  was  also a tenant in the house of Nain Singh (PW-20).   It 

has come in his evidence that the appellant was also residing as a tenant 

for some time before this incident took place.  He has also pointed out that 

one Adam Malik (PW-31) used to reside in the house of Nain Singh (PW-

20)  and it  was  he who  had  brought the  appellant with  him in May,  2000 

and got him one room in that house.  As per the evidence of Faizal Mohd. 

Khan (PW-56), it was Azam Malik (PW-31) who had introduced him to the 

appellant.  He was the one alongwith whom the appellant had then opened 

                                                49

a computer centre by the name of `Knowledge Plus' at 18-C, Gaffur Nagar 

and   for   opening   that   centre,   he   had   invested   Rs.70,000/-   while   the 

appellant had invested 1,70,000/- for purchasing computer from one Khalid 

Bhai.     This   part   of   the   evidence   is   also   admitted   by   the   appellant   in   his 

statement   under   Section   313   Cr.P.C.     He,   however,   claimed   in   that 

statement   that   he   had   paid   lesser   amount.     Faizal   Mohd.   Khan   (PW-56) 

needed a telephone for their computer centre but since they did not have 

ration   card,   he   (PW-56)   spoke   to   his   cousin   Danish   Mohd.   Khan   and 

requested him to get one telephone installed at their computer centre with 

the help of his identity card and that is how Danish Mohd. Khan had got 

installed a telephone in his own  name at the `Knowledge Plus' computer 

centre.   The learned Solicitor General pointed out that this evidence has 

remained   unchallenged.     It   is   further   argued   that   the   evidence   of   Faizal 

Mohd.   Khan   (PW-56)   establishes   that   the   appellant   had   a   mobile   phone 

also.     It   is   significant   that   admittedly,   this   witness   was   a   partner   of   the 

appellant   in   the   computer   centre.     The   claim   of   this   witness   that   the 

appellant   had   a   mobile   phone,   was   not   even   challenged   during   his 

examination.    From  this the  learned Solicitor General argued  and,  in our 

opinion, rightly, that the appellant used to have a mobile phone with him. 

The   learned   Solicitor   General   further   pointed   out   that   this   piece   of 

evidence   is   then   corroborated   by   the   evidence   of   Aamir   Irfan   Mansoori 

(PW-37),  who  was  also  a tenant  with  the  appellant  in the  house  of Nain 

                                                50

Singh (PW-20).   He had also deposed that the appellant used to have a 

mobile   phone.     The   Solicitor   General   pointed   out   that   there   was   no 

challenge   to   the   evidence   of   Aamir   Irfan   Mansoori   (PW-37),   particularly, 

about his assertion that the appellant did have a mobile phone.  From this, 

the learned Solicitor General argued that it is an established position that 

in   the   past,   the   appellant   used   to   have   a   mobile   phone.     Similar   is   the 

evidence of Rashid Ali (PW-232), who was also a resident in the house of 

Nain Singh (PW-20).  It is significant to note that this witness claimed that 

on   8.12.2000,   he   was   taken   by   the   appellant   for   an   Iftar   party   in   the 

evening.     However,   there   the   appellant   got   married   to   Rehmana   on 

8.12.2000   in   the   evening.     This   shows   the   proximity   of   the   witness.     He 

further deposed that the appellant had a mobile phone.  Even this witness 

was not cross-examined regarding the availability of the mobile phone with 

the appellant.  We have no reason to disbelieve the above three witnesses 

and, therefore, we hold that it was established by the prosecution that the 

appellant used to have a mobile phone.

34.     Once   this   position   is   clear,   then   it   has   to   be   seen   as   to   why   the 

mobile phone was not taken in possession by the raiding party when they 

actually   apprehended   the   appellant   and   whether   at  that   time   he   had   the 

mobile phone at all.  The learned Solicitor General argued that the raiding 

party had gone to Flat No. 308-A, Ghazipur to nab a suspected terrorist. 

                                             51

This   was   on   the   basis   of   the   information   gathered   by   Inspector   Mohan 

Chand Sharma (PW-229).   The learned Solicitor General argued that the 

raiding party had to ensure that once they nabbed the terrorist, he should 

be disarmed first.  This was necessary for the safety of the public at large 

and,   therefore,   when   the   raiding   party   found   and   nabbed   the   appellant, 

they first removed his fire arm and started digging further information about 

any   other   terrorist   who   was   the   partner   of   the   appellant   and,   therefore, 

when   the   appellant   disclosed   about   the   other   hide-out   at   G-73,   Muradi 

Road, Batla House, in order to avoid any further loss of life and harm to the 

general   public  and   also  for  preventing   the  said  suspect  from   fleeing,   the 

raiding   party   took   the   appellant   to   the   Batla   House   almost   immediately. 

The   learned   Solicitor   General,   therefore,   argued   that   considering   the 

seriousness   of   the   situation   and   further   considering   the   element   of   very 

little time at the disposal of the raiding party, the appellant was immediately 

taken to Batla House, where a full fledged encounter took place resulting in 

death   of   Abu   Shamal,   another   terrorist   as   also   in   recovery   of   lethal 

weapons   like   an   AK-47   rifle   and   hand   grenades.     The   learned   Solicitor 

General   explained   the   so-called   delay   caused   in   recovery   of   the   mobile 

phone   from   the   appellant.     He   also   argued   that   the   expediency   of   the 

matter required stopping these terrorists from inflicting further harm to the 

innocent society and, therefore, investigating agency had to move with the 

break-neck speed which they actually did instead of wasting their time in 

                                              52

writing   the   Panchnamas   of   discovery   and   recovery   etc.     The   learned 

Solicitor   General   further   argued   that   the   very   fact   that   there   was   an 

encounter   in   Batla   House,   the   location   of   which   was   known   only   to   the 

appellant,   establishes   the   necessity   for   quick   reaction   on   the   part   of   the 

investigating agency.   In our opinion, this explanation is quite satisfactory 

to   reject   the   argument   raised   by   learned   defence   counsel.     We   have, 

therefore,  no hesitation to hold that after the appellant was  apprehended 

on the night of 25.12.2000, the investigating agency recovered not only the 

pistol, but a mobile phone bearing number 9811278510 which was with the 

appellant.

35.     Ms.   Jaiswal   also   argued   that   the   investigating   agency   had   seized 

only the mobile instrument bearing No.9811278510  but not the SIM card 

and  that  was  an extremely suspicious  circumstance.    It is to be noted in 

this  behalf  that   the  instrument  was  seized   in  the  morning  of  26.12.2000. 

The   analysis   of   the   telephone   calls   shows   that   the   above   mentioned 

number did not work after 16.50 hours on 23.12.2000.   Thus this number 

was   inactive   on   24th  and   25th  December.     Ms.   Jaiswal   argued   that   the 

phone might have  been sold or at least  would  have  changed  hands and 

did   not   directly   connect   the   appellant   with   the   call   made   to   the   BBC 

correspondent immediately after the attack.  In this behalf, learned Solicitor 

General relied on the evidence of Rajiv Pandit (PW-198).   He pointed out 

                                             53

that the record regarding the SIM No 0006680375 did not exist.   Learned 

Solicitor   General   further   argued   that   the   letter   dated   20.2.2001   of   the 

police Exhibit PW-114/XV clearly showed that the said SIM was activated 

and an application in that behalf also made before the Court to un-seal the 

case   property   so   as   to   examine   whether   the   SIM   card   number   was 

correctly noted in the seizure memo Exhibit PW-59/XIV or not.  It has to be 

seen   that   the   number   of   cash   card   and   the   one   found   on   the   SIM   vide 

Exhibit   PW-62/XIV   were   the   same.     The   learned   Solicitor   General, 

therefore,   argued   that   the   SIM   card   found   in   the   telephone   was   not 

activated   and,   therefore,   there   was   no   record   available.     However, 

according to the Solicitor General, it has been proved that the instrument 

number   4491713405451240   was   on   the   cell   phone   recovered   from   the 

appellant.     In   that   behalf,   reliance   was   placed   on   the   evidence   of   S.I. 

Harender  Singh (PW-194), SI Zile  Singh  (PW-148) and Inspector  Mohan 

Chand   Sharma   (PW-229).     From   this,   according   to   the   learned   Solicitor 

General,  the prosecution  had established  that but  for the mobile  number 

which   was   collected   on   the   basis   of   the   chit,   it   was   not   possible   to 

apprehend   the   appellant   at   all.     He   further   argued   that   the   very   same 

instrument   which   has   been   recovered   from   the   appellant   was   used   for 

calling   BBC   correspondent   immediately   after   the   attack   and   it   was   also 

argued that the location of the instrument at that time was in the vicinity of 

Red   Fort.     There   is   considerable   force   in   the   submission   made   by   the 

                                             54

learned   Solicitor   General.     The   depositions   of   the   prosecution   witnesses 

mentioned above, in our opinion, leave no doubt whatsoever in our minds 

that mobile number 9811278510 was used in the instrument having IMEI 

No.449173405451240 immediately after the attack. 

36.    This   takes   us   to   the   telephonic   conversation   in   which   the   two 

aforementioned   cell   phones   with   two   IMEI   numbers   were   used   which 

create a complete link between the appellant and the crime.  In this behalf 

the first witness is Altaf Hussain (PW-39) who was the BBC correspondent 

based   in   Srinagar   and   who   claimed   that   sometimes   the   militant 

organizations   used   to   give   him   information   claiming   responsibility   of   any 

terrorist   acts.     On   22.12.2000   he   had   received   a   call   on   his   land   line 

No.2452918.   He deposed that the caller told him that the incident inside 

the Red Fort had been carried out by them and claimed in vernacular `do  

daane daal diye hain'.   The caller also claimed himself to be belonging to 

Lashkar e Toiba.   When he asked as to what it meant by  Do daane daal  

diye hain, he was told by the caller that it was a Fidayeen attack and that 

they had attacked Army personnel.   On this, the witness told the caller to 

contact   Delhi   BBC   office   and   also   gave   the   telephone   number   of   BBC, 

Delhi to him.   The  wife  of this witness  Ms. Naznin Bandey (PW-40) also 

deposed that Mr. Altaf Hussain was her husband and the aforementioned 

telephone   number   2452918   was   in   her   name   and   the   same   was   being 

                                             55

used by her husband also.   This call was made almost immediately after 

the attack which took place at about 9.25 p.m.  His further evidence is that 

one   Ayanjit   Singh   (PW-41)   was   a   BBC   correspondent   in   Delhi.   Ayanjit 

Singh (PW-41) was having a telephone number 011 3355751 on which he 

received a telephone  call between  9-9:30 p.m.  and someone  claiming to 

be belonging to Lashkar-e-Toiba told him that they had attacked the Red 

Fort.     When   the   witness   asked   as   to   from   where   he   was   speaking,   the 

witness was told by the caller that he was calling from inside the Red Fort. 

He also told that they had killed two persons.  The caller refused to identify 

himself.   This call remained for 2-3 minutes.  Shri Satish Jacob (PW-150) 

corroborated   this   version   of   Ayanjit   Singh   (PW-41)   to   the   effect   that   on 

22.12.2000 about 9 p.m. Ayanjit Singh who was a Desk Editor in the Delhi 

office had received relevant call and had informed his colleagues also.  He 

also confirmed that Altaf Hussain (PW-39) was the BBC correspondent in 

Srinagar.   These call records were  searched by the investigating agency 

and   were   duly   proved   by   the   prosecution.     It   has   already   come   in   the 

earlier part of the judgment that it was on 13.2.2001 that request for supply 

of information regarding mobile number 9811278510 was made vide letter 

Exhibit  PW-230/K.    By another  letter  Exhibit  PW-230/N  dated 27.1.2001, 

General Manager, MTNL was requested to give details of the subscribers 

of the telephone No. 011  3355751 which  was  the number of BBC Delhi, 

telephone   No.   2720223   belonging   to   Farzana   Faruqui   and   installed   at 

                                             56

Ghazipur   at   the   residence   of   appellant   and   telephone   No.6315904 

belonging to Danish Mohd. Khan which was fixed at computer centre.  The 

prosecution   proved   that   letter   and   the   records   through   the   witnesses.     It 

has   come   in   the   evidence   that   on   14.2.2001,   the   call   details   of 

9811278510 were furnished along with cell ID list by way of letter Exhibit 

PW-198/E and those call details were  also duly proved vide Exhibit PW-

198/B1-3.  A further letter dated 20.2.2001 was proved by the prosecution 

to have been written to the General Manager,  ESSAR  cell phone for the 

information   in   respect   of   the   aforesaid   mobile   instrument   bearing   IMEI 

No.445199440940240   and   44917340545120.     In   this   letter,   it   was 

specifically   asked   as   to   against   which   mobile   number   the   speed   card 

No.0006680375   was  activated.     Rajiv  Pandit   (PW-198)  deposed  that  the 

details   were   already   furnished   on   14.2.2001   in   respect   of   9811278510 

while the speed card details of the No.0006680375 were not available in 

the records.   The relevant documents are Exhibit PW-198/E in respect of 

cell   No.9811242154.     The   evidence   of   Rajiv   Pandit   went   almost 

unchallenged.          His   assertion   that   he,   as   a   General   Manager 

(Administration),   of   ESSAR   Cell   Phones   had   provided   the   relevant 

information of call details to Inspector Surender Sand in respect of mobile 

No.9811278510,   has   gone   unchallenged.     From   his   evidence,   it   stands 

proved   that   calls   were   made   to   BBC   correspondent   from   cell 

No.9811278510   on 22.12.2000  at 9.27  p.m. and  two  calls were  made to 

                                             57

BBC, Delhi No.3355751 at 9.50 p.m.   He also established that when  the 

call   was   made,   the   location   of   caller,   as   per   mobile   details,   was   at 

Kashmere Gate whereas from the second call, the location was Chandni 

Chowk.     This   evidence   is   also   corroborated   by   the   evidence   of   Mohan 

Chand   Sharma   (PW-229)   who   located   the   two  IMEI   numbers   mentioned 

above and he also confirmed that as per the information collected by him 

two   calls   were   made   to   BBC   offices   one   in   Srinagar   and   one   in   Delhi. 

There is absolutely nothing to dis-believe this version and, therefore, it is 

clear   that   telephone   No.9811278510   was   used   on   the   relevant   date   on 

22.12.2000 for claiming the responsibility of the attack in Red Fort.  When 

call   was   made   the   IMEI   number   was   449173405451240.     This   situation 

almost clinches the issue.

37.    The corroboration to the fact that a message was received by BBC 

Delhi   telephonically   regarding   the   attack   on   Red   Fort   on   22.12.2000   at 

about 9 O' Clock at night is to be found in the evidence of Satish Jacob 

(PW-150) who proved Exhibit PW-150/B.  There is no cross examination of 

the   witness   on   this   aspect.     The   prosecution,   therefore,   is   successful   in 

establishing that the cell phone No.9811278510 was used for making the 

calls to Srinagar, BBC correspondent as also to the BBC correspondent in 

Delhi.  In these calls, the caller who was handling that cell phone not only 

informed   about   the   attack   on   the   Red   Fort   but   also   owned   the 

                                            58

responsibility   of   Lashkar-e-Toiba   therein.     These   call   details   have   been 

proved   by   Rajiv   Pandit   (PW-198)   whose   evidence   we   have   already 

referred to earlier, vide Exhibit PW 198/B1 to B3.  The inter se connection 

in between  this cell phone and cell phone No.9811242154 is also clearly 

established   by   the   witness   Rajiv   Pandit   (PW-198)   on   the   basis   of   IMEI 

number used in that cell phone.   He had also established that these calls 

to the BBC were made from the vicinity of the Red Fort.  While the call to 

Srinagar was made from Chandni Chowk, the second call was made from 

behind the Red Fort.  It has already come in the earlier discussion that the 

information received from the analysis of the cell phone records particularly 

of cell No. 9811242154 along with its IMEI number came very handy to the 

investigating   team   for   further   establishing   the   connection   in   between   the 

landline   telephones   which   were   at   the   computer   centre   owned   by   the 

appellant at Ghazipur which  number was  in the name of his sister-in-law 

Farzana   Farukhi   and   where   the   appellant   lived   with   his   wife   Rehmana 

Farukhi.  Ms. Jaiswal took us thoroughly through the cross examination of 

this witness and pointed out that on the basis of Exhibit PW-198/DA, there 

were some contradictory entries in Exhibit PW-198/DA and the other data 

proved   by   the   witness.     We   are   not   impressed   by   this   argument   firstly 

because  there is  nothing to show that  this is an authenticated  document 

and   though   Ms.   Jaiswal   claimed   that   this   document   was   supplied   to   the 

accused by the prosecution, there is nothing to support such a claim.  We, 

                                              59

have, therefore, no hesitation in rejecting Exhibit PW-198/DA.  Ms. Jaiswal 

then   pointed   out   that   in   Exhibit   PW-198/E,   there   were   certain 

discrepancies.  The witness had actually explained those discrepancies by 

asserting   "if  the  computer  has   reversed   at  some  point,  it   may  be   due   to 

technical   fault".     It   is   quite   understandable   that   there   could   be   some 

technical   problems   in   the   computer.     We   have   gone   through   the   whole 

cross   examination  very  carefully  but   we  do   not   find   any  reason   to   reject 

Exhibit PW-198/E.  In our opinion, the insignificant irregularities brought in 

the cross examination would not call for rejection of the document and the 

evidence.  We, therefore, accept that cell phone No.9811278510 was used 

at a very crucial point of time i.e. between 9 to 9.30 p.m. at night on the 

day   when   the   attack   took   place   at   or   about   the   same   time   on   Red   Fort 

wherein three innocent persons were killed.  We also confirm the finding by 

the trial Court and the appellate Court that it was this mobile number which 

was found with the appellant when he was arrested. We have already held 

that the theory that this mobile number belonged to the prosecution and it 

was   planted   on   the   appellant   is   not   only   farfetched   but   totally   un-

believable.    We have  also  explained the delay in recovery of this mobile 

number   from   the   accused   on   the   basis   of   its   IMEI   number.     The   other 

corroborating   evidence   connecting   the   two   mobile   numbers   namely, 

9811278510   and   9811242154   and   the   IMEI   Nos.44519944090240   and 

449173405451240 and their interconnection with  phone No.011 3355751 

                                              60

of BBC, Delhi, 2452918 (BBC, Srinagar), 2720223 of Farzana Farukhi and 

phone   No.6315904   at  computer  centre  is   to  be  found  in  the  evidence  of 

Rajiv   Pandit   (PW-198),   Inspector   Mohan   Chand   Sharma   (PW-229)   and 

Inspector S.K.Sand (PW-230).  The attempt of the investigating agency in 

analyzing the call details of these two numbers succeeded in establishing 

the   connection   of   these   two   numbers   with   the   number   of   BBC 

correspondent at Srinagar, the number of BBC correspondent at Delhi, the 

number  at Farzana Farukhi's residence  and  the  number  at the computer 

centre   in   the   name   of   Danish   Mohd.   Khan.     But   for   this   careful   and 

meticulous analysis  which  was  of very high standards,  it  would  not have 

been possible to apprehend the appellant and to de-code the intricate and 

complicated   maze  of  the   conspiracy.    The   timing  of  the   calls made  from 

this number to BBC Srinagar bearing number 0194452918 and BBC, Delhi 

bearing No.011 3355751 are significant.  It will be seen that the calls made 

to   Srinagar   were   at   7.41   p.m.,   7.42   p.m.   and   9.27   p.m.   while   the   calls 

made to BBC, Delhi were  at 9.25 p.m., 9.33 p.m. and again 9.33-45p.m. 

Again, while the calls to Srinagar were made from the front side of the Red 

Fort, the other calls were made from the back side of the Red Fort which 

establishes   the   presence   of   this   mobile   phone   in   close   proximity   to   Red 

Fort when the calls were made.  That is a very significant aspect.

                                             61

38.    All this evidence would leave no option for us except to accept the 

prosecution's contention that this cell phone No.9811278510 and the other 

phone   No.   9811242154   as   also   the   two   IMEI   numbers   were   extremely 

significant aspects.

39.    The   next   circumstance   which   makes   these   mobile   cell   phones 

significant was the evidence of PW-229, Inspector Mohan Chand Sharma 

when he asserted that this mobile No.9811278510 was constantly used on 

14.11.2000 from Zakir Nagar area.  The witness claimed this on the basis 

of the cell ID.  It is to be seen that when the said mobile was used its IMEI 

No.   was   445199440940240   and   the   witness   further   asserted   that   during 

this   period   phone   calls   from   this   number   were   made   to   Pakistan.     The 

witness   explains   that   on   11.12.2000,   the   IMEI   number   was   changed   to 

449173405451240   and   a   telephone   call   was   made   from   this   number   to 

0116315904  which  is the landline number of computer centre run by the 

appellant.     The   making   of   the   calls   to   Pakistan   is   extremely   significant. 

This witness also explained in his evidence as to how on the basis of the 

cell   ID   and   the   call   record   of   the   two   mobile   cell   phones,   namely, 

9811278510 and 9811242154 they zeroed on the location of the accused. 

This   witness   has   explained   that   the   earlier   mentioned   IMEI   number 

445199440940240   was   also   used   in   the   second   mobile   number 

9811242154.   In his examination in chief, this witness has explained that 

                                              62

the   calls  were   received   and   made   from   and   to   this   number   9811242154 

from Zakir Nagar and Ghazipur.   He also asserted in his conclusion that 

the   cell   ID   of   mobile   number   9811242154   was   at   Zakir   Nagar   when   the 

calls   were   made   to   Ghazipur   and   the   cell   ID   was   at   Ghazipur   when   the 

calls   were   received   on   Zakir   Nagar.     This   he   said   on   the   basis   of   the 

computer installed in their office.   The witness also explained that the call 

details of the telephone number 9811242154 was collected from the official 

computer and he also proved the document Exhibit PW-229 A which data 

pertained to the period 22.7.2000 to 19.11.2000.   He also connected the 

two telephones by saying that the calls were made on 8.9.2000 at about 

11.37.53 hours to pager No.1949696 from both these mobile cell phones. 

He then asserted about the user of cell phone number 9811278510 on the 

day   when   the   attack   took   place.     He   also   established   the   connection   of 

landline   No.2720223   at   Ghazipur   which   stood   in   the   name   of   Farzana 

Farukhi   and   another   number   6315904   which   was   a   landline   number   at 

Knowledge   Plus   Computer   Centre   run   by   the   appellant.     It   was   on   the 

basis   of   the   caller   ID   that   the   investigating   team   zeroed   on   these   two 

points.  We do not see any reason to dis-believe this witness.  The calls to 

Pakistan   from   the   concerned   numbers   is   a   very   significant   circumstance 

particularly   because   the   appellant   is   admittedly   a   Pakistani   national   and 

was staying in India unauthorizedly.  

                                              63

40.     The witness also asserted on the basis of Exhibit PW-198/B1 to B3 

that there were  calls made on 20.12.2000  to 22.12.2000 in which calling 

number   could   not   be   recorded   as   the   calls   were   made   from   Pakistan   to 

India.     He   explained   it   that   during   those   days   clipping   facility   was   not 

available in India with Pakistan.  He explained clipping facility to be Calling 

Line   Identification   facility.     He   has   further   asserted   that   these   calls   from 

Pakistan were received on mobile number 9811278510 when that mobile 

number   was   at   Jamia   Nagar,   New   Friends   Colony,   Kashmere   Gate   and 

Chandni Chowk and he further asserted that on 22.12.2000 when the calls 

were received on 14.32 i.e. at 2.32 p.m. the position of the mobile was at 

Darya Ganj.   He also further explained that when the call was made from 

this  number   9811278510   on  22.12.2000  at  7.41   p.m.  the   location  of  this 

number could be inside the Red Fort.  Similarly he asserted about the calls 

having been made from this number at 8.24 p.m. when this telephone was 

at   Kashmere   Gate   i.e.   towards   the   back   of   Red   Fort.     He   also   asserted 

about the calls having been made from this number to BBC, Delhi when 

the location of cell phone was behind the back of Red Fort.   Similarly, he 

spoke  about the call having been made  to  BBC,  Srinagar on its  landline 

number from the same position when the cell phone caller was behind the 

back of the Red Fort. He also further asserted that on the same day i.e. on 

22.12.2000  the  calls were  received  on  this cell phone  number  when  this 

cell phone number was at Jamia Nagar and that the cell phone remained 

                                               64

in the same position at Jamia Nagar constantly.  There is no reason for us 

to dis-believe this evidence which was collected so painstakingly.  What is 

most  significant  in  this evidence  is  that  this very cell phone  number  was 

used to make the calls to and receive the calls from Pakistan.

41.     The   next   significant   circumstance   is   the   evidence   of   Inspector 

J.S.Chauhan of BSF (PW-162).   He was posted at Rajouri on 26.12.2000 

and  on  that   day  a  message   was  intercepted   by  BSF   to   the  effect  that  a 

wanted   militant   in   the   shoot-out   inside   Red   Fort   case   known   as   Ashfaq 

Ahmed   was   apprehended   while   other   militant   Abu   Shamal   was   killed. 

According   to   this   witness   this   message   was   being   passed   by   LeT   by   a 

militant   called   Abu   Sakar   to   a   station   in   Khyber   in   Pakistan   Occupied 

Kashmir.     He   proved   the   handwriting   of   one   B.S.   Virk   DIG   (West)   and 

proved the document as Exhibit PW-162A.  The other witness on this point 

is Constable Suresh Kumar, BSF Head Quarters Srinagar (PW-175).   He 

was the one who intercepted the message on his wireless set to the effect 

that Delhi police had killed one militant Shamal Bhai and one more militant, 

namely,   Abu   Hamad   Hazarvi   whose   real   name   was   Ashfaq   was 

apprehended.   The message also suggested that militant Bilal Babar was 

successful   in   running   away   and   was   hiding   in   Delhi   in   his   hide   out.     He 

asserted that he passed this message to the senior officers.   In his cross 

examination, it has come that it was not a coded message and the same 

                                            65

was being conveyed in Urdu.   A very funny suggestion has been given to 

this witness that it was  a coded message meaning thereby the factum of 

message was admitted.       In his cross examination at the instance of the 

appellant the witness  asserted that the message was  being passed from 

Srinagar though he was unable to locate the exact point of the wireless set 

from   which   it   was   being   sent.     There   is   hardly   any   cross   examination. 

Significantly, there is a reference to one Abu Bilal in the said intercepted 

message.     Very   significantly,   it   has   come   in   the   evidence   of   Inspector 

Pratap Singh (PW-86) and the evidence of S.K.Sand (PW-230) that when 

the   appellant   was   apprehended   and   his   wallet   was   checked,   a   negative 

was recovered from the wallet which was said to be of Abu Bilal.   In fact 

Inspector   S.K.   Sand   (PW-230)   got   this   negative   developed   into   a 

photograph.  He then asserted that the said Abu Shamal who was involved 

in   the   Red   Fort   shoot   out   case   had   died   and   an   FIR   No.9/2002   police 

station Special Cell was registered in this behalf.  The said Abu Bilal was a 

proclaimed   offender   in   FIR   No.688   of   2000   Police   Station   Kotwali,   Delhi 

and  as per the  evidence of Mohan Chand Sharma he was  subsequently 

killed   in   an   encounter.     All   this   voluminous   evidence   would   not   only 

corroborate the prosecution version to show the significant role played by 

the appellant in handling both the cell phone numbers mentioned above.  It 

is  of no minor significance that  on the apprehension of the appellant  the 

news should reach Srinagar and from there to Pakistan Occupied Kashmir 

                                            66

by   way   of   wireless   messages   not   only   about   the   involvement   of   the 

appellant but also about Abu Shamal who was killed in the encounter as 

also   Abu   Bilal   who   was   a   proclaimed   offender   and   was   then   killed   in 

another encounter.  

42.    There   is   also   some   material   brought   by   the   prosecution   about   the 

calls from these numbers to one Sher Zaman who is said to be a Hawala 

dealer.     The   investigating   agency   raided   the   house   of   Sher   Zaman   on 

12.01.2001.     This   was   on   account   of   the   information   received   by   the 

investigating   agency   from   the   appellant.     In   that   raid,   a   sum   of 

Rs.1,11,100/-   was   found   at   the   said   house   and   certain   other   documents 

like diaries were  also found which were  seized under the seizure memo. 

Mohd. Idrish (PW-74) who was the President of Dila Ram Afgani Market, 

Ballimaran   Delhi   has   proved   the   seizure.     The   fact   that   the   calls   were 

made from cell phone 9811278510  were  made by Mohd. Arif @ Ashfaq, 

the appellant, to the telephone No.3969561 was established by Kashi Nath 

(PW-46)   who   was   representative   of   MTNL.     He   proved   that   this   number 

was installed by him in premises No.5123, Sharif Manjil and that was the 

office   of   Sher   Zaman.     This   evidence   was   also   corroborated   by   Om 

Prakash   (PW-46).     Very   significantly,   the   documents   seized   at   Sher 

Zaman's   office   included   a   Visa   of   Islamic   Republic   of   Pakistan   and   an 

identity card of NIIT etc.  The seizure memo is proved by R.K. Ajwani (PW-

                                           67

83).     He   was,   at   the   relevant   time,   working   in   the   Directorate   of 

Enforcement   as   the   Chief   Enforcement   Officer   and   deposed   that   the 

appellant in his presence identified the photograph to be of Sher Zaman @ 

Shabbir and accepted that he used to deliver hawala money.  The visa slip 

of   Islamic   Republic   of   Pakistan   was   proved   and   marked   as   Exhibit   PW-

83/P1   and   NIIT   card   No.1235-00304   with   a   photograph   of   Sher   Zaman 

was   proved   and   marked   as   Exhibit   PW-83/P2.     There   were   some   other 

documents proved by this witness.  The cross examination of this witness 

is also lackluster.  Therefore, this evidence is also extremely significant to 

support the role played by the appellant in the conspiracy.

43.    Even at the cost of repetition, we may mention that immediately after 

the appellant was apprehended with a pistol and the live rounds he spilled 

the beans and gave information about his other associate Abu Shamal on 

the basis of which information the investigating team reached G-73, Batla 

House at about 3.15 a.m.   This is deposed to by Inspector Mohan Chand 

Sharma.     The   house   was   locked.     The   investigating   team   lay   there   and 

waited and at about 5.10 a.m. a man resembling the description given by 

the   appellant   entered   the   house.     The   house   was   knocked   at   and   the 

police disclosed their identity but the same was not opened and therefore, 

it had to be opened by the use of force.  As per the evidence of Inspector 

Mohan   Chand   Sharma   (PW-229)   the   firing   started   from   inside   and   the 

                                             68

same   was   returned   eventually   leading   to   the   death   of   Abu   Shamal   @ 

Faisal.   It is very significant to note that from this house, one AK-56 rifle, 

two magazines, 32 live and 67 fired cartridges were recovered.   Two live 

hand   grenades,   bullet   proof   jackets   and   khakhi   uniform   were   also 

recovered.   It is significant that there is virtually no cross examination on 

this aspect.   The evidence of Inspector Mohan Chand Sharma (PW-229) 

suggests that immediately after his apprehension, the appellant had owned 

up the involvement in the Red Fort attack incident and that he showed his 

residence to recover the arms and ammunitions and also disclosed about 

his associate.  There is absolutely no cross examination about the incident 

at   G-73,   Batla   House,   Muradi   Road,   Okhla   which   place   the   police   party 

was led by and discovered by the appellant.  There is nothing to challenge 

the   finding   of   the   weapons   &   ammunition   which   were   recovered   at   the 

instance of and  as a result  of information given by the  appellant.  All this 

has   gone   unchallenged   in   cross   examination   of   Inspector   Mohan   Chand 

Sharma (PW-229).  All this is supported by documentary evidence like DD 

entry   bearing   No.20   at   Police   Station   New   Friends   Colony   which 

mentioned about the firing going in Gali N.8, Batla House.  Ram Singh, ASI 

(PW-92) proved this entry.   Similarly, the receipt of information is entered 

as DD entry No. 28A at the same police station on 26.12.2000 at 6.40 a.m. 

Lastly,   on   the   same   day   there   is   another   entry   DD   No.22A   at   the   same 

police   station   on   the   basis   of   information   by   Inspector   Mohan   Chand 

                                             69

Sharma and FIR No.630 of 2000 was also registered.  The other significant 

witnesses are Constable Ranbir Singh (PW-177) and ASI Ran Singh (PW-

92).     We   need   not   go   into   the   contents   of   these   entries   excepting   to 

suggest that the information given by the appellant about Abu Shamal is 

reflected therein.    This brings us to a very important discovery statement 

made   by   the   appellant   as   also   to   the   seizure   in   pursuance   of   the   said 

discovery statement.

44.    The   appellant   was   formally   arrested   after   he   was   brought   back   at 

about 6.45 a.m. by S.I. Harender Singh (PW-194).  It is at this time that the 

mobile   phone   No.9811278510   was   recovered   from   his  possession.     The 

seizure has been proved by Zile Singh (PW-148) which is Exhibit PW-148/ 

D.  This witness proved that after his formal arrest by S.I. Harender Singh 

in   the   search   of   appellant,   Rs.1000   in   cash   and   the   mobile   phone   of 

Motorola make was recovered.  He then made a disclosure statement vide 

Exhibit PW-148 E.   This recovery of mobile phone was also corroborated 

by   Inspector   Mohan   Chand   Sharma   (PW-229).     It   had   IMEI   number 

449173405451240   on   which   calls   were   made   from   mobile   phone 

9811278510  and  as per the  call details  this was   the instrument used  for 

mobile number 9811278510.  We have already explained in the earlier part 

of the judgment that this evidence could not be rejected on the mere plea 

that   the   mobile   number   was   not   found   or   was   not   immediately   taken   in 

                                              70

possession by the investigating agency though they apprehended him on 

the night of 25.12.2000.  We have also pointed out as to how it would have 

been   disastrous   to   waste   time   in   writing   the  Panchnama  instead   of 

immediately   acting   on   the   information   given   by   the   appellant.     We, 

therefore, see nothing unnatural or unusual in the recovery of the mobile 

phone   9811278510.     After   all,   the   subsequent   results   which   followed 

discovery statement by the appellant i.e. the knowledge about G-73, Batla 

House and the encounter of Abu Shamal and the finding of his fire weapon 

and   the   ammunition   etc.   do   justify   the   quick   action   on   the   part   of   the 

investigating agency.  We, therefore, cannot view with suspicion the formal 

arrest of the appellant and the recoveries effected thereafter or the seizure 

memos executed.

45.     After   his   arrest   in   the   evening   of   25.12.2000,   the   appellant   firstly 

disclosed about Abu Shamal @ Faizal.  After the encounter of Abu Shamal 

@   Faizal,   when   his   formal   arrest   was   made,   he   made   disclosures   vide 

Exhibit PW-148/E.   There is no cross-examination of S.I. Zile Singh (PW-

148)   about   the   factum   of   the   appellant   having   made   a   disclosure.     S.I. 

Harender   Singh   (PW-194)   is   another   witness   to   speak   about   the   Exhibit 

PW-148/E.  It has been baldly suggested to S.I. Harender Singh (PW-194) 

that the appellant was tortured.  The discovery statement which was made 

by the appellant is to the following effect:-

                                            71

               "Abu Shaimal had thrown his AK-47 rifle, magazine and 

               hand   grenade   into   the   shrubs   near   nullah   behind   the 

               wall of Red Fort.   Abu Shad had thrown his AK-47 rifle 

               into the shrubs grown at Vijay Ghat.  I can point out the 

               places and get recovered the weapons."

       Another witness examined on this issue was S.I. Satyajit Sarin (PW-

218).   He asserted in his examination-in-chief that the investigation team 

reached  the  Red Fort alongwith  Mohd. Arif @  Ashfaq and  the team was 

joined   by   Inspector   Hawa   Singh   (PW-228).     They   requested   two/three 

passersby to join the investigation, but they refused to join and, therefore, 

without   wasting   any   further   time,   they   reached   the   spot   and   there   they 

found   AK-56   Assault   Rifle,   two   magazines   tied   to   each   other   and   a 

bandoleer   of   military   green   colour   containing   four   hand   grenades   in   four 

different   packets.     The   site  plan  was   prepared   by  Inspector  Hawa Singh 

(PW-228) and the recovery of the arms and ammunition was made and the 

same were  taken to P.S.  Kotwali.    The hand grenades were  later on got 

defused.  The chance finger prints were tried to be taken and photographs 

were taken.

46.    The witness also gave a complete description of the four detonators 

and a slip attached to the hand grenades.   A complete description of the 

shells   was   given   by   this   witness.     He   also   identified   the   said   rifles, 

magazines,   knife   and   detonators,   as   also   four   hand   grenades   and   the 

bandoleer  in Court.    The  other witness  to support this discovery and the 

                                             72

recoveries pursuant thereto is S.I. Amardeep Sehgal (PW-227).   He also 

gave a complete story as deposed by the earlier witness.   This evidence 

was   further   corroborated   by   the   evidence   of   N.B.   Bardhan,   Sr.   Scientific 

Officer   in   CFSL   (PW-202),   who   was   present   at   the   time   of   recovery   of 

hand grenades  being a ballistic expert.   Another witness   is S.K. Chadha 

(PW-125).     We   have   already   discussed   earlier   the   evidence   of   N.B. 

Bardhan about the nature of the rifles, one found at Batla House and the 

other recovered at the instance of the appellant from the Red Fort wall.  He 

has also spoken about the nature of the hand grenades.   This discovery 

was   attacked   vehemently   by   Ms.   Kamini   Jaiswal,   learned   counsel 

appearing   on   behalf   of   the   appellant,   in   all   the   aspects.     The   learned 

counsel   described   this   recovery   as   a   farce   and   also   asserted   that   this 

discovery could not be said to be a discovery at all in view of the fact that 

in   all   probability,   the   placement   of   the   rifles,   bandoleer   etc.   must   have 

known to the police for the simple reason that the whole area was almost 

combed   by   number   of   police   personnel   for   the   whole   night   and   even 

thereafter  i.e.  in  the  night   of  22.12.2000  and   the  morning   of  23.12.2000. 

We have seen the recovery Panchnama proved by the witnesses at Exhibit 

PW-227/A.     It   has   to   be   borne   in   mind   that   both   the   rifles   and   the 

ammunition have not only been identified by the witnesses but it has also 

been proved by the prosecution as to how they were used and the fact that 

they were used actively in the sense that they were fired also.   We have 

                                            73

already discussed the evidence of the Ballistic experts, which went on to 

corroborate the version by the prosecution.   The learned counsel pointed 

out that this weapon  was  found near to the slip which was  recovered on 

the night of 22.12.2000 itself.  She also pointed out that weapon could not 

be said to be hidden.  They were just lying in the bush and, therefore, it is 

just impossible to infer that they were not seen by the police.  In short, the 

learned   counsel   suggested   that   this   is   a   fake   discovery   and   the   police 

already knew about the AK-56 Assault Rifle, magazines and a bandoleer 

etc.     She   pointed   out   that   one   other   witness,   namely,   Abhinender   Jain 

(PW-28) was a part of the team in recovering the weapons allegedly at the 

instance of the appellant and he did not speak about the disclosure made 

by the appellant on 26.12.2000.   We shall revert back to this discovery in 

particular and the law relating to Section 27, Evidence Act a little later.

47.    Another   discovery   at   the   instance   of   the   appellant   was   on 

01.01.2001 vide Disclosure Statement (Exhibit 28/A).     However, there is 

one   more   important   discovery   at   the   instance   of   the   appellant,   which   is 

proved at Exhibit 168/A.  It was made on 01.01.2001 and has been proved 

by   R.S.   Bhasin   (PW-168)   and   S.I.   Satyajit   Sarin   (PW-218).     In   this 

discovery, the appellant disclosed that out of the hand grenades which he 

had   brought   from   Pakistan,   three   were   hidden   in   the   bushes   inside 

boundary wall of Jamia Milia Islamia University, which spot is just behind 

                                           74

the   computer   centre   run   by   the   appellant.     Accordingly,   this   discovery 

statement   was   recorded   by   R.S.   Bhasin   (PW-168)   and   he   organized   a 

raiding   team   consisting   of   Inspector   Hawa   Singh   (PW-228),   Inspector 

Mohan Chand Sharma (PW-229) and five others, who were not examined 

by the prosecution.  The team went to New Friends Colony at 2.25 pm and 

appraised SHO Gurmeet Singh (PW-213), who  alongwith  two others (not 

examined), joined the investigation.   After taking the permission from Dr. 

Farukh and Dr. Mehtab, one Raghubir Singh (PW-209) was asked by the 

authorities to join the investigation.   One Devender Kumar (PW-208) also 

joined the raiding party.  Thereafter, at the instance of the appellant, three 

hand grenades were recovered kept concealed.  A seizure memo was also 

executed vide Exhibit PW-168/B and a Rukka was  also prepared, on the 

basis   of   which   a   new   case   was   sought   to   be   registered   at   P.S.   New 

Friends   Colony.     One   more   disclosure   statement   was   made   vide 

Exhibit   PW-168/D,   where   the   appellant   disclosed   and   agreed   to   recover 

more   hand   grenades   and   AK-56   rifle   which   was   recovered   from   Safa 

Qudal, Sri Nagar.   This version was supported by S.I. Satyajit Sarin (PW-

218) as also S.I. Amardeep Sehgal (PW-227) and Inspector Hawa Singh 

(PW-228).  There is nothing to disbelieve this discovery of hand grenades 

which   hand   grenades   were   ultimately   identified   and   their   potency   was 

proved by N.B. Bardhan (PW-202).  A feeble contention was raised by Ms. 

Jaiswal,  learned counsel that this discovery of the hand grenades should 

                                               75

not be believed because it is belated.   She pointed out that the appellant 

was   in   the   police   custody   right   from   the   night   of   25.12.2000   and   the 

discovery statement was made and recorded on 1.1.2001.   Insofar as the 

discovery of grenades is concerned, we must say that nothing much was 

argued.  The significance of the grenades having been hidden right behind 

the   computer   centre   near   the   compound   wall   of   Jamia   Milia   Islamia 

University cannot be ignored.  The appellant has no explanation as to why 

the three hand grenades were hidden right behind the computer centre.  

48.     The  learned  Solicitor General very forcefully argued with  reference 

to various documents which supported this discovery and pointed out that 

immediately after the recovery of these hand grenades, they were seized 

properly and this recovery was supported by the independent evidence of 

Devender Jain (PW-208) and Raghubir Singh (PW-209).   He also pointed 

out  that  there is  nothing  in  the cross-examination  of  these  two  individual 

witnesses   to   dispute   or   doubt   the   recovery   of   the   hand   grenades   at   the 

instance   of   the   appellant.     It   is   to   be   noted   that   police   could   not   have 

produced the foreign made hand grenades to be planted either at the Red 

Fort   or   at   Jamia   Milia   Islamia   University   behind   the   computer   centre. 

Insofar as the discovery of hand grenades at Jamia Milia Islamia University 

is concerned, we have no doubts about its genuineness and we accept the 

same.     Merely   because   the   appellant   was   in   custody   for   4-5   days   and 

                                              76

decided   to   disclose   the   information   only   on   01.01.2001,   would   not   be   a 

reason by itself to doubt the same or to have any suspicion on the same. 

In the case of this nature and magnitude and also considering the nature of 

the appellant who  was  a Pakistani national and was  allegedly sent to do 

terrorist  acts in  India  and  as such  a tough  terrorist,  was  not  expected  to 

give   easily   the   information   unless   he   was   thoroughly   interrogated. 

Considering   the   peculiar   nature   of   this   case,   we  accept   the   discovery  of 

grenades at the instance of the appellant.  Same thing can be stated about 

the   earlier   discovery   dated   26.12.2000   of   the   AK-56   Assault   Rifle, 

magazines, bandoleer etc.  The very fact that these weapons were proved 

to have been used would corroborate the discovery.   If the general public 

refused to join the investigation to become Panchas, that cannot be viewed 

as a suspicious factum and on that basis, the investigative agency cannot 

be faulted.  After all, what is to be seen is the genuineness and credibility 

of the discovery.  The police officers, who were working day and night, had 

no reason to falsely implicate the appellant.  They could not have produced 

AK-56   Rifles   and   the   grenades   of   foreign   make   from   thin   air   to   plant   it 

against the appellant.  It has been held in Suresh Chandra Bahri v. State  

of Bihar [1995 Suppl (1) SCC 80]  that even if the discovery statement is 

not recorded in writing but there is definite evidence to the effect of making 

such  a discovery statement  by  the concerned  investigating officer,  it can 

still be held to be a good discovery.  The question is of the credibility of the 

                                             77

evidence of the police officer before whom the discovery statements were 

made.    If the  evidence  is  found to  be genuine  and  creditworthy,  there  is 

nothing  wrong  in accepting such  a  discovery statement.    We do not  see 

any   reason   to   accept   the   argument   that   the   police   must   have   already 

known about the weapon.   Considering the fact that this attack was on a 

dark night in the winters and the guns were thrown in the thick bushes then 

existing behind the Red Fort wall, it is quite possible that they were missed 

by the investigating agency.  At any rate, the recovery of these guns from 

the spot near which the whole horrible drama took place and the appellant 

having   knowledge   about   the   same   and   further   the   proved   use   of   these 

weapons and their fire-power, would persuade us to accept this discovery. 

Again,   we   cannot   ignore   the   fact   that   the   factum   of   discovery   has   been 

accepted by both the Courts below.

49.    There   are   some   other   significant   circumstances   relied   on   by   the 

prosecution   to   show   that   the   appellant,   who   admittedly   was   a   Pakistani 

national   and   had   unauthorizedly   entered   India,   wanted   to   establish   his 

identity in India and for that purpose, he got prepared a fake and forged 

ration card and on that basis, applied for a driving license and also opened 

bank   accounts.    The  only purpose   in  doing  this was  to  establish  that   he 

was living in Delhi legitimately as an Indian national.

                                              78

50.     On his arrest on 25.12.2000, a ration card was recovered and seized 

from the very house at 308A, DDA flats, Ghazipur, Delhi.   This card bore 

the number 258754.   This was in the name of Ashfaq Ahmed, S/o Akram 

Khanat, R/o F-12/12, Batla House, Okhla, New Delhi.  S.R. Raghav, retired 

Food and Supply Officer, Delhi (PW-7) entered the witness box to suggest 

that this card was not issued by his department i.e. Circle 6, Okhla.  Other 

witness   is   Ms.   Anju   Goel,   UDC   (PW-164),   who   deposed   that   the 

appellant's   ration  card   did   not   bear  her   signature.     She   also   pointed   out 

that the signature appearing in Exhibit PW-164/A (ration card) was not her 

signature.     There   is   no   effective   cross-examination   of   both   these 

witnesses.   Dharamvir Sharma, FSO, Circle 3, Bijwasan, Delhi (PW-165) 

also referred to the aforementioned ration card proved by Ms. Anju Goel 

(PW-164) and asserted that the signature and the handwriting on the said 

card  was   not  that  of   Ms.  Anju   Goel.     Manohar  Lal,   UDC,   Department   of 

Education   (PW-172)   deposed   that   the   appellant's   ration   card   was   not 

issued   from   Circle   6   of   the   Ration   office.     Kushal   Kumar   (PW-174) 

deposed   that   he   had   made   entry   of   ration   card   of   the   appellant   in   his 

register   at   his   fair   price   shop.     Ms.   Sunita,   LDC,   Food   &   Supply   Office, 

Circle 7 (PW-191) gave specimen of two rubber stamps and they did not 

tally with the rubber stamps on the ration card of the appellant.   There is 

absolutely   no   cross-examination.     There   is   a   report   proved   by   Yashpal 

Singh,   Supply   Inspector,   Department   of   Food   and   Supply,   Ghaziabad 

                                            79

(PW-2), being Exhibit PW-2/A, to the effect that no ration card in the name 

of Mohd. Arif @ Ashfaq (appellant) was ever issued by their office.  Thus, it 

is obvious that the appellant got prepared a fake ration card, where name 

of   his   wife   was   mentioned   as   Bano   and   residence   as   102,   Kela   Bhatta, 

Ghaziabad,   where   he   had   never   resided.     This   ration   card,   significantly 

enough,   was   recovered   from   his   house   at   308A,   DDA   flats,   Ghazipur, 

Delhi.     Yashpal   Singh   (PW-2)   and   Rajbir   Singh,   Area   Rationing   Officer, 

Food   and   Civil   Supply   Department,   Ghaziabad   (PW-3)   proved   that   the 

ration card was in the name of Azad Khalid (PW-1) and there was no ration 

card   in   the   name   of   Ashfaq   Ahmed   S/o   Akram   Khanat.     Azad   Khalid 

Siddique,   Correspondent,   Sahara   TV   (PW-1)   himself   stepped   into   the 

witness box and deposed that there was one ration card in his name and 

other in his father's name, which were issued at the address of 102, Kela 

Bhatti,   Ghaziabad,   which   address   was   falsely   given   by   the   appellant 

because the appellant had never stayed  at the said address.   Thus, it is 

obvious   that   the   ration   card   was   fake   and   fabricated.     The   factual 

information on the ration card also does not tally at all.

51.    The   investigating   agency,   on   3.1.2001,   seized   certain   important 

documents, they being a learner's license issued by Shaikh Sarai Authority 

bearing Exhibit No. PW-13/C, Form No. 2 of Ashfaq Ahmed for renewal of 

learner's   license   bearing   Exhibit   No.   PW-13/D   and   a   photocopy   of   the 

                                               80

ration card  of Ashfaq  Ahmed  bearing Exhibit  No. PW-13/E.   The  seizure 

memo   is   Exhibit   PW-13/B.     These   documents   have   been   proved   by  S.I. 

Rajinder Singh (PW-137).   This was  in order to do the verification of the 

driving   license   of   the   appellant.     The   witness   suggests   that   he   enquired 

from   Ms.   Mamta  Sharma  (PW-16),   ARTO,   who   confirmed   that   the   same 

was a genuine driving license having been issued by her office and hence, 

proceeded to seize the supporting documents.   It is obvious that the said 

driving license was sought for on the basis of the ration card in the name of 

the appellant, which was obviously fake, as we have already shown above 

for the simple reason that the address given on this driving license was not 

the genuine address of the appellant, whereas it was in fact the address of 

Azad Khalid Siddique (PW-1) who had nothing to do with the appellant.  In 

this   driving   license   also,   the   address   given   by   the   appellant   was   B-17, 

Jangpura,   Bhogal   and   it   was   issued   by   Sarai   Kale   Khan   Authority.     He 

obviously did not reside on this address which is clear from the evidence of 

Narayan Singh (PW-6).  Thus, not only did the appellant got himself a fake 

and forged ration card, but on this basis, also got prepared a fake learning 

license,   in   which   also,   he   gave   a   false   residential   address.     All   this   was 

obviously   with   an   idea   to   screen   himself   and   to   carry   on   his   nefarious 

activities   in   the   Indian   cities.     Nothing   much   has   come   in   the   cross-

examinations   of   these   witnesses.     We   have,   therefore,   no   hesitation   to 

hold that the appellant used a forged ration card and got a driving license 

                                            81

giving a false address.

52.    The appellant, in order to legitimize his residence in Delhi, started a 

computer   centre   at   House   No.18C,   Gaffur   Nagar,   Okhla.     Danish   Mohd. 

Khan   (PW-44),   Mohd.   Khalid   (PW-36),   Faizal   Mohd.   Khan   (PW-56), 

Shahvez   Akhtar   (PW-113)   and   Shahnawaz   Ahmad   (PW-163)   are   the 

witnesses on this aspect.   Danish Mohd. Khan (PW-44) deposed that his 

cousin Faizal had opened a cyber cafe with the appellant and this was told 

to him in September, 2000.  Previously both of them used to reside in the 

house of Nain Singh (PW-20).  Since Faizal did not have an identity proof, 

he borrowed the identity card of this person and since the card was in his 

name, the phone connection in this computer centre was also in his name. 

He,   undoubtedly,   resiled   from   his   statement   before   the   police   that   he 

applied   for   a   telephone   connection   in   his   name.     However,   there   is   no 

cross-examination of this witness about what was told to him by Faizal.  In 

his cross-examination at the instance of the Public Prosecutor, he admitted 

that Faizal had asked him to help him in getting telephone connection.  He 

also   admitted   that   Faizal   had   told   him   that   for   getting   an   internet 

connection,   a   telephone   was   required.     The   telephone   number   of   the 

computer centre was 6315904 which was in the name of this witness.

53.    The   other   witness   in   this   behalf   is   Faizal   Mohd.   Khan   (PW-56) 

himself who deposed that he was residing in the house of one Nain Singh 

                                              82

(PW-20) at Okhla Village on a monthly rent of Rs.1,000/- and that he had a 

personal computer on which he used to practice.  He further deposed that 

one Adam Malik (PW-31) also used to reside in the said house and it was 

he   who   brought   the   appellant   with   him   in   May,   2000.     It   was   this   Adam 

Malik (PW-31) who  introduced  him to the appellant and told him that the 

appellant is a resident of Jammu.   He wanted to open a computer centre 

but  was  not  having enough money and  it  was  Adam Malik (PW-31) who 

informed the appellant that the witness wanted to open a computer centre 

and offered financial help.  He managed Rs.70,000/- and the appellant put 

Rs.1,70,000/-   and   that   is   how   the   computer   centre   was   opened.     The 

witness  stated  that  the twosome  i.e. himself and  the appellant  employed 

one   Shahvez   Akhtar   (PW-113)   and   Shahnawaz   Ahmad   (PW-163)   as 

faculty members on the condition that they would get salary only when the 

computer centre starts earning profit.   He then deposed that he used the 

ration   card   of   Danish   Mohd.   Khan   (PW-44)   and   a   telephone   connection 

was   obtained   in   the   name   of   Danish   Mohd.   Khan   (PW-44)   and   was 

installed   at   the   computer   centre   `Knowledge   Plus'.     We   have   already 

referred   to   his   assertion   that   the   appellant   had   a   mobile   phone.     In   his 

cross-examination, nothing much has come about the contribution given by 

the appellant of Rs.1,70,000/-.   He also asserted that it was the appellant 

who managed to take the premises of computer centre on lease.  Shahvez 

Akhtar  (PW-113) and  Shahnawaz  Ahmad  (PW-163) have supported this. 

                                            83

Adam Malik (PW-31) also confirmed that he was the one who arranged for 

the accommodation of the appellant in the house of Nain Singh (PW-20). 

To   him,   the   appellant   had   told   that   he   was   a   Kashmiri   and   doing   the 

business of selling shawls.  Nain Singh (PW-20) also supported the theory 

of the appellant contacting him through his earlier tenant Adam Malik (PW-

31).  To the same effect is the evidence of Aamir Irfan (PW-37) and Rashid 

Ali (PW-232).  All this clearly goes on to show that the appellant was all the 

time   making  false   representation,  firstly,  on   his  doing  business   of  selling 

shawls,  secondly,  on   carefully  entering   as  a  tenant  in  the  house  of  Nain 

Singh   (PW-20),   thirdly,   on   defrauding   Danish   Mohd.   Khan   (PW-44)   for 

opening   a   computer   centre   for   which   he   contributed   Rs.1,70,000/-   and 

lastly, successfully getting a telephone installed at the computer centre.  All 

this was nothing but a deliberate effort to find a firm foot hold on the Indian 

soil to carry out his nefarious design.

54.    We have also gone through the evidence of Gian Chand Goel (PW-

21), which establishes the connection of the appellant with House No.G-73 

Batala House, Murari Road, Okhala, New Delhi, where the encounter took 

place in which the appellant's companion Abu Shamal was  killed.   In his 

evidence,   Gian   Chand   Goel   (PW-21)   specifically   stated   that   he   did   not 

know   anything   about   the   appellant   and   that   he   had   rented   the   house   to 

Rashid Ali (PW-232) on 6.12.2000 i.e. barely 16 days earlier to the incident 

                                             84

at a monthly rent of Rs.1,500/-.   He also deposed that on 7.12.2000, two 

other boys were  brought by him and all the three started residing on the 

first floor of his house.   He deposed that Rashid Ali (PW-232) who was a 

student   of   Jamia   Milia   Islamia   University   and   the   appellant   were   the 

tenants of Nain Singh (PW-20) and later on, they shifted into his house as 

tenants.       He   also   referred   to   the   encounter   dated   26.12.2000,   wherein 

Abu Shamal was killed, though he did not know the name of Abu Shamal.

55.    Rashid Ali (PW-232) had a significant role to play in this whole affair. 

He   asserted   that   he   was   a   tenant   of   Nain   Singh   (PW-20)   in   1998   while 

studying   in   Jamia   Milia   Islamia   University   in   B.A.   IInd   Year.     He   was 

friendly with one Hamid Mansoori and Adam Malik (PW-31).   He came to 

know the appellant who was residing in the house of Nain Singh (PW-20) 

as   a   tenant.     He   also   confirmed   that   the   appellant   was   having   a   mobile 

phone with him.   On 8.12.2000, the appellant took him to Roza Iftar Party 

at Laxmi Nagar.   Instead of the Iftar Party, the appellant got married to a 

lady on that day.  Significantly enough, the appellant had already gone as 

a tenant to Gian Chand Goel (PW-21), however, it seems that still he was 

making out as if he was residing in PW-20 Nain Singh's house and in an 

important   function   like   his   marriage,   he   took   Rashid   Ali   (PW-232)   telling 

him that they were going for an Iftar Party in the month of Ramzan.  All this 

suggests   that   the   appellant   was   very   particular   about   his   own   personal 

                                             85

details   and   made   various   false   representations   to   all   those   in   whose 

contact he came.  Needless to say that he used all these witnesses to his 

own benefit for carrying out his evil design in pursuance of the conspiracy.

56.    This   brings   us   to   the   evidence   of   Nain   Singh   (PW-20)   and   the 

fantastic   theory   that   the   defence   gave   about   the   role   played   by   this 

witness.    The  said witness  was  examined to show that House No. 97-A, 

Okhla Village was in the name of his mother and while he stayed on the 

ground floor, his mother had rented out the first floor and the second floor. 

He asserted that Adam Malik (PW-31) was the tenant on the second floor 

and he had brought the appellant to his mother and his mother had rented 

out the room to him at the rent of Rs.1,200/- per month.  He also asserted 

that he asked Adam Malik (PW-31) to get the house vacated, whereupon, 

the  appellant  vacated the house after about one and a half months.   He 

was cross-examined in detail.  It was brought out in his cross-examination 

that   he   did   not   have   any   documentary   evidence   regarding   the   appellant 

remaining in that house as a tenant.  It was suggested to him that he was 

working as an Intelligence man in the Cabinet Secretariat.   He was made 

to   admit   that   he   could   not   disclose   the   present   official   address   or   the 

places where he moved out of Delhi.   He was made to say "I cannot say 

whether  I am not disclosing these addresses as my identity in the public 

would be disclosed".  He also refused to show his identity card in the open 

                                              86

Court   while   it   was   shown   to   the   Court.     He   was   made   to   say   "I   cannot 

disclose  whether  I am  working  for  RAW".   He  then  clarified  that  no  fund 

was at his disposal for going out of Delhi, but he was paid for the Railway 

warrant   or   air   ticket.     Strangely   enough,   a   suggestion   was   given   to   the 

witness to the effect that the appellant never took the aforesaid house from 

his mother on rent or that he was introduced by any of the other tenants of 

that   house.     All   through   in   his   cross-examination,   it   was   tried   to   be 

suggested that the appellant never stayed in his house as a tenant.   That 

is all the cross-examination of this witness.  In his statement under Section 

313 Cr.P.C.,  the appellant suggested  that he used to work  for X-Branch, 

RAW   (Research   &   Analysis   Wing)   since   1997   and   he   had   come   to 

Kathmandu in June, 2000 to give some documents to one Sanjeev Gupta 

on a Pakistan Passport bearing No. 634417.   He spoke that there was a 

party named Paktoonmili Party and RAW was supporting that party since 

last  30-35  years.     He stated  that   one  Sagir  Khan   was  a  member   of  that 

party and he was arrested by the police of Pakistan alongwith his younger 

brother   and   he   received   this   news   in   Kathmandu   and   spoke   to   Sanjeev 

Gupta in this regard.   He further claimed that his cousin had also advised 

him   not   to  return   to  Pakistan  for   the   time  being   and   that   Sanjeev   Gupta 

advised him to go to India and he accompanied him upto Rauxol and from 

there,   he   (the   appellant)   came   to   India   by   train.     He   claimed   that   the 

address   of   Nain   Singh   (PW-20)   was   given   to   him   by   Sanjeev   Gupta   as 

                                            87

also   his   telephone   number   being   6834454.     He   then   claimed   that   Nain 

Singh (PW-20) gave a room in his house for his stay and advised him not 

to   tell   his   name   and   address   to   anyone   and   to   describe   himself   as   a 

resident   of   Jammu.     He   claimed   that   Nain   Singh   (PW-20)   used   to   do 

business   of   money   lending   and   the   appellant   used   to   help   him   in 

maintaining   his   accounts.     He   then   claimed   that   Nain   Singh   (PW-20) 

helped him to open the computer centre.  Thereafter, Nain Singh (PW-20) 

got   some   money   through   Sanjeev   Gupta   from   Nepal.     The   amount   was 

Rs.7 lakhs.  However, Nain Singh (PW-20) did not disclose about receiving 

of that huge amount and whenever he was questioned about any amount, 

Nain   Singh   (PW-20)   used   to   avoid   such   questions.     He   then   claimed   to 

have  contacted  his  family members  who  asked  him to  speak  to Sanjeev 

Gupta   and   after   he   spoke   to   Sanjeev   Gupta,   he   came   to   know   about 

Rs.6,50,000/-   having   been   sent   to   Nain   Singh   (PW-20)   by   him.     The 

appellant then claimed that Nain Singh (PW-20) got his account opened in 

HDFC Bank and also got a cheque book which was shown to him.  It was 

at his instance that the appellant was asked to sit at the computer centre 

and his cheque book of the HDFC bank used to remain with  Nain Singh 

(PW-20).     According   to   the   appellant,   Nain   Singh   (PW-20)   got   only   one 

cheque signed by him and whenever he needed money, he used to take it 

from Nain Singh (PW-20) in the sum of Rs.500/- to Rs.1,000/-.   He then 

claimed   that   one   Chaman   Lal   in   Chandni   Chowk   and   one   Sardar   Ji   in 

                                            88

Karol Bagh were also engaged in the business of money lending and the 

appellant used to collect money from them on behalf of Nain Singh (PW-

20).  He then went on to suggest that on the birthday party of his son, Nain 

Singh (PW-20) got him introduced to Inspector R.S. Bhasin (PW-168) and 

Inspector   Ved   Prakash   (PW-173).     However,   he   persisted   in   demanding 

money from Nain Singh (PW-20) on which Nain Singh (PW-20) used to get 

annoyed and because of that, he got the appellant involved falsely in this 

case.  He claimed that on 25.12.2000, Nain Singh (PW-20) called him from 

his computer  centre  to  his house on  the plea that  Inspector R.S.  Bhasin 

(PW-168)   and   Inspector   Ved   Prakash   (PW-173)   had   to   take   some 

information   from   him   and   he   accordingly   came   to   the   said   house. 

Thereafter, these two persons who were in plain clothes and had come to 

the house of the appellant in a white maruti zen car took him to a flat in 

Lodhi   Colony,   where   both   the   Inspectors   alongwith   one   Sikh   Officer 

interrogated   the   appellant   about   his  entire   background   and   thereafter   he 

was dropped to his house by the same persons.  Nain Singh (PW-20) was 

not present at that time, but his wife informed him about the telephonic call 

received   from   his   in-laws   at   Ghazipur   regarding   dinner   in   the   evening. 

Thereafter, he took a bus and reached the house of his in-laws and asked 

them whether they had made a call which they denied to have made.  He 

claimed   to   have   finished   his   dinner   by   10.00   pm   when   the   police   party 

raided   the   house.     The   appellant   stated   that   the   police   party   threatened 

                                              89

him that if he spoke much, he will  be shot dead and his signatures were 

obtained on a blank paper.  Then he was tortured and was constantly kept 

in   the   custody   of   Inspector   R.S.   Bhasin   (PW-168),   S.I.   Murugan   and 

Constable Jai Parkash.  He then admitted to have put his signatures on the 

blank   paper   under   the   fear   of   torture   to   himself   and   his   sister-in-law, 

mother-in-law and brother-in-law.  He further said that he did not know any 

other   accused   excepting   his   wife   Rehmana   Yusuf   Farukhi.     He   claimed 

that he was implicated in this case only because he is a Pakistani national.

57.     All this would go to suggest that Nain Singh (PW-20) had a very vital 

part to play in his (appellant) being brought to India and being established 

there.     Very   strangely,   all   this   long   story   runs   completely   counter   to   the 

cross-examination   of   Nain   Singh   (PW-20),   as   has   already   been   pointed 

out.   In his cross-examination, the whole effort on the part of the defence 

was to show that the appellant was never a tenant of Nain Singh (PW-20) 

and had never stayed at his place, whereas  his defence was  completely 

contrary   to   this   theory   wherein   the   appellant   has   claimed   that   he   was 

intimately   connected   with   Nain   Singh  (PW-20),  inasmuch   as,  he  used  to 

look after his accounts and used to assist him for recovery of the amounts 

loaned   by   Nain   Singh   (PW-20)   to   various   other   people.     The   learned 

counsel did not even distantly suggest to PW-20 Nain Singh the long story 

stated by the appellant in his statement under Section 313 Cr.P.C.  There 

                                            90

is not even a hint about the role played by Sanjeev Gupta in Nepal or the 

amounts allegedly sent by Sanjeev Gupta to Nain Singh (PW-20) and Nain 

Singh   (PW-20)   having   refused   to   part   with   the   amount   in   favour   of   the 

appellant.     There   is   nothing   suggested   to   Nain   Singh   (PW-20)   that   the 

appellant   was   working   for   the   X-Branch,   RAW,   much   less   since   1997, 

while he was in Pakistan.   The learned defence counsel Ms. Jaiswal very 

vociferously argued that Nain Singh (PW-20) was  actually working for an 

organization "RAW".  She also pointed out that a clear cut suggestion was 

given   about   his   RAW   activities   and   his   being   a   member   of   RAW,  in   his 

cross-examination.     She   also   pointed   out   that   there   was   some 

contradiction   in   the   statement   of   Nain   Singh   (PW-20)   and   Adam   Malik 

(PW-31) about letting out the house to the appellant.   Much was made of 

the fact that Nain Singh (PW-20) refused to disclose his identity and shown 

the identity card only to the Court.  From all this, the learned counsel tried 

to argue that Nain Singh (PW-20) was a RAW agent and was also involved 

in   business   of   money   lending.     She   also   pointed   out   that   though   Nain 

Singh   (PW-20)   claimed   that   the   accused   had     vacated   the   house,   the 

evidence   disclosed   that   the   appellant   stayed   at   Nain   Singh's   house   till 

December.  She also pointed to the contradictory statement made by Gian 

Chand Goel (PW-21).   According to the learned counsel, while earlier the 

witness   said   that   the   house   was   let   out   to   Rashid   Ali   (PW-232)   on 

6.12.2000 and the appellant used to meet him, later on in the same para, 

                                              91

he said that the appellant and Rashid Ali (PW-232) both, were his tenants. 

Then   the   said   witness   claimed   in   his   further   cross-examination   that   the 

appellant was his only tenant.  From all this, the learned counsel urged that 

there   was   a   very   deep   possibility   of   Nain   Singh   (PW-20)   being   a   RAW 

agent   and   as   such   having   given   shelter   to   the   appellant   and   that   the 

appellant stayed throughout in Nain Singh's house only.  Very significantly, 

this claim of the learned defence counsel goes completely counter to the 

cross-examination   where   the   only   suggestion   given   is   that   the   appellant 

was never a tenant of Nain Singh (PW-20) and never stayed at his house. 

58.     The   learned   counsel   also   invited   our   attention   to   the   evidence   of 

Aamir Irfan (PW-37), Yunus Khan (PW-4) as also Ved Prakash (PW-173). 

We   have   considered   all   these   contentions   but   we   fail   to   follow   the 

interesting defence raised by the appellant in his statement under Section 

313 Cr.P.C. and complete contradictory stand taken while cross-examining 

Nain Singh (PW-20).  We also find nothing in the long story woven by the 

appellant in his statement under Section 313 Cr.P.C. about his activities as 

a RAW agent and about his being sent to Nain Singh (PW-20) by Sanjeev 

Gupta   from   Nepal.     We  do   find   that   there   was   reluctance   on   the   part   of 

Nain Singh (PW-20) to show his identity card which he only showed to the 

Court, but that does not, in any manner, help the defence case.  Even if it 

is   accepted   that   Nain   Singh   (PW-20)   was   working   for   RAW,   it   does   not 

                                                92

give credence to the defence theory that it was Nain Singh (PW-20) who 

brought   the   appellant   in   India,   arranged   for   his   stay,   took   his   services, 

arranged   for   his   computer   centre   and   then   ultimately,   falsely   got   him 

implicated.   In the absence of any such suggestion having been made to 

Nain   Singh   (PW-20),   the   tall   claims   made   by   the   defence   cannot   be 

accepted.     We   have   considered   the   evidence   of   all   these   witnesses, 

namely, Nain Singh (PW-20), Adam Malik (PW-31), Aamir Irfan (PW-37), 

Yunus   Khan   (PW-4)   and   Ved   Prakash   (PW-173),   but   the   same   do   not 

persuade us to accept the defence theory.  It is obvious that the appellant 

was   staying   with   Nain   Singh   (PW-20)   for   some   time   and   then   used   to 

interact  with  the  other tenants  like Rashid  Ali  (PW-232) and  Adam  Malik 

(PW-31)   and   at   that   time,   he   claimed   to   be   belonging   to   Jammu   and 

claimed   to   be   in   the   business   of   selling   shawls.     It   is   during   that   period 

alone   that   he   got   married   to   Rehmana   Yusuf   Farukhi   barely   a   fortnight 

prior to the incident at the Red Fort.  We, therefore, reject the argument of 

Ms. Kamini Jaiswal on this aspect.

59.     This   takes   us   to   the   various   bank   transactions   which   throw   much 

light.   Prosecution had claimed that when the diary was recovered on the 

arrest   of   the   appellant,   the   investigating   agency   found   one   telephone 

number   belonging   to   Sher   Zaman   @   Shabbir   who   was   found   to   be   an 

Afghan   national   and   according   to   the   prosecution,   he   used   to   supply 

                                             93

Hawala   money   to   the   appellant.     According   to   the   prosecution,   the 

appellant used to deposit the money so received in his own account with 

HDFC   Bank,   opened   on   the   basis   of   fake   documents.     He   also   used   to 

deposit this money in two  bank accounts of Nazir Ahmad Qasid (original 

accused   No.   3)   and   Farooq   Ahmed   Qasid   (original   accused   No.   4). 

According   to   the   prosecution,   this   money   which   the   appellant   used   to 

deposit   in   the   account   of   Nazir   Ahmad   Qasid   (A-3)   and   Farooq   Ahmed 

Qasid (A-4) was distributed to the other terrorists in Srinagar.  Ms. Jaiswal, 

learned   counsel   appearing   on   behalf   of   the   appellant,   claimed   that   the 

prosecution had not been able to prove the link in between Sher Zaman @ 

Shabbir and the appellant.   According to her, the claim of the prosecution 

that Rs.29,50,000/- was  deposited in the accounts of M/s. Nazir & Sons, 

Farooq   Ahmed   Qasid   (A-4)   and   Bilal   Ahmad   Kawa   (A-18)   was   also   not 

established.  The learned counsel argued that the prosecution was able to 

barely   prove   deposit   of   Rs.5   lakhs,   in   the   account   of   appellant   but   had 

failed   to   prove   that   the   appellant   had   deposited   Rs.   29,50,000/-   in   other 

accounts.     According   to   the   learned   counsel,   even   this   claim   of   the 

prosecution that was based on the evidence of handwriting expert, was not 

properly   proved.     The   learned   counsel   also   pointed   out   that   while   Nazir 

Ahmad   Qasid   (A-3)   and   Farooq   Ahmed   Qasid   (A-4)   were   acquitted,   the 

others including Sher Zaman @ Shabbir (A-13), Zahur Ahmad Qasid (A-

17), Bilal Ahmad Kawa (A-18) or Athruddin @ Athar Ali (A-19) were never 

                                              94

brought to the trial as they were shown to be absconding.  At this juncture, 

we   cannot   ignore   the   evidence   of   Kashi   Nath   (PW-46),   an   employee   of 

MTNL   (PW-46),   who   deposed   that   telephone   number   3969561   was 

installed by him in premises No. 5123 which was the office of Sher Zaman 

@  Shabbir  (A-13).   Very significantly,  this number was  also found in the 

call details of the appellant having Mobile No. 9811278510.   This version 

of Kashi Nath (PW-46) was corroborated by Om Prakash (PW-47).  Again 

Idrish (PW-74) deposed that the cash of Rs.1,01,000/- was recovered from 

the  shop/office   of   Sher  Zaman   @  Shabbir  (A-13),   which  shop/office  was 

raided pursuant to the statement of the appellant.

60.     First,   the   fact   that   Sher   Zaman   @   Shabbir   (A-13),   Zahur   Ahmad 

Qasid   (A-17)   and   Bilal   Ahmad   Kawa   (A-18)   being   absconding,   does   not 

and   cannot   in   any   manner   establish   the   defence   case   to   the   effect   that 

these   persons   were   never   concerned   with   Hawala   money   through   the 

appellant or otherwise.  As regards the Sher Zaman @ Shabbir (A-13), the 

investigating agency could not have reached the shop of Sher Zaman @ 

Shabbir (A-13) unless the claim of the investigating agency that they found 

his   number   in   the   diary   is   true.     The   fact   of   the   matter   is   that   the 

investigating agency did reach his shop as mentioned in the earlier part of 

this   judgment.     Therefore,   it   cannot   be   disputed   that   the   appellant   had 

some   connection   with   Sher   Zaman   @   Shabbir   (A-13)   who   was   then 

                                               95

established   to   be   an   Afghan   national   and   who   remained   absconding   till 

date.   The learned counsel for the defence also argued that Nazir Ahmad 

Qasid   (A-3)  and   Farooq  Ahmed   Qasid  (A-4)  have   been  acquitted  by the 

High Court and that there is no appeal by the State against their acquittal. 

That   may  be   true,   but   that   would   be   a  separate   subject.     At   least   prima 

facie,   that   does   not   help   the   appellant   at   all.     We   will   go   through   the 

reasons for acquittal, after we have considered the evidence regarding the 

bank transactions.  We will consider this evidence now in details.

61.     It has come in the evidence that the appellant opened an account on 

13.9.2000   with   HDFC   Bank,   New   Friends   Colony,   New   Delhi,   where   his 

address was  given as 102, Kaila Bhatta, Ghaziabad.   The other address 

was given as 18, Gaffur Nagar, Okhla, New Delhi.   The document on the 

basis   of   which   this   account   was   opened   was   the   driving   license   of   the 

appellant.     The   first   thing   that   comes   to   our   mind   is   that   both   these 

addresses were false.  While the appellant had never stayed at 102, Kaila 

Bhatta, Ghaziabad, his address 18, Gaffur Nagar, Okhla, New Delhi was 

totally incorrect.  It has come by way of evidence of Sushil Malhotra (PW-

210) that on the cash memo of the fees, the appellant wrote his address as 

18,   Gaffur   Nagar,   Okhla,   New   Delhi.     In   fact,   the   appellant   had   never 

resided on this address, the date of the cash memo being 28.3.2000.  The 

prosecution had also examined Iqbal Hassan (PW-79) who had confirmed 

                                                96

that   no   such   person   has   ever   lived   in   this   house,   particularly,   on   the 

relevant dates.  Insofar as his learning license is concerned, the appellant 

has   given   his   address   as   B-17,   Jangpura.     On   that   basis,   he   got   his 

learning license from Sarai Kale Khan Authority.   He has never stayed in 

this   address   either.     It   has   also   come   in   the   evidence   of   Inspector   S.K. 

Sand (PW-230) that learner's license bearing address B-17, Jangpura was 

fake  and  he further asserted that  the  area of Jangpura  never falls under 

the   authority   of   RTO,   Sarai   Kale   Khan.     There   is   a   report   of   the   Motor 

licensing   authority   vide   Exhibit   PW-230/C   that   the   learner's   license   was 

fake.   All this was confirmed by Narayan Singh (PW-6), UDC, Sarai Kale 

Khan Authority and Ajit Singh Bajaj (PW-52).  Insofar as driving license is 

concerned,   there   is   evidence   of   Hazarul   Hasan,   RTO   Office,   Ghaziabad 

that   this   driving   license   was   issued   from   Ghaziabad   in   favour   of   the 

appellant   through   Ms.   Mamta   Sharma   (PW-16),   ARTO   vide   Exhibit   PW-

13/A which is a copy of the driving license and Exhibit PW-22/C which is 

also   a   copy   of   the   driving   license.     Significantly   enough,   for   this,   the 

address   was   shown   to   be   102,   Kaila   Bhatta,   Ghaziabad.     This   was   for 

reason   that   unless   the   appellant   had   shown   himself   a   resident   of 

Ghaziabad,   he   could   not   have   got   the   driving   license   issued   through 

Ghaziabad authority.   Therefore, his address found on the driving license 

as 102, Kaila Bhatta, Ghaziabad was itself a false address.   This address 

was   on   the   basis   of   the   ration   card   which   was   a   fake   ration   card   in   the 

                                            97

name  of  appellant's   wife  Bano,   who   was   allegedly  residing  at  102,  Kaila 

Bhatta, Ghaziabad.  All this was proved to be false by Azad Khalid (PW-1), 

Yashpal   Singh,   Supply   Inspector,   Department   of   Food   and   Supply, 

Ghaziabad   (PW-2)   and   Rajbir   Singh,   Area   Rationing   Officer,   Food   and 

Civil Supply Department, Ghaziabad (PW-3).  There is another ration card 

which he got prepared in which his wife's name was shown as Mrs. Bano 

alongwith   children.     The   address  of   this  ration   card   was   shown  to  be  F-

12/12,   Batla   House,   Okhla,   New   Delhi,   where   he   never   resided. 

Therefore, on the basis of his driving license, when he got his HDFC Bank 

account   opened,   it   is   obvious   that   he   had   given   false   information,   much 

less   regarding   his   residential   address   which   was   also   mentioned   on   his 

driving license and which was not true.  

62.    The prosecution proved 9 cash deposit slips of Grindlays Bank, the 

total   amount   being   Rs.29,50,000/-.     According   to   the   prosecution,   these 

were   in   appellant's   handwriting   while   depositors'   name   has   been 

mentioned   as   Aslam,   Salim   Khan,   R.K.   Traders   and   Rashid.     We   have 

already   discussed   about   the   fake   residential   address   given   by   the 

appellant while opening the account with HDFC Bank.   The details of this 

account were proved by Sanjeev Srivastava (PW-22).  He proved Exhibits 

PW-22/B, C and F.  Exhibit PW-22/F is a copy of the account statement of 

Rehmana,   the   wife   of   the   accused   which   suggests   that   from   15.9.2000 

                                             98

onwards   upto   14.12.2000,   on   various   dates,   amounts   like   Rs.10,000/-, 

Rs.40,000/-, Rs.50,000/-, Rs.1,50,000/-, Rs.2,00,000/- etc. were deposited 

in   cash.     The   total   amount   deposited   was   Rs.5,53,500/-.     There   is 

absolutely   no   explanation   by   the   appellant   about   the   source   from   which 

these amounts came.  Corroborating evidence to the evidence of Sanjeev 

Srivastava (PW-22) is in the shape of Rishi Nanda (PW-23) and Inspector 

Ved Prakash (PW-173).  Ved Prakash (PW-173) had found the ration card 

in   the   name   of   the   appellant,   his   driving   license,   cheque   book   of   HDFC 

Bank in his name, Passport of Rehmana (wife of the appellant), a cheque 

book of State Bank of India, a digital diary and a personal diary and some 

other   documents.     From   these,   Ved   Prakash   (PW-173)   found   that   there 

were   three   accounts,   namely,   in   Standard   Chartered   Bank,   Connaught 

Place, New Delhi in the names of M/s. Nazir & Sons, Farooq Ahmed Qasid 

(A-4)   and   Bilal   Ahmad   Kawa   (A-18)   which   had   account   numbers 

32263962,   28552609   and   32181669   respectively.     He   also   detected 

account   number   0891000024322  in  HDFC   Bank  which   was  opened  with 

the help of the driving license.  Another witness S.I. Harender Singh (PW-

194) had prepared the memo of house search.  P.R. Sharma (PW-9), who 

was   from   State   Bank   of   India,   deposed   that   account   no.   5817   was 

belonging   to   Rehmana   Yusuf   Farukhi   in   which   amounts   of   Rs.50,000/-, 

Rs.1,50,000/-,   Rs.52,500/-   and   Rs.30,000/-   were   deposited.     He   proved 

the   relevant   deposit   slips   also.     Another   witness   O.P.   Singh   (PW-64) 

                                             99

corroborated   the   evidence   of   P.R.   Sharma   (PW-9).     The   most   important 

link   with   the   HDFC   account   as   also   with   the   deposit   slips   of   Standard 

Chartered   Grindlays   Bank   came   to   light.   Dr.   M.A.   Ali   (PW-216),   SSO, 

CFSL, CBI, New Delhi, on the basis of his report, deposed that the account 

opening form of HDFC Bank of the appellant, 9 deposit slips of Standard 

Chartered Grindlays Bank as also deposit slips of the State Bank of India 

account of Rehmana Yusuf Farukhi bore the handwriting of the appellant. 

This clinches the issue about the account opened in HDFC Bank.   It is to 

be noted that there were three accounts in Standard Chartered Grindlays 

Bank in the name of M/s. Nazir & Sons, Farooq Ahmed Qasid (A-4) and 

Bilal   Ahmad   Kawa   (A-18)   which   had   account   numbers   32263962, 

28552609 and 32181669 respectively.  The investigating agency collected 

the documents from Standard Chartered Grindlays Bank including 9 cash 

deposit   receipts   as   also   documents   regarding   the   account   numbers 

32263962, 28552609 and 32181669.  9 cash deposit slips are purportedly 

in the name of Aslam, Salim Khan, R.K. Traders and Rashid and all these 

have   been   proved   to   be   in   the   handwriting   of   the   appellant.     We   have 

already discussed about the account of HDFC Bank which was opened on 

the   basis   of   the   driving   license   having   a   false   address.     We   have   also 

referred to the bank documents in respect of Rehmana Yusuf Farukhi and 

the   amounts   having   been   deposited   in   her   account   and   also   the   pay-in 

(deposit)  slips in respect of her  accounts.   It must be  noted that at least 

                                                10

one document out of these being questioned document No. 30B has been 

proved to be in the handwriting of the appellant which has been proved by 

the expert evidence of Dr. M.A. Ali (PW-216).  We have already referred to 

the evidence of Ved Prakash (PW-173) and S.I. Harender Singh (PW-194) 

about the amounts belonging to the appellant and about the amounts paid 

by the appellant to the tune of Rs.29,50,000/- in the accounts of M/s. Nazir 

&   Sons,   Farooq   Ahmed   Qasid   (A-4)   and   Bilal   Ahmad   Kawa   (A-18), 

account   numbers   of   which   have   already   been   mentioned   above   and   the 

fact   that   9   deposit   slips   were   in   the   handwriting   of   the   appellant.     It   has 

come in the evidence of Subhash Gupta (PW-27) that he had handed over 

photocopy of the account opening forms of the three accounts mentioned 

above,   in   which   Rs.29,50,000/-   were   deposited   by   the   appellant,   to 

Inspector   Ved   Prakash   (PW-173).     We   then   have   the   evidence   of   B.A. 

Vani, Branch Manager, Standard Chartered Grindlays Bank, Srinagar, who 

claimed   that   three   bank   accounts   mentioned   above   were   opened   during 

his   tenure   and   in   his   branch   belonging   to   M/s.   Nazir   &   Sons,   Farooq 

Ahmed Qasid (A-4) and Bilal Ahmad Kawa (A-18).  He pointed out that the 

amounts which were deposited in these accounts (by the appellant) were 

further distributed by 40 original cheques by various persons.  He referred 

to 3 cheques of Farooq Ahmed Qasid (A-4), 29 cheques of M/s. Nazir & 

Sons and 8 cheques of Bilal  Ahmad  Kawa  (A-18).   There  is  evidence of 

Kazi   Shams,   SHO,   Sadar,   Srinagar   (PW-99)   who   had   recovered   the 

                                             10

cheque book of M/s. Nazir & Sons at the instance of Nazir Ahmad Qasid 

(A-3)   and   Farooq   Ahmed   Qasid   (A-4).     We   also   have   the   evidence   of 

Mohd. Riaz Ahmed, PA to DM, Badgam, J&K.  He deposed that there was 

a   detention   order   passed   against   Nazir   Ahmad   Qasid   (A-3)   and   Farooq 

Ahmed Qasid (A-4).   In the detention order, it was stated that both these 

accused persons were  connected with  a foreign mercenary named Abbu 

Bilal   and   they   agreed   to   receive   the   fund   from   `LeT'   outfit   in   separate 

account opened at ANZ Grindlays  Bank, Srinagar and had also received 

the first installment of Rs.3 lakhs in the account of Bilal Ahmad Kawa (A-

18),   which   money  was   withdrawn   by  him.   The   evidence  of  Hawa Singh 

(PW-228)  is   to  the  effect  that   he  had   received  40  cheques  of  the   above 

mentioned accounts, which evidence was  corroborated by S.I. Amardeep 

Sehgal (PW-227) and S.I. Himmat Ram (PW-45).  It was Inspector Pratap 

Singh (PW-86) who had found the account numbers of M/s. Nazir & Sons, 

Farooq  Ahmed  Qasid  (A-4)  and  Bilal  Ahmad  Kawa (A-18) from the diary 

seized   from   the   appellant.     Further,   the   evidence   of   Sanjeev   Srivastava, 

Manager,   HDFC   Bank   (PW-22)   went   on   to   establish   that   it   was   the 

appellant   who   had   opened  the  bank   account  in  the  New  Friends  Colony 

Branch of the HDFC Bank on the basis of his driving license, in which an 

amount of Rs.6 lakhs was deposited.   This evidence was corroborated by 

Rishi   Nanda   (PW-23).     P.R.   Sharma   (PW-9),   Manager-SBI,   Ghazipur 

spoke about the amounts received in the bank account of Rehmana Yusuf 

                                            10

Farukhi.     This   evidence   was   corroborated   by   O.P.   Singh,   Manager-SBI, 

Ghazipur   (PW-64).     It   has   already   been   mentioned   that   as   per   the 

evidence   of   Dr.   M.A.   Ali   (PW-216),   the   account   opening   form   of   HDFC 

Bank,   New   Friends   Colony   Branch   and   9   deposit   slips   of   Standard 

Chartered   Grindlays   Bank,   Connaught   Place,   New   Delhi   as   also   the 

deposit slip of State Bank of India account of Rehmana Yusuf Farukhi bore 

the handwriting of the appellant.   The report is Exhibit PW-216/A at page 

Nos. 1-11.

63.    The argument of Ms. Jaiswal, learned counsel appearing on behalf 

of the appellant, that Nazir Ahmad Qasid (A-3) and Farooq Ahmed Qasid 

(A-4) have already been acquitted, is of no consequence.   We may point 

out that there is absolutely no explanation by the appellant either by way of 

cross-examination   of   the   witnesses   or   by   way   of   his   statement   under 

Section   313   Cr.P.C.   as   to   where   all   these   amounts   had   come   from   and 

why did he deposit huge amounts in the three accounts mentioned above. 

Rs.29,50,000/- is not an ordinary sum.   Also, there is no evidence that in 

his   account   in   HDFC   Bank,   the   appellant   has   Rs.6   lakhs.     Further   very 

sizeable amount is shown to have been paid to Rehmana Yusuf Farukhi in 

her account in the State Bank of India.   How did the appellant receive all 

these amounts and from where, are questions that remain unanswered in 

the   absence   of   any   explanation   and   more   particularly   because   the 

                                               10

appellant had no ostensible means of livelihood.  It would have to be held 

that  the appellant  was  dealing with  huge sums of money and  he has no 

explanation   therefor.     This   is   certainly   to   be   viewed   as   an   incriminating 

circumstance against the appellant.  The silence on this issue is only telling 

of   his   nefarious   design.     It   is   obvious   that   the   appellant   was   a   very 

important   wheel   in   the   whole   machinery   which   was   working   against   the 

sovereignty   of   this   country.     All   this   was   supported   with   the   fact   that   9 

deposit   slips,   the   bank   forms   for   opening   the   accounts,   the   slip   through 

which  amount   was  deposited   in  the  account  of  Rehmana   Yusuf   Farukhi, 

were   all   proved   to   be   in   the   handwriting   of   the   appellant.     We   have 

absolutely no reason to reject the evidence of handwriting expert.   All this 

suggests that the appellant was  weaving his web  of terrorist activities by 

taking   recourse   to   falsehood   one   after   the   other   including   his   residential 

address and also creating false documents.

64.     Ms.   Jaiswal,   learned   defence   counsel   argued   that   merely   on   the 

basis   of   the   evidence   of   the   hand   writing   expert,   no   definite   conclusion 

could be drawn that it was the appellant who deposited all this money into 

the   three   accounts   of   Nazir   Sons,   Bilal   Ahmad   Kawa   and   Faruk   Ahmad 

Qasid.   She also urged that accused Nos. 3 and 4 were acquitted by the 

Court.   We have already clarified earlier that the acquittal of Qasid would 

be   of   no   consequence   for   the   simple   reason   that   they   may   have   been 

                                             10

given   the   benefit   of   doubt   regarding   their   knowledge   about   the   said 

amounts being deposited in their accounts or for that matter their dispatch 

for   the   terrorist   activities.     Some   more   evidence   would   have   been 

necessary for that purpose.   It is undoubtedly true that there should have 

been an appeal against their acquittal.  However, that does not absolve the 

appellant completely since he had to explain as to where he was receiving 

money from for putting in the accounts of Qasid.  This circumstance of the 

appellant in failing to explain the huge amount and its source would be of 

immense importance and would go a long way to show that the accused 

was receiving huge amounts from undisclosed sources.

65.    A  very lame explanation has been given  about the amounts in the 

account  of  Rehmana.    It  was   suggested   that  the  monies  were   gifts  from 

relatives   on   account   of   her   marriage.     Her   mother   DW-1   also   tried   to 

suggest   the   same.     The   explanation   is   absolutely   false   for   the   simple 

reason   that   there   is   no   proof   about   such   a   plea.   Everything   about   this 

marriage is suspicious.  It is only on 8.12.2000 that the accused claims to 

have   got   married   to   Rehmana.     It   was   under   mysterious   circumstances 

and   in   a   secret   manner   that   the   accused   got   married   to   Rehmana.     Dr. 

M.A.   Ali   (DW-216)   has   been   examined   by   the   prosecution   as   the   hand 

writing expert who examined two pay-in-slips, namely, Exhibits PW-173/F 

and PW-173/G.   The other documents which  were  given for examination 

                                            10

were Q 29, Q30, Q30B, Q 30C, Q 31 and Q32 which are Exhibit PW 9/C to 

F.   Out of these, some of the documents were seized from the bank vide 

seizure memo Exhibit PW 9/A.   Document Nos.Mark Q 30 and 30 A and 

Mark 30B have been proved to be particularly filled in the hand writing of 

Mohd.   Arif   @   Ashfaq   and   partly   in   hand   writing   of   Rehmana.     This 

suggests the amount of Rs.15,000/- has been deposited in the account of 

Rehmana on 21.11.2000.   Similarly, document marked Q-6, Q-6A and Q-

6B were also proved to be in the hand writing of the appellant and partly in 

hand writing of Rehmana.  Accused has no explanation to offer.  There can 

be no dispute that the accused had been depositing huge amount into the 

account of Rehmana.   Considering the dates on which the deposits were 

made,   the   argument   of   the   learned   counsel   that   she   received   small 

amounts by way of gifts for her marriage which had never taken place till 

then, has to fall to ground.  Again, accused Rehmana was acquitted as the 

prosecution   was   not   able   to   prove   that   she   had   been   a   party   to   the 

conspiracy or knew about the conspiracy.   That however, cannot absolve 

the appellant. The reluctance on the part of the prosecution to file appeal 

against  her  acquittal  can  also  not help  the  accused.    It is  strange  that  a 

person who is not even an Indian National and is a citizen of Pakistan got 

into touch with this lady and got married to her on 8.12.2000 and before 

that he should be depositing huge amounts into the accounts of Rehmana. 

This   becomes   all   the   more   strange   that   Rehmana   had   no   reasonable 

                                            10

explanation   for   receiving   these   amounts.     We,   therefore,   view   this 

circumstance as an incriminating circumstance.  We entirely agree with the 

High Court as well as the trial Court for the inferences drawn in respect of 

these deposits made by the accused.  

66.    Ms. Jaiswal  then severely criticized the finding of the Courts below 

accepting the disclosures made by the appellant and the discoveries made 

pursuant thereto.  The main discovery which the learned counsel assailed 

was the statement in pursuance of which the whereabouts of Abu Shamal 

were made known to the investigating agency. The learned counsel urged 

that   no   disclosure   statement   was   recorded   immediately   after   the 

apprehension of the accused.  She, therefore, urged that it could not have 

been   held   by   the   Courts   below   that   the   information   regarding   the   Batla 

house   and   Abu   Shamal   being   a   terrorist   in   hiding   on   that   address 

proceeded from the appellant or that he had the knowledge thereof.   The 

learned   counsel   basically   rests   her   contention   on   the   fact   that   before 

accepting the fact that the accused gave some information in pursuance of 

which some discoveries were made, the investigating agency must record 

a statement and in the absence of such a statement, discovery cannot be 

attributed to the accused.  Our attention was drawn to the evidence of PW-

229   who   deposed   that   a   statement   was   recorded   immediately   on   the 

apprehension of the appellant. The date mentioned on Exhibit PW 148 E is 

                                              10

26.12.2000.     According   to   the   learned   counsel   if   the   accused   was 

apprehended on the early night of 25.12.2000 then the date on Exhibit PW 

148   E   could   not   have   been   26.12.2000.     The   counsel   further   says   that 

therefore   the   Batla   house   encounter   was   prior   to   recording   of   the 

disclosure statement of the accused.  The contention is not correct.  It will 

be   seen   that   immediately   after   the   apprehension   the   appellant   was   not 

formally arrested, though he was in the custody of the investigating team. 

The learned counsel pointed out that the witness's statement was that the 

accused was "arrested" and his disclosure statement was recorded.   PW-

229 had undoubtedly stated so.  There is other evidence on record that his 

statement was recorded.   It is indeed in that statement which is recorded 

that he disclosed about his involvement in the Red Fort shoot out, the role 

of   Abu   Shamal   and   about   an   AK-56   rifle.     The   witness   went   on   to   state 

further   that   the   accused   disclosed   that   his   associate   Abu   Shamal   was 

staying in the hide out at house No. G-73, first floor, Batla House, Okhla. 

He also disclosed that he was having weapons and grenades and he also 

disclosed   that   Abu   Shamal   is   a   trained   militant   of   LeT   and   member   of 

suicide   squad.     Indeed,   had   this   information   not   been   disclosed 

immediately   after   his   apprehension,   there   was   no   question   of   the 

investigating   agency   coming   to   know   about   the   whereabouts   of   Abu 

Shamal.    Indeed,  in pursuance of this information  given  the investigating 

team   did   go   to   the   aforementioned   address   and   an   encounter   did   take 

                                             10

place wherein Abu Shamal was killed and large amount of ammunition and 

arms   were   found   at   that   place.     The   learned   counsel   urged   that   in   the 

absence of any "recorded statement" immediately after his apprehension, 

such discovery should not be attributed to the appellant.   For the sake of 

argument,  we  will  assume that  no statement was  recorded  prior to Batla 

House incident.  The learned counsel secondly urged that if admittedly the 

accused appellant was formally arrested on the next day i.e. on 26th, then it 

would   be   axiomatic   that   he   was   not   in   the   custody   of   the   police   and, 

therefore, all that evidence should be rendered as inadmissible.  

67.    It is indeed true that for normally proving any such information and 

attributing   the   same   to   the   accused   the   said   accused   must   be   in   the 

custody   of   the   prosecution   and   then   when   he   discloses   or   offers   to 

disclose   any   information,   his   statement   is   recorded   by   the   investigating 

agency for lending credibility to the factum of disclosure as also exactitude. 

In pursuance of such information, the investigating agency proceeds and 

obtains   the   material   facts   and   thereafter   executes   a   Panchnama   to   that 

effect.  We have already referred to this question in the earlier part of our 

judgment   that   it   was   indeed   a   very   tense   situation   requiring   extreme 

diligence on the part of the investigating agency whereby the investigating 

agency could not afford to waste a single minute and was required to act 

immediately on the receipt of the information from the appellant.  This was 

                                              10

all the more necessary because the investigating agency were dealing with 

an  extremely dangerous  terrorist causing serious danger  to the safety of 

the society.  We do not see anything wrong in this approach on the part of 

the   investigating  agency.     The  only  question  is  whether  the   investigating 

agency discovered something in pursuance of the information given by the 

accused.   The events which followed do show that it is only in pursuance 

of,   and   as   a   result   of   the   information   given   by   the   accused   that   the 

investigating agency zeroed on the given address only to find a dreaded 

terrorist like Abu Shamal holed up in that address with  huge ammunition 

and the fire arms.  If that was so, then the question is as to whether we can 

reject   this   discovery   evidence   merely   because,   as   per   the   claim   of 

defence, a formal statement was not recorded and further merely because 

a formal arrest was not made of the accused.

68.     Firstly   speaking   about   the   formal   arrest   for   the   accused   being   in 

custody   of   the   investigating   agency   he   need   not   have   been   formally 

arrested.     It   is   enough   if   he   was   in   custody   of   the   investigating   agency 

meaning   thereby   his   movements   were   under   the   control   of   the 

investigating agency.  A formal arrest is not necessary and the fact that the 

accused was in effective custody of the investigating agency is enough.  It 

has been amply proved that the accused was apprehended, searched and 

taken   into   custody.     In   that   search   the   investigating   agency   recovered   a 

                                             11

pistol   from   him   along   with   live   cartridges,   which   articles   were   taken   in 

possession   of   the   investigating   agency.     This   itself   signifies   that 

immediately   after   he   was   apprehended,   the   accused   was   in   effective 

custody of the investigating agency.

69.    Now   coming   to   the   second   argument   of   failure   to   record   the 

information, it must be held that it is not always necessary.  What is really 

important   is   the   credibility   of   the   evidence   of   the   investigating   agency 

about   getting   information/statement   regarding   the   information   from   the 

accused.  If the evidence of the investigating officer is found to be credible 

then   even   in the   absence  of  a  recorded   statement,  the  evidence   can  be 

accepted   and  it   could  be   held  that  it   was   the  accused  who  provided   the 

information on the basis of which a subsequent discovery was made.  The 

question   is   that   of   credibility   and   not   the   formality   of   recording   the 

statement.     The   essence   of   the   proof   of   a   discovery   under   Section   27, 

Evidence  Act  is  only  that   it   should  be   credibly  proved   that   the   discovery 

made   was   a   relevant   and   material   discovery   which   proceeded   in 

pursuance of the information supplied by the accused in the custody.  How 

the prosecution proved it, is to be judged by the Court but if the Court finds 

the fact of such information having been given by the accused in custody is 

credible   and   acceptable   even   in   the   absence   of   the   recorded   statement 

and   in   pursuance   of   that   information   some   material   discovery   has   been 

                                             11

effected then the aspect of discovery will not suffer from any vice and can 

be   acted   upon.     Immediately   after   the   apprehension   of   the   appellant   he 

spilled the information.   In pursuance of that information the investigating 

agency acted with expediency and speed which in the circumstances then 

prevailing   was   extremely   necessary   nay   compulsory.     Any   investigating 

agency in such sensational matter was  expected not to waste  its time in 

writing down  the Panchnama and memorandum.   Instead they had to be 

on a damage control mode.  They had a duty to safeguard the interests of 

the society also.   Therefore, if the investigating agency acted immediately 

without wasting its time in writing memoranda of the information given by 

the   accused,   no   fault   could   be   found.     Ultimately,   this   timely   and   quick 

action yielded results and indeed a dreaded terrorist was found holed up in 

the   address  supplied  by  the  appellant-accused  with   sizeable   ammunition 

and   fire   arms.     We   do   not,   therefore,   find   any   thing   wrong   with   the 

discovery even if it is assumed that the information was not "recorded" and 

hold   that   immediately   after   his   apprehension,   the   accused   did   give   the 

information which  was  known to him alone in pursuance of which  a very 

material  discovery was  made.    The  learned  Solicitor  General relied  on  a 

reported   decision   in  Suresh   Chandra   Bahri   v.   State   of   Bihar   [Cited  

supra].    In   that   case,   no   discovery   statement   was   recorded   by   the 

investigating  officer PW  -59 Rajeshwar  Singh  of the information  supplied 

by the accused to him.   Further, no public witness  was  examined by the 

                                              11

prosecution  to  support  the   theory  that  such  an   information  was  given   by 

the   accused   to   him   in   pursuance   of   which   some   material   discovery   was 

made.     This   Court,   however,   in   spite   of   these   two   alleged   defects, 

accepted   the   evidence   of   discovery   against   the   accused   on   the   basis   of 

the evidence of Rajeshwar Singh PW-59.  The Court mentions:

               "It   is   true   that   no   disclosure   statement   of   Gurbachan  

               Singh who is said to have given information  about the  

               dumping   of   the   dead   body   under   the   hillock   of   Khad  

               gaddha   dumping   gfdound   was   recorded   but   there   is  

               positive statement of Rajeshwar Singh, PW 59, Station  

               House   Officer   of   Chutia   Police   Station   who   deposed  

               that during the course of investigation Gurbachan Singh  

               Led   hhim   to   Khad   Gaddha   hillock   along   with   an  

               Inspector Rangnath Singh and on pointing out the place  

               by   Gurbachan   Singh   he   got   that   place   unearthed   by  

               labourers where a piece of blanket, pieces of saree and  

               rassi   were   found   which   were   seized   as   per   seizure  

               memo Ext.5.  He further deposed that he had taken two  

               witnesses   along   with   him   to   the   place   where   these  

               articles   were   found.     Rajeshwar   Singh   PW   59   was  

               cross-examined   with   regard   to   the   identity   of   the  

               witness Nand Kishore who is said to be present at the  

               time of recovery  and seizure  of the articles  as  well as  

               with   regard   to   the   identity   of   the   articles   seized   vide  

               paragraphs 18, 21 and 22 of his deposition but it may  

               be pointed out that no cross-examination was directed  

               with   regard   to   the   disclosure   statement   made   by   the  

               appellant Gurbachan Singh or on the point that he led  

               the   police   party   and   others   to   the   hillock   where   on   hi  

               pointing   out,   the   place   as   unearthed   where   the  

               aforesaid articles were found and seized.  It is true that  

               no public witness was examined  by the prosecution in  

               this behalf but the evidence of Rajeshwar Singh PW59  

               does not suffer from any doubt or infirmity with regard to  

               the   seizure   of   these   articles   at   the   instance   of   the  

               appellant   Gurbachan   Singh   which   on   TI   Parade   were  

                                               11

                found to be the articles used in wrapping the dead body  

                of Urshia."

        The   court   then   stated   in   paragraph   71   that  the   two   essential  

requirements of application of Section 27 of Evidence Act are that (1) the  

person   giving   information   was   accused   of   any   offence;   and   (2)   he   must  

also   be   in   police   custody.    The   Court   then   went   on   to   hold   that   the 

provisions of Section 27 of the Evidence Act are based on the view that if 

the fact is actually discovered in consequence of information given, some 

guarantee is afforded thereby that the information is true and consequently 

the said information can safely be allowed to be given in evidence because 

if such an information is further fortified and confirmed by the discovery of 

articles  or   the   instrument   of  crime   and  which   leads   to  the   belief   that   the 

information about the confession made as to the articles of crime cannot 

be false. This is precisely what has happened in the present case.  Indeed, 

the   appellant   was   accused   of   an   offence   and   he   was   also   in   the   police 

custody.  We have already explained the ramifications of the term "being in  

custody".     This   judgment   was   then   followed   in  Vikram   Singh   &   Ors   v.  

State of Punjab [2010 (3) SCC 56]  when again the Court reiterated that 

there   was   no   need   of   a   formal   arrest   for   the   applicability   of   Section   27. 

The Court therein took the stock of the case law on the subject and quoted 

from the decision of State of U.P. v. Deoman Upadhyaya  [AIR 1960 SC 

                                               11

1125] regarding the principles involved in Sections 24 to 30, Evidence Act 

and  more   particularly  Sections  25,   26   and   27   of  the   Evidence   Act.    The 

Court ultimately held in case of Deoman Upadhyay (cited supra) that the 

expression `accused of any offence' in Section 27 as in Section 25 is also 

descriptive of the person concerned i.e. against a person who is accused 

of  an  offence.   Section  27  renders  provable  certain statements  made by 

him while he was in the custody of a police officer.  Section 27 is founded 

on the principle that even though the evidence relating to the confessional 

or   other   statements   made   by   a   person   while   he   is   in   the   custody   of   the 

police   officer,   is   tainted   and,   therefore,   inadmissible   if   the   truth   of   the 

information given by him is assured by the discovery of a fact, it may be 

presumed   to  be   untainted   and,  therefore,   declared   provable  insofar   as  it 

distinctly relates to the fact thereby discovered.  The Court also pointed out 

the distinction between Sections 27 and 26, Evidence Act in para 40 of the 

judgment   of  Vikaram   Singh   (cited   supra).    The   Court   came   to   the 

conclusion that the principle that Section 27 would be provable only after 

the formal arrest under Section 46 (1) of the Code could not be accepted. 

It may be mentioned here that even in the decision in State (NCT of Delhi)  

v.   Navjot   Sandhu   @   Afsan   Guru   [2005   (11)   SCC   600]   relying   on   the 

celebrated decision of  Pulukuri Kottaya v. King Emperor  [AIR 1947 PC 

67],   the   Court   held   "we   are   of   the   view   that  Pulukuri   Kottaya   (cited  

supra)  case   is   an   authority   for   the   proposition   that   'discovery   of   fact'  

                                             11

cannot be equated to the object produced or found. It is more  than that.  

The discovery of fact arises by reason of the fact that the information given  

by the accused exhibited the knowledge or the mental awareness of the  

informant as to its existence at a particular place". This   is   precisely   what 

has happened in this case.   It is only because of the discovery made by 

the appellant that Abu Shamal with the arms and ammunition was found at 

the address disclosed by the appellant.

70.    Ms. Kamini Jaiswal, learned counsel appearing for the appellant also 

severely   attacked   the   discovery   made   and   recorded   on   the   morning   of 

26.12.2000.     By   that   discovery,   the   appellant   had   given   the   information 

about the whole plot, with which we are not concerned, but in addition to 

that, he had showed his readiness to point out the AK-56 rifle which was 

thrown immediately after the attack, behind the Red Fort.  In pursuance of 

that,   the   appellant   proceeded   alongwith   the   investigating   party   and   then 

from the spot that he had shown, AK-56 rifle was actually found.   Even a 

bandolier   was   found   containing   hand   grenades.     The   learned   counsel 

argued that this was a farcical discovery and could not be attributed to the 

appellant, as in fact, immediately after the attack on 22.12.2000, the police 

party had covered the whole area not only during the darkness of the night 

on   22.12.2000,   but   also   in   the   following   morning.     She   pointed   out   that 

sniffer   dogs   were   also   used   at   that   time   for   searching   the   suspected 

                                               11

terrorists   either   hiding   out   or   leaving   any   trace.     From   this,   the   learned 

counsel argued that it is impossible that the investigating agency could not 

have seen the said rifle and it was impossible that such an important article 

like   AK-56   rifle   and   bandolier   would   go   unnoticed   by   the   investigating 

agency.     She,   therefore   pointed   out   that   this   was   nothing   but   a   poor 

attempt   on   the   part   of   the   investigating   agency   to   plant   the   rifle   and   to 

attribute the knowledge of that rifle falsely to the appellant.   In the earlier 

part  of the judgment, we have  already discussed the evidence regarding 

this discovery where we have referred to the evidence of Inspector Hawa 

Singh   (PW-228),   S.I.   Satyajit   Sarin   (PW-218)   and   SHO   Roop   Lal   (PW-

234), who all supported the discovery.   This discovery was recorded vide 

Exhibit PW-148/E.  S.I. Satyajit Sarin (PW-218) corroborated the evidence 

of Inspector Hawa Singh (PW-228) and prepared a seizure memo (Exhibit 

PW-218).   S.I. Amardeep Sehgal (PW-227) also corroborated the version 

given by Inspector Hawa Singh (PW-228) and S.I. Satyajit Sarin (PW-218). 

Two  other  witnesses,   namely,   S.K.   Chadha  (PW-125)   and   N.B.   Bardhan 

(PW-202)   were   also   present   who   inspected   the   AK-56   rifle   found   at   the 

instance   of   the   appellant.     The   learned   counsel   pointed   out   that   if   the 

sniffer dogs were taken there for searching, it would be impossible that the 

investigating agency would  not find the AK-56 rifle which  was  lying  quite 

near to the spot from where the chit and the currency notes were picked up 

by the investigating agency.  In the first place, there is definite evidence on 

                                              11

record   that   the   sniffer   dogs   were   not   taken   to   the   spot   from   where   the 

polythene   packet   containing   chit   and   currency   notes   was   recovered. 

Inspector   Hawa   Singh   (PW-228)   is   the   witness   who   specifically   spoke 

about   the   dog   squad   not   having   been   taken   to   that   spot.     We   are   not 

impressed by this argument that the investigating agency had already seen 

the  said   rifle  but  had  chosen   to  plant  it  against   the   appellant.     Even  the 

evidence of SHO Roop Lal (PW-234) is to the effect that dog squad was 

not taken to the back of the Red Fort.  SHO Roop Lal (PW-234) also stated 

that the Sunday Bazar was also not allowed to be held on 22.12.2000.  We 

have no reason to discard this evidence.   That apart, we do not see any 

reason why the investigating agency would plant the aforementioned AK-

56   rifle,   bandolier   and   hand   grenades   therein,   without   any   rhyme   or 

reason.   True, they were interested in the investigation, but that does not 

mean that  they were  out  to falsely implicate the  appellant.   This is  apart 

from the fact that police officers could not have procured a foreign made 

AK-56   rifle   and   the   foreign   made   grenades   on   their   own   to   be   foisted 

against the appellant.   No such cross-examination appears to have been 

done on those police officers.  It is also difficult to accept the argument that 

anybody   could   have   found   the   rifle   which   was   lying   in   the   thick   bushes. 

There   is   evidence   on   record   that   the   backside   of   the   Red   Fort   had 

substantially thick bushes.  Once the police officers had found the chit and 

the currency notes which gave them a definite direction to proceed in their 

                                                11

investigation, it was  not likely that the police officers would visit that spot 

again and that is what had happened.  We are also of the opinion that this 

discovery was fully proved, in that, the appellant had given the information 

that   it   was   Abu   Shamal   @   Faisal   who   had   thrown   that   rifle   in   his  bid   to 

escape from the spot where the bloody drama was performed, resulting in 

death   of   three   persons.     Even   earlier   to   this   discovery,   Abu   Shamal   @ 

Faisal   was   eliminated   in   encounter   and   he   was   found   with   substantial 

quantity   of   firearm   and   ammunition.     We,   therefore,   see   no   reason   to 

accept the defence contention that this discovery was a fake discovery.  

71.     Insofar   as   third   discovery   was   concerned,   it   was   of   the   hand 

grenades,   which   the   appellant   discovered   on   1.1.2001.     The   learned 

counsel did not even attempt to say that there was anything unnatural with 

this recovery except that the appellant was all through in the custody and 

could   have   been   treated   roughly   for   effecting   this   discovery   of   the 

grenades.    There is nothing to support this version.   Thus,  the discovery 

statements   attributed   to   the   appellant   and   the   material   discovered   in 

pursuance   thereof   would   fully   show   the   truth   that   the   appellant   was 

involved in the whole affair.   The discovery of hand grenades behind the 

computer centre near Jamia Millia Islamia University was very significant. 

So also the discovery of the shop of Sher Zaman @ Shabbir (A-13), the 

Hawala   dealer,   as   also   the   documents   discovered   therefrom,   show   the 

                                                11

involvement   of   the   appellant   in   the   whole   affair.     In   this   behalf,   we   fully 

endorse   the   finding   of   the   High   Court.     About   these   discoveries,   one 

another   complaint   by   the   learned   defence   counsel   was   that   no   public 

witnesses were associated.   In fact, there is ample evidence on record to 

suggest   that   though   the   investigating   agency   made   the   effort,   nobody 

came   forward.     This   was   all   the   more   so,   particularly   in   case   of   the 

recovery  of  pistol   from  the  appellant   as  also  the  discoveries  vide  Exhibit 

PW-148/E.

72.     We have seen the evidence as also the so-called explanations given 

by the appellant in his statement under Section 313 Cr.P.C.  We are of the 

clear opinion that the detailed statement which he gave at the end of the 

examination was a myth and remained totally unsubstantiated.   We have 

also considered the defence evidence of Ms. Qamar Farukhi (DW-1) and 

we are of the clear opinion that even that evidence has no legs to stand. 

Ms.   Qamar   Farukhi   (DW-1)   spoke   about   the   marriage   of   her   daughter 

Rehmana Yusuf Farukhi to the appellant.  She deposed that the appellant 

had expressed his desire to marry Rehmana after reading the matrimonial 

advertisement.     She   asserted   that   her   relatives   contributed   for   the 

marriage and she had continued giving her money to Rehmana.  There is 

nothing much in her cross-examination either.   She admitted that moneys 

were paid into the account of Rehmana.   She admitted that it was told to 

                                             12

the appellant that Rehmana was  suffering from Spinal Cord problem and 

was not fit for consummation of marriage.  It is really strange that inspite of 

this, the appellant should have got married to Rehmana.   Very strangely, 

the  lady completely denied that she  even knew that  the appellant  was   a 

resident of Pakistan.  Much importance, therefore, cannot be given to this 

defence   witness.     The   High   Court   has   held   proved   the   following 

circumstances against the appellant:-

      "(a)     On   the   night   of   22-12-2000   there   was   an   incident   of   firing 

               inside   the   Lal   Quila   when   some   intruders   had   managed   to 

               enter   that   area   of   Lal   Quila   where   the   Unit   of   7   Rajputana 

               Rifles of Indian Army was stationed. 

      (b)      In   that   incident   of   shooting   the   intruders   had   fired 

               indiscriminately   from   their   AK-56   rifles   as   a   result   of   which 

               three   army   jawans   received   fire-arm   injuries   and   lost   their 

               lives. 

      (c)      The death of three army jawans was homicidal. 

      (d)      Immediately   after   the   quick   reaction   team   of   the   army   fired 

               back   upon   the   intruders   as   a   result   of   which   the   intruders 

               escaped from the place of occurrence by scaling over the rear 

               side   boundary   wall   of   Lal   Quila   towards   the   Ring   Road   side 

               and   when   the   place   of   occurrence   was   searched   by   the 

               armymen   many   assault   rifle   fired   cartridge   cases   were 

               recovered from the place of occurrence. 

      (e)      Immediately   after   the   intruders   who   had   resorted   to   firing 

               inside   the   army   camp   had   escaped   from   there   calls   were 

               made   by   someone   on   the   telephones   of   two   BBC 

               Correspondents one of whom was stationed at Sri Nagar and 

               the   other   one   was   stationed   at   Delhi   office   of   BBC   and   the 

               caller   had   informed   them   about   the   shooting   incident   inside 

               the   Lal   Quila   and   had   also   claimed   the   responsibility   of   that 

               incident  and that that was  the job of Lashkar-E-Toiba,  which 

                                      12

        the   prosecution   claims   to   be   a   banned   militant   organization 

        indulging in acts of terrorism in our country. 

(f)     On the morning of 23-12-2000 one AK-56 rifle was recovered 

        from a place near Vijay Ghat on the Ring Road behind the Lal 

        Quila.

(g)     On 23-12-2000 when the policemen conducted search around 

        the   Lal   Quila   in   the   hope   of   getting   some   clue   about   the 

        culprits   they   found   one   piece   of   paper   lying   outside   the   Lal 

        Quila   near   the   rear   side   boundary   wall   towards   Ring   Road 

        side   and   on   that   piece   of   paper   one   mobile   phone   number 

        9811278510 was written. 

(h)     The mobile phone number 9811278510 was used for making 

        calls   to   the   two   BBC   correspondents(PWs   39   and   41) 

        immediately   after   the   shooting   incident   inside   Lal   Quila   and 

        the  caller had claimed  the responsibility for that incident  and 

        had informed them that the incident was the job of Lashkar-e-

        Toiba. 

(i)     The aforesaid mobile phone number found written on a piece 

        of paper lying behind the Lal Quila had led the police up to flat 

        no. 308-A Ghazipur, New Delhi where accused Mohd. Arif @ 

        Ashfaq was found to be living and when on being suspected of 

        being   involved   in  the   shooting   incident  he   was  apprehended 

        on   the   night   of   25/26-12-2000   one   pistol   and   some   live 

        cartridges   were   recovered   from   his   possession   for   which   he 

        did not have any license. 

(j)     At the time of his arrest in case FIR No. 688/2000 one mobile 

        phone   having   the   number   9811278510   was   recovered   from 

        his   possession   and   it   was   the   same   mobile   number   from 

        which calls had been made to the two BBC correspondents for 

        informing them about the incident and Lashkar-e-Toiba being 

        responsible for that incident.

(k)     Immediately   after   his   apprehension   accused   Mohd.   Arif   @ 

        Ashfaq   admitted   his   involvement   in   the   shooting   incident 

        inside   Lal   Quila   and   also   disclosed   to   the   police   about   his 

        another  hide-out at G-73, Batla House, Muradi Road,  Okhla, 

        New Delhi and pursuant to his disclosure the police had gone 

        to that hide-out where the occupant of that house started firing 

                                     12

        upon the police team and when the police team returned the 

        firing   that   person,   who   was   later   on   identified   by   accused 

        Mohd.  Arif   @  Ashfaq   to  be  one   Abu  Shamal  @   Faizal,  died 

        because   of   the   firing   resorted   to   by   the   policemen.   From 

        house   no.   G-73,   where   the   encounter   had   taken   place,   one 

        AK-56 rifle and some live cartridges and hand grenades were 

        recovered. 

(l)     Accused Mohd. Arif @ Ashfaq while in police custody had also 

        disclosed to the police that one assault rifle had been thrown 

        near   Vijay   Ghat   after   the   incident.   The   police   had   already 

        recovered one AK-56 rifle from Vijay Ghat on the morning of 

        23-12-2000.   Accused   Mohd.   Arif   @   Ashfaq   had   thus   the 

        knowledge   about   the   availability   of   that   AK-56   rifle   at   Vijay 

        Ghat. 

(m)     Accused   Mohd.   Arif   @   Ashfaq   had   also   got   recovered   one 

        AK-56 rifle and some ammunition from behind the Lal Quila on 

        26-12-2000.

(n)     Accused  Mohd.   Arif   @   Ashfaq   had   also  got  recovered  three 

        hand grenades from some place behind his computer centre 

        in   Okhla   on   1-1-2001   pursuant   to   his   another   disclosure 

        statement made by him while in police custody.

(o)     When   the   assault   rifle   fired   cartridge   cases   which   were 

        recovered from the place of occurrence by the armymen after 

        the  intruders had  escaped from there were  examined by the 

        ballistic expert along with the AK-56 rifle which was recovered 

        at the instance of accused Mohd. Arif @ Ashfaq from behind 

        the   Lal   Quila   on   26-12-2000   and   the   AK-56   rifle   which   was 

        recovered from Vijay Ghat on 23-12-2000 it was found by the 

        ballistic   expert(PW-202)   that   some   of   the   assault   rifle   fired 

        cartridge   cases   had   been   fired   from   the   rifle   recovered   from 

        behind Red Fort and some had been fired from the other rifle 

        which was recovered from Vijay Ghat.

(p)     Appellant   -   accused   Mohd.   Arif   @   Ashfaq   was   a   Pakistan 

        national and had entered the Indian territory illegally.

(q)     After making illegal entry into India appellant - accused Mohd. 

        Arif @ Ashfaq had been representing to the people coming in 

        his contact during his stays at different places that he was  a 

                                              12

                resident   of   Jammu   and   was   doing   the   business   of   shawls 

                while,   in   fact,   he   had   no   such   business   and   he   had   been 

                collecting money through hawala channels.

        (r)     Accused   Mohd.   Arif   @   Ashfaq   had   obtained   a   forged   ration 

                card   Ex.   PW-164/A   wherein   not   only   his   house   number 

                mentioned was not his correct address but even the name of 

                his   wife   shown   therein   was   not   Rehmana   Yusuf   Faukhi.   He 

                had   also   forged   his   learner   driving   license   Ex.   PW-13/C   as 

                well   as   one   document   Ex.   PW-13/E   purporting   to   be   a 

                photocopy   of   another   ration   card   in   his   name   with   his 

                residential   address   of   Ghaziabad   where   he   admittedly   never 

                resided and he submitted that document with a the Ghaziabad 

                Transport Authority for obtaining permanent driving license. In 

                the   learner  driving   license   also  he  had   shown  his residential 

                addresses where he had never actually resided. All that he did 

                was   to   conceal   his   real   identity   as   a   militant   having   entered 

                the Indian territory with the object of spreading terror with the 

                help   of   his   other   associate   militants   whom   unfortunately   the 

                police   could   not   apprehend   and   some   expired   before   they 

                could be tried."

73.     In   addition   to   these   circumstances,   there   is   another   circumstance 

that a message was  intercepted by the BSF while Exhibit PW 162/A and 

proved   by   PW-162   Inspector   J.S.   Chauhan   dated   26.12.2000   wherein 

there was a specific reference to the accused.   Still another circumstance 

would be that the accused had no ostensible means of livelihood and yet 

he   deposited   Rs.29,50,000/-   in   three   accounts,   namely,   Standard 

Chartered   Grindlays   Bank,   Connaught   Place   (known   as   ANZ   Grindlays 

Bank)   bearing   account   No.32263962   of   M/s.   Nazir   &   Sons,   Standard 

Chartered   Grindlays   Bank   bearing   account   No.28552609   of   Bilal   Ahmad 

Kawa   and   Standard   Chartered   Bank   bearing   account   No.32181669   of 

Farooq Ahmed Qasid and also deposited some amounts in the account of 

                                              12

Rehmana Yusuf Faruqi and he had no explanation of these huge amounts, 

their source or their distribution.  Lastly, the appellant gave a fanciful and a 

completely   false   explanation   about   his   entering   in   India   and   his   being   a 

member of RAW and thereby, his having interacted with Nain Singh (PW-

20).

74.     We   are   in   complete   agreement   with   the   findings   regarding   the 

incriminating circumstances as recorded by the High Court.   On the basis 

of   the   aforementioned   circumstances,   the   High   Court   came   to   the 

conclusion that the appellant was responsible for the incident of shooting 

inside the Lal Quila (Red Fort) on the night of 22.12.2000, which resulted 

in the death of three soldiers of Army.   It has also been held by the High 

Court   that   this   was   a   result   of   well   planned   conspiracy   between   the 

appellant   and   some   other   militants   including   deceased   Abu   Shamal   @ 

faizal who  was killed in an encounter with the police at House No. G-73, 

Batla House, Muradi Road,  Okhla,  New Delhi.   The  High Court has also 

deduced that it was  at the instance of the appellant that the police could 

reach that spot.  The High Court has further come to the conclusion that it 

was in a systematic manner that the appellant came to India illegally and 

collected   highly   sophisticated   arms   and   ammunition   meant   for   mass 

destruction.   The High Court further held that he chose to select the Red 

Fort   for   an   assault   alongwith   his   other   associates,   the   Red   Fort   being   a 

                                            12

place of national importance for India.  The High Court has also recorded a 

finding that the chosen attack was on the Army Camp which was stationed 

there   to   protect   this   monument   of   national   importance.     The   High   Court 

has,   therefore,   deduced   that   it   was   an   act   of   waging   war   against   the 

Government of India.  It is further held that the associates, with whom the 

appellant   had   entered   into   conspiracy,   had   attacked   the   Army   Camp, 

which   suggests   that   there   was   a   conspiracy   to   wage   war   against   the 

Government   of   India,   particularly,   because   in   that   attack,   sophisticated 

arms like AK-47 and AK-56 rifles and hand grenades were used.  The High 

Court also took note that this aspect regarding waging war was not even 

argued by the learned counsel appearing for defence.   It is on this basis 

that   the   appellant   was   held   guilty   for   the   offences   punishable   under 

Sections   120-B,   121-A,   121,   IPC,   Section   120-B   read   with   Section   302, 

IPC and Sections 468/471/474, IPC and also the offences under Sections 

186/353/120-B, IPC.  He was also held guilty for the offence under Section 

14   of   the   Foreigners   Act,   since   it   was   proved   that   the   appellant,   a 

foreigner, had entered the territory of India without obtaining the necessary 

permissions and clearance.  Similarly, the appellant was also held guilty for 

the offences under the Arms Act as well as the Explosive Substances Act 

on account of his being found with a pistol and live cartridges.

                                               12

75.     The   law   on   the   circumstantial   evidence   is,   by   now,   settled.     In 

Sharad   Birdhichand   Sarda   Vs.   State   of   Maharashtra   [1984   (4)   SCC  

116],   this   Court   drew   out   the   following   test   for   relying   upon   the 

circumstantial evidence:-

        "(1)     The circumstances from which the conclusion of guilt is to be 

                 drawn should be fully established.

        (2)      The   facts   so   established   should   be   consistent   only   with   the 

                 hypothesis   of   the   guilt   of   the   accused,   that   is   to   say,   they 

                 should not be explainable on any other hypothesis except that 

                 the accused is guilty.

        (3)      The   circumstances   should   be   of   a   conclusive   nature   and 

                 tendency.

        (4)      They   should   exclude   every   possible   hypothesis   except   the 

                 one to be proved, and

        (5)      There   must   be   a   chain   of   evidence   so   complete   as   not   to 

                 leave   any   reasonable   ground   for   the   conclusion   consistent 

                 with the innocence of the accused and must show that in all 

                 human   probability   the   act   must   have   been   done   by   the 

                 accused."

        The principle of this judgment was thereafter followed in number of 

decisions,   they   being  Tanviben   Pankaj   Kumar   Divetia   Vs.   State   of  

Gujarat [1997 (7) SCC 156], State (NCT of Delhi) Vs. Navjot Sandhu @  

Afsan   Guru   [2005   (11)   SCC   600],   Vikram   Singh   &   Ors.   Vs.   State   of  

Punjab   [2010   (3)   SCC   56],   Aftab   Ahmad   Anasari   Vs.   State   of  

Uttaranchal   [2010   (2)   SCC   583]  etc.     It   is   to   be   noted   that   in   the   last 

                                             12

mentioned   decision   of  Aftab   Ahmad   Anasari   Vs.   State   of   Uttaranchal  

(cited supra), the observation made is to the following effect:-

       "In   cases   where   evidence   is   of   a   circumstantial   nature,   the 

       circumstances   from   which   the   conclusion   of   guilt   is   to   be   drawn 

       should, in the first instance, be fully established. Each fact must be 

       proved individually and only thereafter the Court should consider the 

       total   cumulative   effect   of   all   the   proved   facts,   each   one   of   which 

       reinforces the conclusion of the guilt. If the combined effect of all the 

       facts   taken   together   is   conclusive   in   establishing   the   guilt   of   the 

       accused, the conviction would be justified even though it may be that 

       one or more of these facts, by itself/themselves, is/are not decisive. 

       The   circumstances   proved   should   be   such   as   to   exclude   every 

       hypothesis   except   the   one   sought   to   be   proved.  But   this   does   not 

       mean   that   before   the   prosecution   case   succeeds   in   a   case   of 

       circumstantial   evidence   alone,   it   must   exclude   each   and   every 

       hypothesis  suggested by the accused, howsoever  extravagant  and 

       fanciful   it   might   be.  There   must   be   a   chain   of   evidence   so   far 

       complete   as   not   to   leave   any   reasonable   ground   for   conclusion 

       consistent with the innocence of the accused and it must be such as 

       to   show   that   within   all   human   probability,   the   act   must   have   been 

       done   by   the   accused.     Where   the   various   links   in   a   chain   are   in 

       themselves complete, then a false plea or a false defence may be 

       called   into   aid   only   to   lend   assurance   to   the   Court..........." 

       (Emphasis supplied).

       The   Court   further   went   on   to   hold   that   in   applying   this   principle, 

distinction must be made between the facts called primary or basic, on the 

one hand, and the inference of facts to be drawn from them, on the other. 

The Court further mentioned that:- 

       "in drawing these inferences or presumptions, the Court must have 

       regard   to   the   common   course   of   natural   events,   and   to   human 

       conduct and their relations to the facts of the particular case."

                                             12

       To the similar effect are the observations made in Vikram Singh &  

Ors. Vs. State of Punjab (cited supra).

76.    There   can   be   no   dispute   that   in   a   case   entirely   dependent   on   the 

circumstantial   evidence,   the   responsibility   of   the   prosecution   is   more   as 

compared to the case where the ocular testimony or the direct evidence, 

as   the   case   may   be,   is   available.     The   Court,   before   relying   on   the 

circumstantial evidence and convicting the accused thereby has to satisfy 

itself   completely   that   there   is   no   other   inference   consistent   with   the 

innocence of the accused possible nor is there any plausible explanation. 

The   Court   must,   therefore,   make   up   its   mind   about  the   inferences   to   be 

drawn   from   each   proved   circumstance   and   should   also   consider   the 

cumulative   effect   thereof.     In   doing   this,   the   Court   has   to   satisfy   its 

conscience   that   it   is   not   proceeding   on   the   imaginary   inferences   or   its 

prejudices  and  that  there could be no other inference  possible  excepting 

the   guilt   on   the   part   of   the   accused.     We   respectfully   agree   with   the 

principles   drawn   in   the   above   mentioned   cases   and   hold   that   the 

prosecution   was   successful   in   establishing   the   above   mentioned 

circumstances against the appellant, individually, as well as, cumulatively. 

There   indeed   cannot   be   a   universal   test   applicable   commonly   to   all   the 

situations for reaching an inference that the accused is guilty on the basis 

of   the   proved   circumstances   against   him   nor   could   there   be   any 

                                               12

quantitative   test   made   applicable.     At   times,   there   may   be   only   a   few 

circumstances available to reach a conclusion of the guilt on the part of the 

accused  and  at times,  even  if  there  are  large numbers  of circumstances 

proved, they may not be enough to reach the conclusion of guilt on the part 

of   the   accused.     It   is   the   quality   of   each   individual   circumstance   that   is 

material and that would  essentially depend upon the  quality of evidence. 

Fanciful   imagination   in   such   cases   has   no   place.     Clear   and   irrefutable 

logic would be an essential factor in arriving at the verdict of guilt on the 

basis   of   the   proved   circumstances.     In   our   opinion,   the   present   case   is 

such, as would pass all the tests so far devised by this Court in the realm 

of criminal jurisprudence.

77.     However, we must, at this stage, take note of the argument raised by 

the   learned   counsel   for   the   defence   that   the   appellant   has   suffered   a 

prejudice   on   account   of   his   being   a   Pakistani   national.     The   learned 

counsel   contended   that   on   account   of   his   foreign   nationality   and   in 

particular that of Pakistan, the whole  investigating agency as well  as the 

Courts   below   have   viewed   his   role   with   jaundiced   eyes.     The   learned 

counsel pointed out that all the other accused who were acquitted did not 

have   foreign   nationality.     We  must   immediately   note   that   the   criticism   is 

entirely   misplaced,   both   against   the   investigating   agency  and   the   Courts 

below.     The   investigation   in   this   case   was   both   scientific   and   fair 

                                              13

investigation.   This was one of the most difficult cases to be investigated 

as   there   could   have   been   no   clue   available   to   the   investigating   agency. 

The small thread which became available to the investigating agency was 

the chit found alongwith some Indian currency at the back of the Red Fort 

wall in a polythene packet.  We must pay compliments to the Investigating 

Officer  S.K.   Sand   (PW-230)   as   also   to   all   the   other   associated   with   the 

investigation for being objective and methodical in their approach.  It has to 

be borne in mind that not a single incidence of ill-treatment to the appellant 

was  reported or proved.   Again, the timely recording of the D.D. Entries, 

scientific investigation using the computer, the depth of investigation and 

the   ability   of   the   investigating   agency   to   reach   the   very   basis   of   each 

aspect  lend  complete  credibility to  the  fairness of the  investigation.    We, 

therefore,   reject   this   argument   insofar   as   the   investigating   agency   is 

concerned.  Similar is the role played by the trial and the appellate Courts. 

It could not be distantly imagined that the Courts below bore any prejudice. 

The   trial   held   before   the   trial   Judge   was   the   epitome   of   fairness,   where 

every opportunity was given to the accused persons and more particularly, 

to   the   present   appellant.   Similarly,   the   High   Court   was   also   very   fair   in 

giving   all   the   possible   latitude,   in   giving   patient   hearing   to   this   accused 

(appellant).    The records of the trial and the appellate Courts truly justify 

these   inferences.     We,   therefore,   reject   this   argument   of   the   learned 

defence counsel.

                                             13

78.    It   was   then   argued   that   there   could   be   no   conviction   for   the 

conspiracy   in   the   absence   of   conviction   of   any   other   accused   for   that 

purpose.  The argument is per se incorrect.  It is true that out of the original 

22   accused   persons,   ultimately   upto   this   level,   it   is   only   the   present 

appellant   who   stands   convicted.     We   must,   however,   point   out   that   as 

many as 8 accused persons against whom the investigating agency filed a 

chargesheet   are   found   to   be   absconding.     The   Investigating   Officer   had 

collected ample material during the investigation against these 8 accused 

persons   who   were   (1)   Sabir   @   Sabarulla   @   Afgani   (A-12),   Sher   Zaman 

Afgani   S/o   Mohd.   Raza   (A-13),   Abu   Haider   (A-14),   Abu   Shukher   (A-15), 

Abu   Saad   (A-16),   Zahur   Ahmad   Qasid   S/o   Gulam   Mohd.   Qasid   (A-17), 

Bilal Ahmad Kawa S/o Ali Mohd. Kawa (A-18) and Athruddin @ Athar Ali 

@   Salim   @   Abdulla   S/o   Ahmuddin   (A-19).     Besides   these   absconding 

accused persons, 3 others were Abu Bilal (A-20), Abu Shamal (A-21) and 

Abu Suffian (A-22).   All these three persons were already dead when the 

chargesheet   was   filed   against   them.     The   charge   of   conspiracy   was 

against all the accused persons.   The conspiracy also included the dead 

accused Abu Shamal who was found to be hiding and who was later killed 

in exchange of fire with the police.  The whereabouts of Abu Shamal were 

known   only   due   to   the   discovery   statement   by   the   appellant,   in   which   a 

very clear role was attributed to Abu Shamal, who was also a part of the 

team having entered the Red Fort and having taken part in the firing and 

                                               13

killing   of  three   soldiers.     It  has   also   come   in  the   evidence  that  the  other 

accused who  was  absconding in the present case, namely,  Abu Bilal (A-

20),   was   killed   in   exchange   of   fire   with   police   in   2002   near   Humayun's 

Tomb.  It is to be remembered that the negative of the photograph of Abu 

Bilal   (A-20)   was   seized   at   the   time   of   arrest   of   the   appellant,   from   his 

wallet.    Indeed, the act of firing at the Army was  not by a single person. 

The learned Solicitor General, therefore, rightly submitted that the case of 

the prosecution that there was a conspiracy to attack the Red Fort and kill 

innocent persons, was not affected even if the other accused persons who 

were alleged to have facilitated and helped the appellant, were acquitted. 

The   question   of   a   single   person   being   convicted   for   an   offence   of 

conspiracy   was   considered   in  Bimbadhar   Pradhan   Vs.   The   State   of  

Orissa [AIR 1956 SC 469].  Paragraph 14 thereof is relevant for us, which 

is as follows:-

        "14.    Another contention raised on behalf of the appellant was that 

                the other accused having been acquitted by the trial court, the 

                appellant   should   not   have   been   convicted   because   the 

                evidence against all of them was the same. There would have 

                been a great deal of force in this argument, not as a question 

                of   principle  but   as  a   matter  of   prudence  if  we   were  satisfied 

                that   the   acquittal   of   the   other   four   accused   persons   was 

                entirely   correct.   In   this   connection   the   observations   of   this 

                Court in the case of Dalip Singh  v. State of Punjab [1954] (1) 

                SCR 145, and of the Federal Court in Kapildeo Singh v. The 

                King   [1949]   F.C.R.   834,   are   relevant.   It   is   not   essential   that 

                more than one person should be convicted of the offence of 

                criminal conspiracy. It is enough if the court is in a position to 

                find that two or more persons were actually concerned in the 

                                            13

              criminal   conspiracy.   If   the   courts   below   had   come   to   the 

              distinct   finding   that   the   evidence   led   on   behalf   of   the 

              prosecution was unreliable, then certainly no conviction could 

              have been based on such evidence and all the accused would 

              have   been   equally   entitled   to   acquittal.   But   that   is   not   the 

              position  in this case  as we read the judgments of the courts 

              below."

       The learned Solicitor General also relied on the decision in State of  

Himachal   Pradesh   Vs.   Krishna   Lal   Pradhan   [1987   (2)   SCC   17]  and 

cited the observations to the effect that the offence of criminal conspiracy 

consists in a meeting of minds of two or more persons for agreeing to do or 

causing to be done an illegal act by illegal means, and the performance of 

an act in terms thereof.  It is further observed:-

              "If pursuant to the criminal conspiracy the conspirators commit 

              several offences, then all of them will be liable for the offences 

              even   if   some   of   them   had   not   actively   participated   in   the 

              commission of the offences."

       The learned Solicitor General further relied on the decision in State  

through Superintendent of Police, CBI/SIT Vs. Nalini & Ors. [1999 (5)  

SCC   253],   wherein   in  paragraph   662,   the   following   observations   were 

made:-

              "In   reaching   the   stage   of   meeting   of   minds,   two   or   more 

              persons share information about doing an illegal act or a legal 

              act by illegal means. This is the first stage where each is said 

              to have knowledge of a plan for committing an illegal act or a 

              legal   act   by   illegal   means.   Among   those   sharing   the 

              information   some   or   all   may   performance   intention   to   do   an 

              illegal act or a legal act by illegal means. Those who do form 

              the requisite intention would be parties to the agreement and 

                                            13

             would be conspirators but those who drop out cannot be roped 

             in   as   collaborators   on   the   basis   of   mere   knowledge   unless 

             they   commit   acts   or   omissions   from   which   a   guilty   common 

             intention   can   be   inferred.   It   is   not   necessary   that   all   the 

             conspirators should participate from inception to the end of the 

             conspiracy; some may join the conspiracy after the time when 

             such   intention   was   first   entertained   by   any   one   of   them   and 

             some others may quit from the conspiracy. All of them cannot 

             but   be   treated   as   conspirators.   Where   in   pursuance   of   the 

             agreement   the   conspirators   commit   offences   individually   or 

             adopt illegal means to do a legal act which has a nexus to the 

             object of conspiracy, all of them will be liable for such offences 

             even   if   some   of   them   have   not   actively   participated   in   the 

             commission of those offences." 

      Again   in  Firozuddin   Basheeruddin   &   Ors.   Vs.   State   of   Kerala  

[2001 (7) SCC  596], while  stating  the principles of conspiracy, the Court 

observed as follows:-

             "Conspiracy is not only a substantive crime. It also serves as a 

             basis for holding one person liable for the crimes of others in 

             cases   where   application   of   the   usual   doctrines   of   complicity 

             would not render that person liable. Thus, one who enters into 

             a   conspiratorial   relationship   is   liable   for   every   reasonably 

             foreseeable   crime   committed   by   every   other   member   of   the 

             conspiracy in furtherance of its objectives, whether or not he 

             knew of the crimes or aided in their commission. The rationale 

             is that criminal acts done in furtherance of a conspiracy may 

             be   sufficiently   dependent   upon   the   encouragement   and 

             support   of   the   group   as   a   whole   to   warrant   treating   each 

             member as a casual agent to each act. Under this view, which 

             of   the   conspirators   committed   the   substantive   offence   would 

             be less significant in determining the defendant's liability than 

             the   fact   that   the   crime   was   performed   as   a   part   of   a   larger 

             division of labor to which the accused had also contributed his 

             efforts.

                     Regarding   admissibility   of   evidence,   loosened 

             standards   prevail   in   a   conspiracy   trial.   Contrary   to   the   usual 

             rule,   in   conspiracy   prosecutions   a   declaration   by   one 

                                            13

              conspirator, made in furtherance of a conspiracy and during its 

              pendency, is admissible against each co-conspirator. Despite 

              the   unreliability   of   hearsay   evidence,   it   is   admissible   in 

              conspiracy   prosecutions.   Explaining   this   rule,   Judge   Hand 

              said:

                       "Such declarations are admitted upon no doctrine of the 

                       law   of   evidence,   but   of   the   substantive   law   of   crime. 

                       When men enter into an agreement for an unlawful end, 

                       they become ad hoc agents for one another, and have 

                       made 'a partnership in crime'. what one does pursuant 

                       to   their   common   purpose,   all   do,   and   as   declarations 

                       may be such acts, they are competent against all (Van 

                       Riper v. United States 13 F.2d 961, 967, (2d Cir. 1926)."

                       Thus   conspirators   are   liable   on   an   agency   theory   for 

              statements   of   co-conspirators,   just   as   they   are   for   the   overt 

              acts and crimes committed by their confreres."

       Our attention was also invited to the observations made in Yashpal  

Mittal   Vs.   State   of   Punjab   [1977   (4)   SCC   540]  at   page   543.     The 

observations are to the following effect:-

              "The   offence   of   criminal   conspiracy   under   Section  120A  is   a 

              distinct offence introduced for the first time in 1913 in Chapter 

              VA of the Penal Code. The very agreement, concert or league 

              is the ingredient of the offence. It is not necessary that all the 

              conspirators   must   know   each   and   every   detail   of   the 

              conspiracy   as   long   as   they   are   co-participators   in   the   main 

              object of the conspiracy. There may be so many devices and 

              techniques   adopted   to   achieve   the   common   goal   of   the 

              conspiracy and there may be division of performances in the 

              chain   of   actions   with   one   object   to   achieve   the   real   end   of 

              which   every   collaborator   must   be   aware   and   in   which   each 

              one of them must be interested. There must be unity of object 

              or   purpose   but   there   may   be   plurality   of   means   sometimes 

              even  unknown  to  one  another,  amongst  the conspiratOrs.  In 

              achieving   the   goal   several   offences,   may   be   committed   by 

              some   of   the   conspirators   even   unknown   to   the   others.   The 

              only relevant factor is that all means adopted and illegal acts 

                              13

done must be and purported to be in furtherance of the object 

of   the   conspiracy   even   though   there   may   be   sometimes 

misfire or over-shooting by some of the conspirators. Even if 

some steps are resorted to by one or two of the conspirators 

without   the   knowledge   of   the   others   it   will   not   affect   the 

culpability of those others when  they are associated with the 

object   of   the   conspiracy.   The   significance   of   criminal 

conspiracy   under  Section  120A  is   brought   out   pithily   by   this 

Court   in   Major   B.   G.   Darsay   v.   The   State   of   Bombay:   1961 

CriLJ 828 . thus:

        The   gist   of   the   offences   is   an   agreement  to   break   the 

        law. The parties to such an agreement will  be guilty of 

        criminal conspiracy, though the illegal act agreed to be 

        done has not been done. So too, it is not an ingredient 

        of the offence that all the parties should agree to dc a 

        single illegal act. It may comprise the commission of a 

        number   of   acts.   under   Section  43  of   the   Indian   Penal 

        Code, an act would be illegal if it is an offence or if it is 

        prohibited   by   law.   Under   the   first   charge   the   accused 

        are charged with have conspired to do three categories 

        of  illegal   acts  and  the  mere  fact  that   all of  them   could 

        not   be   convicted   separately   in   respect   of   each   of   the 

        offences   has   no   relevancy   in   considering   the   question 

        whether   the   '-   offence   of   conspiracy   has   been 

        committed.   They   ate   all   guilty   of   the   offence   of 

        conspiracy   to   do   illegal   acts,   though   for   individual 

        offences all of them may not be liable.

        We   are   in   respectful   agreement   with   the   above 

observations with regard to the offence of criminal conspiracy.

        The   main   object   of   the   criminal   conspiracy   in   the   first 

charge   is   undoubtedly   cheating   by   personation.   The   other 

means   adopted,   inter   alia,   are   preparation   or   causing   to   be 

prepared spurious passports; forging or causing to be forged 

entries   and   endorsements   in   that   connection;   and   use   of   or 

causing   to   be   used   forged   passports   as   genuine   in   order   to 

facilitate   travel   of   persons   abroad.   The   final   object   of   the 

conspiracy in the first charge being the offence of cheating by 

personation  and we  find,  the other offence described therein 

are   steps,   albeit,   offences   themselves,   in   aid   of   the   ultimate 

crime. The charge does not connote plurality of objects of the 

                                           13

             conspiracy. That the appellant himself is not charged with the 

             ultimate offence, which is the object of the criminal conspiracy, 

             is beside the point in a charge under Section 120B IPC as long 

             as   he   is   a   party   to   the   conspiracy   with   the   end   in   view. 

             Whether the charges will be ultimately established against the 

             accused is a completely different matter within the domain of 

             the trial court."

      The   learned   Solicitor   General   also   invited   our   attention   to   the 

decision rendered in  Ajay Agarwal Vs. Union of India & Ors. [1993 (3)  

SCC 609], wherein the following observations were made in paragraphs 8 

and 24:-

             "8.     ......  In Chapter VA, conspiracy was brought on statute 

                     by the Amendment Act, 1913 (8 of 1913). Section 120-A 

                     of the I.P.C. defines 'conspiracy' to mean that when two 

                     or  more persons  agree  to do,  or  cause  to be  done an 

                     illegal act, or an act which is not illegal by illegal means, 

                     such   an   agreement   is   designated   as   "criminal 

                     conspiracy.   No   agreement   except   an   agreement   to 

                     commit   an   offence   shall   amount   to   a   criminal 

                     conspiracy, unless some act besides the agreement is 

                     done   by   one   or   more   parties   to   such   agreement   in 

                     furtherance   thereof.   Section          120-B     of   the   I.P.C. 

                     prescribes punishment for criminal conspiracy. It is not 

                     necessary   that   each   conspirator   must   know   all   the 

                     details   of   the   scheme   nor   be   a   participant   at   every 

                     stage. It is necessary that they should agree for design 

                     or object of the conspiracy. Conspiracy is conceived as 

                     having three elements: (1) agreement (2) between  two 

                     or   more   persons   by   whom   the   agreement   is   effected; 

                     and   (3)   a   criminal   object,   which   may   be   either   the 

                     ultimate   aim   of   the   agreement,   or   may   constitute   the 

                     means, or one of the means by which that aim is to be 

                     accomplished.   It   is   immaterial   whether   this   is   found   in 

                     the   ultimate   objects.   The   common   law   definition   of 

                     'criminal conspiracy' was stated first by Lord Denman in 

                     Jones'  case  (1832  B &  AD  345) that  an  indictment  for 

                     conspiracy must "charge a conspiracy to do an unlawful 

                                            13

                     act by unlawful means" and was elaborated by Willies, 

                     J. on behalf of the Judges while referring the question to 

                     the House of Lords in Mulcahy v. Reg (1868) L.R. 3 H.L. 

                     306   and   the   House   of   Lords   in   unanimous   decision 

                     reiterated in Quinn v. Leathem 1901 AC 495 as under:

                             `A conspiracy consists not merely in the intention 

                             of   two   or   more,   but   in   the   agreement   of   two   or 

                             more to do an unlawful  act, or to do a lawful act 

                             by   unlawful   means.   So   long   as   such   a   design 

                             rests   in   intention   only   it   is   not   indictable.   When 

                             two agree to carry it into effect, the very plot is an 

                             act   in   itself,   and   the   act   of   each   of   the   parties, 

                             promise   against   promise,  actus   contra   actum, 

                             capable of being enforced, if lawful, punishable of 

                             for   a   criminal   object   or   for   the   use   of   criminal 

                             means. (emphasis supplied)'

             24.     A conspiracy thus, is a continuing offence and continues 

                     to   subsist   and   committed   wherever   one   of   the 

                     conspirators does an act or series of acts. So long as its 

                     performance continues, it is a continuing offence till it is 

                     executed   or   rescinded   or   frustrated   by   choice   or 

                     necessity.   A   crime   is   complete   as   soon   as   the 

                     agreement is made, but it is not a thing of the moment. 

                     It does not end with the making of the agreement.  It will 

                     continue so long as there are two or more parties to it 

                     intending to carry into effect the design. Its continuance 

                     is a threat to the society against which it was aimed at 

                     and would be dealt with as soon as that jurisdiction can 

                     properly   claim   the   power   to   do   so.   The   conspiracy 

                     designed or agreed abroad will have the same effect as 

                     in   India,   when   part   of   the   acts,   pursuant   to   the 

                     agreement   are   agreed   to   be   finalized   or   done, 

                     attempted or even frustrated and vice versa."

      Further   in  Nazir   Khan   &   Ors.   Vs.   State   of   Delhi   [2003   (8)   SCC  

461], the Court observed as under:-

                               13

"16.     In  Halsbury's   Laws   of   England   (vide   4th  Ed.   Vol.   11, 

         page   44,   page   58),   the   English   Law   as   to   conspiracy 

         has been stated thus:

                 "Conspiracy  consists   in  the  agreement   of  two  or 

                 more   persons   to   do   an   unlawful   act,   or   to   do   a 

                 lawful   act   by   unlawful   means.   It   is   an   indication 

                 offence at common law, the punishment for which 

                 is imprisonment or fine or both in the discretion of 

                 the Court.

                         The essence of the offence of conspiracy is 

                 the   fact   of   combination   by   agreement.   The 

                 agreement may be express or implied, or in part 

                 express   and   in   part   implied.   The   conspiracy 

                 arises   and   the   offence   is   committed   as   soon   as 

                 the   agreement   is   made;   and   the   offence 

                 continues   to   be   committed   so   long   as   the 

                 combination   persists,   that   is   until   the 

                 conspiratorial   agreement   is   terminated   by 

                 completion of its performance or by abandonment 

                 or   frustration   or   however,   it   may   be.   The   actus 

                 rues in a conspiracy is the agreement to execute 

                 the illegal conduct, not the execution of it. It is not 

                 enough   that   two   or   more   persons   pursued   the 

                 same  unlawful   object  at the  same  time  or in  the 

                 same place; it is necessary to show a meeting of 

                 minds,   a   consensus   to   effect   an   unlawful 

                 purpose.  It is not, however,  necessary that each 

                 conspirator   should   have   been   in   communication 

                 with every other."

17.      There is no difference between the mode of proof of the 

         offence   of   conspiracy   and   that   of   any   other   offence,   it 

         can be established by direct or circumstantial evidence. 

         (See: Bhagwan Swarup Lal Bishan Lal etc.etc. v. State 

         of Maharashtra AIR 1965 SC 682

18.      Privacy   and   secrecy   are   more   characteristics   of   a 

         conspiracy,   than   of   a   loud   discussion   in   an   elevated 

         place open to public view. Direct evidence in proof of a 

         conspiracy   is   seldom   available,   offence   of   conspiracy 

         can   be   proved   by   either   direct   or   circumstantial 

                                           14

                     evidence.   It   is   not   always   possible   to   give   affirmative 

                     evidence about the date of the formation of the criminal 

                     conspiracy,   about   the   persons   who   took   part   in   the 

                     formation of the conspiracy, about the object, which the 

                     objectors   set   before   themselves   as   the   object   of 

                     conspiracy, and about the manner in which the object of 

                     conspiracy is to be carried out, all this is necessarily a 

                     matter of inference.

             19.     The   provisions   of   Section  120A  and  120B,   IPC   have 

                     brought   the   law   of   conspiracy   in   India   in   line   with   the 

                     English Law by making the overt act unessential when 

                     the conspiracy is to commit any punishable offence. The 

                     English   Law   on   this   matter   is   well   settled.   Russell   on 

                     crime (12 Ed.Vol. I, p.202) may be usefully noted-

                             "The   gist   of   the   offence   of   conspiracy   then   lies, 

                             not  in doing the act, or effecting the  purpose  for 

                             which the conspiracy is formed, nor in attempting 

                             to do them, nor in inciting others to do them, but 

                             in   the   forming   of   the   scheme   or   agreement 

                             between the parties, agreement is essential. More 

                             knowledge, or even discussion, of the plan is not, 

                             per se, enough."

                             Glanville  Williams in the "Criminal  Law"  (Second 

                     Ed. P. 382) states-

                             "The  question  arose  in  an  lowa case,   but  it   was 

                             discussed   in   terms   of   conspiracy   rather   than   of 

                             accessoryship. D, who had a grievance against P, 

                             told E that if he would whip P someone would pay 

                             his fine. E replied that he did not want anyone to 

                             pay his fine,  that  he had a grievance  of his own 

                             against P and that he would whip him at the first 

                             opportunity.   E   whipped   P.   D   was   acquitted   of 

                             conspiracy because  there  was  no  agreement  for 

                             'concert of action', no agreement to 'co-operate'."

      The   learned   Solicitor   General   also   referred   to   the   summing   up   by 

Coleridge, J. in R. Vs. Murphy (ER) at page 508.

                                             14

79.     Ultimately,   the   learned   Solicitor   General   relied   on   the   celebrated 

decision   in  State   (NCT   of   Delhi)   Vs.   Navjot   Sandhu   [2005   (11)   SCC  

600].  On this basis, it was urged by the learned Solicitor General that the 

circumstances which were found to have been established beyond doubt, 

led   only   to   one   conclusion   that   the   appellant   was   responsible   for   the 

incident   of   shooting   inside   the   Red   Fort   on   the   night   of   22.12.2000,   in 

which three Army soldiers were killed.  This was nothing but a well planned 

conspiracy and the responsibility of this ghastly incident was taken up by 

Lashkar-e-Toiba.     This   was   undoubtedly   a   conspiracy,   well   planned, 

alongwith   some   other   militants   including   the   deceased   accused   Abu 

Shamal who was also killed in the exchange of fire with the police.  For this 

conspiracy, the appellant illegally entered India and he was receiving huge 

amounts of money to make it possible for himself to execute his design.  It 

is   for   this   purpose   that   he   falsely   created   and   forged   number   of 

documents.  The whole idea was to legitimize his stay in India for which he 

got   prepared   a   false   ration   card,   a   false   license   and   also   opened   bank 

accounts   with   the   false   addresses.     He   had   taken   adequate   care   to 

conceal his real identity.   He described himself as a trader and a resident 

of Jammu, which was also a patent falsehood.  He went on to the extent of 

getting married allegedly on the basis of an advertisement.  He also spent 

huge   amounts   without   there   being   any   source   of   money   and   deposited 

lakhs   of   rupees   in   some   other   bank   accounts.     It   may   be   that   those 

                                             14

persons,   in   whose   accounts   he   deposited   money,   might   have   been 

acquitted   getting   benefit   of   doubt   regarding   their   complicity,   but   the   fact 

remains that the appellant had no explanation to offer.  Similarly, barely 14 

days   prior   to   the   incident,   he   got   married   to   Rehmana   Yusuf   Farukhi, 

another   accused   who   was   acquitted.     It   may   be   that   Rehmana   Yusuf 

Farukhi also did not have any idea and, therefore, was granted the benefit 

of doubt; however, that does not, in any manner, dilute the nefarious plans 

on the part of the appellant.   He collected highly sophisticated arms and 

ammunition and some arms were proved to have been used in the attack 

on the Red Fort.   The attack on the soldiers staying in the Army Camp at 

Red Fort was nothing but a war waged against the Government of India.  It 

was clear that there were more than one person.  Therefore, it was nothing 

but   a   well   planned   conspiracy,   in   which   apart   from   the   appellant,   some 

others were also involved.  

80.    The   learned   Solicitor   General   then   urged   that   the   appellant   was 

rightly convicted for the offences punishable under Sections 120-B, 121-A, 

121,   IPC,   Section   120-B   read   with   Section   302,   IPC,   Sections 

468/471/474,   IPC,   Sections   186/353/120-B,   IPC   and   Section   14   of   the 

Foreigners Act.  

81.    There was no argument addressed before us to the effect that there 

was  no conspiracy.   The only argument advanced was  that the appellant 

                                              14

alone could not have been convicted for the conspiracy, since all the other 

accused   were   acquitted.     We   have   already   stated   the   principles   which 

have emerged from various decisions of this Court.  Once the prosecution 

proves that there was a meeting of minds between two persons to commit 

a crime, there would be an emergence of conspiracy.  The fact that barely 

within minutes of the attack, the BBC correspondents in Srinagar and Delhi 

were   informed,   proves   that   the   attack   was   not   a   brainchild   of   a   single 

person.   The information reached to BBC correspondent at Srinagar and 

Delhi  sufficiently  proves that  there  was  a definite  plan  and  a conspiracy. 

Again the role of other militants was very clear from the wireless message 

intercepted   at   the   instance   of   BSF.     Unless   there   was   a   planning   and 

participation   of   more   than   one   persons,   all   this   could   never   have 

happened.    For   the  execution  of  the   nefarious  plans,   the  militants   (more 

than one in number) entered under the guise of watching  Son et Lumiere 

show and while doing so, they smuggled arms inside the Red Fort.   It is 

after the show taking the advantage of the darkness, they started shooting, 

in   which   they  first  killed   the   Sentry   and   then   the   other   two   persons   who 

were the soldiers and then taking further advantage of the darkness, they 

scaled over the wall and fled.   All this had to be a pre-planned attack for 

which the militants must have made a proper reconnaissance, must have 

also found out the placements of Army barracks and the escape route from 

the   backside   of   the   Red   Fort.     It   was   not   a   stray   attack   of   some 

                                            14

desperados, which was undoubtedly an extremely well-planned attempt to 

overawe   the   Government   of   India   and   also   to   wage   war   against   the 

Government of India.  It has already been held in Kehar Singh Vs. State  

(Delhi   Admn.)   [AIR   1988   SC   1883]  that   the   evidence   as   to   the 

transmission of thoughts sharing the unlawful design would be sufficient for 

establishing   the   conspiracy.     Again   there   must   have   been   some   act   in 

pursuance of the agreement.  The offence under Section 121 of conspiring 

to wage a war is proved to the hilt against the appellant, for which he has 

been rightly held guilty for the offence punishable under Sections 121 and 

121-A,   IPC.     The   appellant   is   also   rightly   held   guilty   for   the   offence 

punishable under Section 120-B, IPC read with Section 302, IPC.   In the 

aforementioned decision of Navjot Singh Sandhu it has been held by this 

Court:

                "Thus   the   conspirator,   even   though   he   may   not   have 

                indulged in the actual criminal operations to execute the 

                conspiracy,   becomes   liable   for   the   punishment 

                prescribed   under   Section   302,   IPC.     Either   death 

                sentence   or   imprisonment   for   life   is   the   punishment 

                prescribed under Section 302, IPC."

          In this view, we agree with the verdict of the trial Court as well as the 

High Court.

82.       No other point was argued before us at the instance of the defence. 

That leaves us with the question of punishment.   The trial Court awarded 

                                              14

the death sentence to the appellant Mohd. Arif @ Ashfaq for the offence 

under  Section   121  IPC   for  waging   war   against  the  Government   of  India. 

Similarly,  he was  awarded  death sentence for the  offence under Section 

120B   read   with   Section   302,   IPC   for   committing   murder   of   Naik   Ashok 

Kumar,   Uma   Shankar   and   Abdullah   Thakur   inside   the   Red   Fort   on 

22.12.2000.  For the purpose of the sentences, the other convictions being 

of minor nature are not relevant.   On a reference having been made to it, 

the  High Court ultimately confirmed the death sentence.    The  High court 

also concurred with the finding of the trial Court that this was a rarest of the 

rare case.   The  High  Court has observed  that the  counsel  appearing  for 

him did not highlight any mitigating circumstance justifying the conversion 

of   death   sentence   to   life   imprisonment   perhaps   because   the   learned 

counsel  was   conscious  of  the  futility  of  the  submission.     The   High  Court 

specifically   found   that   accused   had   hatched   a   conspiracy   to   attack   the 

Indian Army stationed inside the national monument for protecting it from 

any invasion by the terrorists and had executed also that conspiracy with 

the help of his  other associate militants and in that process they had killed 

three   army   Jawans   and   more  could   also   have   lost  their  lives  but  for   the 

immediate retaliation by the members of the Quick Reaction Team of the 

Army.  In that view, the High Court concurred with the finding of this being 

a   rarest   of   the   rare   case.     The   question   is   whether   we   should   give   the 

same verdict in respect of the death sentence.  

                                             14

83.    This was, in our opinion, a unique case where Red Fort, a place of 

paramount   importance   for   every   Indian   heart   was   attacked   where   three 

Indian soldiers lost their lives.  This is a place with glorious history, a place 

of   great   honour   for   every   Indian,   a   place   with   which   every   Indian   is 

attached   emotionally,   and   a   place   from   where   our   first   Prime   Minister 

delivered his speech on 15th  August, 1947, the day when India broke the 

shackles of foreign rule and became a free country.  It has since then been 

a   tradition   that   every   Hon'ble   Prime   Minister   of   this   country   delivers   an 

address   to   the   nation   on   every   15th  August   to   commemorate   that   great 

event.     This   Fort   was   visualized   and   constructed   by   Mughal   Emperor 

Shahjahan who is known as "Shahjahan the builder".  It took nine years for 

its completion.   It was here that Shahjahan ascended the Throne on 18th 

April, 1648 amidst recitation of sacred Aayates of Holy Quran and mantras 

from Hindu scriptures.   The great historical monument thereafter saw the 

rule of number of Mughal Emperors including Aurangzeb.   It also saw its 

most unfortunate capture by Nadir Shah.   It was in 1837, the last Mughal 

Emperor   Bahadurshah   Zafar   II   took   over   the   Throne.     It   must   be 

remembered that it was during the empire of Bahadurshah Zafar II that the 

first war of Independence was fought.   The Red Fort became the ultimate 

goal during that war of Independence which broke out in the month of May, 

1857.   The Fort breathed free air for a brief period.   But ultimately in the 

month of September, 1857, it was captured by the British. Red Fort is not 

                                             14

just   one   of   the   several   magnificent   monuments   that   were   built   by   the 

Mughal emperors during their reign for nearly three centuries. It is not just 

another   place   which   people   from   within   and   outside   the   country   visit   to 

have   a   glimpse   of   the   massive   walls   on   which   the   Fort   stands   or   the 

exquisite workmanship it displays.   It is not simply a tourist destination in 

the   capital   that   draws   thousands   every   year   to   peep   and   revel   into   the 

glory of the times by gone.     Its importance lies in the fact that it has for 

centuries symbolised the seat of power in this country.   It has symbolised 

the supremacy of the Mughal and the British empires just as it symbolises 

after   independence   the   sovereignty   of   the   world's   largest   democratic 

republic.   It   is   a   national   symbol   that   evokes   the   feelings   of   nationalism 

amongst   the   countrymen   and   reminds   them   of   the   sacrifices   that   the 

freedom  fighters made for the liberation  of this country from foreign rule. 

No wonder even after the fall of the fort to the British forces in the first war 

of independence in 1857 and the shifting of the seat of power from the Red 

Fort to the Calcutta and later to New Delhi, Pt. Jawahar Lal Nehru after his 

historic "Tryst with Destiny" speech unfurled the tricolor from the ramparts 

of the Red Fort on 15th  August 1947.   That singular event symbolised the 

end of the British rule in this country and the birth of an independent India. 

An  event  that  is  relived  and  re-acted  every  succeeding  year  since 1947, 

when every incumbent Prime Minister addresses the nation from atop this 

great   and   historic   Fort   reminding   the   countrymen   of   the   importance   of 

                                                14

freedom,   the   need   for   its   preservation   and   the   values   of   constitutional 

democracy   that   guarantees   the   freedoms   so   very   fundamental   to   the 

preservation   of   the   unity   and   integrity   of   this   country.   An   attack   on   a 

symbol that is so deeply entrenched in the national psyche was, therefore, 

nothing but an attack on the very essence of the hard earned freedom and 

liberty so very dear to the people of this country.   An attack on a symbol 

like Red Fort was an assault on the nation's will and resolve to preserve its 

integrity   and   sovereignty   at   all   costs.   It   was   a   challenge   not   only   to   the 

Army battalions stationed inside the monument but the entire nation. It was 

a   challenge   to   the   very   fabric   of   a   secular   constitutional   democracy   this 

country   has   adopted   and   every   thing   that   is   good   and   dear   to   our 

countrymen.   It   was   a   blatant,   brazenfaced   and   audacious   act   aimed   to 

over awe the Government of India.  It was meant to show that the enemy 

could  with   impunity   reach  and  destroy   the   very  vitals   of  an   institution  so 

dear to our fellow countrymen for what it signified for them.  It is not for no 

reason that whosoever comes to Delhi has a yearning to visit the Red Fort. 

It   is   for  these  reasons  that   this  place  has  become   a  place  of   honour   for 

Indians.   No one can ever forget the glorious moments when the Indians 

irrespective   of   their   religions   fought   their   first   war   of   Independence   and 

shed their blood.  It was, therefore, but natural for the foreigner  enemies to 

plan an attack on the army specially kept to guard this great monument. 

This was not only an attack on Red Fort or the army stationed therein, this 

                                               14

was an arrogant assault on the self respect of this great nation.   It was a 

well   thought   out   insult   offered   to   question   the   sovereignty   of   this   great 

nation by foreign nationals.  Therefore, this case becomes a rarest of rare 

case.     This   was   nothing   but   an   undeclared   war   by   some   foreign 

mercenaries like the present appellant and his other partner in conspiracy 

Abu   Shamal   and   some   others   who   either   got   killed   or   escaped.     In 

conspiring   to   bring  about   such   kind   of   attack   and   then   carrying   out   their 

nefarious activities in systematic manner to make an attack possible was 

nothing   but   an   attempt   to   question   the   sovereignty   of   India.   Therefore, 

even without any reference to any other case law, we held this case to be 

the rarest of rare case.   Similar sentiment was expressed by this Court in 

State   v.   Navjot   Singh   Sandhu  [2005   (11)   SCC   600].     The   Court 

expressed its anguish in the following words.

                "In the instant case, there can be no doubt that the most 

                appropriate punishment is death sentence. That is what 

                has been awarded by the trial Court and the High Court. 

                The present case, which has no parallel in the history of 

                Indian   Republic,   presents   us   in   crystal   clear   terms,   a 

                spectacle   of   rarest   of   rare   cases.     The   very   idea   of 

                attacking   and   overpowering   a   sovereign   democratic 

                institution   by   using   powerful   arms   and   explosives   and 

                imperiling   the   safety   of   a   multitude   of   peoples' 

                representatives, constitutional functionaries and officials 

                of Government of India and engaging into a combat with 

                security forces is a terrorist act of gravest severity. It is a 

                classic example of rarest of rare cases.   This question 

                of   attack   on   the   army   and   the   killing   of   three   soldiers 

                sent shock waves of indignation throughout the country. 

                                              15

                We have no doubt that the collective conscience of the 

                society can be satisfied by capital punishment alone."

        We agree with the sentiments expressed in Navjot Singh Sandhu's  

case (cited supra):

                "The challenge to the unity, integrity and sovereignty of 

                India   by   these   acts   of   terrorists   and   conspirators,   can 

                only   be   compensated   by   giving   the   maximum 

                punishment   to   the   person   who   is   proved   to   be   the 

                conspirator in this treacherous act."

84.     A   conspiracy   to   attack   the   Indian   Army   unit   stationed   in   Red   Fort 

and the consequent un-provoked attack cannot be described excepting as 

waging war  against India and there can be no question of compromising 

on this issue.  The trial Court has relied on number of other cases including 

the case of Navjot Singh Sandhu (cited supra) as also the case of State  

of Tamil Nadu v. Nalini [AIR 1999 SC 2640].  We do not want to burden 

the judgment by quoting from all these cases.  However, we must point out 

that in  Machhi Singh v. State of Punjab's case   [1983 (3) SCC 470]  a 

principle   was   culled   out   that   when   the   collective   conscience   of   the 

community   is   so   shocked,   that   it   will   expect   the   holders   of   the   judicial 

power  centre to inflict death penalty irrespective of their personal opinion 

as regards  desirability  or otherwise  of retaining death penalty, same  can 

be  awarded.    The fourth test includes  the crime  of enormous  proportion. 

                                                15

For instance when multiple murders say of all or almost all the members of 

a family or a large number of persons of a particular caste, community or 

locality are committed.   Applying both the tests here we feel that this is a 

case   where   the   conscience   of   the   community   would   get   shocked   and   it 

would definitely expect the death penalty for the appellant.  Three persons 

who   had   nothing   to   do   with   the   conspirators   were   killed   in   this   case. 

Therefore,   even  Machhi   Singh's   case   (cited   supra)  would   aptly   apply. 

Even in  Bachan Singh v. State of Punjab  [AIR 1980 SC 898]  case, this 

Court referred to the penal statutes of States in USA framed after Furman  

v. Georgia  (1972) 33 L Ed 2d 346: 408 US 238)  in general and Clause 

2(a),(b),   (c)   and   (d)   of   the   Indian   Penal   Code   (Amendment)   Bill   duly 

passed   in   1978   by   Rajya   Sabha.     Following   aggravating   circumstances 

were suggested by the Court in that case as aggravating circumstances:-

               "(a)     If the murder has been committed after previous 

                        planning and involves extreme brutality; or 

               (b)      if the murder involves exceptional depravity; or

               (c)      if the murder is of a member of any of the armed 

                        forces of the Union or of a member of any police 

                        force or of any public servant and was committed-

                        (i)      while   such   member   or   public   servant   was 

                                 on duty; or

                        (ii)     in   consequence   of   anything   done   or 

                                 attempted   to   be   done   by   such   member   or 

                                 public servant in the lawful discharge of his 

                                 duty   as   such   member   or   public   servant 

                                 whether at the time of murder he was such 

                                             15

                               member or public servant, as the case may 

                               be,   or   had   ceased   to   be   such   member   of 

                               public servant; or

               (d)     if the murder is of a person who had acted in the 

                       lawful   discharge   of   his   duty   under   S.43   of   the 

                       Code   of   Criminal   Procedure,   1973,   or   who   had 

                       rendered   assistance   to   a   Magistrate   or   a   police 

                       officer   demanding   his   aid   or   requiring   his 

                       assistance   under   S.37   and   S.129   of   the   said 

                       Code."

       The   Court   then   observed   that   there   could   be   no   objection   to   the 

acceptance of these indicators.  The Court, however, preferred not to fetter 

the judicial conscience by attempting to make an exhausting enumeration 

one way or the other.  The circumstance at "(c)" would be fully covering the 

present   case   since   the   three   soldiers   who   lost   their   lives   were   the 

members of the armed forces and Abdullah one of them was actually doing 

his Sentry duty though there is no evidence available about as to what duty 

the other two were doing.  But there is no reason to hold that their murder 

was  in any manner  prompted by any provocation or  action on their  part. 

This   would   be   an   additional   circumstance   according   to   us   which   would 

justify the death sentence.   During the whole debate the learned defence 

counsel did not attempt to bring any mitigating circumstance.   In fact, this 

is a unique case where there is one most aggravating circumstance that it 

was   a   direct   attack   on   the   unity,   integrity   and   sovereignty   of   India   by 

foreigners.  Thus, it was an attack on Mother India.  This is apart from the 

fact that as many as three persons had lost their lives.   The conspirators 

                                            15

had no place in India.   Appellant was a foreign national and had entered 

India without any authorization or even justification.  This is apart from the 

fact   that   the   appellant   built   up   a   conspiracy   by   practicing   deceit   and 

committing various other offences in furtherance of the conspiracy to wage 

war against India as also to commit murders by launching an unprovoked 

attack on the soldiers of Indian Army.  We, therefore, have no doubts that 

death sentence was the only sentence in the peculiar circumstance of this 

case.  We, therefore, confirm the judgment of the trial Court and the High 

Court   convicting   the   accused   and   awarding   death   sentence   for   the 

offences under Section 302, IPC.  We also confirm all the other sentences 

on all other counts and dismiss these appeals.

                                                             ..............................J.

                                                             [V.S. Sirpurkar]

                                                             ..............................J.

                                                             [T.S. Thakur]

August 10, 2011;New Delhi.

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