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  

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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  

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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  

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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  

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(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  

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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  

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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),  

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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  

16

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  

17

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  

18

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.  

19

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  

20

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  

21

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  

22

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  

23

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-

24

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  

25

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  

26

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  

27

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  

28

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.  

29

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  

30

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  

31

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  

32

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),  

33

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  

34

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  

35

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  

36

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  

37

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.  

38

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  

39

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

40

(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  

41

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  

42

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  

43

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  

44

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  

45

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  

46

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  

47

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  

48

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  

49

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.  

50

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  

51

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  

52

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  

53

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  

54

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  

55

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  

56

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  

57

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,  

58

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  

59

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.

60

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  

61

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.   

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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  

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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  

64

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  

65

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-

66

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  

67

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  

68

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  

69

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:-

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“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  

71

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  

72

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  

73

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  

74

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  

75

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  

76

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.

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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  

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(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  

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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  

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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  

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(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.  

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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,  

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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)  

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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  

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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  

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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  

10

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  

11

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  

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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  

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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.

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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.”

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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  

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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  

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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.

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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  

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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  

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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:-

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“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  

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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  

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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  

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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  

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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  

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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.   

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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  

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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  

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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  

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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.  

14

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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