Niyaz Mohammed @ Aslam Iqbal Ahmed Shaikh (A-98) Vs. The State of Maharashtra, through CBI-STF, Mumbai
EmailAppeal: Criminal Appeal Nos. 933-936 of 2008
Petitioner: Niyaz Mohammed @ Aslam Iqbal Ahmed Shaikh (A-98)
Respondent: The State of Maharashtra, through CBI-STF, Mumbai
Apeal: Criminal Appeal Nos. 933-936 of 2008
Judges:
Date of Judgment: Mar 21, 2013
Head Note:
TADA Act, 1987
Sections 3(3), 5, 6, 15 Penal Code 1860 Sections 120B, 302, 304, 326, 324, 427, 435, 436, 201, 212 Arms Act 1959, Sections 3, 7, 25 Explosives Act, 1884, Section 9B(1) Explosive Substances Act, 1908, Sections 3, 4, 5, 6 – Evidence Act, 1872, Sections 3, 27 Conviction under Bombay blast case Role and involvement of accused Niyaz Mohammed (A98) Charges of conspiracy, murder etc. Evidence against him Appreciation Evidence comprising of his own confession Said confession recorded after following due procedure – Same voluntary Corroborated by confessions of co-accused namely, A16, A29, A32, A36, A39, A49, A52, A57, A64, A94, A100 – Further corroboration by PWs, and in particular by PW2 (approver) Various documents also proving his involvement and training in Pakistan – Did reconnaissance of BMC building Had taken oath to take revenge Attended conspiratorial meeting – Plea that it is not established that from Dubai, he went to Pakistan Further plea that taking weapon training in Pakistan by itself was no offence If holding him guilty and convicting him is invalid. Held that confession of accused, corroborated by confessions of co-accused and other prosecution evidence fully establish his involvement. After blast he absconded. Hence, contentions rejected. Conviction and sentence affirmed.
Sections 3(3), 5, 6, 15 Penal Code 1860 Sections 120B, 302, 304, 326, 324, 427, 435, 436, 201, 212 Arms Act 1959, Sections 3, 7, 25 Explosives Act, 1884, Section 9B(1) Explosive Substances Act, 1908, Sections 3, 4, 5, 6 – Evidence Act, 1872, Sections 3, 27 Conviction under Bombay blast case Role and involvement of accused Niyaz Mohammed (A98) Charges of conspiracy, murder etc. Evidence against him Appreciation Evidence comprising of his own confession Said confession recorded after following due procedure – Same voluntary Corroborated by confessions of co-accused namely, A16, A29, A32, A36, A39, A49, A52, A57, A64, A94, A100 – Further corroboration by PWs, and in particular by PW2 (approver) Various documents also proving his involvement and training in Pakistan – Did reconnaissance of BMC building Had taken oath to take revenge Attended conspiratorial meeting – Plea that it is not established that from Dubai, he went to Pakistan Further plea that taking weapon training in Pakistan by itself was no offence If holding him guilty and convicting him is invalid. Held that confession of accused, corroborated by confessions of co-accused and other prosecution evidence fully establish his involvement. After blast he absconded. Hence, contentions rejected. Conviction and sentence affirmed.
Held:
From the confession of the appellant, the following facts emerge:
(i) He participated in the weapons training at Pakistan;
(ii) He took oath after placing his hands on Quran that he will take revenge;
(iii) He attended/participated in the conspiratorial meeting at Mobinas (A-96) residence where plans were chalked out for committing terrorist acts; and
(iv) He participated in reconnaissance of the BMC Building alongwith other co-accused persons where the manner of attack was demonstrated. (Para 419)
From the confession of the accused and from his various overt acts, his involvement in the conspiracy has been clearly established. The prosecution highlighted that the appellant has made the above confession voluntarily, without any pressure or coercion and the same has been recorded after following all the safeguards enumerated under section 15 of TADA and the rules framed thereunder. (Para 420)
The confessions of other co-accused establish the following facts:-
(i) The appellant underwent training for handling arms and ammunitions and explosives at Pakistan;
(ii) The appellant took oath of maintaining secrecy and committing Jehad for the sake of Islam alongwith other co-accused;
(iii) The appellant was present in the conspiratorial meeting at the residence of A-96; and
(iv) The appellant was actively involved in reconnaissance of the BMC Building in order to commit terrorist acts. (Para 422)
It has been established by the very own confession of the appellant that he had gone to Pakistan from Dubai where he underwent weapons training. The above confession has been corroborated by the confession of co-accused as stated above and, hence, there is no doubt whatsoever that the appellant went to Pakistan from Dubai and acquired training in arms and ammunitions and explosives in order to take revenge against Hindus. (Para 427)
The passport of the appellant which has been marked as Exh. X-648 clearly shows that he left Bombay on 08.02.1993 and reached Dubai on 09.02.1993 and left Dubai on the same date and entered Dubai again on 27.02.1993 and left Dubai finally on 02.03.1993 and entered Bombay on 03.03.1993. The said entries further corroborate with the confessions of various accused persons that they did not have to go through any checking at the Airport in Pakistan. It was not the case of the appellant before the trial Court that he was elsewhere. (Para 428)
The evidence clearly establish that the appellant along with other co-conspirators was given the said training to equip themselves to commit terrorist acts in Bombay and, therefore, he has rightly been convicted under Section 3(3) of TADA mentioned at head secondly. (Para 429)
Thus, in view of the entire evidence enumerated above, we hold that the appellant was actively involved in the conspiracy to cause blasts in Bombay and in consequence of the said involvement, he has committed the offences for which he has been charged. (Para 430)
JUDGEMENT:
413. Mr. Aabad Ponda, learned counsel for the appellant (A-98) and Mr. Mukul Gupta, learned senior counsel duly assisted by Mr. Satyakam, learned counsel for the respondent-CBI.
414. The abovesaid appeals are directed against the final judgment and order of conviction and sentence dated 03.10.2006 and 01.06.2007 respectively, whereby the appellant (A-98) has been convicted and sentenced to rigorous imprisonment (RI) for life by the Designated Court under TADA for the Bombay Bomb Blast Case, Greater Bombay in B.B.C. No.1/1993.
Charges:
415. A common charge of conspiracy was framed against all the co- conspirators including the appellant (A-98). The relevant portion of the said charge is reproduced hereunder:
During the period from December, 1992 to April, 1993 at various places in Bombay, District Raigad and District Thane in India and outside India in Dubai (U.A.E.) and Pakistan, entered into a criminal conspiracy and/or were members of the said criminal conspiracy whose object was to commit terrorist acts in India and that you all agreed to commit following illegal acts, namely, to commit terrorist acts with an intent to overawe the Government as by law established, to strike terror in the people, to alienate sections of the people and to adversely affect the harmony amongst different sections of the people, i.e. Hindus and Muslims by using bombs, dynamites, hand grenades and other explosive substances like RDX or inflammable substances or fire-arms like AK-56 rifles, carbines, pistols and other lethal weapons, in such a manner as to cause or as likely to cause death of or injuries to any person or persons, loss of or damage to and disruption of supplies of services essential to the life of the community, and to achieve the objectives of the conspiracy, you all agreed to smuggle fire-arms, ammunitions, detonators, hand grenades and high explosives like RDX into India and to distribute the same amongst yourselves and your men of confidence for the purpose of committing terrorist acts and for the said purpose to conceal and store all these arms, ammunitions and explosives at such safe places and amongst yourselves and with your men of confidence till its use for committing terrorist acts and achieving the objects of criminal conspiracy and to dispose off the same as need arises. To organize training camps in Pakistan and in India to import and undergo weapons training in handling of arms, ammunitions and explosives to commit terrorist acts. To harbour and conceal terrorists/co-conspirators, and also to aid, abet and knowingly facilitate the terrorist acts and/or any act preparatory to the commission of terrorist acts and to render any assistance financial or otherwise for accomplishing the object of the conspiracy to commit terrorist acts, to do and commit any other illegal acts as were necessary for achieving the aforesaid objectives of the criminal conspiracy and that on 12.03.1993 were successful in causing bomb explosions at Stock Exchange Building, Air India Building, Hotel Sea Rock at Bandra, Hotel Centaur at Juhu, Hotel Centaur at Santacruz, Zaveri Bazaar, Katha Bazaar, Century Bazaar at Worli, Petrol Pump adjoining Shiv Sena Bhavan, Plaza Theatre and in lobbing hand-grenades at Machhimar Hindu Colony, Mahim and at Bay-52, Sahar International Airport which left more than 257 persons dead, 713 injured and property worth about Rs.27 crores destroyed, and attempted to cause bomb explosions at Naigaum Cross Road and Dhanji Street, all in the city of Bombay and its suburbs i.e. within Greater Bombay. And thereby committed offences punishable under Section 3(3) of TADA (P) Act, 1987 and Section 120-B of IPC read with Sections 3(2)(i)(ii), 3(3)(4), 5 and 6 of TADA (P) Act, 1987 and read with Sections 302, 307, 326, 324, 427, 435, 436, 201 and 212 of Indian Penal Code and offences under Sections 3 and 7 read with Sections 25 (1A), (1B)(a) of the Arms Act, 1959, Sections 9B (1)(a)(b)(c) of the Explosives Act, 1884, Sections 3, 4(a)(b), 5 and 6 of the Explosive Substances Act, 1908 and Section 4 of the Prevention of Damage to Public Property Act, 1984 and within my cognizance.
In addition to the above-said principal charge of conspiracy, the appellant was also charged on the following counts:
At head Secondly:-
a) He visited Pakistan along with his co-conspirators via Dubai and took training in handling of arms and ammunitions and explosives with the object of committing terrorist acts;
b) He attended the conspiratorial meetings at the residence of Nazir Ahmed Anwar Shaikh @ Babloo and Mobina Bayamoosa Bhiwandiwala (A-96) ; and
c) He did reconnaissance of BMC Building along with his co-conspirators viz., Tiger Memon, Mohd. Usman Jan Khan, Javed Chikna, Shaikh Ali for selecting targets in order to plant bombs for the purpose of committing terrorist acts.
416. The charges mentioned above were proved against the appellant (A-98). The appellant has been convicted and sentenced for the above said charges as under:
Conviction and Sentence:
i) The appellant has been convicted for the offence of conspiracy read with the offences described at head firstly and sentenced to RI for life along with a fine of Rs. 25,000/-, in default, to further undergo RI for 6 months. (charge firstly)
ii) The appellant has also been convicted under Section 3(3) of TADA for commission of offences at head secondly and sentenced to RI for life along with a fine of Rs. 25,000/-, in default, to further undergo RI for 6 months. (charge secondly)
Evidence
417. The evidence against the appellant (A-98) is in the form of:-
(i) his own confession;
(ii) confessions made by other co-conspirators; (co-accused);
(iii) testimony of prosecution witnesses; and
(iv) documentary evidence.
Confessional statement of Niyaz Mohammed @ Aslam Iqbal Ahmed Shaikh (A-98)
418. The prosecution submitted that the involvement of the appellant in the conspiracy is evident from his own confession recorded under Section 15 of TADA on 17.05.1993 (14:30 hrs.) and 20.05.1993 (11:30 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. The confession of the appellant is summarized below:-
(i) His house was damaged during riots and he shifted to Hakim building.
(ii) At the new residence, he was introduced by Sajid to a person called Jabir, who asked him about his interest to go to Dubai. On expressing his desire for the same, the appellant was asked for his passport by Jabir.
(iii) Thereafter, Jabir made all the arrangements for his travel and on 08.02.1993, he went to Dubai alongwith Firoz @ Akram Amani Malik (A-39). He was told that his visa would be given at Dubai and a person will receive them at the Airport.
(iv) He along with A-39 was received by Ayub Memon (AA) who took them to the residence of Tahir Bhai (AA) where Nasim Ashraf Shaikh Ali Barmare (A-49) was already present.
(v) From Dubai, he went to Pakistan along with A-49 and A-39.
(vi) In Pakistan, he was given the fake name, Aslam.
(vii) In Pakistan, he took training in handling weapons including dismantling, re-assembling and firing of pistols, AK-56 rifles, hand-grenades, detonators, timer pencils and making of bombs by using RDX.
(viii) Parvez Mohammed Parvez Zulfikar Qureshi (A-100) and other co-accused persons were also present in the training.
(ix) Tiger Memon also imparted training for two days.
(x) On completion of the training, he alongwith some others left Pakistan and reached Dubai on 27.02.1993.
(xi) On 01.03.1993, the remaining persons, who had participated in the training along with him in Pakistan as well as Tiger Memon, returned to Dubai.
(xii) Thereafter, at the instance of Tiger Memon, he and others (including A-100) took oath of maintaining secrecy and committing Jehad for the sake of Islam. Further, Tiger spoke about the atrocities committed on Muslims during the communal riots in Bombay and taking revenge for the same.
(xiii) He along with Gul Mohammed @ Gullu Noor Mohammed Shaikh (A-77) and Nasir Abdul Kader Kewal @ Nasir Dakhla (A-64) left Dubai on 02.03.1993 and arrived Bombay on 03.03.1993.
(xiv) On 07/08.03.1993, A-98 and A-49 helped Irfan Chougule (AA) in unloading 7-8 gunny bags filled with RDX from his fiat car.
(xv) On 08/09.03.1993, he participated in the conspiratorial meeting at the residence of Mobina Bayamoosa Bhiwandiwala (A-96) where A-100 was also present along with other co-accused persons.
(xvi) He participated in reconnaissance of the BMC Building alongwith Tiger Memon, Javed Chikna, PW-2, A-54 and A-57. On reaching the said building, Tiger Memon told them that they would have to make indiscriminate firing pointing out to them the entry and exit points of the building and also pointed out the place of parking the vehicle and the manner in which they had to flee away after effecting the said firing.
419. From the above confession of the appellant, the following facts emerge:
(i) He participated in the weapons training at Pakistan;
(ii) He took oath after placing his hands on Quran that he will take revenge;
(iii) He attended/participated in the conspiratorial meeting at Mobinas (A-96) residence where plans were chalked out for committing terrorist acts; and
(iv) He participated in reconnaissance of the BMC Building alongwith other co-accused persons where the manner of attack was demonstrated.
420. From the confession of the accused and from his various overt acts, his involvement in the conspiracy has been clearly established. The prosecution highlighted that the appellant has made the above confession voluntarily, without any pressure or coercion and the same has been recorded after following all the safeguards enumerated under section 15 of TADA and the rules framed thereunder.
Confessional Statements of co-accused:
421. Apart from his own confession, the involvement of the appellant has also been disclosed in the confessional statements of the following co-accused. The legality and acceptability of the confessions of the co-accused has already been considered by us in the earlier part of our discussion. The said confessions insofar as they refer to the appellant (A-98) are summarized hereinbelow:
Confessional Statement of Mohd. Farooq Mohd. Yusuf Pawale (A-16)
421.1 Confessional statement of A-16 under Section 15 of TADA has been recorded on 20.05.1993 (16:30 hrs.) and 22.05.1993 (16:45 hrs.) by Shri Sanjay Pandey (PW-492), the then DCP, Zone-VIII, Bombay. The confession of A-16 with reference to the appellant reveals that he participated in the weapons training at Pakistan and was given a fake name Aslam.
Confessional Statement of Shahnawaz Abdul Kadar Qureshi (A-29)
421.2 Confessional statement of A-29 under Section 15 of TADA has been recorded on 18.05.1993 (18:30 hrs.) and 21.05.1993 (14:45 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. The confession of A-29 with reference to the appellant reveals that he participated in the weapons training at Pakistan.
Confessional Statement of Zakir Hussain Noor Mohd. Shaikh (A-32)
421.3 Confessional statement of A-32 under Section 15 of TADA has been recorded on 16.05.1993 (11:25 hrs.) and 19.05.1993 (17:30 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. The confession of A-32 with reference to the appellant reveals that he participated in the weapons training at Pakistan.
Confessional Statement of Abdul Akhtar Khan (A-36)
421.4 Confessional statement of A-36 under Section 15 of TADA has been recorded on 19.05.1993 (17:40 hrs.) and 21.05.1993 (18:20 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. The confession of A-36 with reference to the appellant reveals that he participated in the weapons training at Pakistan.
Confessional Statement of Feroz @ Akram Amani Malik (A-39)
421.5 Confessional statement of A-39 under Section 15 of TADA has been recorded on 19.04.1993 (22:30 hrs.) and 23.04.1993 (20:50 hrs.) by Mr. P.D. Pawar (PW-185), the then DCP, Zone V, Bombay. The confession of A-39 with reference to the appellant reveals as under:-
(i) He participated in the weapons training at Pakistan.
(ii) He attended conspiratorial meeting held at the residence of A-96 at Bandra.
Confessional Statement of Nasim Ashraf Shaikh Ali Barmare (A-49)
421.6 Confessional statement of A-49 under Section 15 of TADA has been recorded on 16.05.1993 (9:30 hrs.) and 18.05.1993 by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. The confession of A-49 with reference to the appellant reveals as under:
(i) He participated in the weapons training at Pakistan.
(ii) All of them took oath that they will take revenge.
Confessional Statement of Salim Rahim Shaikh (A-52)
421.7 Confessional statement of A-52 under Section 15 of TADA has been recorded on 15.04.1993 and 18.04.1993 by Mr. P.D. Pawar (PW-185), the then DCP, Zone V, Bombay. The confession of A-52 with reference to the appellant reveals the following facts:
(i) He participated in the weapons training at Pakistan and a fake name (Aslam) was given to him there.
(ii) All of them took oath that they will take revenge for the loss caused to Muslims
(iii) All the co-accused persons who underwent the above training were present in the conspiratorial meeting that took place on 06/07.03.1993, at 10.00 p.m, at Tigers residence, at Hill Road, opposite Dava Hotel, Bandra.
(iv) He was present at Al-Hussaini building on 11.03.1993.
Confessional Statement of Shaikh Ali Shaikh Umar (A-57)
421.8 Confessional statement of A-57 under Section 15 of TADA was recorded on 19.04.1993 (12:00 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. The confession of A-57 with reference to the appellant reveals that the appellant participated in the survey of BMC Building along with other co-accused.
Confessional Statement of Nasir Abdul Kadar Kewal @ Nasir Dhakla (A-64)
421.9 Confessional statement of A-64 under Section 15 of TADA has been recorded on 22.01.1995 and 24.01.1995 by Shri H.C. Singh (PW-474), the then Superintendent of Police, CBI/SPE/STF, New Delhi. The confession of A-64 with reference to the appellant reveals that he participated in the weapons training that took place at Pakistan.
Confessional Statement of Mohd. Rafiq Usman Shaikh (A-94)
421.10 Confessional statement of A-94 under Section 15 of TADA has been recorded on 14.05.1993 (18:30 hrs.) and 16.05.1993 by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. The confession of A-94 with reference to the appellant reveals that the appellant participated in the weapons training at Pakistan.
Confessional Statement of Parvez Mohd. Parvez Zulfikar Qureshi (A-100)
421. 11 Confessional statement of A-100 under Section 15 of TADA has been recorded on 15.04.1993 (23:30 hrs.) and 17.04.1993 (17:00 hrs.) by Shri Sanjay Pandey (PW-492), the then DCP, Zone-VIII, Bombay. A brief summary of the confession of A-100 with reference to the appellant is as under:-
(i) A-100 underwent weapons training at Pakistan. He also met the appellant who introduced himself as Aslam, the fake name given to him in Pakistan.
(ii) A-100 and others (including the appellant), took oath of maintaining secrecy and committing Jehad for the sake of Islam. Further, Tiger spoke about the atrocities committed on Muslims during the communal riots in Bombay and taking revenge for the same.
(iii) A-100 attended the conspiratorial meeting held by Tiger at Bandra on 09.03.1993, wherein Tiger gave Rs. 5,000/- to everyone present for celebrating Eid. The appellant was also present in the said meeting.
422. The aforesaid confessions establish the following facts:-
(i) The appellant underwent training for handling arms and ammunitions and explosives at Pakistan;
(ii) The appellant took oath of maintaining secrecy and committing Jehad for the sake of Islam alongwith other co-accused;
(iii) The appellant was present in the conspiratorial meeting at the residence of A-96; and
(iv) The appellant was actively involved in reconnaissance of the BMC Building in order to commit terrorist acts.
Deposition of Prosecution Witnesses:
423. Apart from the aforesaid evidence, the involvement and the role of the appellant in the conspiracy as stated above is disclosed by the deposition of various prosecution witnesses which are as under:
Deposition of Mohd. Usman Jan Khan (PW-2)
423.1 The relevant material in his evidence is as follows:-
(i) PW-2 knew A-98;
(ii) The appellant was introduced to PW-2 as Aslam in Pakistan at the time of training. Further, PW-2 identified Aslam as the appellant before the court;
(iii) The appellant left the training camp at Pakistan along with A-39 and A-49;
(iv) After returning to Dubai from the training camp, at the instance of Tiger Memon, PW-2 along with the appellant and others took oath of maintaining secrecy by swearing on the Quran;
(v) The appellant participated in the conspiratorial meeting held at Babloos residence on 08.03.1993;
(vi) The appellant participated in the survey of BMC Building along with other co-accused including PW-2.
423.2 The above deposition duly corroborates with the confessional statement of the co-accused persons as well as the confession of the appellant in material particulars. The evidence of PW-2 further establishes the charges framed against the appellant.
Training at Pakistan
Deposition of C.G. Sawant, API, (PW-244)
424. PW-244 was an Immigration Officer who proved the departure of the appellant to Dubai on 08.02.1993 from Bombay. The relevant entries on the Embarkation Card which was marked as X-401 concerning the departure have been marked as Exh. Nos. 1055, 1055-A and 1055-A (1).
Deposition of Lonare, PSI, (PW-209)
424.1 His arrival to Bombay on 03.03.1993 from Dubai has been proved by PW-209. The relevant endorsements on the Disembarkation Card which was marked as X-305 have been marked as Exh. Nos. 948, 948-A and 948-A(1).
425. Thus, with respect to the training at Pakistan, the confession of the appellant and the other co-accused that they first went to Dubai and from there to Pakistan for training is further established by the above-stated evidence.
426. It was contended by Mr. Aabad Ponda on behalf of the appellant that the prosecution has failed to prove beyond reasonable doubt that he went to Pakistan from Dubai. It was further contended that the appellant could have gone anywhere from Dubai and that the prosecution case of his going to Pakistan for training is manufactured one and false. It was also contended that, in any event, taking weapons training at Pakistan is by itself not an offence under any Statute whatsoever, and therefore, the appellant cannot be charged for the same and for which he has been wrongly convicted.
427. It has been established by the very own confession of the appellant that he had gone to Pakistan from Dubai where he underwent weapons training. The above confession has been corroborated by the confession of co-accused as stated above and, hence, there is no doubt whatsoever that the appellant went to Pakistan from Dubai and acquired training in arms and ammunitions and explosives in order to take revenge against Hindus
428. The passport of the appellant which has been marked as Exh. X-648 clearly shows that he left Bombay on 08.02.1993 and reached Dubai on 09.02.1993 and left Dubai on the same date and entered Dubai again on 27.02.1993 and left Dubai finally on 02.03.1993 and entered Bombay on 03.03.1993. The said entries further corroborate with the confessions of various accused persons that they did not have to go through any checking at the Airport in Pakistan. It is further submitted that it was not the case of the appellant before the trial Court that he was elsewhere. Therefore, the evidence on record clearly establishes the charge of going to Pakistan for training against the appellant.
429. The aforesaid evidence clearly establish that the appellant along with other co-conspirators was given the said training to equip themselves to commit terrorist acts in Bombay and, therefore, he has rightly been convicted under Section 3(3) of TADA mentioned at head secondly.
430. Thus, in view of the entire evidence enumerated above, we hold that the appellant was actively involved in the conspiracy to cause blasts in Bombay and in consequence of the said involvement, he has committed the offences for which he has been charged.
Sentence
431. Coming to the sentence, though there is no need to show any leniency in respect of the act involved and as proved by the prosecution, the following facts are relevant for awarding the appropriate sentence.
432. Learned counsel for the appellant pointed out that though the appellant was sentenced to RI for life, he had already served 19 years in jail. He also pointed out that the appellant is suffering from neuro problem and also had backache problem for the last five years. The appellants mother is also suffering from heart ailment, diabetes and blood pressure. He further pointed out that the appellant had been in custody since his arrest.
433. On the other hand, learned counsel appearing for the CBI pointed out that there is no need to show any leniency since after realizing explosions that took place in Bombay on 12.03.1993, the appellant had absconded and remained away from the clutches of law until he was arrested by the police.
434. It is true that the Designated Judge considered all these aspects while awarding sentence. There is no dispute about his participation in the training and the evidence disclosed that he participated in various conspiratorial meetings in order to chalk out the plan for committing terrorist acts and in pursuance of the same, he did reconnaissance of the BMC Building alongwith other co-conspirators.
435. In view of the acceptable materials placed by the prosecution, relied on by the Special Judge and the reasoning appended therewith, we fully agree with the same, consequently, the appeals filed by the appellant herein (A-98) are dismissed.
414. The abovesaid appeals are directed against the final judgment and order of conviction and sentence dated 03.10.2006 and 01.06.2007 respectively, whereby the appellant (A-98) has been convicted and sentenced to rigorous imprisonment (RI) for life by the Designated Court under TADA for the Bombay Bomb Blast Case, Greater Bombay in B.B.C. No.1/1993.
Charges:
415. A common charge of conspiracy was framed against all the co- conspirators including the appellant (A-98). The relevant portion of the said charge is reproduced hereunder:
During the period from December, 1992 to April, 1993 at various places in Bombay, District Raigad and District Thane in India and outside India in Dubai (U.A.E.) and Pakistan, entered into a criminal conspiracy and/or were members of the said criminal conspiracy whose object was to commit terrorist acts in India and that you all agreed to commit following illegal acts, namely, to commit terrorist acts with an intent to overawe the Government as by law established, to strike terror in the people, to alienate sections of the people and to adversely affect the harmony amongst different sections of the people, i.e. Hindus and Muslims by using bombs, dynamites, hand grenades and other explosive substances like RDX or inflammable substances or fire-arms like AK-56 rifles, carbines, pistols and other lethal weapons, in such a manner as to cause or as likely to cause death of or injuries to any person or persons, loss of or damage to and disruption of supplies of services essential to the life of the community, and to achieve the objectives of the conspiracy, you all agreed to smuggle fire-arms, ammunitions, detonators, hand grenades and high explosives like RDX into India and to distribute the same amongst yourselves and your men of confidence for the purpose of committing terrorist acts and for the said purpose to conceal and store all these arms, ammunitions and explosives at such safe places and amongst yourselves and with your men of confidence till its use for committing terrorist acts and achieving the objects of criminal conspiracy and to dispose off the same as need arises. To organize training camps in Pakistan and in India to import and undergo weapons training in handling of arms, ammunitions and explosives to commit terrorist acts. To harbour and conceal terrorists/co-conspirators, and also to aid, abet and knowingly facilitate the terrorist acts and/or any act preparatory to the commission of terrorist acts and to render any assistance financial or otherwise for accomplishing the object of the conspiracy to commit terrorist acts, to do and commit any other illegal acts as were necessary for achieving the aforesaid objectives of the criminal conspiracy and that on 12.03.1993 were successful in causing bomb explosions at Stock Exchange Building, Air India Building, Hotel Sea Rock at Bandra, Hotel Centaur at Juhu, Hotel Centaur at Santacruz, Zaveri Bazaar, Katha Bazaar, Century Bazaar at Worli, Petrol Pump adjoining Shiv Sena Bhavan, Plaza Theatre and in lobbing hand-grenades at Machhimar Hindu Colony, Mahim and at Bay-52, Sahar International Airport which left more than 257 persons dead, 713 injured and property worth about Rs.27 crores destroyed, and attempted to cause bomb explosions at Naigaum Cross Road and Dhanji Street, all in the city of Bombay and its suburbs i.e. within Greater Bombay. And thereby committed offences punishable under Section 3(3) of TADA (P) Act, 1987 and Section 120-B of IPC read with Sections 3(2)(i)(ii), 3(3)(4), 5 and 6 of TADA (P) Act, 1987 and read with Sections 302, 307, 326, 324, 427, 435, 436, 201 and 212 of Indian Penal Code and offences under Sections 3 and 7 read with Sections 25 (1A), (1B)(a) of the Arms Act, 1959, Sections 9B (1)(a)(b)(c) of the Explosives Act, 1884, Sections 3, 4(a)(b), 5 and 6 of the Explosive Substances Act, 1908 and Section 4 of the Prevention of Damage to Public Property Act, 1984 and within my cognizance.
In addition to the above-said principal charge of conspiracy, the appellant was also charged on the following counts:
At head Secondly:-
a) He visited Pakistan along with his co-conspirators via Dubai and took training in handling of arms and ammunitions and explosives with the object of committing terrorist acts;
b) He attended the conspiratorial meetings at the residence of Nazir Ahmed Anwar Shaikh @ Babloo and Mobina Bayamoosa Bhiwandiwala (A-96) ; and
c) He did reconnaissance of BMC Building along with his co-conspirators viz., Tiger Memon, Mohd. Usman Jan Khan, Javed Chikna, Shaikh Ali for selecting targets in order to plant bombs for the purpose of committing terrorist acts.
416. The charges mentioned above were proved against the appellant (A-98). The appellant has been convicted and sentenced for the above said charges as under:
Conviction and Sentence:
i) The appellant has been convicted for the offence of conspiracy read with the offences described at head firstly and sentenced to RI for life along with a fine of Rs. 25,000/-, in default, to further undergo RI for 6 months. (charge firstly)
ii) The appellant has also been convicted under Section 3(3) of TADA for commission of offences at head secondly and sentenced to RI for life along with a fine of Rs. 25,000/-, in default, to further undergo RI for 6 months. (charge secondly)
Evidence
417. The evidence against the appellant (A-98) is in the form of:-
(i) his own confession;
(ii) confessions made by other co-conspirators; (co-accused);
(iii) testimony of prosecution witnesses; and
(iv) documentary evidence.
Confessional statement of Niyaz Mohammed @ Aslam Iqbal Ahmed Shaikh (A-98)
418. The prosecution submitted that the involvement of the appellant in the conspiracy is evident from his own confession recorded under Section 15 of TADA on 17.05.1993 (14:30 hrs.) and 20.05.1993 (11:30 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. The confession of the appellant is summarized below:-
(i) His house was damaged during riots and he shifted to Hakim building.
(ii) At the new residence, he was introduced by Sajid to a person called Jabir, who asked him about his interest to go to Dubai. On expressing his desire for the same, the appellant was asked for his passport by Jabir.
(iii) Thereafter, Jabir made all the arrangements for his travel and on 08.02.1993, he went to Dubai alongwith Firoz @ Akram Amani Malik (A-39). He was told that his visa would be given at Dubai and a person will receive them at the Airport.
(iv) He along with A-39 was received by Ayub Memon (AA) who took them to the residence of Tahir Bhai (AA) where Nasim Ashraf Shaikh Ali Barmare (A-49) was already present.
(v) From Dubai, he went to Pakistan along with A-49 and A-39.
(vi) In Pakistan, he was given the fake name, Aslam.
(vii) In Pakistan, he took training in handling weapons including dismantling, re-assembling and firing of pistols, AK-56 rifles, hand-grenades, detonators, timer pencils and making of bombs by using RDX.
(viii) Parvez Mohammed Parvez Zulfikar Qureshi (A-100) and other co-accused persons were also present in the training.
(ix) Tiger Memon also imparted training for two days.
(x) On completion of the training, he alongwith some others left Pakistan and reached Dubai on 27.02.1993.
(xi) On 01.03.1993, the remaining persons, who had participated in the training along with him in Pakistan as well as Tiger Memon, returned to Dubai.
(xii) Thereafter, at the instance of Tiger Memon, he and others (including A-100) took oath of maintaining secrecy and committing Jehad for the sake of Islam. Further, Tiger spoke about the atrocities committed on Muslims during the communal riots in Bombay and taking revenge for the same.
(xiii) He along with Gul Mohammed @ Gullu Noor Mohammed Shaikh (A-77) and Nasir Abdul Kader Kewal @ Nasir Dakhla (A-64) left Dubai on 02.03.1993 and arrived Bombay on 03.03.1993.
(xiv) On 07/08.03.1993, A-98 and A-49 helped Irfan Chougule (AA) in unloading 7-8 gunny bags filled with RDX from his fiat car.
(xv) On 08/09.03.1993, he participated in the conspiratorial meeting at the residence of Mobina Bayamoosa Bhiwandiwala (A-96) where A-100 was also present along with other co-accused persons.
(xvi) He participated in reconnaissance of the BMC Building alongwith Tiger Memon, Javed Chikna, PW-2, A-54 and A-57. On reaching the said building, Tiger Memon told them that they would have to make indiscriminate firing pointing out to them the entry and exit points of the building and also pointed out the place of parking the vehicle and the manner in which they had to flee away after effecting the said firing.
419. From the above confession of the appellant, the following facts emerge:
(i) He participated in the weapons training at Pakistan;
(ii) He took oath after placing his hands on Quran that he will take revenge;
(iii) He attended/participated in the conspiratorial meeting at Mobinas (A-96) residence where plans were chalked out for committing terrorist acts; and
(iv) He participated in reconnaissance of the BMC Building alongwith other co-accused persons where the manner of attack was demonstrated.
420. From the confession of the accused and from his various overt acts, his involvement in the conspiracy has been clearly established. The prosecution highlighted that the appellant has made the above confession voluntarily, without any pressure or coercion and the same has been recorded after following all the safeguards enumerated under section 15 of TADA and the rules framed thereunder.
Confessional Statements of co-accused:
421. Apart from his own confession, the involvement of the appellant has also been disclosed in the confessional statements of the following co-accused. The legality and acceptability of the confessions of the co-accused has already been considered by us in the earlier part of our discussion. The said confessions insofar as they refer to the appellant (A-98) are summarized hereinbelow:
Confessional Statement of Mohd. Farooq Mohd. Yusuf Pawale (A-16)
421.1 Confessional statement of A-16 under Section 15 of TADA has been recorded on 20.05.1993 (16:30 hrs.) and 22.05.1993 (16:45 hrs.) by Shri Sanjay Pandey (PW-492), the then DCP, Zone-VIII, Bombay. The confession of A-16 with reference to the appellant reveals that he participated in the weapons training at Pakistan and was given a fake name Aslam.
Confessional Statement of Shahnawaz Abdul Kadar Qureshi (A-29)
421.2 Confessional statement of A-29 under Section 15 of TADA has been recorded on 18.05.1993 (18:30 hrs.) and 21.05.1993 (14:45 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. The confession of A-29 with reference to the appellant reveals that he participated in the weapons training at Pakistan.
Confessional Statement of Zakir Hussain Noor Mohd. Shaikh (A-32)
421.3 Confessional statement of A-32 under Section 15 of TADA has been recorded on 16.05.1993 (11:25 hrs.) and 19.05.1993 (17:30 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. The confession of A-32 with reference to the appellant reveals that he participated in the weapons training at Pakistan.
Confessional Statement of Abdul Akhtar Khan (A-36)
421.4 Confessional statement of A-36 under Section 15 of TADA has been recorded on 19.05.1993 (17:40 hrs.) and 21.05.1993 (18:20 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. The confession of A-36 with reference to the appellant reveals that he participated in the weapons training at Pakistan.
Confessional Statement of Feroz @ Akram Amani Malik (A-39)
421.5 Confessional statement of A-39 under Section 15 of TADA has been recorded on 19.04.1993 (22:30 hrs.) and 23.04.1993 (20:50 hrs.) by Mr. P.D. Pawar (PW-185), the then DCP, Zone V, Bombay. The confession of A-39 with reference to the appellant reveals as under:-
(i) He participated in the weapons training at Pakistan.
(ii) He attended conspiratorial meeting held at the residence of A-96 at Bandra.
Confessional Statement of Nasim Ashraf Shaikh Ali Barmare (A-49)
421.6 Confessional statement of A-49 under Section 15 of TADA has been recorded on 16.05.1993 (9:30 hrs.) and 18.05.1993 by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. The confession of A-49 with reference to the appellant reveals as under:
(i) He participated in the weapons training at Pakistan.
(ii) All of them took oath that they will take revenge.
Confessional Statement of Salim Rahim Shaikh (A-52)
421.7 Confessional statement of A-52 under Section 15 of TADA has been recorded on 15.04.1993 and 18.04.1993 by Mr. P.D. Pawar (PW-185), the then DCP, Zone V, Bombay. The confession of A-52 with reference to the appellant reveals the following facts:
(i) He participated in the weapons training at Pakistan and a fake name (Aslam) was given to him there.
(ii) All of them took oath that they will take revenge for the loss caused to Muslims
(iii) All the co-accused persons who underwent the above training were present in the conspiratorial meeting that took place on 06/07.03.1993, at 10.00 p.m, at Tigers residence, at Hill Road, opposite Dava Hotel, Bandra.
(iv) He was present at Al-Hussaini building on 11.03.1993.
Confessional Statement of Shaikh Ali Shaikh Umar (A-57)
421.8 Confessional statement of A-57 under Section 15 of TADA was recorded on 19.04.1993 (12:00 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. The confession of A-57 with reference to the appellant reveals that the appellant participated in the survey of BMC Building along with other co-accused.
Confessional Statement of Nasir Abdul Kadar Kewal @ Nasir Dhakla (A-64)
421.9 Confessional statement of A-64 under Section 15 of TADA has been recorded on 22.01.1995 and 24.01.1995 by Shri H.C. Singh (PW-474), the then Superintendent of Police, CBI/SPE/STF, New Delhi. The confession of A-64 with reference to the appellant reveals that he participated in the weapons training that took place at Pakistan.
Confessional Statement of Mohd. Rafiq Usman Shaikh (A-94)
421.10 Confessional statement of A-94 under Section 15 of TADA has been recorded on 14.05.1993 (18:30 hrs.) and 16.05.1993 by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. The confession of A-94 with reference to the appellant reveals that the appellant participated in the weapons training at Pakistan.
Confessional Statement of Parvez Mohd. Parvez Zulfikar Qureshi (A-100)
421. 11 Confessional statement of A-100 under Section 15 of TADA has been recorded on 15.04.1993 (23:30 hrs.) and 17.04.1993 (17:00 hrs.) by Shri Sanjay Pandey (PW-492), the then DCP, Zone-VIII, Bombay. A brief summary of the confession of A-100 with reference to the appellant is as under:-
(i) A-100 underwent weapons training at Pakistan. He also met the appellant who introduced himself as Aslam, the fake name given to him in Pakistan.
(ii) A-100 and others (including the appellant), took oath of maintaining secrecy and committing Jehad for the sake of Islam. Further, Tiger spoke about the atrocities committed on Muslims during the communal riots in Bombay and taking revenge for the same.
(iii) A-100 attended the conspiratorial meeting held by Tiger at Bandra on 09.03.1993, wherein Tiger gave Rs. 5,000/- to everyone present for celebrating Eid. The appellant was also present in the said meeting.
422. The aforesaid confessions establish the following facts:-
(i) The appellant underwent training for handling arms and ammunitions and explosives at Pakistan;
(ii) The appellant took oath of maintaining secrecy and committing Jehad for the sake of Islam alongwith other co-accused;
(iii) The appellant was present in the conspiratorial meeting at the residence of A-96; and
(iv) The appellant was actively involved in reconnaissance of the BMC Building in order to commit terrorist acts.
Deposition of Prosecution Witnesses:
423. Apart from the aforesaid evidence, the involvement and the role of the appellant in the conspiracy as stated above is disclosed by the deposition of various prosecution witnesses which are as under:
Deposition of Mohd. Usman Jan Khan (PW-2)
423.1 The relevant material in his evidence is as follows:-
(i) PW-2 knew A-98;
(ii) The appellant was introduced to PW-2 as Aslam in Pakistan at the time of training. Further, PW-2 identified Aslam as the appellant before the court;
(iii) The appellant left the training camp at Pakistan along with A-39 and A-49;
(iv) After returning to Dubai from the training camp, at the instance of Tiger Memon, PW-2 along with the appellant and others took oath of maintaining secrecy by swearing on the Quran;
(v) The appellant participated in the conspiratorial meeting held at Babloos residence on 08.03.1993;
(vi) The appellant participated in the survey of BMC Building along with other co-accused including PW-2.
423.2 The above deposition duly corroborates with the confessional statement of the co-accused persons as well as the confession of the appellant in material particulars. The evidence of PW-2 further establishes the charges framed against the appellant.
Training at Pakistan
Deposition of C.G. Sawant, API, (PW-244)
424. PW-244 was an Immigration Officer who proved the departure of the appellant to Dubai on 08.02.1993 from Bombay. The relevant entries on the Embarkation Card which was marked as X-401 concerning the departure have been marked as Exh. Nos. 1055, 1055-A and 1055-A (1).
Deposition of Lonare, PSI, (PW-209)
424.1 His arrival to Bombay on 03.03.1993 from Dubai has been proved by PW-209. The relevant endorsements on the Disembarkation Card which was marked as X-305 have been marked as Exh. Nos. 948, 948-A and 948-A(1).
425. Thus, with respect to the training at Pakistan, the confession of the appellant and the other co-accused that they first went to Dubai and from there to Pakistan for training is further established by the above-stated evidence.
426. It was contended by Mr. Aabad Ponda on behalf of the appellant that the prosecution has failed to prove beyond reasonable doubt that he went to Pakistan from Dubai. It was further contended that the appellant could have gone anywhere from Dubai and that the prosecution case of his going to Pakistan for training is manufactured one and false. It was also contended that, in any event, taking weapons training at Pakistan is by itself not an offence under any Statute whatsoever, and therefore, the appellant cannot be charged for the same and for which he has been wrongly convicted.
427. It has been established by the very own confession of the appellant that he had gone to Pakistan from Dubai where he underwent weapons training. The above confession has been corroborated by the confession of co-accused as stated above and, hence, there is no doubt whatsoever that the appellant went to Pakistan from Dubai and acquired training in arms and ammunitions and explosives in order to take revenge against Hindus
428. The passport of the appellant which has been marked as Exh. X-648 clearly shows that he left Bombay on 08.02.1993 and reached Dubai on 09.02.1993 and left Dubai on the same date and entered Dubai again on 27.02.1993 and left Dubai finally on 02.03.1993 and entered Bombay on 03.03.1993. The said entries further corroborate with the confessions of various accused persons that they did not have to go through any checking at the Airport in Pakistan. It is further submitted that it was not the case of the appellant before the trial Court that he was elsewhere. Therefore, the evidence on record clearly establishes the charge of going to Pakistan for training against the appellant.
429. The aforesaid evidence clearly establish that the appellant along with other co-conspirators was given the said training to equip themselves to commit terrorist acts in Bombay and, therefore, he has rightly been convicted under Section 3(3) of TADA mentioned at head secondly.
430. Thus, in view of the entire evidence enumerated above, we hold that the appellant was actively involved in the conspiracy to cause blasts in Bombay and in consequence of the said involvement, he has committed the offences for which he has been charged.
Sentence
431. Coming to the sentence, though there is no need to show any leniency in respect of the act involved and as proved by the prosecution, the following facts are relevant for awarding the appropriate sentence.
432. Learned counsel for the appellant pointed out that though the appellant was sentenced to RI for life, he had already served 19 years in jail. He also pointed out that the appellant is suffering from neuro problem and also had backache problem for the last five years. The appellants mother is also suffering from heart ailment, diabetes and blood pressure. He further pointed out that the appellant had been in custody since his arrest.
433. On the other hand, learned counsel appearing for the CBI pointed out that there is no need to show any leniency since after realizing explosions that took place in Bombay on 12.03.1993, the appellant had absconded and remained away from the clutches of law until he was arrested by the police.
434. It is true that the Designated Judge considered all these aspects while awarding sentence. There is no dispute about his participation in the training and the evidence disclosed that he participated in various conspiratorial meetings in order to chalk out the plan for committing terrorist acts and in pursuance of the same, he did reconnaissance of the BMC Building alongwith other co-conspirators.
435. In view of the acceptable materials placed by the prosecution, relied on by the Special Judge and the reasoning appended therewith, we fully agree with the same, consequently, the appeals filed by the appellant herein (A-98) are dismissed.
