State of Maharashtra through CBI Vs. Mohd. Rafiq Usman Shaikh
EmailAppeal: Criminal Appeal No. 397 of 2011
Petitioner: State of Maharashtra through CBI
Respondent: Mohd. Rafiq Usman Shaikh
Apeal: Criminal Appeal No. 397 of 2011
Judges: P. Sathasivam, B.S. Chauhan, JJ.
Date of Judgment: Mar 21, 2013
Head Note:
Criminal Laws
TADA Section 3(3) – Bombay blast case – Conviction under Section 3(3) – Acquittal, however of general charge of conspiracy – Allegation of taking training in arms and ammunition in Pakistan and attending conspiratorial meetings – In his confession, A94 admitted going to Dubai, wherefrom he along with others on instruction of Tiger Memon went to Islamabad to receive training in weapons to avenge atrocities on Muslims – Thereafter, admitted, coming back to Dubai after taking oath not to disclose anything – Admitted attending conspiratorial meetings, discussing targets, duties etc. – Also disclosed about giving of Rs.5000/- to each participant at such meeting by Tiger Memon at Bandra – Such fact corroborated by A13 and A49 – Fact that he went for training to Pakistan corroborated by A49, A100, A29, A32, A36, A39, A98 and PW2 – PW2 also identified him in court – PW.237 and PW.231 proved his departure from Bombay to Dubai and his arrival in Bombay on 3.3.1993. Held, it is clear from the facts that A94 was aware of the purpose for which he was imparted training in arms and ammunitions. Thus his acquittal of the charge of conspiracy was not justified. Life imprisonment awarded.
TADA Section 3(3) – Bombay blast case – Conviction under Section 3(3) – Acquittal, however of general charge of conspiracy – Allegation of taking training in arms and ammunition in Pakistan and attending conspiratorial meetings – In his confession, A94 admitted going to Dubai, wherefrom he along with others on instruction of Tiger Memon went to Islamabad to receive training in weapons to avenge atrocities on Muslims – Thereafter, admitted, coming back to Dubai after taking oath not to disclose anything – Admitted attending conspiratorial meetings, discussing targets, duties etc. – Also disclosed about giving of Rs.5000/- to each participant at such meeting by Tiger Memon at Bandra – Such fact corroborated by A13 and A49 – Fact that he went for training to Pakistan corroborated by A49, A100, A29, A32, A36, A39, A98 and PW2 – PW2 also identified him in court – PW.237 and PW.231 proved his departure from Bombay to Dubai and his arrival in Bombay on 3.3.1993. Held, it is clear from the facts that A94 was aware of the purpose for which he was imparted training in arms and ammunitions. Thus his acquittal of the charge of conspiracy was not justified. Life imprisonment awarded.
Held:
In view of the fact that the respondent (A-94) had gone to Pakistan and took training in handling the arms, ammunition and explosives and also attended the conspiratorial meeting at Dubai and took oath in the name of Quran not to divulge any information regarding the conspiracy, it is abundantly clear that the respondent was aware of the purpose of training in Pakistan and he undertook the training there without any protest. (Para 266)
Special Judge committed an error in not convicting the respondent for the larger conspiracy. Therefore, the appeal is allowed and he is awarded life imprisonment. (Para 267)
JUDGEMENT:
249. This appeal has been preferred against the final judgment and order dated 2.8.2007 passed by the Special Judge of the Designated Court under the TADA in Bombay Blast Case No.1 of 1993, by which the respondent/accused has been convicted for the offences punishable under Section 3 (3) TADA and awarded 7 years RI with a fine of Rs.15,000/- and in default of payment of fine, to suffer further RI for 3 months on each count. However, he has been acquitted of the general charge of conspiracy.
250. Facts and circumstances giving rise to this appeal are that :
A. In addition to the main charge of conspiracy, the appellant (A- 94) was charged under Section 3(3) TADA, as he had visited Pakistan alongwith other co-conspirators via Dubai and underwent training in handling of arms, ammunition and explosives with the object of committing terrorist acts and even attended the meetings at the residences of Nazir Ahmed Anwar Shaikh @ Babloo (AA) and Mubina Bai where plans for committing terrorist acts were discussed/finalised. Further, he had also taken oath in the name of Quran while in Dubai, not to disclose to anybody about the conspiracy.
B. After conclusion of the trial, the respondent was held guilty of the charges as referred to hereinabove but has been acquitted of the charge of conspiracy.
Hence, this appeal.
251. Mr. Mukul Gupta, learned senior counsel appearing for the appellant has submitted that the Special Judge was not justified in imposing such a lenient punishment in view of the fact that the respondent (A-94) had gone to Pakistan and acquired the knowledge in handling of arms and ammunition during training. He had attended the conspiratorial meetings wherein conspiracy was not only hatched, but plans for committing terrorist acts were also given final stage. Moreover, he had taken oath as to non-disclosure of information about the conspiracy in the name of Quran in Dubai. Therefore, the appeal deserves to be allowed.
252. On the contrary, Ms. Farhana Shah, learned counsel appearing for the respondent has submitted that the respondent (A-94) had been awarded 7 years RI which he has already served. He had also deposited the fine imposed upon him. The deposition of Mohd. Usman Jan Khan (PW.2) is not worth reliance for the reason that he was also an accused who, subsequently turned to be an approver. Moreover, Mohd. Usman Jan Khan (PW.2) had not named him (A-94) specifically as being present in the conspiratorial meeting on 10.3.1993 and there is no material even on record to show that the respondent (A-94) was present on 11.3.1993 in the conspiratorial meeting at Al-Husseini building. Therefore, the respondent (A-94) cannot be discriminated against, as his role had been like all others particularly, Gul Mohamamed @ Gullu Noor Mohmed Shaikh (A-77), Mohmed Hanif Mohmed Usman Shaikh (A-92), Mohmed Sayeed Mohmed Issaq (A-95), Shaikh Ibrahim Shaikh Hussein (A-108) and Usman Man Khan Shaikh (A-115) except that none of the above named accused had participated in the conspiratorial meetings.
252.1 Moreover, in spite of the fact that on 10.3.1993, the respondent (A-94) was present in the conspiratorial meeting and accepted a sum of Rs.5,000/- from Tiger Memon (AA), he did not participate in any overt act on the fateful day i.e. 12.3.1993, when the Bombay Blast took place. Therefore, no interference is required with the impugned judgment and order, and enhancement of punishment is not warranted.
253. We have considered the rival submissions made by learned counsel for the parties and perused the record.
254. Evidence against the respondent (A-94):
(a) Confessional Statement of Mohd. Rafiq Usman Shaikh (A-94)
(b) Confessional statement of Bashir Ahmed Usman Gani Khairulla (A-13)
(c) Confessional statement of Nasim Ashraf Sherali Barmare(A-49)
(d) Confessional statement of Parvez Mohmed Parvez Zulfikar Qureshi (A- 100)
(e) Confessional statement of Shahnawaz Abdul Kadar Qureshi (A-29)
(f) Confessional statement of Zakir Hussain Noor Mohd. Shaikh (A- 32)
(g) Confessional statement of Abdul Khan (A-36)
(h) Confessional statement of Firoz @ Akram Amani Malik (A-39)
(i) Confessional statement of Niyaz Mohamed (A-98)
(j) Deposition of Mohd. Usman Jan Khan (PW-2)
(k) Deposition of Jagdesh Lohalkar (PW.237)
(l) Deposition of Ramchandra (PW.231)
255. Confessional Statement of Mohd. Rafiq Usman Shaikh (A-94) – He has disclosed that he was of 25 years of age and used to wash cars and fill petrol. He lost his job 7-8 months prior to Bombay Blast. On 16.2.1993, one Mohmed Jabir Abdul Latif Mansoor (A-93) (now dead) told the respondent (A-94) that his ticket to Dubai had been arranged for 17.2.1993 and he (A-94) went to Dubai by an Air India flight on 17.2.1993. He was received at Dubai airport by a fair looking man with a beard at Dubai airport. The respondent (A-94) stayed in a hotel with five other persons who had gone there for the same purpose, namely, Haji Yakub, Anwar, Bashir and Nasir Dhakla. Four more persons had joined them there, and on the advice of Tiger Memon (AA) they went to the airport on 20.2.1993 to go to Islamabad. They reached Islamabad where they were received by a person who took them to a hilly jungle area where tents had already been pitched. On the next day, Javed Chikna told the respondent (A-94) to get ready for pistol and machine gun training and advised him to learn all those weapons, as atrocities had been committed on Muslims in Bombay. Respondent (A-94) participated in the training and came back to Dubai from Islamabad on 1.3.1993. He also took oath in the name of Quran in Dubai alongwith other conspirators not to reveal any information about the training etc. to anyone. Respondent (A-94) returned to Bombay on 3.3.1993. On 10.3.1993, respondent (A-94) had participated with other conspirators in a conspiratorial meeting at Mubinas place at Bandra, where targets were discussed and groups were assigned particular duties and each participant was given a sum of Rs.5,000/- by Tiger Memon (AA).
256. The aforesaid confessional statement of the respondent (A-94) was further corroborated by the confessional statement of Bashir Ahmed Usman Gani Khairulla (A-13) to the extent that he revealed the presence of respondent (A-94) in the conspiratorial meeting on 10.3.1993 at Bandra, and that Tiger Memon (AA) had given everybody a sum of Rs.5,000/- in the meeting.
257. Confessional statement of Nasim Ashraf Sherali Barmare (A-49) – He has revealed the version given by respondent (A-94) to the extent that he (A-94) had attended the training in Pakistan and further he (A-94) attended the meeting at Bandra on 10.3.1993, and each of the participants was given a sum of Rs.5,000/-.
258. Confessional statement of Parvez Mohmed Parvez Zulfikar Qureshi @Parvez Kelewala (A-100) He has also disclosed the similar facts as given by the respondent (A-94) in his confessional statement to the extent that the respondent (A-94) attended the arms training in Pakistan.
259. Confessional statement of Shahnawaz Abdul Kadar Qureshi (A-29) – He has revealed that the respondent (A-94) had gone to Pakistan for arms training via Dubai and attended the meeting in Dubai. He had also taken on oath in the name of Quran that he would not reveal any information about conspiracy to anyone and that he was told in that meeting by Tiger Memon (AA) that his tickets were ready for evening flight for Bombay.
260. Confessional statement of Zakir Hussain Noor Mohd. Shaikh (A- 32) – He has disclosed that respondent (A-94) had joined other conspirators for training in Pakistan and took an oath in Dubai in the name of Quran.
261. The same version stood corroborated further by the confessions of Abdul Khan @Yakub Khan Akhtar Khan (A-36), Firoz @ Akram Amani Malik (A-39) and Niyaz Mohmed @ Aslam Iqbal Ahmed Shaikh (A-98).
262. Mohd. Usman Jan Khan (PW.2) has deposed that he knew the respondent (A-94) and he identified him in court. He has further deposed that the respondent (A-94) had attended the arms training in Pakistan.
263. Jagdish Shantaram (PW.237) and Ramchandra (PW.231) have also proved the departure of respondent (A-94) from Bombay to Dubai on 17.2.1993 and his arrival in Bombay on 3.3.1993 respectively.
264. The Special Judge after appreciating the entire evidence came to the following conclusion:
109. Now considering the matters stated in the confession of A- 94 the similar phenomenon is found therein and hence detailed dilation regarding same is avoided. The same also alike the confession of A-64 though reveals that A-94 had initially agreed to go to Dubai for the purposes of trip ultimately in a similar manner (but alongwith different person). He had reached the said training camp in which A-64 was acquiring training along with other persons. Similarly, the same also reveals of A- 94 and his companion being cleared at Islamabad airport in the similar manner. As a difference the material on page of confession of A-94 reveals that in Pakistan A-94 had acquired the knowledge that he has to take training and at the said juncture absconding accused Javed Chikna had told him the purpose for which the said training of operating pistols and machine gun was to be taken. Now visualizing the situation then prevailing between India and Pakistan in the year 1992 and still A-94 having continued to take training and/or not making any protest about the same even later on also clearly reveals of himself having joined the band of said. Thus, considering all the material contained in confession of other accused and concerned evidence it is amply clear that the person with beard who had met A-77 and A-94 at Dubai was none else but Tiger Memon.
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111. Now considering further material in the confession of A-94 the same in terms reveals the promptness in which he has gone to Pakistan and acquired training at the said place. On the said backdrop considering the earlier recitals in the confession that he had gone for a trip clearly appears to be not only inconsistent with other matters stated in the confession but the same clearly appears to have been belied by other material stated in the said confession. Thus the said recitals will be liable to be discarded. After discarding the said recitals and considering in proper perspective other material the same clearly reveals that A-94 having agreed for acquiring training at Pakistan and for the said purpose he had promptly gone and acquired the same.
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113. [] The same being not directed against any particular person the said fact clearly reveals that the same cannot be said to be of any other purpose rather than for commission of terrorist acts. The aforesaid fact is also fortified by the further material contained in the confession regarding the manner in which A-94 had taken an oath and the matters then told by Tiger Memon. 114. Thus, considering all facets from confession of A-94 about which few are discussed hereinabove, it can be safely said that the same squarely establishes the guilt of A-94 in commission of offence for which charges are framed against him.
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118. In the premises aforesaid i.e. in the light of discussion made hereinabove, it can be safely said that A-16, A-29, A-32, A- 36, A-39, A-49, A-52, A-64, A-77, A-92, A-94, A-95, A-98, A-100, A-108 and A-105 had been to Pakistan via Dubai themselves and as agreed had received training in handling of sophisticated arms, ammunitions, explosives for commission of terrorist acts and in said process A-77, A-92, A-95, A-108 and A-115 had attended meeting themselves and/or the remaining also had taken on oath of secrecy and were involved in planning in commission of terrorist act after returning to India and/or utilizing the training acquired by them and thus having committed offence punishable u/s 3(3) of TADA and so also offence of conspiracy all the points under the discussion i.e. point Nos. 22, 23 and 24, will be required to be answered in affirmative against each of them.
TADA COURT ON SENTENCE of A-94
519. Now considering the case of A-94 from them, though same apparently appears to be different than the remaining five due to himself having participated in the meeting on 10th of March, 1993, the close look at the evidence and particularly his confession does not reveal himself having committed any further act or any evidence denoting that he had acquired knowledge of further activities to be committed in pursuance of conspiracy to which other members in said meeting were party and in future the said members having indulged in commission of further acts furthering the objects of the larger conspiracy to which other said members are found to be guilty. Needless to add that though confession of A-94 reveals that said meeting was attended by Tiger Memon, PW-2, Javed Chikna, Bashir, A-32, A-38 and 14-15 others, the said material does not transcend further other than showing that small groups were formed at said meeting and the members of said group were discussing the matters amongst themselves and Tiger Memon had given Rs.5000/- to each of participant of the said meeting. Curiously enough material fails to denote commission of any further act by A-94 making him liable for being a party to larger conspiracy in pursuance of which further preparatory acts for commission of Serial Bomb Blast was committed. Needless to add that the material reveals that A-94 was enquired whether he was knowing driving and he had replied in negative. The material in the confession also reveals that on 14th of March, 1993, A-16 had told A-94 that Tiger Memon had caused the bomb explosions and has ran away etc. Thus, careful consideration of said material though reveals that case of A-94 is somewhat different still at the same time the same fails to establish of the same being materially different and/or being on higher pedestal than other 5 accused concerned with present discussion.
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526. Thus, considering acts committed by each of aforesaid 6 accused and out of them involvement of A-94 being slightly more than others but having regard to the crucial fact that in spite of all of them at certain point of time having become party to conspiracy to commit terrorist act, in pursuance of same or otherwise having acquired the necessary training surreptitiously in a foreign country for commission of terrorist act and thus each of them having acquired/gained sufficient potential for commission of terrorist act but in fact none of them having committed such act and each of them having remained continuously in custody for a long period of 5-6 years after arrest uptil their release on bail and the same having reduced the potential acquired by each of them for commission of heinous crime and same in turn having resulted in protecting the society at large from such potential gain and even after release of said accused on bail, their conduct being not indicative of themselves having attempted to use potential gain by them for causing any danger to society at large and in fact the act committed by all of them having not resulted in causing any danger to society and other matters stated by them during their statement recorded upon quantum of sentence will deserve not giving any much harsher or the maximum punishment to them. The same would be necessary as the conduct of these accused after their release on bail in some what indicative of there being eradication of the element of criminality because of which they had committed the crime.
265. This Court has laid down parameters for interference against the order of acquittal time and again and the same have to be followed herein.
266. In view of the fact that the respondent (A-94) had gone to Pakistan and took training in handling the arms, ammunition and explosives and also attended the conspiratorial meeting at Dubai and took oath in the name of Quran not to divulge any information regarding the conspiracy, it is abundantly clear that the respondent was aware of the purpose of training in Pakistan and he undertook the training there without any protest.
267. We are of the view that the Special Judge committed an error in not convicting the respondent for the larger conspiracy. Therefore, the appeal is allowed and he is awarded life imprisonment. He is directed to surrender before the learned Designated Court within a period of four weeks to serve out the remaining sentence, failing which the Designated Court will secure his custody and send him to jail to serve out the sentence.
S. Criminal Accused Name and Number Sentence by Award by No. Appeal Designated Court Supreme Court
1. 418 of 2011 Fazal Rehman Abdul (A-76) Acquitted Dismissed
2. 409 of 2011 Manjoor Qureshi & Ors. Acquitted Dismissed (A-88, A-109, A-114,A-126, A-127(dead) and A-130)
3. 601 of 2011 Krishna Sadanand Mokal & Acquitted Dismissed Ors. (A-83, A-84 and A-87)
4. 404 of 2011 Moiddin Abdul Kadar Acquitted Dismissed Cheruvattam (A-48)
5. 405 of 2011 Asfaq Kasam Hawaldar (A-38) Acquitted Dismissed
6. 394 of 2011 Ismail Abbas Patel (A-80) Acquitted Dismissed
7. 1033 of 2012 Rukhsana Mohd. Shafi Acquitted Dismissed Zariwala (A-103)
8. 594 of 2011 Sayyed Ismail Sayyed Ali Acquitted Dismissed Kadri (A-105)
9. 402 of 2011 Mohd. Ahmed Mansoor (A-132) Acquitted Dismissed
10. 1022 of 2012 Rashid Umar Alwar (A-27) U/s 111 r/w Dismissed Sec. 135 of Customs Act 3 years RI with fine of Rs.25,000/- and acquitted of charge of conspiracy
11. 393 of 2011 Sharif Khan Abbas Adhikari (A-60) U/s 111 r/w Dismissed
Sec. 135 of Customs Act 3 years RI with fine of Rs.25,000/-and acquitted of charge of conspiracy
12. 391 of 2011 Sharif Abdul GafoorParkar U/s 3(3) Allowed and @ Dadabhai (A-17) TADA 7 awarded life years RI with fine imprisonment of Rs.50,000/- U/s 5 TADA 10 years RI with fine of Rs.50,000/-; U/s 6 TADA 14 years RI with fine of Rs. 2 lakhs; and acquitted from charge of conspiracy
13. 1027 of 2012 Manoj Kumar Bhanwarlal U/s 3(3) Allowed and Gupta (A-24) TADA 7 years awarded life RI with fine of imprisonment Rs.50,000 U/s 5 TADA 10 years RI with fine of Rs. 1 lakh; U/s 6 TADA 14 years RI with fine of Rs.1 lakh; U/s 3(3) TADA and Sec. 201 IPC 5 years RI with fine of Rs.25,000/-; and acquitted from charge of conspiracy
14. 597 of 2011 Sarfaraj Dawood Phanse (A-55) U/s 3(3) Dismissed TADA – 9 years RI with fine of Rs.25,000/-; and acquitted from charge of conspiracy
15. 407 of 2011 Ayub Ibrahim Patel (A-72) U/s 3(3) Dismissed TADA – 5 years RI with fine of Rs.25,000/-; U/s 5 TADA – 10 years RI with fine of Rs.50,000/- ; U/s 6 TADA – 10 years RI with fine of Rs.50,000 and acquitted from charge of conspiracy
16. 1025 of 2012 Mohd. Shahid Nizamuddin U/s 3(3) Dismissed Qureshi (A-135) TADA – 10 years RI with fine of Rs.25,000/-; and acquitted from charge of conspiracy
17. 599 of 2011 Shaikh Mohd. Ethesham (A-58) U/s 3(3) Dismissed TADA – 10 years RI with fine of Rs.25,000/-; and further U/s 3(3) TADA – 10 years RI with fine of Rs.25,000/- from and acquitted charge of conspiracy
18. 395 of 2011 Farooq Illiyas Motorwala (A-75) U/s 3(3) Allowed and 13 years RI awarded life with fine of imprinsoment Rs.25,000/-; U/s 3(3) TADA 7 years RI with fine of Rs.25,000/- and acquitted from charge of conspiracy
19. 397 of 2011 Mohd. Rafiq Usman Shaikh(A-94) U/s 3(3) Allowed and TADA 7 years awarded life RI with fine imprisonment of Rs.15,000/- and acquitted from charge of conspiracy
267.1 We have dealt with 19 appeals filed by the State against the order of acquittal on certain charges and particularly, the charge of conspiracy. Out of the said 19 appeals, we have dismissed 15 appeals, however, allowed 4 appeals bearing Criminal Appeal No. 391/2011 (Sharif Abdul Gafoor Parkar @ Dadabhai (A-17), Criminal Appeal No. 1027 of 2012 (Manoj Kumar Bhanwarlal Gupta (A-24), Criminal Appeal No. 395 of 2011 (Farooq Iliyas Motorwala (A-75) and Criminal Appeal No. 397 of 2011 (Mohd. Rafiq Usman Shaikh (A-94). The respondents in these appeals ae awarded life imprisonment and they are directed to surrender before the learned Designated Court within a period of four weeks to serve out the remaining sentence, failing which the Designated Court will secure their custody and send them to jail to serve out the sentence.
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250. Facts and circumstances giving rise to this appeal are that :
A. In addition to the main charge of conspiracy, the appellant (A- 94) was charged under Section 3(3) TADA, as he had visited Pakistan alongwith other co-conspirators via Dubai and underwent training in handling of arms, ammunition and explosives with the object of committing terrorist acts and even attended the meetings at the residences of Nazir Ahmed Anwar Shaikh @ Babloo (AA) and Mubina Bai where plans for committing terrorist acts were discussed/finalised. Further, he had also taken oath in the name of Quran while in Dubai, not to disclose to anybody about the conspiracy.
B. After conclusion of the trial, the respondent was held guilty of the charges as referred to hereinabove but has been acquitted of the charge of conspiracy.
Hence, this appeal.
251. Mr. Mukul Gupta, learned senior counsel appearing for the appellant has submitted that the Special Judge was not justified in imposing such a lenient punishment in view of the fact that the respondent (A-94) had gone to Pakistan and acquired the knowledge in handling of arms and ammunition during training. He had attended the conspiratorial meetings wherein conspiracy was not only hatched, but plans for committing terrorist acts were also given final stage. Moreover, he had taken oath as to non-disclosure of information about the conspiracy in the name of Quran in Dubai. Therefore, the appeal deserves to be allowed.
252. On the contrary, Ms. Farhana Shah, learned counsel appearing for the respondent has submitted that the respondent (A-94) had been awarded 7 years RI which he has already served. He had also deposited the fine imposed upon him. The deposition of Mohd. Usman Jan Khan (PW.2) is not worth reliance for the reason that he was also an accused who, subsequently turned to be an approver. Moreover, Mohd. Usman Jan Khan (PW.2) had not named him (A-94) specifically as being present in the conspiratorial meeting on 10.3.1993 and there is no material even on record to show that the respondent (A-94) was present on 11.3.1993 in the conspiratorial meeting at Al-Husseini building. Therefore, the respondent (A-94) cannot be discriminated against, as his role had been like all others particularly, Gul Mohamamed @ Gullu Noor Mohmed Shaikh (A-77), Mohmed Hanif Mohmed Usman Shaikh (A-92), Mohmed Sayeed Mohmed Issaq (A-95), Shaikh Ibrahim Shaikh Hussein (A-108) and Usman Man Khan Shaikh (A-115) except that none of the above named accused had participated in the conspiratorial meetings.
252.1 Moreover, in spite of the fact that on 10.3.1993, the respondent (A-94) was present in the conspiratorial meeting and accepted a sum of Rs.5,000/- from Tiger Memon (AA), he did not participate in any overt act on the fateful day i.e. 12.3.1993, when the Bombay Blast took place. Therefore, no interference is required with the impugned judgment and order, and enhancement of punishment is not warranted.
253. We have considered the rival submissions made by learned counsel for the parties and perused the record.
254. Evidence against the respondent (A-94):
(a) Confessional Statement of Mohd. Rafiq Usman Shaikh (A-94)
(b) Confessional statement of Bashir Ahmed Usman Gani Khairulla (A-13)
(c) Confessional statement of Nasim Ashraf Sherali Barmare(A-49)
(d) Confessional statement of Parvez Mohmed Parvez Zulfikar Qureshi (A- 100)
(e) Confessional statement of Shahnawaz Abdul Kadar Qureshi (A-29)
(f) Confessional statement of Zakir Hussain Noor Mohd. Shaikh (A- 32)
(g) Confessional statement of Abdul Khan (A-36)
(h) Confessional statement of Firoz @ Akram Amani Malik (A-39)
(i) Confessional statement of Niyaz Mohamed (A-98)
(j) Deposition of Mohd. Usman Jan Khan (PW-2)
(k) Deposition of Jagdesh Lohalkar (PW.237)
(l) Deposition of Ramchandra (PW.231)
255. Confessional Statement of Mohd. Rafiq Usman Shaikh (A-94) – He has disclosed that he was of 25 years of age and used to wash cars and fill petrol. He lost his job 7-8 months prior to Bombay Blast. On 16.2.1993, one Mohmed Jabir Abdul Latif Mansoor (A-93) (now dead) told the respondent (A-94) that his ticket to Dubai had been arranged for 17.2.1993 and he (A-94) went to Dubai by an Air India flight on 17.2.1993. He was received at Dubai airport by a fair looking man with a beard at Dubai airport. The respondent (A-94) stayed in a hotel with five other persons who had gone there for the same purpose, namely, Haji Yakub, Anwar, Bashir and Nasir Dhakla. Four more persons had joined them there, and on the advice of Tiger Memon (AA) they went to the airport on 20.2.1993 to go to Islamabad. They reached Islamabad where they were received by a person who took them to a hilly jungle area where tents had already been pitched. On the next day, Javed Chikna told the respondent (A-94) to get ready for pistol and machine gun training and advised him to learn all those weapons, as atrocities had been committed on Muslims in Bombay. Respondent (A-94) participated in the training and came back to Dubai from Islamabad on 1.3.1993. He also took oath in the name of Quran in Dubai alongwith other conspirators not to reveal any information about the training etc. to anyone. Respondent (A-94) returned to Bombay on 3.3.1993. On 10.3.1993, respondent (A-94) had participated with other conspirators in a conspiratorial meeting at Mubinas place at Bandra, where targets were discussed and groups were assigned particular duties and each participant was given a sum of Rs.5,000/- by Tiger Memon (AA).
256. The aforesaid confessional statement of the respondent (A-94) was further corroborated by the confessional statement of Bashir Ahmed Usman Gani Khairulla (A-13) to the extent that he revealed the presence of respondent (A-94) in the conspiratorial meeting on 10.3.1993 at Bandra, and that Tiger Memon (AA) had given everybody a sum of Rs.5,000/- in the meeting.
257. Confessional statement of Nasim Ashraf Sherali Barmare (A-49) – He has revealed the version given by respondent (A-94) to the extent that he (A-94) had attended the training in Pakistan and further he (A-94) attended the meeting at Bandra on 10.3.1993, and each of the participants was given a sum of Rs.5,000/-.
258. Confessional statement of Parvez Mohmed Parvez Zulfikar Qureshi @Parvez Kelewala (A-100) He has also disclosed the similar facts as given by the respondent (A-94) in his confessional statement to the extent that the respondent (A-94) attended the arms training in Pakistan.
259. Confessional statement of Shahnawaz Abdul Kadar Qureshi (A-29) – He has revealed that the respondent (A-94) had gone to Pakistan for arms training via Dubai and attended the meeting in Dubai. He had also taken on oath in the name of Quran that he would not reveal any information about conspiracy to anyone and that he was told in that meeting by Tiger Memon (AA) that his tickets were ready for evening flight for Bombay.
260. Confessional statement of Zakir Hussain Noor Mohd. Shaikh (A- 32) – He has disclosed that respondent (A-94) had joined other conspirators for training in Pakistan and took an oath in Dubai in the name of Quran.
261. The same version stood corroborated further by the confessions of Abdul Khan @Yakub Khan Akhtar Khan (A-36), Firoz @ Akram Amani Malik (A-39) and Niyaz Mohmed @ Aslam Iqbal Ahmed Shaikh (A-98).
262. Mohd. Usman Jan Khan (PW.2) has deposed that he knew the respondent (A-94) and he identified him in court. He has further deposed that the respondent (A-94) had attended the arms training in Pakistan.
263. Jagdish Shantaram (PW.237) and Ramchandra (PW.231) have also proved the departure of respondent (A-94) from Bombay to Dubai on 17.2.1993 and his arrival in Bombay on 3.3.1993 respectively.
264. The Special Judge after appreciating the entire evidence came to the following conclusion:
109. Now considering the matters stated in the confession of A- 94 the similar phenomenon is found therein and hence detailed dilation regarding same is avoided. The same also alike the confession of A-64 though reveals that A-94 had initially agreed to go to Dubai for the purposes of trip ultimately in a similar manner (but alongwith different person). He had reached the said training camp in which A-64 was acquiring training along with other persons. Similarly, the same also reveals of A- 94 and his companion being cleared at Islamabad airport in the similar manner. As a difference the material on page of confession of A-94 reveals that in Pakistan A-94 had acquired the knowledge that he has to take training and at the said juncture absconding accused Javed Chikna had told him the purpose for which the said training of operating pistols and machine gun was to be taken. Now visualizing the situation then prevailing between India and Pakistan in the year 1992 and still A-94 having continued to take training and/or not making any protest about the same even later on also clearly reveals of himself having joined the band of said. Thus, considering all the material contained in confession of other accused and concerned evidence it is amply clear that the person with beard who had met A-77 and A-94 at Dubai was none else but Tiger Memon.
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111. Now considering further material in the confession of A-94 the same in terms reveals the promptness in which he has gone to Pakistan and acquired training at the said place. On the said backdrop considering the earlier recitals in the confession that he had gone for a trip clearly appears to be not only inconsistent with other matters stated in the confession but the same clearly appears to have been belied by other material stated in the said confession. Thus the said recitals will be liable to be discarded. After discarding the said recitals and considering in proper perspective other material the same clearly reveals that A-94 having agreed for acquiring training at Pakistan and for the said purpose he had promptly gone and acquired the same.
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113. [] The same being not directed against any particular person the said fact clearly reveals that the same cannot be said to be of any other purpose rather than for commission of terrorist acts. The aforesaid fact is also fortified by the further material contained in the confession regarding the manner in which A-94 had taken an oath and the matters then told by Tiger Memon. 114. Thus, considering all facets from confession of A-94 about which few are discussed hereinabove, it can be safely said that the same squarely establishes the guilt of A-94 in commission of offence for which charges are framed against him.
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118. In the premises aforesaid i.e. in the light of discussion made hereinabove, it can be safely said that A-16, A-29, A-32, A- 36, A-39, A-49, A-52, A-64, A-77, A-92, A-94, A-95, A-98, A-100, A-108 and A-105 had been to Pakistan via Dubai themselves and as agreed had received training in handling of sophisticated arms, ammunitions, explosives for commission of terrorist acts and in said process A-77, A-92, A-95, A-108 and A-115 had attended meeting themselves and/or the remaining also had taken on oath of secrecy and were involved in planning in commission of terrorist act after returning to India and/or utilizing the training acquired by them and thus having committed offence punishable u/s 3(3) of TADA and so also offence of conspiracy all the points under the discussion i.e. point Nos. 22, 23 and 24, will be required to be answered in affirmative against each of them.
TADA COURT ON SENTENCE of A-94
519. Now considering the case of A-94 from them, though same apparently appears to be different than the remaining five due to himself having participated in the meeting on 10th of March, 1993, the close look at the evidence and particularly his confession does not reveal himself having committed any further act or any evidence denoting that he had acquired knowledge of further activities to be committed in pursuance of conspiracy to which other members in said meeting were party and in future the said members having indulged in commission of further acts furthering the objects of the larger conspiracy to which other said members are found to be guilty. Needless to add that though confession of A-94 reveals that said meeting was attended by Tiger Memon, PW-2, Javed Chikna, Bashir, A-32, A-38 and 14-15 others, the said material does not transcend further other than showing that small groups were formed at said meeting and the members of said group were discussing the matters amongst themselves and Tiger Memon had given Rs.5000/- to each of participant of the said meeting. Curiously enough material fails to denote commission of any further act by A-94 making him liable for being a party to larger conspiracy in pursuance of which further preparatory acts for commission of Serial Bomb Blast was committed. Needless to add that the material reveals that A-94 was enquired whether he was knowing driving and he had replied in negative. The material in the confession also reveals that on 14th of March, 1993, A-16 had told A-94 that Tiger Memon had caused the bomb explosions and has ran away etc. Thus, careful consideration of said material though reveals that case of A-94 is somewhat different still at the same time the same fails to establish of the same being materially different and/or being on higher pedestal than other 5 accused concerned with present discussion.
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526. Thus, considering acts committed by each of aforesaid 6 accused and out of them involvement of A-94 being slightly more than others but having regard to the crucial fact that in spite of all of them at certain point of time having become party to conspiracy to commit terrorist act, in pursuance of same or otherwise having acquired the necessary training surreptitiously in a foreign country for commission of terrorist act and thus each of them having acquired/gained sufficient potential for commission of terrorist act but in fact none of them having committed such act and each of them having remained continuously in custody for a long period of 5-6 years after arrest uptil their release on bail and the same having reduced the potential acquired by each of them for commission of heinous crime and same in turn having resulted in protecting the society at large from such potential gain and even after release of said accused on bail, their conduct being not indicative of themselves having attempted to use potential gain by them for causing any danger to society at large and in fact the act committed by all of them having not resulted in causing any danger to society and other matters stated by them during their statement recorded upon quantum of sentence will deserve not giving any much harsher or the maximum punishment to them. The same would be necessary as the conduct of these accused after their release on bail in some what indicative of there being eradication of the element of criminality because of which they had committed the crime.
265. This Court has laid down parameters for interference against the order of acquittal time and again and the same have to be followed herein.
266. In view of the fact that the respondent (A-94) had gone to Pakistan and took training in handling the arms, ammunition and explosives and also attended the conspiratorial meeting at Dubai and took oath in the name of Quran not to divulge any information regarding the conspiracy, it is abundantly clear that the respondent was aware of the purpose of training in Pakistan and he undertook the training there without any protest.
267. We are of the view that the Special Judge committed an error in not convicting the respondent for the larger conspiracy. Therefore, the appeal is allowed and he is awarded life imprisonment. He is directed to surrender before the learned Designated Court within a period of four weeks to serve out the remaining sentence, failing which the Designated Court will secure his custody and send him to jail to serve out the sentence.
S. Criminal Accused Name and Number Sentence by Award by No. Appeal Designated Court Supreme Court
1. 418 of 2011 Fazal Rehman Abdul (A-76) Acquitted Dismissed
2. 409 of 2011 Manjoor Qureshi & Ors. Acquitted Dismissed (A-88, A-109, A-114,A-126, A-127(dead) and A-130)
3. 601 of 2011 Krishna Sadanand Mokal & Acquitted Dismissed Ors. (A-83, A-84 and A-87)
4. 404 of 2011 Moiddin Abdul Kadar Acquitted Dismissed Cheruvattam (A-48)
5. 405 of 2011 Asfaq Kasam Hawaldar (A-38) Acquitted Dismissed
6. 394 of 2011 Ismail Abbas Patel (A-80) Acquitted Dismissed
7. 1033 of 2012 Rukhsana Mohd. Shafi Acquitted Dismissed Zariwala (A-103)
8. 594 of 2011 Sayyed Ismail Sayyed Ali Acquitted Dismissed Kadri (A-105)
9. 402 of 2011 Mohd. Ahmed Mansoor (A-132) Acquitted Dismissed
10. 1022 of 2012 Rashid Umar Alwar (A-27) U/s 111 r/w Dismissed Sec. 135 of Customs Act 3 years RI with fine of Rs.25,000/- and acquitted of charge of conspiracy
11. 393 of 2011 Sharif Khan Abbas Adhikari (A-60) U/s 111 r/w Dismissed
Sec. 135 of Customs Act 3 years RI with fine of Rs.25,000/-and acquitted of charge of conspiracy
12. 391 of 2011 Sharif Abdul GafoorParkar U/s 3(3) Allowed and @ Dadabhai (A-17) TADA 7 awarded life years RI with fine imprisonment of Rs.50,000/- U/s 5 TADA 10 years RI with fine of Rs.50,000/-; U/s 6 TADA 14 years RI with fine of Rs. 2 lakhs; and acquitted from charge of conspiracy
13. 1027 of 2012 Manoj Kumar Bhanwarlal U/s 3(3) Allowed and Gupta (A-24) TADA 7 years awarded life RI with fine of imprisonment Rs.50,000 U/s 5 TADA 10 years RI with fine of Rs. 1 lakh; U/s 6 TADA 14 years RI with fine of Rs.1 lakh; U/s 3(3) TADA and Sec. 201 IPC 5 years RI with fine of Rs.25,000/-; and acquitted from charge of conspiracy
14. 597 of 2011 Sarfaraj Dawood Phanse (A-55) U/s 3(3) Dismissed TADA – 9 years RI with fine of Rs.25,000/-; and acquitted from charge of conspiracy
15. 407 of 2011 Ayub Ibrahim Patel (A-72) U/s 3(3) Dismissed TADA – 5 years RI with fine of Rs.25,000/-; U/s 5 TADA – 10 years RI with fine of Rs.50,000/- ; U/s 6 TADA – 10 years RI with fine of Rs.50,000 and acquitted from charge of conspiracy
16. 1025 of 2012 Mohd. Shahid Nizamuddin U/s 3(3) Dismissed Qureshi (A-135) TADA – 10 years RI with fine of Rs.25,000/-; and acquitted from charge of conspiracy
17. 599 of 2011 Shaikh Mohd. Ethesham (A-58) U/s 3(3) Dismissed TADA – 10 years RI with fine of Rs.25,000/-; and further U/s 3(3) TADA – 10 years RI with fine of Rs.25,000/- from and acquitted charge of conspiracy
18. 395 of 2011 Farooq Illiyas Motorwala (A-75) U/s 3(3) Allowed and 13 years RI awarded life with fine of imprinsoment Rs.25,000/-; U/s 3(3) TADA 7 years RI with fine of Rs.25,000/- and acquitted from charge of conspiracy
19. 397 of 2011 Mohd. Rafiq Usman Shaikh(A-94) U/s 3(3) Allowed and TADA 7 years awarded life RI with fine imprisonment of Rs.15,000/- and acquitted from charge of conspiracy
267.1 We have dealt with 19 appeals filed by the State against the order of acquittal on certain charges and particularly, the charge of conspiracy. Out of the said 19 appeals, we have dismissed 15 appeals, however, allowed 4 appeals bearing Criminal Appeal No. 391/2011 (Sharif Abdul Gafoor Parkar @ Dadabhai (A-17), Criminal Appeal No. 1027 of 2012 (Manoj Kumar Bhanwarlal Gupta (A-24), Criminal Appeal No. 395 of 2011 (Farooq Iliyas Motorwala (A-75) and Criminal Appeal No. 397 of 2011 (Mohd. Rafiq Usman Shaikh (A-94). The respondents in these appeals ae awarded life imprisonment and they are directed to surrender before the learned Designated Court within a period of four weeks to serve out the remaining sentence, failing which the Designated Court will secure their custody and send them to jail to serve out the sentence.
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