State of Maharashtra Vs. Rukhsana Mohd. Shafi Zariwala
Terrorist and Disruptive Activities (Prevention) Act, 1987
Appeal against acquittal – Charge of conspiracy and of aiding and facilitating distribution of smuggled fire arms, ammunition and explosives for terrorist activities – Acquittal by Designated Court – Allegation that respondent accompanied A71 in distributing and transporting arms – As per Confessional statement of A-12, respondent’s husband was a driver of Tiger Memon (TM) and had participated many times in landing and transportation of arms – On 11.3.1993 on instruction of TM (AA), A12 and one ‘As’ took suit cases and handbags and kept them in room no.17 of Musafirkhana – They then went to Respondent’s husband’s (SH) house and from there to a place Mahim – After some time, ‘SH’ came there and took A-12 to his sister-in-laws house at ‘J’ where respondent was also present and kept 2 AK-56 rifles and some hand-grenades in one bag and pistols in another bag – A-12, ‘SH’, respondent and his sister-in-law thereafter left for Mahim where ‘SH’ told them to go to Musafirkhana and keep those bags in room no.17 – According to A-71’s confession he had booked two rooms i.e., Room Nos.16 and 17 and on intervening night of 11-12.3.1993 on instruction of TM he had reached Musafirkhana to meet him – He had found three big suit cases and one small suit case, two hand bags, etc. containing cartridgesm, arms and ammunitions – A71’s confessional statement discarded by Designated Court due to non-compliance with statutory procedure – No corroborative material to support confession of A-12 – No recovery effected from room No. 17 – Nothing to show that Respondent had any knowledge of such arms or knew purpose for which they were brought – Her sister-in-law neither made an accused nor a witness – Her husband was an absconder. Held, acquittal of respondent calls for no interference.
The only allegation against the respondent had been that she had accompanied her husband (AA) while he carried the arms, ammunition and explosives. Further, there is nothing on record to show that she had any knowledge of such arms, and the purpose for which the same had been brought. Further, the sister-in-law of the respondent was neither made the accused nor a witness. Her husband is still absconding. In such a fact-situation, the findings recorded by the learned Designated Court do not warrant any interference. The appeal lacks merit, and is accordingly dismissed. (Para 86)
77. Facts and circumstances giving rise to this appeal are that :
77.1 In addition to the main charge of conspiracy, the case against the respondent had been that she accompanied Ashrafur Rehman (A-71) and helped in the transportation of bags containing 85 hand-grenades, 350 electric detonators and 3270 live cartridges of AK-56 rifles from Jogeshwari to Musafirkhana, Bombay. She thereby aided and facilitated the distribution of fire arms, ammunition and explosives which were smuggled into India by the co-accused for terrorist activities. After conclusion of the trial, the Designated Court acquitted the respondent of all the charges.
Hence, this appeal.
78. Shri Mukul Gupta, learned senior counsel appearing for the appellant-State has submitted that the respondent had accompanied her husband while carrying the arms, ammunition and explosives, and thus, she was guilty of facilitating the distribution of arms, ammunition and explosives etc. Hence, the Designated Court erred in acquitting her of all the charges.
79. Ms. Farhana Shah, learned counsel appearing for the respondent has submitted that the Designated Court has examined the entire evidence and came to the conclusion that she had been unnecessarily dragged in the trial. She was not involved anywhere and merely being the wife of absconding accused, she had been forced to face the trial. Considering the parameters laid down by this Court to entertain the appeal against acquittal, the case is not worth for interference. Thus, the appeal is liable to be dismissed.
80. We have considered the rival submissions made by learned counsel for the parties and perused the record.
81. Confessional statement of Parvez Nazir Ahmed Shaikh (A-12) revealed about the incident of transportation of the contraband arms and ammunition from Jogeshwari to Musafirkhana. He disclosed that he was a close associate of Imtiyaz and Tiger Memon. He knew Shafi Zariwala, the husband of the respondent who was working as driver of Tiger Memon very well. He revealed his participation on various times in landing and transportation. On 11.3.1993 at 12 noon he went to the house of Tiger Memon. At that time Asgar was also present there. Tiger Memon (AA) gave him two suit cases, two handbags (just like neck hanging bags) and one big suit case and asked him to go to Musafirkhana. He and Asgar took all the goods and kept the same in room no.17 of Musafirkhana and their curiosity got the best of them and they opened the bags and found that one bag contained AK-56 rifles and the other bag contained some hand-grenades and pen shaped pipes. They closed the bag and went to Shafis house and from there went to Mahim. After some time, Shafi also came by jeep and took him (A-12) to his sister-in-laws house at Jogeshwari. Shafis wife (respondent herein) was also there. Shafi kept 2 AK-56 rifles and some hand-grenades in one bag and in the bag he kept some pistols there. The accused (A-12), Shafi, his wife Rukhsana (respondent) and his sister-in-law all left for Mahim at about 8.30 P.M. Shafi dropped them at Mahim and told them to go to Musafirkhana by a taxi and keep those bags in room no.17 and after that came to Shafis house. He explained that the goods had been kept at Musafirkhana on the instruction of Tiger Memon (AA). He revealed that after the Bombay Blast on 12.3.1993 he had shifted the contraband from room nos.16 and 17 to the lavatory and further how the recovery was made.
82. So far as the incident of transporting the goods from Jogeshwari to Musafirkhana is concerned, Ashrafur Rehman Azimulla Shaikh (A-71) revealed that he had booked two rooms i.e., Room Nos.16 and 17 on the first floor in Musafirkhana. On the intervening night of 11.3.1993 and 12.3.1993 at about 1.00 a.m. Tiger Memon (AA) called him on telephone and asked him to reach Musafirkhana. Tiger Memon met him there. There were three big suit cases and one small suit case, two hand bags, three or four plastic bags containing cartridges, seven machine guns and seven small pistols etc.
82.1 He has given some reference to this incident, however, his statement was discarded by the Designated Court in view of the fact that the officer who recorded his statement did not meet the statutory requirement of giving him the statutory warning that he was not bound to make his confession and if made it would be used against him.
83. We have gone through his confessional statement. No such requirement had been ensured and, thus, the same has rightly been rejected by the court below.
84. The Special Judge acquitted the respondent on the grounds:
(a) That there is no corroborative material available to support the contents of the confession of A-12 Parvez Nazir Ahmed Shaikh and further no recovery has been affected from room No. 17 of the Musafirkhana.
(b) That the confession made by A-71 Ashrafur Rehman in support of A-12 Parvez Nazir Ahmed Shaikh’s confession is inadmissible because it was not recorded by the Deputy Commissioner of police (hereinafter referred to as DCP) by following the statutory procedure and that A-71 Ashrafur Rehman was not given the requisite warning that he ?was not bound to make confession. Further, the requisite certificate/memorandum as prescribed in Rule 15 (3) of TADA(P) Rules, was also not recorded.
85. The parameters laid by this Court in entertaining the appeal against the order of acquittal have to be applied.
86. The only allegation against the respondent had been that she had accompanied her husband (AA) while he carried the arms, ammunition and explosives. Further, there is nothing on record to show that she had any knowledge of such arms, and the purpose for which the same had been brought. Further, the sister-in-law of the respondent was neither made the accused nor a witness. Her husband is still absconding. In such a fact-situation, the findings recorded by the learned Designated Court do not warrant any interference. The appeal lacks merit, and is accordingly dismissed.