Parvez Mohammed Parvez Zulfikar Qureshi (A-100) Vs. The State of Maharashtra through CBI-STF, Bombay
EmailAppeal: Criminal Appeal Nos. 933-936 of 2008
Petitioner: Parvez Mohammed Parvez Zulfikar Qureshi (A-100)
Respondent: The State of Maharashtra through CBI-STF, Bombay
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 Parvez Mohammed (A100) – Charges of conspiracy, murder etc. – Evidence against him Appreciation His own confession made voluntary and recorded after following due procedure Corroboration by confessions of co-accused viz. A10, A12, A13, A16, A29, A32, A36, A39, A49, A52, A57, A64, A98 Further corroboration by PWs, in particular by PW 2 (approver) – Assisted in loading / unloading of smuggled arms Went to Dubai and then to Pakistan – Underwent weapon training Took oath of Jehad Retuned to Bombay Witnessed loading of goods in jeep Also remained absconding till arrest. Held that his participation is established. No leniency required. 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 Parvez Mohammed (A100) – Charges of conspiracy, murder etc. – Evidence against him Appreciation His own confession made voluntary and recorded after following due procedure Corroboration by confessions of co-accused viz. A10, A12, A13, A16, A29, A32, A36, A39, A49, A52, A57, A64, A98 Further corroboration by PWs, in particular by PW 2 (approver) – Assisted in loading / unloading of smuggled arms Went to Dubai and then to Pakistan – Underwent weapon training Took oath of Jehad Retuned to Bombay Witnessed loading of goods in jeep Also remained absconding till arrest. Held that his participation is established. No leniency required. Conviction and sentence affirmed.
Held:
(i) He was a close friend of Javed Chikna (AA). After the riots, one day, Javed Chikna asked him if he had a passport, to which, he replied in the affirmative. Thereafter, in the first week of February, Javed Chikna told him that he would take him to Dubai for a trip and that he is making arrangements for the same.
(ii) In the second week of February, he along with Javed Chikna, Tiger Memon and others went to Raigad.
(iii) At Raigad, he was given a revolver by Tiger Memon.
(iv) He assisted in the loading and unloading of smuggled arms.
(v) He also went to Waghani Tower alongwith others.
(vi) The aforesaid revolver was taken back from him by Tiger Memon after completion of the landing activity.
(vii) On 11.02.1993, he went to Dubai alongwith Javed Chikna and others.
(viii) He stayed in Dubai for two days and from there, he went to Pakistan.
(ix) In Pakistan, Javed Chikna spoke to him regarding taking revenge for the demolition of Babri Masjid.
(x) He underwent weapons training at Pakistan. He also met Niyaz Mohammed @ Aslam Iqbal Ahmed Shaikh (A-98) there.
(xi) On completion of the training, he along with some others left Pakistan and reached Dubai on 02.03.1993.
(xii) Tiger Memon also returned to Dubai from Pakistan, and thereafter, at his instance, he (A-100) and others took oath of maintaining secrecy and committing Jehad for the sake of Islam. Further, Tiger Memon spoke about the atrocities committed on Muslims during the communal riots in Bombay and taking revenge for the same.
(xiii) On 03.03.1993, he returned to Bombay alongwith others.
(xiv) On 09.03.1993, he attended the conspiratorial meeting held by Tiger Memon at Bandra wherein Tiger distributed Rs. 5,000/- to everyone present there for celebrating Eid. A-98 was also present in the said meeting.
(xv) On the intervening night of 11/12.03.1993, he was present at Tiger Memons residence at Al-Hussaini where many other co-accused were also present and he saw some of them loading some goods in a jeep.
(xvi) He went to Ajmer alongwith A-98. (Para 441)
A perusal of the confessional statements of all the above accused, viz., A-10, A-12, A-13, A-16, A-29, A-32, A-36, A-39, A-49, A-52, A-57, A-64 and A-98 clearly establish the fact that it corroborate with the confessional statement of the appellant (A-100). After consideration of all the abovesaid confessional statements of the co-accused, the involvement of the appellant in the conspiracy is established inasmuch as:
(i) The appellant participated in the landing at Shekhadi where arms and explosives were smuggled into India for the purpose of committing terrorist acts;
(ii) The appellant went to Pakistan via Dubai and participated in the weapons training;
(iii) The appellant participated in various conspiratorial meetings held in Dubai as well as in India including the meeting at the residence of A-96 where groups were made and final shape to the plan for blasts at various places in Bombay was discussed;
(iv) The appellant was a friend of Javed Chikna (AA);
(v) The involvement of the appellant in the conspiracy was very deep;
(vi) He participated in all the stages of conspiracy, namely, landing, training, planning etc.; and
(vii) He was present at Al-Hussaini building on the night intervening 11/12.03.1993 when activity of filling of RDX in vehicles was going on. (Para 444)
The deposition of PW-2, the Approver, corroborates with the confessional statements of the co-accused persons as well as the confession of the appellant. The confession of the appellant read with the confessions of various co-accused persons along with the evidence of PW-2 substantiate the charges framed against him. (Para 445.2 )
To undergo weapons training as a part of the conspiracy and to further the conspiracy to cause terrorist acts in India constitutes an offence. The aforesaid evidence divulge that the appellant along with other co-conspirators was given the said training to equip himself to commit terrorist acts in Bombay and, therefore, he was rightfully convicted for the same. 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 had committed various offences. (Para 447)
In the light of the evidence in the form of his own confession and confessional statement of co-accused persons, it cannot be claimed that he merely witnessed the incident when his presence is evidently proved by acceptable materials. (Para 449)
JUDGEMENT:
JUDGEMENT
436. Ms. Farhana Shah, learned counsel for the appellant (A-100) and Mr. Mukul Gupta, learned senior counsel duly assisted by Mr. Satyakam, learned counsel for the respondent-CBI.
437. These appeals are directed against the final judgment and order of conviction and sentence dated 06.10.2006 and 05.06.2007 respectively, whereby the appellant (A-100) was found guilty and was 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:
438. A common charge of conspiracy was framed against all the co- conspirators including the appellant (A-100). The material part of the said charge is reproduced herein:
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.
438.1 In addition to the above-said principal charge of conspiracy, the appellant was also charged on the following counts:
At head Secondly;
(a) He participated in the landing and transportation of arms, ammunition and explosives smuggled into India by Tiger Memon at Shekhadi;
(b) He took training in Pakistan in handling of arms, ammunitions and explosives for committing terrorist acts;
(c) He attended the conspiratorial meetings held by Tiger Memon at the residence of Nasir Ahmed @ Babloo and Ms. Mobina Baya; and
(d) He participated in filling RDX in vehicles with the object of causing explosions in Bombay.
439. The charges mentioned above were proved against the appellant (A-100). 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
440. The evidence against the appellant (A-100) 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 Parvez Mohammed Parvez Zulfikar Qureshi (A-100)
441. Confessional statement of the appellant (A-100) under Section 15 of TADA was 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. The following facts emerge from the said confessional statement:-
(i) He was a close friend of Javed Chikna (AA). After the riots, one day, Javed Chikna asked him if he had a passport, to which, he replied in the affirmative. Thereafter, in the first week of February, Javed Chikna told him that he would take him to Dubai for a trip and that he is making arrangements for the same.
(ii) In the second week of February, he along with Javed Chikna, Tiger Memon and others went to Raigad.
(iii) At Raigad, he was given a revolver by Tiger Memon.
(iv) He assisted in the loading and unloading of smuggled arms.
(v) He also went to Waghani Tower alongwith others.
(vi) The aforesaid revolver was taken back from him by Tiger Memon after completion of the landing activity.
(vii) On 11.02.1993, he went to Dubai alongwith Javed Chikna and others.
(viii) He stayed in Dubai for two days and from there, he went to Pakistan.
(ix) In Pakistan, Javed Chikna spoke to him regarding taking revenge for the demolition of Babri Masjid.
(x) He underwent weapons training at Pakistan. He also met Niyaz Mohammed @ Aslam Iqbal Ahmed Shaikh (A-98) there.
(xi) On completion of the training, he along with some others left Pakistan and reached Dubai on 02.03.1993.
(xii) Tiger Memon also returned to Dubai from Pakistan, and thereafter, at his instance, he (A-100) and others took oath of maintaining secrecy and committing Jehad for the sake of Islam. Further, Tiger Memon spoke about the atrocities committed on Muslims during the communal riots in Bombay and taking revenge for the same.
(xiii) On 03.03.1993, he returned to Bombay alongwith others.
(xiv) On 09.03.1993, he attended the conspiratorial meeting held by Tiger Memon at Bandra wherein Tiger distributed Rs. 5,000/- to everyone present there for celebrating Eid. A-98 was also present in the said meeting.
(xv) On the intervening night of 11/12.03.1993, he was present at Tiger Memons residence at Al-Hussaini where many other co-accused were also present and he saw some of them loading some goods in a jeep.
(xvi) He went to Ajmer alongwith A-98.
442. The prosecution highlighted that the appellant (A-100) 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:
443. Apart from his own confession, the involvement of the appellant (A-100) 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-100) are summarized hereinbelow:
Confessional Statement of Asgar Yusuf Mukadam (A-10)
443.1 Confessional statement of A-10 under Section 15 of TADA was recorded on 23.04.1994 (18:00 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. A-10 confessed that he handed over the tickets and passport of the appellant and two other co-accused, namely, Farooq and Salim and further that they were dropped at the Airport by him.
Confessional Statement of Parvez Nazir Ahmed Shaikh (A-12)
443.2 Confessional statement of A-12 under Section 15 of TADA was recorded on 18.04.1993 (14:00 hrs.) and 21.04.1993 (06:50 hrs.) by Shri Prem Krishna Jain (PW-189), the then DCP, Zone X, Bombay. The said confessional statement reveals the involvement of the appellant in the landing at Shekhadi.
Confessional Statement of Bashir Ahmed Usman Gani Khairulla (A-13)
443.3 Confessional statement of A-13 under Section 15 of TADA was recorded on 16.05.1993 (10:30 hrs.) and 18.05.1993 (17:15 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. The said confessional statement reveals the participation/presence of the appellant in the conspiratorial meeting held at the residence of Mobina @ Bayamoosa Bhiwandiwala (A-96) at Bandra.
Confessional Statement of Mohd. Farooq Mohd. Yusuf Pawale (A-16)
443.4 Confessional statement of A-16 under Section 15 of TADA was 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 said confessional statement of A-16, with reference to the appellant, reveals as under:
(i) A-16 knew the appellant as a friend of Javed Chikna (AA). The appellant used to sell charas (narcotic substance).
(ii) He participated in the landing at Shekhadi.
(iii) He was given a pistol by Tiger Memon at Shekhadi.
(iv) He participated in the weapons training at Pakistan.
Confessional Statement of Shahnawaz Abdul Kadar Qureshi (A-29)
443.5 Confessional statement of A-29 under Section 15 of TADA was 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 said confessional statement of A-29 with reference to the appellant reveals as under:
(i) He participated in the landing at Shekhadi.
(ii) He participated in the weapons training at Pakistan.
(iii) He was present at Al-Hussaini building on the night intervening 11.03.1993.
Confessional Statement of Zakir Hussain Noor Mohd. Shaikh (A-32)
443.6 Confessional statement of A-32 under Section 15 of TADA was 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 said confessional statement of A-32 with reference to the appellant reveals as under:
(i) He participated in the weapons training at Pakistan.
(ii) He took oath on holy Quran that whatever he has learnt, did or happened, he will not disclose it to anyone on reaching Bombay.
Confessional Statement of Abdul Akhtar Khan (A-36)
443.7 Confessional statement of A-36 under Section 15 of TADA was 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. A-36, with reference to the appellant, stated that he participated in the weapons training at Pakistan.
Confessional Statement of Feroz @ Akram Amani Malik (A-39)
443.8 Confessional statement of A-39 under Section 15 of TADA was 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 (A-100) 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 Sherali Barmare (A-49)
443.9 Confessional statement of A-49 under Section 15 of TADA was 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 said confession of A-49 with reference to the appellant (A-100) 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)
443.10 Confessional statement of A-52 under Section 15 of TADA was recorded on 15.04.1993 and 18.04.1993 by Mr. P.D. Pawar (PW-185), the then DCP, Zone V, Bombay. The said confession of A-52 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 for the loss caused to the Muslims.
(iii) He returned from Dubai on 03.03.1993.
(iv) All the co-accused persons who underwent the abovesaid 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.
(v) He was present at Al-Hussaini building on 11.03.1993.
Confessional Statement of Shaikh Ali Shaikh Umar (A-57)
443.11 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 said confession of A-57 with reference to the appellant reveals as under:
(i) The appellant was present at Soda factory.
(ii) The appellant participated in the landing at Shekhadi.
(iii) The appellant participated in the conspiratorial meeting at Bandra.
Confessional Statement of Nasir Abdul Kadar Kewal @ Nasir Dhakla (A-64)
443.12 Confessional statement of A-64 under section 15 of TADA was recorded on 22.01.1995 and 24.01.1995 by Shri HC Singh (PW-474), the then Superintendent of Police, CBI/SPE/STF, New Delhi. The said confession of A- 64 with reference to the appellant (A-100) reveals as under:
(i) He participated in the landing at Shekhadi.
(ii) He participated in the weapons training that took place at Pakistan.
(iii) He attended the conspiratorial meeting at Mobinas residence.
Confessional Statement of Niyaz Mohd. @ Aslam Iqbal Ahmed Shaikh (A-98)
443.13 Confessional statement of A-98 under Section 15 of TADA was recorded 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 said confession of A- 98 with reference to the appellant reveals as under:-
(i) The appellant participated in the training in handling of arms and ammunitions and explosive at Pakistan.
(ii) He took oath for taking revenge.
(iii) He attended the conspiratorial meeting at the residence of Mobina Baya (A-96).
444. A perusal of the confessional statements of all the above accused, viz., A-10, A-12, A-13, A-16, A-29, A-32, A-36, A-39, A-49, A-52, A-57, A-64 and A-98 clearly establish the fact that it corroborate with the confessional statement of the appellant (A-100). After consideration of all the abovesaid confessional statements of the co-accused, the involvement of the appellant in the conspiracy is established inasmuch as:
(i) The appellant participated in the landing at Shekhadi where arms and explosives were smuggled into India for the purpose of committing terrorist acts;
(ii) The appellant went to Pakistan via Dubai and participated in the weapons training;
(iii) The appellant participated in various conspiratorial meetings held in Dubai as well as in India including the meeting at the residence of A-96 where groups were made and final shape to the plan for blasts at various places in Bombay was discussed;
(iv) The appellant was a friend of Javed Chikna (AA);
(v) The involvement of the appellant in the conspiracy was very deep;
(vi) He participated in all the stages of conspiracy, namely, landing, training, planning etc.; and
(vii) He was present at Al-Hussaini building on the night intervening 11/12.03.1993 when activity of filling of RDX in vehicles was going on.
Deposition of Prosecution Witnesses:
445. 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 follows:
Deposition of Mohd. Usman Jan Khan (PW-2)
445.1 We have carefully gone through his evidence implicating the appellant (A-100). The relevant material in his evidence is as follows:-
(i) PW-2 knew the appellant;
(ii) PW-2 identified the appellant in Court;
(iii) The appellant participated in the landing at Shekhadi;
(iv) The appellant participated in weapons training at Pakistan;
(v) After returning from the training camp to Dubai, at the instance of Tiger Memon, PW-2 along with the appellant and others took oath of maintaining secrecy by swearing on the Quran;
(vi) The appellant was present in the conspiratorial meeting held at Shakils residence wherein Tiger Memon formed groups for surveying targets. PW-2, A-64 and the appellant were in one group and were assigned the task of surveying Sena Bhavan and Sahar Airport;
(vii) PW-2 went along with the appellant to survey Shiv Sena Bhavan and Sahar Airport on 08.03.1993, at which time, the appellant told him that he would not throw hand grenades on the Aircrafts at Sahar Airport since it was a dangerous assignment. However, he expressed his willingness to do the work at Sena Bhavan;
(viii) The appellant participated in the conspiratorial meeting held at Babloos residence on 08.03.1993.
445.2 The above deposition of PW-2, the Approver, corroborates with the confessional statements of the co-accused persons as well as the confession of the appellant. The confession of the appellant read with the confessions of various co-accused persons along with the evidence of PW-2 substantiate the charges framed against him.
Deposition of API A.S. Narote (PW-243)
445.3 At the relevant time, PW-243 was on Immigration duty and proved the departure of the appellant to Dubai from Bombay on 11.02.1993. The relevant entries on the Embarkation Card (X-400) concerning the departure have been marked as Exh. Nos. 1053, 1053-A, 1053-A(1) and 1053-A(2).
Deposition of PSI PE Ramgude (PW-207)
445.4 PW-207 proved the arrival of the appellant to Bombay on 03.03.1993 from Dubai. The relevant endorsements for the same are on the Disembarkation Card (X-701).
Training in Pakistan:
446. With respect to the training at Pakistan, the confessional statements of co-accused persons against the appellant including his own confession are duly corroborated with the aforesaid depositions of the officers on Immigration duty who testified about the departure of the appellant to Dubai and his arrival at Bombay.
447. To undergo weapons training as a part of the conspiracy and to further the conspiracy to cause terrorist acts in India constitutes an offence. The aforesaid evidence divulge that the appellant along with other co-conspirators was given the said training to equip himself to commit terrorist acts in Bombay and, therefore, he was rightfully convicted for the same. 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 had committed various offences.
Sentence:
448. The appellant was given full opportunity to defend himself on the question of quantum of sentence. His statement was recorded on 10.10.2006 in which he prayed that the following factors, amongst others, may be considered while determining his sentence:
(i) On the date of the incident, he was 26 years old and was selling bananas on the street;
(ii) He is suffering from a pancreatic ailment and dependent on drugs;
(iii) He has been in custody since his arrest except when he was released on interim bail on 3 occasions on the ground of medical treatment; and
(iv) During the bail period, he has not committed any offence or violated any condition imposed by the Court and during this period, he was earning his livelihood and bearing his medical expenses by selling bananas.
449. Ms. Farhana Shah, learned counsel appearing for the appellant while reiterating the same and after taking us through the confession made by the appellant and the confessional statements of co-accused, meticulously pointed out that even if we accept the prosecution case about the participation of the appellant in the training, unloading of weapons, visiting Dubai and Pakistan for training and participation in certain meetings, the appellant merely witnessed the filling of RDX and he was not one amongst the persons who filled all those explosive materials. With regard to the above, in the light of the evidence in the form of his own confession and confessional statement of co-accused persons, it cannot be claimed that he merely witnessed the incident when his presence is evidently proved by acceptable materials.
450. On the other hand, learned senior counsel appearing for the CBI pointed out that there is no need to show any leniency since after realizing explosions that had taken place in Bombay on 12.03.1993, the appellant (A-100) had absconded and remained away from the clutches of law until he was arrested by the police. It is also pointed out that so far he has served nearly 15 years as pointed out by the counsel for the appellant.
451. Before considering the claim of both the sides, it is useful to refer the conclusion of the Designated Judge while determining the quantum of sentence. After stating all the details and narrating the entire events, the Designated Judge observed at page 41049 as under:
916) ..Thus in short though some leniency will be required to be shown to A-100 due to himself having not continued till end of commission of final acts achieving the object of conspiracy, still he will be liable for the due punishment as warranted for the acts committed by him.
452. Taking note of the above observation of the Designated Judge and of the fact that there is no dispute about his participation in the training, evidence disclosed that he associated in unloading of weapons and there is no need to show any leniency in awarding sentence.
453. Under these circumstances, we fully agree with the conclusion arrived at by the Designated Court, consequently, the appeals filed by the appellant herein (A-100) are dismissed.
454. For convenience, we have reproduced the conclusion arrived at in respect of all the appeals dealt with under this part in Annexure A appended hereto.
ED.: JJ ACT 2000 & TADA
436. Ms. Farhana Shah, learned counsel for the appellant (A-100) and Mr. Mukul Gupta, learned senior counsel duly assisted by Mr. Satyakam, learned counsel for the respondent-CBI.
437. These appeals are directed against the final judgment and order of conviction and sentence dated 06.10.2006 and 05.06.2007 respectively, whereby the appellant (A-100) was found guilty and was 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:
438. A common charge of conspiracy was framed against all the co- conspirators including the appellant (A-100). The material part of the said charge is reproduced herein:
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.
438.1 In addition to the above-said principal charge of conspiracy, the appellant was also charged on the following counts:
At head Secondly;
(a) He participated in the landing and transportation of arms, ammunition and explosives smuggled into India by Tiger Memon at Shekhadi;
(b) He took training in Pakistan in handling of arms, ammunitions and explosives for committing terrorist acts;
(c) He attended the conspiratorial meetings held by Tiger Memon at the residence of Nasir Ahmed @ Babloo and Ms. Mobina Baya; and
(d) He participated in filling RDX in vehicles with the object of causing explosions in Bombay.
439. The charges mentioned above were proved against the appellant (A-100). 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
440. The evidence against the appellant (A-100) 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 Parvez Mohammed Parvez Zulfikar Qureshi (A-100)
441. Confessional statement of the appellant (A-100) under Section 15 of TADA was 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. The following facts emerge from the said confessional statement:-
(i) He was a close friend of Javed Chikna (AA). After the riots, one day, Javed Chikna asked him if he had a passport, to which, he replied in the affirmative. Thereafter, in the first week of February, Javed Chikna told him that he would take him to Dubai for a trip and that he is making arrangements for the same.
(ii) In the second week of February, he along with Javed Chikna, Tiger Memon and others went to Raigad.
(iii) At Raigad, he was given a revolver by Tiger Memon.
(iv) He assisted in the loading and unloading of smuggled arms.
(v) He also went to Waghani Tower alongwith others.
(vi) The aforesaid revolver was taken back from him by Tiger Memon after completion of the landing activity.
(vii) On 11.02.1993, he went to Dubai alongwith Javed Chikna and others.
(viii) He stayed in Dubai for two days and from there, he went to Pakistan.
(ix) In Pakistan, Javed Chikna spoke to him regarding taking revenge for the demolition of Babri Masjid.
(x) He underwent weapons training at Pakistan. He also met Niyaz Mohammed @ Aslam Iqbal Ahmed Shaikh (A-98) there.
(xi) On completion of the training, he along with some others left Pakistan and reached Dubai on 02.03.1993.
(xii) Tiger Memon also returned to Dubai from Pakistan, and thereafter, at his instance, he (A-100) and others took oath of maintaining secrecy and committing Jehad for the sake of Islam. Further, Tiger Memon spoke about the atrocities committed on Muslims during the communal riots in Bombay and taking revenge for the same.
(xiii) On 03.03.1993, he returned to Bombay alongwith others.
(xiv) On 09.03.1993, he attended the conspiratorial meeting held by Tiger Memon at Bandra wherein Tiger distributed Rs. 5,000/- to everyone present there for celebrating Eid. A-98 was also present in the said meeting.
(xv) On the intervening night of 11/12.03.1993, he was present at Tiger Memons residence at Al-Hussaini where many other co-accused were also present and he saw some of them loading some goods in a jeep.
(xvi) He went to Ajmer alongwith A-98.
442. The prosecution highlighted that the appellant (A-100) 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:
443. Apart from his own confession, the involvement of the appellant (A-100) 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-100) are summarized hereinbelow:
Confessional Statement of Asgar Yusuf Mukadam (A-10)
443.1 Confessional statement of A-10 under Section 15 of TADA was recorded on 23.04.1994 (18:00 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. A-10 confessed that he handed over the tickets and passport of the appellant and two other co-accused, namely, Farooq and Salim and further that they were dropped at the Airport by him.
Confessional Statement of Parvez Nazir Ahmed Shaikh (A-12)
443.2 Confessional statement of A-12 under Section 15 of TADA was recorded on 18.04.1993 (14:00 hrs.) and 21.04.1993 (06:50 hrs.) by Shri Prem Krishna Jain (PW-189), the then DCP, Zone X, Bombay. The said confessional statement reveals the involvement of the appellant in the landing at Shekhadi.
Confessional Statement of Bashir Ahmed Usman Gani Khairulla (A-13)
443.3 Confessional statement of A-13 under Section 15 of TADA was recorded on 16.05.1993 (10:30 hrs.) and 18.05.1993 (17:15 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. The said confessional statement reveals the participation/presence of the appellant in the conspiratorial meeting held at the residence of Mobina @ Bayamoosa Bhiwandiwala (A-96) at Bandra.
Confessional Statement of Mohd. Farooq Mohd. Yusuf Pawale (A-16)
443.4 Confessional statement of A-16 under Section 15 of TADA was 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 said confessional statement of A-16, with reference to the appellant, reveals as under:
(i) A-16 knew the appellant as a friend of Javed Chikna (AA). The appellant used to sell charas (narcotic substance).
(ii) He participated in the landing at Shekhadi.
(iii) He was given a pistol by Tiger Memon at Shekhadi.
(iv) He participated in the weapons training at Pakistan.
Confessional Statement of Shahnawaz Abdul Kadar Qureshi (A-29)
443.5 Confessional statement of A-29 under Section 15 of TADA was 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 said confessional statement of A-29 with reference to the appellant reveals as under:
(i) He participated in the landing at Shekhadi.
(ii) He participated in the weapons training at Pakistan.
(iii) He was present at Al-Hussaini building on the night intervening 11.03.1993.
Confessional Statement of Zakir Hussain Noor Mohd. Shaikh (A-32)
443.6 Confessional statement of A-32 under Section 15 of TADA was 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 said confessional statement of A-32 with reference to the appellant reveals as under:
(i) He participated in the weapons training at Pakistan.
(ii) He took oath on holy Quran that whatever he has learnt, did or happened, he will not disclose it to anyone on reaching Bombay.
Confessional Statement of Abdul Akhtar Khan (A-36)
443.7 Confessional statement of A-36 under Section 15 of TADA was 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. A-36, with reference to the appellant, stated that he participated in the weapons training at Pakistan.
Confessional Statement of Feroz @ Akram Amani Malik (A-39)
443.8 Confessional statement of A-39 under Section 15 of TADA was 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 (A-100) 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 Sherali Barmare (A-49)
443.9 Confessional statement of A-49 under Section 15 of TADA was 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 said confession of A-49 with reference to the appellant (A-100) 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)
443.10 Confessional statement of A-52 under Section 15 of TADA was recorded on 15.04.1993 and 18.04.1993 by Mr. P.D. Pawar (PW-185), the then DCP, Zone V, Bombay. The said confession of A-52 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 for the loss caused to the Muslims.
(iii) He returned from Dubai on 03.03.1993.
(iv) All the co-accused persons who underwent the abovesaid 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.
(v) He was present at Al-Hussaini building on 11.03.1993.
Confessional Statement of Shaikh Ali Shaikh Umar (A-57)
443.11 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 said confession of A-57 with reference to the appellant reveals as under:
(i) The appellant was present at Soda factory.
(ii) The appellant participated in the landing at Shekhadi.
(iii) The appellant participated in the conspiratorial meeting at Bandra.
Confessional Statement of Nasir Abdul Kadar Kewal @ Nasir Dhakla (A-64)
443.12 Confessional statement of A-64 under section 15 of TADA was recorded on 22.01.1995 and 24.01.1995 by Shri HC Singh (PW-474), the then Superintendent of Police, CBI/SPE/STF, New Delhi. The said confession of A- 64 with reference to the appellant (A-100) reveals as under:
(i) He participated in the landing at Shekhadi.
(ii) He participated in the weapons training that took place at Pakistan.
(iii) He attended the conspiratorial meeting at Mobinas residence.
Confessional Statement of Niyaz Mohd. @ Aslam Iqbal Ahmed Shaikh (A-98)
443.13 Confessional statement of A-98 under Section 15 of TADA was recorded 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 said confession of A- 98 with reference to the appellant reveals as under:-
(i) The appellant participated in the training in handling of arms and ammunitions and explosive at Pakistan.
(ii) He took oath for taking revenge.
(iii) He attended the conspiratorial meeting at the residence of Mobina Baya (A-96).
444. A perusal of the confessional statements of all the above accused, viz., A-10, A-12, A-13, A-16, A-29, A-32, A-36, A-39, A-49, A-52, A-57, A-64 and A-98 clearly establish the fact that it corroborate with the confessional statement of the appellant (A-100). After consideration of all the abovesaid confessional statements of the co-accused, the involvement of the appellant in the conspiracy is established inasmuch as:
(i) The appellant participated in the landing at Shekhadi where arms and explosives were smuggled into India for the purpose of committing terrorist acts;
(ii) The appellant went to Pakistan via Dubai and participated in the weapons training;
(iii) The appellant participated in various conspiratorial meetings held in Dubai as well as in India including the meeting at the residence of A-96 where groups were made and final shape to the plan for blasts at various places in Bombay was discussed;
(iv) The appellant was a friend of Javed Chikna (AA);
(v) The involvement of the appellant in the conspiracy was very deep;
(vi) He participated in all the stages of conspiracy, namely, landing, training, planning etc.; and
(vii) He was present at Al-Hussaini building on the night intervening 11/12.03.1993 when activity of filling of RDX in vehicles was going on.
Deposition of Prosecution Witnesses:
445. 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 follows:
Deposition of Mohd. Usman Jan Khan (PW-2)
445.1 We have carefully gone through his evidence implicating the appellant (A-100). The relevant material in his evidence is as follows:-
(i) PW-2 knew the appellant;
(ii) PW-2 identified the appellant in Court;
(iii) The appellant participated in the landing at Shekhadi;
(iv) The appellant participated in weapons training at Pakistan;
(v) After returning from the training camp to Dubai, at the instance of Tiger Memon, PW-2 along with the appellant and others took oath of maintaining secrecy by swearing on the Quran;
(vi) The appellant was present in the conspiratorial meeting held at Shakils residence wherein Tiger Memon formed groups for surveying targets. PW-2, A-64 and the appellant were in one group and were assigned the task of surveying Sena Bhavan and Sahar Airport;
(vii) PW-2 went along with the appellant to survey Shiv Sena Bhavan and Sahar Airport on 08.03.1993, at which time, the appellant told him that he would not throw hand grenades on the Aircrafts at Sahar Airport since it was a dangerous assignment. However, he expressed his willingness to do the work at Sena Bhavan;
(viii) The appellant participated in the conspiratorial meeting held at Babloos residence on 08.03.1993.
445.2 The above deposition of PW-2, the Approver, corroborates with the confessional statements of the co-accused persons as well as the confession of the appellant. The confession of the appellant read with the confessions of various co-accused persons along with the evidence of PW-2 substantiate the charges framed against him.
Deposition of API A.S. Narote (PW-243)
445.3 At the relevant time, PW-243 was on Immigration duty and proved the departure of the appellant to Dubai from Bombay on 11.02.1993. The relevant entries on the Embarkation Card (X-400) concerning the departure have been marked as Exh. Nos. 1053, 1053-A, 1053-A(1) and 1053-A(2).
Deposition of PSI PE Ramgude (PW-207)
445.4 PW-207 proved the arrival of the appellant to Bombay on 03.03.1993 from Dubai. The relevant endorsements for the same are on the Disembarkation Card (X-701).
Training in Pakistan:
446. With respect to the training at Pakistan, the confessional statements of co-accused persons against the appellant including his own confession are duly corroborated with the aforesaid depositions of the officers on Immigration duty who testified about the departure of the appellant to Dubai and his arrival at Bombay.
447. To undergo weapons training as a part of the conspiracy and to further the conspiracy to cause terrorist acts in India constitutes an offence. The aforesaid evidence divulge that the appellant along with other co-conspirators was given the said training to equip himself to commit terrorist acts in Bombay and, therefore, he was rightfully convicted for the same. 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 had committed various offences.
Sentence:
448. The appellant was given full opportunity to defend himself on the question of quantum of sentence. His statement was recorded on 10.10.2006 in which he prayed that the following factors, amongst others, may be considered while determining his sentence:
(i) On the date of the incident, he was 26 years old and was selling bananas on the street;
(ii) He is suffering from a pancreatic ailment and dependent on drugs;
(iii) He has been in custody since his arrest except when he was released on interim bail on 3 occasions on the ground of medical treatment; and
(iv) During the bail period, he has not committed any offence or violated any condition imposed by the Court and during this period, he was earning his livelihood and bearing his medical expenses by selling bananas.
449. Ms. Farhana Shah, learned counsel appearing for the appellant while reiterating the same and after taking us through the confession made by the appellant and the confessional statements of co-accused, meticulously pointed out that even if we accept the prosecution case about the participation of the appellant in the training, unloading of weapons, visiting Dubai and Pakistan for training and participation in certain meetings, the appellant merely witnessed the filling of RDX and he was not one amongst the persons who filled all those explosive materials. With regard to the above, in the light of the evidence in the form of his own confession and confessional statement of co-accused persons, it cannot be claimed that he merely witnessed the incident when his presence is evidently proved by acceptable materials.
450. On the other hand, learned senior counsel appearing for the CBI pointed out that there is no need to show any leniency since after realizing explosions that had taken place in Bombay on 12.03.1993, the appellant (A-100) had absconded and remained away from the clutches of law until he was arrested by the police. It is also pointed out that so far he has served nearly 15 years as pointed out by the counsel for the appellant.
451. Before considering the claim of both the sides, it is useful to refer the conclusion of the Designated Judge while determining the quantum of sentence. After stating all the details and narrating the entire events, the Designated Judge observed at page 41049 as under:
916) ..Thus in short though some leniency will be required to be shown to A-100 due to himself having not continued till end of commission of final acts achieving the object of conspiracy, still he will be liable for the due punishment as warranted for the acts committed by him.
452. Taking note of the above observation of the Designated Judge and of the fact that there is no dispute about his participation in the training, evidence disclosed that he associated in unloading of weapons and there is no need to show any leniency in awarding sentence.
453. Under these circumstances, we fully agree with the conclusion arrived at by the Designated Court, consequently, the appeals filed by the appellant herein (A-100) are dismissed.
454. For convenience, we have reproduced the conclusion arrived at in respect of all the appeals dealt with under this part in Annexure A appended hereto.
ED.: JJ ACT 2000 & TADA
