Red Fort Case

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IN THE COURT OF SH. O.P. SAINI : ASJ : DELHI

S.Cs. No. 01/05, 02/05, 05/05, 07/05, 08/05, 09/05, 10/05 &11/05

State Vs.

1. Md. Arif @ Ashfaq @ Abu Hamad s/o Md. Akram

2. Rehmana Yusuf Farooqui d/o Nawab Mohammed

Yusuf Farooqui

3. Nazir Ahmad Qasid s/o Gulam Mohammad Qasid

4. Farooq Ahmed Qasid s/o Nazir Ahmad Qasid

5. Babbar Mohsin Baghwala s/o Jaleel Ahmad

6. Devender Singh s/o Bhawani Singh

7. Shehenshah Alam s/o Sh. Anwar Hussain

8. Rajeev Kumar Malhotra s/o Kishan Chand

9. Matloob Alam s/o Mehboob Alam

10. Mool Chand Sharma s/o Har Chand

11. Sadakat Ali s/o Abdul Ali

12. Sabir @ Sabarulla @ Afgani (P.O.)

13. Sher Zaman Afgani s/o Mohd. Raza (P.O.)

14. Abu Haider (P.O.)

15. Abu Shukher (P.O.)

16. Abu Saad (P.O.)

17. Zahur Ahmad Qasid s/o Gulam Mohd. Qasid (P.O.)

18. Bilal Ahmad Kawa s/o Ali Mohd. Kawa (P.O.)

19. Athruddin @ Athar Ali @ Salim @ Abdulla s/o

Ahmuddin (P.O.)

FIR No. 688/00, PS Kotwali

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20. Abu Bilal @ Abu Nasir @ Dar (Dead)

21. Abu Shamal (Dead)

22. Abu Suffian (Dead)

FIR NO. 688/2000 P.S. Kotwali

U/s 302/307/186/353/120B/121/121-A/216/201 IPC

25/27/54/59 A. Act & 14 F. Act and4/5 Exp. Sub. Act & u/s 420/468/471/474/34 IPC

State Vs. Md. Arif @ Ashfaq @ Abu Hamad S/o Md. Akram

S.C. No. 4/05FIR No. 03/2001U/s 4/5 Explosive Substances Act

P.S. New Friends Colony


S.C. No. 3/05FIR No. 419/2001U/s 25/54/59 Arms ActP.S. Kalyan Puri.

State Vs. Matloob Alam s/o Mehboob Alam

S.C. No. 6/05FIR No. 65/2001U/s 420/468/471/474/34 IPC



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J U D G M E N T :-

1. This judgment shall dispose of the aforesaid cases as

the facts of the cases are inter-connected as they arise from the

same incident and the entire evidence has been recorded in the

main case, FIR No. 688/00, Police Station Kotwali, after the

cases were ordered to be clubbed together.

(A) BRIEF FACTS AND INVESTIGATION :-

2. Brief facts of the case as made out from the record are

that on 22.12.2000 at about 9.00 pm, a firing incident took

place inside Red Fort, in which three Army personnels namely,

civilian sentry Abdulah Thakur, Naik Ashok Kumar and

Rifleman Uma Shanker, posted with 7th Rajputana Rifles, lost

their lives. After carrying out the firing, the culprits escaped

from the rear side of the Red Fort.

3. Information was received in Police Station Kotwali about the

incident at about 9.25 pm vide DD entry No. 19-A, which was

assigned to SI Rajender Singh for inquiry and investigation. He

along with Ct. Jitender reached the spot. There he came to

know that some unknown persons had intruded into Red Fort,

carried out firing, due to which Abdullah Thakur and Uma


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Shanker lost their lives and Ashok Kumar was critically injured

and had since been removed to hospital, and thereafter, the

intruders escaped towards the rear side of the Red Fort. Capt.

S.P. Patvardhan was present on the spot. In the meanwhile Ins.

Roop Lal, SHO of Police Station Kotwali, also reached the

spot.

4. Capt. S.P. Patvardhan gave his written statement to the SHO

Ins. Roop Lal as under :-

“ 7 Raj Rifle” Red Fort Delhi-06 22 Dec. 2000

SHO Kotwali PSDelhi.

1. At 21/05 Hrs. I (Capt. S.P. Patvardhan) was in my

room in the officers mess and heard firing from the

general direction of the M.T. On coming out, I learnt

the following .

2 Around 21/05 hrs on 22 nd Dec. 2000 (Friday) two

persons in dark clothing and armed with AK 56/47

Rifles entered the Red Fort from direction of Saleem

Garh gate/Yamuna Bridge. While moving inside they

came across a civilian sentry by the name of Abdullah

Thakur deployed on duty at 339 (Independent) supply

platoon and fired a burst hitting him in the chest and the


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individual died on the spot. Thereafter the intruders ran

and near 7th Raj Rifles MT lines came across Rifleman

(barber) Uma Shanker and fired a burst at him due to

which the individual died. Thereafter the intruders ran

into a room in the unit lines close to the office complex

and shot Naik Ashok Kumar, who was seriously

injured. The intruders then ran towards ASI Museaum

(Museum) complex. They fired in the direction of

police guard room located inside the museaum.

(Museum) At this stage they were fired upon by the

Army quick reaction team. However, intruders escaped

into wooded area close to the Ring Road (Mahatma

Gandhi Marg). We have recovered some fired/unfired

ammunition which we will produce. The area of Red

Fort has been sealed off by the army and search of the

area is being carried out. At the same time, Police

which had been alerted and has cordoned off the area.

This is for your information and legal action please. At

the time of firing, I was inside my room in the officers

mess.

Sd/- (S.P. PATWARDHAN) CAPTAIN, 7th RAJ RIFLE, RED FORT, DELHI-06.”

5. Ins. Roop Lal along with staff inspected the scene of crime


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and, thereafter, made his endorsement on the above statement

of Capt. S.P. Patvardhan and sent the same to the Police Station

through SI Rajender Singh for getting the case registered. He

got the instant case registered vide FIR no. 688/00, returned to

the spot and handed over the rukka and carbon copy of the FIR

to Ins. Roop Lal, who had taken over the investigation. Senior

officials were informed about the incident and they also

reached the spot. Dog squad, bomb disposal squad, crime

team and photographer were summoned to the spot and reached

there.

6. Entire scene of crime was inspected and photographed. From

the spot, blood sample, earth control sample, empty cases of

fired bullets and a slipper and wrist-watch of Naik Ashok

Kumar were lifted, sealed and seized. An iron rack was also hit

by a bullet and that portion was also cut off from the rack and

sealed and seized. One fired lead piece was also lifted from the

spot and was sealed and seized. Blood-stained clothes of

Abdullah Thakur and Uma Shanker were also seized from the

spot.

7. Information was received from the hospital that Naik Ashok


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Kumar had expired. His clothes were also brought to the spot

and these were also seized. Thereafter, inquest proceedings

were conducted on the dead bodies of Uma Shanker and

Abdullah Thakur and were sent for postmortem. From the

spot, thirty-six fired cases were collected and seized. One live

cartridge was also found and it was also seized. Capt. S.P.

Patvardhan also handed over three magazines to the police and

one of the magazines was found with twenty-eight live

cartridges. These magazines were also found lying inside the

Red Fort. Forty fired cases were also handed over to the

police. Ins. Roop Lal prepared sketch thereof and seized the

same. SI Sanjay Kumar, who was also present inside the Red

Fort, also found a polythene bag containing currency notes

worth Rs. 1,415/- consisting of ten notes of Rs. 100/- each,

eight currency notes of Rs. 50/- each, one note of Rs. 10/- and

one note of Rs. 5/-. A paper slip with telephone no.

9811278510 was also found. The slip was pasted on a paper

and was taken into possession. The currency notes were also

taken into police possession. A rope measuring about 50 feet

and a cap were also recovered from inside the Red Fort and


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same were also seized.

8. On 23.12.2000 at about 10.30 am, information was received

about a rifle lying near Vijaya Ghat. Ins. Roop Lal reached the

spot and summoned crime team, dog squad, finger print experts

and CFSL team. The rifle was photographed and finger prints

were lifted. magazine of the rifle was taken out and it was

found to contain seven rounds. Sketch of the rifle as well as

cartridges were prepared and same were also seized. Inquest

proceedings were conducted on the dead body of Naik Ashok

Kumar, who had since expired in the hospital. Postmortem

was conducted on the dead bodies of Naik Ashok kumar,

Abdullah Thakur and Uma Shankar and, thereafter, dead

bodies were handed over to Army Authorities. The hospital

authorities had also handed over eight sealed parcel to him,

which were also seized and these contained blood samples of

the three deceased army personnels. Site plans of the scene of

occurrence as well as place of recovery at Vijaya Ghat were

also prepared.

9. Record of telephone number 9811278510, the number which

was found written on a paper chit on the spot, was searched and


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examined by the police. An examination of the call details of

this number, revealed that a large number of calls were made

from this telephone to telephone No. 2720223, installed at 308-

A, DDA Flats, Gazhi Pur, Delhi and telephone number

6315904, installed at 18-C, Gaffur Nagar, Okhla, the premises

from which a computer center “Knowledge Plus” was being

run. The aforesaid telephones number as well as the premises

were kept under surveillance. It was revealed that this

computer center was being run by one Md. Arif @ Ashfaq ,

residing at Gazhi Pur. In the late evening of 25.12.2000,

information was received that Md. Arif @ Ashfaq , owner of

“Knowledge Plus Computer Center” was seen at Batla House,

Okhla, and had left for Gazhi pur.

10. At about 11.00 pm, a raid was conducted at 308-A, DDA Flat,

Gazhi Pur, but Md. Arif @ Ashfaq @ Ashaq was not found.

However, three ladies were present at the house including his

wife Rehmana. Ins. Ved Parkash and his staff decided to sit

inside the flat, whereas other members of police party would

stay at a distance from the flat waiting for the arrival of Md.

Arif @ Ashfaq . At about 12.40 am, a person was seen


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entering the aforesaid flat and he was apprehended. He turned

out to be Md. Arif @ Ashfaq , owner of “Knowledge Plus

Computer Center”.

11. In his personal search, a 9 mm pistol with six live rounds and a

mobile set, (motorola) with telephone no. 9811278510 were

recovered. Both these items were seized. Ins. Harender Singh

was summoned to the spot and he conducted further

proceedings regarding the recovery of pistol with six rounds

from Md. Arif @ Ashfaq . He prepared a rukka and got FIR

No. 419/00 registered at Police Station Kalyan Puri. He also

seized the pistol in this case and recorded a disclosure

statement of accused Md. Arif @ Ashfaq , after formally

arresting him in this case. In the disclosure statement, he

disclosed about the incident inside Red Fort, the weapons

dumped by them after the incident as well as his hideout at G-

73, Muradi Road, Delhi.

12. House search of flat no. 308-A, DDA Flat, Gazhi Pur was

conducted. During house-sarch ration card, driving licence,

cheque-book of HDFC bank and ATM card of Md. Arif @

Ashfaq were recovered. Three pay-in-slips, passport of


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Rehmana Yusuf Farukhi, her Identity-card of a college and

cheque book of SBI of Rehmana Yusuf Farukhi were

recovered. One cash deposit slip of Standard Chartered Bank,

a personal diary, a digital diary and some of other articles were

recovered and all the aforesaid articles were seized.

13. A raid was conducted during the night at G-73, Muradi Road,

Batla House, Jamia Nagar, Okhla, Delhi for apprehending the

associates of accused Md. Arif @ Ashfaq . However, the

aforesaid house was found locked. At about 5.15 am, a person

who was later on identified as Abu Shamal @ Faisal by Md.

Arif @ Ashfaq , was seen entering the aforesaid house. He

closed the door immediately. The police party knocked at the

door and he was asked to open the door, but instead of opening

of door, he started firing from inside the house. Police party

also retaliated by firing. The door of the house broke away

during the incident. In the firing that took place, Abu Shamal

@ Faisal died and his dead body was identified by accused Md.

Arif @ Ashfaq , who was also with the police party. During

the search of the house, one AK-56 rifle, one magazine with

thirty cartridges, two hand-grenades, one bandoleer, a military


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colour pouch, and one khaki uniform were recovered. Dead

body of Abu Shamal was removed to hospital and postmortem

was got conducted. As police party was fired upon and arms,

ammunition and explosive were recovered, FIR No. 630/00,

Police Station New Friends Colony was registered about the

incident u/s 186/353/307 IPC read with Sections 4 & 5 of

Explosive Substances Act and Sections 25/27 of Arms Act.

14. Accused Md. Arif @ Ashfaq @ Abu Hamad and his wife

Rehmana Yusuf Farukhi were arrested in case FIR No. 688/00.

The allegations against accused Rehmana Yusuf Farukhi are

that she knew fully well that accused Md. Arif @ Ashfaq was

a Pakistan National and had come to India for carrying out

terrorist act and despite that, she provided her shelter and

married him and for that she had received money from him

including Rs. 2,80,000/- deposited in her account at State Bank

of India, Gazhipur Branch, Delhi. She was a party to the

conspiracy to carry out terrorist acts in Delhi.

15. As per the disclosure statement of Md. Arif @ Ashfaq , the

police party further took him to the rear side of the Red Fort,

where on his pointing out, one AK-56 rifle, two magazines, one


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bandoleer and four hand-grenades were recovered. Bomb

disposal squad, CFSL team and photographer were summoned

to the spot. In one magazine, thirty live cartridges, while in

other two live cartridges were found. A kitchen knife was also

found in the bandoleer. The weapons were examined for finger

prints, but none could be detected. The four hand-grenades

were defused and after checking, inspecting and photographing

the same, these were seized. Sketches of the rifle, magazines

and one live round were prepared before seizure. A site plan of

the place of recovery was also prepared.

16. On 01.01.2001, accused Md. Arif @ Ashfaq made further

disclosure regarding three hand-grenades being concealed by

him and his associates in the area of Jamia Milia University,

behind his “Knowledge Plus Computer Center”. Consequent

to the disclosure statement, accused Md. Arif @ Ashfaq got

three hand-grenades recovered from a place near boundary

wall of Jamia Milia University, near to the staff quarters. The

three hand-grenades were seized, a rukka was prepared and

FIR No. 3/01, PS New Friends Colony was got registered u/s 4

& 5 Explosive Substances Act and investigation was handed


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over to SI Sunder Lal. A site plan was also prepared of the

place of recovery.

17. As per the information provided by the accused regarding

preparation of his driving licence, accused Devender Singh,

Manager of Seven Star Motor Driving College, Sarai Jullena

Delhi, was arrested on 04.01.2001. On the same day,

Shahanshah Alam of Akashdeep Motor Driving College,

Ghaziabad was also arrested for helping accused Md. Arif @

Ashfaq for procuring the driving licence without possessing

the requisite documents, from Ghaziabad Transport Authority.

Rajiv Kumar Malhotra of Star Motor Driving College,

Ghaziabad was arrested on 07.01.2001, also for helping

accused Md. Arif @ Ashfaq in procuring the driving licence.

The allegations of the prosecution are that accused Md. Arif @

Ashfaq obtained training for driving at Seven Star Motor

Driving College, Sarai Jullena, where accused Devender Singh

was manager. He obtained Rs. 2,000/- from accused Md. Arif

@ Ashfaq knowing fully well that accused Md. Arif @ Ashfaq

was not having valid documents for getting a driving licence

prepared in his name and out of that Rs. 2,000/-, he passed Rs.


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900/- and particulars of Md. Arif @ Ashfaq to Rajiv Malhotra,

owner of Star Motor Driving College Ghaziabad, for getting a

licence prepared. Accused Rajiv Malhotra further passed Rs.

600/- and particulars of Md. Arif @ Ashfaq to accused

Shahanshah Alam, an employee of Akashdeep Motor Driving

College Ghaziabad, for getting a driving licence prepared for

accused Md. Arif @ Ashfaq from Ghaziabad Transport

Authority. It is alleged that all these three accused knew the

identity and intention of accused Md. Arif @ Ashfaq and they

shared the same.

18. On 04.01.2001, accused Babar Mohsin was also arrested. The

allegations against him are that he provided shelter to the

accused Md. Arif @ Ashfaq , when he came to Delhi in

February-March 2000 for preparing base for carrying out

terrorist acts in Delhi and also helped him in procuring a room

on rent. He also moved accused Md. Arif @ Ashfaq around

the city of Delhi on his motor-cycle to show him important

landmarks of the city for making them target of terrorist

attacks. It is alleged that he was also a party to the conspiracy

to carry out terrorist acts in Delhi. A letter allegedly written


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by accused Md. Arif @ Ashfaq to him thanking him for the

help provided to him (Md. Arif @ Ashfaq ) during his stay in

Delhi, was recovered from his (Babar Mohsin) motor-cycle.

19. Accused Md. Arif @ Ashfaq had further disclosed that he

also got his fake ration card prepared through Matloob Alam,

Fair Price Shop owner at Okhla. Matloob Alam was

questioned and was arrested in this case on 13.04.2001. It is

alleged that during investigation, it came to light that he had

helped accused Md. Arif @ Ashfaq in getting the ration card

prepared knowing fully well the identity and purpose of

procuring the fake ration card.

20. The fake ration card of accused Md. Arif @ Ashfaq was

allegedly got prepared by accused Matloob Alam with the help

of another accused Mool Chand Sharma, who was Ration

Inspector of circle-6, Okhla, Delhi, at that time. It is alleged

that accused Mool Chand Sharma also knew the purpose for

which the fake ration card was prepared and as such he and

accused Matloob Alam were the party to conspiracy to carry

out terrorist acts in Delhi. He was arrested on 18.04.2001.

21. Accused Sadakat Ali was arrested on 22.12.2001 during the


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execution of non-bailable warrants issued against him by the

court after challan was filed against him without arrest on

07.12.2001. He was arrested on the allegations that he had let

out his premises No. 18-C, Gaffur Nagar, Okhla, Delhi to Md.

Arif @ Ashfaq for running the computer center knowingly

fully well his identity and object. He knew that Md. Arif @

Ashfaq was a Pakistan National and conspired with him in

carrying out the attack inside the Red Fort. He was constantly

in touch with him through telephone and his house was being

visited by accused Md. Arif @ Ashfaq and Babar Mohsin. It

is alleged that this accused fully shared the aims and objectives

of the conspiracy and also sheltered the conspirators before and

after the incident.

22. Accused Nazir Ahmad Quasid and Farukh Ahmad Quasid

have been arrested on the allegations that they along with

accused Md. Arif @ Ashfaq @ Abu Hamad, Abu Bilal @

Bilal Ahmad @ Dar, (P.O.), since killed, Abu Haider, Abu

Sad, Abu Shuakar, Abu Suffian (since killed) Abu Shamal

(since killed) (all P.O.s and Pakistan nationals) and Sher

Zaman and Sabir @ Sabarulla, both P.O and Afgan nationals,


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Bilal Ahmad Kawa, brother-in-law of Farukh Ahmad Quasid,

Jahur Ahmad Quasid, both resident of Sri Nagar and Attruddin

(P.O.) a resident of Lucknow, all members of Lashkar-e-Toiba,

conspired at their residence at Bagat Kanipur, Badgaon, Sri

Nagar between December 1999 to December 2000 to wage war

against Government of India and for that purpose collected

arms and ammunitions and to attack Army camp inside Red

Fort and to kill anybody who resists their action. It is alleged

that this conspiracy was hatched at the instance of Lashkar-e-

Toiba , which aims at spreading terror in India and to forcibly

separate Jammu & Kashmir from India. For that purpose both

of these accused, who are father and son, had sheltered the

aforesaid accused at their residence as well as concealed the

weapons there. Both the accused used to distribute Hawala

money to the terrorists for financing their activities in India.

Accused Nazir Ahmad Quasid and Farukh Ahmad Quasid were

formally arrested in this case on 29.03.2001 in Kot Bhalwal

Jail, Jammu, where they were detained under Public Safety

Act. Production warrants were issued against the two and they

were produced in the court at Delhi on 03.01.2002.


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23. Accused Md. Arif @ Ashfaq , a Pakistan national, entered

India in December 1999 at the instance of Abu Bilal @ Bilal

Ahmad @ Dar, who was then Dy. Commander of Lashkar-e-

Toiba, Sri Nagar. He (Md. Arif @ Ashfaq ) was sheltered

along with his arms and ammunitions consisting of one AK-47

rifle, four magazines and two hand-grenades at the residence

of Nazir Ahmad Quasid and Farukh Ahmad Quasid. In

January-February 2000, Abu Haider and Md. Arif @ Ashfaq

came to Delhi, at the instance of Abu Bilal @ Bilal Ahmad, for

setting up a base at Delhi. At Delhi, Md. Arif @ Ashfaq

stayed at the house of accused Babar Mohsin. Babar Mohsin

moved him around Delhi on his motor-cycle and showed him

the important places of Delhi and also allegedly joined the

conspiracy for attacking the Army camp inside the Red Fort.

He rented a room at Okhla, Delhi and, thereafter, returned to

Sri Nagar.

24. In May 2000, Md. Arif @ Ashfaq again came to Delhi and

with a view to set up a base for Lashkar-e-Toiba, rented a room

in the house of one Nain Singh in Okhla, opened a computer

center by the name of “Knowledge Plus” at 18-C, Gaffur


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Nagar, Okhla, Delhi, a premises taken on rent by him from

accused Sadakat Ali on a monthly rent of Rs. 4,500/-. He also

took a room on rent at G-73, Muradi Road, belonging to Sh.

Gian Chand Goel, in which also he set up his hideout.

25. During his stay at Delhi, Md. Arif @ Ashfaq got training for

driving at Seven Star Motor Driving College, Sarai Jullena,

where accused Devender Singh was the manager. After getting

training, he allegedly paid Rs. 2,000/- to Devender Singh for

getting a driving licence prepared. Devender Singh spoke to

Rajiv Malhotra, who used to run Star Motor Driving College at

Ghaziabad, for getting driving licence of Md. Arif @ Ashfaq

prepared and handed over to him Rs. 900/- and a photograph of

Md. Arif @ Ashfaq for this purpose. Rajiv Malhotra contacted

Shahanshah Alam, who was an employee of Akash Deep

Motor Driving College, Ghaziabad, for getting the driving

licence prepared from Ghaziabad Transport Authority and paid

him Rs. 600/-. Shahanshah Alam allegedly procured a fake

ration card with address 102, Kela Bhatta, Ghaziabad and a

learner's licence with address B-17, Jungpura, Delhi in the

name of Md. Arif @ Ashfaq Ahmad Khan, and got issued a


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driving licence to him from Ghaziabad Transport Authority.

26. Thereafter, on the basis of this driving licence, in September

2000, Md. Arif @ Ashfaq got account no. 0891000024344

opened in HDFC Bank, New Friends Colony, New Delhi at the

address of 18, Gaffur Nagar, Jamia, Okhla, New Delhi.

27. Md. Arif @ Ashfaq also got a ration card prepared through

accused Matloob Alam at the address of 17/12, Batla House,

Okhla, Delhi. This ration card was allegedly obtained by him

through and with the connivance of Matloob Alam, who used

to run a Fair Price Shop at Okhla in the name of Matloob Store

and Mool Chand Sharma, who was the ration Inspector of that

area.

28. During his stay at Delhi, in response to a matrimonial

advertisement given by Rehmana Yusuf Farukhi, he contacted

her and offered to marry her. It is alleged that he persuaded her

to marry him, though she was sick and elder to him and joined

her in the conspiracy after paying her Rs. 2,80,000/-, which

was deposited in her bank account no. 5817 at State Bank of

India, Gazhi pur, Delhi. Later on, he allegedly married her on

8 th December 2000.


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29. It is alleged that Md. Arif @ Ashfaq was also having a

mobile phone no. 9810263721, which was got recorded by him

in the Seven Star Motor Driving College with address A-18,

Gaffur Nagar, Okhla, New Delhi at the time of joining the

college for training. Later on mobile no. 9811242154 was

given to him by Abu Haider and he used it till November 2000.

Subsequently, he also purchased another mobile telephone with

number 9811278510. He also used to collect Hawala money

for Lashkar-e-Toiba and collected Rs. 13,40,000/- (Rs.

Thirteen lacs & forty thousand only) from Sabir @ Sabarulla

and Rs. 23,00,000/- (Rs. Twenty-three lacs only) from Sher

Zaman, which he used to deposit in the bank accounts no.

32263962 of M/s Nazir Sons, 28552609 of Mr. Bilal Ahmad

Kawa and 32181669 of Farookh Ahmad Quasid, in Standard

Chartered Grindleys Bank, Cannaught Place, New Delhi, which

used to be withdrawn at Sri Nagar by accused Farukh Ahmad

Quasid and Nazir Ahmad Quasid for use in terrorist acts in

India. He also deposited some amount in his own account in

HDFC Bank, New Friends Colony, New Delhi.

30. On 07.12.2000, Abu Haider came to Delhi for carrying out


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suicidal attacks at important places of Delhi and stayed at G-

73, Muradi Road, Okhla, New Delhi. On 11.12.2000, Abu

Bilal spoke to Md. Arif @ Ashfaq on his moblie telephone

number 9811278510 and told him that he along with two

fidayeens (members of suicidal squad) would be coming to

Delhi. On 13.12.2000, Abu Bilal along with fidayeens Abu

Shakur and Abu Shahid, all Pakistan national and members of

Lashkar-e-Toiba came to Delhi armed with AK-56 rifles, four

extra magazines and six hand-grenades and stayed at G-73,

Muradi Road, Okhla, New Delhi. It is alleged that they were

instructed by Lashkar-e-Toiba to carry out attack on Army

camp inside Red Fort and for this purpose, they conducted

recce of the Red Fort. However, Abu Shahid fell sick and

returned to Kashmir. In his place, Abu Haider brought two

fidayeens Abu Saad and Abu Shamal. They also came

equipped with AK-56 Rifles, extra magazines and three hand-

grenades and stayed at G-73, Muradi Road, Delhi. On

21.12.2000 and morning of 22.12.2000, they conducted recce

of Red Fort.

31. In the evening of 22.12.2000, Md. Arif @ Ashfaq @ Abu


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Hamal along with Abu Bilal, Abu Haider, Abu Shakur, Abu

Shamal and Abu Saad went to Red Fort armed with two AK-56

Rifles. Abu Saad and Abu Shamal also put on bandoleers and

carried four hand-grenades and extra magazines each. They

entered the Red Fort through Lahori Gate. Abu Saad and Abu

Shamal took out a rifle each from the bag and concealed under

their jackets. There they bought six tickets of English version

of Light & Sound Program. After watching the show, Md. Arif

@ Ashfaq , Abu Haider, Abu Bilal and Abu Shakur came out

of Red Fort at about 8.30 pm. However, as per the direction of

Md. Arif @ Ashfaq and Abu Bilal, Abu Saad and Abu Shamal

went to attack Army Camp while being armed with AK-56

Rifles and hand-grenades.

32. As per directions, these two militants attacked the Army

Camp inside Red Fort, where seventh Rajputana Rifles were

stationed and in the firing, killed three army jawans i.e.

Abdullah Thakur, Ashok Kumar and Uma Shankar. After

attacking the Army camp, Abu Saad and Abu Shamal jumped

out of the Red Fort from the rear wall of the Red Fort towards

Ring Road, where other four militants were waiting for them.


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Abu Shamal threw his rifle, two Magazines, four hand-

grenades, a knife and bandoleer in the bushes near the rear wall

of the Red Fort and Abu Saad threw his rifle near Vijaya Ghat.

A cap and rope, which were purchased for jumping the wall of

the Red Fort, were also thrown near the rear wall of the Red

Fort. Md. Arif @ Ashfaq informed B.B.C. Delhi and Sri

Nagar about the attack on Red Fort by Lashkar-e-Toiba from

his telephone no. 9811278510. Thereafter, all six returned to

Muradi Road hideout. It is alleged that the attack on the Red

Fort was ordered by Abu Suffian, who was then Distt.

Commander, Lashkar-e-Toiba, Sri Nagar. On 24.12.2000, Abu

Bilal, Abu Haider, Abu Saad and Abu Shakur left Delhi for Sri

Nagar. However, Abu Shamal was left at the Muradi Road

hideout for keeping a watch on the situation.

33. Accused Sabir @ Sabarulla, Sher Zaman (both Afgan

nationals) staying at Delhi, Abu Suffian (Pak National), Abu

Bilal Kawa, brother-in-law of Farukh Ahmad Quasid, Jahur

Ahmad Quasid and Attruddin, a resident of Lucknow are also

alleged to be party to the conspiracy, but could not be

apprehended. Accused Attruddin used to be in contact with


: 26 :

Abu Haider, Abu Suffian and Md. Arif @ Ashfaq . He even

joined Abu Suffian in Kashmir for fighting against the

Security forces. He remained in constant telephonic contact

with Md. Arif. Jahur Ahmad Quasid also provided shelter to

Abu Bilal, Abu Haider, Abu Saad, Abu Shakar, Abu Suffian,

Abu Shahid, Abu Shamal and Md. Arif @ Ashfaq @ Abu

Hamad at his residence in Urdu Bazar, Fateh Kadal, Sri Nagar.

Accused Sabir @ Sabarulla, Sher Zaman, Abu Bilal, Abu

Haider, Abu Shakar. Abu Saad, Jahur Ahmed Quasaid, Bilal

Ahmad Kawa and Attruddin were declared proclaimed

offender. Accused Abu Shamal, Abu Suffian and Abu Bilal

were shot dead in different encounters.

34. As already referred to above, a paper-slip with telephone no.

9811278510 written on it, fell out of the pocket of Abu Saad

near the wall of the Red Fort at the time of jumping, which was

given to him for contacting Abu Haider and Md. Arif @

Ashfaq in case of need. On the basis of this telephone,

accused Md. Arif @ Ashfaq was arrested in the early hours of

26.12.2000 from his hideout at 308-A, DDA Flats, Gazhipur,

Delhi. On the basis of information provided by accused Md.


: 27 :

Arif, Abu Shamal was killed in an encounter on the same at G-

73, Muradi Road and AK-56 rifle & four hand-grenades was

recovered behind the Red Fort and three hand-grenades were

recovered from the area of Jamia Milia University. One AK-

56 rifle along with ammunitions were recovered on 23.12.2000

itself from Vijaya Ghat, on the basis of information provide by

public person. Other accused were arrested subsequently as per

information provided by accused Md. Arif @ Ashfaq . Arms,

ammunition, hand-grenades and other objects and exhibits

recovered and seized in the case, were sealed and deposited in

the Mal Khana on the respective dates of recovery. Similarly,

all samples lifted in the case were also sealed and deposited in

the Mal Khana.

35. In the course of investigation, documents regarding driving

licence, ration card and bank accounts were collected. Record

of transactions and the money deposited in the bank accounts

of Rehmana Yusuf Farukhi, Md. Arif, Nazir Sons, Bilal Ahmad

Qawa and Farukh Ahmad Quasid were also obtained, specimen

signatures of all accused were collected and sent to the

laboratory for examination. The samples collected from the


: 28 :

spot as well as arms, ammunitions and hand-grenades

recovered were also sent for examination to the CFSL. Results

of the examination of the handwriting of various accused as

well as of arms, ammunitions, hand-grenades and various

samples lifted from the spot were collected from the respective

laboratories. Call details of various telephones were obtained

and compared.

36. Sanctions under Section 7 of Explosive Substances Act, 39

Arms Act and Section 196 Cr.P.C were obtained against the

accused from the respective Authorities and Delhi Govt.

Complaints were also filed by ACP M.D. Mehta u/s 188 IPC

against accused Sadakat Ali and under Section 195 Cr.P.C., by

Col. A. Mohan of Rajputana Rifles.

37. In the course of investigation, disclosure statements of the

accused were also record and some recoveries were effected

consequent thereto, photographs were collected and placed on

record, statements of witnesses were recorded and investigation

was completed. Initial investigation of this case was conducted

by Ins. Roop Lal and thereafter, it was transferred to Ins. Hawa

Singh. Finally, the investigation of this case was handed over


: 29 :

to Ins. Surender Kumar Sund.

38. On the conclusion of the investigation, challan against

accused Rehmana Yusuf Farukhi, Shahanshah Alam, Babar

Mohsin, Devender Singh and Rajiv Malhotra was filed in the

court on 23.02.2001. Challan against accused Md. Arif @

Ashfaq was filed in the court on 24.03.2001. Challan against

accused Mool Chand Sharma was filed in the court on

16.06.2001. Challan against accused Matloob Alam was filed

in the court on 21.06.2001. Challan against accused Nazir

Ahmad Quasid and Farukh Ahmad Quasid were filed in the

court on 28.06.2001 . Challan against accused Sadakat Ali

was filed in the court on 07.12.2001.

39. Separate charge sheet was also filed against the proclaimed

offenders in the court on 18.10.2001. Similarly, a

supplementary charge sheet was also filed against accused

Attruddin (since P.O.) on 05.12.2001.

40. On recovery of pistol & six cartridges from accused Md. Arif

@ Ashfaq at the time of his arrest on 26.12.2000, FIR No.

419/00, u/s 25 Arms Act, Police Station Kalyan Puri was

registered and its separate charge sheet was filed in the court on


: 30 :

20.02.2001. Similarly, on the recovery of three hand-grenades

at the instance of Md. Arif @ Ashfaq on 01.01.2001 from the

area of Jamia Milia University, FIR no. 03/2001, u/s 4/5 of

Explosive Substances Act, Police Station New Friends Colony

was registered and its charge sheet was filed in the court on

29.03.2001.

41. In the course of investigation of FIR No. 688/00, Police

Station Kotwali, it was revealed that ration card of accused Md.

Arif @ Ashfaq allegedly issued from the Food & Supply

Office, Circle-6, Okhla, at the address of 17/12, Batla House,

New Delhi was forged one and was not issued from the office.

It is alleged that it was revealed that accused Matloob Alam in

connivance with some other persons was issuing forged ration

cards to public persons with fake name and addresses after

charging money from them. In this way, he was cheating

public persons after committing forgery and was also using

forged documents. It is alleged that he had forged around 32

ration cards and as such cheated various public persons. On

this information, FIR no. 65/01, Police Station New Friends

Colony was registered u/s 420/468/471/474/34 IPC. In this


: 31 :

case also, various ration cards were seized, specimen

handwriting of the officials of Food & Supply Office as well as

accused Matloob Alam were obtained and sent for

examination. Result of the examination of the specimen and

questioned documents was obtained, statements of the

witnesses were recorded and investigation was completed and

charge-sheet was filed in the court on 07.07.2001.

42. After supplying copies etc., the first challan was committed

to the court of Sessions vide order dated 15.05.2001. Thereafter

other challans were also committed to the court of Sessions.

43. Vide order dated 11.09.2001, trial of FIR No. 419/00, Police

Station Kalyan Puri, u/s 25 Arms Act and FIR No. 3/01, Police

Station New Friends Colony u/s 4/5 Explosive Substances Act

were transferred by the learned Sessions Judge Delhi to this

court as the recoveries were effected in the course of

investigation of FIR no. 688/00, Police Station Kotwali.

Similarly, FIR No. 65/01, u/s 420/468/471/474/34 IPC, Police

Station New Friends Colony was also committed to the court of

Sessions u/s 323 Cr.P.C. by the learned Metropolistan

Magistrate vide order dated 17.09.2001. The trial of this case


: 32 :

was also assigned to this court.

(B) CHARGES :-

44. Vide order dated 04.12.2002, my learned Predecessor was

pleased to order framing of charge against all accused. For the

sake of convenience and ready reference, the charges are

extracted below. The charges were read over and explained to

each of the accused to which they pleaded not guilty and

claimed trial.

45. (a) Accused

(1) Md. Arif @ Ashfaq @ Abu Hamad s/o Md. Akram

(2) Rehmana Yusuf Farooqui d/o Nawab Mohammed

Yusuf Farooqui

(3) Nazir Ahmad Qasid s/o Gulam Mohammad Qasid

(4) Farooq Ahmed Qasid s/o Nazir Ahmad Qasid

(5) Babar Mohsin Baghwala s/o Jaleel Ahmad

(6) Devender Singh s/o Bhawani Singh

(7) Shehenshah Alam s/o Late Sh. Anwar Hussain

(8) Rajeev Kumar Malhotra s/o Kishan Chand

(9) Matloob Alam s/o Mehboob Alam

(10) Mool Chand Sharma s/o Har Chand

(11) Sadakat Ali s/o Abdul Ali

stand charged as under :-

“ That you all alongwith your co-accused


: 33 :

persons Sabir @ Saharullah, Sher Jaman, Abu Haider,

Abu Shakur, Abu Saad, Bilal Ahmad Qawa, Jahoor

Ahmad Qasid, Atharuddin @ Athar (now proclaimed

offenders) are the members of Lashker-e-Toiba, a

militant organization which carries out the disruptive

activities and between or about December 99 to

22.12.00 you all have hatched a criminal conspiracy

and collected arms, ammunitions and explosive

substances with a view to commit murder of all those

persons, who had come in your way with intent to wage

war against the Government of India and to over-awe

the Government of India by the use of arms,

ammunitions and explosive substances collected by you

and have procured driving licence, on the basis of

forged documents and forged ration cards, cheque

book, ATM card of HDFC Bank, cash deposit receipts,

photo-album of (allegbed) alleged marriage with

Rehmana Faruki and mobile phone and opened

accounts in different banks and received Hawala

money and have also taken shelter at different places

and also acquainted with the topography of Delhi to

execute conspiracy and in the execution of the said

conspiracy had used lethal weapons while committing

the crime and Mohd. Ashfak @ Arif also got recovered

the weapons which were in his possession and also got

recovered three hand grenades from Jamia Milia

University Complex and also got recovered AK-57


: 34 :

(AK-56) rifle, two Magazines, 32 live cartridges, two

live hand grenades and khaki uniforms from house no.

D-73 (G-73), Murati (Muradi) Road, Batla House

whereas co-accused Abu Samal had taken shelter in the

said house and also got recovered Rs. 1,11,000/- from

the houses of your co-accused received through

Hawala transaction from to be used to execute the

conspiracy and with a view to enter Red Fort

unlawfully and used lethal weapons and caused the

death of Uma Shankar, Abdullah Thakur and Ashok

Kumar, all public servants on duty who had resisted the

entry and thereby committed an offence punishable u/s

120 B IPC within the cognizance of this court.”

45. (b) Accused Faruk Ahmad Qasid s/o Nazir Ahmad

Qasid also stands charged as under :-

“ That between or about December 1999 to

22.12.2000 at house in Bagat Kannipura, Sri Nagar,

Jammu & Kashmir, you intentionally and knowingly

(consipred) conspired with co-accused Md. Ashfak @

Arif to provide him and other militants shelter and

harboured or concealed him with intention of

preventing him from being apprehended and thereby

committed an offence punishable u/s 216 read with

Section 120-B IPC, within the cognizance of this court.

“

45. (c) Accused (1) Md. Ashfak @ Mohd. Arif s/o Md. Akram

(2) Nazir Ahmad Qasid s/o Ghulam Ahmad Qasid and (3)


: 35 :

Faruk Ahmad Qasid also stand charged as under :-


22.12.2000 at Pakistan, Jammu & Kashmir and within

India particularly in Delhi, you all conspired jointly

and severally to wage war against the Govt. of India or

conspired to over-awe the Govt. of Delhi by using

criminal force such as the use of AK-56 & AK-47

rifles, hand grenades and cartridges and with a view to

cause explosion of the grenades and for that purpose

you collected arms, ammunition and explosive

substances which were recovered from your possession

and on your pointing out and thereby you committed

an offence punishable u/s 121A IPC within the

cognizance of this court.”

45. (d) Accused (1) Md. Ashfak @ Mohd. Arif s/o Md. Akram

(2) Nazir Ahmad Qasid s/o Ghulam Ahmad Qasid and (3)

Faruk Ahmad Qasid also stand charged as under :-

“ That you all in furtherance of conspiracy as

mentioned in the above charge waged war between on

or about December 1999 to 22.12.2000 against the

Government of India by the use of AK-56 & AK-47

rifles, hand grenades and cartridges and intentionally

committed murder of public servants namely Uma

Shanker, Abdullah Thakur and Ashok Kumar with a

view to over-awe the Government of India and thereby

committed an offence punishable u/s 121 IPC within

the cognizance of this court.”


: 36 :

45. (e) Accused Nazir Ahmad Qasid s/o Gulam Mohammad

Qasid also stands charged as under :-

“ That between or about December 99 to 22.12.00

at house in Bagat Kannipura, Sri Nagar, Jammu &

Kashmir, you intentionally and knowingly conspired

with co-accused Md. Ashfak @ Arif to provide him

shelter and harboured or concealed him with intention

of preventing him from being apprehended and thereby


Section 120-B IPC, within the cognizance of this court.

“

45. (f) Accused Mohsin Babbar s/o Jalleel Ahmad also stands

charged as under :-


22.12.2000 at house No. 751/9, Jama Masjid, Delhi,

you intentionally and knowingly conspired with co-

accused Md. Ashfak @ Arif to provide him shelter and

harboured or concealed him with intention of



Section 120-B IPC, within the cognizance of this

court.”

45.(g)Accused Rehmana Faruki d/o Nawab Mohammad Yusuf

Faruki also stands charged as under :-


22.12.2000 at house No. 308-A, DDA Flats, Gazhipur,

Delhi, you intentionally and knowingly conspired with


: 37 :

co-accused Md. Ashfak @ Arif to provide him shelter

and harboured or concealed him with intention of




court.”

45. (h) Accused Sadakat Ali s/o Abdul Ali also stands charged

as under :-

“ That between or about December 99 to 22.12.00

at house No. 18-C, Gafur Nagar, Okhla, Delhi, you

intentionally and knowingly conspired with co-

accused Mohd. Arif @ Ashfak to provide him shelter

and harboured or concealed him with intention of




court.”

45. (i) Accused Sadakat Ali s/o Abdul Ali also stands charged

as under :-


22.12.2000 at house No. 18-C, Gafur Nagar, Okhla,

Delhi, within the jurisdiction of P.S. New Friends

Colony, you being landlord of the said premises had

given said premises on rent to Md. Ashfak @ Arif to

run the Cyber Cafe in the name of (kknowledge)

Knowledge Plus in order to establish a basis A(base)

of Lashkerre Toiba (Lashker-e-Toiba) in Delhi and


: 38 :

failed to give information to the police regarding

renting out the said premises and thus violated the

prohibitory order of Commissioner of Police No.

26059-156/XI, dated 20.12.2000 requiring that no

landlord or owner of the house under the jurisdiction

of P.S. specified in the Schedule of this order shall let

out or rent out to any person unless and until has

furnished the particulars of the said tenant to the

Station House Officer or the Police Station concerned

and you failed to provide the said information to the

said Station House Officer and thereby committed an

offence punishable u/s 188 of the IPC, within the

cognizance of this court.

Secondly, on the same date, time and place you

gave premises No. 18-C, Gafur Nagar, Okhla, Delhi on

rent to accused Md. Arif, a national of Pakistan who

has entered into India without valid documents and

had stayed in India without valid Visa or permission

and you had accommodated said foreigner at the above

said premises occupied and controlled by you and you

have failed to inform to the nearest police station about

the stay of the foreigner at your premises within 24

hours about the presence of such foreigner and thereby

you contravened the provisions of the foreigner's

report to the police order dated 7.8.2001 Ministry of

Home Affaris and thereby committed an offence

punishable u/s 14 of the Foreigners Act, within the


: 39 :


45. (j) Accused

(1) Devender Singh s/o Bhawani Singh

(2) Shehenshah Alam s/o Anwar Hussain

(3) Rajiv Kumar Malhotra s/o Kishan Chand

(4) Matloob Alam s/o Mehboob Alam

(5) Mool Chand s/o Har Chand, and,

(6) Mohd. Ashfak @ Arif s/o Mohd. Akram

stand charged as under :-


22.12.2000, you all Devender Singh, Shehanshah

Alam, Rajiv Kumar Malhotra, Matloob Alam and Mool

Chand have conspired with accused Md. Ashfak @ Arif

to execute the conspiracy and for the execution of said

conspiracy helped him in procuring driving licence on

the basis of forged documents and forged ration card

with a view to create documentary evidence for

accused Md. Arif @ Ashfaq for his permanent stay in

India knowing well that he is a national of Pakistan

and dishonestly induced the officials of motor driving

licensing authority and civil supply deptt. to deliver the

driving licence and ration card in the name of said co-

accused Md. Ashfak @ Arif which is capable of being

converted into valuable security and have intentionally

concealed material information with a view to cheat

the above said Government/Departments/Officers and

thereby committed an offence punishable u/s 420 read


: 40 :

with Section 120B IPC within the cognizance of this

court.

Secondly, on the same date, time and place, you

Devender Singh, Shehanshah Alam, Rajiv Kumar

Malhotra, Matloob Alam and Mool Chand along with

your above mentioned co-accused Md. Ashfak @ Arif

have conspired to forge documents as mentioned above

with intent that these documents shall be used for the

purpose of cheating the above mentioned

government/Departments intenting (intending) that

these shall be used for the purposes of cheating and

thereby committed an offence punishable u/s 468 read

with Section 120B IPC, within the cognizance of this

court.

Thirdly, on the same date, time and place you

Devender Singh, Shehanshah Alam, Rajiv Kumar

Malhotra, Matloob Alam and Mool Chand alongwith

your above mentioned co-accused Md. Ashfak @ Arif

have conspired and fraudulently and dishonestly used

the above said documents as genuine which you knew

or had reason to believe at the time you used them to

be forged documents and you have thereby committed

an offence punishable u/s 471 read with Section 120B

IPC, within the cognizance of this court.

Fourthly, on the same date, time and

place you Devender Singh, Shehanshah Alam, Rajiv

Kumar Malhotra, Matloob Alam and Mool Chand


: 41 :

alongwith your above mentioned co-accused Md.

Ashfak @ Arif have conspired and have knowingly and

intentionally used the forged documents as genuine

and intending that the same shall be fraudulently and

dishonestly used as genuine and procured ration card

and driving licence and that your co-accused Md. Arif

@ Ashfaq was having possession of aforesaid valuable

documents with intent to use as genuine for the

unlawful purpose and thereby committed an offence

punishable u/s 474 read with Section 120B IPC, within

the cognizance of this court. “

45. (k) Accused Md. Ashfak @ Md. Arif s/o Md. Akram also

stands charged as under :-

“That on 22.12.2000 at about 9.05 PM at Red

Fort, within the jurisdiction of P.S. Kotwali, you

conspired with your co-accused Abu Haider, Abu Bilal,

Abu Saad, Abu Shuker and Abu Shamal (all proclaimed

offenders) to commit the murder and intentionally caused

the death of Abdullah Thakur, Uma Shanker and Ashok

Kumar (now deceased) and thereby committed an offence

punishable u/s 302 read with Section 120B IPC, within

the cognizance of this court.

Secondly, on the aforesaid date, time and

place, you conspired along with your co-accused Abu

Haider, Abu Bilal, Abu Saad, Abu Shuker and Abu

Shamal (all proclaimed offenders) and voluntarily

obstructed the public servants namely Abdullah Thakur,


: 42 :

Uma Shanker and Ashok Kumar (now deceased) in

discharge of their duties as public servants and thereby


Section 120B IPC, within the cognizance of this court.

Thirdly, on the aforesaid date, time and place,

you conspired with your co-accused Abu Haider, Abu

Bilal, Abu Saad, Abu Shuker and Abu Shamal (all

proclaimed offenders) and assaulted and used criminal

force against Abdullah Thakur, Uma Shanker and Ashok

Kumar (now deceased) in the execution of their duties as

such public servants or with intent to prevent or deter

them from discharging of their duties as such public

servants and thereby committed an offence punishable u/s

353 read with Section 120B IPC, within the cognizance of

this court.

Fourthly, that in between 22.12.2000 to

26.12.2000 you were found in possession while entering

in house no. 308-A, DDA Flats, Gazhipur, Delhi, within

the jurisdiction of P.S. Kalyan Puri one pistol of 7.63 mm

bore having engraved upon it 51010255-636 and six live

cartridges of 7.63 mm bore (having five cartridges in the

magazine and one in chamber) without any requisite

licence and in contravention of provisions of Section 3 of

the Arms Act and thereby committed an offence

punishable u/s 25/27 of the Arms Act, within the

cognizance of this court.

Fifthly, in between 22.12.2000 and 01.01.2001


: 43 :

at Jamia Milia University, between staff quarters and

boundary wall, within the jurisdiction of PS New Friends

Colony, you were unlawfully and maliciously found in

possession of three hand grenades of green ARGES which

were individually or in combination are explosive

substances and you kept the same to cause explosion or

conspired to cause explosion in Delhi of a nature likely to

endanger life or to cause serious injury to property and

thereby committed an offence punishable u/s 4/5 of the

Explosive Substances Act, within the cognizance of this

court.

“Sixthly, that on or before 22.12.2000 you

being the citizen of Pakistan have entered into India

unlawfully without any valid document i.e. Passport,

permit or permission and thereby committed an offence

punishable u/s 14 of the Foreigners Act, within the


46. Charge against accused Matloob Alam in FIR No. 65/01 was

ordered to be framed on 17.02.2003, which was also read over

and explained to him, to which he pleaded not guilty and

claimed trial. The charge is as under :-

“ That on or before 10.05.2000, you dishonestly

induced Naseem Khan, Haroon Ali, Mohd. Arshad,

Imam Khan, Ibadur Rehman, Smt. Akhtari Begum,

Maqsoor Hassan, Haroon, Arshad Taslim, Afzal,


: 44 :

Shakil, Anwar Hussain, Mohd. Murazuddin, Azmal

Imam Khan, Shanaj and others whose names have been

mentioned in the charge sheet to deliver for

consideration to get them ration-cards from the

Department of Food & Supply which was a valuable

property of the said department, or which can be

converted into valuable property by drawing the ration

card on the basis of said forged ration cards, which

you knew or have reason to believe that the same were

never issued by the Food & Supply Department and

have thus cheated all the abovestated persons and

thereby committed an offence punishable u/s 420 IPC,

within the cognizance of this court.

Secondly, on or before of the abovestated time,

date and place, you have forged the above said ration

cards knowing or having reason to believe that these

are the valuable documents and with intent that these

documents shall be used for purposes of cheating the

Food & Supply Department for withdrawing the ration

cards (ration) by the above-stated persons on the basis

of above said documents, and thereby you have

committed an offence punishable u/s 468 IPC, within

the cognizance of this court.

Thirdly, on the same day, time and place, you

knowingly and intentionally used the forged documents

as genuine, intending that same shall be fradulently

(fraudulently) and dishonestly used as genuine and


: 45 :

procured blank ration cards in order to prepare forged

ration cards on the names of abovestated persons and

thereby committed an offence punishable u/s 474 IPC,

within the cognizance of this court.”

47. On the application dated 22.10.2003 filed by accused Farukh

Ahmad Quasid and Nazir Ahmad Quasid, the charges were

ordered to be amended vide order dated 31.10.2003 and

amended charges were framed on 01.11.2003.

(C) EVIDENCE :-

48.Vide orders dated 07.01.2003 and 17.02.2003, evidence of

FIRs no. 419/00, 3/01, and 65/01 was ordered to be recorded

only in the main file i.e. in FIR no. 688/00.

49. In support of its case, prosecution has examined 235

witnesses in all.

50. PW-1 is Sh. Azad Khalid. He is a resident of 102, Kela

Bhatta, Ghaziabad, U.P since birth and has a ration card Ex.

PW-1/1. His father Sh. Mohd. Khalid Sadiqui also resides at

the same address and has ration card Ex. PW-1/2. He deposed

that no person by the name of Ashfaq Ahmad s/o Akram Khan

ever resided at the aforesaid address.

51. PW-2 is Sh. Yash Pal Singh Rana. He is inspector with


: 46 :

Department of Food & Supply, Ghaziabad, U.P. House No.

102, Kela Bhatta, Ghaziabad falls within his jurisdiction. He

deposed that ration card Ex. PW-1/1 was issued by his

department. He further deposed that no ration card in the name

of Ashfaq Ahmad s/o Akram Khan was issued at the aforesaid

address by his department. His report in this regard is Ex. PW-

2/A.

52. PW-3 is Sh. Rajbir Singh. He is Area Rationing Officer, Food

& Supply Department, Ghaziabad. Area of house no. 102,

Kela Bhatta, Ghaziabad falls within his jurisdiction. He has

corroborated the version of PW-2 Sh. Yashpal Singh Rana. He

also placed a photocopy of ration card no. 756928, Ex. PW-3/1

on record.


: 47 :

53. PW-4 is Sh. Yunus Khan. He deposed that he did his M.Sc,

in 1996 and has cleared his B.Ed in 1997. At that time,

accused Babar was a student of MSW and he is known to him.

Thereafter, he did not support the prosecution version and was

cross-examined by the learned Addl. Public Prosecutor. In the

cross-examination, he denied that accused Md. Arif @ Ashfaq

used to meet Babar. He did not identify accused Md. Arif @

Ashfaq .

54. PW-5 is Pradeep Kumar Srivastava. He is a clerk in

Ghaziabad Transport Authority. He deposed that on

14.02.2001, Mahesh Kumar Diwedi, a clerk posted with him,

produced the original licence forms of Chand s/o Kallu,

Rajinder Singh s/o Sh. Nishlesh Singh and Mahender Kumar

s/o Ram Chand and these forms were bearing stamp of

Akashdeep Motor Driving College. These forms were seized

by the police vide Ex. PW-5/A. Their application for

permanent driving licence and their learning licences are Exs.

PW-17/A to C and 17/D to F respectively.

55. PW-6 is Sh. Narain Singh. He is a clerk of Sarai Kale Khan

Authority, Delhi. He deposed that as per the record of the


: 48 :

aforesaid authority, no learning licence bearing no. 9091 was

ever issued in the name of Ashfaq Ahmad s/o Akram Khan r/o

B-17, Jung Pura, New Delhi. He further deposed that learning

licence mark A issued in the name of aforesaid person does not

bear the signatures of any of the officer posted in the Authority.

56. PW-7 is Sh. S.R. Raghav. At the relevant time, he was

posted as Food & Supply Officer, in circle-6, Okhla, New

Delhi. He deposed that ration card No. 258754, in the name of

Ashfaq Ahmad Khan s/o M. Akram Khan r/o F-17/12, Batla

House, Okhla, New Delhi-25 was not issued from his office.

His report in this regard is Ex. PW-7/A. He further deposed

that he had given a report regarding eight ration cards and

about their genuineness. He stated that five ration cards of 'B'

series were not issued from his office. However, three ration

cards of 'E' series were issued from his office. Five ration cards

of 'B' series are Ex. PW-154/A, PW-184/B, PW-178/B, PW-

205/A & B and three ration cards of 'E' series are Ex. PW-

155/A, PW-139/A and PW-128/1. His report is Ex. PW-7/B.

He also deposed that ration card No. 258785 Ex. PW-203/A of

'B' series was not issued from his office. His report is Ex. PW-


: 49 :

7/C. Report regarding seven ration cards of 'B' series was

prepared by his office and same is Ex. PW-7/D. He also

deposed that rubber stamp on Ex. PW-191/F to K and on Ex.

PW-191/L to O may be of his office. Seal impression on Ex.

PW-191/A to E are of their office seal.

57. PW-8 is Ins. Jogender Singh. On 15.02.2001, he was posted

as Incharge of Tis Hazari Lock Up. On that day, Ins. Surender

Sund along with SI Amardeep Sehgal came with permission

from the court for taking signatures of accused Rehmana Yusuf

Faruki and Devender Singh. He obtained the signatures of

these two accused in his presence. Signatures of Rehmana

Yusuf Faruki are Ex. PW-8/1 to 8 and signatures of accused

Devender Singh were taken on six sheets and these are Ex.

PW-8/9 to 14.

58. PW-9 is Sh. P.R. Sharma. He is a retired employee of State

Bank of India. On 31.01.2001, he was posted as Senior

Assistant in Gazhipur Dairy Branch of the aforesaid bank and

Sh. O.P. Singh was Branch Manager. He deposed that one

Rehmana Yusuf Farukhi had opened a saving bank account

bearing No. 5817 in the aforesaid branch. He had given


: 50 :

photocopy of account opening form, signature card and

original vouchers regarding the four deposits of Rs. 50,000/-,

1,50,000/-, 52,500/- and 30,000/- made in the said account.

These documents were taken into possession by the IO vide

memo Ex. PW-9/A. The photocopy of account opening form

is Ex. PW-9/B, original four vouchers are Exs. PW-9/C to F, a

letter of Branch Manager Sh. O.P. Singh is Ex. PW-9/G and

photocopy of the specimen signature is Ex. PW-9/H.

59. PW-10 is ASI Chand Singh. He joined the investigation of

the instant case on 07.01.2001. On that day, accused Babar

Mohsin was in police custody. He along with Ins. Surender

Sund, SI Abhinender Jain and accused went to his house.

There, accused pointed out a room, in which he had sheltered

accused Md. Arif @ Ashfaq at his house No. 751/9, Jama

Masjid and pointing out memo Ex. PW-10/A was prepared.

They also recovered motor-cycle No. DL-2SK-2809 from his

house and was seized vide memo PW-10/B. In the dicky of

said motor-cycle, some papers were found and one of them was

written in Urdu. This paper was got read over from a passer-by

and now is Ex. PW-10/C. It was seized vide memo Ex. PW-


: 51 :

10/D. This letter was addressed by Ashfaq Ahmad to accused

Babar. Thereafter, he also pointed out a house bearing No.

564/B, Gali No. 22 A, Zakir Nagar, Delhi, which he got rented

to Md. Arif @ Ashfaq through one Yunus. Pointing out memo

in this regard is Ex. PW-10/E. RC of the said motor-cycle is

Ex. PW-10/F and its key is Ex. K-1. Motor-cycle is Ex. M-1.

60. PW-11 is HC Saju En. On 19.10.2001, he was posted as

Reader to the SHO, Police Station New Friends Colony for the

last two years. His duty included receiving dak and putting the

same before the SHO. As per his record, accused Sadakat Ali

did not make any application giving information for renting his

house No. 18-C, Gafoor Nagar. There was a notification by the

police requiring such information.

61. PW-12 is HC Surender Singh. He deposed that on

01.02.2001, he was posted in third Batallian, DAP. On that

day, he had brought accused Devender Singh to Court where

IO Ins. Surender Sund moved an application for permission for

obtaining specimen signatures of accused Devender Singh. SI

Amardeep Sehgal was also with him. Specimen handwriting

and signatures of accused Devender Singh were taken on three


: 52 :

separate pages in his presencc and same were now Ex. PW-

12/A to C.

62. PW-13 is Ins. Rajender Singh. He joined the investigation of

the present case on 03.01.2001, when he along with SI

Shamsher Singh went to RTO Ghaziabad to verify the

genuineness of driving licence of accused Md. Ashfaq. There,

they met with Smt. Mamta Sharma ARTO and asked her about

the driving licence of accused Ashfaq. She informed them that

driving licence was genuine and issued from their office.

They also seized from their office form no. 4 of Mohd. Ashfaq,

learning licence issued from Sheikh Sarai Transport Authority,

form no. 2 for renewal of learning licence and photocopy of

ration-card of Md. Ashfaq vide memo Ex. PW-13/B. These

documents were the photocopies of original documents.

63. PW-14 is Sh. U.C. Jain. He is the SDO of Telephone

Department. He deposed that telephone no. 3355751 is

installed in AIFCS, Rafi Marg, Delhi in the name of British

Broadcasting Corporation. On the application of the IO, he

gave his report vide Ex. PW-14/A.

64. PW-15 is HC Virender Kumar. On 22.12.2000, he was


: 53 :

working as duty officer in Police Station Kotwali from 5.00 pm

to 1.00 am and had taken charge of his duty vide DD entry No.

12-A Ex. PW-15/A. At about 9.25 pm, he received information

that some unknown persons had fired shots inside Red Fort and

thereafter escaped towards the back of the Red Fort i.e towards

Ring Road. This information was recorded vide DD entry No.

19-A Ex. PW-15/B and handed over to SI Rajender Singh for

necessary action. He also informed Addl. SHO Ins. Roop Lal.

At about 11.25 pm, he was informed by ASI Har Narain from

Police Station Chankaya Puri that Naik Ashok Kumar, who

was injured in shoot-out inside Red Fort and was admitted in

Armed Forces Hospital, Dalhoussie Road, had expired and he

recorded this information vide DD entry No. 22-A Ex. PW-

15/C and sent over the same to SI Rajender Singh through Ct.

Manoj. At about 11.30 pm, he received a writing Ex. PW-

15/D from SI Rajender Singh, which was sent by Ins. Roop

Lal, on which he registered FIR no. 688/00, carbon copy of

which is Ex. PW-15/E. He also recorded DD no. 23-A Ex.

PW-15/F regarding registration of the case and when the

registration of the case was concluded, DD entry No. 25-A Ex.


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PW-15/G was recorded. Copies of the FIRs were also sent to

senior officials. A copy of the FIR was also sent to the IO

through SI Rajender Singh.

65. PW-16 is Smt. Mamta Sharma, ARTO, Ghaziabad. She has

corroborated the version of PW-13 Ins. Rajender Singh

regarding seizure of documents concerning the driving licence

of accused Md. Ashfaq. She has proved the original driving

licence Ex. PW-13/1 and these documents were seized vide

memo Ex. PW-13/B. She also deposed that form no. 4 is Ex.

PW-13/B, learning licence issued by Sheikh Sarai Authority is

Ex. PW-13/C, form no. 2 of Ashfaq Ahmad is Ex. PW-13/D

and photocopy of ration-card is Ex. PW-13/E. She also

deposed that form no. 4 Ex. PW-13/B bears the fact that fees

were paid and its receipt number as well as date. She also

deposed that her subordinate Mahesh Chand Trivedi had

informed her about the torn condition of Ex. PW-13/B. She

also deposed that she had passed the permanent driving licence

of Ashfaq Ahmad on 07.09.2000 and when she had signed the

document Ex. PW-13/B, it was complete and was not torn and

portion now torn bore the stamp of Akashdeep Motor Driving


: 55 :

School and official of Akashdeep had brought Ashfaq Ahmad

before her and as the documents were stamp marked with the

stamp of a driving school, no additional test was conducted.

66. PW-17 is Sh. Mahesh Kumar Trivedi. He is the junior clerk

of Ghaziabad Transport Authority. He has also corroborated

the version of PW-13 Ins. Rajender Singh and PW-16 Smt.

Mamta Sharma regarding the seizure of the documents of

Ashfaq Ahmad from Ghaziabad Transport Authority. He also

deposed that he had brought these documents to the office of

Smt. Mamta Sharma on being asked by her. He also deposed

that work of Akashdeep Motor Driving College was being

looked after by accused Shahanshah Alam. He had informed

Smt. Mamta Sharma about the torn condition of Ex. PW-13/B.

He also deposed that only Shahanshah Alam could have torn

the foot-part of document Ex. PW-13/B. He had also handed

over three more forms of Rajender, Surender and Kallu to Ins.

Surender Sund on 14.02.2001, which was seized by him vide

memo Ex. PW-5/A as well as forms no. 3 & 4 of Chand,

Rajender and Mahender. These documents are now Ex. PW-

17/A to D.


: 56 :

67. PW-18 is Sh. Braj Raj Krishan. He is clerk of Ghaziabad

Transport Authority. He deposed that M/s Star Motor Driving

College and Akashdeep Motor Driving College are registered

with the department and are situated at Ambedkar Road and

Raj Nagar respectively. They figure in the list Ex. PW-18/A.

68. PW-19 is HC Ashok Kumar. On 26.12.2000, he was working

as Mal Khana Moharar in Police Station Kalyan Puri. On that

day, SI Harender Singh deposited with him a sealed parcel

sealed with the seal of VP along with FSL Form in FIR No.

419/00, which was seized by Ins. Ved Parkash. He had also

deposited personal search items of accused Md. Ashfaq @ Abu

Hamad @ Md. Arif @ Ashfaq consisting of Rs. 1,000/- in

cash and a mobile phone of ESSAR. Entries were made by

him vide Ex. PW-19/A. On 02.01.2001, he sent the case

property to CFSL Malviya Nagar through Ct. Rameshwar for

examination by ballistic expert and made entry in this regard

vide Ex. PW-19/B and on 08.02.2001, the result was received

by him through Ct. Mahipal vide entry Ex. PW-19/C. On

14.05.2001, he handed over the cash as well as mobile phone to

Ins. Surender Sund as per the directions of the court and made


: 57 :

entry Ex. PW-19/D. A road certificate is Ex. PW-19/E and the

remnants of case property were received back vide Ex. PW-

19/F.

69. PW-20 is Sh. Nain Singh. He is the son of landlord of house

no. 97-A, Okhla Village, Delhi. He deposed that Azam Malik

used to reside as a tenant in his house and he had brought Md.

Ashfaq to his mother for renting out a room to him (Ashfaq).

His mother had rented out a room to Ashfaq on first floor on a

monthly rent of Rs. 1,200/- and he had informed them that he

hails from Jammu. After about a month, Ashfaq vacated their

house on being asked by them through Azam Malik.

70. PW-21 is Sh. Gian Chand Goel. He is owner of house No. G-

73, Munadi Road, Batla House, Delhi. He had rented out the

house to one Rashid on 06.12.2000 and thereafter on

07.12.2000, he brought two more boys and all the three boys

started residing on the first floor. He further deposed that many

boys including accused Ashfaq used to meet the three boys.

On 26.12.2000 police raided the aforesaid house, in which one

person was killed. He also deposed that Ashfaq was a friend of

Rashid.


: 58 :

71. PW-22 is Sh. Sanjeev Srivastava, branch manager of HDFC

Bank. He deposed that one Inspector came to his bank and

sought details of account no. 0891000024344. He received an

application Ex. PW-22/D from the Inspector, on which he

made endorsement Ex. PW-22/A and produced before him

account opening form Ex. PW-22/B, photocopy of driving

licence Ex. PW-22/C and statement of account Ex. PW-22/E

and same were seized vide memo Ex. PW-22/F.

72. PW-23 is Rishi Nanda, relationship manager of HDFC Bank,

New Friends Colony. New Delhi. He has corroborated version

of PW-22 Sh. Sanjeev Srivastava in all material particulars. He

also deposed that bank account of Ashfaq was opened on the

basis of driving licence.

73. PW-24 is ASI Jai Karan. On 01.01.2001, he was posted as

duty officer at Police Station, New Friends Colony. On that

day, he received a rukka Ex. PW-24/A sent by Ins. R.S. Bhasin

and registered the FIR No. 3/01, carbon copy of the same is Ex.

PW-24/B. Thereafter, the investigation of the case was

assigned to SI Sunder Lal.

74. PW-25 is Sh. Risalat Beg. He is a resident of house No.


: 59 :

564/22, Gali No. 22, Zakir Nagar, Okhla, Delhi. He had let out

one room of his house to one Yunus through Anwar. However,

he further deposed that Ashfaq and Babar never visited his

house for taking a room on rent in his house. He was cross-

examined by learned Special Public Prosecutor, wherein he

also denied that he had rented out a room of his house to

Ashfaq on a monthly rent of Rs. 1,500/-.

75. PW-26 is Ct. Yogender. On 01.03.2001, he was posted as

Naib Court of P.S. Kotwali in the court of Sh. A.K. Sarpal, the

then learned Metropolitan Magistrate, Delhi. On that day, a

sealed parcel was produced in the court from PS Kotwali on the

request of the IO Ins. Surender Sund and with the permission of

the court, same was opened and a visiting card with serial No.

44 was taken out, on which Raj Kumar Managing Partner and

Sabir was written. Telephone numbers 3969561 and

981034139 were also written. Visiting card is Ex. PW-26/A

and it was seized by the IO vide memo Ex. PW-26/B.

76. PW-27 is Sh. Subhash Gupta. On 29.12.2000, he was

working as relationship manager of Standard Chartered

Grindleys Bank, Cannaught Place, New Delhi. He deposed


: 60 :

that on 29.12.2000, Ins. Ved Parkash moved an application Ex.

PW-173/N for stopping of withdrawal from account No.

32263962 of M/s Nazir Sons, 28552609 of Mr. Bilal Ahmad

Kawa and 32181669 of Farookh Ahmad Quasid and he issued

directions for stopping the withdrawal of above-mentioned

account. Ins. Ved Parkash also moved an application Ex. PW-

173/N-1 asking them to provide statement of account of the

accounts number referred to above as well as their account

opening forms, vouchers, cheque deposits and withdrawal slips.

The statements of accounts of Farukh Ahmad Quasid, M/s

Nazir Sons and Bilal Ahmad Quwa are Exs. PW-27/A to C.

On 30.12.2000 Ins. Ved Prakash moved an application Ex.

PW-173/O for obtaining vouchers vide which cash was

deposited in the aforesaid three accounts and he gave cash

deposit slips Ex. PW-27/1 to 9.

77. PW-28 is SI Abhinender Jain. He joined the investigation of

the case on 25.12.2000 and on 30.12.2000 disclosure statement

Ex. PW-28/A of accused Md. Arif @ Ashfaq was recorded.

On 31.12.2000, accused Md. Arif @ Ashfaq pointed out a

driving college in Sarai Jullena, from where he had taken


: 61 :

training for driving and also identified accused Devender

Singh. A pointing out memo Ex PW-28/B was prepared in this

regard. On 03.01.2001, he also pointed out a room, where he

stayed with accused Babar Mohsin for ten-twelve days, vide

Ex. PW-28/C and also took them to Red Fort where they had

thrown the tickets of Light & Sound Programme watched by

them and pointed out memo is Ex. PW-28/D. In his presence,

on 03.01.2001 specimen handwriting of accused Matloob was

taken on three sheets Exs. PW-28/E to G. On 04.01.2001,

accused Shahanshah Alam and Devender Singh were joined in

the investigation and they were arrested. On the same day,

accused Babar Mohsin was also arrested. Disclosure

statements of accused Babar Mohsin, Devender and

Shahanshah Alam were recorded vide Exs. PW-28/J, K and L.

Accused Devender Singh produced a booklet. The booklet

Ex. PW-28/H and a receipt Ex. PW-28/I were also seized vide

memo Ex. PW-28/M. Supplementary statement of accused

Babar Mohsin was also recorded on 05.01.2001 vide Ex. PW-

28/N and on 04.01.2001, specimen signatures of accused

Ashfaq @Md. Arif @ Ashfaq were also taken on five sheets,


: 62 :

out of which three sheet Exs. PW-28/N-1 to N-3 bears his

signature. On 07.01.2001, accused Babar Mohsin took the

police party to his house at 751/9, Jama Masjid, Delhi.

Thereafter SI Abhinender Jain has corroborated the version of

PW-10 ASI Chand Singh. On that day, specimen signatures of

accused Md. Arif @ Ashfaq was also taken in Urdu on three

sheets which are Exs. PW-28/O-1 to 3. On 07.02.2001, he

deposited the documents of the case with the CFSL in intact

condition after collecting the same from Mal Khana. On

14.02.2001, he went to RTO Ghaziabad with Ins. Surender

Sund. On this point, he has corroborated the version of PW-5

Sh. Pardeep Kumar Srivastava and PW-17 Mahesh Kumar

Trivedi. On 28.02.01, he also joined the investigation again,

when place of installation of telephone no. 3969561 was

disclosed by Sh. Kashi Nath, official of MTNL, to the police.

78. PW-29 is Sh. Naresh Kumar, Senior clerk from the office of

Transport Commissioner, Meerut. He deposed that Star Motor

Driving College is a registered college with his department and

same is being run by Sh. Rajiv Malhotra and Ajay Malhotra

and entry in this regard is Ex. PW-29/A. He also deposed that


: 63 :

Akashdeep Motor Driving College, Ghaziabad was being run

by Lt. Col. Sirohi (retired). However, registration of the said

college was cancelled vide order dated 03.06.01. Photocopy of

the said register is Ex. PW-29/B.

79. PW-30 is Sh. Amar Bakshi. He is director of Distinctive

Properties & Leasing Ltd., at Devika Vihar, 6 Nehru Place,

New Delhi. He deposed that on the prayer of IO, he had told

him that shop no. GF-112, Devika Tower, Raj Nagar, Distt.

Centre, Ghaziabad belongs to Manoj Kumar and shop no. FF-

21 belongs to Shahanshah Alam and Intzar Hussain. His report

is Ex. PW-30/A.

80. PW-31 is Sh. Azam Malik. He was a student of Jamia Milia

Isalamia University Delhi from 1994 to 2000. There one Yunus

was known to him as he was also a student and they had fought

election together. In February 2000, he went to the house of

Yunus where Md. Arif @ Ashfaq was also present and Yunus

asked him if a room was available in the house where he was

residing i.e, at the house of Nain Singh. Thereafter, Md. Arif

@ Ashfaq took a room on rent in March-April 2000 in the

house of Nain Singh.


: 64 :

81. PW-32 is Sh. Mohan Lal Sharma. He is Sanitation

Superintendent. He deposed that police had asked him about

the tickets which were searched by them in the moat of the Red

Fort facing Lahori Gate. He informed the police that the moat

was cleaned on 05.01.2001 as per practice of cleaning it before

15 th August and 26 th January each year.

82. PW-33 is Sh. Neeraj Kumar Kaushik. He is also an official of

sanitation department and as such has corroborated the version

of PW-32 Sh. Mohan Lal Sharma.

83. PW-34 is Sh. Manoj Kumar Arya. He is owner of Shop No.

G-112, Durga Tower, Ghaziabad, U.P. He had let out this shop

to Sh. Nirmal Singh Sirohi on a monthly rent of Rs. 1,000/-

where he started a college under the name and style of

Akashdeep Motor Driving College.

84. PW-35 is Ct. Ranbir Singh. ON 23.12.2000, He was posted

as Daily Diary Writer at Police Post Yamuna Pusta. At about

10.30 am, he received information from Police Control Room

that one A.K.-47 rifle was lying at Vijaya Ghat. He informed

SI Ram Chander and Ins. Roop Lal immediately.

85. PW-36 is Sh. Mohd. Khalid. He is computer literate and used


: 65 :

to run a computer education centre under the name and style of

A.K. Computers in Gaffar Manzil, Okhla. One Faisal was

also a student there. However, he closed down computer centre

and started work of computer hardware assembling and

maintenance. He further deposed that Faisal had started a

computer center by the name of Knowledge Plus with Md.

Ashfaq. Faisal and Md. Ashfaq had taken quotation of

computers from him, which were prepared by his partner Sh.

Naib Hussain. Computers worth Rs. One lac were purchased

by Faisal and Ashfaq from him, which were installed by them

in their computer centre and his employee used to visit their

computer centre for maintenance. The quotations are Exs.

PW-36/A and B and the invoices are Exs. PW-36/C and D.

These were seized by the police vide Ex. PW-36/E. The three

CPUs were identified by him as Exs. P-1 to P-3.


: 66 :

86. PW-37 is Sh. Amir Irfan Mansoori. In the year 2000, he was

a tenant at the house of Sh. Nain Singh, as he used to study in

Jamia Milia Islamia. In May-June 2000, Ashfaq also came to

stay in the house of Nain Singh and informed him that he was a

resident of Kashmir and a shawl dealer. However, he had

never seen him selling shawls.

87. PW-38 is Ct. Mani Ram. On 01.03.2001, he was posted in the

Mal Khana of PS Kotwali. On that day, he had brought a

sealed parcel to the court of Sh. A.K. Sarpal, the then ld. M.M.

The parcel was opened and a purse was taken out. Thereafter,

he had corroborated the version of PW-26 Ct. Yogender

regarding the proceedings in the court.

88. PW-39 is Sh. Altaf Hussain. He is correspondent with British

Broadcasting Corporation, based at Sri Nagar. Telephone

number 2452918 is installed at his house in the name of his

wife, whereas telephone number 2477756 is installed in his

own name, also at his house. He further deposed that in

December 2000, he received a call on telephone number

2452918 from an unknown caller who informed him about the

incident inside Red Fort and further claimed that “DO DANE


: 67 :

DAL DIYE HAI” The caller further claimed to be from

Lashkar-e-Toiba and when he questioned the caller as to what

did he mean by “DO DANE DAL DIYE HAI” he was

informed that two fidayeens had attacked army personnels.

Thereafter, he informed the caller to contact British

Broadcasting Corporation at Delhi as he was not covering

Delhi.

89. PW-40 is Ms. Nazneen Bandey. She is wife of PW-39 Sh.

Altaf Hussain. She has corroborated the version of PW-39 Sh.

Altaf Hussain regarding the telephone installed at their

residence. She had received a letter from the police about the

telephone number 2452918 installed in her name at her

residence and she had given its reply vide Ex. PW-40/A.

90. PW-41 is Sh. Ayanjit Sen. He is also a correspondent

working with BBC. On 22.12.2000, he was in his office at Rafi

Marg, Delhi, when between 9 to 9.30 pm, he received a

telephonic call on telephone no. 0113355751 from someone

claiming to be speaking from Lashkar-e-Toiba. The caller

informed him that they had attacked Red Fort and he was

speaking from inside Red Fort. The caller further informed


: 68 :

him that they had killed two persons. Thereafter, he

telephoned the police to confirm the incident, but they had no

information at that time.

91. PW-42 is Lady Ct. Mukesh. On 22.12.2000, she was posted

at PCR and at about 9.47 pm, received a telephonic call from

one Sushant about firing going on inside Red Fort. She

recorded the information vide Ex. PW-42/A and transmitted the

same for further action.

92. PW-43 is Ct. Indu Bala. On 22.12.2000, she was posted at

Police Control Room. At about 9.50 pm, she received one

telephonic call from one Sh. Karan Mohan, who informed that

some civilians had intruded into Red Fort. She recorded the

said information vide Ex. PW-43/A and conveyed the same for

further action.

93. PW-44 is Sh. Danish Mohd. Khan. He is a cousin of Faisal

Mohd. Khan. He (Faisal) used to reside at the house of Nain

Singh. Ashfaq was also use to reside at the house of Nain

Singh. Both of them opened a computer center under the

name of Knowledge Plus at 18-C, Gaffur Nagar, Delhi. Faisal

was not having any proof of his permanent residence, so he


: 69 :

took a photocopy of his (Danish Mohd.) identity card for

obtaining a telephone connection at their Cyber Cafe.

However, he does not know if any telephone connection was

given at the computer centre or not.

94. PW-45 is SI Himmat Ram. On 10.03.2001 he accompanied

Ins. Hawa Singh, SI Amardeep and SI Ranbir Singh to Sri

Nagar in connection with the investigation of the instant case

and visited Standard Chartered Grindleys Bank, Kothi Bagh,

Sri Nagar. They met branch manager Sh. B.A. Vani and

moved an application about the bank accounts of Farukh

Ahmad Quasid, Nazir Sons and Bilal Ahmad Qawa. They

seized three cheques pertaining to the account of Farukh

Ahmad Quasid, twenty-nine cheques pertaining to accounts of

Nazir Sons and eight cheque pertaining to the account of Bilal

Ahmad Quwa. The seizure memo is Ex. PW-45/A and the

cheques are mark 1 to 40.


: 70 :

95. PW-46 is Sh. Kashi Nath, phone mechanic of Telephone

Exchange Tis Hazari. On 28.2.01, he took the police party to

Sharif Manzil, premises No. 5123, where telephone number

3969561 was installed by him in August 1999 and a pointing

out memo Ex. PW-46/A was prepared.

96. PW-47 is Sh. Om Parkash Gupta, Telephone Inspector, Tis

Hazari Exchange. On 28.02.2001, he was with the police

party. As such, he has corroborated the version of PW-46 Sh.

Kashi Nath regarding installation of telephone number

3969561.

97. PW-48 is Sh. Ram Kishan Yadav. He was a security guard

with ITDC and posted at Red Fort. On 22.12.2000, the first

show of Light & Sound Programme scheduled for 6.00 pm to

7.00 pm could not be held on account of power failure, but the

next show scheduled for 7.30 pm to 8.30 pm was held and the

audiences had left by 8.40 pm.

98. PW-49 is SI Mohan Singh. On 22.12.2000, he was posted at

wireless operator at Police Station Kotwali. At about 9.25 pm,

he received information about a shotting incident inside Red

Fort from lady Ct. Harbir of Police Control Room. This


: 71 :

information was recorded by him vide Ex. PW-49/A and

conveyed the same to duty officer SI Rajender Singh.

99. PW-50 is SI Virender Singh. On 26/12/2000, he was posted

with Bomb Disposal Squad. On that day, he was summoned to

Police Station Kotwali, where Ins. Hawa Singh produced

before him four hand-grenades with mark HG-84 ARGES. He

defused these bombs and prepared a report Ex. PW-50/A. He

identified the four detonators Exs. PW-50/1 to 4 and the

remnants of four hand-grenades are Exs. PW-50/5 to 8.

100. PW-51 is Col. A. Mohan. On 22.12.2000, he was posted as

Col. General Staff, Head-quarters Delhi Area. He received

information from Commanding Officer, 7th Rajputana Rifles,

Red Fort that some civilians had entered Red Fort and started

firing and he conveyed this information to Police Control

Room. He also informed the Police Control Room that two

army jawans were injured in the said firing.

101. PW-52 is Sh. Ajit Singh Bajaj. He is a resident of B-17,

Jungpura, where he is residing as tenant on a monthly rent of

Rs. 650/-. He further deposed that the person whose

photographs appear in exhibits Ex. PW-13/B and D (earlier


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marked) never resided at the aforesaid address.

102. PW-53 is SI Arvind Pratap Singh. ON 22.12.2000, he was

posted at PS Kotwali and had delivered the special reports of

the case to the senior officers on that day itself.

103. PW-54 is Ct. Jitender. On 22.12.2000, he was posted at PS

Kotwali. On receipt of DD entry no. 19-A, he accompanied SI

Rajender Singh to Red Fort, there Addl. SHO Ins. Roop Lal

was also present and on his directions, they searched Red Fort.

104. PW-55 is Ct. Manoj Kumar. On 22.12.2000, he was posted

at PS Kotwali. Information was received vide DD entry no.

22-A about the death of Naik Ashok Kumar. He took a copy of

the DD entry to SI Rajender Singh at Red Fort, but he was not

there and he handed over the said copy of DD to Addl. SHO

Ins. Roop Lal.

105. PW-56 is Faisal Mohd. Khan. He came to Delhi from his

native village in 1998 and thereafter took a room on rent in the

house of Nain Singh. One Sh. Azam Malik was also a tenant

there, who had brought Md. Arif @ Ashfaq there and got a

room rented to him. He further deposed that he opened a

computer centre with Md. Ashfaq at 18-C, Gaffur Nagar in


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August 2000 and the premises was taken on a monthly rent of

Rs. 4,500/- by Ashfaq. He has corroborated the version of

PW-44 Danish Md. Khan regarding obtaining a photocopy of

his Identify card for obtaining a telephone connection for the

Knowledge Plus computer center. He used to look after the

computer centre and Md. Arif @ Ashfaq used to visit only once

in four-five days. Ashfaq was also having a two-wheeler as

well as a mobile phone. On 22.12.2000, he had gone to his

native place and Ashfaq had not met him for the last four-five

days.

106. PW-57 is SI Mehruddin. He is Incharge of the Communal

Cell in the Special Cell. He deposed that a complaint Ex. PW-

57/A was received in the special cell against accused Sadakat

Ali and an enquiry on this complaint was conducted by Ins.

Surender Sund.

107. PW-58 is ASI Rameshwar Dayal. He is also posted in

communal cell. On receipt of the complaint Ex. PW-57/A, its

receipt was recorded at serial no. 7239, photocopy of which is

Ex. PW-58/A.

108. PW-59 is SI Har Narain. ON 22.12.2000, he was posted at


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Police Post South Avenue. On being called by HC

Chanderbhan, he went to AFMC Hospital vide DD No. 29. HC

Chanderbhan had already gone to AFMC Hospital on receipt of

information vide DD entry No. 28, where he came to know that

Naik Ashok Kumar, who was admitted there with bullet injury

sustained at Red Fort, had expired. He informed police

station Kotwali about this. On 16.3.2001 Ins. Surender Sund

collected the copy of both DD entries, which are now Exs. PW-

59/A and B. DD no. 33, Ex. PW-59/C was also recorded at his

direction.

109. PW-60 is ACP Mahadev Mehta. On 05.12.2001, he was

posted as ACP Operation Cell. He came to know that accused

Sadakat Ali had let out premises no. 18-C, Gaffur Nagar, Okhla

to accused Md. Arif @ Ashfaq where he was running a Cyber

Cafe and had not informed the police about this, which

amounted to violation of notification issued by Commissioner

of Police, Delhi. He filed a complaint u/s 195 Cr.P.C against

accused Sadakat Ali. Complaint is Ex. PW-60/A and the

copies of the order issued by the Commissioner of Police is

Ex. PW-11/DA


: 75 :

110. PW-61 is Sh . Mukhtiar Ahmad. He deposed that his brother

Aslam is residing in Sri Nagar for the last twenty years and is

having his own business there. At his request, his neighbour

Zahur Ahmad Quasid had stayed at his (Mukhtiar Ahmad)

house in Laxmi Nagar in December 1999. His nephew

(Bhanja) Abu Haider used to meet him.

111. PW-62 is SI Ram Chander. On 23.12.2000, he was posted at

Police Post Yamuna Pusta of PS Kotwali. At about 10.30 am,

he received information that one A.K.47 rifle was lying at

Vijaya Ghat. He reached the main gate of Vijaya Ghat where

one rifle was lying. In the meanwhile, Addl. SHO of PS

Kotwali as well as senior officials reached the spot.

Thereafter, crime team, photographer, CFSL official Sh. A.

Dey, finger print expert and dog squad also reached the spot.

Photographs of the rifle were taken, finger prints were lifted

and his magazine was taken out. In the magazine, seven live

rounds were found. A sketch of the rifle as well as live rounds

were prepared vide Ex. PW-62/A and thereafter it was sealed

with the seal of RL and was seized vide memo Ex. PW-62/b.

He has identified the rifle Ex. PW-62/1, magazine Ex. PW-62/2


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and cartridges Ex. PW-62/3 to 9.

112. PW-63 is Sh. Sanjay. He is a former employee of Star

Motor Driving College. He deposed that Rajiv Malhotra was

the owner of the college. On 14.02.2001, police visited the

aforesaid driving college and seized photocopy of licence Ex.

PW-29/A issued to the college and a visiting card Ex. PW-63/B

vide Ex. PW-63/A.

113. PW-64 is Sh. O.P. Singh, branch manager of State Bank of

India. On 31.01.2001, he was posted as Branch Manager of

State Bank of India, Gazhipur Branch, Delhi. Rehmana Yusuf

Farukhi was maintaining an account bearing no. 5817 in the

aforesaid branch. As such, he has corroborated the version of

PW-9 Sh. P.R. Sharma in all material particulars.

114. PW-65 is Sh. Irfan Malik Chaudhary. He is a resident of

house no. F-17/12, Batla House, Jogabai, Okhla, Delhi. He

deposed that no ration card was ever issued at the aforesaid

address in the name of Ashfaq Ahmad. He had not given any

letter or rent receipt to Ashfaq Ahamd for getting a ration card

issued at the aforesaid address.

115. PW-66 is Sh. Hazari Lal. He is father-in-law of one Sh.


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Kushal Kumar, who used to run a ration depot in Okhla under

the name of Raj Stores. On 21.04.2001, Kushal Kumar handed

over seven monthly statements with effect from March 2000 to

December 2000 except April, June and October to the police

vide Ex. PW-65/A.

116. PW-67 is HC Reham Singh. He deposed that eight accused

namely Bilal Ahmad Kawa, Abu Bilal @ Abu Nasir @ Dar,

Abu Haider, Abu Shukher, Abu Saad, Zahor Ahmad Quasid,

Sher Zaman and Sabir @ Sabarulla @ Afgani have been

declared proclaimed offenders in this case. He proved the

report Ex. PW-67/A in this regard.

117. PW-68 is SI Omwati. On 25.12.2000, she was posted as

duty officer in the office of special cell, New Delhi. On that

day, Ins. M.C. Sharma along with staff made a departure entry

vide Ex. PW-68/A and at about 9.45 pm, an information was

recorded by SI Mahipal on the telephonic instructions of Ins.

Mohan Chand regarding suspect Abu @ Ashfaq vide DD entry

Ex. PW-68/B. On the same day, Ins. R.S. Bhasin along with

staff left the PS vide DD entry Ex. PW-68/C and SI Harender

also left vide DD entry Ex. PW-68/D. On 01.01.2001, she was


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also posted as duty officer when Ins. Mohan Chand Sharma

and staff made departure entry and at about 5.20 pm, SI Sunder

Lal made his departure entry and both are Ex. PW-68/E and F.

118. PW-69 is Lady Ct. Sunita. In December 2000, when accused

Rehmana Yusuf Faruki was arrested, she conducted her

personal search vide Ex. PW-69/A. In her presence, she

(Rehmana Yusuf Faruki) also made a disclosure statement.

119. PW-70 is Ct. Vijay Kumar. On 23.12.2000, he reached the

spot on the direction of Ins. Roop Lal and prepared a video film

of the scene of occurrence at Red Fort as well as at Raj Ghat

from where arms and ammunitions were recovered. The

cassette is Ex. PW-70/A.

120. PW-71 is Sh. Mahender Kumar. In August 2000, he got a

driving licence issued in his name through one Satish Garg by

paying him Rs. 450/- and handing over to him six photographs.

Sh. Satish Garg informed him that he got the driving licence

issued through Shahanshah Alam. He also identified form no.

4 Ex. PW-17/A and form no. 3 Ex. PW-17/D.

121. PW-72 is Sh. Chand Ali. He also got his licence issued

from Ghazibad Transport Authority on payment of Rs. 650/-


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and three photographs to one Yogesh Tiwari. He identified his

forms Ex. PW-17/B and F. However, he did not support the

prosecution version that the licence was got issued through

Shahanshah Alam.

122. PW-73 is HC Reham Singh. He deposed that whenever a

notification is issued, its copies are sent to television, radio,

PRO Delhi Police as well as to all police stations and officers.

He has proved notification dated 21.08.2000 Ex. PW-73/A,

19.10.2000 Ex. PW-73/B and 19.02.2001 Ex. PW-73/C issued

by the Commissioner of Police, Delhi.

123. PW-74 is Mohd. Idriz. He is President of Dilaram Market,

Balimaran, Delhi. On 12.01.2001, police alongwith accused

Ashfaq had come to his shop for searching the shop of one Sher

Zaman, situated on Second Floor. The shop was searched in

his presence and cash Ex. P-1 to P-28, stapling machine Ex. P-

29 and bag Ex. P-30 were recovered from there and seized vide

Ex. PW-74/A.

124. PW-75 is Sh. Shiv Raj Singh. On 22.12.2000, he went to the

spot inside Red Fort and searched for finger prints, but could

not find any.


: 80 :

125. PW-76 is lady Ct. Brijesh. On 26.12.2000, she was posted at

PCR. At 5.36 am, she received information from one S.U.

Khan that firing was going on in Gali no. 8, Munadi Road,

Batla House, Delhi. She recorded this information vide Ex.

PW-76/A and conveyed the same further.

126. PW-77 is lady Ct. Harvir Kaur. On 22.12.2000, she was

posted at PCR. At about 21.23 hours, she received information

from Captt. Manish that some persons had fired inside Red Fort

and thereafter fled towards the back of the Red Fort. She

recorded this information vide Ex. PW-77/A and conveyed it

further for necessary action.

127. PW-78 is HC Narender Singh. On 23.12.2000, he was

posted as wireless operator at PCR. At about 10.35 AM, he

received message regarding stengun lying behind the Red Fort.

He recorded this information vide Ex. PW-78/A and conveyed

it further to North District.

128. PW-79 is Sh. Iqbal Hassan. In 2000, he used to reside at

house no. A-18, Gaffur Nagar, Okhla, Delhi and was also its

registered owner. He never let out this house or any part

thereof to any Ashfaq Ahmad Khan. He denied the receipt Ex.


: 81 :

PW-28/H issued in the name of Ashfaq Ahmad Khan s/o Sh.

Akram Khan with address A-18, Gaffur Nagar, Okhla, Delhi

and bearing mobile no. 9810263721.

129. PW-80 is Sh. Hifuzar Rehman. He is a resident of C-19,

Gali No. 8, Batla House, Delhi. On 26.12.2000, at about 5.30

am, he heard gun sound coming from the house of Sh. Gian

Chand Goel. He informed the Police Control Room about this.

130. PW-81 is HC Satbir Singh. On 23.12.2000, he was posted

as wireless operator at Police Station Kotwali. He received two

wireless messages regarding a A.K. 47 rifle lying behind the

Red Fort. He recorded these two information vide Ex. PW-

81/A and B and conveyed it for further action.

131. PW-82 is SI Sripal Singh. On 22.12.2000, he was posted as

duty officer at Police Station Chankaya Puri. Information was

received that Naik Ashok Kumar, injured in Red Fort shoot-out

incident, was admitted AFMC hospital and was declared

brought dead by the doctor. He recorded this information vide

DD no. 22 and assigned the same to ASI Har Narain for

further action and also directed him to contact SHO, Kotwali.

The DD entry is Ex. PW-82/A.


: 82 :

132. PW-83 is Sh. R.K. Ajwani. He is Chief Enforcement

Officer, Directorate of Enforcement. He deposed that on

13.01.2001, he was summoned to Special Cell, Lodhi Colony.

He along with Asstt. Enforcement Officer Sh. Vinod Kapoor

reached there and Ins. Surender Sund met them. He showed

them five-six papers, which were a visiting card, a slip

containing telephone number of Peshwar, a photograph

showing two persons playing carom, a blank Visa Form and

one Identity Card with a photograph. He identified these papers

and these papers were seized vide Ex. PW-83/A and these

documents are Exs. Visa Slip of Islamic Republic of Pakistan

Ex. PW-83/P-1, Identify Card of Sher Zaman Ex. PW-83/P-2,

a cash memo Ex. PW-83/P-4, photo showing playing two

persons carom Ex. PW-83/P-5 and a khaki paper on which

address of Meer Askar is written, is Ex. PW-83/P-6.

133. PW-84 is Sh. Vinod Kapoor. On 13.01.2001, he was also

with Sh. R.K. Ajwani and as such he has corroborated the

version of PW-83 Sh. R.K. Ajwani in all material particulars.

134. PW-85 is SI Girish Jain. On 15.01.2001, he was posted at

Police Station New Friends Colony and on that day, he took


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three hand-grenades of FIR No. 3/01 and two hand-grenades of

FIR no. 630/00, both of Police Station New Friends Colony,

from the Mal Khana and took them to Bomb Disposal Unit,

NSG at Smalkhan. There, these hand-grenades were destroyed

by Major Shukla. He also issued a certificate in this regard.

Two Road Certificates by which, the hand-grenades were taken

are Exs. PW-85/A and B and the destruction certificate is Ex.

PW-85/C. After destruction, remnants of the hand-grenades

were deposited in the Mal Khana and remnants are Ex. PW-

193/1.

135. PW-86 is Ins. Pratap Singh Dhillon. On 26.12.2000, he was

posted in Special Cell, Lodhi Colony. On that day, he

examined some documents in this case, which were handed

over to him by Ins. Ved Parkash. These documents included

one digital diary, one personal diary, driving licence and ration-

card of Md. Ashfaq, some visiting cards and pay-in-slips of

banks and negative recovered from the wallet of Md. Ashfaq,

which was of Abu Bilal. These documents were seized by Ins.

Ved Parkash vide memo Ex. PW-86/A in his presence.

Negative is Ex. PW-86/B and driving licence is Ex. PW-13/A.


: 84 :

136. PW-87 is Sh. A.K. Roy, record keeper of Hindustan Times,

New Delhi. He deposed that cutting Ex. PW-87/A with

Heading “Lashker-man storm Army camp in Red Fort-Three

killed”, was published in Hindustan Times dated 23.12.2000 on

the information given by their correspondent.

137. PW-88 is Ct. Ghan Shyam. On 22.12.2000, he was posted as

daily diary writer on the Police Post of South Avenue of Police

Station Chankaya Puri. At about 10.43 pm, information was

received from Police Control Room that police be sent to

Armed Forces Medical College. He recorded this information

vide DD entry no. 28 Ex. PW-88/a and handed over the same to

HC Chander Bhan for necessary action. At about 11.00 pm,

HC Chander Bhan requested him to send ASI Har Narain to

AFMC. He recorded this information vide DD entry no. 29 Ex.

PW-88/B and directed ASI Har Narain to reach there.

138. PW-89 is HC Upender Singh. On 23.12.2000, he was

posted on PCR Van, Sugar-61 with base behind Red Fort. At

about 10.30 am, he was informed by a home-guard Jawan, that

a stengun was lying in the bushes behind Vijaya Ghat. He

went there and found one A.K.-47 rifle lying below the


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Western Boundary wall of Vijaya Bhat. He informed Police

Control Room and soon Addl. SHO, PS Kotwali and other staff

reached there. He has identified the rifle Ex. PW-62/1 its

magazine Ex. PW-62/2 and cartridges Ex. PW-62/3 to 9. He

had recorded this information in the log book Ex. PW-78/A.

139. PW-90 is Sh. Hazarul Hassan, ARI Technical. In the year

2000, he was posted in the office of ARTO Ghaziabad. He

deposed that licence Ex. PW-13/A was issued by Ms. Mamta

Sharma, the then ARTO. He has corroborated the testimony of

PW-16 Ms. Mamta Sharma and PW-17 Sh. Mahesh Kumar

Trivedi . He also deposed that driving test of Mahender, Chand

and Rajender vide Ex. PW-17/A to C were conducted by him.

140. PW-91 is ASI Mahender Singh. On 04.01.2001, he was

posted as duty officer at Police Station Nizamuddin. On that

day, he had registered FIR no. 08/01 Ex. PW-91/A u/s 420 IPC

read with Section 12 of Passport Act against one Sudhir

Mishra. The case is pending trial in the court.

141. PW-92 is ASI Ran Singh. On 26.12.2000, he was posted as

duty officer at Police Station New Friends Colony. At about

5.30 am, he received information from Police Control Room


: 86 :

that firing was going on in Gali no. 8, Muradi Road, Batla

House, Delhi. This information was recorded by him vide DD

entry no. 20 Ex. PW-92/A and was conveyed to the SHO as

well as Police Post Jamia Nagar. At about 7.00 am, he

received a rukka sent by Ins. Madan Mohan, SHO of Police

Station, upon which he registered FIR Ex. PW-92/B. He also

recorded DD no. 22 Ex. PW-92/C.

142. PW-93 is HC Devdut. On 18.08.2001, he was posted at

MHCM at Police Station Kotwali. On that day, Ins. Surender

Sund had deposited a sealed parcel along with CFSL Form

sealed with the seal of SKS, stated to contain empty cartridges.

Entries Ex. PW-93/A was made in this regard. On 20.08.2001,

he sent the said parcel along with CFSL form, through SI

Amardeep Sehgal for being deposited in the CFSL and made

entries Ex. PW-93/B in this regard. Again on 22.08.2001, SI

Surender Sund had deposited with him two envelops sealed

with the seal of SKS vide entry Ex. PW-93/C. The receipt of

the parcel being deposited in the CFSL was handed over to him

by SI Amardeep Sehgal and same is Ex. PW-93/D.

143. PW-94 is retired Col. Nirmal Singh. In 1998, he opened


: 87 :

Akashdeep Motor Driving College at Ghaziabad in C-block,

Shastri Nagar, which was later on shifted to GF-112, Devika

Tower, Raj Nagar, Ghaziabad in 1998, a rented premises taken

from Sh. Manoj Kumar, a relative. Accused Shahanshah Alam

used to work at his shop and he was Incharge of all work for

running a driving school including preparation of driving

licences, renewal thereof and training of drivers. The driving

school was in his name, but accused Shahanshah Alam was

responsible for running it and used to pay him Rs. 2,000/- per

month. The forms for preparation of driving licences were

used to be filled up by Shahanshah Alam and his employees

and thereafter seal of college used to be affixed. However, he

does not know if he also got prepared driving licence of Md.

Ashfaq.

144. PW-95 is HC Harbans Singh (retired). On 22.12.2000, he

was posted at Police Control Room. He received information

from Col. Mohan regarding his jawans being fired upon and

injured by a civilian at Red Fort. He recorded this information

vide Ex. PW-95/A and conveyed it for further action.

145. PW-96 is SI Gurdev Singh. On 04.01.2001, he joined the


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investigation of the case, when accused Md. Ashfaq was

interrogated, wherein he disclosed that one Sudhir Mishra

could get a passport prepared as he had done it for many

persons. He raided said Sudhir Mishra and got FIR no. 08/01

registered u/s 420 IPC read with Section 12 of Passport Act in

Police Station Hazrat Nizamuddin

146. PW-97 is Sh. B.A. Wani, Branch Manager, Standard

Chartered Grindleys Bank, Sri Nagar. He deposed that

accounts No. 32263962 of M/s Nazir Sons, 28552609 of Mr.

Bilal Ahmad Kawa and 32181669 of Farookh Ahmad Quasid

were opened during his tenure as Branch Manager and all three

accounts were current accounts, though he does not know the

account holders personally. He has corroborated the version

of PW-45 SI Himmat Ram regarding handing over the

statements of account and cheques to the police. He has also

identified the cheques issued by the account holders Ex. PW-

97/P-1 to P-40. He has also proved the statements of account

Ex. PW-97/P-41 to 45.

147. PW-98 is Sh. Rattan Chand, Warden Central Jail, Kot

Balwal, Jammu. He deposed that on 29.03.2001, SI Amardeep


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Sehgal and SI Satyajit Sareen visited the aforesaid jail after

obtaining court orders and permission from Competent

Authority of Jammu & Kashmir and recorded entry no. 14, Ex.

PW-98/A. They formally arrested Nazir Ahmad Quasid and

Farukh Ahmad Quasid in the instant case vide DD no. 15 Ex.

PW-98/B. Both accused were interrogated by them in the

presence of jail officials and they also requested that when the

detention of these detenues was over, DCP Special Cell, Delhi

be intimated.

148. PW-99 is Ins. Qazashams, SHO of Police Station Sadar, Sri

Nagar. He deposed that FIR no. 265/00 and 2/01, both Police

Station Sadar, Sri Nagar, were registered against accused

Wasim Khateem and Tareekh Ahmad Shah and accused Nazir

Ahmad Quasid and Farukh Ahmad Quasid and are still pending

trial. He has placed certified documents of both the FIRs on

record.

149. PW-100 is Ins. Aziz Qudri. He deposed that on 10.01.2001,

Delhi Police Officials along with accused Ashfaq were in Sri

Nagar, where he was posted as SHO of Maharaj Ganj Police

Station. He had rendered local assistance to the Police Party,


: 90 :

during which accused Ashfaq pointed out the house of Jahoor

Ahmad Quasid in Fateh Qudal.

150. PW-101 is Sh. Pritam Singh, Assistant Superintendent of

Kot Balwal Jail, Jammu. He has corroborated the version of

PW-98 Sh. Rattan Chand, warden of the Kot Balwal Jail,

Jammu. He also deposed that disclosure statement Ex. PW-

101/A of accused Farukh Ahmad Quasid was recorded in his

presence as he had produced the accused before the Delhi

Police Officials.

151. PW-102 is Sh. Hem Raj Sharma. He is also Assistant

Superintendent of Kotbalwal Jail, Jammu. He has also

corroborated the version of PW-98 Sh. Rattan Singh. He has

also deposed that disclosure statement Ex. PW-102/A of

accused Nazir Ahmad Quasid was recorded in his presence as

he had produced the accused Nazir Ahmad Quasid before Delhi

Police Officials.

152. PW-103 is SI Om Parkash. He joined the investigation of

the case on 12.01.2001 at Police Station Chandni Chowk, when

Ins. Surender Sund along with accused Ashfaq came over there

and sought his assistance in searching shop no. 5123, Sharif


: 91 :

Manzil, Balimaran, belonging to Sher Zaman. He went to the

shop alongwith Ins. Surender Sund with accused Ashfaq in his

custody. Thereafter, he has corroborated the version of PW-74

Mohd. Idriz.

153. PW-104 is Sh. Ravi Kumar. He runs a PCO with telephone

no. 260933 at Lucknow. He deposed that on 18.10.2000,

25.10.2000 and 09.11.2000, telephonic calls were made from

his PCR by Attruddin (since P.O.) to Delhi on telephone No.

9811242154. He produced call details Ex. PW-104/A to C in

this regard.

154. PW-105 is Subedar Madho Singh. On 23.12.2000, he along

with Man Singh identified the dead bodies Naik Ashok Kumar

and Sepoy Uma Shankar Singh in Subzi Mandi Mortuary vide

Exs. PW-105/A and B.

155. PW-106 is Sh. M.S. Upadhaya, DIG Arunachal Pradesh,

earlier DCP North, Delhi. On 20.03.2001, he was posted as

DCP North, Delhi. The file of the instant case was placed

before him and after examining the same and having satisfied

himself that accused Md. Arif @ Ashfaq @ Abu Hamal had

contravened the provisions of Section 3 of Arms Act, he


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granted the sanction for prosecution of accused Md. Arif @

Ashfaq @ Abu Hamal u/s 25 of Arms Act vide Ex. PW-106/A.

156. PW-107 is SI. Dedar Singh of Jammu & Kashmir Police. He

deposed that Jammu & Kashmir Government had made a

prayer to Central Government for banning Lashkar-e-Toiba on

account of its terrorist activities.

157. PW-108 is Sh. J.D. Singh, Sub-Divisional Engineer,

Lukhnow. He deposed that on 25.04.2001, Ins. Surender Sund

submitted to him an application Ex. PW-108/A for providing

the names and addresses of subscribers of telephones no.

260933, 251899, 651930, 247209 and 246220. He gave a

report Ex. PW-108/B mentioning the names and addresses of

said subscribers.

158. PW-109 is Hon. Cap. Man Singh. On 23.12.2000, he

collected the dead bodies of Naik Ashok Kumar and Sepoy

Uma Shankar with PW-105 Subedar Madho Singh and

corroborated the version of PW-105.

159. PW-110 is Subedar Satya Vijay Singh. On 22.12.2000, he

was posted as Junior Commissioned Officer, Training with 7th

Raj Rifles at Red Fort and removed injured Naik Ashok Kumar


: 93 :

to Armed Forces Medical College, Dalhousie Road, New

Delhi.

160. PW-111 is SI Mahesh Kumar. On 15.02.2001, he visited the

place of occurrence inside Red Fort with Ins. Surender Sund,

where he prepared a scaled site plan Ex. PW-111/A with the

assistance of Capt. S.P. Patwardhan.

161. PW-112 is Dr. G.D. Gupta, Principal Scientific Officer cum

Assistant Chemical Examiner. He examined blood samples of

deceased Abdullah Thakur, Uma Shanker and Ashok Kumar as

well as other exhibits lifted from the spot. He detected blood

on some exhibits while some exhibits were too small for

serological examination. His report is Ex. PW-112/A.

162. PW-113 is Sh. Shahvez Akhtar. He is known to Faisal and

Shahnawaz as they were his class fellows in a computer class.

Later on, he along with Shahnawaz taught at the center run by

Faisal and accused Md. Arif @ Ashfaq under the name and

style of “Knowledge Plus.”

163. PW-114 is Naib Subedar Dharam Chand. He deposed that

on 23.12.2000, he removed the clothes of deceased Abdullah

Thakur as per the direction of the doctor and these clothes were


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later on seized by the police vide Ex. PW-114/A. He had

identified the clothes as vest Ex. PW-114/1, shirt Ex. PW-

114/2, sweater Ex. PW-114/3, jersey Ex. PW-114/4 and wind-

chitter Ex. PW-114/5. He also identified the dead body of

Abdullah Thakur vide Ex. PW-114/B.

164. PW-115 is Subedar Ashok Kumar. On 23.12.2000, he along

with Havildar Ramesh Kakre searched the Red Fort as per the

directions of senior officers and during search, they recovered

thirty-seven empty cartridges and one live cartridge. These

were seized by the IO vide Ex. PW-115/A. He had identified

the empty cartridges as Exs. PW-115/1 to 37 and live cartridge

Ex. PW-115/38.

165. PW-116 is Havildar Ramesh Kakre. Since he was with PW-

115 Subedar Ashok Kumar on 23.12.2000, he has corroborated

the version of PW-115 Subedar Ashok Kumar in all material

particulars.

166. PW-117 is Sh. Mushid Ahmad Khan. He runs a PCO Booth

in Lukhnow with telephone No. 651930. In April-May 2001,

IO Ins. Surender Sund inquired from him if any call was made

from his booth to telephone No. 9811242154. He checked the


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record and found that a call was made from his booth to

aforesaid number on 03.11.2000.

167. PW-118 is Sh. T.R. Nehra, Principal Scientific Officer,

CFSL, New Delhi. He examined ten bank notes of Rs. 100/-

each, eight notes of Rs. 50/- each, one note of Rs. 10/- and one

note of Rs. 5/- and found all the notes to be genuine and his

report is Ex. PW-118/A.

168. PW-119 is SI Pradeep Kumar. He deposed that on

11.09.2001, Ins. Surender Sund moved an application Ex. PW-

119/A at FRRO for supplying the passport number and date of

arrival of one Attruddin (since P.O.) in India and the same was

supplied to him vide Ex. PW-119/B stating therein the passport

number as well as date of arrival i.e. 05.09.2000. On

27.08.2001, he moved another application Ex. PW-119/C

seeking date of departure of Atturddin (since P.O.) from India

and same was supplied to him vide Ex. PW-119/D and the date

of departure is 17.01.2001. Photocopy of embarkation card is

Ex. PW-119/E.

169. PW-120 is Sh. Md. Juber. He runs a PCO Booth at

Chopatia, Lukhnow with telephone No. 251899. On


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19.10.2000, a call was made from his telephone booth to

telephone No. 9811242154 and call lasted for 116 seconds.

170. PW-121 is Dr. Major Shashank Sharma. On 23.12.2000, he

was posted as Medical Officer with 7th Raj Rifles, at Red Fort.

When he reached the spot, he found dead bodies of Abdullah

Thakur and Uma Shanker and bodies were having bullet

injuries. With the help of nursing assistant Bhupender Singh,

he removed the clothes from the two dead bodies and same

were seized by the police.

171. PW-122 is Naik Suresh. He reached the spot after a short

while of the incident and found Naik Ashok Kumar lying in

injured condition in southern side. He had sustained bullet

injuries and he informed his senior and Naik Ashok Kumar was

removed to AFMC, Dulhousie Road, where his clothes were

removed and the same was handed over by him to the police

vide Ex. PW-122/A. He identified the clothes i.e. shirt, jersey,

pant, vest and nikkar Exs. PW-122/1 to 5. Thereafter, he also

took the police to the spot, where there were eight bullet

marks, where Naik Ashok Kumar was shot. Police lifted earth

from there, part of a fired bullet, blood, earth control, HMT


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watch, part of rack, chappal and plastic chair and same were

seized vide Ex. PW-122/B. He has identified portion of fired

bullet Ex. PW-122/1, HMT Watch Ex. PW-122/2, chappal Ex.

PW-122/3, plastic chair Ex. PW-122/4 and part of rack Ex.

PW-122/5. He also identified the dead body of Naik Ashok

Kumar vide Ex. PW-122/C.

172. PW-123 is Havildar Bhupender Singh. On 22.12.2000, he

was with PW-121 Dr. Major Shashank Sharma, so he has

corroborated his version. He further deposed that clothes of

Abdullah Thakur and Uma Shankar were handed over by him

to the police vide Ex. PW-123/A. He had identified the clothes

of Uma Shankar as shirt Ex. PW-123/1, vest Ex. PW-123/2,

pant Ex. PW-123/3 and jersey Ex. PW-123/4. In his presence,

police had also lifted blood and earth control from MT Park

and it was seized vide Ex. PW-123/B. He identified the dead

body of Uma Shankar vide Ex. PW-123/C.

173. PW-124 is Havildar Sri Ram (retired). On 23.12.2000, he

was posted as Havildar with 7th Raj Rifles, at Red Fort. He

identified the dead body of Uma Shankar vide Ex. PW-124/A.

174. PW-125 is Sh. S.K. Chadha, Senior Scientific Officer, CFSL


: 98 :

New Delhi. On 23.12.2000, he along with team of CFSL

officials, comprising CFSL Director Sh. S.R. Singh, Ballistic

Expert Sh. N.B. Bardhan, photographer Sh. Gautama Rai, Sh.

Harender Prasad of Finger Print Unit and Sh. Ravi Kumar from

physics Division visited Vijaya Ghat. One A.K. 56 Rifle with

magazine was found lyiny near the electric pole on the Western

Boundary wall of Vijaya Ghat. It was unloaded by Sh. N.B.

Bardhan wearing gloves. Later on rifle was taken to the office

of SHO, Kotwali, where it was examined for finger prints and

five finger prints Ex. Q-1 to Q-5 were found and same were

photographed. A piece of paper and currency notes were also

found lying outside the Red Fort. Again on 26.12.2000, he

along with Sh. A. Dey and Sh. N.B. Bardhan visited the Red

Fort,where one A.K. 56 Rifle, two magazines and one

bandoleer was found lying outside Red Fort. These items were

also taken to Police Station Kotwali, where these were

examined for finger prints and one finger print was found on

one hand-grenade, which was inside the bandoleer. He had

compared the finger prints with that of Abu Shamal and his

report in this regard is Ex. PW-125/A to C. He has correctly


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identified A.K. 56 rifle Ex. PW-125/1, two magazines Exs.

PW-125/2 & 3, thirty-two live cartridges which were found

inside the magazine as Exs. PW-125/4 to 35 and knife Ex. PW-

125/36. He has also identified four empties of hand-grenades

Ex. 50/5 to 8 and mechanical detonators Ex. PW-50/1 to 4.

He has also identified A.K. 47 rifle Ex. PW-62/1, magazine Ex.

PW-62/2 and cartridges Ex. PW-62/3 to 9.

175. PW-126 is Major Manish Nagpal. On 22.12.2000, he was

posted with 7th Raj Rifles at Red Fort as Captain. At about

9.05 pm, there was firing inside Red Fort coming from the

Ring Road Side. He took a Self-loading Rifle from Havildar

Talbir Singh and fired six rounds in the direction. He returned

the empties as well as the self-loading rifle to HC Talbir Singh

and also informed the Police Control Room.

176. PW-127 is Sh. Shahnawaz Khan. He runs a PCO booth at

Lukhnow with telephone NO. 247209. On 09.11.2000, two

calls were made from the Booth to telephone no. 9811242154

at about 16.49 and 18.51 pm. (Check)

177. PW-128 is Ex-Havildar Mahesh Chand. On 22.12.2000, he

was posted with 339 Independent Supply Platoon, Red Fort. At


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about 9.00 pm, on hearing crackers like sound, he along with

his colleagues came out and went to the spot, where Abdullah

Thakuar was on duty. He saw Abdullah Thakur lying on the

ground. Thereafter, he and others removed Abdullah Thakur to

M.I. Room. In this regard, he has corroborated the testimony

of PW-114 Naib Subedar Dharm Chand. Apart from that, he

also deposed that earth sample and two empties were lifted,

one from the sentry post and other from the place nearby, vide

Ex. PW-128/A. He had identified the empty Ex. PW-128/1,

stone pieces Ex. PW-128/2 and empty Ex. PW-128/3. Cotton

Swab by which blood was lifted is Ex. PW-128/4 and he also

identified the dead body of Abdullah Thakur is Ex. PW-128/D.

178. PW-129 is Sh. O.S. Srivastava, Senior Scientific Officer cum

Assistant Technical Examiner. He examined the exhibits lifted

from the spot and found human blood on several exhibits and

his report is Ex. PW-129/A.

179. PW-130 is Sh. Vinay Srivastava, Vigilance Passport Officer,

Lukhnow. He deposed that Attruddin Sidiqui (since P.O.) was

issued passport No. R-603403 from Regional Passport Office,

Lukhnow, which was valid for a period of ten years.


: 101 :

180. PW-131 is Retired Subedar D.N. Singh. On 22.12.2000, he

was posted as Incharge of magazine of 7th Raj Rifles Red Fort.

On that day, militants had attacked Red Fort and killed three

jawans. At that time, Major D.K. Singh and Capt. Nagpal fired

eleven rounds in retaliation and deposited their empties with

him. He had prepared a report in this regard and same is Ex.

PW-131/A. These empties were later on handed over to the

police and IO prepared sketch of the cartridge vide Ex. PW-

131/B and were thereafter taken into possession vide Ex. PW-

131/C. CFSL form was also filled in. He also identified these

empties vide Exs. PW-131/1 to 11.

181. PW-132 is Sh. Riaz Ahmad. He is Personal Assistant to the

Distt. Magistrate of Distt. Badgaon, J. & K. He deposed that

Nazir Ahmad Quasid and Farukh Ahmad Quasid were detained

in Kot Balwal Jail by the order of Distt. Magistrate, He has

placed on record the detention orders as well as grounds of

detention of both accused and same are Exs. PW-132/A to D.

The accused were detained for twenty-four months.

182. PW-133 is Major Margrate Henry. On 22.12.2000, at about

9.35 pm, she examined injured Naik Ashok Kumar and


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declared him brought dead. She further deposed that he died

on account of gun shot wound. She prepared MLC Ex. PW-

133/A and conveyed the information to the police vide Ex.

PW-133/B and her certificate about cause of death is Ex. PW-

133/C.

183. PW-134 is Havildar Dalbir Singh. On 22.12.2000, at about

9.00 pm, he was posted at Red Fort with 7th Raj Rifles. He has

corroborated the version of PW-131 Subedar D.N. Singh. He

further deposed that five rounds were fired by Major D.K.

Singh and six rounds were fired by Capt. Nagpal, empties of

which were deposed by them with the magazine.

184. PW-135 Dr. Rajender Singh, Senior Scientific Officer,

CFSL, Delhi. He deposed that on 10.05.2001, he received

nine parcels, no. 1 containing negligible quantity of earth Ex. 1,

2 control black coloured bituminous material Ex. 2, 5 cotton

swab containing negligible quantity of earth Ex. 5, 6 containing

brown coloured control earth Ex. 6, 8 containing cotton swab

Ex. 8 containing negligible quantity of earth , 9 brown coloured

earth control Ex. 9, 23 returned in original as no query was put

about it, 24 containing currency notes of Rs. 1,415/- with


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negligible quantity of earth Exs. 24 and 25 containing little

quantity of earth Ex. P 25. On laboratory examination of Exs.

1,2,5, 8, 9, 24 and 25, he could not carry out the comparison as

negligible quantity of earth was detected and same was not

sufficient for comparison and his report is Ex. PW-135/A.

185. PW-136 is HC Jitender Pal Singh. On 26.12.2000, he was

posted as duty officer at Police Station Kalyan Puri from 12

mid night to 8.00 am. On that night. at about 2.25 am, he

received a rukka Ex. PW-136/A sent by Ins. Ved Parkash,

through Ct. Rameshwar on which he recorded the FIR no.

419/00, carbon copy of which is Ex. PW-136/B and made

endorsement on the rukka Ex. PW-3/A at point A.

186. PW-137 is SI Rajender Singh. On 22.12.2000, he was

posted as Sub-Inspector in PS Kotwali. At about 9.30 pm, DD

entry no. 19-A Ex. PW-15/B was assigned to him and it was

regarding firing inside Red Fort. He along with Ct. Jitender

reached the spot, where he came to know that some persons

had entered inside the Red Fort and fired gun shot and caused

injuries to some persons and two of them had already died and

one person was removed to hospital. Ins. Roop Lal reached the


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spot shortly thereafter. He had recorded the statement of Capt.

S.P. Patvardhan, on which Ins. Roop Lal made endorsement

Ex. PW-15/D and handed over the same to him for getting a

case registered in the Police Station. He took the rukka to the

Police Station and got the case registered vide FIR No. 688/00,

Ex. PW-15/E and thereafter returned to the spot.

187. PW-138 is Sh. Afzal Taslim. He deposed that one Sh.

Mustaq Ahmad was his tenant at N-84, Batla House, Okhla,

New Delhi. He was also having a ration card in his name.

However, when he left the tenanted house, he handed over his

ration card to his (Afzal) brother. The said ration card was

later on handed over by Arshad Taslim to the police in the

presence of Afzal Taslim, which was seized vide memo Ex.

PW-138/A. Ration card is Ex. PW-138/1. Said ration card was

initially issued at the address of L-17 and subsequently it was

changed to N-84, Batla House.

188. PW-139 is Sh. Harun Alam. He joined the investigation of

the case on 05.02.2001 when ration card Ex. PW-139/A of

Akhtari Begum was seized by the police vide memo Ex. PW-

139/B.


: 105 :

189. PW-140 is Masroor Husan. He is husband of Akhtari

Begum. He has corroborated the version of PW-139 Harun

Alam. He got the ration card issued after paying Rs. 100/- to

one Banee.

190. PW-141 is Smt. Akhtari Begum. She has also corroborated

the version of PW-139 Sh. Harun Alam regarding seizure of

ration card Ex. PW-139/A.

191. PW-142 is Arshad Taslim. He has corroborated the version

of PW-138 Afzal Taslim regarding seizure of ration card Ex.

PW-138/1.

192. PW-143 is Sh. Anil Jhamb, Senior Manager, Satyam Online.

He deposed that prepaid cards of Internet connection are

available in the market and anyone can buy them and use the

same on his computer and telephone to access the Internet, but

he could not tell if the Internet was used on telephone No.

6315904.


: 106 :

193. PW-144 is Major D.K. Singh. On 22.12.200o, he was posted

with 7th Raj Rifles. He has corroborated the version of PW-

131 Subedar D.N. Singh regarding his firing of five rounds

inside the Red Fort in the direction, from which gun-shots were

heard.

194. PW-145 is Sh. Fiaz Ahmad. He is tenant of House of PW-20

Nain Singh. He deposed that Md. Arif, Azam Malik and Faisal

were also tenants in the said house. Later on Faisal opened a

computer centre with Md. Arif. Subsequently Faisal told him

that he required a ration card and he advised him to get it

prepared from the office. After sometime, Md. Arif @ Ashfaq

came to him and asked him to accompany him to the office for

preparation of ration card, but he expressed his inability and

instead introduced him to accused Matloob, who used to ran a

Fair-price shop.

195. PW-146 is Md. Arshad. On 07.02.2001, police seized his

ration card Ex. PW-205/A vide memo Ex. PW-146/A. He got

the ration card prepared by paying Rs. 100/- to Abdul Jabbar.

196. PW-147 is Sh. Shakeel. He is brother-in-law of PW-146

Md. Arshad and as such he has corroborated his version.


: 107 :

197. PW-148 is SI Zile Singh. ON 25.12.2000, he along with

other staff reached a flat no. 308-A, DDA Flat, Gazhipur as

there was secret information about the presence of accused Md.

Arif @ Ashfaq there. He reached there at about 12.45 am and

was apprehended. In his cursory search, a pistol of 7.63 bore

was recovered. Its magazine was checked and it was found to

contain five rounds. One round was in the chamber of the

postol. Ins. Ved Parkash prepared sketch of the pistol and

cartridges vide Ex. PW-148/A. The recovered pistol and

cartridges were seized vide memo Ex. PW-148/B after filling

up CFSL form. Ins. Ved Parkash prepared a rukka and got the

case registered at Police Station Kalyan Puri through Ct.

Rameshwar. SI Harender Singh was summoned to the spot and

investigation of the instant case was handed over to him. In the

personal search of accused Md. Arif, Rs. 1,000/- and a mobile

phone of Motorolla was recovered and same was seized vide

Ex. PW-148/C. Accused was arrested and his arrest memo was

prepared vide Ex. PW-148/D. He was interrogated and his

disclosure statement was recorded vide Ex. PW-148/E. He had

identified the pistol Ex. PW-148/1, live cartridges Ex. PW-


: 108 :

148/2 to 6 and fired cartridges Ex. PW-148/7 and magazine Ex.

PW-148/8.

198. PW-149 is Ct. Satbir Singh. He is photographer. On

23.12.2000, he went to Vijaya Ghat, where one A.K. 56 rifle

was lying and Ins. Roop Lal was also present and he took

photographs of the same from different angles. He also took

photographs of the notes, which were lying near the wall of

Red Fort. The photographs are Ex. PW-149/1 to 6 and

negatives of which Ex. PW-149/7 to 13. One photograph could

not be developed.

199. PW-150 is Sh. Satish Jacab. In the month of December

2000, he was Deputy Bureau Chief of British Broadcasting

Corporation, Delhi. He received application Ex. PW-150/A

seeking the details of the calls received in the office of BBC

regarding shoot-out at Red Fort. He gave a reply vide Ex. PW-

150/B stating therein that calls were received by Ayenjeet Sen,

Desk Editor on 22.12.2000 at about 9.00 pm. He also

informed the IO vide Ex. PW-150/C that Sh. Altaf Hussain was

the BBC Correspondent stationed at Sri Nagar.

200.PW-151 is Sh. Azmat Imam Khan. He deposed that he got


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his ration card Ex. PW-205/B prepared through accused

Matloob after paying him Rs. 400 to 600/-. The ration card

was seized by the police vide memo Ex. PW-151/A.

201. PW-152 is Ct. Parveen. He proved the DD entries Ex. PW-

152/A to F which were made regarding departure and arrival of

the officer. Vide DD No. 30-A Ex. 152/A, SI Arvind Pratap

Singh returned to the police Station after delivering the special

reports to the senior official, DD No. 3-A Ex. PW-152/B, a

responsibility for shoot-out in Red Fort was claimed by

Lashker-e-Toida, vide DD no. 9-A Ex. PW-152/C, Ins Roop

Lal arrived in the PS on 23.12.2000 and deposited the exhibits

in the Mal Khana, vide DD No. 49 Ex. PW-152/D Ins. Roop

Lal departed for patrolling and vide DD no. 73-B and 19-A Ex.

PW-152/E and F, SI Naresh and SI Sanjeev Kumar made their

departure entries along with staff.

202. PW-153 is Sh. Shahnawaz. He has corroborated the version

of PW-151 Sh. Azmat Imam Khan regarding seizure of ration

card vide Ex. PW-151/A.


: 110 :

203. PW-154 is Mohd. Taufiq Khan. His ration card Ex. PW-

154/A was seized by the police vide Ex. PW-154/B on

09.02.2001.

204. PW-155 is Abdul Rashid. He deposed that his ration card

Ex. PW-155/A was seized by the police vide memo Ex. PW-

155/B and he got the same prepared from the Ration Office.

205. PW-156 is Md. Tauhid Khan. He is son of PW-154 Md.

Taufiq Khan and as such he has corroborated his version.

206. PW-157 is Sh. Sajid Khan. He was present at the time, when

the ration of PW-154 Md. Taufiq Khan was seized and as such,

he has corroborated his version.

207. PW-158 is Mohd. Wasi. He has corroborated the version of

PW-155 Sh. Abdul Rashid. He has also proved a slip Ex. PW-

158/A.

208. PW-159 is Sh. Nazmul Hoda. He has corroborated the

version of PW-158 Sh. Mohd. Wasi as he was also present,

when ration card was seized.

209. PW-160 is Ct. Praduman Kumar. On 22.12.2000, he went

to Red Fort. He took photographs of place of occurrence

including supply depot, M.T. Park and training store. His


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photographs are Ex. PW-160/1 to 24, negatives of which are

Ex. PW-160/25 to 48. Again on 06.04.2001, he took

photographs of the bushes behind the Red Fort and these

photographs are Exs. PW-160/49 to 54, negatives of which are

Ex. PW-160/55 to 60.

210. PW-161 is SI Hans Raj. On 04.02.2001, he was posted at

Police Post Bali Maran. On that day, he accompanied Ins.

Surender Sund to the property No. 5123 of Sher Zaman for

attaching his property and some property was attached vide Ex.

PW-161/A.

211. PW-162 is Ins. J.S. Chauhan of Border Security Force. He

deposed that on 26.12.2000, a message to the effect that

militant wanted in shoot-out inside Red Fort known as Ashfaq

Ahmad had been apprehended and other militant Abu Shamal

had been killed, was intercepted by the BSF when the message

was being passed by militant Abu Shakar to a station in Khyber

in Pakistan occupied Kashmir. This message was forwarded

to the concerned officers by Sh. B.S. Virk, DIG West and same

is now Ex. PW-162/A.

212. PW-163 is Sh. Shahnawaj Ahmad. He was class fellow of


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Shahvej Akhtar and Faisal in 1998 at Aptech Computer

Centre. He further deposed that Faisal used to reside at the

house of Nain Singh and he had a personal computer on which

Faisal and he used to practice. Later on, Faisal along with Arif

opened a computer centre by the name “Knowledge Plus” in

Okhla and both of them were appointed faculty members.

213. PW-164 is Ms. Anju Goel From December 95 to August

2000, she was posted as LDC in Circle-6, Okhla, Phase-II. She

used to deal with the preparation of the ration cards. She

further deposed that after receipt of the forms in the office for

issuance of ration cards, same were used to be got verified

through the Area Inspector and thereafter ration cards were

used to be prepared as per the recommendation of the

Inspector. She deposed that ration card Ex. PW-164/A does

not bear any entry in her hand, nor the same contains her

initials. She further deposed that police had obtained her

handwriting and signatures on four pages vide Exs. PW-164/B

to E.

214. PW-165 is Sh. Dharamvir Sharma. He was posted as Food &

Supply Officer from 17.07.97 to 20.07.2000 at Circle-6, Okhla


: 113 :

and accused Mool Chand was an Inspector under him. The

duties of accused Mool Chand included maintenance of public

distribution system in his area and to accept forms for issuance

of ration cards and to verify and to report thereon. He further

deposed that ration card Ex. PW-164/A of Ashfaq Ahmad

Khan was not issued by him nor the same bears his initial or

that of Ms. Anju Goel, clerk in his office. He further deposed

that police obtained his specimen signatures vide Ex. PW-

165/A to D. He further deposed that ration card Exs. PW-

154/A, PW-184/B, PW-203/A, PW-178/B and PW-205/A and

B do not bear his signatures as same were not issued from his

office.

215. PW-166 is HC Rameshwar Dayal. On 25.12.2000, he had

accompanied PW-173 Ins. Ved Parkash, PW-148 SI Zile Singh

and other staff to flat no. 308, DDA Flat, Gazhipur, Delhi as

such he has corroborated the version of PW-148 SI Zile Singh.

He further deposed that he took the rukka Ex. PW-136/A to

Police Station Kalyan Puri and got the present case registered

and after registration of the case, he returned to the spot and

handed over the copy of FIR and rukka to the IO. On


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02.01.2001, he took a pulanda from Police Station Kalyan Puri

and deposited the same with FSL, Malviya Nagar in intact

condition.

216. PW-167 is Sh. G.L. Meena, Deputy Secretary (Home) New

Delhi. He deposed that on 20.03.2001 and 21.03.2001,

Hon'ble Lt. Governor of Delhi granted the sanction for

prosecution of accused Md. Arif @ Ashfaq @ Abu Hamal U/s

121/121-A IPC, U/s 25/27 Arms Act, U/s 4/5 Explosive

Substances Act U/s 7 of Explosive Substance Act and for

prosecution of Farukh Ahmad Quasid and Nazir Ahmad

Quasid and other accused u/s 121/121-A IPC. Similarly,

sanction was also granted on 29.11.2001 for prosecution of

accused Atturddin (since P.O.) u/s 121/121-A IPC. These

sanction were conveyed by him to the concerned officials and

now are Exs. PW-167/A to D.

217. PW-168 is Ins. R.S. Bhasin. He joined the investigation of

the case on 27.12.2000, when he interrogated accused

Rehmana. He again joined the investigation of the case on

01.01.2001 with Ins. Hawa singh. Accused Ashfaq made a

disclosure statement vide Ex. PW-168/A. Consequent to the


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disclosure statement, a raiding party was organized in which SI

Mukesh Kalia of Police Post Jamia, Sh. Raghuvir Singh

security guard of Jamia Milia University and one public man

Sh. Devender Kumar were also joined. As per disclosure

statement, accused Ashfaq got recovered three HG-84 hand-

grenades from near the boundary wall of Jamia Milia

University. Same were sealed and seized vide Ex. PW-168/B.

Form CFSL was also filled in. He prepared a rukka Ex. PW-

168/C and got a case registered through Ct. Vijay Singh at

Police Station New Friends Colony. Thereafter, investigation

of the case was assigned to SI Sunder Lal. SI Sunder Lal

interrogated the accused and recorded his disclosure Ex. PW-

168/D. Later on, these hand-grenades were got destroyed from

the official of NSG.

218. PW-169 is SI Sunil Kumar. He joined the investigation of

the case on 16.02.2001. On that day, he deposited the

specimen handwriting and questioned documents in intact

condition with the CFSL after collecting the same from the

MHCM of police station Kotwali. On 17.02.2001, he along

with Ins. Surender Sand and SI Amarjeet Sehgal went to


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Akashdeep Motor Driving College, Ghaziabad, but the same

was found closed. However, on the board of Akashdeep Motor

Driving College, telephone numbers 4717676 and 4765453

were written and a guarantee to get all works from A to Z done

was also written. Telephone number 4717676 was found to be

in the name of Sh. Manoj Kumar while telephone no. 4765453

was found to be in the name of one Shanti Devi. On the same

day, they also went to Star Motor Driving College, Ghaziabad

and from there they took three forms from a heap of forms

lying there. Form no. 2 and 3 were for issuing learning licence

from Haryana and Delhi and form no. 4 for getting permanent

licence from Ghaziabad. These forms were seized vide memo

Ex. PW-169/A and are now Exs. PW-169/B-1 to B-3.

Similarly, from house no. 184, Gulzar Abrahim, Chatta Road,

Munia ka Pul, Meerut, they also collected three forms from

thousands of forms lying there and these forms were for getting

learning licence from Haryana and Delhi as well as permanent

licence from Ghaziabad. The three forms were seized vide

memo Ex. PW-169/C and forms are Exs. PW-169/D-1 to D-3.

Similarly, on 02.03.2001 Kushal Pal came to the office of


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Special Cell in his presence and brought a register with 110

pages and at page no. 65, entry no.-929, ration card bearing no.

258754 of one Ashfaq Ahmad Khan R/o F-17/12, Batla House,

Okhla, was found to be entered. The register is Ex. PW-169/E

and it was seized vide memo Ex. PW-169/F.

219. PW-170 is Sh. Vijay Kumar. He is younger brother of Naik

Ashok Kumar. He identified the dead body of his brother on

23.12.00 vide his statement Ex. PW-170/A.

220. PW-171 is SI Sudhir Singh. On 22.12.00, he reached the

Red Fort at about 9.40 pm and from there he went to AFMC

hospital where injured Naik Ashok Kumar had already been

taken. However, Naik Ashok Kumar had expired by that time

and thereafter he collected his MLC, accompanied the dead

body to Base Hospital and from there returned to Red Fort. On

the next day, he went to the mortuary, Subzi Mandi with IO

Ins. Roop Lal.

221. PW-172 is Sh. Manohar Lal. He is clerk in the Department

of Education, NCT of Delhi. Earlier, he was posted in ration

office, circle-6, Okhla. He deposed that ration card No.

258754, Ex. PW-164/A, in the name of Ashfaq Ahmad was not


: 118 :

issued from his office. He has corroborated the version of PW-

7 Sh. S.R. Raghav and PW-164 Ms. Anju Goel.

222. PW-173 is Ins. Ved Parkash. He joined the investigation

of the case on 25.12.2000 as a member of raiding party, which

raided the house no. 308-A, DDA Flats, Gazhipur, Delhi, from

where accused Arif @ Ashfaq was apprehended at 12.45 am.

He further deposed that in his personal search, a pistol loaded

with six cartridges was recovered. On this point, he has

corroborated the version of PW-148 SI Zile Singh. He

prepared rukka Ex. PW-173/A and got the case registered

under Arms Act at Police Station Kalyan Puri. He further

deposed that in the house-search, ration card Ex. PW-164/A,

driving licence Ex. PW-13/A, cheque-book Ex. PW-173/C,

ATM card Ex. PW-173/D, three pay-in-slips Exs. PW-173/E to

G, passport of Rehmana Yusuf Farukhi Ex. PW-173/H, her

Identity-card of a college Ex. PW-173/I, cheque-book of SBI

Ex. PW-173/J, one cash deposit slip of Standard Chartered

Grindlays Bank Ex. PW-173/K, personal diary Ex. PW-173/L

and one digital diary Ex. PW-173/M were recovered and the

same were seized vide memo Ex. PW-173/B. On 29.12.2000,


: 119 :

he visited the Standard Chartered Bank, Cannaught Place and

collected the photocopies of account opening forms and

statements of account of all the three accounts bearing Nos.

32263962 belonging to M/s Nazir Sons, 28552609 of Mr. Bilal

Ahmad Kawa and 32181669 of Mr. Farukh Ahmad Quasid.

His application in this regard is Ex. PW-173/N and photocopies

of these documents are mark as PW-173/A-1 to 25. On

30.12.2000, he moved another application Ex. PW-173/O

praying for receipts of the cash deposits in the three accounts

and nine receipts were handed over to him, which are now Exs.

PW-27/1 to 9. Thereafter, he has corroborated the version of

PW-22 Sh. Sanjeev Srivastava.

223. PW-174 is Sh. Kushal Kumar. He deposed that he used to

run a Fair Price Shop no. 8993, at premises No. 79/786

Jogabai, Okhla, which was taken on rent by him from father of

accused Matloob Alam. Accused Matloob also had a Fair Price

Shop in the same premises. He further deposed that in August

2000, accused Md. Arif @ Ashfaq had come to his shop with a

new ration card Ex. 164/A and asked him to enter the same at

his shop, as he had been sent by Matloob Alam and Mool


: 120 :

Chand Sharma. Mool Chand Sharma was Food Inspector of

his area and he used to inspect his shop. He entered the ration

card Ex. PW-164/A at his shop vide entry Ex. PW-174/A in his

register Ex. PW-169/E. He had informed Mool Chand

Sharma about this ration card. He used to prepare a daily stock

register and two registers are Exs. PW-174/B and C. Monthly

statement sent by him regarding his shop are Exs. PW-174/D1

to D7 and these were used to be checked by Mool Chand

Sharma. These statements were seized by the police vide Ex.

PW-165/A. Inspection report of the ship is Ex. PW-174/E and

the inspection notes of Mool Chand Sharma are Exs. PW-

174/F-1 to 10. Entry no. 213 with card no. 258719 in the name

of Mohd. Isaque was also made by him. Entries of some ration

cards were also made in register Ex. PW-169/E by accused

Matloob Alam. Register Ex. PW-169/E was taken away in the

month of January by accused Matloob Alam on the pretext for

checking some ration cards and when the same was returned,

there were cuttings and overwritings in the register and when

he questioned accused Matloob Alam about these cutting and

overwritings, he replied that it does not matter and this fact was


: 121 :

also brought into the notice of Mool Chand Sharma.

224. PW-175 is Ct. Suresh Kumar of BSF. On 26.12.2000, he

was posted at Interception Cell of the BSF situated at Karan

Nagar, Sri Nagar. On that day, he intercepted a message which

was being passed from Sri Nagar to Pakistan through a wireless

set and the message was that Delhi Police had killed one

militant Shammal Bhai and one more militant Abu Hamad

Hazarvi (whose real name is Ashfaq) had been apprehended

and militant Bilal Babbar was hiding at his hideout in Delhi.

The text of the message is Ex. PW-162/A. The message was

passed on to senior officials.

225. PW-176 is HC Sunil Kumar. On 26.12.2000, he was posted

as Duty officer at PS New Friends Colony and on receipt of

rukka, he registered FIR no. 632/2000, carbon copy of which is

Ex. PW-176/A, u/s 188 IPC against Gian Chand. The case

resulted in conviction vide order dated 09.03.2001. A DD

entry no. 6-A Ex. PW-176/B was recorded regarding

registration of the case.

226. PW-177 is Ct. Ranbir Singh. He brought the carbon copy of

FIRs no. 13/01, 259/01 and 630/00 registered at PS New


: 122 :

Friends Colony vide Exs. PW-177/A to C. He also proved DD

no. 11 made by Ins. R.S. Bhasin vide Ex. PW-177/D.

227. PW-178 is Md. Arif. On 20.02.2001, ration card Ex. PW-

178/B of one Mohd. Shamim was seized by the police vide Ex.

PW-178/A in his presence.

228. PW-179 is Havildar Dhan Singh. On 23.12.2000, he along

with Subedar Man Singh got conducted postmortem on the

dead body of Abdullah Thakur and thereafter handed over his

dead body to his relatives vide Ex. PW-179/A.

229. PW-180 is Sh. Gulzar Ahmad. Senior Telecome Assistant,

Sri Nagar. He deposed that IO Ins. Surender Sund had moved

an application Ex. PW-180/B dated nil for supplying the names

and addresses of the subscribers of telephones mentioned in the

application and the same was supplied by Sh. M.L. Raina,

Chief Accounts Officer vide Ex. PW-180/A.

230. PW-181 is Sh. Moti Lal. He was employed as a trainer at

Seven Star Motor Driving College, where accused Devender

was manager. In the month of August-September 2000, he

gave driving training to accused Ashfaq on car No. 1905, as per

the instructions of Devender Singh.


: 123 :

231. PW-182 is Sh. Gopal Krishan. He has corroborated the

version of PW-86 Ins. Pratap Singh Dhillon regarding a

negative being identified by accused Md. Arif @ Ashfaq as that

of Abu Bilal.

232. PW-183 is SI Sanjay Kumar. On 22.12.2000, at about 9.45

pm, he reached the spot as per the instructions of Ins. Roop Lal,

as such he has corroborated the version of PW-15 HC Virender

Kumar, PW-114 Naib Subedar Dharam Chand, PW-123

Havildar Bhupender Singh and PW-189 Major S.P. Patvardhan.

He also deposed that they were sent to rear side of Red Fort for

carrying out search and outside the Red Fort, just below the

rear wall, a chit along with some currency notes was found and

the chit bore mobile telephone no. 9811278510. The currency

notes comprised ten notes of Rs. 100/- eight note of Rs. 50/-

one note of Rs. 10/- and one note of Rs. 5/-, total amounting to

Rs. 1145. These currency notes and chit were handed over to

Ins. Roop Lal and were seized vide Ex. PW-183/A and chit

with telephone number was pasted on a paper Ex. PW-183/B

and the chit is now Ex. PW-183/C. Earth control was lifted

from the spot. Thereafter, they came to the inside of Red Fort


: 124 :

and recovered a rope measuring about 50 feet and black cap

with a monogram. These articles were also handed over to Ins.

Roop Lal and were seized by him vide Ex. PW-183/D. He has

identified the chit, currency notes, rope as well as cap vide Ex.

PW-183/1 to 23.

233. PW-184 is Sh. Ibadur Rehman. On 11.02.2001, police

seized a ration card, Ex. PW-184/A, of one Harun Ali, which

was produced by his brother Samaryab Ali, vide Ex. PW-

184/B.

234. PW-185 is Col. R.P.S. Bhaturia. On 22.12.2000, he was

posted at Commanding Officer of 7th Raj Rifles at Red Fort.

When he was informed about the incident of firing, he reached

the spot. He also deposed that in the firing incident, three of

his jawans namely Uma Shankar, Abdullah Thakur and Ashok

Kumar had died. He also filed a complaint Ex. PW-185/A in

this regard.

235. PW-186 is Meer Rasik Ahmad. On 09.01.2001, he was

posted as SHO, Sadar, Sri Nagar. On that day, Ins. Surender

Sund along with accused Ashfaq came to the police station and

he accompanied them to the house of Nazir Ahmad Quasid and


: 125 :

Farukh Ahmad Quasid.

236. PW-187 is Dr. K.L. Sharma. On 23.12.2000, he conducted

postmortem on the dead bodies of Uma Shankar, Abdullah

Thakur and Ashok Kumar. He deposed that the injuries were

caused by firearm and all injuries caused were ante-mortem in

nature and were sufficient to cause death in ordinary course of

nature.

237. PW-188 is Sh. Samaryab Ali. He has corroborated the

version of PW-184 Ibadur Rehman regarding seizure of ration

card.

238. PW-189 is Major S.P. Patvardhan. On 22.12.2000, he was

posted as Adjutant to 7th Raj Rifles, Red Fort, Delhi. At about

9.00 pm, he was present at his residence, when he heard sound

of firing, which was coming from the direction of MT Park.

On this, he rushed to the direction of firing and was informed

that two persons in black dress had come from the direction of

Salimgarh Gate and were carrying AK Assault rifles and fired

upon civilian sentry Abdullah Thakur and had killed him.

Thereafter, they came to the MT park and fired upon rifleman

Uma Shankar and killed him on the spot. Thereafter, these two


: 126 :

persons came to the Unit Lines and fired upon Naik Ashok

Kumar and injured him. Thereafter, they escaped towards ASI

area. They were fired upon by Quick Reaction team of Army,

which comprised Major Nagpal, Major Devender Singh and

some army jawans. Police was informed. However, he had

ordered the gates of the Red Fort to be closed and for this

reason, it took some time for the police to reach the spot. Ins.

Roop Lal along with staff reached there and he handed over the

FIR Ex. PW-189/A. During search, 28 live and 40 fired

cartridges were recovered from the Red Fort. He had also

shown the place of incident to the IO. Three Magazines, live

cartridges and fired cases were handed over to the police and

the police prepared sketch thereof vide Ex. PW-189/B and the

same were seized vide Ex. PW-189/C. He has identified all the

articles recovered from the spot and seized by the police and

same are Ex. PW-189/1 to 71. On 15.02.2001, he had also

shown the place of incident to the draftsman. He also deposed

that on that day, Hindi version of light & sound programme

scheduled from 6.00 pm to 7.00 pm was not held on account of

electricity failure.


: 127 :

239. PW-190 is HC Azmat Khan. On 01.01.2001, he was posted

as MHCM at PS New Friends Colony. On that day, Ins. R.S.

Bhasin deposited three sealed parcels with CFSL Form with

him and he made a entry in the register in this regard. On

15.01.2001, SI Girish Jain took the parcel to the Bomb

Disposal Unit of NSG and deposited a sealed parcel sealed with

the seal of GJ containing the remnants of the defused hand-

grenades. On 05.03.2001, these parcels were handed over to SI

Sunder Lal for being deposited with CFSL, Lodhi Colony. The

entries in this regard are Ex. PW-190/A.

240. PW-191 is Smt. Sunita, LDC, Food & Supply Office. On

07.06.2001, she was posted in circle-6 of Food & Supply

Department and gave specimen of the two rubber stamps vide

Ex. PW-191/A to C and PW-191/D and E in FIR no. 688/00,

PS Kotwali. Similarly, She had also given the specimen stamp

impressions on nine pages of the two stamps in FIR no. 65/01,

PS New Friends Colony vide Ex. PW-191/F to O.

241. PW-192 is Sh. N.N. Mahtrotra, Dy. Secretary, Home,

(Retired). He deposed that on 16.07.2000, the file of FIR No.

3/01, PS New Friends Colony was received for grant of


: 128 :

sanction u/s 7 of Explosive Substances Act against accused

Md. Arif @ Ashfaq . The file consisted of draft charge-sheet,

site plan, statements of witnesses, CFSL report and other

material and Hon'ble Lt. Governor after applying his mind, was

pleased to grant sanction, which was conveyed by him. The

sanction is Ex. PW-192/A.

242. PW-193 is Major Sanjay Kumar Shukla. On 15.01.2001, he

was posted at Bomb Disposal Squad/Unit of NSG. On that

day, SI Girish Jain had brought three hand-grenades for

destruction, which were destroyed by him and remnants were

handed over to SI Girish Jain, along with Destruction

Certificate vide Ex. PW-85/C. He had also destroyed three

more hand-grenades of FIR no. 630/00, PS New Friends

Colony and returned its remnants to the concerned police

official. He has identified the remnants Ex. PW-193/1 and 2.

243. PW-194 is SI Harender Singh. On 26.12.2000 at about

12.55 am, he was summoned by Ins. Ved Parkash at flat no.

308-A, DDA Flat, Gazhipur, Delhi. He reached there, where

Ins. Ved Parkash along with staff was present with accused

Ashfaq in their custody. He was informed that a pistol was


: 129 :

recovered from accused Ashfaq along with cartridges. A

sealed parcel containing the pistol and cartridges, recovery

memo and sketch was handed over to him. Rukka was sent for

registration of the case. He inspected the scene of occurrence

and prepared a site plan Ex. PW-194/A. Thereafter, Ins. Ved

Parkash conducted search of house of Rehmana Yusuf and in

this regard, he has corroborated the version of PW-173 Ins.

Ved Parkash. Ct. Rameshwar returned to the spot after getting

the case registered and handed over the carbon copy of the FIR

to him for further investigation. He recorded the statements of

the witnesses and interrogated accused Md. Arif @ Ashfaq and

arrested him in this case vide Ex. PW-148/D, conducted his

body inspection vide memo Ex. PW-194/B, conducted personal

search of accused Md. Arif @ Ashfaq vide memo Ex. PW-

194/C and in the personal search, Rs. 1000/- in cash and a

mobile telephone, of motorolla company, bearing card No.

0006680375 with mobile no. 9811278510 was recovered. He

identified the telephone as well as the currency notes Exs. PW-

194/D-1 to D-10. Disclosure statement Ex. PW-148/E of the

accused Md. Arif @ Ashfaq was also recorded and intimation


: 130 :

was sent to his relatives regarding his arrest vide Ex. PW-

194/E. The accused was also arrested in FIR no. 688/00, PS

Kotwali. Case property was deposited in the Malkhana and

thereafter sent to FSL for examination. Permission was

obtained u/s 39 of Arms Act, statements of witnesses were

recorded and investigation in FIR no. 419/00, PS Kalyan Puri,

was completed.

244. PW-195 is Sh. Rakesh Bakshi, Senior Security Manager,

Bharti Cellular Ltd. Delhi. He deposed that on 20.02.2001, he

was working as security manager in the aforesaid company.

He received a request letter Ex. PW-195/A from the IO Ins.

Surender Sund for call details of Mobile No. 9810263721. He

collected information vide Ex. PW-195/B and supplied the

same to the IO through a letter Ex. PW-195/C.

245. PW-196 is Ct. Ravinder Kumar. On 22.12.2000, he reached

place of incident. There, dead bodies of Uma Shankar and

Abdullah Thakur were removed by him and Ct. Krishan Kumar

to the Base hospital. Dead body of Ashok Kumar was also in

the custody of SI Sudhir Kumar. The three dead bodies were

removed to the Subzi Mandi mortuary, where postmortem was


: 131 :

conducted and after postmortem, the dead bodies were handed

over to army officials. After postmortem, Dr. K.L. Sharma

handed over eight sealed parcels, which were handed over by

him to the SHO, and were seized by him vide Ex. PW-196/A.

246. PW-197 is Sh. T.N. Meena, who was Food & Supply Officer

in the office of Commissioner, Food & Supply, Delhi in 2000.

He deposed that vide letter Exs. PW-197/A and B, police had

sought certain details about the posting of accused Mool Chand

Sharma, who was a Food Inspector in the Department, printing

of ration cards and fixation of quota of Fair Price Shops. The

reply was given vide Ex. PW-197/C. The duties and

responsibilities of a Food Inspector are Ex. PW-197/D.

247. PW-198 is Sh. Rajiv Pandit, General Manager,

Administration Security, ESSAR. He deposed that IO Ins.

Surender Sund moved an application seeking call details about

mobile telephone no. 9811278510. The details was supplied for

the period 26.10.2000 to 23.12.2000 vide letter Ex. PW-198/A.

The sim-card of aforesaid mobile number was used in two

different handsets and the call details running into three pages

are Exs. PW-198/B-1 to B-3 were supplied by him. He had


: 132 :

also given the cell-ID (Identification of the Cell site) vide Ex.

PW-198/C. He further deposed that on 20.02.2001, IO Ins.

Surender Sund moved another application for seeking details of

IMEI No. 449173405451240 and 445199440940204 and speed

card no. 0006680375. He had furnished the requisite details as

well as call details of mobile numbers 9811242154 and

9811278510 vide Ex. PW-198/D. Call details of mobile no.

9811242154 are Ex. PW-198/E, which runs into nine pages.

The detail contains incoming as well as outgoing calls.

Similarly, detail of mobile no. 9811278510 were also provided

to the IO on his application Ex. PW-198/F and same runs into

eleven pages and the details are Ex. PW-198/G. The call which

was made on 22.12.2000 at 19.41.35 hours from telephone

number 9811278510 was made from Chandni Chowk to

telephone no. 0194452918. Similarly, call which was made

from the aforesaid telephone number on 21.25.25 hours, was

made to telephone no. 0113355751(BBC) and the position of

the caller was at Kashmiri Gate. Next calls were made at

21.27.30, 21.33.14, 21.33.45 hours to telephone number

0194452918 and to telephone number 0113355751 and at


: 133 :

21.50.55 hours a telephone call was received on the aforesaid

telephone and the caller was at Chandni Chowk. Next call was

received at 21.52.05 hours when the cell was at Chandni

Chowk. A call was received 22.06.008 made by telephone

number 114690042 and the receiver was at Chandni Chowk.

248. PW-199 is Sh. Rakesh Behari, Joint Secretary to Govt. of

India. On 13.06.2001, he was posted as Commissioner, Food

& Supply, Govt. of NCT, Delhi. He was Head of the

department of accused Mool Chand Sharma, who was posted as

Inspector under him. On receipt of a letter u/s 197 Cr.P.C, he

perused the entire record, statements of the witnesses as well as

vigilance report and after application of mind, he granted

sanction for his prosecution u/s 197 Cr.P.C vide Ex. PW-

199/A.

249. PW-200 is Ins. Shamsher Singh. On 03.01.2001, he had

accompanied PW-13 Ins. Rajender Singh to RTO Ghaziabad

and as such he has corroborated his version.

250. PW-201 is Sh. Raj Kumar Sharma, Superintendent of Police

Lasdweep. He deposed that on 12.02.2001, he was posted as

Additional DCP (East) Delhi. File of Md. Arif @ Ashfaq was


: 134 :

placed before him for granting sanction u/s 39 of Arms Act and

on perusal of the file, he granted sanction vide Ex. PW-201/A.

251. PW-202 is Sh. N.B. Bardhan, Senior Scientific Officer cum

Asstt. Chemical Examiner, CFSL, Delhi. He deposed that on

24.01.2002, 39 sealed parcels were received by him bearing

mark no. 1 to 6, 7-A to 7-H, 8 to 17, , 18, 18-A, 19, 19-A, 23,

27, 29, 31, 32, 34, 35 and 36 and these contained one 7.62 mm

assault rifle fired cartridgecase mark C/1 Ex. No. 3, assault rifle

fired cartridgecase C/2 Ex. No. 4, lump of dust Ex. 7-A, lump

of dust Ex. 7-B, lump of grey colour dust Ex. 7-C, lump of grey

colour dust 7-D, lump of grey dust Ex. 7-E, lump of grey

colour dust Ex. 7-F, one fired bullet of assault rifle mark BC/1,

lump of grey colour dust, lump of grey colour dust Ex. 7-H,

metallic railing piece Ex. 13, three empty magazines of assault

rifle mark M-1 to M-3, twenty-eight 7.62 assault rifle

cartridges Ex. PW-18, mark C/3 to C/30, one assault rifle

cartridge mark C/31, forty 7.62 assault rifle fired cartridges

mark C/32 to C/71, thirty-seven 7.62 mm assault rifle fired

cartridge cases C/73 to C/108, one small cloth cover sealed

with the seal of HS having thirty-two 7.62 mm assault rifle


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cartridges mark C/109 to C/140, one 7.62 mm (AK-56) assault

rifle mark W/1 with serial no. R-5781, two empty magazines of

7.62 assault rifle mark M/4 to M/5, one folding type kitchen

knife mark A/1, one pouch (bandoleer), four ARGES-SPL-

HGR-84 hand-grenades mark H/1 to H/4, four detonators with

attached liver mark D/1 to D/4, one 7.62 mm (AK-56) assault

rifle W/2 without its magazine bearing serial no. N-16341, one

empty magazine of 7.62 mm assault rifle mark N-6 and seven

7.62 mm assault rifle cartridges mark C/141 to C/147. He

examined all these parcels.

After examination, he found that assault rifle 7.62 mm

(AK-56), mark W/1 and assault rifle 7.62 mm (AK-56) mark

W/2 were found to be firearms as it defined in Arms Act and

were found to be in working order and were fired through.

Twenty-eight 7.62 mm assault rifle cartridges mark C/3 to

C/30, 7.62 mm assault rifle cartridge mark C/31, thirty-two

7.62 mm assault rifle cartridges mark C/109 to C/140 and

seven 7.62 mm assault rifle cartridges mark C/141 to C/147

were found to be ammunitions as defined under the Arms Act

and were live one. 7.62 mm assault rifle cartridge case mark


: 136 :

C/1, six 7.62 mm assault rifle cartridge cases mark C/49, C/52,

C/56, C/58, C/64 and C/71, twenty-one 7.62 mm assault rifle

cartridge cases mark C/72, C/74, C/75 to C/80, C/82 to C/84,

C/86, C/89, C/91, C/94 to C/96, C/102, C/106 to C/108 were

fired from 7.62 mm AK assault rifle mark W/1. Similarly, 7.62

mm assault rifle cartridge cases mark C/2, thirty-four 7.62 mm

assault rifle cartridge cases mark C/32 to C/48, C/50, C/51,

C/53 to C/55, C/59 to C/63 and C/65 to C/70, sixteen 7.62 mm

assault rifle cartridge cases mark C/73, C/77, C/81, C/85, C/87,

C/88, C/90, C/92, C/93, C/97, C/100, C/101, C/103 to C/105

were fired from 7.62 mm assault rifle (AK-56) mark W/2.

Fired bullet of 7.62 mm assault rifle mark BC/1 was fired from

7.62 mm assault rifle mark W/1. Four defused/dismantled

standard ARGES hand-grenades were live one and were

explosive substances as defined under the Explosive

Substances Act. The three magazines of 7.62 mm assault rifle

mark M/1 to M/3 and two magazines of 7.62 mm assault rifle

mark M/4 to M/5 and one 7.62 mm assault rifle mark M/6 were

found in working order and can be loaded in a standard 7.62

mm assault rifle. His opinion in this regard is Ex. PW-202/A.


: 137 :

He further deposed that twenty-eight live cartridges mark C/2

to C/30 could be loaded in assault rifle mark W/1 and W/2 and

can be fired from the said rifles.

He along with other officials also visited the spot on

23.12.2000. He also deposed that one 7.62 mm assault rifle

fitted with magazine in loaded condition was found adjacent to

an electric pole near the western boundary of Vijaya Ghat and

the same was photographed and unloaded under the supervision

of fingerprint expert in order to avoid destruction of chance

prints, if any and it was examined by fingerprint expert at PS

Kotwali. He also inspected the scene of crime inside the Red

Fort. He also visited the Red Fort on 26.12.2000 on the request

of Delhi Police, when arms, ammunitions and hand-grenades

were recovered outside Red Fort. On examination of the scene,

he saw one 7.62 mm AK-56 assault rifle without magazine, two

magazines and one bandoleer lying amidst the bushy plants

adjacent to Eastern side boundary wall of Red Fort. The spot

was photographed and exhibits were taken to PS Kotwali,

where these were examined for chance prints by fingerprint

expert. The bandoleer was found to contain four hand-


: 138 :

grenades and one kitchen knife. Two magazines were found to

contain thirty-two 7.62 mm live cartridges of assault rifle. He

prepared a site inspection report Ex. PW-202/B. He also

received a sealed parcel on 20.08.2001 with seal intact and it

was found to contain eleven 7.62 mm self-loading rifle fired

cartridge cases mark C/1 to C/11 and these were made by

ordnance factory, Kirki, India. These could not be loaded into

either of the two 7.62 assault rifle mark W/1 and W/2 and his

report in his regard is Ex. PW-202/C. He had identified the

entire case property including lump of grey colour Ex. PW-

202/1 and one cartridge of assault rifle 7.62 mm Ex. PW-202/2.

He also proved his report dated 18.09.2001 Ex. PW-202/D.

252. PW-203 is Sh. Babu Ram Joshi. He deposed that he got his

ration card Ex. PW-203/A prepared through accused Matloob

Alam and the same was seized by the police vide Ex. PW-

203/B as it was found to be duplicate one.

253. PW-204 is Sh. Rajesh Batra. He was posted as reader to

Asstt. Commissioner, Food & Supply, South Delhi. He handed

over to the police the photocopy of the licence of Fair Price

Shop of M/s Raj Store, R-79/787, Jogabai, Okhla, Delhi,


: 139 :

Circle-6. The photocopy of the licence is Ex. PW-204/A and it

was seized by the police vide Ex. PW-204/B.

254. PW-205 is Sh. Ami Lal Daksh, senior scientific

Asstt/Reporting officer, FSL, Govt. of India. On 06.06.2001

and 22.06.2001, he received the questioned documents with the

red ink enclosed writing and signature mark Q1 and Q2 and

stamp impressions mark Q15 and Q21 on consumer card No.

258712, writings and signatures mark Q3 & Q4 and stamp

impressions mark Q16 & Q22 on consumer card no. 258719,

writings and signatures mark Q5, Q5/1, Q6 and stamp

impression mark Q17 & Q23 on consumer Card no. 28775,

writings & signatures Q7, Q8, Q9 and stamp impression mark

Q18 & Q24 on consumer card no. 258785, writings &

signatures mark Q10, Q11 and stamp impressions mark Q19 &

Q25 on consumer card no. 258797 ; writings and signatures

mark Q12, Q13, Q14 and stamp impression mark Q20 & Q26

on consumer card No. 258799. On that day, standard

documents i.e. Blue enclosed specimen writings mark S1 to

S11 of accused Matloob Alam ; signatures mark S12 to S17 of

Dharambir Sharma ; S18 to S20 of Ms. Anju Goel ; sample


: 140 :

stamp impressions of rubber seal of Food & Supply department

circle 6 mark S21 to S24 of F.S.O./IGQ, Circle-6 (Okhla) and

S25 to S29 were also received in his office. He has seen the

questioned documents Ex. PW-154/A, PW-184/B, PW-203/A,

PW-178/B and other two documents Ex. PW-205/A and PW-

205/B. He has also seen the specimen standard writing with

signatures and stamp impression which were mark by him as

S1 to S29 and these are Ex. PW-205/C-1 to 20 and Ex. PW-

191/L, PW-191/M, PW-191/N, PW-191/O, PW-191/F, PW-

191/G, PW-191/H, PW-191/J and PW-191/K, which were sent

for comparison with questioned documents. All the aforesaid

documents were carefully examined by him and he had given

his opinion Ex. PW-205/D, which is signed by him at point A.

In his opinion, he stated that the stamp impression do not tally

with the standard impression and questioned signatures on Q2,

Q4, Q6, Q8, Q11 and Q13 were having some diversions from

the specimen signatures mark S-12 to S-17. The person, who

wrote these writings in mark S-1 to S-11 i.e. Accused Matloob

Alam also wrote the questioned writings Q3, Q5, Q10 and Q12

i.e writing in Ex. PW-154/A, PW-184/B, PW-178/B and PW-


: 141 :

205/A. He had observed similarity in the general features such

as writing, movement, speed, space, alignment, relative size

and proportion of character and nature of commencing and

terminating strokes etc.

255. PW-206 is Sh. A. Dey, Senior Scientific Officer. On

5.3.2001, he received one sealed parcel with the seal of GJ. On

opening the same, he found remnants of exploded hand-

grenades. On examination, he found presence of PETN based

high explosive. In this respect, he gave his report Ex. PW-

206/A and remnants of hand-grenades are collectively Ex. PW-

193/1. In case FIR no. 630/00, he had received 21 sealed

parcels. He has examined these parcels and gave his report that

7.62 mm Assault Rifle was in working order and had been fired

through and the cartridges had been fired from the said Assult

Rifle. His detailed report in this regard is Ex. PW-206/B,

which bears his signatures at point A.

256. PW-207 is Sh. Satish Garg. He is a resident of Gaziabad

and used to run a tea-shop in front of the office of Transport

Authority. He deposed that the people of Akash Deep Motor

Driving College used to come to the Authority to get driving


: 142 :

licences prepared and he also got the licence of one Mahendra

Kumar prepared through one of such employee, but accused

Shahanshah Alam was not one of the employees, who used to

visit the office of Transport Authority in connection with

preparation of driving licences. He has been cross-examined

by the learned Spl. PP wherein he also denied that accused

Shahanshah Alam used to visit the Licencing authority and he

got the licence of Mahender Kumar prepared through him.

257. PW-208 is Sh. Devender Kumar. He joined the investigation

of the case on 01.01.2001 on the request of police officials,

when he was passing through Jamia Milia University for some

personal work. At that time, accused Md. Arif @ Ashfaq was

also with the police party and on his pointing out, three hand-

grenades were recovered. As such, he has corroborated the

version of PW-168 Ins. R.S. Bhasin.

258. PW-209 is Sh. Raghubir Singh, security supervisor of Jamia

Milia University. He also joined the investigation of the case

on 01.01.2001 with PW-208 Sh. Devender Kumar and PW-

168 Ins. R.S. Bhasin and as such he has corroborated their

version in all material particulars.


: 143 :

259. PW-210 is Sh. Sushil Malhotra, owner of Star Motor Driving

College. He deposed that accused Devender was manager of

Star Motor Driving College at Jullena, Okhla. He also deposed

that Ex. PW-210/A is the attendance register of that branch,

which was used to be maintained by accused Devender and the

attendance page Ex. PW-210/B pertaining to the month of

August 2000, is also in the handwriting of accused Devender.

The entry at serial no. 381 at page 61 of Ex. PW-210/B, Ex.

PW-210/B-1 is also in the handwriting of accused Devender.

The entries Exs. PW-210/C and D in the daybook, whereby

accused Ashfaq paid Rs. 500/- on 28.08.2000 and Rs. 200/- on

30.08.2000 are also in the handwriting of accused Devender

and the daybook is Ex. PW-210/E. He also deposed that one

Moti Lal was a trainer at his college. Accused Rajiv Malhotra,

who is his cousin, runs a motor driving college in the name of

Seven Star Motor Driving College at Ghaziabad.

260. PW-211 is Sh. K.C. Varshney, Senior Scientific Officer. He

deposed that on 02.01.2001 he received a sealed parcel of FIR

NO. 419/00, U/s 25 Arms Act, PS Kalyan Puri. He opened the

sealed parcel and found one .30 inch/7.63 mm caliber pistol


: 144 :

bearing no. 310110255636 mark F-1 along with six cartridges

mark A-1 to A-6 and examined and test fired the same and

found that pistol was a firearm in working condition and

cartridges mark A-1 to A-6 were live ones and were

ammunitions as defined under Arms Act. His report is Ex.

PW-211/A. He identified the pistol as well as cartridges.

261. PW-212 is SI Manik Chand Patel, Lucknow, UP. He

deposed that accused Attruddin (P.O.) was wanted in FIR no.

342/00, u/s 307 RPC, PS Sher Garhi, Sri Nagar. On

information from the police of Jammu & Kashmir, he was

arrested, but with the help of public persons, he got himself

rescued and thereafter could not be arrested. In this regard,

FIR No. 14/01, PS Chowk Sadar, Distt. Luchnow was

registered. An attested copy of FIR is Ex. PW-212/A.

262. PW-213 is Ins. Gurmeet Singh. On 26.12.2000, he was

posted as SHO of PS New Friends Coloy, Delhi. On that day,

encounter took place between a team of special cell of Delhi

Police and a militant at house no. G-73, Muradi Road, Batla

House, New Delhi, in which one militant Abu Shamal @ Fazal

was killed and FIR no. 630/00 was registered u/s 307/186/353


: 145 :

IPC read with Sections 25/27 Arms Act and 4/5 Explosive

Substances Act. He got his dead body identified from accused

Md. Arif. He proved the inquest papers Exs. PW-213/A and B,

his photograph Ex. PW-213/C, seizure memo of a parcel from

the hospital Ex. PW-213/D and a seizure memo prepared

regarding door of house no. G-73, Muradi Road, Batla House is

Ex. PW-213/E.

263. PW-214 is Ins. Sunder Lal. On 01.01.2001, Ins. R.S. Bhasin

along with other staff got three hand-grenades recovered at the

instance of accused Md. Arif @ Ashfaq from Jamia Milia

University. Ins. Sunder Lal was summoned on the spot and

investigation of this case of recovery of explosives was handed

over to him. He sealed the three hand-grenades vide Ex. PW-

168/B and recorded the disclosure of the accused Ex. PW-

168/D. He prepared a site plan Ex. 214/A, recorded the

statements of the witnesses and arrested the accused vide

memo Ex. PW-214/B. He took police remand of the accused

and in order to recover further arms and ammunitions as per the

disclosure of the accused, took him to Sri Nagar, but nothing

was recovered from there. He also moved an application Ex.


: 146 :

PW-214/C dated 12.02.2001 for the destruction of the hand-

grenades and destruction order was passed vide Ex. PW-214/D.

He also obtained the sanction u/s 7 of the Explosive substances

Act vide Ex. PW-192/A. He completed the investigation of

FIR no. 3/01, PS New Friends Colony.

264. PW-215 is Sh. Yogesh Tyagi. He is a resident of

Ghaziabad and used to deposit the tax of vehicles at Ghaziabad

Transport Authority. He got the licence of one Chand prepared

after taking money from him, but he did not idenify accused

Shahanshah Alam as the person from whom, he got the licence

prepared. He has been cross-examined by the learned Spl. PP

wherein also he denied that he got the licence prepared from

accused Shahanshah Alam.

265. PW-216 is Dr. M.A. Ali, Senior Scientific Officer, Grade-I,

documents CFSL, New Delhi. He examined the questioned

documents and his reports are in great details, which are Exs.

PW-216/A and B.

266. PW-217 is SI Naresh Kumar. On 22.10.2000 at about 10.00

pm, he reached the spot inside the Red Fort on being

summoned there from PS Kotwali. On the spot, he found Ins.


: 147 :

Roop Lal, SI Rajender, SI Sudhir, Ct. Jitender along with other

staff as well as Capt. S.P. Patwardhan. He joined in the search

of the Red Fort as well as seizure of different objects from the

spot and also went to the hospital. As such he has corroborated

the version of earlier witnesses including PW-137 SI Rajender,

PW-183 SI Sanjay Kumar, PW-189 Capt. S.P. Patwardhan and

others.

267. PW-218 is SI Satyajit Sarin. He along with Ins. Hawa

Singh, SI Amardeep Sehgal and other staff reached flat no.

308-A, D.D.A. Flats, Gazhipur, Delhi, on 26.12.2000, where

accused Md. Arif @ Ashfaq Ahmad was present in the custody

of SI Harender in FIR no. 419/00, PS Kalyan Puri. Accused

Md. Arif @ Ashfaq was produced before Ins. Hawa Singh as

he had made disclosure Ex. PW-148/E to get the arms and

ammunitions of FIR no. 688/00, PS Kotwali recovered from

the back of the Red Fort. He was arrested in FIR No. 688/00

and was taken to the back of the Red Fort and efforts were

made to join the public persons, but nobody came forward to

join the proceedings. BDS, CFSL Team and photographer were

also summoned to the spot. On the pointing out of accused


: 148 :

Md. Arif, one AK-56 Rifle, two magazines tied to each other

and a bandoleer of military colour were recovered. On

checking the pockets of bandoleer, four hand-grenades were

recovered from four different pockets of it. The recovered

arms and ammunitions were taken to PS Kotwali where it were

examined by CFSL team and efforts were made to find chance-

prints and the weapons were also photographed. The four

hand-grenades were defused and the their detonators were also

separated. Two magazines were found to contain thirty live

cartridges and two live cartridges respectively. Sketch of AK-

56 assault rifle was prepared vide Ex. 218/A. Since both

magazines and the thirty-two recovered cartridges, which were

live, were of the same type, sketch of one magazine and one

cartridge was prepared vide Ex. PW-218/B. Kitchen knife was

also found in one of the pocket of the bandoleer. All the

recovered articles i.e. AK-56 rifle, two Magazines, thirty-two

live cartridges, pocket knife and bandoleer were seized vide

Ex. PW-218/C after filling up the CFSL form. He has

identified the entire case property including bandoleer Ex. PW-

218/1 and regarding identification of other articles, he has


: 149 :

corroborated the version of PW-125 Sh. S.K. Chadha, senior

scientific officer and PW-50 SI Virender Singh. The arrest

memo of accused Md. Arif @ Ashfaq is Ex. PW-218/D.

Thereafter, they returned to the office of Special Cell after

depositing the case property in the Mal Khana of PS Kotwali,

where accused Rehmana Yusuf Farooqui was also present. She

was interrogated and her disclosure statement was recorded

vide Ex.PW-218/F and her personal search was conducted vide

Ex. PW-69/A and her arrest memo was prepared vide Ex. PW-

218/E. He had also corroborated the version of PW-168 Ins.

R.S. Bhasin as well as PW-31 Sh. Azam Malik and PW-36

Mohd. Khalid regarding disclosure of accused Md. Arif @

Ashfaq and purchase of computers by him. Thereafter, he

along with SI Amardeep Sehgal went to Jammu & Kashmir for

arresting and interrogating accused Nazir Ahmad Quasid and

Farukh Ahmad Quasid, which they did after obtaining

permission from concerned authorities and in this regard, he

has corroborated the version of PW-98 Sh. Rattan Chand, PW-

101 Sh. Pritam Singh and PW-102 Sh. Hemraj Sharma, all jail

officials of Kot Bhalwal Jail, Jammu. They also arrested both


: 150 :

the accused and gave directions to jail officials to intimate

Delhi Police, when the two accused were released and their

application in this regard is Ex. PW-208/G. He also joined the

investigation of the case FIR no. 65/01, PS New Friends

Colony U/s 420/468/471/474 IPC, in which he seized the ration

cards of Akhtari Begum, Mustaq Ahmad, Shakila Begum,

Mohd. Arshad, Ali Imam Khan, Taufiq Khan, Abdul Rashid

and Sh. B.R. Joshi and has corroborated the version of these

witnesses, who have already been referred to.

268. PW-219 is Sh. Harun Ali. He also got his ration card

prepared through Raj Stores, but he has not supported the

prosecution version.

269. PW-220 is HC Jai Parkash. From 23.12.2000 to 14.05.2001,

he was Malkhana Mohrrir of PS Kotwali. During that period,

Ins. Roop Lal, Ins. Hawa Singh and Ins. S.K. Sund had

deposited case property with him in sealed condition regarding

which he made entries in register no. 19 and also sent some of

the case properties to CFSL for examination. The entries

made in this regard are Exs. PW-220/A to V.

270. PW-221 is Sh M. D. Sharma, Sub-Divisional Engineer,


: 151 :

Telephone Exchange, Minto Road. He deposed that on

19.03.2001, SI Satyajeet Sarin moved an application seeking

details of telephone number 3216574. He checked the record

and reported that the aforesaid telephone number was installed

at the house of Sadakat Ali at house no. 2437, Lal Quan, Delhi.

His reply is Ex. PW-221/A and copy of the application for

installation of telephone is Ex. PW-221/B.

271. PW-222 is Sh. H.G. Sharma, Sub-divisional Engineer,

Telephone Exchange, Okhla. He deposed that telephone no.

2631594 was installed at 18-C, Ground floor, Gaffur Nagar,

Okhala, Delhi in the name of Danish Mohd. Khan. He further

deposed that the report in this regard is Ex. PW-222/A and the

application for the installation of the telephone is Ex. PW-

222/B.

272. PW-223 is Sh. L.R. Singh, S.D.E. (fault repair Section)

Minto Road. He deposed that telephone number 3216912 is

installed at house no. 2228, Ahata Hajjan-B, Road Gran, Delhi

in the name of Mohd. Ahmad and the orders of installation in

this regard are Ex. PW-223/A.

273. PW-224 is Sh. D.K. Malviya, Commercial Officer, Mayur


: 152 :

Vihar-II, Phase-II. He deposed that telephone no. 2720223 is

installed at house No. 308-A, DDA Flats, Gazhipur Dairy

Farm, Delhi in the name of Farzana Farooqui and the details of

this telephone number was given to the police vide Ex. PW-

224/A and the record of the telephone are Ex. PW-224/B-1 to

B-3.

274. PW-225 is Sh. Mohd. Ahmad. He deposed that accused

Sadakat Ali is known to him, being resident of 2277-78, Road

Gran, Lal Quan, Delhi and is a builder by profession. He is

also having a house in Okhla. He also deposed that his friend

had informed him about his helping the terrorist in escaping to

Sri Nagar on receipt of money and in this regard, he had made

a complaint to the police vide Ex. PW-57/A. He identified

accused Babbar Mohsin and Ashfaq as the person who used to

visit the house of Sadakat Ali and they are known to him only

by face and not by name.

275. PW-226 is SI Ranvir Singh. On 08.01.2001, he joined the

investigation of the case with PW-10 ASI Chand Singh and as

such has corroborated his version. On 24.01.2001, he collected

the case property from the Malkhana of PS Kotwali and


: 153 :

deposited the same in CFSL in intact condition. On

31.01.2001, he joined the investigation of the case with PW-9

Sh. P.R. Sharma and PW-64 Sh. O.P. Singh, both Managers,

SBI, Gazhi Pur Branch, Delhi and as such has corroborated

their version. On 13.04.2001, accused Matloob Alam was

interrogated in his presence and his disclosure statement Ex.

PW-226/A was recorded. Similarly, on 18.4.2001, accused

Mool Chand Sharma was interrogated and arrested in this case

and his search memo, arrest memo and information memo were

prepared vide Exs. PW-226/B to D. On 21.04.2001, he also

joined the investigation and has corroborated the version of

PW-66 Sh. Hazari Lal and PW-174 Sh. Kushal Kumar. On

7.6.2001, he again joined the investigation of this case

regarding seizure of the stamps of circle-6 and has corroborated

the version of PW-191 Smt. Sunita. He has also corroborated

the version of PW-203 Sh. Babu Ram Joshi and PW-184 Sh.

Ibadur Rehman. On 14.02.2001, he also seized the register of

Fair Price Shop of Matloob Alam vide Ex. PW-227/Z-4 and the

register is Ex. PW-226/1. He also seized the ration card Ex.

PW-178/B of Nasim Khan on 20.02.2001 vide Ex. PW-178/A.


: 154 :

He also seized the register of Fair Price Shop of Babu Lal

Aggarwal vide memo Ex. PW-227/Z-5 and the register is Ex.

PW-226/2. On 13.04.2001, he also collected the specimen

handwriting of accused Matloob Alam running into eleven

pages Ex. PW-227/C11, PW-205/C-1 to 9 and PW-206/C10 in

the present of Ins. S.K. Sund and SI Amardeep Sehgal. He has

also corroborated the version of PW-204 Sh. Rajesh Batra

regarding seizure of licence of Fair Price Shop No. 8993 M/s

Raj Store of Kushal Kumar. On 9.5.2001, he arrested accused

Matloob in FIR NO. 65/01, PS New Friends Colony and his

applications are Exs. PW-226/E and F. He has also

corroborated the version of PW-7 Sh. S.R. Raghav regarding

examination of eight ration cards and the report of Sh. S.R.

Raghav. He also deposited the documents in FSL for

examination, collected sample of stamp affixed on ration cards

and as such corroborated the version of PW-191 Smt. Sunita,

PW-164 Ms. Anju Goel and PW-165 Sh. Dharambir Sharma.

He deposited the entire documents with the FSL and collected

the report Ex. PW-216/A and concluded the investigation.

276. PW-227 is SI Amardeep Sehgal. On 26.12.2000 He joined


: 155 :

the investigation of the case with Ins. Hawa Singh, SI Satyajit

Sareen and other staff as such he has corroborated the version

of PW-218 SI Satyajit Sareen. He also deposed that a site plan

Ex. PW-227/A of the place of recovery at the back of the Red

Fort was also prepared. He has correctly identified all the case

property. On 30.12.2000, disclosure statement Ex. PW-28/A of

Md. Arif @ Ashfaq was recorded in his presence. He also

corroborated the version of PW-28 SI Abhinender Jain

regarding visit to Star Motor Driving College and to Red Fort

along with accused Md. Arif @ Ashfaq and taking of

specimen signatures of accused Babbar Mohsin Ex. PW-28/N-1

to 3. His signatures were also taken on two separate papers Ex.

PW-227/B and C. On 04.01.2001, accused Shahanshah Alam,

Devender Kumar and Babbar Mohsin were arrested and their

arrest memos were prepared vide Exs. PW-227/D to F and their

personal memos were prepared vide Exs. PW-227/G to I.

Thereafter, he has corroborated the version of PW-28 SI

Abhinender Jain. He further deposed that on 06.01.2001,

articles recovered from the house of accused Rehmana Yusuf

Farukhi were seized after they were got examined by PW-86


: 156 :

Ins. Pratap Singh. He has identified these articles as photo-

album Ex. PW-227/1, Judo-book Ex. PW-227/2, six books of

Urdu Ex. PW-227/3 to 8, Indian Map (plastic) Ex. PW-227/9,

four warranty cards of LG Ex. PW-227/10 to 13, one black

colour leather purse Ex. PW-227/14 and one rexine bag Ex.

PW-227/15 and all these articles were seized vide Ex. PW-

227/J. These were the same articles which were recovered by

Ins. Ved Parkash from the house of accused Rehmana Yusuf

Farukhi. He had also corroborated the version of PW-36

Mohd. Khalid regarding seizure of invoices and bills of

computers installed at Knowledge Plus Computer Centre. He

has also identified these computers and its parts as CPUs Ex.

PW-227/16 & 17, five monitors Exs. PW-227/18 to 22, four

UPS Exs. PW-227/23 to 26, one printer Ex. PW-227/27, five

key-boards Ex. PW-227/28 to 32, four speakers Ex. PW-227/33

to 36, one modum Ex. PW-227/37, one Hub Ex. PW-227/38,

one CD-Rom Ex. PW-227/39, five mouses Ex. PW-227/40 to

44, six spiral bands Exs. PW-227/45 to 50, five mouse pads Ex.

PW-227/51 to 55, two markers Ex. PW-227/56 & 57 and seven

computers books Ex. PW-227/58 to 64 and these were seized


: 157 :

vide memo Ex. PW-227/A.


: 158 :

On 06.01.2001, itself specimen handwriting of accused

Mool Chand Sharma, Babbar Mohsin, Shahashah Alam and

Devender were taken on four pages, two pages and one page

each respectively by Ins. Hawa Singh and the specimen

handwriting of Devender Singh is Ex. PW-227/L, of

Shahanshah Alam is Ex. PW-227/M, of Babbar Mohsin is Ex.

PW-227/N & O and of Mool Chand Sharma is Exs. PW-227/P

to S. On 07.01.2001, accused Rajiv Malhotra was arrested and

his disclosure statement was recorded vide Ex. PW-227/B.

Specimen handwriting of accused Md. Arif @ Ashfaq in Urdu

language was also taken by Ins. S.K. Sund on three pages in his

presence vide Ex. PW-28/O-1 to O-3. On 08.01.2001, fourteen

cassettes recovered from the house of accused Rehmana Yusuf

Faruki were also seized by Ins. Hawa Singh after these were

examined by Ins. Pratap Singh and these cassettes are Ex. PW-

227/U1 to U14. He also accompanied PW-214 SI Sunder to Sri

Nagar, where pointing out memos of the houses of accused

Nazir Ahmad Quasid and Farukh Ahmad Qasid and that of

accused Jahoor Ahmad Quasid (Since P.O.) were prepared

vide Exs. PW-227/V & W at the instance of accused Md. Arif.


: 159 :

Thereafter, he has corroborated the version PW-5 Sh. Pradeep

Kumar Srivastava, PW-8 Ins. Jogender Singh, PW-12 HC

Surender Singh, PW-17 Sh. Mahesh Kumar Trivedi, PW-45 SI

Himmat Ram and PW-97 Sh. B.A. Wani, PW-161 SI Hans

Raj, PW-169 SI Sunil Kumar and PW-218 SI Satyajit Sreen.

He also proved certificate of lodging of accused Nazir Ahamd

Quasid and Farukh Ahmad Quasid in jail vide Ex. PW-227/X

and permission granted by Principal Secretary (Home) J.& K.

vide Ex. PW-227/Y. He has also corroborated the version of

PW-226 SI Ranbir Singh, PW-205 Sh. Ami Lal Daksh and

PW-191 Ms. Sunita. On 16.06.2001, he along with Ins. S.K.

Sund obtained specimen handwriting of accused Mool Chand

Sharma on three pages vide Ex. PW-227/Z-1 to Z-3 after

obtaining court permission. He also deposited the specimen

handwriting as well as specimen impression of rubber stamp

with the CFSL. Register of the shop of Matloob Alam was

seized vide Ex. PW-227/Z-4 and that of Babu Lal was seized

vide Ex. Pw-227/Z-5. He also collected the documents from

Sri Nagar mark 227/D-1 to D-13.

277. PW-228 is ACP Hawa Singh. After the shooting incident


: 160 :

took place in Red Fort on 22.12.2000, the investigation of the

case was transferred from local police to the operation cell and

Ins. Hawa Singh (now ACP) partly investigated the case along

with PW-28 SI Abhinendra Jain, PW-218 SI Satyajit Sareen

and PW-227 SI Amardeep Sehgal as such he has corroborated

the version of these witnesses on all material particulars

regarding the investigation, collection of documents and

exhibits and arrest of the accused. He has also proved his

application Ex. PW-228/A moved before the Chief Manager,

SBI Gazhipur, for stopping the transactions in the account of

accused Rehmana Yusuf Farukhi. He has also corroborated

the version PW-97 Sh. B.A. Wani and PW-168 Ins. R.S.

Bhasin.

278. PW-229 is Ins. Mohan Chand Sharma. On 22.12.2000, he

was posted at Special Cell, Lodhi Colony. As per the

instructions of the senior officers, he also reached Red Fort.

Mobile telephone no. 9811278510, which was found written on

a chit near the rear wall of the Red Fort was handed over to me

for investigation. He verified the call details of this number.

During investigation, he came to know that this mobile number


: 161 :

is a cash card and also came to know that it was used on two

different sets with IMEI Nos. 445179440940240 and

449173405451240. Thereafter, he has narrated the calls made

from this number.

He further deposed on 22.12.2000 at 21.27.30, 21.33.14

and 21.33.43 hours, three calls were made to BBC from this

number. During scanning the aforesaid two IMEI numbers, he

came to know that another mobile number 9811242154 was

also used on the said instrument. He also deposed that mobile

number 9811242154 was being used for making and receiving

calls from Zakir Nagar to Gazhi Pur and vice versa. He further

deposed that location (cell ID) of this telephone number was at

Zakir Nagar, when calls were made to Gazhi Pur and when

calls were made to Zakir Nagar, its location (cell ID) was at

Gazhipur. Details of the calls were received from Hutch and

Airtel at the Lodhi Road Computer of the special cell. The call

details of this number is Ex. PW-229/A. The data pertains to

22.07.2000 to 29.11.2000. He further deposed that telephone

no. 9811278510 was also used on the date of the commission

of crime at Red Fort and calls were made to BBC offices, at Sri


: 162 :

Nagar and Delhi. One most used landline number was

2720223 which stands in the name of Farzana Faruki at Flat no.

308-A, DDA Flats, Gazhipur, Delhi. Other use telephone

number is 6315905, which is installed at “Knowledge Plus

Computer Centre”, at 18-C, Gaffur Nagar, Okhla. This was

the only number except PCO from which calls were made to

telephone no. 9811278510 on 14.12.2000 at 12.54.35 hours.

He further deposed that after getting the two telephone

numbers of Farzana Faruki and “Knowledge Plus Computer

Centre”, the investigation was confined to these two points and

secret surveillance was maintained. Knowledge Plus

Computer Center remained closed for two days after the

incident at Red Fort. He came to know that it belonged to one

Md. Arif @ Ashfaq residing at Gazhipur. On 25.12.2000, the

surveillance was maintained at the aforesaid two addresses to

trace Md. Arif @ Ashfaq and at about 9.40 pm, Md. Arif @

Ashfaq was sighted at Batla House. Thereafter a police team

was positioned at Flat no. 308-A, DDA Flats, Gazhipur. At

about 12.45 am, he came over there and was apprehended and a

9 mm pistol was recovered. A motorolla set of mobile no.


: 163 :

9811278510 with IMEI no. 449173405451240 also was

recovered from him. He identified the instrument as the same,

from which the calls were made as per Ex. PW-198/B-1 to B-3.

He further deposed that in three calls, calling number could not

be recorded as the calls were made from Pakistan to India and

during that period, clipping facility for identification of calling

line was not available between Delhi and Pakistan, but these

calls were received on telephone number 9811278510 at Jamia

Nagar, New Friends Colony, Kashmiri Gate and Chandni

Chowk. On 22.12.2000, a call was received at 14.32.16 hours,

when position of the mobile was at Darya Ganj. He further

deposed that on 22.12.2000, a call was made to BBC at

telephone no. 0194452918 and at that time the position of the

caller was at Chandni Chowk and the caller could be inside the

Red Fort. On 22.12.2000, at 21.25.25 hours a call was made to

BBC Office at Delhi 0113355751 and the position of the caller

was at the back of the Red Fort. At 21.27.30 hours, a call was

made from this telephone number to telephone number no.

0194452918 at BBC Sri Nagar and at that time also, the

position of the caller was at the back of the Red Fort. At


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23.47.59 hours, the position of the caller was at Jamia Nagar as

some calls were received at this telephone number. He further

deposed that after apprehension of accused Md. Arif, he

disclosed that his associate Abu Shamal @ Fazal was staying at

his hideout at house no. G-73, first floor, Batla House, Delhi,

who was a trained militant of Lashkar-e-Toiba and was a

member of suicide squad. Police team reached there along

with accused Md. Arif @ Ashfaq in the intervening night of

25/26.12.2000 and a person was sighted entering the aforesaid

house and he bolted the door from inside. Members of the

police party knocked at the door, but the door was not opened

and the firing started from inside the house. Police also

returned the fire and firing continued from both side for about

20 minutes and after firing stopped, one person was found

lying injured with one AK-56 rifle, one magazine with thirty

live cartridges and two hand-grenades and he expired shortly

thereafter. Accused Md. Arif @ Ashfaq identified him as Abu

Shamal @ Fasal. One bandoleer was also recovered.

Thereafter, a rukka Ex. PW-229/B was prepared and FIR no.

630/00 was registered at PS New Friends Colony. Fired


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cartridge cases by the trained militant as well as the police

were also recovered from the spot. A photograph of the

militant is mark as PW-229/B. Thereafter, he has identified the

case property including rifle, magazine, bandoleer, cleaning

thread of the rifle, a khaki uniform was recovered from the

hideout and various other articles as exhibit as PW-229/1 to 18.

He also proved the documents prepared in the case Ex. PW-

229/E to I. Abu Bilal, another associate of accused Md. Arif

@ Ashfaq was also staying in the same house, was declared

proclaimed offender and he had been killed in an encounter at

Humayun Tomb, Delhi.

279. PW-230 is Ins. Surender Kumar Sund. He investigated the

case after it was transferred to him from Ins. Hawa Singh,

though he remained associated with the investigation w.e.f.

02.01.2001 when he was given the task of verifying the ration

card no. 252754, Ex. PW-174/A of accused Ashfaq Ahmad s/o

Akram Khan, r/o 17/12, Batla House, Okhla. He went to the

office of Food & Supply, Okhla, Circle and has corroborated

the version of PW-7 Sh. S.R. Raghav regarding the ration card

being found forged as it was not issued from the office of


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circle-6, Food & Supply Deptt. Thereafter, he was given the

task of investigation regarding accused Babbar Mohsin, which

he did with PW-10 ASI Chand Singh and PW-28 SI

Abhinendra Jain, as such has corroborated their version. He

has also corroborated the version of SI Sunder Lal and SI

Amardeep Sehgal about their visit Sri Nagar along with

accused Md. Arif. He also obtained all the papers of the case

from Ins. Hawa Singh, when the case was transferred to him on

08.01.2001. He has also corroborated the version of PW-74

Md. Idriz regarding investigation about Sher Jaman Afgani,

Hawala operator. (perhaps P.O.) On 13.01.2001, he obtained

specimen handwriting of Md. Arif @ Ashfaq vide Ex. PW-

230/A1 to A3 and 230/B-1 to B-15. He has also corroborated

the version of PW-83 Sh. R.K. Ajmani regarding hawala

transactions by accused Md. Arif. He also visited the address

of 102, Kela Bhatta, Ghaziabad, where ration card Ex. PW-

13/E was issued in the name of Md. Arif, which was also found

to be fake and in this regard, he has corroborated the version of

PW-2 Sh. Yash Pal Rana and PW-3 Sh. Rajbir Singh. He also

verified the driving license and learning licence of accused Md.


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Arif @ Ashfaq and in this regard, he has corroborated the

version of PW-13 Ins. Rajender Singh and has proved his

report Ex. PW-230/C. He also got the arms and ammunitions

sent to CFSL. He has also corroborated the version of PW-9

Sh. P.R. Sharma about the account of accused Rehmana Yusuf

Farukhi and also got its operation stayed vide Ex. PW-230/D

and E. He also obtained the specimen signature of accused

Devender and Sh. Dharamvir Sharma, FSO vide exhibits PW-

12/A to C and Ex. PW-165/A to D. He also obtained ten ration

card blanks through SI Sunil Kumar vide Ex. PW-233/A and

sent Exs. PW-230/E and F to CFSL for comparison.

During investigation, he came to know that thirty-

two more bogus ration cards of the same series as that of Md.

Ashfaq were prepared and on this, he prepared a rukka Ex.

PW-230/G and got FIR NO. 65/01 in PS New Friends Colony,

and investigation of the same was handed over to SI Ranvir

Singh. He has also corroborated the version of PW-13 Ins.

Rajender Singh, PW-17 Mahesh Kumar Trivedi, PW-210

Sushil Malhotra. He also obtained specimen handwriting of

Rehmana Yusuf Farukhi vide Ex. PW-230/J and has


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corroborated the version of PW-8 Ins. Jogender Singh. He has

also collected the call details from ESSAR mobile telephone

company through SI Satyajeet Sreen vide his application Ex.

PW-230/K and has corroborated the version of PW-198 Sh.

Rajiv Pandit. He also proved the photographs of Akash Deep

Motor driving college which are Ex. PW-230/L-1 to 3 and its

negative are Ex. PW-230/M-1 to M-3. Thereafter, he has

corroborated the version of PW-169 SI Sunil Kumar, PW-226

SI Ranvir Singh and PW-227 SI Amardeep Sehgal. He also

collected call details of mobile telephone number 9810263721,

which was got recorded by Md. Arif @ Ashfaq on the cash

receipt at the time of his admission for learning driving in

Seven Star Motor Driving college. In this regard, he has

corroborated the version of PW-195 Sh. Rakesh Bakshi. He

deposed that accused Md. Arif @ Ashfaq was in telephonic

contact with hawala operators and accused Nazir Ahmad

Quasid and Farukh Ahmad Quasid. He has also corroborated

the version of PW-18 Sh. Braj Raj Kishan, PW-185 Col.

R.P.S. Bhaturia, PW-14 Sh. U.C. Jain and PW-222 Sh. H.G.

Sharma and PW-224 Sh. D.K. Malviya regarding the place of


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installation of telephone numbers 3355751, 2720223, and

6315904 and proved his application vide Ex. PW-230/N. He

also seized the belonging of Md. Arif @ Ashfaq and in this

regard, he has corroborated the version of Ct. Yogender. He

has also proved a video cassettes Ex. PW-230/Q, which was

seized vide Ex. PW-230/P, whereby responsibility for the Red

Fort Shootout incident was claimed by Lashkar-e-Toiba. He

has also corroborated the version of PW-150 Sh. Satish Jacab

regarding phone call made to BBC on the date of the incident.

He also proved photocopy of DD entry no. 12, dated

03.03.2001 Ex. PW-230/R. He has also collected the CFSL

report, destruction report of the hand-grenades, and six PCR

forms and also got the place of recovery photographed. He

also proved the photograph of one Abu Bilal Ex. PW-230/S.

Thereafter he has given the call details made by the accused to

each other. His application for collecting the call details from

Bharti Cellular Services Ex. PW-230/T. He also collected

results about the examination of documents from CFSL.

Accused Matloob was arrested by him on 13.04.2001 and his

personal search memo, body inspection memo and arrest memo


: 170 :

are Exs. PW-230/U-1 to U-3 and his disclosure statement is Ex.

PW-226/A. Accused Mool Chand Sharma was arrested by him

on 18.04.2001. Thereafter, he has also corroborated the

version of earlier witnesses regarding collections of call details

of other accused and seizure of Motorolla mobile phone in FIR

NO. 688/00, PS Kotwali, examination of witnesses of Food &

Supply Office, Circle-6 and taking specimen of the seal of the

office of Circle-6, Food & Supply, Okhla. He also gave

direction for keeping the record of the office in safe custody

vide application Ex. 230/U-4. He also received sanction u/s

197 Cr.P.C against accused Mool Chand Sharma vide Ex. PW-

199/A and also obtained his specimen signatures vide Ex. PW-

227/Z-1 to Z-3. He also deposed that he also obtained

sanction against other accused including accused, who are now

P.O. He also deposed that during investigation, he came to

know that accused Md. Arif @ Ashfaq never resided at house

no. A-18, Gaffur Nagar, which was the address got recorded by

him at the time of taking admission in Seven Star Motor

Driving College. He also found that address B-17, Jung Pura,

which was given by accused Ashfaq in the Sarai Kale Khan


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Authority was also not correct as he never resided there. He

also collected the empty cartridges fired by Quick Reaction

Team of the Army at the time of the incident and sent the same

to CFSL. He has also collected report in this regard. He also

collected the record about the arrival and departure of accused

Attruddin (P.O.) from FRRO. He also collected the different

photographs and placed on record. He also placed the copy of

notification Ex. PW-230/U-6, whereby owner of a house is

duty-bound to intimate the police about the tenants staying at

his house and obtained necessary complaint against Sadakat Ali

for renting out his house to a foreigner Md. Arif @ Ashfaq

without intimation of the police. He also deposed that accused

Abu Shamal, who was killed vide FIR no. 630/00, PS New

Friends Colony in an encounter at G-73, Muradi Road, Okhla,

Abu Suffian who was killed in the area of Police Station

Shergarhli, Sri Nagar, vide FIR No. 240/00 and accused Abu

Bilal who was killed in an encounter with special cell Delhi

Police vide FIR no. 9/00, PS Special Cell, were involved in the

incident at Red Fort. He also deposed that weapons recovered

from Vijaya Ghat and from the back of the Red Fort and from


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the hideout of Abu Shamal were of the same kind. He also

proved report Ex. PW-230/U-7 of the Jail Superintendent, Kot

Balwal, according to which accused Farukh Ahmad Quasid and

Nazir Ahmad Quasid are militants of Lashkar-e-Toiba. He also

placed on record a copy of the judgment Ex. PW-230/U-8 of

Competent Authority of FEMA, whereby accused Md. Arif @

Ashfaq has been held guilty for hawala transactions. He also

deposed that there were orders by the officers of Delhi Police

for the apprehension of militants belonging to Lashkar-e-

Toiba. He also deposed that diary recovered from the

residence of accused Rehmana Yusuf Farukhi contained the

names of other accused persons. He recorded the statements

of witnesses and completed the investigation.

280. PW-231 is Ins. Farooq Ahmad of Jammu & Kashmir Police.

He proved the postmortem report of one Niazuddin Qureshi in

FIR no. 342/00, PS Sher Garhi, Batmalloo, J.&K. U/s 307 RPC

read with 27 Arms Act. He also placed on record a photocopy

of the FIR Ex. PW-227/D-5 and its English Version mark PW-

231/1, both attested by him.

281. PW-232 is Sh. Rashid Ali. He deposed that in 1998 he was a


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student of Jamia Milia Isalimia University in B.A. II nd year

and used to reside as tenant at the house of one Nain Singh,

where accused Md. Arif @ Ashfaq was also one of the tenants.

Md. Arif @ Ashfaq was having a mobile phone with him. He

had nodding acquaintance with Md. Arif @ Ashfaq and on

08.12.2000, Md. Arif @ Ashfaq invited him to a Roza Iftikhar

Party, where he was married to a lady, whose face he could not

see.

282. PW-233 is Md. Sadique, record clerk, Food & Supply

Department, Delhi. He deposed that on 05.02.2001, ten blank

ration cards bearing no. 403201 to 403210 were handed over to

SI Sunil Kumar vide entry Ex. PW-233/A.

283. PW-234 is Ins. Roop Lal. On 22.12.2000, he was posted as

Addl. SHO, PS Kotwali and was officiating as SHO. At about

9.25 pm, he was on patrolling, when he received a wireless

message that firing was going on inside Red Fort.

Immediately, he went inside Red Fort and found PW-137 SI

Rajender Singh along with one constable present there. PW-

189 Capt. S.P. Patwardhan was also present on the spot. As

such, he has corroborated their version in all material


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particulars including the description of the scene of crime,

lifting and seizure of the exhibits and the registration of the

case. He has also corroborated the version of PW-62 SI Ram

Chander, PW-128 Havildar Mahesh Chand, PW-114 Naib

Subedar Dharm Chand, PW-115 Subedar Ashok Kumar PW-

122 Naik Suresh, PW-123 Havildar Bhupendra Singh, PW-124

Havildar Sri Ram, PW-183 SI Sanjay Kumar and other

witnesses regarding lifting of exhibits, their seizure, removal of

the injured and the dead to the hospital, conduct of inquest and

postmortem on the dead bodies and handing over the dead

bodies to the Army authorities. He also proved site plan Ex.

PW-234/A, request letters for conducting postmortem on the

dead bodies of Abdullah Thakur, Uma Shankar and Ashok

Kumar, brief facts and forms 25 Exs. PW-234/B to K. He also

deposed that Capt. S.P. Patwardhan had produced before him

three Magazines, out of which two magazines were tied with

each other in reverse condition. Capt. S.P. Patwardhan had

produced before him 40 fired cartridge cases which were

collected from different spots. He also assisted the draftsman

in preparing scaled site plan. He has identified the entire case


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property. He also deposed that he had summoned crime team,

photographer, Bomb disposal squad and CFSL team to the

spot.

284. PW-235 is SI Tripti. She deposed that on 05.02.2001, she

was working as duty officer at PS New Friends Colony from

8.00 am to 4.00 pm. On that day, she received a rukka Ex.

PW-230/G through SI Abhinendra Jain and sent by Ins.

Surender Kumar Sund, on which she formally registered FIR

No. 65/01, carbon copy of which is Ex. PW-235/A. After

registration of the case, investigation was assigned to SI Ranvir

Singh of special cell. She also recorded DD no. 9-A Ex. PW-

235/B in this regard.

(D) PROSECUTION EVIDENCE CLOSED

285. Thereafter, prosecution evidence was closed by learned

Special Public Prosecutor.

(E) STATEMENTS OF ACCUSED

286. Statements of all accused have been recorded u/s 313 Cr.P.C

in detail, wherein each of them denied the allegations of the

prosecution as incorrect and false alleging that he is innocent

and has been falsely implicated in this case. Each of the


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accused claimed that nothing was recovered from him and he

has been falsely implicated in this case. None of the accused

except accused Rehmana Yusuf Farukhi, has examined any

witness in his defence. Accused Rehmana Yusuf Farukhi has

examined only one witness in her defence.

(F) DEFENCE EVIDENCE :

287. DW-1 is Mrs. Quamar Farukhi. She is the mother of

accused Rehmana Yusuf Farukhi. She deposed that on the last

Friday of Ramzan, police entered her house by jumping the

boundary wall. At that time, Rehmana Yusuf Farukhi, Ashfaq,

his son Hilal Farukhi, one Rabia and she herself were present at

the house. She deposed that Arif never disclosed that he was a

Pakistani. He informed that he was a resident of Jammu.

Since, there was no demand from the side of Md. Arif, she did

not make any preparation of the marriage. She had saved the

money for the marriage of her daughter and her relatives had

also contributed and the money was deposited in bank by

Rehmana. She also deposed that police had tortured them

mentally and physically.

(G) POINTS FOR DETERMINATION :


: 177 :

288. In this case, following points arise for determination :-

(i) Whether there was conspiracy to wage war

against the Government of India ?

(ii) Whether there were further conspiracies to forge

driving licence and ration card of Md. Arif @ Ashfaq

to give him Indian identity and to harbour him and

conceal his designs ?

(iii) Whether the conspiracy to wage war against the

Government of India was hatched by Lashkar-e-

Toiba and if so, which of the accused were party to

it?

(iv) Whether there was conspiracy to kill all those

who resist the action of the accused in waging war


(v) If so, who were the members of these

conspiracies ?

(vi) Whether accused Md. Arif @ Ashfaq along with

his co-accused Abu Bilal, Abu Saad, Abu Haider,

Abu Shakur and Abu Shamal committed the murder

of three Army personnels Uma Shankar, Abdullah

Thakur and Ashok Kumar posted with 7th Raj Rifles

at Red Fort on 22.12.2000 at about 9.00 PM in

pursuance to the aforesaid conspiracies ?

(vii) Whether the accused forged driving licence and

ration card of Md. Arif @ Ashfaq in pursuance to the

conspiracy to give Indian identity to a Pak national


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and to help him in setting up his base in Delhi by

harbouring him and concealing his designs ?

(H) FINAL ARGUMENTS :

289. I have heard the arguments at the bar in extenso and have

carefully perused the record.

290. It is submitted by Sh. Bakshish Singh, Learned Special

Public Prosecutor that accused Md. Arif @ Ashfaq @ Abu

Hamad along with other Pak nationals entered India in 1999 at

the instance of Lashkar-e-Toiba and stayed in the house of

Nazir Ahmad Quasid and Farukh Ahmad Quasid at Sri Nagar.

There, he along with these two accused as well as his associates

Abu Bilal, Abu Haider, Abu Saad, Abu Shakur, Abu Shamal

and Abu Suffian entered into a conspiracy to commit terrorist

attacks in India, particularly targeting the Army camps. They

collected arms and ammunitions. In January-February 2000,

Md. Arif @ Ashfaq and Abu Haider came to Delhi and stayed

at the house of accused Babar Mohsin, who drove him (Md.

Arif) on his motor-cycle No. DL-2SK-2816 around the city of

Delhi and showed him important places and buildings in Delhi

and also took a room on rent in the house of Nain Singh.


: 179 :

Thereafter, Md. Arif @ Ashfaq left for Sri Nagar and wrote a

letter of thanks to accused Babar Mohsin. In July-August

2000, Md. Arif @ Ashfaq again came to Delhi and after

vacating the house of Nain Singh, he took house No. 18-C,

Gaffur Nagar, Okhla, Delhi, on rent from accused Sadakat Ali

on a monthly rent of Rs. 4,500/- and opened a computer center

there under the name and style of “Knowledge Plus Computer

Center”, in partnership with Faisal Mohd. Khan. Accused

Sadakat Ali also became party to the conspiracy with him.

There he got installed telephone number 26315904 in the name

of one Danish Mohd. Khan, friend of Faisal Mohd. Khan.

There, he established a base of Lashkar-e-Toiba. In December

2000, he also took on rent house No. G-73, Muradi Road, Delhi

from one Gian Chand Goel. At both the places, he established

bases for Lashkar-e-Toiba. In October-November 2000, he

contacted Rehmana Yusuf Farukhi resident of 308-A, DDA

Flats, Gazhipur, Delhi, in response to her matrimonial

advertisement. He offered to marry her despite she being

much older in age and suffering from spondylitis. He

persuaded her to join the conspiracy for attacking important


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places including Army Camp in India. He also paid her Rs.

2,80,000/- which she deposited in her bank account.

Thereafter, she provided him shelter and other assistance.

291. It is also argued that accused Md. Arif @ Ashfaq obtained

training at Seven Star Motor Driving college, Sarai Jullena,

Delhi where accused Devender Singh was manager. He gave

him motor driving training knowing that he was a Pakistan

national and had come to India for committing terrorist acts and

he also joined the conspiracy. Accused Devender Singh

collected Rs. 2000/-, a slip of address and his photograph for

getting a driving licence prepared and passed on Rs. 900/-

along with slip of address and photograph to accused Rajiv

Malhotra, who was running Star Motor Driving College at

Ghaziabad. Accused Rajiv Malhotra passed on Rs. 600/- and

slip of address and photograph to accused Shahanshah Alam,

who was an employee with Akash Deep Motor Driving college,

Ghaziabad for preparation of a driving licence. It is argued

that accused Shahanshah Alam procured a fake learning licence

and a fake ration card in the name of Md. Arif @ Ashfaq for

getting a driving licence prepared for him. All three accused


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joined the conspiracy of killing any one who came in their way

of waging war against Govt. of India as well as to forge a

driving licence for Md. Arif @ Ashfaq to give him Indian

identity.

292. It is further argued that accused Md. Arif @ Ashfaq

thereafter, contacted accused Matloob Alam, who used to run a

fair price shop by the name of Matloob Store at Okhla for

getting a ration card prepared in his name. It is alleged that

accused Matloob Alam and accused Mool Chand Sharma, who

was Food Inspector of the area, entered into conspiracy to forge

a ration card and also joined Md. Arif @ Ashfaq in conspiracy

to kill anyone, who came in their way of waging war against

Govt. of India. Accordingly, a fake ration card was prepared

with the address of F-17/12, Batla House, Okhla, Delhi.

293. It is next argued that on the basis of these forged documents,

accused Md. Arif @ Ashfaq opened a bank account no.

0891000024344 in HDFC bank, New Friend Colony and

deposited around Rs. Six lacs in that account. In furtherance

of the conspiracy to wage war against the Govt. of India,

accused Md. Arif @ Ashfaq collected huge amount of Hawala


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money from accused Sher Zaman and Sabir @ Sabarulla and

deposited around Rs. 29,50,000/- (Rs. Twenty-nine lacs & fifty

thousand only) in the accounts of Bilal Ahmad Qawa, Nazir

Sons and Farukh Ahmad Quasid, which amount was used to be

withdrawn by Nazir Ahmad Quasid and further distributed to

various militants for carrying out militant activities.

294. It is further submitted that on 07.12.2000, instructions were

received from Abu Bilal for attacking the Army camp inside

Red Fort. In furtherance of this conspiracy, Abu Bilal, Abu

Saad, Abu Suffian and Abu Shamal, all Pakistan nationals,

joined him (Md. Arif) and Abu Haider at Delhi. They had

brought AK-56 rifles, cartridges and hand-grenades with them

from Sri Nagar.

295. It is further argued that all six accused i.e. Abu Bilal, Abu

Haider, Abu Saad, Abu Shakur, Abu Shamal and Abu Hamad

@ Md. Arif @ Ashfaq carried out recce of Red Fort and

ultimately as per the instructions of Lashkar-e-Toiba, they

reached Red Fort on 22.12.2000 in the evening and watched

Light & Sound Program inside Red Fort. At that time, Abu

Saad and Abu Shamal were armed with AK-56 Rifle each and


: 183 :

hand-grenades. After watching the Light & Sound Program,

Abu Bilal, Abu Haider, Abu Shakur and Abu Hamad @ Md.

Arif @ Ashfaq came out of Red Fort directing Abu Saad and

Abu Shamal to attack the Army camp inside Red Fort. These

two militants Abu Saad and Abu Shamal entered the camp of

7th Raj Rifles inside Red Fort and fired indiscriminately upon

Army jawans and killed three army jawans namely Uma

Shankar, Ashok Kumar and Abdullah Thakur and escaped

from the rear side of the Red Fort, where their four associates

were already waiting.

296. It is further argued that accused Md. Arif @ Ashfaq made

telephonic call immediately to BBC, Sri Nagar and Delhi,

claiming that Lashkar-e-Toiba had attacked the Army camp

inside the Red Fort and killed two Army Jawans. It is further

submitted that a slip with telephone number 9811278510 was

recovered from the spot and on the basis of that accused Md.

Arif @ Ashfaq was arrested and a pistol was recovered from

him, on the basis of which FIR no. 419/00 was registered at

Police Station Kalyan puri. Consequent to his disclosure

statement, his hideout at G-73, Muradi Road, Okhla, Delhi was


: 184 :

raided, where accused Abu Shamal was killed in encounter and

one AK-56 rifle, one magazine with thirty cartridges, two

hand-grenades, one bandoleer, a military colour pouch, and one

khaki uniform were recovered and FIR no. 630/00 was

registered at Police Station New Friends Colony. Further,

arms and ammunition were also recovered from behind the Red

Fort consequent to his disclosure. Not only this, consequent to

his disclosure dated 01.01.2001, three hand-grenades were

recovered from the area of Staff Quarter, Jamia Milia

University and FIR no. 03/2001 was registered at Police

Station New Friends Colony.

297. It is next submitted that during the course of investigation of

the case, it was revealed that accused Matloob Alam was

getting fake ration cards prepared and as such FIR No. 65/01

was registered against him u/s 420/468/471/474 IPC in Police

Station New Friends Colony.

298. During the course of detailed arguments, he has read over the

relevant evidence at bar and has filed written arguments also.

He has submitted that in case of conspiracy, disclosure

statements of the accused made in the custody of police during


: 185 :

investigation can be relied upon. The reports of the handwriting

expert and ballistic expert have been extensively read over to

me during the course of arguments. My attention has also

been invited to the following authorities :-

1. State Vs. Mohd. Afzal & Ors. 2003 IV AD

(Cr.) 2005.

2. The Government of N.C.T of Delhi Vs. Jaspal Singh 2003 VI AD (S.C. ) 309

3. Devender Pal Singh Vs. State N.C.T. of Delhi & Anr. 2002 II AD (Cr.) S.C. 97

4. M ohammad Usman Mohammad Hussain Maniyar and Anr.Vs. State of Maharashtra AIR 1981 SC 1062

5. Kehar Singh and Ors Vs. State (Delhi Admn.)AIR 1988 SC 1883

6. Suresh Chandra Bahri Vs. State of Bihar 1994 AIR SCW 3420

7. State (Delhi Admn.) Vs. V.C. Shukla AIR 1980 SC 1382

8. State of Maharashtra Vs. Som Nath Thapa 1996 Cri.L.J. 2448 (S.C.)

9. Nazir Khan Vs. State of Delhi 2003 Cri. L.J. 5021

10. K. Hasim Vs. State of Tamil Nadu 2005 Cri.


: 186 :

L.J.143

11. Madan Singh Vs. State of Rajasthan AIR 1978 SC 1511

12. Anter Singh Vs. State of Rajasthan 2004 Cri. L.J. 1380

13. Prithviraj Vs. State of Rajasthan 2004 Cri. L.J. 2190

14. State of U.P. Vs. Ram Babu AIR 1980 SC 791

15. State (Delhi Admn.) Vs. Pali Ram AIR 1979 SC 14

16. Parsuram Pandey Vs. State of Bihar 2004 Cri. L.J. 4978 (SC)

17. Sucha Singh & Anr. Vs. State of Punjab 2003 Cri.L.J. 3876

18. State of U.P. Vs. Farid Khan 2004 Cri. L.J. 4970

19. Jai Shree Yadav Vs. State of U.P. 2004 Cri. L.J. 4826

20. Yakub Ismailbhai Patel Vs. State of Gujarat2004 Cri. L.J. 4205

299. On the other hand, it is submitted by Sh. R.M. Tufail,

learned defence counsel for accused Md. Arif @ Ashfaq that :-

(i) There is no eye-witness to the case and the circumstantial


: 187 :

evidence do not form a complete chain of events pointing

unmistakably to the guilt of the accused ;

(ii) The charges of conspiracy to wage war against the Govt. of

India and conspiracy to commit other offences cannot stand

together i.e. Charge u/s 121-A and 120-B cannot be framed

together ;

(iii) There are material contradictions regarding :-

(a) time of incident, (b) number of assailants,(c) the army man who was fired first and where,(d) retaliation by the army team, (e) direction of entry and exit of assailants,(f) information to the police,(g) searching of Red Fort for clues and the exhibits recoveredfrom there including the slip with telephone number, and(h) documents were brought to Delhi from Ghaziabad on30.12.2000.

(iv) The FIR and entries in the roznamcha have been forged to

give logical appearance to the prosecution story as police was

even not allowed to enter the Red Fort on the date of incident ;

(v) The articles alleged to be recovered from the scene of crime

were not recovered from the spot and were planted there ;

(vi) The mobile phone alleged to have been recovered from

accused Md. Arif @ Ashfaq was not recovered from him at all


: 188 :

and it was planted upon him ;

(vii) The pistol alleged to have been recovered at the time of

arrest of Md. Arif, AK-56 Rifle and hand-grenades alleged to

have been recovered from behind the Red Fort at his pointing

out were also planted ;

(viii) The recovery of hand-grenades from Jamia Milia

University at the instance of accused Md. Arif @ Ashfaq is

also false, as nothing was recovered from there ;

(ix) No incident as alleged by the prosecution took place at the

Red Fort and the incident was the result of a drunken brawl

amongst the jawans ;

(x) Members of police guard deployed at Mumtaj Mahal

Museum inside Red Fort were not cited as witness ;

(xi) There are contradictions between the testimony of material

witnesses ;

(xii) There was no conspiracy to launch terrorist attacks in

India ;

(xiii) The fact alleged by the prosecution do not constitute the

waging of war ;


: 189 :

(xiv) The sanction granted by the respective authorities are

void ab initio as the same were granted without application of

mind ;

(xv) Report of the handwriting expert on specimen signatures

of the accused taken during investigation is not admissible as

the specimen handwriting was taken without the permission of

the court ;

(xvi) The record of the telephone companies Airtel and Essar

are neither admissible nor reliable as the same do not comply

with the requirements of law ;

(xvii) The disclosure statements of the accused are of no use, if

no recovery is effected consequent thereto, even when there are

charges of conspiracy ;

(xviii) The ration card as well as the driving licence are

genuine one and as such no offence has been committed

regarding the procurement of these two documents ;

(xix) Accused Md. Arif @ Ashfaq was not having any mobile

phone and it has been planted by the police ;

(xx) Accused Md. Arif @ Ashfaq earned the money out of the

his business activities and money deposited by him in the bank


: 190 :

account was not Hawala money ;

(xxi) The joint trial of the eleven accused has caused prejudice

to them.

(xxii) Letter Ex. PW-10/C was got written by the police from

Md. Arif @ Ashfaq during his custody ; and,

(xxiii) Arrest and recoveries were effected with undue delay

and after torturing the accused and as such they do not inspire

confidence.

300. For accused Rehmana Yusuf Farukhi, it is submitted by Sh.

R.M. Tufail, learned defence counsel, that she is innocent and

has been falsely implicated in this case. In support of her

innocence, it is submitted that :

(i) Charges u/s 120-B IPC and 121/121-A IPC cannot stand

together ;

(ii) The sanction u/s 196 Cr.P.C., is not proper ;

(iii) She was arrested illegally and her personal search was not

conducted by a lady police officer ;

(iv) She was kept in illegal custody ;

(v) The amount deposited in her account was given to her by

relatives for the purpose of her marriage ;


: 191 :

(vi) No telephonic calls were received by her at her residence

from telephones number 9811278510 and 9811242154 alleged

to be belonging to Md. Arif @ Ashfaq and the call details have

been forged by the police as is clear from the Ex. PW-198/DA ;

(vii) Police officials forcibly entered the house of Rehmana

Yusuf Farukhi in the night and tortured her and her family

member ;

(viii) Nothing was recovered from her house and the

documents mentioned in Ex. PW-173/B were fabricated by the

police ;

(ix) The negative of Abu Bilal and Visa form of Pakistan were

also not recovered from her house ;

(x) Rehmana Yusuf Farukhi was fit for marriage and as such

she did not marry Md. Arif @ Ashfaq for any ulterior motive ;

and,

(xi) Rehmana Yusuf Farukhi was tortured in custody and as

such evidence collected is not admissible.

301. For accused Sadakat Ali, it is submitted by Sh. R.M. Tufail,

learned defence counsel that :

(i) There is no sanction for prosecution of Sadakat Ali u/s


: 192 :

121/121-A IPC ;

(ii) He has already been challaned and punished for not

informing the police for letting out his house vide FIR No.

13/2001, u/s 188 IPC, Police Station New Friends Colony, in

the court of Sh. Vinod Kumar, the then learned Metropolitan

Magistrate, Delhi ;

(iii) There is no evidence against the accused for implicating

him u/s 14 of the Foreigners' Act ;

(iv) There is no evidence that he was party to the conspiracy to

cause death of anyone ;

(v) The evidence of PW-225 Md. Ahmad is tainted and biased

on account of enmity between the two ;

(vi) Challan has been filed against him belatedly which shows

that there was no evidence against him : and,

(vii) Investigating Officer has created false evidence against

him to implicate him in this case.

302.My attention has been invited to the following authorities :-

1. State of Maharashtra Vs. Ahmed Gulam NabiShaikh & Ors. 1997 Cri. L.J. 2377

2. Narendra Singh & Anr. Vs. State of M.P. 2004(2) JCC 832


: 193 :

3. Rakesh Aggarwal Vs. State (Delhi Admn.) 1995Cr. R. 826 (Delhi).

4. Rang Bahadur Singh & Ors. Vs. State of U.P.(2000) 3 SCC 454

5. Amarjeet Singh Vs. State of Punjab 1994 JCC129 (SC)

6. Sahib Singh Vs. State of Punjab 1997 SCC(Cri.) 315

7. Dharminder Pal Vs. State of Punjab 1997 SCC(Cri.) 670

8. Pradeep Narayan Madgaonkar etc. Vs. State ofMaharashtra 1995 Cr. R. 763 (SC)

9. Munni Lal Vs. The State 1995 JCC 110

10. Gaya Yadav & Ors. Vs. State of Bihar & Ors.(2003) 9 SCC 122

11. Meharaj Singh (L/Nk) Vs. State of U.P. 1994SCC (Cri.) 1390

12. Arjun Marik & Ors. Vs. State of Bihar 11(1994) CCR 445 (SC)

13. Dhannu Singh Vs. State of M.P. 1998 Cril. L.J.1732

14. Raj Kumar vs. State 1998 Cri. L.J. 424

15. Sukhvinder Singh & Ors. Vs. State of Punjab(1994) 5 SCC 152


: 194 :

16. Afsar Hussain Vs. N.C.T . of Delhi 72 (1998) DLT 261

17. M.C. Verghese Vs. T.J. Ponnam 1970 Cril L.J.1651 (Vol. 76)

18. Jaivir Singh Vs. State (Delhi Admn.) 1995Cr.R. 513 (Delhi)

19. Babu Das Vs. State of M.P. (2003) 9 SCC 86

20. Rakesh Kumar & Ors. Vs. State 2004 (72) DRJ311

21. State of Rajasthan Vs. J.P. Sharma 1983 Cri.L.J. 858

303. For accused Nazir Ahmad Quasid and Farukh Ahmad

Quasid, it is submitted by Sh. Aman Lekhi learned defence

counsel, that :-

(i) There is no evidence that accused waged war against the

Government of India ;

(ii) There is no evidence that they are members of Lashkar-e-

Toiba and are associated with Md. Arif @ Ashfaq and his

associates ;

(iii) The facts of the present case do not make out waging of

war against the Government of India ;


: 195 :

(iv) The sanction granted in the case is illegal as it was granted

without application of mind ;

(v) The charges of Section 120-B and 121/121-A cannot stand

together ;

(vi) There are no financing of militant activities by the two as

the accounts do not belong to them, nor the transactions have

been proved as per law ;

(vii) There is no evidence of accused being party to any

conspiracy ;

(viii) Disclosure statements of the co-accused before the police

are not admissible and cannot be used against co-accused with

the help of Section 30 of Evidence Act or any other provision

of law ;

(ix) Mere association does not prove conspiracy ;

(x) Specimen handwriting obtained of the accused in the course

of investigation cannot be used for comparison and report on

such handwriting is inadmissible ;

(xi) Wireless set recovered from the accused in Sri Nagar is not

admissible in evidence in this case ;

(xii) Accused Nazir Ahmad Quasid and Farukh Ahmad Quasid


: 196 :

were not in telephonic contact with accused Md. Arif @

Ashfaq and telephone record in this regard is inadmissible

under law ;

(xiii) The joint trial of the eleven accused has caused prejudice

to them.

304. My attention has been invited to the following authorities :-

(i) Gokulchand Dwarkadas Morarka V. The

Kind, J.C. 1948, Jan. 13, Vol. LXXV.]

(ii) M.K. Gopalan and another V. The State of

Madhya Pradesh, AIR 1954, S.C. 362 (Vol. 41

C.N. 88)

(iii) Dr. Dattatraya Narayan Samant and others

V. State of Maharashtra, 1982, CRI. L. J. 1025

(Bombay High Court)

(iv) Kehar Singh and Others Vs. State (Delhi

Administration) (1988) 3 Supreme Court Cases

609.

(v) State (Through Superintendent of Police,

CBI/SIT) Vs. Nalini and Others, (1999) 5

Supreme Court Cases 253.

(vi) Kala Singh and another Vs. Emperor, AIR

1933, Lahore 167.

(vii) Pulukuri Kottaya and other V. Emperor,


: 197 :

A.I.R. (34) 1947 Privy Council 67.

(viii) Firm Ahmad Din. Allah Ditta Vs. Sardar

Pratap Singh and others, A.I.R . 1939 Lahore 438.

(ix) Chandradhar Goswami and others V.

Gauhati Bank Ltd. AIR 1967, Supreme Court

1058 (V 54 C 221)

(x) Sukhvinder Singh and others Vs. State of

Punjab, (1994) 5 Supreme Court Cases 152.

(xi) Rakesh Kumar and others Vs. State, 2004 (72)

DRJ 311.

(xii) Manpreet Singh and another V. State, 2004

CRI. L.J. 530.

(xiii) Shiv Narayan & Anr. Vs. State (NCT of

Delhi) 2002 (61) DRJ 734 (DB)

(xiv) Faqira and others Vs. Emperor, A.I.R . 1929,

Lahore 665.

(xv) Puttu Vs. Emperor, A.I.R . (32) 1945 Oudh

235.

(xvi) Hazari Lal Vs. The State (Delhi Admn.) AIR

1980, Supreme Court 873.

(xvii) Mohd. Husain Umar Kochra Etc. Vs. K.S.

Dalipsinghji and Another etc., 1970, Supreme

Court Cases (Cr.) 99,

(xviii) In re Dani and others AIR 1936 Madras

317.


: 198 :

(xix) Balbir Vs. State of Haryana and Another,

(2000) 1 Supreme Court Cases 285.

305. On behalf of accused Babar Mohsin, it is submitted by Sh.

I.U. Khan, learned defence counsel that :-

(i) There is no legally admissible evidence connecting accused

Babar Mohsin with Md. Arif @ Ashfaq or Sadakat Ali ;

(ii) Letter Ex. PW-10/C alleged to have been written by Md.

Arif @ Ashfaq to Babar Mohsin for helping him in Delhi, was

got written by the police from accused Md. Arif @ Ashfaq

during his police custody ;

(iii) The letter was recovered belatedly as Md. Arif @ Ashfaq

was arrested on 26.12.2000 and Babar Mohsin was arrested on

04.01.2001, but the letter was recovered on 07.01.2001. As

such, the letter does not inspire confidence ;

(iv) There was no dickey attached to the motor-cycle and as

such the chances of the letter being found in the manner stated

by the police are very less ;

(v) No public person was joined as a witness at the time of

recovery of the letter ;

(vi) There are cuttings and overwriting in the seizure memo and


: 199 :

Babar Mohsin also did not sign the seizure memo ;

(vii) Accused Babar Mohsin does not know Urdu as such the

letter could not have been written to him in a language

unknown to him ;

(viii) The passerby from whom the letter was got read over,

has not been cited as a witness ;

(ix) The contents of letter are innocuous and does not contain

any incriminatory material ;

(x) There is no evidence that Babar Mohsin was part of any

conspiracy or actual incident inside the Red Fort ; and,

(xi) Evidence of PW-225 Md. Ahmad is extremely doubtful as

he has been cited as a witness at a very late stage and his

complaint to the Commissioner of Police is also of doubtful

integrity.

306. My Attention has also been invited to an authority reported

as Mukhtiar Ahmad Anshari Vs. State, 2005 II, AD (Cr.)

SC 441.

307. On behalf of accused Devender Singh, Shahanshah Alam

and Matloob, Sh. Anil Aggarwal, ld. Defence counsel has

submitted that :-


: 200 :

(i) Charges u/s 120-B and Section 121/121-A IPC cannot stand

together ;

(ii) The charges against the present accused are infact u/s

121/121-A IPC, but no sanction u/s 196 Cr.P.C., has been

obtained ;

(iii) They were not party to the conspiracy to cause murder of

anyone in the course of waging war against the Government of

India by accused Md. Arif @ Ashfaq and his associates ;

(iv) There is no evidence that accused Devender Singh

conspired with accused Md. Arif @ Ashfaq to get a forged

driving licence prepared for him ;

(v) There is no evidence that accused Devender Singh and

accused Rajiv Malhotra conspired together to forge a driving

licence for accused Md. Arif @ Ashfaq ;

(vi) There is no evidence that accused Devender Singh, Rajiv

Malhotra and Shahanshah Alam conspired further to obtain a

forged a driving licence for accused Md. Arif @ Ashfaq ;

(vii) There is no evidence that ration card with address 102,

Kela Bhatta, Ghaziabad and learning licence with address at B-

17, Jungpura, New Delhi, both in the name of Md. Arif @


: 201 :

Ashfaq were forged by Shahanshah Alam ;

(viii) Shahanshah Alam was not an employee of Akashdeep

Motor Driving College and he is an illiterate person ;

(ix) There is no evidence that these three accused were in

conspiracy with accused Mool Chand Sharma and Matloob

also to obtain a forged ration card for accused Md. Arif @

Ashfaq ;

(x) There is no evidence that accused Matloob Alam conspired

with Md. Arif @ Ashfaq for obtaining a forged ration card in

his favour ;

(xi) There is no evidence that accused Matloob Alam used to

get forged ration cards issued in favour of different persons of

the area ;

(xii) The reports of the handwriting expert Dr. M.A. Ali and

Sh. Ami Lal Daksh are motivated and have been given at the

instance of prosecution ;

(xiii) The evidence of PW-174 Sh. Kushal Pal is biased and

tainted as he himself was earlier placed in the list of accused by

the prosecution, but was subsequently not charge-sheeted.

(xiv) The driving licence and ration card were not used by the


: 202 :

accused anywhere and as such no offence has been committed

as forgery itself is no offence ;

(xv) Specimen handwriting of accused Matloob Alam,

Devender Singh and Rajiv Malhotra were taken during

investigation without the permission of the court and as such it

cannot be used as evidence ;

(xvi) The joint trial of the eleven accused has caused prejudice

to them ;

(xvii) In case, the handwriting of accused Matloob appears on

some ration cards, it is due to the fact that he used to fill up

these ration cards at the request of the office staff while visiting

the Food & Supply office of Circle-6, Okhla ;

(xviii) Prosecution has fabricated false evidence in order to

exonerate the staff of the Food & Supply Office, Circle-6,

Okhla and accused Matloob Alam did not tamper with the

register of the shop of Kushal Kumar ; and,

(xix) Evidence has been collected illegally.

308. My attention has been invited to the following authorities :-

1. Somabhai Shamalbhai Patel and Others vs State of

Gujarat, Crimes VII 1987(2) Page 644

2. Munna Lal vs State IV (1998) CCR 320


: 203 :

3. State of Tamil Nadu vs Nalini AIR 1999 Supreme

Court 2640

4. Sattan @Satyendra & Ors.etc. Vs State of U.P.

2001 Crl.L.J . 676

5. State of Kerala vs P.Sugathan & Anr. IV (2000)

CCR 71 (SC)

6. Firozuddin Basheeruddin & Ors vs State of Kerala

2001 Crl.L.J.4215

7. Shaikh Noor Mohamad Shaikh Fazal vs The State

of Maharashtra AIR 1981 SC 297

309. For accused Mool Chand Sharma, it is submitted by Sh. D.K.

Sharma, learned defence counsel that :-

(i) Accused Mool Chand Sharma was not the Food Inspector of

the area, when the ration card of Md. Arif @ Ashfaq was

prepared ;

(ii) Evidence of PW-174 Kushal Pal is tainted and biased as he

himself was an accused in the case ;

(iii) There is no evidence that he was in conspiracy with

accused Matloob and Md. Arif @ Ashfaq to get a forged ration

card in favour of accused Md. Arif @ Ashfaq ;

(iv) There is no evidence that he was in conspiracy with other

accused to commit the murder of anyone, who came in the way


: 204 :

of accused Md. Arif @ Ashfaq and his associates for waging

war against the Government of India ; and,

(v) Official records have been suppressed and tampered with

by the officials of Food & Supply Officer, Circle-6, Okhla to

falsely implicate accused Mool Chand Sharma and to save

officials who were in fact guilty.

310. On behalf of accused Rajiv Malhotra, Sh. P.R. Aggarwal,

learned defence counsel submitted as under :-

(i) That the only allegation against the accused is that he took

Rs. 900/- along with a slip of address and photograph of

accused Md. Arif @ Ashfaq from accused Devender Singh and

retained Rs. 300/- with himself and passed on the balance

amount of Rs. 600/-, slip of address and photograph of Md.

Arif @ Ashfaq to accused Shahanshah Alam. However, there

is no legally admissible evidence against the accused regarding

this ;

(ii) Prosecution has relied upon only disclosure statements of

the accused and co-accused recorded during police custody and

same are inadmissible in evidence ; and,

(iii) Forms for preparation of the driving licences seized by the


: 205 :

police do not constitute any evidence against the accused as the

same are required and used by him in normal course of his

business.

311. He has invited my attention to the following authorities :-

(i) Kamal Kishore Vs. State (Delhi Admn.) 1997

(2) Crimes 169

(ii) Mangal Singh Vs. State (Delhi) 1995 (1), C.C.

Cases 45 (HC).

(iii) Ram Kishore Vs. State 1990 (2), C.C. Cases

(HC) 205.

(iv) Virender Kumar Yadav & Mukhtiar Yadav

@ Mukho Yadav @ Raj Vs. State, 1995 (3) C.C.

Cases (HC) 236

(v) State of Maharashtra Vs. Damu Gopinath

Shinde and others, AIR 2000, S.C. 1691

312. The prosecution as well as all the accused have also filed

detailed written arguments and copies of the same have been

supplied to each other. Both parties have also read over the

relevant evidence to me.

(H). LEGAL PROVISIONS :

313.Section 186 IPC provides as under :-

Obstructing public servant in discharge of


: 206 :

public functions : “Whoever voluntarily

obstructs any public servant in the discharge

of his public functions, shall be punished with

imprisonment of either description for a term

which may extend to three months, or with

fine which may extend to five hundred

rupees, or with both”

314. Section 188 IPC lays down as under :-

“Whoever, knowing that, by an order promulgated by a

public servant lawfully, empowered to promulgate such

order, he is directed to abstain from a certain act, or to

take certain order with certain property in his

possession or under his management, disobeys such

direction,

shall, if such disobedience causes or tends to cause

obstruction, annoyance or injury, or risk of obstruction,

annoyance or injury, to any persons lawfully employed,

be punished with simple imprisonment for a term which

may extend to one month or with fine which may

extend to two hundred ruppes or with both ;

and if such disobedience causes or tends to cause

danger to human life, health or safety, or causes or

tends to cause a riot or affray, shall be punished with

imprisonment of either description for a term which

may extend to six months, or with fine which may

extend to one thousand rupees, or with both.”


: 207 :

Explanation :- It is not necessary that the offender

should intend to produce harm, or contemplate his

disobedience as likely to produce harm. It is sufficient

that he knows of the order which he disobeys, and that

his disobedience produces, or is likely to produce harm.

315. Section 118 IPC provides as under :-

“Whoever, intending to facilitate or knowing it to be

likely that he will thereby facilitate the commission of

an offence punishable death or imprisonment for life.

Voluntarily conceals, by any act or illegal

omission, the existence of a design to commit such

offence or makes any representation which he knows to

be false respecting such design,

if offence be committed - if offence be not

committed – shall, if that offence be committed, be

punished with imprisonment of either description for a

term which may extend to seven years, or, if the offence

be not committed, with imprisonment of either

description, for a term which may extend to three

years; and in either case shall also be liable to fine.”


“Whenever any person convicted of or charge with

an offence, being in lawful custody for that offence,

escape from such custody, or whenever a public

servant, in the exercise of the lawful powers of such

public servant, orders a certain person to be


: 208 :

apprehended for an offence, whoever, knowing of such

escape or order for apprehension, harbours or conceals

that person with the intention of preventing him from

being apprehended, shall be punished in the manner

following, this is to say,

If a capital offence:--- If, the offence for which the

person was in custody or is ordered to be apprehended

is punishable with death, he shall be punished with

imprisonment of either description for a term which

may extend to seven years, and shall also be liable to

fine ;

If punishable with imprisonment for life, or with

imprisonment :---- If the offence is punishable with

imprisonment for life, or imprisonment for ten years, he

shall be punished with imprisonment of either

description for a term which may extend to three years,

with or without fine ;

and if the offence is punishable with imprisonment

which may extend to one year and not to ten years, he

shall be punished with imprisonment of the description

provided for the offence for term which may extend to

one-fourth part of the longest term of the imprisonment

provided for such offence, or with fine, or with both.”

“Offence” in this section includes also any act or

omission of which a person is alleged to have been

guilty out of India, which, if he had been guilty of it in

India would have been punishable as an offence, and


: 209 :

for which he is, under any law relating to extradition, or

otherwise liable to be apprehended or detained in

custody in India ; and every such act or omission shall,

for the purpose of this section, be deemed to be

punishable as if the accused person had been guilty of it

in India.

317. Section 299 IPC lays down as under:-

Culpable homicide. - “Whoever causes death by

doing an act with the intention of causing death, or

with the intention of causing such bodily injury as is

likely to cause death, or with the knowledge that he

is likely by such act to cause death, commits the

offence of culpable homicide.”

318. Section 300 IPC lays down as under:-

Murder:- “Except in the cases hereinafter

excepted, culpable homicide is murder, if the

act by which the death is caused is done with

the intention of causing death or-

Secondly.- If it is done with the intention of

causing such bodily injury as the offender

knows to be likely to cause the death of the

person to whom the harm is caused, or-

Thirdly.- If it is done with the intention of

causing bodily injury to any person and the

bodily injury intended to be inflicted is


: 210 :

sufficient in the ordinary course of nature to

cause death or-

Fourthly.- If the person committing the act

knows that it is so imminently dangerous that

it must, in all probability, cause death, or such

bodily injury as is likely to cause death, and

commits such act without any excuse for

incurring the risk of causing death or such

injury as aforesaid.

....................................................................”

319. Section 302 IPC lays down as under:

Punishment for murder:- “Whoever commits murder

shall be punished with death, or imprisonment for

life, and shall also be liable to fine.”


Assault or criminal force to deter public

servant from discharge of his duty :

“Whoever assaults or uses criminal force to

any person being a public servant in the

execution of his duty as such public servant,

or with intent to prevent or deter that person

from discharging his duty as such public

servant, or in consequence of anything done

or attempted to be done by such person in the

lawful discharge of his duty as such public

servant, shall be punished with imprisonment


: 211 :

or either description for a term which may

extend to two years, or with fine, or with

both.”

321. Section 3 of Arms Act provides as under:

“No person shall acquire , have in his possession, or

carry any firearm or ammunition unless he holds in

this behalf a licence issued in accordance with the

provisions of this Act and the rules made thereunder:

...............................................................................”

322.Section 25 (1B) (a) and (b) of the Arms Act 1959 provides

as under :-

(1B) “Whoever-

(a) acquires, has in his possession or carries any

firearm or ammunition in contravention of Section

3; or

..............................................................................

..............................................................................

.....shall be punishable with imprisonment for a

term which shall not be less than [one year] but

which may extend to three years and shall also be

liable to fine :

Provided that the Court may for any adequate and

special reasons to be recorded in the judgment

impose a sentence of imprisonment for a term of

less than [one year].”


: 212 :

323. Section 14 of Foreigner's Act lays down as under :-

“Penalties---- If any person contravenes the provisions

of this Act or of any order made thereunder, or any

direction given in pursuance of this Act or such order,

he shall be punished with imprisonment for a term

which may extend to five years and shall also be liable

to fine ; and if such person has entered into a bond in

pursuance of clause (f) of sub-section (2) of section 3,

his bond shall be forfeited, and any person bound

thereby shall pay the penalty thereof or show cause to

the satisfaction of the convicting court why such

penalty should not be paid.”

324. Section 2 of the Explosive Substances Act lays down as

under :-

“In this Act, the expression “explosive substance”

shall be deemed to include any materials for making

any explosive substance; also any apparatus,

machine, implement or material used, or intended to

be used, or adapted for causing, or aiding in causing

any explosion in or with any explosive substance;

also any part of any such apparatus, machine or

implement.”

325.Section 4 of the Explosive Substances Act lays down as

under :-


: 213 :

“Punishment for attempt to cause explosion, or for

making or keeping explosive with intent to endanger

life or property.---- Any person who unlawfully and

maliciously---

(a) does any act with intent to cause by an

explosive substance, or conspires to cause by an

explosive substance, an explosion in (India) of a nature

likely to endanger life or to cause serious injury to

property; or

(b) makes or has in his possession or under

his control any explosive substance with intent by

means thereof to endanger life, or cause serious injury

to property in (India) or to enable any other person by

means thereof to endanger life or cause serious injury to

property in (India)

shall, whether any explosion does or does not take place

and whether any injury to person or property has been

actually caused or not, be punished with imprisonment

for a term which may extend to twenty years, to which

fine may be added, or with imprisonment for a term

which may extend to seven years, to which fine may be

added.”

326. Section 5 of the Explosive Substances Act lays down as

under :-

“Punishment for making or possession explosive under

suspicious circumstances--- Any person who makes or


: 214 :

knowingly has in his possession or under his control

any explosive substance, under such circumstances as

to give rise to a reasonable suspicion that he is not

making it or does not have it in his possession or under

his control for a lawful object, shall, unless he can show

that he made it or had it in his possession or under his

control for a lawful object, be punishable with

imprisonment for a term which may extend to fourteen

years, to which fine may be added, or with

imprisonment for a term which may extend to five

years, to which fine may be added.”

(I) COMMON POINTS :

327.First of all, I shall dispose of common points raised on behalf

of all accused.

(i) DEFECTIVE CHARGES OF CONSPIRACY :

328. The first submission is whether the charge u/s 120-B IPC is

redundant and misplaced in the face of charges u/s 121-A IPC?

Whether the two charges cannot stand together ? It is

submitted that when there is a charge u/s 121-A IPC, the charge

u/s 120-B IPC cannot be framed as Section 120-B IPC is

contained in chapter V-A and conspiracy to commit offences

punishable u/s 121 IPC i.e., conspiracy to wage war against

Govt. of India or to overawe the Government by means of


: 215 :

criminal force or show criminal force is contained in Chapter

VI of IPC. The ingredients, nature and purpose of the two

conspiracies are different and as such the two charges cannot

stand together.

329. However, I find that this submission is without merit for the

reasons that there can be a conspiracy within a conspiracy and

the aim and object of two conspiracies may be different, though

some facts may overlap. Here, the aim and object of the

conspiracy u/s 121-A IPC was to wage war against the Govt. of

India and the purpose of the conspiracy u/s 120-B IPC was to

commit murder of all those, who had come in the way of

waging war against Govt. of India and also to forge a driving

licence and ration card of accused Md. Arif @ Ashfaq to give

him Indian identity. In this regard, I am fortified by an

authority reported as “ Ram Lal Narang Vs. State (Delhi

Admn.) AIR 1979 SC 1791. In this case, two cases were

registered, one u/s 120-B r/w 420/406 IPC, and the second was

registered u/s 120-B IPC r/w 411 IPC and Section 20 of the

Antiquities and Art Treasures Act 1972. In the first case, the

allegations were that some articles of great antiquity were


: 216 :

replaced by fake ones by cheating the court, whereas the

allegations in the second case were that these were exported out

of India and later on recovered from the accused. It was

contended on behalf of the accused that two cases were in fact

one and cognizance cannot be taken in the second case.

Dealing with the two conspiracies, Hon'ble Supreme Court

observed in para 11 as under :-

“.................... This argument is again of no relevance

in determining the question whether the two

conspiracies which were taken cognizance of by the

Ambala and the Delhi Courts were the same in

substance. The question is not whether the nature

and character of the conspiracy has changed by the

mere inclusion of a few more conspirators as accused

or by the addition of one more among the objects of

the conspiracy. The question is whether the two

conspiracies are in substance and truth the same.

Where the conspiracy discovered later is found to

cover a much larger canvas with broader

ramifications, it cannot be equated with the earlier

conspiracy which covered a smaller field of narrower

dimensions. We are clear, in the present case, that

the conspiracies which are the subject-matter of the

two cases cannot be said to be identical though the

conspiracy which is the subject-matter of the first


: 217 :

case may, perhaps, be said to have turned out to be

part of the conspiracy which is the subject-matter of

the second case........................”

330. Similar point was dealt with by the Hon'ble Supreme Court

in State (NCT of Delhi) Vs. Navjot Sandhu @ Afsan Guru

2005 VI AD (SC) 545 (Parliament Attack Case). In para 7

(II), Hon'ble Supreme Court observed as under :-

“.................... It is not uncommon that the offence

alleged might seemingly fall under more than one

provision and sometimes it may not be easy to form a

definite opinion as to the Section in which the

offence appropriately falls. Hence, charges are often

framed by way of abundant caution. Assuming that

an inapplicable provision has been mentioned, it is

no ground to set aside the charges and invalidate the

trial.”

331. Similarly in paragraph 15 in Mohd. Husain Umar Kochra

Etc. Vs. K.S. Dalipsinghji and Another etc., 1970, Supreme

Court Cases (Cr.) 99, the point of criminal conspiracy and

separate conspiracy was dealt with and Hon'ble Supreme Court

observed as under :-

“15. As to the second question the contention was

that the evidence disclosed a number of separate


: 218 :

conspiracies and that the charge of general

conspiracy was not proved. Criminal conspiracy as

defined in Section 120-A of the I.P.C is an agreement

by two or more persons to do or cause to be done an

illegal act which is not illegal means. The agreement

is the gist of the offence. In order to constitute a

single general conspiracy there must be a common

design and a common intention of all to work in

furtherance of the common design. Each conspirator

plays his separate part in one integrated and united

effort to achieve the common purpose. Each one is

aware that he has a part to play in a general

conspiracy though he may not know all its secrets or

the means by which the common purpose is to be

accomplished. The evil scheme may be promoted by

a few, some may drop out and some may join at a

later stage, but the conspiracy continues until it is

broken up. The conspiracy may develop in

successive stages. There may be a general plan to

accomplish the common design by such means as

may from time to time be found expedient. New

techniques may be invented and new means may be

devised for advancement of the common plan. A

general conspiracy must be distinguished from a

number of separate conspiracies having a similar

general purpose. Where different groups of persons

co-operate towards their separate ends without any


: 219 :

privity with each other, each combination constitutes

a separate conspiracy. The common intention of the

conspirators then is to work for the furtherance of the

common design of his group only. The cases

illustrate the distinction between a single general

conspiracy and a number of unrelated conspiracies.

In S.K. Khetwani v. State of Maharashtra and S.

Swaminatham v. State of Madrs the court found a

single general conspiracy while in R. v. Griffiths the

court found a number of unrelated the separate

conspiracies.”

(ii) SANCTIONS :

332. Section 196 Cr.P.C., provides as under :-

“Prosecution for offence against the State and for

criminal conspiracy to commit such offence------

(1) No Court shall take cognizance of ------

(a) any offence punishable under Chapter VI or under

Section 153-A, (section 295-A of sub-section (1) of

section 505) of Indian Penal Code (45 of 1860), or

(b) a criminal conspiracy to commit such offence, or

(c) any such abetment, as is described in Section 108-A

of the Indian Penal Code (45 of 1860)

except with the previous sanction of the Central

Government or of the State Government.

................................................”


: 220 :

333. Section 197 Cr.P.C, lays down as under :-

“Prosecution of Judges and public servants---

(1) When any person who is or was a judge or

Magistrate or a public servant not removable from

his office save by or with the sanction of the

Government is accused of any offence alleged to

have been committed by him while acting or

purporting to act in the discharge of his official duty,

no Court shall take cognizance of such offence

except with the previous sanction----

(a) in the case of a person who is employed or, as the

case may be, was at the time of commission of the

alleged offence employed, in connection with the

affairs of the Union, of the Central Government ;

(b) in the case of a person who is employed or, as the

case may be, was at the time of commission of the

alleged offence employed, in connection with the

affairs of a State, of the State Government ;

.......................................................................”

334. Section 39 of the Arms Act 1969 provides as under :-

“Previous sanction of the district magistrate

necessary in certain cases- No prosecution shall be

instituted against any person in respect of any

offence under Section 3 without the previous

sanction of the district magistrate.”

335.Sec. 7 of Explosive Substances Act 1908, provides as under:


: 221 :

“Restriction on trial of offence---- No court shall

proceed to the trial of any person for an offence

against this Act except the consent of Central

Government”

336. The next submission of the learned defence counsel is that

sanction u/s 196 Cr.P.C was not granted by Competent

Authority and it should have been granted by the Government

of India. Hon'ble Lt. Governor of National Capital Territory of

Delhi is not competent to grant sanction for prosecution u/s

121/121-A IPC. The second leg of this argument for all the

accused is that Sanctions were granted u/s 196 Cr.P.C., u/s 197

Cr.P.C against accused Mool Chand Sharma, u/s 39 Arms Act

and Section 7 of Explosive Substances Act against Md. Arif

@ Ashfaq without application of mind by authorities. The

sanction orders are Exs. PW-167/A, PW-167/B and PW-167/C,

PW-201/A, PW-106/A and PW-199/A. The first question is :

Whether Hon'ble Lt. Governor of Delhi is competent to grant

sanction under Section 196 Cr.P.C., for prosecution u/s

121/121-A IPC ?

337. This question was answered directly by the Hon'ble Supreme

Court in “Parliament Attack Case (Supra)” in paragraph 5(v)


: 222 :

as under :-

“(v) As regards the sanction under Section 196

Cr.P.C., it is recited in the sanction order (Ext.

P11/2) that the Lt. Governor acted in exercise of

powers conferred by sub-Section (1) of Section 196

Cr.P.C read with the Government of India, Ministry

of Home Affairs notification dated 20th March 1974.

Under that notification, there was delegation of

powers of the Lt. Governor to grant sanction. The

said notification which finds place in the Annexures

to the written submissions made on behalf of Gilani

shows that it was issued under Article 239(1) of the

Constitution enabling the Administrator of the Union

Territory to discharge powers and functions of the

State Government under the Cr.P.C. We accept the

submission of the learned senior counsel for the State

that the delegation of power contained in the said

notification will continue to operate unless the

Parliament by law provides otherwise. The

Government of NCT of Delhi Act, 1991 does not in

any way affect the validity of delegation contained in

the Presidential Notification issued under Article

239. .......................”

338. The next question is : Whether the sanctions were granted by

the concerned authorities with proper application of mind ? It

has been argued before me in great detail that the authorities


: 223 :

concerned did not apply their minds to the facts of the case and

sanctions were granted mechanically without application of

mind and as such the sanctions granted are void and illegal.

This question was also directly answered by the Hon'ble

Supreme Court in “Parliament Attack Case (Supra)” in para

5(vi) as under at page 569:-

“........................ On the validity of sanction, we have

to consider yet another contention of the learned

senior counsel Mr. R. Jethmalani that in the absence

of recital of facts to sustain prosecution or proof of

consideration of such facts, the sanction order must

be held to have been vitiated on the ground of non-

application of mind. Relying on the dicta of the

Privy Council in Gokulchand's case, it has been

pointed out that no facts constituting the relevant

offences were set out in the order nor any extraneous

evidence was let in to show that the sanctioning

authority was seized of the facts alleged to constitute

the relevant offence. In Gokulchand's case

(Supra), the sanction order of the Government was a

bald order stating that the Government was “pleased

to accord sanction under Clause 23 of Cotton Cloth

and Yarn (Control) Order to the prosecution of Mr.

Gokulchand Dwarkadas for breach of the provisions

of Clause 18(2) of the said order.” The Privy


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Council held that the sanction read with the evidence

adduced at the trial was not in compliance with the

provisions of Clause 23 of the said Control Order.

The following observations in that judgment may be

noted :

“............ In their Lordships' view, in order

to comply with the provisions of clause 23, it

must be proved that the sanction was given in

respect of the facts constituting the offence

charged. It is plainly desirable that the facts

should be referred to on the face of the sanction,

but this is not essential, since clause 23 does not

require the sanction to be in any particular form,

nor even to be in writing. But if the facts

constituting the offence charged are not shown

on the face of the sanction, the prosecution must

prove by extraneous evidence that those facts

were placed before the sanctioning authority

........... “

The ruling of the Privy Council was cited

with approval by this Court in Jaswant Singh Vs.

State of Punjab [AIR 1958 SC 124] and certain

other cases. Ultimately, the test to be applied is

whether relevant material that formed the basis of

allegations constituting the offence was placed

before the sanctioning authority and the same was

perused before granting sanction. We are of the view


: 225 :

that this test has been amply satisfied in the instant

case. The sanction orders on their face indicate that

all relevant material viz. FIR, disclosure statements,

recovery memos, draft charge sheet and other

material on record was placed before the sanctioning

authority. The fact that the sanctioning authority

perused al this material is also discernible from the

recital in the sanction orders. The sanction orders

make it clear that the sanctioning authority had

reached the satisfaction that prima facie the accused

committed or conspired to commit the offences

mentioned therein. The elaborate narration of facts

culled out from the record placed before the

sanctioning authority and the discussion as to the

applicability of each and every Section of the penal

provision quoted therein is not an imperative

requirement. A pedantic repetition from what is

stated in the FIR or the draft charge-sheet or other

documents is not what is called for in order to judge

whether there was due application of mind. It must

be noted that the grant of sanction is an executive act

and the validity thereof cannot be tested in the light

of principles applied to the quasi-judicial order vide

the decisions in State of Bihar Vs. P.P. Sharma

[(1992) supp. 1 SCC 222] and Superintendent of

Police Vs. Deepak Chowdary [(1995) 6 SCC


: 226 :

225.]...................................”


: 227 :

339. In the instant case, PW-167 Sh. G.L. Meena, deposed that

recovery memo, disclosure statements, statements u/s 161

Cr.P.C., and other material was placed before the Hon'ble Lt.

Governor, Delhi for seeking sanction u/s 196 Cr.P.C. In the

cross-examination, he denied that sanction was granted

mechanically. Similarly, PW-106 Sh. M.S. Upadhyay (DIG)

also deposed that he had carefully examined the entire record

before granting sanction u/s 39 of the Arms Act. Similar is the

case with PW-199 Sh. Rakesh Behari, Joint Secretary to Govt.

of India, who granted sanction u/s 197 Cr.P.C, for prosecution

of accused Mool Chand Sharma, as the accused is a

Government Servant. He deposed that he had perused the

entire record of the case. Similarly, PW-201 Sh. Raj Kumar,

the then Addl. DCP, East Delhi, deposed that he had perused

all the documents and applied his mind before granting

sanction u/s 39 of Arms Act. Similar is the case with PW-167

Sh. G.L. Meena and PW-192 Sh. N.N. Mahrotra. In the cross-

examination of these four witnesses, there is nothing of any

significance, which could render the sanctions granted illegal,

being without application of proper mind. As such, I find that


: 228 :

relevant sanctions have been granted by the competent

authorities after due application of mind.

(iii) CONSPIRACY :

340. The next question is whether there was conspiracy to wage

war against the Govt. of India and whether in prosecution of

this conspiracy, there were further conspiracies to commit

various illegal acts like killing those who come in the way of

conspirators and to forge driving licence and ration card to

give Indian identity to accused Md. Arif @ Ashfaq and to

harbour him and conceal his criminal designs ?

341. Section 120-A IPC lays down as under :-

“When two or more persons agree to do, or cause to

be done-----

(1) an illegal act, or

(2) an act which is not illegal by illegal means, such

an agreement is designated a criminal conspiracy :

Provided that no agreement except an agreement to

commit an offence shall amount to a criminal

conspiracy unless some act besides the agreement is

done by one or more parties to such agreement in

pursuance thereof.”

342.Section 120 B IPC lays down as under :-


: 229 :

“(1) Whoever is a party to a criminal conspiracy to

commit an offence punishable with death,

imprisonment for life or rigorous imprisonment for a

term of two years or upwards, shall, where no

express provision is made in this Code for the

punishment of such a conspiracy, be punished in the

same manner as if he had abetted such offence.

(2)Whoever is a party to a criminal conspiracy other

than a criminal conspiracy to commit an offence

punishable as aforesaid shall be punished with

imprisonment of either description for a term not

exceeding six months, or with fine or with both

.................................................................”

343. Section 121A IPC povides as under:

“ Whoever within or without India conspires to

commit any of the offences punishable by section

121, or conspires to overawe, by means of criminal

force or the show of criminal force, the Central

government or any State Government , shall be

punished with imprisonment for life, or with

imprisonment of either description which may extend

to ten years, and shall also be liable to fine.”

Explanation: To constitute a conspiracy under this

section, it is not necessary that any act or illegal

omission shall take place in pursuance thereof.


: 230 :

344. Section 10 of the Evidence Act 1872, provides as

under :-

“Where there is reasonable ground to believe that

two or more persons have conspired together to

commit an offence or an actionable wrong, anything

said, done or written by any one of such persons in

reference to their common intention, after the time

when such intention was first entertained by any one

of them, is a relevant fact as against each of the

persons believed to be so conspiring, as well for the

purpose of proving the existence of the conspiracy as

for the purpose of showing that any such person was

a party to it.”

345. The law regarding conspiracy was explained in detail by the

Hon'ble Supreme Court in Nalini (Supra). In para 574,

Hon'ble Supreme Court observed as under :-

“Some of the broad principles governing the law of

conspiracy may be summarized though, as the name

implies, a summary cannot be exhaustive of the

principles.

1. Under section 120A IPC offence of criminal

conspiracy is committed when two or more persons

agree to do or cause to be done an illegal act or legal

act by illegal means. When it is legal act by illegal

means overt act is necessary. Offence of criminal


: 231 :

conspiracy is exception to the general law where

intent alone does not constitute crime It is intention

to commit crime and joining hands with persons

having the same intention. Not only the intention but

there has to be agreement to carry out the object of

the intention, which is an offence. The question for

consideration in a case is did all the accused had the

intention and did they agree that the crime be

committed. It would not be enough for the offence

of conspiracy when some of the accused merely

entertained a wish, howsoever, horrendous it may be,

that offence be committed.

2. Acts subsequent to the achieving of object of

conspiracy may tend to prove that a particular

accused was party to the conspiracy. Once the object

of conspiracy has been achieved, any subsequent act,

which may be unlawful, would not make the accused

a part of the conspiracy like giving shelter to an

absconder.

3. Conspiracy is hatched in private or in secrecy. It

is rarely possible to establish a conspiracy by direct

evidence. Usually, both the existence of the

conspiracy and its objects have to be inferred from

the circumstances and the conduct of the accused.

4. Conspirators may, for example, be enrolled in

chain. A enrolling B, B enrolling C, and so on and all

will be members of the single conspiracy if they so


: 232 :

intend and agree, even though each member knows

only the person who enrolled him and the person

whom he enrolls. There may be a kind of umbrella-

spoke enrollment, where a single person at the centre

doing the enrolling and all the other members being

unknown to each other, though they know that there

are to be other members. These are theories and in

practice it may be difficult to tell whether the

conspiracy in a particular case falls into which

category. It may be, however, even overlap. But

then there has to be present mutual interest. Persons

may be members of single conspiracy even though

each is ignorant of the identity of many others who

may have diverse role to play. It is not a part of the

crime of conspiracy that all the conspirators need to

agree to play the same or an active role.

5. When two or more persons agree to commit a

crime of conspiracy, then regardless of making or

considering any plans for its commission, and despite

the fact that no step is taken by any such person to

carry out their common purpose, a crime is

committed by each and every one who joins in the

agreement. There has thus to be two conspirators and

there may be more than that. To prove the charge of

conspiracy it is not necessary that intended crime

was committed or not. If committed it may further

help prosecution to prove the charge of conspiracy.


: 233 :

6. It is not necessary that all conspirators should

agree to the common purpose at the same time. They

may join with other conspirators at any time before

the consummation of the intended objective and all

are equally responsible. What part each conspirator

is to play may not be known to everyone or the fact

as to when a conspirator joined the conspiracy and

when he left.

7. A charge of conspiracy may prejudice the

accused because it is forced them into a joint trial

and the court may consider the entire mass of

evidence against every accused. Prosecution has to

produce evidence not only to show that each of the

accused has knowledge of object of conspiracy but

also of the agreement. In the charge of conspiracy

Court has to guard itself against the danger of

unfairness to the accused. Introduction of evidence

against some may result in the conviction of all,

which is to be avoided. By means of evidence in

conspiracy, which is otherwise inadmissible in the

trial of any other substantive offence prosecution

tries to implicate the accused not only in the

conspiracy itself but also in the substantive crime of

the alleged conspirators. There is always difficult in

tracing the precise contribution of each member of

the conspiracy but then there has to be cogent and

convincing evidence against each one of the accused


: 234 :

charged with the offence of conspiracy. As observed

to Judge Learned Hand that “this distinction is

important today when many prosecutors seek to

sweep within the dragnet of conspiracy all those who

have been associated in any degree whatever with the

main offenders.”

8. As stated above, it is the unlawful agreement and

not its accomplishment, which is the gist or essence

of the crime of conspiracy. Offence of criminal

conspiracy is complete even though there is no

agreement as to the means by which the purpose is to

be accomplished. It is the unlawful agreement,

which is the gravamen of the crime of conspiracy.

The unlawful agreement which amounts to a

conspiracy need not be formal or express, but may be

inherent in and inferred from the circumstances,

especially declarations, acts and conduct of the

conspirators. The agreement need not be entered into

by all the parties to it at the same time, but may be

reached by successive actions evidencing their

joining of the conspiracy.

9. It has been said that a criminal conspiracy is

a partnership in crime, and that there is in each

conspiracy a joint or mutual agency for the

prosecution of a common plan. Thus, if two or more

persons enter into a conspiracy, any act done by any

of them pursuant to the agreement is in


: 235 :

contemplation of law, the act of each of them and

they are jointly responsible therefor. This means that

everything said, written or done by any of the

conspirators in execution or furtherance of the

common purpose is deemed to have been said done,

or written by each of them. And this joint

responsibility extends not only to what is done by

any of the conspirators pursuant to the original

agreement but also to collateral acts incident to and

growing out of the original purpose. A conspirator is

not responsible, however, for acts done by a co-

conspirator after termination of the conspiracy. The

joinder of a conspiracy by a new member does not

create a new conspiracy nor does it change the status

of the other conspirators, and the mere fact that

conspirators individually or in groups perform

different tasks to a common end does not split up a

conspiracy into several different conspiracies.

10. A man may join a conspiracy by word or by

deed. However, criminal responsibility for a

conspiracy requires more than a merely passive

attitude towards an existing conspiracy. One who

commits an overt act with knowledge of the

conspiracy is guilty. And one who tacitly consents to

the object of a conspiracy and goes alongwith other

conspirators, actually standing by while the other but

the conspiracy into effect, is guilty though he intends


: 236 :

to take no active part in the crime.”

346. Interpreting Section 10 of the Evidence Act, Privy Council in

an authority reported as Mirza Akbar Vs. King Emperor,

AIR 1940 PC 176, observed as under :

“ This being the principle, their Lordships think the

words of Section 10 must be construed in accordance

with it and are not capable of being widely construed

so as to include a statement made by one conspirator

in the absence of the other with reference to past acts

done in the actual course of carrying out the

conspiracy, after it has been completed. The

common intention is in the past. In their Lordships'

judgment, the words 'common intention' signify a

common intention existing at the time when the thing

was said, done or written by one of them. Things

said, done or written while the conspiracy was on

foot are relevant as evidence of the common

intention, once reasonable ground has been shown to

believe in its existence. But it would be a very

different matter to hold that any narrative or

statement or confession made to a third party after

the common intention or conspiracy was no longer

operating and had ceased to exist is admissible

against the other party. There is then no common

intention of the conspirators to which the statement


: 237 :

can have reference. In their Lordships' judgment

Section 10 embodies this principle. That is the

construction which has been rightly applied to

Section 10 in decisions in India.

In these cases the distinction was rightly

drawn between communications between

conspirators while the conspiracy was going on with

reference to the carrying out of conspiracy and

statements made, after arrest or after the conspiracy

has ended, by way of description of events then past”

347. In the instant case, the following facts are held to have been

established in the later part of the judgment :-

(i) Accused Md. Arif @ Ashfaq @ Abu Hamad, accused Abu

Shamal, Abu Bilal, and Abu Haider all Pakistan nationals

along with their associates, entered India illegally fully armed

with sophisticated weapons and ammunitions

(ii) Accused Md. Arif @ Ashfaq set up a base at Delhi at 18-C,

Gaffur Nagar, Okhla and G-73, Muradi Road, Okhla, Delhi.

(iii) Accused Md. Arif @ Ashfaq obtained training for driving

from Seven Star Motor Driving College, Sarai Jullena with

address A-18, Gaffur Nagar, Okhla, Delhi and telephone

number 9810263721.


: 238 :

(iv) He acquired a driving licence with address at 102, Kela

Bhatta, Ghaziabad on the basis of a forged ration card and a

forged learning licence issued at the address of B-17, Jungpura,

Delhi, the two addresses where he never resided and there is no

question of his residing over there as he admittedly is a Pak

national.

(v) He acquired a forged ration card Ex. PW-164/A with

address at 17/12, Batla House, New Delhi. This ration card

was never issued by the office of Food & Supply Office,

Circle-6, Okhla, New Delhi.

(vi) He opened a bank account with HDFC Bank, New Friends

Colony, Okhla, on the basis of the driving licence being

account number 0891000024344 and deposited more than Rs.

Five lacs therein and one of the receipt is Ex. PW-173/K for

Rs. Five lacs.

(vii) He contacted Rehmana Yusuf Farukhi, resident of 308-A,

DDA Flats, Gazhipur, Delhi in response to her matrimonial

advertisement and married her in December 2000 and gave her

Rs. 2,80,000/- (Rs. Two lacs & eighty thousand only).

(viii) He deposited Rs. 29,50,000/- (Rs. Twenty-nine lacs &


: 239 :

fifty thousand only) in the accounts of Bilal Ahmad Qawa,

Nazir @ Sons, and Farukh Ahmad Quasid.

(ix) On 22.12.2000, at about 9.00 pm, two persons attacked

Army Camp inside Red Fort and killed three Army jawans

namely Uma Shankar, Abdullah Thakir and Ashok Kumar.

(x) At the time of his apprehension, a pistol with six live

cartridges and a mobile phone number 9811278510 was

recovered from his person and he was shown to be in constant

telephonic contact with accused Nazir Ahmad Quasid, Farukh

Ahmad Quasid, Attruddin (P.O.), Sadakat Ali and other

accused and from this telephone calls were made to BBC, Sri

Nagar and BBC Delhi, informing almost at the time of incident

that Lashkar-e-Toiba had attacked Army camp inside Red Fort.

(xi) At the pointing out of accused Md. Arif @ Ashfaq , raid

was conducted at G-73, Muradi Road, Okhla, Delhi, where

accused Abu Shamal was killed in encounter, who was later on

identified by him (Md. Arif) as his associate and from where

one AK-56 rifle, one magazine with thirty cartridges, two

hand-grenades, one bandoleer, a military colour pouch, and one

khaki uniform were recovered.


: 240 :

(xii) On his pointing out, one AK-56 rifle, two magazines with

thirty-two live rounds, one bandoleer, four hand-grenades and

a kitchen knife were recovered from behind the Red Fort on

26.12.2000 :

(xiii) On 01.01.2000, on his pointing out, three hand-grenades

were recovered from the area of Staff Quarter, Jamia Milia

University, Delhi :

(xiv) One AK-56 rifle and some live cartridges were recovered

in the morning of 23.12.2000 from Vijaya Ghat, a place not far

away from the scene of occurrence ; and,

(xv) The fired cartridge cases recovered from the scene of

occurrence have been deposed to as to have been fired from

these rifles and these two rifles and the rifle recovered from G-

73, Muradi Road are of same type.

348. A bare perusal of the aforesaid pieces of evidence would

show that there was a conspiracy to wage war against the Govt.

of India and to commit other offences as may be necessary for

the prosecution of this conspiracy and this point is self evident

and requires no further elaboration.

(iv) WAGING OF WAR :


: 241 :

349. It is next submitted that the facts of the case do not consitute

waging of war against the Government of India as only one or

two foreigners were involved in the incident and only three

persons have been killed and this is a very small incident and

by no stretch of imagination, it can be termed as an act of

waging war against the Government of India. Now the question

is : Whether the act of attacking the Army Camp inside the Red

Fort and killing three Army jawans amounts to waging of war


350. Section 121 IPC provides as under:

“ Whoever wages war against the Government of

India, or attempts to wage such war, or abets the

waging of such war, shall be punished with death, or

imprisonment for life, and shall also be liable to

fine.”

351. It is argued that attacking Army camp and killing three

Army jawans does not amounts to waging war against Govt. of

India. For bringing an incident within the four corners of

Section 121 IPC, the incident must have the colour of a

traditional war in which one country attacks another country. If

a foreign national enters another country on his own and


: 242 :

commits some crime there, that does not amounts to waging of

war. It is a plain and simple routine crime. Relying upon the

authority of Mir Hasan Khan Vs. State, AIR 1951 Patna 60,

it is argued that from the facts of the case, it cannot be said that

by killing three Army persons, an attempt was made to

overwhelm and defeat the forces of Govt. of India.

352. I find that in “Parliament Attack Case (Supra)” the Hon'ble

Supreme Court discussed the above-said authority and the

relevant case law and observed at page 668 as under :-

“On the analysis of the various passages found in the

cases and commentaries referred to above, what are

the high-lights we come across ? The most important

is the intention or purpose behind the defiance or

rising against the Government. As said by Foster,

“The true criterion is quo animo did the parties

assemble” ? In other words the intention and

purpose of the war-like operation directed against the

Government machinery is an important criterion. If

the object and purpose is to strike at the sovereign

authority of the Ruler or the Government to achieve a

public and general purpose in contra-distinction to a

private and a particular purpose, that is an important

indicia of waging war. Of course, the purpose must

be intended to be achieved by use of force and arms


: 243 :

and by defiance of Government troops or armed

personnel deployed to maintain public tranquility.

Though the modus operandi of preparing for the

offensive against the Government may be quite akin

to the preparation in a regular war, it is often said

that the number of force, the manner in which they

are arrayed, armed or equipped is immaterial. Even a

limited number of persons who carry powerful

explosives and missiles without regard to their own

safety can cause more devastating damage than a

large group of persons armed with ordinary weapons

or fire arms. Then, the other settled proposition is

that there need not be the pomp and pageantry

usually associated with war such as the offenders

forming themselves in battle-line and arraying in a

war like manner. Even a stealthy operation to

overwhelm the armed or other personnel deployed by

the Government and to attain a commanding position

by which terms could be dictated to the Government

might very well be an act of waging war”

353. Dealing with the question of accused being a foreign

national, it was observed at page 671 as under :-

“................... It was next contended that foreign

nationals who intrude into the territory of India and

do not owe even temporary allegiance to the

Government of India cannot be charged of the


: 244 :

offence of waging war. In other words, the

contention is that a person who is not a citizen nor a

resident alien cannot be accused of high treason. The

decisions of House of Lords in Joys Vs. DPP [1946

AII ER page 186] and of Privy Council in

Lodewyk Johannes Vs. Ag of Natal [1907 AC 326]

have been referred to. The dicta in Anthony

Crammer Vs. USA [325 US page 1-77] and in the

case of United States Vs. Villato [1797 CC

Pennsylvania Page 419] have also been referred to

in support of his proposition. The learned counsel

has also place reliance on Sec. 13 of the 2nd Report of

the Law Commissioners on the Indian Penal Code,

the excerpts of which are given in Nazir Khan's

case [(2003) 8 SCC 461 at 486]. The Law

Commissioners observed thus :

“ The law of a particular nation or country

cannot be applied to any persons but such as

awe allegiance to the Government of the

country, which allegiance is either perpetual, as

in the case of a subject by birth or naturalization

&c. or temporary, as in the case of a foreigner

residing in the country. They are applicable of

course to all such as thus owe allegiance to the

Government, whether as subjects or foreigners,

excepting as excepted by reservations or


: 245 :

limitations which are parts of the law in

question.”

We find it difficult to sustain the argument of

learned Senior Counsel. The word 'whoever' is a

word of broad import. Advisedly such language was

used departing from the observations made in the

context of Treason statute. We find no good reason

why the foreign nationals stealthily entering into the

Indian territory with a view to subverting the

functioning of the Government and destabilizing the

society should not be held guilty of waging war

within the meaning of Section 121. The section on

its plain terms, need not be confined only to those

who owe allegiance to the established Government.

We do not have the full text of the Law

Commissioners' Report and we are not in a position

to know whether the Law Commissioners or the

drafters of Indian Penal Code wanted to exclude

from the ambit of Section 121 the unauthorized

foreigners sneaking into Indian territory to undertake

war like operations against the Government.

Moreover, we have no material before us to hold that

the views of Law Commissioners on this aspect,

were accepted. Those views, assuming that they are

clearly discernible from the extracted passage, need

not be the sole guiding factor to construe the

expression 'waging war'. Though the above


: 246 :

observations were noticed in Nazir Khan's case, the

ultimate decision in the case shows that the guilt of

the accused was not judged from that standpoint. On

the other hand, the conviction of foreigners

(Pakistani militants) was upheld in that case.”

354. In the instant case, foreign nationals including accused Md.

Arif @ Ashfaq, Abu Shamal and others entered India

unauthorisely while being heavily armed with AK-56 rifles,

large amount of ammunition, hand-grenades and other

paraphernalia, set up bases at Delhi and killed three Army

personals inside Red Fort by attacking them with AK-56 Rifles.

The scale of weapons brought by the accused, the preparation

made prior to commission of the act, the target selected by

them and the casualties inflicted by them make it abundantly

clear that the intention of the offenders was to wage war

against the Govt. of India by targeting its armed forces

stationed at Red Fort, a place of national importance and pride.

Nationality of the accused, their number and the ultimate

damage inflicted by them is of no consequence. It is the

intention behind the commission of the offence that has to be

given due importance and here the intention is reflected in the


: 247 :

number and sophistication of weapons, target chosen i.e. Army

camp and place i.e. Red Fort situated in the Capital of India.

(v) HANDWRITING REPORT :

355. The next question is : Whether the hand-writing report

about the signatures obtained during investigation of the case is

admissible ? It is contended that specimen signatures of the

accused were obtained during investigation without the

permission of the court. The specimen signatures of the

accused ought to have been obtained with the permission of the

court and since this procedure has not been followed, the report

of the handwriting expert about these signatures is not

admissible.

356. However, this argument is noted to be dismissed. This point

was directly dealt with by the Hon'ble Supreme Court in

“Parliament Attack Case (Supra)” and following

observations were made at page 649 :-

“.................. In this context, a contention was raised

before the High Court that in view of Section 27 of

POTA, specimen signature should not have been

obtained without the permission of the Court. In


: 248 :

reply to this contention urged before the High Court,

Mr. Gopal Subramanium, the learned senior counsel

for the State clarified that on the relevant date, when

the specimen signatures of Afzal were obtained, the

investigation was not done under the POTA

provisions and de hors the provisions of POTA, there

was no legal bar against obtaining the handwriting

samples. The learned counsel relied upon by the 11

Judge Bench decision of this Court in State of

Bombay Vs. Kattikalu Oghad [1962 (3) SCR 10]

in support of his contention that Article 23 of the

Constitution was not infringed by taking the

specimen handwriting or signature or thumb

impression or a person in custody. Reference has

also drawn to the decision of this Court in State of

U.P. Vs. Boota Singh [ (1979) 1 SCC 31]. We find

considerable force in this contention advanced by

Mr. Gopal Subramanium. In fact this aspect was not

seriously debated before us. ........................”

(vi) NATURE AND QUALITY OF CIRCUMSTANTIAL EVIDENCE :

357. This is a case, which is based entirely on circumstantial

evidence. There is absolutely no direct evidence against any of

the accused. The circumstantial evidence is to be weighed very


: 249 :

carefully before arriving at the guilt or otherwise of the

accused. Let me quote the relevant law in this regard.

358. Dealing with a case based on circumstantial evidence, in an

authority reported as Sharad Sirdhichand Sarda Vs. State of

Maharashtra, A.I.R. 1984, S.C. 1622, Hon'ble Supreme

Court has observed that before conviction could be based on

circumstantial evidence, the following conditions must be

fulfilled :-

“(i) The circumstance from which the

conclusion of guilt is to be drawn should be

fully established. The circumstance

concerned 'must or should' and not 'may be'

established ;

(ii) The facts so established should be

consistent only with the hypothesis of the

guilt of the accused, that is to say, they should

not be explainable on any other hypothesis

except the accused is guilty ;

(iii) The circumstances should be of an

conclusive nature and tendency ;

(iv) They should exclude every possible

hypothesis except the one to be proved ; and,


: 250 :

(v) There must a chain of evidence as

complete as not to leave any reasonable

ground for the conclusion consistent with the

innocence of the accused and must show that

in all human probability the act must have

been done by the accused.”

359. Similar observations were made by the Hon'ble Supreme

Court, in a recent authority reported as Vilas Pandurang Patil

Vs. State of Maharashtra, AIR 2004 SC 3562, in paragraphs

12 and 14 as under :-

“12. In Padala Veera Reddy V. State of A.P. (AIR

1990 SC 79), it was laid down that when a case rests

upon circumstantial evidence, such evidence must

satisfy the following tests :-

(1) the circumstances from which an inference of guilt

is sought to be drawn, must be cogently and firmly

established ;

(2) those circumstances should be of a definite

tendency unerringly pointing towards guilt of the

accused;

(3) the circumstances taken cumulatively, should form

a chain so complete that there is no escape from the

conclusion that within all human probability the crime

was committed by the accused and none else ; and


: 251 :

(4) the circumstantial evidence in order to sustain

conviction must be complete and incapable of

explanation of any other hypothesis than that of guilt of

the accused and such evidence should not only be

consistent with the guilt of the accused but should be

inconsistent with his innocence.”

14. Sir Alfred wills in his admirable book 'wills'

circumstantial Evidence' (Chapter VI) lays down the

following rules specially to be observed in the case of

circumstantial evidence : (1) the facts alleged as the

basis of any legal inference must be clearly proved and

beyond reasonable doubt connected with the factum

probandum ; (2) the burden of proof is always on the

party who asserts the existence of any fact, which

infers legal accountability ; (3) in all cases, whether of

direct or circumstantial evidence the best evidence

must be adduced which the nature of the case admits ;

(4) in order to justify the inference of guilt, the

inculpatory facts must be incompatible with the

innocence of the accused and incapable of explanation,

upon any other reasonable hypothesis than that of his

guilt ; and (5) if there be any reasonable doubt of the

guilt of the accused, he is entitled as of right to be

acquitted.”

(vii) RECORD OF MOBILE PHONES :

360. Next question is : Whether the mobile phone records Exs.


: 252 :

PW-195/B, PW-198/B-1 to 3, PW-198/C, PW-198/E and PW-

229/A are admissible in evidence ? It is contended by Sh.

Tufail, ld. Defence counsel that the electronic record has not

been proved in the manner laid down under the law. The

officials who produced the record have not certified the copies

of the record to be true. There is no averment that the

computers are being used regularly and the information was fed

there into in the ordinary course of business. Moreover,

documents are also not reliable as the entries are not in

chronological order.

361. On the contrary, Sh. Bakshish Singh, learned Special Public

Prosecutor has contended that the information has been attested

to be true by the responsible official and this is the sufficient

compliance of the provisions of law and no specific words are

required to be used in this regard. As far as the entries not

being in chronological order in Ex. PW-198/E, it is submitted

that sometime computer jumps and that jump is quite natural

but that does not affect the accuracy of the information

recorded therein. In this regard, my attention has been invited

to the testimony of PW-198 Sh. Rajiv Pandit.


: 253 :

362. Section 3 of Evidence Act defines evidence as under :-

“Evidence” means and includes---

(1) all statements which the Court permits or requires

to be made before it by witnesses, in relation to

matters of fact under inquiry ;

such statements are called oral evidence ;

(2) [all documents including electronic records

produced for the inspection of the Court.]

such documents are called documentary evidence.”

..................................................................................

..............................................................................”

[ the expression “Certifying Authority”, “digital

signature”, Digital Signature Certificate”, electronic

form”, “electronic records”, “information”, “secure

electronic record”, “secure digital signature” and

“subscriber” shall have the meanings respectively

assigned to them in the Information Technology Act,

2000]”

363. Section 65-A of Evidence Act lays down as under :-

“65-A Special provisions as to evidence relating to

electronic record--- The contents of electronic

records may be proved in accordance with the

provisions of Section 65-B.”

364. Section 65-B of Evidence Act lays down as under :-

“65-B. Admissibility of electronic records----


: 254 :

(1) Notwithstanding anything contained in this Act,

any information contained in an electronic record

which is printed on a paper, stored, recorded or

copied in optical or magnetic media produced by a

computer (hereinafter referred to as the computer

output) shall be deemed to be also a document, if the

conditions mentioned in this section are satisfied in

relation to the information and computer in question

and shall be admissible in any proceedings, without

further proof or production of the original, as

evidence of any contents of the original or of any fact

stated therein of which direct evidence would be

admissible.

(2) The conditions referred to in sub-section (1) in

respect of a computer output shall be the following,

namely :----

(a) the computer output containing the information

was produced by the computer during the period over

which the computer was used regularly to store or

process information for the purposes of any activities

regularly carried on over that period by the person

having lawful control over the use of the computer ;

(b) during the said period, information of the kind

contained in the electronic record or of the kind from

which the information so contained is derived was

regularly fed into the computer in the ordinary course

of the said activities ;


: 255 :

© throughout the material part of the said period, the

computer was operating properly or, if not, then in

respect of any period in which it was not operating

properly or was out of operation during that part of

the period, was not such as to affect the electronic

record or the accuracy of its contents, and

(d) the information contained in the electronic record

reproduce or is derived from such information fed

into the computer in the ordinary course of the said

activities..............................................”

365. Dealing with the admissibility of paper print-out of electronic

record, Hon'ble Delhi High Court in State Vs. Md. Afzal &

Ors. 2003 VII AD (Delhi) 1 (Parliament Attack Case)

observed in paragraphs 272 & 273 as under :-

“272. Thus, computer generated electronic records is

evidence, admissible at a trial if proved in the

manner specified by Section 65-B of the Evidence

Act.”

“273. Sub-section (1) of Section 65-B makes

admissible as a document, paper print out of

electronic records stored in optical or magnetic

media produced by a computer, subject to the

fulfillment of the conditions specified in sub-section

(2) of Section 65-B. Following are the conditions

specified by sub-section (2) :


: 256 :

(a) The computer from which the record is generated

was regularly used to store or process information in

respect of activity regularly carried on by a person

having lawful control over the period, and relates to

the period over which the computer was regularly

used ;

(b) Information was fed in the computer in the

ordinary course of the activities of the person having

lawful control over the computer ;

© The computer was operating properly, and if not,

was not such as to affect the electronic record or its

accuracy ;

(d) Information reproduced is such as is fed into

computer in the ordinary course of activity.”

366. On perusal of the record, I find that call detail Ex. PW-

195/B of Airtel has been supplied under the signature of Sh.

Rakesh Bakshi, Security Manager in response to the

application Ex. PW-195/A of Investigating Officer PW-230

Ins. Surender Kumar Sund. Similarly, cell ID detail Ex. PW-

198/C and call detail of PW-198/B-1 to 3 of Essar have been

signed on each page by PW-198 Sh. Rajiv Pandit and was

supplied to the Investigating Officer vide letter Ex. PW-198/A

by him. Similary, call detail Ex. PW-198/E is signed on each


: 257 :

page by Sh. Gulshan Arora, Nodel Officer of the company,

which was supplied vide letter Ex. PW-198/D. PW-195 Sh.

Rakesh Bakshi, Senior Security Manager and PW-198 Sh.

Rajiv Pandit, General Manager (Administration & Security)

have verified the authenticity of the record produced by them

from the two mobile companies Airtel and Essar, though exact

words as laid down in the law have not been used by them. I

find that this is sufficient compliance with the law, moreso

when there is no contrary evidence on record suggesting that

the computers were not used regularly or that the information

was not fed in the ordinary course of business. There is no

contrary evidence on the file that the record is inaccurate or

fabricated one. As far as the jumbled nature of the information

in Ex. PW-198/E is concerned, this may be due to technical

fault, but there is no evidence that the information recorded

therein has been tampered with. In the absence of any

evidence to the contrary, it is presumed that the machine was

operating in order at the relevant time.

367. It is also contended by Sh. R.M. Tufail, learned defence

counsel that Ex. PW-198/DA, which is mobile phone record of


: 258 :

telephone number 9811242154, shows that police officials

were in touch with the accused before the incident inside Red

Fort. He also submitted that this copy was supplied to him by

the prosecution and that PW-198 Sh. Rajiv Pandit has not

denied it categorically to be of his company. However, I find

that call detail does not bear the signature of any official of the

company as other copies are bearing and PW-198 Sh. Rajiv

Pandit has not categorically owned it as he has accepted other

documents. Prosecution has categorically denied that

document was supplied by them to the accused. Defence has

not summoned any witness from the company to prove the

authenticity of this document. In view of the fact that this

document does not bear the signature of any official of the

company and that prosecution has denied that it was supplied

by them to the accused, I find that this document is of doubtful

origin and authenticity and no reliance can be placed on the

same.

(viii) DISCLOSURE STATEMENTS RECORDED BY POLICE :

368. It is submitted by the learned Special Public Prosecutor that

the disclosure statements recorded by the police during the


: 259 :

course of investigation can be used as evidence during trial in

the case of conspiracy. This proposition has been hotly

contested by the learned defence counsel for all the accused.

Now the question is : Whether the disclosure statements

recorded by the police during the course of investigation are of

any use ? Let me quote the relevant law in this regard.

369. Section 25 of Evidence Act lays down as under :-

“Confession to police officer not to be proved – No

confession made to a police officer shall be proved as

against a person accused of any offence.”


“ Confession by accused while in custody of police not to

be proved against him.- No confession made by any

person whilst he is in the custody of a police officer,

unless it be made in the immediate presence of a

Magistrate shall be proved as against such person.”


“How much of information received from accused may

be proved – Provided that, when any fact is deposed to as

discovered in consequence of information received from

a person accused of any offence, in the custody of a

police officer, so much of such information, whether it

amounts to a confession or not, as relates distinctly to the

fact thereby discovered, may be proved.”


: 260 :


“ Consideration of proved confession affecting person

making it and others jointly under trial for same offence.

- When more persons than one are being tried jointly for

the same offence, and a confession made by one of such

persons affecting himself and some other of such persons

is proved, the Court may take into consideration such

confession as against such other person as well as against

the person who makes such confession.”

Explanation - “Offence” as used in this section, includes

the abetment of, or attempt to commit, the offence.”

373. Section 162 Cr.P.C. lays down as under :-

“Statement to police not to be signed : Use of

statements in evidence-----

(1) No statement made by any person to a police

officer in the course of an investigation under this

Chapter, shall, if reduced to writing, be signed by the

person making it; nor shall any such statement or any

record thereof, whether in a police diary or

otherwise, or any part of such statement or record, be

used for any purpose, save as hereinafter provided, at

any inquiry or trial in respect of any offence under

investigation at the time when such statement was

made ;

Provided that when any witness is called for the

prosecution in such inquiry or trial whose statement

has been reduced into writing as aforesaid, any part


: 261 :

of his statement, if duly proved, may be used by the

accused, and with the permission of the Court, by the

prosecution, to contradict such witness in the manner

provided by section 145 of the Indian Evidence Act,

1872 (1 of 1872); and when any part of such

statement is so used, any part thereof may also be

used in the re-examination of such witness, but for

the purpose only of explaining any matter referred to

in his cross-examination.

(2) Nothing in this section shall be deemed to apply

to any statement falling within the provisions of

clause (1) of section 32 of the Indian Evidence Act,

1872 (1 of 1872), or to affect the provisions of

section 27 of that Act. .....................”

374. Dealing with the question of confession made in police

custody in the course of investigation, Hon'ble Supreme Court

observed in paragraph 13 at page 605 in “Parliament Attack

Case (supra)' as under :-

“ we have noticed above that the confessions made

to a police officer and a confession made by any

person while he or she is in police custody cannot be

proved against that person accused of an offence. Of

course, a confession made in the immediate presence

of a Magistrate can be proved against him. So also

Section 162 Cr.P.C., bars the reception of any


: 262 :

statements made to a police office in the course of an

investigation as evidence against the accused person

at any enquiry or trial except to the extent that such

statements can be made use of by the accused to

contradict the witnesses. Such confessions are

excluded for the reason that there is a grave risk of

their statements being involuntary and false. Section

27, which unusually starts with a proviso, lifts the

ban against the admissibility of the

confession/statement made to the police to a limited

extent by allowing proof of information of specified

nature furnished by the accused in police custody. In

that sense Section 27 is considered to be an exception

to the rules embodied in Section 25 and 26 (vide

AIR 1962 SC 1116).”

375. Similarly in Kala Singh (Supra) the statement made at the

police station was used as evidence against co-accused, which

was held to be inadmissible in evidence. Accordingly, I am of

the opinion that statements made by the accused to the police in

the course of investigation cannot be used at all against the

accused as well as the co-accused even in case of conspiracy as

their use is barred by Section 25 & 26 Evidence Act as well as

Section 162 Cr.P.C. As such the submission of learned Spl.

Public Prosecutor in this regard is contrary to law. Such


: 263 :

statements can be used only to the extent of recovery u/s 27

Evidence Act, Section 32 Evidence Act and for contradicting a

witness u/s 145 of the Evidence Act. 'Any person' within the

provisions of Section 162 Cr.P.C, includes accused also.

(ix) CONTRADICTIONS & DISCREPANCIES :

376. It has been argued by all the learned defence counsel for all

the accused that there are material contradictions in the

testimony of the witnesses regarding timing of the registration

of the case, name and number of the police official who

constituted a particular police party, the type and number of

vehicle used by them, the places visited by them, the presence

of public at a particular place and the prayer if any made by the

police to them to join the proceedings, the dress of the police

officials i.e., whether they were in police uniform or civil

clothes, timing and contents of recoveries and similar other

contradictions and they render the prosecution version

unreliable and unbelievable. I have carefully perused the entire

evidence on record and I find that not even a single

contradiction, which is of such a fundamental nature as go to

the root of the matter so as to render the evidence of a


: 264 :

particular witness unreliable, has been pointed out to me. The

contradictions pointed out are of insignificant nature and are

quite natural in a situation where the case is of such a grave

nature and the evidence of the witnesses is quite lengthy and

they are subjected to lengthier cross-examination for several

days. In this regard, I would like to quote an authority reported

as S ukhdev Yadav & Ors. Vs. State of Bihar 2001 VII AD

(SC) 593 , wherein the following observations were made by

the Hon'ble Supreme Court :-

“It is indeed necessary however to note that

there would hardly be a witness whose

evidence does not contain some amount of

exaggeration or embellishment-sometimes

there would be a deliberate attempt to offer

the same and sometimes the witnesses in their

over anxiety to do better from the witness box

details out an exaggerated account. In

Appabhai and Anr. Vs. State of Gujarat

(1988 Suppl. SCC 241), this court in

paragraph 13 of the report observed :” “The

court while appreciating the evidence must

not attach undue importance to minor

discrepancies. The discrepancies which do


: 265 :

not shake the basic version of the prosecution

case may be discarded. The discrepancies

which are due to normal errors to perception

or observation should not be given

importance, The errors due to lapse of

memory may be given due allowance. The

court by calling into aid its vast experience of

men and matters in different cases must

evaluate the entire material on record by

excluding the exaggerated version given by

any witness. When a doubt arises in respect

of certain facts alleged by such facts, the

proper course is to ignore that fact only unless

it goes into the root of the matter so as to

demolish the entire prosecution story. The

witnesses now a days go on adding

embellishments to their version perhaps for

the fear of their testimony being rejected by

the court. The courts, however, should not

disbelieve the evidence of such witnesses

altogether if they are otherwise trustworthy.”

377. Similar observations were made in an authority reported as

State of Himachal Pradesh Vs. Lekh Raj, 2000 CRILJ 44,

wherein it was observed by Hon'ble Supreme Court in

paragraph 8 that :-


: 266 :

“................................ There is bound to be some

discrepancies between the narrations of different

witnesses when they speak on details and unless the

contradictions are of a material dimension, the same

should not be used to jettison the evidence in its

entirety. Incidentally, corroboration of evidence with

mathematical niceties cannot be expected in criminal

cases. Minor embellishment, there may be, but

variations by reason therefor should not render the

evidence of eye-witnesses unbelievable. Trivial

discrepancies ought not to obliterate an otherwise

acceptable evidence.

The court shall have to bear in mind that

different witnesses react differently under different

situations : Whereas some become speechless, some

start wailing while some others run away from the

scene and yet there are some who may come forward

with courage, conviction and belief that the wrong

should be remedied. As a matter of fact it depends

upon individuals and individuals. There cannot be any

set pattern or uniform rule of human reaction and to

discard a piece of evidence on the ground of his

reaction not falling within a set pattern is unproductive

and a pedantic exercise.”

378. Similarly in Jay Shree Yadav (Supra), Hon'ble Supreme

Court dealt with contradictions, omissions, improvements by a


: 267 :

witness during lengthy cross-examination and observed in para

20 as under :-

“.................. These shortcomings in the evidence of this

witness will have to be considered in the background of

the fact that this witness was subjected to nearly 217

questions over a period of 14 months i.e. his cross-

examination starting on 14.8.1994 and ending on

28.11.1995. Both the courts below have taken judicial

notice of this fact, not only in regard to this witness but

in regard to other witnesses also and have come to the

concurrent conclusion that when a witness is subjected to

such lengthy arduous cross-examination over a lengthy

period of time there is always a possibility of the

witnesses committing mistakes which can be termed as

omissions, improvements and contradictions therefore

those infirmities will have to be appreciated in the

background of ground realities which makes the witness

confused because of the filibustering tactics of the cross-

examining Counsel ...........”

379. One specific instance of contradiction about timing of

finding the slip Ex. 183/B containing telephone no.

9811278510 has been referred to me repeatedly. In this

regard, my attention has been invited to the cross-examination

of PW-183 SI Sanjay Kumar, PW-217 SI Naresh Kumar, PW-

234 Ins. Roop Lal and other witnesses. However, I may add


: 268 :

that the contradiction in the timing given by the different

witnesses about the finding of the aforesaid paper slip is not of

much importance as it itself is of no importance, but only

provided a clue about the culprits. The investigation against

the culprits reached fruition through the help of the number

written on the slip. Even otherwise, the version of different

witnesses regarding the finding of the slip is not much

contradictory as it was found in the early hours of the morning

of 23.12.2000 and on account of the winter season, these

witnesses might have deposed about timing as per their own

personal judgment of time without being mechanical.

380. Accordingly, I find no force in the submission of any of the

accused that there are material contradictions in the testimony

of any witness pertaining to his case, which would render a

particular witness unreliable or untruthful. The submission is

as such without merit.

(x) JOINING OF PUBLIC PERSONS :

381. It is next submitted that at the time of recovery or recording

of disclosure statement of any of accused, no public person has

been joined. It is submitted for all the accused that in such a


: 269 :

case, neither the disclosure made by the accused, nor the

recovery if any effected consequent thereto without the

presence of public persons is reliable and admissible.

However, I find that though no public person was joined during

the recording of any of the disclosure statement, but there is

evidence in the statement of PW-173 Ins. Ved Parkash and

PW-148 Zile Singh who conducted the proceedings at 308-A,

DDA Flats, Gazhipur, Delhi, at the time of arrest of the accused

as well as PW-228 Ins. Hawa Singh, PW-218 SI Satyajeet

Sareen and PW-227 SI Amardeep Sehgal, who conducted the

recovery proceedings behind Red Fort that they had tried to

join the public persons, but none was willing. However, PW-

202 Sh. N.B. Bardhan and PW-125 Sh. S.K. Chadha, both

officials of CFSL had visited the recovery site and they have

also deposed that the weapons were recovered in the manner

stated by the prosecution. These two officials cannot have any

motive, even remotely, to depose about false recovery. At the

time of recovery at Jamia Milia Islamia University, two public

witnesses PW-208 Sh. Devender Kumar and PW-209 Sh.

Raghubir Singh were present. In these circumstances, it


: 270 :

cannot be said that police did not make any effort whatever to

join the public persons in the proceedings. Moreover, it is a

common knowledge that members of public are not willing to

join the proceedings in such cases as they wish to keep away

from the police as well as the courts as that may put them into

unnecessary trouble, moreso when a terrorist is involved in an

incident of such a grave magnitude. Moreover, there is no

legal requirement that in all cases public persons must be

joined by the police in their proceedings. It is just by way of

caution and prudence only that police tries to join public

person in their proceedings to give the same more credence and

credibility. If the testimony of the police officials is otherwise

reliable, the same cannot be discarded for the simple reason

that public persons were not joined in the proceedings. In this

regard, I am fortified by an authority reported as State Govt.

of NCT of Delhi Vs. Sunil & Anr. 2000 VIII AD(SC) 613,

wherein while dealing with recoveries pursuant to Section 27

of Evidence Act, Hon'ble Supreme Court made the following

observations :-

“(20). Hence it is a fallacious impression that


: 271 :

when recovery is effected pursuant to any

statement made by the accused the document

prepared by the Investigating Officer

contemporaneous with such recovery must

necessarily be attested by independent

witnesses. Of course, if any such statement

leads to recovery of any article it is open to

the Investigating Officer to take the signature

of any person present at that time, on the

document prepared for such recovery. But if

no witness was present or if no person had

agreed to affix his signature on the document,

it is difficult to lay down as a proposition of

law, that the document so prepared by the

police office must be treated as tainted and

the recovery evidence unreliable. The court

has to consider the evidence of the

Investigating Officer who deposed to the fact

of recovery based on the statement elicited

from the accused on its own worth.”

(21). We feel that it is an archaic notion that

actions of the police officer should be

approached with initial distrust. We are

aware that such a notion was lavishly

entertained during British period and


: 272 :

policemen also knew about it. Its hang over

persisted during post-independent years, but it

is time now to start placing at least initial trust

on the actions and the documents made by the

police. At any rate, the court cannot start

with the presumption that the police records

are untrustworthy. As a proposition of law

the presumption should be the other way

around. That official acts of the police have

been regularly performed is a wise principle

of presumption and recognized even by the

legislature. Hence when a police officer gives

evidence in court that a certain article was

recovered by him on the strength of the

statement made by the accused it is open to

the court to believe the version to be correct if

it is not otherwise shown to be unreliable. It

is for the accused, through cross-examination

of witnesses or through any other materials,

to show that the evidence of the police officer

is either unreliable or at lease unsafe to be

acted upon in a particular case. If the court

has any good reason to suspect the

truthfulness of such records of the police the

court could certainly take into account the

fact that no other independent person was

present at the time of recovery. But it is not a


: 273 :

legally approvable procedure to presume the

police action as unreliable to start with, nor to

jettison such action merely for the reason that

the police did not collect signatures of

independent persons in the documents made

contemporaneous with such actions.”

382. Similar observation were made in an authority reported as

Ambika Prasad & Anr. Vs. State (Delhi Administration,

Delhi) 2001 AD (S.C.) 141, wherein it was observed by the

Hon'ble Supreme Court in paragraph 12 that :-

''12. It is next contended that despite the fact that 20

to 25 persons collected at the spot at the time of

incident as deposed by the prosecution witnesses, not

a single independent witness has been examined and,

therefore, no reliance should be placed on the

evidence of PW-5 and PW-7. This submission also

deserves to be rejected. It is known fact that

independent persons reluctant to be a witness or to

assist the investigation. Reasons are not far to seek.

Firstly, in case where injured witnesses or the close

relative of the deceased are under constant threat and

they dare not depose truth before the court,

independent witnesses believe that their safety is not

guaranteed. That belief cannot be said to be without


: 274 :

any substance. Other reason may be the delay in

recording the evidence of independent witnesses and

repeated adjournments in the court. In any case, if

independent persons are not willing to cooperate with

the investigation, prosecution cannot be blamed and

it cannot be a ground for rejecting the evidence of

injured witnesses. Dealing with similar contention in

State of UP Vs. Anil Singh (supra) this Court

observed :-

“In some cases, the entire prosecution case is

doubted for not examining all witnesses to the

occurrence. We have recently pointed out the

indifferent attitude of the public in the investigation

of crimes. The public are generally reluctant to come

forward to depose before the Court. It is, therefore,

not correct to reject the prosecution version only on

the ground that all witnesses to the occurrence have

not been examined. Nor it is proper to reject the case

for want of corroboration by independent witnesses if

the case made out is otherwise true and acceptable. “

(xi) DELAY IN ARREST AND RECOVERY :

383. It is next submitted for accused Babar Mohsin, Devender

Singh, Shahanshah Alam and Rajiv Malhotra that disclosure

statement of accused Md. Arif @ Ashfaq was recorded on


: 275 :

30.12.2000, but the first three were arrested only on

04.01.2001 and Rajiv Malhotra was arrested on 07.01.2001.

Accused Matloob was arrested on 13.04.2001 in FIR No.

688/00 and on 09.05.2001 in FIR No. 65/01, accused Mool

Chand Sharma was arrested on 18.04.2001, Sadakat Ali was

arrested on 22.12.2001 and accused Nazir Ahmad Quasid and

Farukh Ahmad Quasid were arrested formally on 29.03.2001.

It is submitted for all the accused if there was strong enough

evidence against these accused, the police ought to have

arrested them immediately after Md. Arif @ Ashfaq made his

disclosure statement on 30.12.2000, but police waited for long

time without any sufficient reason and this shows that they

have been arrested without any reason. It has been submitted

by all the learned defence counsel, particularly Sh. I.U. Khan,

learned defence counsel for accused Babar Mohsin that this

delay is fatal to the case of the prosecution and the recovery

effected belatedly is of no consequence.


: 276 :

384. This argument has been refuted by Sh. Bakshish Singh,

learned Special Public Prosecutor on that ground that there

was no delay in the arrest of the accused and accused were

arrested as and when evidence came on the file against them.

385. I find that accused Md. Arif @ Ashfaq made disclosure

statement Ex. PW-28/A on 30.12.2000 in which accused Babar

was named and name of the driving college was also disclosed.

In these circumstances, accused Babar ought to have been

arrested immediately and his house searched. But he was

arrested only on 04.01.2001 and letter Ex. PW-10/C and his

motor-cycle were seized only on 07.01.2001. As such, I find

that there is some delay in the arrest of the accused and the

recoveries effected from him. However, regarding the arrest of

the accused Mool Chand Sharma and Matloob, it is submitted

that report of the handwriting expert was awaited and accused

Nazir Ahmad Quasid and Farukh Ahmad Quasid were detained

in Kot Bhalwal Jail at Jammu & Kashmir. It would have been

better if they were also formally arrested a little earlier, when

their bank accounts were traced and PW-173 Ins. Ved Parkash

had collected the details of the accounts on 30.12.2000 itself.


: 277 :

For accused Sadakat Ali, it is submitted that he was arrested

when the evidence came against him in the statement of PW-

225 Md. Ahmad. As far as, accused Rajiv Malhotra, Devender

and Shahanshah Alam are concerned, their arrest is not much

delayed as to require any explanation considering the nature of

the case and the type of allegations against them. Even if,

some mistake is committed in delaying the arrest of the

accused, that itself does not wipe out the merit of the arrest and

recoveries effected. The mistakes committed by the

Investigating Officer during investigation either deliberately or

inadvertently do not go to the benefit of the accused, if

otherwise there is evidence against him. In this regard, I would

like to quote Ambika Prasad (Supra), wherein it was

observed by the Hon'ble Supreme Court in paragraphs 8 and 9

that :-

“8. .........The High Court has also observed that

reason for non-appearance of investigating officer

is not far to seek and obviously he was trying to

help the accused. The High Court further stated

that prosecution case cannot be allowed to suffer

at the hands of the investigating officer or agencies

and investigating officer cannot be permitted to


: 278 :

hold the prosecution to ransom by his deliberate

acts. Dealing with a case of negligence on the part

of the investigating officer, this court in Karnel

Singh Vs. State of MP [(1995) 5 SCC 518]

observed that in a case of defective investigation it

would not be proper to acquit the accused if the

case is otherwise established conclusively because

in that event it would tantamount to be falling in

the hands of erring investigating officer.

Similarly, in Ram Bihar Yadav Vs. State of

Bihar, 1998 (4) AD SC 154 = (1998) 4 SCC 517

para 13) this court observed:- “In such cases, the

story of the prosecution will have to be examined

de-hors such omissions and contaminated conduct

of the officials otherwise the mischief which was

deliberately done would be perpetuated and justice

would be denied to be complainant party and this

would obviously shake the confidence of the

people not merely in the law-enforcing agency but

also in the administration of justice.”

“Para 9. Further in Paras Yadav and others Vs.

State of Bihar, 1999 (1) AD (SC) 28 = (1999) 2

SCC 126, this court held,

“It may be that such lapse is committed

designedly or because of negligence. Hence the

prosecution evidence is required to be examined


: 279 :

de-hors such omissions to find out whether the

said evidence is reliable or not.”

386. Similar observations were made in an authority reported as

Dhanaj Singh V. State of Punjab AIR 2004 SC 192,

Wherein, Hon'ble Supreme Court dealt with the cases of faulty

investigation and observed in paragraphs 5 and 6 that :-

“5. In the case of a defective investigation the Court

has to be circumspect in evaluating the evidence. But

it would not be right in acquitting an accused person

solely on account of the defect ; to do so would

tantamount to playing into the hand of the

Investigating Officer if the investigation is

designedly defective. (See Karnel Singh V. State of

M.P. (1995 (5) SCC 518)

6. In Paras Yadav and others V. State of Bihar

(1999 (2) SCC 126) it was held that if the lapse or

omission is committed by the investigation agency or

because of negligence the prosecution evidence is

required to be examined dehors such omissions to

find out whether the said evidence is reliable or not.

The contaminated conduct of officials should not

stand on the way of evaluating the evidence by the

Court; otherwise the designed mischief would be

perpetuated and justice would be denied to the

complainant party.”


: 280 :

(xii) EVIDENCE OBTAINED ILLEGALLY :

387. It is next submitted for all the accused that they have been

arrested illegally and the evidence has been obtained against

them by illegal means particularly against accused Md. Arif @

Ashfaq and Rehmana Yusuf Farukhi. Sh. R.M. Tufail,

learned defence counsel has particularly referred accused

Rehmana Yusuf Farukhi and submitted that she was not

searched by a woman police officer. In this regard, he has

referred to the testimony of PW-69 Lady Ct. Sunita. It is

submitted by him that she was not personally searched by lady

constable and this renders her search and detention illegal.

Accused Md. Arif @ Ashfaq was tortured in police custody

and was forced to make illegal disclosure. However, it is clear

from the testimony of PW-69 Lady Ct. Sunita that she carried

out personal search of accused Rehmana Yusuf Farukhi at the

time of her arrest and in her cross-examination, there is nothing

of any significance, which could discredit her testimony.

Similarly, there is no evidence of torture against accused Md.

Arif @ Ashfaq . Even if there is some torture or illegality

committed by the police officials in the course of investigation,


: 281 :

the same does not render the evidence inadmissible. In this

regard, I would like to quote paragraphs 252 and 253 from the

judgment of Hon'ble High Court in “Parliament Attack Case

(supra)” as under :-

Para 252. In Re: Nagarmal Janakiram Agarwal, AIR

1941 Nagpur 338, Pollock, J. held that “even if the arrest

was illegal, the qeustion whether the arrest was valid or not

would not affect the question whether the accused was

guilty or not.”

Para 253. In AIR 1994 P.C. 73, Prabhu Vs. Emperor, the

Privy Council held that validity of trial and conviction was

not affected by irregularity in arrest. The Supreme Court

followed this in AIR 1955 SC 196, H.N. Rishbud Vs.

State of Delhi, and held that illegality in investigation

cannot result in setting aside the trial unless it can be shown

that it has brought about a miscarriage of justice. In 1974

(2) SCR 704, Pooran Vs. Director of Inspection, the

Supreme Court held that relevant evidence cannot be

excluded merely on the ground that it was obtained illegally

“where the test of admissibility of evidence lies in

relevancy unless there is an express or implied prohibition

in the Constitution or other law, evidence obtained as a

result of illegal search or seizure is not liable to be shut

out.”

(xiii) ORIGIN OF THE CASE :


: 282 :

388. It is next submitted that the very origin of the case is

shrouded in mystery as immediately after the incident, Army

authorities did not allow the police to enter the Red Fort. It is

submitted by Sh. R.M. Tufail, learned defence counsel that the

incident inside Red Fort was the handiwork of some insiders

when jawans fought amongst themselves in drunken condition.

In this regard, he has referred to wireless message Ex. PW-

77/A, wherein PCR officials reported back to the PCR that they

were not being allowed to enter the Red Fort. However, this

submission is without merit as PW-189 Capt. S.P. Patvardhan,

who had lodged the FIR with the police vide his statement Ex.

PW-189/A, has deposed that he had ordered the gate of the Red

Fort to be closed. In the cross-examination, he denied the

suggestion that civil police was not allowed to enter the Red

Fort or to investigate the matter. He has also deposed that

police was informed about the incident and Ins. Roop Lal with

staff reached there. This fact has been corroborated by PW-

234 Ins. Roop Lal as well as PW-137 SI Rajinder Singh, who

reached the spot first of all on receipt of information vide DD

no. 19-A, Ex. PW-15/B with PW-54 Ct. Jitender. As far as the


: 283 :

submission that the incident took place when the Army jawans

fired upon each other in drunken condition is concerned, same

is also without merit as no such suggestion has been put to PW-

115 Subedar Ashok Kumar, PW-122 Naik Suresh Kumar and

PW-131 Subedar D.N. Singh, who reached the spot

immediately on hearing the gun sound. Similarly, no such

suggestion was put to PW-144 Major D.K. Singh and PW-126

Major Manish Nagpal, who were members of the Quick

Reaction Team of the Army, and fired in retaliation on the

assailants. Similarly, there is no such suggestion to PW-189

Capt. S.P. Patvardhan who reached the spot almost

immediately as he was working as Adjutant to the 7th Raj Rifles

and also lodged the FIR. There is no material on the file to

suggest that the incident occured when the Army jawans fought

amongst themselves. However, the news report Ex. PW-87/A

mentions that intelligence official are not ruling out the

possibility of it being an insider's job. But there is no material

on the file to suggest such a thing.

389. It is next submitted by Sh. R.M. Tufail, learned defence

counsel that the prosecution version of the incident, further


: 284 :

become doubtful as the members of the police guard posted at

the Museum were not examined as witness. However, the

incident took place at about 9.00 pm in the month of

December. There are no allegations that the museum was

infact attacked by the intruders, but as per the statement Ex.

PW-189/A, given by Capt. S.P. Patwardhan, on which the

instant case was registered, it is mentioned that intruders had

fired in the direction of police guard. When the incident took

place in the dark in a wintry night and no damage was caused

to the police guard, it would not have been of any use to

examine the police personal posted there as witness. The

submission is as such, without merit.

390. A contention was also raised that there is confusion as to

when the hand-grenades were got destroyed by the police. In

this regard my attention has been invited to the testimony of

PW-85 SI Girish Jain and PW-214 Ins. Sunder Lal. I do find

that there is some misunderstanding regarding the date of

destruction of hand-grenades, but that itself does not wipe out

the recovery effected at the instance of accused Md. Arif @

Ashfaq.


: 285 :

(xiv) FIR FABRICATED & ANTE TIMED :

391. It is also submitted that the FIR has been forged and ante

timed as Army authorities had not allowed the police officials

to enter Red Fort for two days. In support of this submission

my attention has been invited to the testimony of PW-15 HC

Virender Kumar, who was posted as duty officer at Police

Station, Kotwali on 22.12.2000 and recorded the FIR Ex. PW-

15/E. In this regard, my attention has been invited to the

authority of Ahmad Gulam Nabi Sheikh (Supra), to

emphasize the fact that FIR does not bear the signature of the

informant. PW-15 HC Virender Kumar admitted that there are

some overwriting in the concerned DD entry. But I have

already held that the police officials reached the spot

immediately after the incident and action was taken

immediately after recording the statement Ex. PW-189/A of

Capt. S.P. Patwardhan, which bears his signature with

designation. As such there was no question of the FIR being

ante-timed and fabricated in such a manner as to give an

entirely new twist to the incident. The submission as such is

without merit.


: 286 :

(xv) ROLE OF LASHKAR-E-TOIBA :

392.Now the question is : Whether the attack was launched by

Lashkar-e-Toiba ? It is submitted on behalf of the State that

the attack was planned, organized and launched at the instance

of Lashkar-e-Toiba. It is also submitted that this organization

is engaged in promoting and sponsoring terrorism against

India. This attack was also a result of the unlawful designs of

Lashkar-e-Toiba for spreading terrorism and creating instability

in India, so as to destroy the democratic and secular fabric of

the country and to separate Jammu & Kashmir from India. It is

submitted that accused Md. Arif @ Ashfaq, Nazir Ahmad

Quasid and Farukh Ahmad Quasid are members of Lashkar-e-

Toiba and they were party to the conspiracy to launch terrorist

strike inside Red Fort. However, learned defence counsel has

denied that they are members of Lashkar-e-Toiba or any other

such organization.

393. I find that PW-39 Sh. Altaf Hussain, BBC Correspondent,

Sri Nagar, has deposed that he received a telephonic call at Sri

Nagar at his residence claiming that the attack on the Red Fort

was launched by Lashkar-e-Toiba. The call was received by


: 287 :

him in the evening on telephone number 2452918. As per

mobile phone record Ex. PW-198/B-1 to 3 of mobile phone

number 9811278510, a call was made to this telephone

number at 21.27.30 hrs. This means that the call was made

almost immediately after the incident.

394.Similarly, PW-41 Sh. Ayanjit Sen, an employee of BBC

office, Delhi, has deposed that on 22.12.2000 at about 9.00 to

9.30 pm, a call was received on telephone number 3355751 in

Delhi office of BBC that the attack on the Army camp inside

the Red Fort was launched by Lashkar-e-Toiba. Similar

statement was made by PW-150 Sh. Satish Jacab. As per call

detail Ex. PW-198/B-1 to 3 of the aforesaid mobile telephone

number 9811278510, calls were made to Delhi BBC office on

telephone no. 3355751 at 21.25.25, 21.33.14 and 21.33.45

hours. PW-230 IO Ins. Surender Kumar Sund has also

deposed that attack on Red Fort was launched by Lashkar-e-

Toiba. PW-87 Sh. A.K. Roy of Hindustan Times Newspaper

has also proved a News item Ex. PW-87/A of 23.12.2000,

wherein it is claimed that the attack was launched by Lashkar-

e-Toiba.


: 288 :

395. PW-162 Sh. J.S. Chauhan and PW-175 Ct. Suresh have

deposed that on 26.12.2000 they were on duty in Rajouri,

Jammu & Kashmir and on that day a message was being

transmitted by a militant Abu Shakur of Lashkar-e-Toiba from

Kashmir to Pak occupied Kashmir that the militant wanted in

shoot-out inside Red Fort namely Abu Hamad Hazarvi whose

real name is Ashfaq has been apprehended and Abu Shamal has

been killed whereas Bilal Babbar was successful in running

away. In the cross-examination of these witnesses, there is

nothing of any significance, which could discredit their

testimony about the message being passed by Lashkar-e-

Toiba. All the four persons mentioned in the message are

accused in the present case. There is no contrary evidence to

the effect that Lashkar-e-Toiba was not involved in the

incident. Accordingly, I find that the incident was planned and

carried out by Lashkar-e-Toiba.

396. Now the question is as to which of the accused are connected

with the Lashkar-e-Toiba ? Sh. Bakshish Singh, learned

Special Public Prosecutor submitted that accused Md. Arif @

Ashfaq , Nazir Ahmad Quasid and Farukh Ahmad Quasid are


: 289 :

members of Lashkar-e-Toiba and they are also highly placed

office bearers of the organization. It is submitted that accused

Md. Arif @ Ashfaq along with Abu Bilal (since killed), Abu

Haider, Abu Saad, Abu Shamal (since killed) and Abu Shakur,

all members of Lashkar-e-Toiba, carried out the actual shoot-

out inside the Red Fort, whereas accused Abu Suffian, (since

killed) Jahur Ahmad Quasid and Bilal Ahmad Kawa were

involved at the planning stage and they are also members of

Lashkar-e-Toiba. Abu Suffian since killed, was Distt.

Commander, Sri Nagar. Accused Sabir @ Sabarulla, Sher

Zaman and Attruddin (all three since P.O.) were also involved

in planning and financing of the attack. The membership of

Lashkar-e-Toiba of accused Md. Arif @ Ashfaq , Nazir Ahmad

Quasid and Farukh Ahmad Quasid is disputed by the learned

defence counsel.

(xvi) MOBILE PHONE :

397. Before disposing this point, I wish to dispose of the point as

to whether accused Md. Arif @ Ashfaq was in possession of

any mobile phone ? Learned Special Public Prosecutor has

submitted that accused Md. Arif @ Ashfaq used three mobile


: 290 :

numbers 9810263721, 981242154 and 9811278510. It is

submitted that mobile phone bearing number 9811278510 was

recovered from the accused at the time of his arrest. This is

disputed by the learned defence counsel Sh. R.M. Tufail, who

submitted that accused Md. Arif @ Ashfaq never used any

mobile telephone and this mobile phone was falsely planted

upon him by the police.

398. However, the record suggests that accused was in

possession and use of a mobile telephone. PW-37 Amir Irfan

Mansoori who was staying in the house of PW-20 Nain Singh,

has deposed that Ashfaq also came to stay in the said house in

the month of May 2000 and he was having a mobile phone with

him. It is the admitted case of accused Md. Arif @ Ashfaq that

he stayed at the house of PW-20 Nain Singh, when he entered

India via Nepal. Similarly, PW-56 Sh. Faisal Mohd. Khan,

with whom accused Md. Arif @ Ashfaq opened computer

center under the name and style of “Knowledge Plus” also

deposed that he was having mobile phone. He was also a

tenant at the house of PW-20 Nain Singh with Md. Arif @

Ashfaq . Similarly, PW-232 Sh. Rashid Ali, who was also a


: 291 :

tenant at the house of PW-20 Nain Singh and was also a friend

of Md. Arif @ Ashfaq and he also attended his marriage with

Rehmana Yusuf Farukhi on 08.12.2000, deposed that he was

having a mobile phone with him. The evidence of PW-232 Sh.

Rashid Ali has gone unchallenged as he was not cross-

examined. In the cross-examination of PW-37 Amir Irfan

Mansoori and PW-56 Faisal Mohd. Khan, there is no evidence

to suggest that Md. Arif @ Ashfaq was not having mobile

phone.

399. PW-210 Sh. Sushil Malhotra, owner of Seven Star Motor

Driving College, where accused Devender was manager and

from where accused Md. Arif @ Ashfaq obtained driving

training, proved the register Ex. PW-210/A and the entry Ex.

PW-210/B, where name of the Md. Arif @ Ashfaq is recorded

as M.A. Khan. Similarly in booklet Ex. PW-28/H, there is

entry Ex. PW-28/I which was recorded when accused Md. Arif

@ Ashfaq came to the training college for obtaining training

and got his name and address recorded. This booklet was

seized from the college in the presence of PW-28 SI

Abhinendra Jain. There accused Md. Arif @ Ashfaq got his


: 292 :

mobile number recorded as 9810263721.

400. PW-194 SI Harender Singh has deposed that at the time of

his arrest, mobile telephone number 9811278510 was

recovered from him. This has been corroborated by PW-148

SI Zile Singh and PW-173 Ins. Ved Parkash. This telephone

was seized vide Ex. PW-148/C. The IMEI number of the

instrument was 449173405451240. As per the letter Ex. PW-

198/D of Essar Cellphone, this mobile number as well as

9811242154 were also used on instrument with IMEI No.

445199440940240.

401. Learned defence counsel Sh. R.M. Tufail has submitted that

recovery of this mobile phone cannot be accepted as it was not

seized by the police when the accused was initially arrested by

PW-173 Ins. Ved Parkash. This recovery was effected by PW-

194 SI Harender Singh in the presence of PW-148 SI Zile

Singh. However, the weight of the evidence is so much that

some discrepancies here and there in the course of investigation

cannot render the recovery of the mobile set from the accused

unbelievable. In view of the above evidence, I hold that

accused Md. Arif @ Ashfaq was in possession and use three


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mobile numbers 9810263721, 981242154 and 9811278510 at

different times.

(xvii) BANK ACCOUNTS :

402. Now, I take up the question of bank accounts of accused

Rehmana Yusuf Farukhi, Md. Arif @ Ashfaq , Nazir @ Sons,

Bilal Ahmad Kawa and Farukh Ahmad Quasid. Rehmana

Yusuf Farukhi has admitted in her statement recorded u/s 313

Cr.P.C., vide question no. 10 that bank account no. 5817, in

State Bank of India, Gazhipur Branch, Delhi, belongs to her

and the money therein was deposited by her, which was given

by her relatives. Accused Md. Arif @ Ashfaq has also

admitted in his statement u/s 313 Cr.P.C., vide question no. 37

that account no. 0891000024344 opened in HDFC Bank, New

Friends Colony, belongs to him.

403. However, it is submitted that accounts no. 32263962 of

M/s Nazir Sons, 28552609 of Mr. Bilal Ahmad Kawa and

32181669 of Farookh Ahmad Quasid, in Standard Chartered

Grindleys Bank, Sri Nagar do not belong to accused Nazir

Ahmad Quasid and Farukh Ahmad Quasid. These accounts

were opened during the tenure of PW-97 Sh. B.A. Vani as


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Branch Manager. It is submitted by Sh. Aman Lekhi, learned

defence counsel that original account opening forms have not

been placed on record, the accused were not residing at the

given address at the relevant times and mere entries in the

accounts do not prove the transactions therein. In this regard,

the authority of Chandradhar Goswami (Supra) has been

referred to. Both accused have denied vide question no. 143 in

their statement u/s 313 Cr.P.C, that the aforesaid bank accounts

belong to them.

404. As far as the submission that original account opening forms

have not been produced in the court is concerned, same is

without merit as PW-97 Sh. B.A. Vani deposed that these

accounts were opened during his tenure as branch manager.

PW-228 ACP Hawa Singh deposed that he went to the bank at

Sri Nagar on 09.03.2001 and he was informed that original

account opening forms have been seized by the local police in

FIR No. 2/2001. As far as the fact that accused were not

residing at the given address is concerned, the same is also

without merit as the accused have given their address in their

statements recorded u/s 313 Cr.P.C as that of Bagat Kanipura,


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Sri Nagar and have not specified their house number.

However, one thing is common that telephone number 436188

is installed at their residence and a call was made from mobile

number 9810263721, which once belonged to Md. Arif @

Ashfaq as held above on 16.01.2000 and the accused Nazir

Ahmad Quasid and Farukh Ahmad Quasid have admitted that

this telephone belongs to them and during the trial of the case

they continued making telephone calls to this telephone number

after obtaining court permission as is mentioned in various

applications filed by them. As such the plea that the accused

were not residing at the given address mentioned in the bank

records is contrary to the record.

405. As far as the plea that the transactions in the account have not

been proved as per law is concerned, same is also without

merit. In this case, the forty cheques Exs. PW-97/P-1 to P-40

drawn on the three accounts by the three accused have been

proved as per law. Similarly, PW-27 Sh. Subhash Gupta has

proved nine deposit slips Ex. PW-27/1 to 9 vide which Rs.

29,50,000/- were deposited in the three accounts. These

deposit slips are in the handwriting of accused Md. Arif @


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Ashfaq as per the statement of PW-216 Dr. M.A. Ali. As

such, in these accounts the deposit and withdrawal of money

has been clearly proved by the witnesses and it cannot be said

that the transactions have not been proved as per law. In

Chandradhar Goswami (Supra) , the question was entirely

different. The question involved was recovery of Rs. 40,000/-

given as loan. Here the question is not recovery of any money,

but the question of determination of the link between accused

Md. Arif @ Ashfaq , Nazir Ahmad Quasid and Farukh Ahmad

Quasid. I accordingly, hold that the aforesaid three accounts

belong to Nazir Ahmad Quasid, Farukh Ahmad Quasid and

Bilal Ahmad Kawa and Md. Arif @ Ashfaq deposited money

in these three accounts vide Exs. PW-27/1 to 9. This fact is

further strengthened by the fact that prosecution has alleged

that accused Md. Arif @ Ashfaq used to collect Hawala

money from Delhi and the same was transferred to the militants

of Lashkar-e-Toiba at Sri Nagar including Nazir Ahmad

Quasid, Farukh Ahmad Quasid and Bilal Ahmad Kawa (P.O.).

Accused Md. Arif @ Ashfaq had admitted in his statement u/s

313 Cr.P.C., at page 153 that one Sardarji in Karol Bagh was


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engaged in the business of money lending and he used to

collect the same, though he claimed that it was collected for

PW-20 Nain Singh, which fact is not borne out of the record.

Both the accused have claimed in their statements u/s 313

Cr.P.C, that these accounts do not belong to them and they do

not have any bank account. This clearly shows that the accused

are concealing the facts and are attempting to disown the

documentary evidence available on the file against them. I,

accordingly, hold that the aforesaid three accounts belong to

the accused including Bilal Ahmad Kawa (P.O.) and money

was used to be transferred by Md. Arif @ Ashfaq from Delhi

and it used to be distributed to various militants by the accused.

406. Mobile telephone number 9811278510 was recovered from

the possession of accused Md. Arif @ Ashfaq . As per call

detail Ex. PW-198/B-1 to B-3, calls were made from this

number to several other numbers on the date of incident as well

as before that and in view of the fact that it was recovered from

the accused Md. Arif @ Ashfaq and he was always in use and

possession of a mobile phone. As per Ex. PW-195/B, a call

was made from telephone no. 9810263721 to the telephone


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number 436188 at Sri Nagar. These telephones belong to Md.

Arif @ Ashfaq and Nazir Ahmad Quasid and Farukh Ahmad

Quasid.

407. The telephonic connection as well as the amount of money

transferred and distributed by the accused suggest that they are

closely connected and when they are closely connected, in view

of the evidence discussed above, they are also members of

Lashkar-e-Toiba.

408. This shows that the three accused are intimately connected,

otherwise Md. Arif @ Ashfaq would not transfer such a huge

amount in their account, which was later on distributed by them

to various militants vide cheques Exs. PW-97/P-1 to P-40.

(xviii) JOINT TRIAL :

409. It has also been submitted on behalf of all the accused that

their joint trial has prejudiced all of them as they have been

implicated under the same charge of conspiracy. The accused

have not been able to put up their defence properly. However,

no specific instance of any of the accused being specifically

prejudiced and handicapped in defending himself has been

brought to my notice. The submission is vague and imprecise.


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The cases have been clubbed together as they pertain to the

same incident and a large number of witnesses are common in

all the cases and as such the joint trial has rather facilitated the

trial of the case.

410. Now I shall take up the case of each accused separately.

411. First the recoveries effected at the instance of accused Md.

Arif. First, I shall take the recovery from G-73, Muradi Road.

Accused was arrested on 26.12.2000 at 12.40 am and made a

disclosure statement Ex. PW-148/C regarding his hideout at G-

73, Muradi Road, Okhla, Delhi. Accordingly, a police party

with PW-229 Ins. Mohan Chand Sharma and his staff with

accused Md. Arif @ Ashfaq in their custody went to the

aforesaid address from 308-A, DDA Flats, Gazhi Pur, Delhi.

Since the house was locked, the police party waited there and at

about 5.00 am, a man was seen entering the aforesaid house.

Thereafter, the police party knocked at the door of the house,

but the door was not opened. The man inside the house, fired

at the police party, which led to an encounter, in which the

aforesaid person, who was later on identified by accused Md.

Arif @ Ashfaq as his associate Abu Shamal, was killed. From


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the aforesaid hideout, one AK-56 rifle Ex. PW-229/1, two

magazines Exs. PW-229/2 and 3, two hand-grenades (since

destroyed through PW-193 Major Sanjay Kumar Shukla)

remnants of which are now Ex. PW-229/4, one bandoleer Ex.

PW-229/5, a military pouch Ex. PW-229/6 and cleaning

material of the weapon Ex. PW-229/7 and these were seized

vide seizure memo Ex. PW-229/D. A khakhi uniform Ex.

PW-229/8 was also seized vide memo Ex. PW-229/E. Apart

from the above, fired cases, empties and thirty live rounds were

also recovered. On this, FIR No. 630/00, Police Station New

Friends Colony, which has since been closed. PW-229 Ins.

Mohan Chand Sharma is the main witness in this case and he

has not been cross-examined by the accused. As such his

version, which apparently is very reasonable and credible, has

gone unchallenged and his evidence has to be accepted at face

value.

412. Now, I shall deal with the recovery effected from behind

the Red Fort on 26.12.2000 consequent to the disclosure of

accused Md. Arif @ Ashfaq . Accused was arrested on

26.12.2000 at about 12.40 am and thereafter his disclosure


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statement Ex. PW-148/E was recorded, wherein he offered to

get weapons recovered from behind the Red Fort.

Accordingly, IO PW-228 Ins. Hawa Singh, PW-218 SI

Satyajeet Sareen and PW-227 SI Amardeep Sehgal went to the

spot and recovered one rifle Ex. PW-125/1, two magazines Ex.

PW-125/2 & 3 with thirty-two live cartridges Ex. PW-125/4 to

35, kitchen knife Ex. PW-125/36, one bandoleer Ex. PW-

218/1, four hand-grenades with detonators (since destroyed)

Exs. PW-50/1 to 4 and detonators Ex. PW-50/5 to 8, vide

memo Ex. PW-125/A.

413. Now the recovery effected from Jamia Milia Islamia

University on 01.01.2001 consequent to the disclosure

statement Ex. PW-168/D made by accused Md. Arif @ Ashfaq.

Vide this disclosure statement the accused offered to get hand-

grenades recovered from Jamia Milia University. Accordingly,

PW-168 Ins. R.S. Bhasin along with staff took the accused to

the spot. There, he joined PW-208 Sh. Devender Kumar a

public person, PW-209 Sh. Raghubir Singh, Security guard of

University and other police officials in the recovery

proceedings. From there accused Md. Arif @ Ashfaq got


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recovered three hand-grenades HG-84 vide recovery memo Ex.

PW-168/B. The hand-grenades have since been destroyed.

The destruction was carried out by PW-193 Major Sanjay

Kumar Shukla, bomb disposal squad, National Security Guard

Complex, Smalkhan, New Delhi, where the same were carried

by PW-85 SI Girish Jain.

414. Apart from the above recoveries, a 9 mm pistol Ex. PW-

148/1 along with magazine Ex. PW-148/2 and six live

cartridges Exs. PW-148/3 to 8 were also recovered at the time

of arrest of accused Md. Arif @ Ashfaq . The said pistol was

seized vide seizure memo Ex. PW-148/B. On this FIR No.

419/00 was registered at Police Station Kalyan Puri.

415. It is in evidence that on the recovery of the weapons, their

sketches were prepared and thereafter they were properly

sealed and deposited in the Mal khana and from there they

were sent to CFSL for examination. PW-211 Sh. K.C.

Varshney examined the pistol and cartridges recovered at the

time of arrest of accused Md. Arif @ Ashfaq and deposed that

same were firearm and ammunition as defined under the Arms

Act. His report is Ex. PW-211/A. PW-202 Sh. N.B. Vardhan


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examined the firearm, ammunition and the hand-grenades

recovered from behind the Red Fort on 26.12.2000 and also

found the same to be firearm, ammunition and explosive

substance under the Arms Act and Explosive Substances Act

respectively. His report is Ex. PW-202/A. PW-206 Sh. A.

Dey, Senior Scientific Officer, examined the hand-grenades

recovered from G-73, Muradi Road, Okhla, Delhi as well as

arms and ammunition and found the same to be arms,

ammunition and explosive substances as defined under the

Arms Act and Explosive Substances Act respectively. The

testimony of PW-211 Sh. K.C. Varshney and PW-206 Sh. A.

Dey has gone unchallenged. The testimony of PW-202 Sh.

N.B. Bardhan has also gone unchallenged on this point, though

he has been cross-examined regarding the recoveries effected

in his presence.

416. It is submitted by Sh. R.M. Tufail, learned defence counsel

that no recovery whatever, has been effected from accused Md.

Arif @ Ashfaq @ Ashfaq or at his instance as he did not make

any disclosure statement. Sh. R.M. Tufail has also challenged

the factum of arrest of accused Md. Arif @ Ashfaq from 308-


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A, DDA Flats, Gazhipur, Delhi. It is also submitted that no

public person was joined in the investigation at the time of

recovery. He has also challenged the presence of PW-208 Sh.

Devender Kumar at the time of recovery from Jamia Milia

Islamia University. He has also submitted that there are

several contradictions in the testimonies of the witnesses.

417. PW-173 Ins. Ved Parkash has deposed that accused Md. Arif

@ Ashfaq was apprehended while entering 308-A, DDA Flat,

Gazhipur, Delhi and a pistol was recovered from him. This

fact has been corroborated by PW-148 SI Zile Singh also. After

the registration of the case, the investigation was handed over

to PW-194 SI Harender Singh. All three witnesses have been

cross-examined in detail by the learned defence counsel and

there is nothing of any significance which could discredit their

testimony regarding the arrest and recovery from the accused

Md. Arif @ Ashfaq . Accused Md. Arif @ Ashfaq has

admitted in his statement u/s 313 Cr.P.C., that he was arrested

from 308-A, DDA flats, Gazhipur, Delhi. His mother-in-law

DW-1 Mrs. Qamar Farukhi has also admitted that Md. Arif @

Ashfaq was arrested from their house. PW-229 Ins. Mohan


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Chand Sharma and PW-173 Ins. Ved Parkash has deposed that

he was arrested on the basis of surveillance mounted on him

through the telephonic calls made from his computer center to

308-A, DDA Flats, Gazhipur, Delhi. The story of his arrest is

quite natural, as I have already held that Md. Arif @ Ashfaq

was having mobile phone and it is the admitted case of both

parties the telephone number 26315904 was installed at

“Knowledge Plus Computer Center “ run by the accused Md.

Arif @ Ashfaq and telephone number 2720223 is intalled at

308-A, DDA Flat, Gazhipur, Delhi in the name of Mrs. Farzana

Farukhi, elder sister of accused Rehmana Yusuf Farukhi.

418. The next submission is that accused did not make the

disclosures Ex. PW-148/E and 168/D which led to the

recoveries at G-73, Muradi Road, behind the Red Fort and

Jamia Milia Islamia University. I find that both the disclosures

were made in the presence and custody of the police officials

and are signed by the accused also. The accused is a well-

educated person as he has claimed in his statement recorded

u/s 313 Cr.P.C that he was working as an agent of RAW and

even runs a business. The accused has no where claimed in his


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statement that he was forced to sign these disclosure

statements, though he claimed that he did not make any

disclosure statement. This fact cannot be believed in view of

weight of evidence on record. The submission is as such is

without merit.

419. It is next contended that the presence of PW-208 Devender

Kumar is unnatural on the spot at Jamia Milia Islamia

University and he is a procured witness. This witness has been

cross-examined in detail by the learned defence counsel, but he

has not been able to extract anything to the benefit of the

accused. The recovery at Jamia Milia Islamia University was

effected by the police in the presence of PW-209 Sh. Raghubir

Singh, Security Guard of the University. He has also been

cross-examined in detail, but he has also withstood the test of

the cross-examination. As such, the presence of PW-208 Sh.

Devender Kumar cannot be disbelieved.

420. I have already held that there was a conspiracy to wage war

against the Government of India as well as conspiracies to kill

all those who resist such action and to forge driving licence and

ration card of accused Md. Arif @ Ashfaq to provide him


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Indian identity and to harbour him with a view to conceal his

designs. Now the question is as to which of the accused were

members to the main conspiracy of waging war against

Government of India and conspiracies to kill those who come

to resist the action of waging war against Government of India

and to forge the aforesaid document and to harbour Md. Arif @

Ashfaq to conceal his designs ?

421. Mobile phone 9811278510 was recovered from the

possession of accused Md. Arif @ Ashfaq. From this

telephone, calls were made to BBC Sri Nagar and Delhi on the

date of the incident. Now the question is as to who made these

calls ? The incident took place at about 9.00 pm and calls

were made to BBC in between 9.00 to 9.30 pm. The aforesaid

telephone number was found written on a paper-slip Ex. PW-

183/B, which was found near the rear wall of the Red Fort.

The aforesaid telephone number was in operation from

26.10.00 to 23.12.2000 as per letter Ex. PW-198/A written by

the Essar Cell Phone. This has already been proved that Md.

Arif @ Ashfaq was having possession of this telephone as it

was recovered from him and his keeping a mobile phone has


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been deposed to by three-four witnesses. At the instance of

the accused Md. Arif @ Ashfaq, one AK-56 Rifle, four hand-

grenades, detonators, bandoleer etc. were recovered from

behind the Red Fort on 26.12.2000 immediately after his arrest.

Earlier to that in the morning of 23.12.2000, PW-234 Ins. Roop

Lal had seized AK-56 rifle with magazines and six cartridges

vide Ex. PW-62/B in the presence of CFSL officials. As per

the report of PW-202 Sh. N.B. Bardhan, the empty cartridges

recovered from the scene of crime inside Red Fort were fired

from the rifle recovered at the instance of accused Md. Arif @

Ashfaq on 26.12.2000 and the one recovered from Vijaya Ghat

on 23.12.2000. This fact points to the fact that the accused

who had got the weapons recovered had an intimate connection

with the crime committed at the Red Fort. Not only this,

accused Md. Arif @ Ashfaq got arms and ammunitions

recovered from his hideout at G-73, Muradi Road. He also

identified his associate Abu Shamal who was killed in

encounter at the aforesaid hideout. The arms and ammunitions

recovered from the hideout are also of same type as recovered

from behind the Red Fort and at Vijaya Ghat. Accused Md.


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Arif @ Ashfaq also got three hand-grenades recovered from

Jamia Milia Isliamia University on 01.01.2001.

422. Regarding the identification of deceased Abu Shamal by

accused Md. Arif @ Ashfaq , a contention was raised that this

identification is not admissible as it amounts to a statement u/s

161 Cr.P.C. This point was directly involved in “Parliament

Attack Case (Supra)” and Hon'ble Supreme Court observed in

this regard at page 637 as under :-

“............... The first circumstance is that Afzal knew

who the deceased terrorists were. He identified the

dead bodies of the deceased terrorists. PW76

(Inspector HS Gill) deposed that Afzal was taken to

the mortuary of Lady Harding Medical College and

he identified the five terrorists and gave their names.

Accordingly, PW76 prepared an identification memo

Ext.PW76/1 which was signed by Afzal. In the

postmortem reports pertaining to each of the

deceased terrorists, Afzal signed against the column

'identified by'. On this aspect, the evidence of PW76

remained un-shattered. In the course of his

examination under Section 313, Afazal merely stated

that he was forced to identify by the police. There

was not even a suggestion put to PW76 touching on

the genuineness of the documents relating to


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identification memo. It may be recalled that all the

accused, through their counsel, agreed for admission

of the postmortem reports without formal proof.

Identification by a person in custody of another does

not amount to making a statement falling within the

embargo of Section 162 of Cr.P.C. It would be

admissible under Section 8 of Evidence Act as a

piece of evidence relating to conduct of the accused

person in identifying the dead bodies of the terrorists.

As pointed out by Chinnappa Reddy, J. in Prakash

Chand Vs. State (Delhi Admn.) AIR 1979 SC 400

:-

“.......... There is a clear distinction between

the conduct of a person against whom an

offence is alleged, which is admissible under

Section 8 of the Evidence Act, if such

conduct is influenced by any fact in issue or

relevant fact and the statement made to a

Police Officer in the course of an

investigation which is hit by Section 162

Criminal Procedure Code. What is excluded

by Section 162 Criminal Procedure Code is

the statement made to a Police Officer in the

course of investigation and not the evidence

relating to the conduct of an accused person

(not amounting to a statement) when


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confronted or questioned by a Police Officer

during the course of an investigation. For

example, the evidence of the circumstance,

simpliciter, that an accused person led a

police officer and pointed out the place

where stolen articles or weapons which might

have been used in the commission of the

offence were found hidden, would be

admissible as conduct, under Section 8 of the

Evidence Act, irrespective of whether any

statement by the accused contemporaneously

with or antecedent to such conduct falls

within the purview of Section 27 of the

Evidence Act (vide Himachal Pradesh

Administration Vs. Om Prakash AIR 1972

SC 975) .........”

423. I, accordingly, hold that the identification of deceased Abu

Shamal by accused Md. Arif @ Ashfaq is admissible in

evidence. Similarly, Md. Arif @ Ashfaq identified the

nagative Ex. PW-86/B of accused Abu Bilal. PW-61 Sh.

Mukhtar Ahmad has deposed that Jahur Ahmad Qasid and Abu

Haider were also in Delhi in the same year as Jahur Ahmad

Qasid was staying at his house and Abu Haider used to visit

him.


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424. PW-229 Ins. Mohan Chand Sharma has deposed that

location of mobile telephone number 9811278510 was inside

and at the rear side of the Red Fort at the time of the incident.

This witness has deposed in detail about the location of the

aforesaid mobile number and the calls made by this telephone

to different telephones immediately before and after the

incident. On the basis of the said cell ID Record Ex. PW-

198/C and on the basis of the telephone record Ex. PW-198/B-

1 to B-3, he has proved that the position of the caller was near

the Red Fort at the time of the incident and calls were made

from this mobile phone to BBC regarding the attack on the Red

Fort by Lashkar-e-Toiba. This witness deposed in detail about

the use of the aforesaid mobile phone as well as recovery from

G-73, Muradi Road, Okhla, Delhi but he has not been cross-

examined on any of these points. In fact, his testimony has

gone unchallenged.

425. It is the admitted case of accused Md. Arif @ Ashfaq that he

used to run “Knowledge Plus Computer Center” at 18-C,

Gaffur Nagar, Okhla, Delhi, where telephone number

26315904 is installed. Similarly, it is his admitted case that he


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married to Rehmana Yusuf Farukhi resident of 308-A, DDA

Flats, Gazhipur, Delhi, where telephone number 2720223 is

installed. It is also his admitted case that he was arrested from

this house. It is on record that a large number of calls were

made from mobile phone no. 9811278510 to the aforesaid two

telephone numbers. This fact establishes close connection

between the three telephones. Now the question remains :

Whether Md. Arif @ Ashfaq was part of the militants who had

launched the attack at 7th Raj Rifles inside the Red Fort on

22.12.2000. The allegations of the prosecution are that he

carried out the attack along with his other associates including

Abu Haider, Abu Shamal, Abu Bilal, Abu Saad and Abu

Shakur. One rifle, from which cartridges recovered from the

Red Fort were fired, has been recovered at his instance from

behind the Red Fort. Other similar type of rifle was recovered

from Vijaya Ghat, which is just near the place of occurrence

and the cartridges recovered from the scene of crime were also

fired from this rifle. Accused Md. Arif @ Ashfaq has pointed

out his hideout at G-73, Muradi Road, where Abu Shamal was

killed in encounter and he has identified by him as his


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associates. Telephone number 9811278510 was recovered

from the accused Md. Arif @ Ashfaq , which was deactivated

on 23.12.2000 after the incident. The location of this mobile

phone was near, inside and at the rear side of Red Fort before

and after the incident and calls have been proved to have been

made to BBC from this telephone.

426. Not only this the conduct of accused Md. Arif @ Ashfaq

was also strange before the incident. PW-56 Sh. Faisal Mohd.

Khan has deposed that he had invested only Rs. 70,000/- in the

computer center whereas Md. Arif @ Ashfaq had invested Rs.

1,70,000/- in the same, but he used to visit the computer center

only once in four/five days. He further deposed that on

22.12.2000, he left Delhi for his village for celebrating Id and

Md. Arif @ Ashfaq had not met him for four-five days. There

is no cross-examination of the witness on this point. This

shows that the conduct of the accused Md. Arif @ Ashfaq was

not normal, otherwise a person, who would invest such a huge

amount in his business in another city, would not have

remained absent from his business place for such a long period

of time. All these factors unmistakably point to the fact that


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accused Md. Arif @ Ashfaq was not only part of conspiracy to

wage war against Govt. of India but also actually participated

in the firing incident inside Red Fort, in which three army

jawans Naik Ashok Kumar, Uma Shankar and Abdullah

Thakur were killed. It is also unmistakably proved that it was

Md. Arif @ Ashfaq , who had telephoned the Sri Nagar and

Delhi offices of the BBC regarding the killing of Army Jawans

inside Red Fort by Lashkar-e-Toiba, which calls were attended

PW-39 Altaf Hussain and PW-41 Ayanjit Sen respectively.

427. The allegations of the prosecution is that accused Md. Arif

@ Ashfaq , a Pakistan national, entered India illegally

somewhere in late 1999. Accused has no documents for his

entry in India. In his statement u/s 313 Cr.P.C, accused Md.

Arif @ Ashfaq has given his address as House no. 512, Ward

No. 12, Mohallha Kunj Kehar, Distt. Ebtabad, Pakistan.

Accused Md. Arif @ Ashfaq has further admitted that he is a

Pakistan national and entered India illegally via Nepal. As

such, it also stands proved that accused Md. Arif @ Ashfaq

committed offence under Foreigner's Act 1946.

428. Now, I shall take up the case of Nazir Ahmad Quasid and


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Farukh Ahmad Quasid. Accused Farukh Ahmad Quasid is the

son of Nazir Ahmad Quasid and they are residents of Bagat

Kanipura, Sri Nagar. The allegations of the prosecution

against the two are that they used to provide shelter to the

members of Lashkar-e-Toiba including Md. Arif, Abu Shamal

and others at their residence and they along with other accused

entered into a conspiracy to wage war against the Government

of India. In pursuance to the aforesaid conspiracy, they sent

Md. Arif @ Ashfaq to Delhi to set up a base there as well as

to collect Hawala money and transfer the same through their

accounts to Sri Nagar for financing their activities of waging

the war against the Government of India. In this regard, they

opened three bank accounts with Bilal Ahmad Kawa in

Standard Chartered Grindleys Bank as account Nos. 32263962

in the name of M/s Nazir Sons, 28552609 in the name of Bilal

Ahmad Kawa and 32181669 in the name of Farookh Ahmad

Quasid. The three accused received huge amounts in the three

accounts and distributed the same to various militants.

429. It is submitted by the learned defence counsel that accused

are neither the members of Lashkar-e-Toiba nor were they


: 317 :

party to any conspiracy to wage war against Government of

India nor waged any such war. It is submitted that for the

offence of conspiracy there must be an agreement between the

parties to do an illegal act or an act, which is illegal by illegal

means. Mere association or innocuous contact does not make

one a party to conspiracy. In this regard, paragraph 276 of

Kehar Singh (Supra) has been referred to specifically which

is as under :-

“I share this opinion, but hasten to add that the

relative acts or conduct of the parties must be

conscientious and clear to mark their concurrence as

to what should be done. The concurrence cannot be

inferred by a group of irrelevant facts artfully

arranged so as to give an appearance of coherence.

The innocuous, innocent or inadvertent events and

incidents should not enter the judicial verdict. We

must thus be strictly on our guard.”

430. I have already held that the three accounts account Nos.

32263962 in the name of M/s Nazir Sons, 28552609 in the

name of Bilal Ahmad Kawa and 32181669 belong to accused

Nazir Ahmad Quasid and Farukh Ahmad Quasid and they used

to receive Hawala money from Md. Arif @ Ashfaq from Delhi


: 318 :

and further used to distribute the same to various militants for

militant activities. I have also held that telephone no. 436188

is installed at their residence. I find that Rs. 29,50,000/- were

deposited by accused Md. Arif @ Ashfaq in aforesaid three

accounts vide cheques Ex. PW-27/1 to 9 from 17.07.2000 to

16.11.2000. The question is : Why accused Md. Arif @

Ashfaq would deposit such a huge amount in their accounts

within such a short period if he was not connected with them ?

Furthermore, Why the aforesaid amount would be distributed

by the accused to various persons vide cheque Ex. PW-97/1 to

40 within the same short period of July 2000 to November

2000 ? The cheques include one cheque 18.09.2000 in favour

of Bilal Ahmad and some cheques are in favour of Nazir

Ahmad Quasid and Farukh Ahmad Quasid. Perusal of the

cheques shows that three accused used to transfer the money to

each other also. The transfer of such huge amount of money

without any reason to the accused and the distribution of the

same by the accused to different persons including transfer to

each other, does not show that this transfer was for an

innocuous purpose, that too from a person, who has been


: 319 :

proved to be involved in waging war against Government of

India as well as attacking Army camp inside Red Fort, which

resulted in the death of three jawans. This fact speaks

unmistakably and loudly that the two accused Nazir Ahmad

Quasid and Farukh Ahmad Quasid were in agreement with the

other accused to wage war against the Government of India and

as such they are party to the conspiracy. This fact is further

strengthened by the fact that Md. Arif @ Ashfaq also used to

be in telephonic contact with them and the fact that both

accused have totally disowned the bank accounts. It is not their

case that they were merely hawala operators and used to

distribute hawala money. Then the only conclusion that can

be drawn is that they were in close contact with Md. Arif @

Ashfaq and were party to the conspiracy hatched at the

instance of Lashkar-e-Toiba to wage war against the

Government of India and to commit other acts of violence and

forgery. By receiving such a huge amount of money and

distributing the same to different militants in collusion with

Md. Arif @ Ashfaq, they have actively abetted the waging of

war against the Government of India. The circumstances


: 320 :

suggest that they had also an active role in sending accused

Md. Arif @ Ashfaq to Delhi.

431. However, there is no legally admissible evidence direct or

circumstantial to the effect that accused Md. Arif @ Ashfaq

and other co-accused used to take shelter at their house.


: 321 :

432. Now I shall take up the case of the accused Rehmana Yusuf

Farukhi. It is alleged by the prosecution that accused Rehmana

Yusuf Farukhi resident of 308-A, DDA Flats, Gazhipur, Delhi,

was contacted by accused Md. Arif @ Ashfaq in response to

her matrimonial advertisement dated 08.10.2000. She was

elder in age as well as suffering from spondylitis and was unfit

for marriage, but accused Md. Arif @ Ashfaq offered her huge

amount of money to marry him for helping him in carrying out

war against Government of India and to kill any one who

resists his action. Thereafter, Md. Arif @ Ashfaq paid her Rs.

2,80,000/-, which she deposited in her bank account and she

became a willing party to the conspiracy. She used to remain

in telephonic contact with accused Md. Arif @ Ashfaq and

ultimately married him on 08.12.2000. Accused Md. Arif @

Ashfaq was apprehended from his house and many

incriminating articles were recovered from there.


that nothing was recovered from the house of accused

Rehmana Yusuf Farukhi and the entire recovery has been

fabricated by the police to implicate her in the conspiracy. The


: 322 :

money amounting to Rs. 2,80,000/-, which was deposited in

her bank account, was given by her relatives. She was fit for

marriage and married accused Md. Arif @ Ashfaq innocently

believing him to be a resident of Jammu.

434. The first submission of the learned defence counsel is that

nothing was recovered from her house. However, PW-173

Ins. Ved Parkash deposed that during her house search a

cheque book of HDFC Bank Ex. PW-173/C, ATM Card Ex.

PW-173/D, three pay-in-slips Exs. PW-173/E to G, vide which

amount was deposited in the bank account of Rehmana Yusuf

Farukhi, her passport Ex. PW-173/H, her I-card Ex. PW-173/I,

one cheque book Ex. PW-173/J of SBI Bank, one cash deposit

slip Ex. PW-173/K of Standard Chartered Bank for an amount

of Rs. Five lacs, one personal diary Ex. PW-173/L and a

digital diary Ex. PW-173/M were recovered from her house. A

negative Ex. PW-86/B of Abu Bilal, identified by accused Md.

Arif @ Ashfaq, was also recovered from her house. This

witness has been cross-examined in detail and learned defence

counsel has not been able to extract anything to the benefit of

the accused. He has categorically deposed that these articles


: 323 :

were recovered from the house of Rehmana Yusuf Farukhi at

the time of arrest of accused Md. Arif @ Ashfaq .

Accordingly, the submission of learned defence counsel that

nothing was recovered from her house, is contrary to record

and is accordingly rejected.

435. The next submission is that money, which was deposited in

her account, was given by her relatives for her marriage.

However, the name of any relative has not been given by

accused Rehmana Yusuf Farukhi in her statement recorded u/s

313 Cr.P.C. Her mother Qumar Farukhi also appeared in her

defence as DW-1. She has also not given the names of any

relatives or other person who contributed the money for her

marriage. This submission is as such false on the face of

record. It is further strengthened by the fact that cash

amounting to Rs. 1,50,000/- was deposited in her account vide

receipt Ex. PW-9/B dated 21.11.2000 and a part of the writing

on this receipt, is in the handwriting of Md. Arif @ Ashfaq as

per report of handwriting expert PW-216 Dr. M.A. Ali and this

portion was referred to by him as Q30B.

436. Next submission is that she married Md. Arif @ Ashfaq


: 324 :

innocently believing him to be a resident of Jammu and she

was fully fit for marriage. This fact is again contrary to

record. Her mother DW-1 Smt. Qumar Farukhi admitted in

her cross-examination admitted that :-

“ ................ We had told Md. Arif @ Ashfaq that

Rehmana was suffering from spinal cord problem

and was not fit for consummation of the marriage.

I do not know if despite these problem Md. Arif

@ Ashfaq married my daughter just to procure a

base for his activities. ..................... “

437. As such, all the submissions raised on behalf of Rehmana

Yusuf Farukhi are contrary to the record and have been rejected

as such. Now the question is : Whether she was a party to the

conspiracy or was an innocent victim ? Admittedly, she was

not fit for marriage as deposed to by her mother. Md. Arif @

Ashfaq had paid her Rs. 2,80,000/- within a short span of

twenty days in the month of November 2000 from 9.11.00 to

29.11.00. Nobody would pay such a huge amount for no

reason to a woman who is not even fit for marriage unless one

is willing to do something illegal and Rehmana Yusuf Farukhi

became a willing party to it. This fact is further strengthened


: 325 :

by the recovery of receipt Ex. PW-173/K, from her house

whereby Md. Arif @ Ashfaq had deposited Rs. Five lacs in the

account of Nazir Sons. A diary in which telephone number of

several persons including some residents of Pakistan were

recorded, was also recovered. A visa form of Pakistan Ex.

PW-83/P-1 and negative of Abu Bilal Ex. PW-86/B was also

recovered from her house. The deposit of such huge amount

of money by her would-be husband in the bank account of

Nazir Sons must have aroused her suspicion as she must have

known the sources of income of him. The presence of so many

things must have made her suspicious to know the reality of her

would-be husband. But she ignored all these things as she was

willing to harbour accused Md. Arif @ Ashfaq knowing his

reality that he was a Lashkar-e-Toiba Militant and a Pak

National and who entered India illegally to carry out militant

activities.

438. Accused Md. Arif @ Ashfaq was apprehended from her

house No. 308-A, DDA Flats, Gazhipur, Delhi. Md. Arif @

Ashfaq used to run a computer center at 18-C, Gaffur Nagar,

Okhla, Delhi. This also involved huge investment enough to


: 326 :

raise the suspicion of any reasonable person about the source of

income of the owner. There is no evidence that accused Md.

Arif @ Ashfaq used to reside at the computer center. The

addresses found to be mentioned in his ration card Ex. PW-

164/A i.e. F-17/12, Batla House, Delhi is a false address and its

owner PW-65 Sh. Malik Irfan Choudhary deposed that no

person by the name of Md. Arif @ Ashfaq ever resided at the

abovesaid address. Then the question is : Where did accused

Md. Arif @ Ashfaq use to reside ? His partner PW-56 Faisal

Mohd. Khan is silent on this point. In these circumstances,

particularly the fact that in the night of 25/26.12.2000 accused

was apprehended while entering the house of Rehmana Yusuf

Farukhi, it is safe to conclude that he used to stay at the

aforesaid house and was provided shelter by accused Rehmana

Yusuf Farukhi knowing fully well about his identity as a Pak

National and object to carry out militant activities and she, as

such harboured him and also concealed his designs from the

public authorities.

439. Now, I shall take up the case of Babar Mohsin Bagwala. The

primary submission of Sh. I.U. Khan, learned defence counsel


: 327 :

for accused Babar Mohsin is that letter Ex. PW-10/C was not

recovered from the motor-cycle of the accused. This letter has

been got written by the police when Md. Arif @ Ashfaq was in

their custody. Its recovery has also become doubtful by the

fact that the passerby from whom the letter was got read over

has not been joined as a witness to the recovery proceedings.

There is no dickey affixed to the motor-cycle and in such a case

the chances of letter being found in the dickey of motor-cycle

are very less. In any case the letter is innocuous and harmless

and no conclusion can be drawn against the accused from this.

440. PW-10 ASI Chand Singh, PW-28 SI Abhinendra Jain and

IO PW-230 Ins. Surender Kumar Sund have deposed that

aforesaid letter was recovered by them on 07.01.2001 when

motor-cycle Ex. P-1 belonging to accused Babar Mohsin was

seized and searched. As per the report of handwriting expert

PW-216 Dr. M.A. Ali, letter Ex. PW-10/C is in the handwriting

of accused Md. Arif @ Ashfaq . Accused Md. Arif @ Ashfaq

has tried to explain it away in his statement Ex. PW-313 Cr.P.C

by stating that police had got two/three letters written from him

when he was in custody. This letter is dated 14.03.2000. It is


: 328 :

in evidence of PW-31 Azam Malik that in the month of

February-March 2000, Md. Arif @ Ashfaq was in Delhi and

he had taken a room on rent in the house of PW-20 Nain Singh.

There is no evidence on record that Md. Arif @ Ashfaq had

stayed at the house of accused Babar Mohsin, but the letter

suggests that some help was rendered by accused Babar

Mohsin to him during his stay in Delhi and as such letter is not

quite unnatural and out of place. It is of no use whether the

attachment attached to the motor-cycle is called a canvas bag or

a dickey. The fact is that the three witnesses have deposed that

the letter Ex. PW-10/C was recovered from the motor-cycle of

Babar Mohsin and in their cross-examination , there is nothing

of any significance which could discredit their testimony. All

the witnesses have corroborated the version of each other.

Learned defence counsel has pointed out some cuttings and

overwriting in the seizure memo, but the same does not

diminish or destroy evidentiary value of the recovery. It is

correct that neither the passerby from whom the letter was got

read over nor any public person has been joined in the

investigation. I have already held that non-joining of public


: 329 :

person in investigation during the time of recovery is not a

requirement of law and if the version of the police officials is

reasonable and credible, the same can be accepted. It is also

correct that, taken by itself, the contents of the letter Ex. PW-

10/C appear to be innocuous as they merely convey thanks to

Babar Mohsin from accused Md. Arif @ Ashfaq . But it must

be noted that letter was written by one accused to another when

the conspiracy was on foot and in existence. I, accordingly,

hold that letter Ex. PW-10/C was written by accused Md. Arif

@ Ashfaq to accused Babar Mohsin and has been recovered

from his motor-cycle.

441. The next submission of the learned defence counsel Sh. I.U.

Khan is that PW-225 Mohd. Ahmad is tainted and biased

witness. He has been procured by the IO Ins. Surender Kumar

Sund to depose against accused Babar Mohsin and Sadakat Ali

as there is no other evidence against them. PW-225 Mohd.

Ahmad has deposed that Babar Mohsin and Ashfaq used to

visit the house of accused Sadakat Ali, who resides near his

house.

442. Learned defence counsel Sh. I.U. Khan and Sh. R.M. Tufail


: 330 :

learned defence counsel for accused Sadakat Ali have assailed

the evidence of PW-225 Md. Ahmad for the reasons that :-

(i) His complaint Ex. PW-57/A is vague and does not mention

any of the accused ;

(ii) His statement was recorded by the police in June 2001

though the incident took place in December 2000 ;

(iii) He is a police informer and as such deposed falsely for the

police ; and,

(iv) He is having litigation with accused Sadakat Ali.

443. For easy understanding, I quote the statement of PW-225

Mohd. Ahmad as he is main witness against the two accused,

which is as under :-

“I am residing at the aforesaid address. I know

Sadaqat Ali, today present in the court. He resides

2277-78, Rodgram, Lal Kuan, Delhi. He is a builder

by profession and construct houses. My friend

informed me that Sadaqat Ali who is a builder by

profession is assisting the terrorists operating in Sri

Nagar to escape from Delhi. He is also having a

house in Okhla, Delhi. One Asfaq used to reside in

his house at Okhla. I had never seen Asfaq till date.

I was informed that Sadaqat Ali had taken Rs. Four

lacs for making escape good for the terrorist by bus.


: 331 :

I had made a complaint in this regard to the

Commissioner of Police and Home Minister, Govt.

of India. I have seen my complaint Ex. PW-57/A. It

does not bears my signature however the complaint

is mine. In June 2001, a police officer came to me

and enquired about the complaint. I informed him

about the complaint. I know Babbar Mohsin and

accd., with cap on his head who is Asfaq. I know

both of them as they used to visit the house of

Sadaqat Ali. I know both of these accd., only by face

and not by their names.”

444. PW-225 Mohd. Ahmad has admitted that a complaint Ex.

PW-57/A was made by him, when he came to know that

accused Sadakat Ali was helping terrorist to escape from Delhi

to Sri Nagar. He conceded in the cross-examination that he is

illiterate and had made the complaint in the month of March

2001 and does not know as to why the date of 15.05.2001 is

written on the complaint. He insisted that he had made the

complaint to the police in March 2001 and he had copy of the

same. Considering the nature of the case, it cannot be said that

he contacted the police belatedly and as such his statement

cannot be relied upon.

445. The witness claims that he is an illiterate person and got the


: 332 :

complaint drafted from some one else. In these circumstances,

it cannot be said that the complaint is vague and the level of the

literacy is reflected in the language of the complaint also. As

far as the submission that accused Babar Mohsin and Asfaq

were not named in the complaint, is concerned, the witness has

deposed that he know them by face only as they used to visit

the house of Sadakat Ali. The witness has identified the two

accused in the witness-box and has clearly admitted that he

came to know about their names only today, though he

recognize them by the face as they used to meet accused

Sadakat Ali. In these circumstances, it is of no consequence

that these two accused were not named in the complaint or the

statement made before the police.

446. It is also submitted that PW-225 Mohd. Ahmad is a police

informer and is having litigation with accused Sadakat Ali.

However, this witness had clearly admitted in the complaint

Ex. PW-57/A that he is a police informer. It is no offence to be

a police informer and this alone is not sufficient to diminish the

evidentiary value of his statement. As far as litigation is

concerned, this witness is quite categorical that accused


: 333 :

Sadaqat Ali started harassing him after he came to know that he

(Md. Ahmad) had made complaint against him. Before this

complaint, there were no litigation between the two and the

entire litigation started only thereafter. The witness has denied

that he ever appeared as a witness in any case. He deposed

that first case was registered by him against Sadakat Ali on

05.09.2001 after he was assaulted by him on 19.03.2001 after

he gave the complaint about his involvement in the Red Fort

Shoot-out. The witness has denied the suggestion that he

deposed at the instance of the IO Ins. Surender Kumar Sund.

447. In these circumstances, when the witness is quite categorical

about having seen accused Md. Arif @ Ashfaq , Babar Mohsin

and Sadakat Ali together, I do not find any reason to reject his

testimony by taking recourse to some minor defects and

deficiencies in his statement. I, accordingly, find his statement

to be reasonable and reliable.

448. Considering the fact that letter Ex. PW-10/C was written by

Md. Arif @ Ashfaq to Babar Mohsin, when the conspiracy

was on foot and he was repeatedly seen meeting Sadakat Ali

along with Md. Arif @ Ashfaq and these meetings cannot be


: 334 :

explained away as innocuous or inadvertent as apparently there

is no relationship between the three accused, which could

facilitate their meetings together, it is safe to conclude that

accused Babar Mohsin knew that Md. Arif @ Ashfaq was a

Pak National, and a member of Lashkar-e-Toiba, who had

entered India illegally with a view to commit militant activities

in India and for whose apprehension, orders have been issued.

As such, he provided shelter to accused Ashfaq as well as

concealed the designs to commit offences punishable with

death or life imprisonment.

449. Now I shall take up the case of accused Sadakat Ali. It is

alleged against him that he is owner of premises no. 18-C,

Gaffar Nagar, Okhla, Delhi and rented out the same to Md. Arif

@ Ashfaq apparently for running a computer center under the

name and style of “ Knowledge Plus” but infact for setting a

base for Lashkar-e-Toiba. Telephone no. 3216574 is installed

at his residence and he used to be in constant touch with Md.

Arif @ Ashfaq . He was repeatedly seen in the company of

Md. Arif @ Ashfaq and Babar Mohsin. It is alleged that he

was party to the conspiracy with Md. Arif @ Ashfaq and his


: 335 :

associates to set up a base at Delhi for Lashkar-e-Toiba and to

cause the death of anyone who come to resist their action of

waging war against the Government of India. He intentionally

sheltered a foreigner (Md. Arif @ Ashfaq ) in his house and

did not inform police about this and as such committed

offences u/s 188 IPC as well as u/s 14 of the Foreigner's Act.

450. I have already held that there was conspiracy to wage war

against the Government of India as well as further conspiracies

to commit the murder of those who come in the way to resist

the action of the accused as well as to forge documents for

providing Indian identity to accused Md. Arif @ Ashfaq . Now

the question is : Whether accused Sadakat Ali was party to the

conspiracy to kill those who come to resists the action of Md.

Arif @ Ashfaq and his associates in waging war against

Government of India ? Whether he intentionally let out his

premises to Md. Arif @ Ashfaq for setting up a base and did

not inform the police ? Whether he sheltered Md. Arif @

Ashfaq (a Pak national) knowing his purpose ? Whether he

concealed design of Md. Arif @ Ashfaq to commit terrorist

acts punishable with with death or life imprisonment.


: 336 :


that accused Sadakat Ali was not party to the conspiracy and he

had let out his premises No. 18-C, Gaffur Nagar, Okhla to

Faisal and not to Md. Arif @ Ashfaq . In this regard, my

attention has been invited to Question no. 85 of statement of

accused Sadakat Ali recorded u/s 313 Cr.P.C. It has repeatedly

been submitted that mere letting out of the aforesaid premises

by Sadakat Ali does not make him party to the conspiracy. He

does not know accused Babar Mohsin. The accused was not in

telephonic contact with accused Md. Arif @ Ashfaq . As

already referred to above, it is repeatedly submitted that PW-

225 Md. Ahmad is a procured witness and Investigating Officer

has created false evidence against him. The accused has

already been punished for not informing the police regarding

letting out his house No. 18-C, Gaffur Nagar, Okhla.

452. It is the admitted case of accused Sadakat Ali that premises

No. 18-C, Gaffur Nagar, belongs to him. Accused Md. Arif @

Ashfaq has also admitted that he had opened a computer center

with Faisal Mohd. Khan at the aforesaid address. Both of these

accused claim that the aforesaid premises was taken on rent by


: 337 :

Faisal Mohd. Khan. However, Faisal Mohd. Khan appeared as

PW-56 in the witness-box and deposed that premises was taken

on rent by Md. Arif @ Ashfaq . This witness has been cross-

examined by Sh. R.M. Tufail, learned defence counsel only for

accused Md. Arif @ Ashfaq and there is no cross-examination

for accused Sadakat Ali, though it was suggested to him that

the premises was taken on rent by him and not by Md. Arif @

Ashfaq . As such his testimony has gone unchallenged as far

as accused Sadakat Ali is concerned. I have carefully read his

statement again and again and I do not find anything therein

which could suggest that the premises was taken by him on

rent. He has admitted that there was no written agreement

between him and Md. Arif @ Ashfaq , nor had he seen any

rent deed signed by Md. Arif @ Ashfaq . His evidence clearly

indicates that the premises was let out by accused Sadakat Ali

to Md. Arif @ Ashfaq . Even otherwise, the ratio of

investment made by the two in the computer center also

suggest that the premises was taken on rent by Md. Arif @

Ashfaq as he was a dominant partner. Further more, it was

accused Md. Arif @ Ashfaq who told Faisal that he wanted to


: 338 :

open a computer center and later joined him as a partner.

453. The subsequent conduct of Faisal Mohd. Khan and accused

Sadakat Ali also indicate that the premises was let out to Md.

Arif @ Ashfaq . PW-56 Faisal Mohd. Khan deposed that he

heard about the incident in his village and became perturbed

and this was quite natural. On the contrary, there is no

evidence that accused Sadakat Ali contacted the authorities on

coming to know that his tenant or his partner (Md. Arif @

Ashfaq ) was involved in such a grave incident. Accused

Sadakat Ali is totally silent in his statement recorded u/s 313

Cr.P.C about his conduct and behaviour after the incident and

the fact that his tenant was involved in the incident. In such a

situation, a normal citizen would have immediately contacted

the authorities but there is no such claim on the part of

accused Sadakat Ali. This shows his guilty intention. Not

only this he resisted the police action and could be arrested

only on 22.12.2001, when warrants were issued against him by

the court. Had he been innocent, he would have approached

the police at the very moment, it became known that his tenant

or his partner, as claimed by him, was involved in the incident.


: 339 :

454. I have already held that PW-225 Sh. Md. Ahmad has

deposed that he had seen accused Md. Arif @ Ashfaq and

Babar Mohsin visiting his (Sadakat Ali) house and his

statement is reliable. There is no evidence that Sadakat Ali and

Babar Mohsin are known to each other and their meetings can

be explained in any other manner. Apparently seen, visits by a

tenant to the house of his landlord do not indicate anything

wrong and it can be a normal activity. But here, when seen in

the background of the facts, circumstances and evidence

referred to above, it does not indicate that it was in the ordinary

course of human activity. The meetings of the three accused,

who are apparently unknown to each other indicate that

Sadakat Ali also knew that Md. Arif @ Ashfaq was a Pak

national who entered India illegally to commit offences

punishable with death or life imprisonment and he concealed

this from authorities. This fact is further strengthened by the

record of their telephonic conversation. Telephone no.

3216574 is installed at his (Sadakat Ali) residence and mobile

no. 9811242154 has already been held to be that of Md. Arif @

Ashfaq . Ex. 198/E, telephone call detail, placed on record by


: 340 :

PW-198 Sh. Rajiv Pandit, indicate that he had spoken to Md.

Arif @ Ashfaq for fourteen times. As per Sadakat Ali, he had

let out his premises no. 18-C, Gaffur Nagar, Okhla, Delhi to

Faisal Mohd. Khan. In such a situation, there was no need for

him to be in telephonic contact with his partner or for the

partner to visit the house of the landlord so frequently as

claimed by PW-225 Md. Ahmad.

455. Conspiracy is hatched in privacy and is executed in darkness

and there could be no direct evidence regarding conspiracy and

it has to be inferred only from the facts and circumstances of

the case. In this regard, I would like to quote paragraphs 20,

21 and 22 of “Devender Pal Singh (Supra)” as under :-

“20. As noted above, the essential ingredient of the

offence of criminal conspiracy is the agreement to commit

an offence. In case where the agreement is for

accomplishment of an act which by itself constitutes an

offence, then in that event no overt act is necessary to be

proved by the prosecution because in such a situation

criminal conspiracy is established by proving such an

agreement. Where the conspiracy alleged is with regard to

commission of serious crime of the nature as contemplated

in Sec. 120-B read with the proviso to sub-section (2) of

Section 120A-, then in that even mere proof an agreement


: 341 :

between the accused for commission of such a crime alone

is enough to bring about a conviction under Section 120-B

and the proof of any overt act by the accused or by any one

of them would not be necessary. The provisions, in such a

situation, do not require that each and every person who is a

party to the conspiracy must do some overt act towards the

fulfillment of the object of conspiracy, the essential

ingredient being an agreement between the conspirators to

commit the crime and if these requirements and ingredients

are established, the act would fill within the trapping of the

provisions contained in Section 120-B. (See : S.C. Bahri

Vs. State of Bihar AIR 1994 SC 2420).”

“21. The conspiracies are not hatched in open, by their

nature, they are secretly planned, they can be proved even

by circumstantial evidence, the lack of direct evidence

relating to conspiracy has no consequence. (See : E.K.

Chandrasenan Vs. State of Kerala AIR 1995 SC 1066) “

22. In Kehar Singh and Ors. Vs. State (Delhi

Admn.) AIR 1988 SC 1883 at page 1954, this court

observed : -

“.....Generally, a conspiracy is hatched in secrecy

and it may be difficult to adduce direct evidence of

the same. The prosecution will often rely on

evidence of acts of various parties to infer that they

were done in reference to their common intention.


: 342 :

The prosecution will also more often rely upon

circumstantial evidence. The conspiracy can be

undoubtedly proved by such evidence direct or

circumstantial. But the Court must enquire whether

the two persons are independently pursuing the

same end or they have come together to the pursuit

of the unlawful object. The former does not render

them conspirators, but the latter does. It is,

however, essential that the offence of conspiracy

required some kind of physical manifestation of

agreement. The express agreement, however, need

not be proved. Nor actual meeting of the two

persons is necessary. Nor it is necessary to prove

the actual words of communication. The evidence

as to transmission of thoughts sharing the unlawful

design may be sufficient. Conspiracy can be

proved by circumstances and other materials. (See

: State of Bihar Vs. Paramhans 1986 Pat LJR

688). To establish a charge of conspiracy

knowledge about indulgence in either an illegal act

or a legal act by illegal means is necessary. In

some cases, intent of unlawful use being made of

the goods or services in question may be inferred

from the knowledge itself. This apart, the

prosecution has not to establish that a particular

unlawful use was intended, so long as the goods or

service in question could not be put to any lawful

use. Finally, when the ultimate offence consists of

a chain of actions, it would not be necessary for the


: 343 :

prosecution to establish, to bring home the charge

of conspiracy, that each of the conspirators had the

knowledge of what the collaborator would do so, so

long as it is known that the collaborator would put

the goods or service to an unlawful use. (See : State

of Maharashtra Vs. Som Nath Thapa ( 1996

Cr.LJ 2448 at p. 2453 (SC).”

456. A contention was also raised that Rehmana Yusuf Farukhi

is wife of accused Md. Arif @ Ashfaq and as such she cannot

be held guilty for harbouring him. However, her marriage, if it

actually took place at all, took place on 8.12.2000, but she

harboured him much before the date and as such the protection

of exception to Section 216 IPC is not available to her.

457. On the basis of the articles recovered, telephonic contacts,

meetings and letter referred to above, it has been strongly urged

by the learned Special Public Prosecutor that the three accused

Sadakat Ali, Babar Mohsin and Rehmana Yusuf Farukhi, not

merely harboured Md. Arif @ Ashfaq a Lashkar-e-Toiba

militant and concealed his designs, but actively participated in

the conspiracy u/s 120-B IPC. However, a careful analysis of

these facts do not suggest that three accused were in agreement

with him to commit crimes of murder etc. There is no physical


: 344 :

manifestation of such an agreement. The willingness of the

three accused to harbour him is fully manifested. Accused Md.

Arif @ Ashfaq wrote letter Ex. PW-10/C to accused Babar

Mohsin and on the basis of the letter, he is presumed to know

his reality. Babar Mohsin and Md. Arif @ Ashfaq used to

meet Sadakat Ali, as such Sadakat Ali is also presumed to

know the reality of Md. Arif @ Ashfaq. Diary with Pakistan

numbers, visa form of Pakistan and other articles were

recovered from the house of Rehmana Yusuf Farukhi and

these indicate that she also knew his reality. As such, the three

accused can be held to be having knowledge of his reality as a

Pak national and Lashkar-e-Toiba militant, but cannot be held

to share and agree with his designs.

458. As per the order mark 230/D9 dated 14.08.2000, Delhi

police had ordered to apprehend the militants belonging to

Lashkar-e-Toiba as they might attack important targets

including Red Fort. I take judicial notice of this official order.

459.I, accordingly, hold that accused Sadakat Ali, Babar Mohsin

and Rehmana Yusuf Farukhi provided shelter to accused Md.

Arif @ Ashfaq in Delhi at 308-A, DDA Flat, Gazhipur, Delhi


: 345 :

and at house no. 18-C, Gaffur Nagar, Okhla, Delhi and

concealed his designs from the authorities. However, the

evidence is difficient to hold that accused Rehmana Yusuf

Farukhi, Sadakat Ali and Babar Mohsin were party to

conspiracy to commit murder of those, who come in the way of

Md. Arif @ Ashfaq and his associates in waging war against

Government of India.

460. Now the question is : Whether the three accused can be held

guilty u/s 118 IPC without a formal charge ? All the three

accused stand charged u/s 120-B IPC along with other accused.

The contents of charge u/s 120-B IPC are almost same as are

required for Section 118 IPC and the accused are aware of the

case to be answered by them. In fact u/s 120-B IPC, they

stand charged with a much graver office. As such when a

higher offence is not proved, but a lesser offence is proved,

accused can be convicted for the lesser offence without any

formal charge. The essence of the crime u/s 118 IPC consists

in the facility given by concealment to the offender for the

commission of the crime. Here, the accused facilitated the

commission of crime of murder of three army personnels by


: 346 :

concealment and by non-disclosure of criminal designs of

accused Md. Arif @ Ashfaq and his co-accused. The accused,

as men of public, were under obligation to disclose the designs

of accused Md. Arif @ Ashfaq. As such the accused Sadakat

Ali, Babar Mohsin and Rehmana Yusuf Farukhi have

committed the lesser offence punishable u/s 118 IPC.

461. In this regard, I am fortified by an authority reported as

“K. Prema S. Rao and Anr. Vs. Yadla Srinivasa Rao and

Ors.” 2002 VIII AD (S.C.) 15, Criminal Appeal No. 1457 of

1995”, wherein while dealing with a similar question, Hon'ble

Supreme Court observed as under :-

“As provided in Section 215 of Cr. P.C. Omission to

frame charge under Section 306 IPC has not resulted

in any failure of justice. We find no necessity to

remit the matter tot he trial court for framing charge

under Section 306 IPC and direct a retrial for that

charge. The accused cannot legitimately complain of

any want of opportunity to defend the charge under

section 306, IPC and a consequent failure of justice.

The same facts found in evidence, which justify

conviction of the appellant under Section 498A for

cruel treatment of his wife, make out a case against

him under Section 306 IPC of having abetted


: 347 :

commission of suicide by the wife. The appellant

was charged for an offence of higher degree causing

“dowry death” under Section 304B which is

punishable with minimum sentence of seven years

rigorous imprisonment and maximum for life.

Presumption under Section 113A of the Evidence

Act could also be raised against him on same facts

constituting offence of cruelty under Section 498A

IPC. No further opportunity of defence is required to

be granted to the appellant when he had ample

opportunity to meet the charge under Section 498A

IPC.”

462. Accused Sadakat Ali also did not inform the authorities

about keeping a foreigner in his house. Now the question is :

Whether he had informed the police about letting out his

premises No. 18-C, Gaffur Nagar, Okhla, Delhi. It is argued

for accused Sadakat Ali that for not informing the police, he

has already been convicted and sentenced vide order dated

10.07.2001 in FIR No. 13/2001, Police Station New Friends

Colony u/s 188 IPC. He has also placed a copy of FIR on

record. However, I find that this is contrary to record. In that

case, the premises let out was A-18, Gaffur Nagar, Okhla but

the premises in question is 18-C, Gaffur Nagar, Okhla. The


: 348 :

accused has as such tried to mislead the court by citing a court

order which was applicable to a different premises. It is not

his case that both the premises are one and same. I,

accordingly, hold that accused did not inform the police about

letting out his house to Md. Arif @ Ashfaq . He has, as such,

violated the notification Ex. PW-73/A issued by the

Commissioner of Police, Delhi and Ex. PW-230/U6 issused by


463. Now, I shall take up the case of accused Md. Arif @

Ashfaq , Devender Singh, Rajiv Malhotra and Shahanshah

Alam regarding procuring a fake driving licence. The

allegations against these accused are that Md. Arif @ Ashfaq

wanted to obtain a fake driving licence and for that he obtained

driving training at Seven Star Motor Driving College, Sarai

Jullena, Delhi, where accused Devender Singh was manager

and paid him Rs. 2,000/- for procuring him a fake driving

licence. Accused Devender Singh contacted his cousin accused

Rajiv Malhotra, who runs Star Motor Driving College at

Ghaziabad, for this purpose and paid him Rs. 900/- and also

gave him photograph and particulars of Md. Arif @ Ashfaq .


: 349 :

Accused Rajiv Malhotra contacted accused Shahanshah Alam,

who was an employee of Akash Deep Motor Driving College at

Ghaziabad for obtaining forged driving licence for Md. Arif @

Ashfaq and also paid him Rs. 600/- along with photograph and

particulars of Md. Arif @ Ashfaq . It is alleged that all the

four accused were in conspiracy to commit the murder of all

those who resist the action of Md. Arif @ Ashfaq and his

associates in waging war against the Government of India and

also to forge a driving licence for accused Md. Arif @ Ashfaq .

464. It is submitted for accused Md. Arif @ Ashfaq by Sh. R.M.

Tufail, learned defence counsel, that licence has been obtained

in a legal manner from Ghaziabad Transport Authority, as

such the accused has not committed any offence. In this

regard, he has invited my attention to the evidence of PW-16

Smt. Mamta Sharma (Asstt. Regional Transport Officer,

Ghaziabad), who deposed that she had passed the aforesaid

driving licence. For accused Devender and Shahanshah Alam,

it has been submitted by Sh. Anil Aggarwal that they were not

party to any conspiracy with accused Md. Arif @ Ashfaq

either to wage war against the Government of India or to


: 350 :

commit murder of anyone who came forward to resist their

action or to forge documents for providing Indian identity to

accused Md. Arif @ Ashfaq by procuring a forged driving

licence. It is submitted that there is no evidence against the

two accused suggesting that they either obtained money from

him or forged any document or helped him otherwise in

procuring a forged driving licence. Similar submissions have

been made for accused Rajiv Malhotra, by Sh. P.R. Aggarwal,

learned defence counsel.


“Whoever, by deceiving any person, fraudulently or

dishonestly induces the person so deceived to deliver

any property to any person, or to consent that any

person shall retain any property, or intentionally

induces the person so deceived to do or omit to do

anything which he would not do or omit if he were

not so deceived, and which act of omission causes or

is likely to cause damage or harm to that person in

body, mind, reputation or property, is said to

“cheat”.

Explanation : A dishonest concealment of facts is a

deception within the meaning of this Section.

466.Section 420 IPC lays down as under :-


: 351 :

“Whoever cheats and thereby dishonestly induces the

person deceived to deliver any property to any

person, or to make, alter or destroy the whole or any

part of a valuable security, or anything which is

signed or sealed, and which is capable of being

converted into a valuable security, shall be punished

with imprisonment of either description for a term

which may extend to seven years, and shall also be

liable to fine.”


“Forgery---- Whoever makes any false documents or

false electronic record or part of a document or

electronic record, with intent to cause damage or

injury to the public or to any person, or to support

any claim or title, or to cause any person to part with

property, or to enter into any express or implied

contract, or with intent to commit fraud or that fraud

may be committed, commits forgery.”


“Whoever commits forgery, intending that the

document forged shall be used for the purpose of

cheating, shall be punished with imprisonment or

either description for a term which may extend to

seven years, and shall also liable to fine.”



: 352 :

“Whoever fraudulently or dishonestly uses as

genuine any document which he knows or has reason

to believe to be a forged document, shall be punished

in the same manner as if he had forged such

document.”


“Whoever has in his possession any document,

knowing the same to be forged, and intending that

the same shall fraudulently or dishonestly be used as

genuine, shall, if the document is one of the

description mentioned in Section 466 of this Code,

be punished with imprisonment of either description

for a term which may extend to seven years, and

shall also be liable to fine ; and if the document is

one of the description mentioned in Section 467,

shall be punished with imprisonment for life, or with

imprisonment of either description, for a term which

may extend to seven years, and shall also be liable to

fine.”

471. The first question that has to be answered is : Whether

accused Devender Singh, Rajiv Malhotra and Shahanshah

Alam were part of the conspiracy u/s 120-B IPC to commit

murder of those who came to resist the action of accused Md.

Arif @ Ashfaq and his associates ?


: 353 :

472. PW-181 Sh. Moti Lal has deposed that he had trained

accused Md. Arif @ Ashfaq at Seven Star Motor Driving

College, where accused Devender Singh was manager. PW-

210 Sh. Sushil Malhotra has also deposed that Devender Singh

was his manager at Seven Star Motor Driving College. He

also deposed that Rajiv Malhotra, his cousin, runs Star Motor

Driving College, at Ghaziabad. PW-28 Sh. Abhinender Jain

has deposed that Book Ex. PW-28/H was seized from Seven

Star Motor Driving, on which page Ex. PW-28/I shows that

Ashfaq Ahmad Khan @ Md. Arif @ Ashfaq had obtained

training from the aforesaid college. PW-216 Dr. M.A. Ali has

also deposed that this handwriting is in the handwriting of

accused Devender Singh. Now the question is : Whether

merely by giving training to Md. Arif @ Ashfaq , accused

Devender Singh has become a party to the criminal conspiracy

? In the training college, accused Md. Arif @ Ashfaq had

given his name and address as Ashfaq Ahmad Khan s/o Akram

Khan r/o A-18, Gaffur Nagar, Okhla, New Delhi, with mobile

no. 9810263721.

473. PW-29 Sh. Naresh Kumar has deposed that Star Motor


: 354 :

Driving College in Ghaziabad is registered in the name of Rajiv

Malhotra and he has also admitted this in his statement

recorded u/s 313 Cr.P.C vide question No. 52.

474. Accused Shahanshah Alam has also admitted that he was an

employee of Akashdeep Motor Driving College, which has

been corroborated by Ex. PW-18/A, list of colleges and their

employees, wherein he has been shown as an ex-employee.

475. Prosecution has examined PW-5 Sh. Pradeep Kumar

Srivastava, Junior clerk, ARTO Ghaziabad, PW-16 Smt.

Mamta Sharma ARTO Ghaziabad, PW-17 Mahesh Kumar

Trivedi junior Clerk of RTO Office, Ghaziabad and PW-90

Hazarul Hassan, ARI Technical, ARTO Ghaziabad. All these

officials have deposed that the driving licence Ex. PW-13/A of

Md. Arif @ Ashfaq was issued from their Authority under the

signature of PW-16 Smt. Mamta Sharma.

476. Prosecution has also examined PW-71 Sh. Mahender

Kumar, PW-72 Sh. Chand Ali, PW-207 Sh. Satish Garg, PW-

215 Sh. Yogesh Tyagi. However, all these witnsses have not

supported the prosecution version against accused Shahanshah

Alam.


: 355 :

477. PW-230 Ins. Surender Kumar Sund, PW-169 SI Sunil

Kumar and PW-227 SI Amardeep Sehgal visited the Star

Motor Driving College and house no-184 Gulzare Ibrahim,

Khatta Road, Meerut, residence of accused Shahanshah Alam,

and seized some forms Ex. PW-169/A to D-3 from the two

places which were of similar type as were used in preparing the

driving licence of Md. Arif @ Ashfaq . Similarly, PW-230 Ins.

Surender Kumar Sund also seized the forms used in the

preparation of driving licences of Chand, Mahender and Kallu

from the Ghaziabad Transport Authority in the presence of

PW-5 Sh. Pradeep Kumar Srivastava and PW-17 Mahesh

Kumar Trivedi on the ground that handwriting in these forms

was similar to the one used in the preparation of the driving

licence of Md. Arif @ Ashfaq . Handwriting opinion of PW-

216 Dr. M.A. Ali was also obtained regarding this, who opined

that some handwriting in the forms of Md. Arif @ Ashfaq ,

Chand, Mahender and Kallu was similar.

478. Md. Arif @ Ashfaq has obtained the aforesaid driving

licence on the basis of a learning licence Ex. PW-13/C issued

from Sarai Kale Khan Transport Authority, Delhi with address


: 356 :

B-17, Jungpura, Delhi. As per PW-6 Sh. Narain Singh, UDC

of Sarai Kale Khan Transport Authority, this licence was never

issued from the aforesaid authority and as per PW-52 Sh. Ajit

Singh, Md. Arif @ Ashfaq never resided at B-17, Jungpura,

Delhi. In proving his residential status of Ghaziabad, Md. Arif

@ Ashfaq had used photocopy of ration card Ex. PW-13/E

issued at the address of 102, Kela Bhatta, Ghaziabad.

However, as per PW-1 Sh. Azad Khalid, resident of 102, Kela

Bhatta, Ghazibad, Md. Arif @ Ashfaq never resided there and

as per PW-2 Sh. Yashpal Rana and PW-3 Sh. Rajbir Singh both

officials of Food & Supply Department, Ghaziabad, no ration

card was issued in his name at the aforesaid address.

479. Now the question is : Who forged these two documents i.e.

Learning licence Ex. PW-13/C and the ration card Ex. PW-

13/E ? In this regard, there is no evidence on the file, which

could connect any of the accused with this forgery and the only

presumption is that these documents were forged and used by

Md. Arif @ Ashfaq alone as the two were used for his benefit

only.

480. The only evidence available against accused Devender


: 357 :

Singh is that he was manager at Seven Star Motor Driving

College and instructed PW-181 Sh. Moti Lal, an employee of

the college, to give driving training to accused Md. Arif @

Ashfaq . The only evidence available against accused Rajiv

Malhotra is that from his college, forms similar to one used in

the preparation of the driving licence in the name of accused

Md. Arif @ Ashfaq at Sarai Kale Khan Transport Authority,

were recovered.

481. The evidence available against accused Shahanshah Alam is

that he was an employee of Akashdeep Motor Driving College

and used to look after the work of said college. PW-94 Col.

Nirmal Singh, owner of Akashdeeep Motor Driving College,

has deposed in this regard. The other evidence available

against accused Shahanshah Alam is that the form Ex. PW-

13/D of Md. Arif @ Ashfaq, was bearing a stamp of

Akashdeep Motor Driving College and he tore away the

portion of the form where stamp was affixed.

482. Now the questions are : Whether the driving licence of

accused Md. Arif @ Ashfaq was got issued by accused

Shahanshah Alam ? Whether accused Devender Singh, Rajiv


: 358 :

Malhotra and Shahanshah Alam are connected with each other

so as to make them party to the conspiracy to forge a driving

licence and to kill those who resists the action of Md. Arif @

Ashfaq and his associates ? Whether the driving licence was

used by Md. Arif @ Ashfaq knowing the same to be forged

one ?

483. It is in evidence that licence Ex. PW-13/A of accused Md.

Arif @ Ashfaq was passed by PW-16 Mamta Sharma on the

basis of a learning licence Ex. PW-13/D shown to be issued by

Sarai Kale Khan Authority and on the basis of ration card Ex.

PW-13/E issued at 102, Kela Bhatta, Ghaziabad. However,

the only evidence against accused Devender is that accused

Md. Arif @ Ashfaq obtained training at Star Motor Driving

college, where he was manager. There is no other evidence on

record against him and on the basis of that piece of evidence

only no inference can be drawn against him. Similarly, the

only evidence against accused Rajiv Malhotra is that he is

running Star Motor Driving college at Ghaziabad and some

forms similar to the forms used in the issuance of driving

licence of Md. Arif @ Ashfaq were seized from his driving


: 359 :

college. From this piece of evidence also, no adverse

inference can be drawn against him. As far as accused

Shahanshah Alam is concerned, there is not much evidence

against him also. The only evidence available against him is

that he was an employee of Akashdeep Motor driving College.

As per PW-194 Col. Nirmal Singh Sirohi, owner of Akashdeep

Motor driving college, there were other employees with

accused Shahanshah Alam. Similarly, PW-16 Smt. Mamta

Sharma has also deposed that many officials of Akashdeep

Motor driving college used to attend the ARTO for the work of

the driving college. PW-90 Hazarul Hassan, Inspector of the

authority, who passed the driving licence of Chand, Mahender,

Rajender, referred to by Akashdeep Motor driving College and

the handwriting of these forms is similar to the handwriting

used in the form of Md. Arif @ Ashfaq, has also deposed that

there were several employees of Akashdeep Motor Driving

college and Shahanshah was one of them and he used to attend

the office of Transport Authority. Similarly, PW-17 Mahesh

Kumar Trivedi is also not sure as to who tore away the portion

of Ex. PW-13/B, form of Md. Arif @ Ashfaq for issuing


: 360 :

permanent driving licence, where the stamp of Akashdeep

motor driving college was affixed, though, he claimed that

Shahanshah might have torn it, but he is not sure. As such, all

the four officials are not sure about the role of Shahanshah

Alam as more than one employee used to visit the office of

Transport Authority for licencing work. Similary, PW-216 Dr.

M.A. Ali has deposed that handwriting on the form of Md. Arif

@ Ashfaq and that of Chand, Mahender and Rajender is

similar, but that fact itself is not sufficient to connect accused

Shahanshah Alam with the crime. The evidence against him is

not clinching as PW-16 Mamta Sharma and PW-90 Hazarul

Hassan, the two main witnesses, are not convincing in their

statements against him.

484. However, it is the admitted case of accused Md. Arif @

Ashfaq that he obtained the driving licence Ex. PW-13/A from

Ghaziabad Transport Authority, but the documents and the

addresses furnished by him for obtaining the driving licence

have been found to be forged and fabricated. He was not

entitled to be issued a driving licence on the basis of those

documents. As such he in conspiracy with unknown persons,


: 361 :

induced and cheated the Transport Authority into issuing a

driving licence to him.

485. Now I shall take up the case of Md. Arif @ Ashfaq ,

Matloob Alam and Mool Chand Sharma. The allegations

against them are that accused Matloob Alam used to run a Fair

Price Shop under the name and style of Matloob Store at Okhla

and accused Mool Chand Sharma was Food Inspector of the

area. Both of these accused joined conspiracy with accused

Md. Arif @ Ashfaq in killing of those who would resist the

action of Md. Arif @ Ashfaq and his associates and also

conspired with him to forge a ration card in his name and in

pursuance to the conspiracy, they forged a ration card Ex. PW-

164/A with address, 17/12, Okhla, Delhi.


for accused Md. Arif @ Ashfaq that he had obtained the ration

card from office and the same is not forged one. For accused

Matloob Alam, it is submitted that ration card was not forged

by him, but was issued by the officials of Food & Supply

Office and the handwriting report of PW-216 Dr. M. A. Ali is

also not reliable as the same were prepared at the instance of


: 362 :

the police. PW-174 Sh. Kushal Kumar is a procured witness

as he himself was an accused and no reliance can be placed on

his testimony. It is repeatedly emphasized by Sh. Anil

Aggarwal that accused Matloob had no role to play in the

preparation of the said ration card. Similar submissions have

been made by Sh. D.K. Sharma, learned defence counsel for

Mool Chand Sharma. He has submitted that there is no

evidence against accused Mool Chand Sharma and PW-174 Sh.

Kushal Kumar is a tainted witness as his name figures as an

accused in charge sheet.

487. Ration card Ex.PW-164/A has been issued in the name of

accused Md. Arif @ Ashfaq at address F-17/12, Batla House,

Jagabai. As per PW-65 Malik Irfan Chaudhary, Md. Arif @

Ashfaq never resided there. Now the question is : Whether

accused Matloob Alam and accused Mool Chand Sharma were

in conspiracy with accused Md. Arif @ Ashfaq in forging the

ration card ? Whether accused Matloob used to cheat general

public, particularly those referred to in the charge of FIR no.

65/01, Police Station New Friends Colony, for procuring them

ration card ?


: 363 :

488. Prosecution has examined PW-7 Sh. S.R. Raghav, Food &

Supply Officer, Okhla, PW-164 Ms. Anju Goel, UDC of the

aforesaid office, PW-165 Sh. Dharambir Sharma, Food &

Supply Officer, PW-172 Sh. Manohar Lal, UDC of the

aforesaid office, PW-191 Ms. Sunita, UDC and PW-195

Rakesh Behari on the issuance of ration cards from the office

of Circle-6, Okhla. Similarly, PW-203 B.R. Joshi and PW-

151 Azmat Hussain have deposed that they obtained the ration

cards Exs. PW-203/A and PW-205/B through accused Matloob

Alam. PW-216 Dr. M.A. Ali has examined the specimen

handwriting of accused Mool Chand Sharma and Matloob as

well as the handwriting on the ration cards. PW-165

Dharamvir Sharma, Food & Supply Officer and PW-7 Sh. S.R.

Raghav have deposed that ration card Exs. PW-203/A and PW-

205/B of B.R. Joshi and Azmat Imam Khan were not issued

from their office. This clearly shows that accused Matloob

forged the ration card after obtaining money from the aforesaid

two persons Sh. B.R. Joshi and Sh. Azmat Imam Khan.

Similarly, PW-216 Dr. M.A. Ali has deposed that ration card

Ex. PW-164/A of accused Md. Arif @ Ashfaq is in the


: 364 :

handwriting of accused Matloob Alam. PW-145 Sh. Faiz

Ahmad Khan has also deposed that accused Md. Arif @

Ashfaq was introduced to accused Matloob by him. Similarly,

PW-174 Sh. Kushal Kumar has deposed that accused Matloob

did some cuttings and overwriting in his register after the case.

All the witnesses have been cross-examined in detail by the

learned defence counsel and there is nothing of any

significance which could discredit their version. The evidence

is natural, credible and reliable. All this evidence clearly

indicate that accused Matloob forged ration card Ex. PW-

164/A, consequent to conspiracy to give Md. Arif @ Ashfaq

an Indian identity. Similarly, accused Matloob cheated Sh.

B.R. Joshi and Sh. Azmat Imam Khan by forging their ration

cards Exs. PW-203/A and PW-205/B and committed forgery

for the purpose of cheating.

489. As far as the accused Mool Chand Sharma is concerned,

there is only one witness against him and he is PW-174 Kushal

Kumar. He deposed that when Md. Arif @ Ashfaq came to his

shop for getting the ration card registered, he told him that he

had been sent by accused Mool Chand and Matloob Alam. He


: 365 :

had informed Mool Chand about this and he admitted that he

had sent Md. Arif @ Ashfaq. When Matloob did overwriting

and cutting in his register, he had also informed Mool Chand

Sharma, but he took no action. However, it is also in evidence

that Kushal Kumar was also cited as an accused in the charge-

sheet, but was later on not charge sheeted. In the absence of

any other evidence i.e., any positive fact or circumstance on

record, I find it difficult to put reliance on the testimony of

PW-174 Kushal Kumar as far as accused Mool Chand Sharma

is concerned. No positive act is attributed to him. There is no

evidence worth the name to suggest that both accused Matloob

Alam and Mool Chand Sharma shared and agreed with the

conspiracy of Md. Arif @ Ashfaq to commit murder of those

who resisted his action. But it has been clearly established that

accused Matloob in conspiracy with accused Md. Arif @

Ashfaq committed forgery for the purpose of cheating and also

cheated Azmat Imam Khan and B.R. Joshi and also committed

forgery for the purpose of cheating by forging their ration

cards. Accused Mool Chand Sharma is charged with a certain

kind of a non-judicial confession and non-action by a witness,


: 366 :

who himself figured in the charge sheet, but was not ultimately

charge-sheeted and has been examined as a witness by the

prosecution. There is no evidence to connect him with any

type of conspiracy as the witness, who deposed against him, is

not credible. Other witnesses have not deposed a word against

accused Mool Chand Sharma.

490. In view of the above discussion, I hold that accused Md.

Arif @ Ashfaq entered India along with his associates (since

Proclaimed offenders or killed) in India in December 1999

from Pakistan and hatched a conspiracy with Nazir Ahmad

Qasid and Farukh Ahmad Qasid and other co-accused (since

P.O., or killed) to wage war against the Government of India

and also to kill anyone who came in their way to resist their

action and accordingly he set up bases in Delhi and procured a

driving licence by cheating Ghaziabad Transport Authority and

also forged a ration card in conspiracy with accused Matloob.

He set up his base at 308-A, DDA Flats, Gazhipur, 18-C,

Gaffur Nagar and G-73 Muradi Road, in which accused

Rehmana Yusuf Farukhi, Babar Mohsin and Sadakat Ali

actively helped him and concealed his designs of committing


: 367 :

offences punishable with death or imprisonment with life. I

also, hold that accused Md. Arif @ Ashfaq along with his co-

accused (since P.O., or killed) entered Red Fort on 22.12.2000

in pursuance to their conspiracy and attacked army camp of 7th

Rajputana Rifle and killed three army jawans namely Ashok

Kumar, Uma Shankar and Abdullah Thakur and thereafter

escaped from there. I also hold that at the time of apprehension

of Md. Arif @ Ashfaq , pistol Ex. PW-148/1 was recovered

from him and subsequently he also got recovered from his

hideout G-73, Muradi Road, where his co-accused Abu Shamal

was killed, one A.K.56 rifle and large number of cartridges

and two hand-grenades. On the same day, he also got

recovered one A.K.56 rifle and four hand-grenades and other

items from behind the Red Fort. I also hold that on 01.01.2001,

he also got recovered three hand-grenades from the area of

Jamia Milia University. Earlier on 23.12.2000, similar type of

A.K.56 rifle was recovered from Vijaya Ghat.

491. In view of the above discussion, I find that chain of events

has been established which connects aforesaid accused i.e. Md.

Arif @ Ashfaq , Nazir Ahmad Quasid and Farukh Ahmad


: 368 :

Quasid and this chain of events has been established on the

basis of facts and circumstances, which have been clearly

proved on the file beyond all reasonable doubt. Accused Md.

Arif @ Ashfaq and Matloob Alam stand connected in the

commission of forgery of ration card and accused Md. Arif @

Ashfaq stands connected with accused Rehmana Yusuf

Farukhi, Babar Mohsin and Sadakat Ali as they provided him

shelter and also concealed his designs.

492. I also hold that prosecution has been successful in proving its

case beyond reasonable doubt against accused Md. Arif @

Ashfaq @ Abu Hamad, Nazir Ahmad Quasid, Farukh Ahmad

Quasid, Rehmana Yusuf Farukhi, Sadakat Ali, Babar Mohsin

and Matloob Alam. However, prosecution has not been

successful in proving the charges against accused Devender

Singh, Rajiv Malhotra, Shahanshah Alam and Mool Chand

Sharma beyond reasonable doubt.

493. Moreover, there is no evidence that accused Babar Mohsin,

Rehmana Yusuf Farukhi, Sadakat Ali, Matloob Alam, Rajiv

Malhotra, Devender Singh, Shahahshah Alam and Mool Chand

Sharma were part of the conspiracy u/s 120-B IPC to commit


: 369 :

the murder of those who would resist the action of accused Md.

Arif @ Ashfaq and his associates in waging war against


494. Similarly, there is no evidence that accused Mool Chand

Sharma was part of the conspiracy to forge ration card of

accused Md. Arif @ Ashfaq .

495. Similary, there is no evidence that accused Devender Singh,

Rajiv Malhotra and Shahanshah Alam were party to the

conspiracy to forge driving licence of Md. Arif @ Ashfaq .

496. Similarly, there is no evidence that accused Farukh Ahmad

Quasid and Nazir Ahmad Quasid sheltered or harboured

accused Md. Arif @ Ashfaq at their house, not they can be

punished for the same as they themselves were the offenders.

Though it stands proved that they were in conspiracy with him.

497. I, accordingly, hold accused Md. Arif @ Ashfaq , Nazir

Ahmad Qasid and Farukh Ahmad Qasid guilty u/s 121-A IPC

for conspiracy to wage war against the Government of India

and u/s 120-B IPC for conspiracy to kill anyone who came in

their way to resist their action.

498. I, also hold accused Md. Arif @ Ashfaq , Nazir Ahmad


: 370 :

Qasid and Farukh Ahmad Qasid guilty u/s 121 IPC for waging

war against the Government of India.

499. I also hold accused Md. Arif @ Ashfaq guilty u/s 120-B r/w

302 IPC for committing the murder of Naik Ashok Kumar,

Uma Shankar and Abdullah Thakur inside Red Fort on

22.12.2000.

500. I also hold accused Md. Arif @ Ashfaq guilty u/s

186/353/120-B IPC for obstructing and assaulting public

servants Naik Ashok Kumar, Uma Shankar and Abdullah

Thakur, while on duty inside Red Fort on 22.12.2000.

501. I also hold accused Md. Arif @ Ashfaq guilty u/s 25 of the

Arms Act for possessing illegally a 9 mm pistol on 26.12.2000

at 308-A, DDA Flat, Gazhipur, Delhi.


Explosive Substances Act for possessing and keeping three

hand-grenades at Jamia Milia Islamia University for causing

danger to public life or property.


Foreigner's Act for entering India illegally.


: 371 :

504. I also hold accused Md. Arif @ Ashfaq guilty u/s 420 IPC

r/w 120-B IPC for cheating the Transport Authority Ghaziabad.

505. I also hold accused Md. Arif @ Ashfaq guilty u/s

468/471/474 IPC for committing forgery for the purpose of

cheating, using forged documents and keeping the same in his

possession.

506. I also hold accused Rehmana Yusuf Farukhi, Babar Mohsin

and Sadakat Ali guilty u/s 216 IPC and Section 118 IPC for

habouring Md. Arif @ Ashfaq and concealing his designs.

507. I also hold accused Sadakat Ali guilty u/s 14 of Foreigner's

Act for keeping a foreigner in his house at 18-C, Gaffur Nagar,

Okhla, Delhi, without information to the authorities.

508. I also hold accused Sadakat Ali guilty u/s 188 IPC for not

informing the police about letting out his house 18-C Gaffur

Nagar, Delhi to accused Md. Arif.

509. I also hold accused Matloob guilty u/s 468 IPC for

committing forgery for the purpose of cheating by forging the

ration card of accused Md. Arif @ Ashfaq .


: 372 :

510. I also hold accused Matloob Alam guilty u/s 420 IPC for

cheating Sh. B.R. Joshi and Azmat Imam Khan and also u/s

468 IPC for committing forgery for the purpose of cheating.

511. The accused are convicted accordingly.

512. I also acquit accused Mool Chand Sharma, Rajiv Malhotra,

Shahanshah Alam and Devender Singh of all the charges.

513. I also acquit accused Babar Mohsin, Rehmana Yusuf

Farukhi, Sadakat Ali and Matloob of the charges u/s 120-B IPC

regarding committing murder of those, who came in the way of

Md. Arif @ Ashfaq and his associates in waging war against


514. I also acquit accused Nazir Ahmad Qasid and Farukh Ahmad

Qasid u/s 216 IPC.

515. Accused Babar Mohsin and Matloob Alam are on bail.

Their bail bonds are cancelled and sureties are discharged and

they be taken into custody forthwith.

516. Bail bonds of accused Devender Singh, Rajiv Malhotra, and

Mool Chand Sharma are also cancelled and their sureties are

discharged.


: 373 :

517. Accused Shahanshah Alam, who is in custody, be set at

liberty at once, if not required to be detained in any other case.

518. Let the convicts be heard on the point of sentence.

Announced in open court (O.P. SAINI)on 24.10.2005 Addl. Sessions Judge : Delhi


: 374 :

IN THE COURT OF SH. O.P. SAINI : ASJ : DELHI

S.Cs. No. 01/05, 02/05, 05/05, 07/05, 08/05, 09/05, 10/05 &

11/05

State Vs.

1 Md. Arif @ Ashfaq @ Abu Hamad s/o Md. Akram

2 Rehmana Yusuf Farooqui d/o Nawab Mohammed

Yusuf Farooqui

3 Nazir Ahmad Qasid s/o Gulam Mohammad Qasid

4 Farooq Ahmad Qasid s/o Nazir Ahmad Qasid

5 Babar Mohsin Baghwala s/o Jaleel Ahmad

6 Matloob Alam s/o Mehboob Alam

7 Sadakat Ali s/o Abdul Ali

FIR No. 688/00P.S. KotwaliU/s 302/307/186/353/121/216/201 IPC

25/27/54/59 A. Act & 14 F. Act and4/5 Exp. Sub. Act & u/s 420/468/471/474/34 IPC


S.C. No. 4/05FIR No. 03/2001U/s 4/5 Explosive Substances Act



S.C. No. 3/05FIR No. 419/2001


: 375 :

U/s 25/54/59 Arms ActP.S. Kalyan Puri.

State Vs. Matloob Alam s/o Mehboob Alam

S.C. No. 6/05FIR No. 65/2001U/s 420/468/471/474/34 IPC


ORDER ON SENTENCE :-

31.10.2005

Pr.: Sh. Bakshish Singh, Ld. Spl. PP for the State with

IO Ins. Surender Sund.

Convicts Md. Arif @ Ashfaq @ Abu Hamad , Nazir

Ahmad Quasid, Farukh Ahmad Quasid, Rehmana Yusuf

Farukhi, Sadakat Ali, Babbar Mohsin and Matloob Alam in

judicial custody, with Sh. R.M. Tufail, Sh. Aman Lekhi, Sh. S.A.

Hasmi and Sh. Anil Aggarwal, Advocates.

1. Vide my separate judgment dated 24.10.2005, Md. Arif @

Ashfaq @ Abu Hamad, a Pak national, Nazir Ahmad Quasid,

Farukh Ahmad Quasid, Rehmana Yusuf Farukhi, Sadakat Ali,

Babbar Mohsin and Matloob Alam have been convicted for

various offences for the incident, which took place inside Red

Fort, Delhi, on 22.12.2000 at about 9.00 pm, in which three


: 376 :

Army personnels namely Uma Shankar, Ashok Kumar and

Abdullah Thakur lost their lives.

2. Convicts referred to above have been convicted as under :-

(i). Md. Arif @ Ashfaq , Nazir Ahmad Qasid and Farukh

Ahmad Qasid have been convicted u/s 121-A IPC for

conspiracy to wage war against the Government of India and

u/s 120-B IPC for conspiracy to kill anyone who came in their

way to resist their action.

(ii) Md. Arif @ Ashfaq, Nazir Ahmad Qasid and Farukh

Ahmad Qasid have also been convicted u/s 121 IPC for

waging war against the Government of India.

(iii) Md. Arif @ Ashfaq has also been convicted u/s 120-B

r/w 302 IPC for committing the murder of Naik Ashok Kumar,

Uma Shankar and Abdullah Thakur, inside Red Fort on

22.12.2000.

(iv) Md. Arif @ Ashfaq has also been convicted u/s

186/353/120-B IPC for obstructing and assaulting public

servants Naik Ashok Kumar, Uma Shankar and Abdullah

Thakur, while on duty inside Red Fort on 22.12.2000.

(v) Md. Arif @ Ashfaq has also been convicted u/s 25 of Arms


: 377 :

Act for possessing illegally a 9 mm pistol on 26.12.2000 at

308-A, DDA Flat, Gazhipur, Delhi.

(vi) Md. Arif @ Ashfaq has also been convicted u/s 4 of the

Explosive Substances Act for possessing and keeping three

hand-grenades at Jamia Milia Islamia University for causing

danger to public life or property.

(vii) Md. Arif @ Ashfaq has also been convicted u/s 14 of the

Foreigner's Act for entering India illegally.

(viii) Md. Arif @ Ashfaq has also been convicted u/s 420 IPC

r/w 120-B IPC, for cheating Transport Authority, Ghaziabad.

(ix) Md. Arif @ Ashfaq has also been convicted u/s 468/471/

474 IPC for committing forgery for the purpose of cheating,

using forged documents and keeping the same in his

possession.

(x) Rehmana Yusuf Farukhi, Babar Mohsin and Sadakat Ali

have been convicted u/s 216 IPC and Section 118 IPC for

habouring Md. Arif @ Ashfaq and concealing his designs.

(xi) Sadakat Ali has also been convicted u/s 14 of Foreigner's

Act for keeping a foreigner in his house at 18-C, Gaffur Nagar,

Okhla, Delhi, without information to the authorities.


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(xii) Sadakat Ali has also been convicted u/s 188 IPC for not

informing the police about letting out his house 18-C Gaffur

Nagar, Delhi to Md. Arif.

(xiii) Matloob Alam has been convicted u/s 468 IPC for

committing forgery for the purpose of cheating by forging the

ration card of Md. Arif @ Ashfaq .

(xiv) Matloob Alam has also been convicted u/s 420 IPC for

cheating Sh. B.R. Joshi and Azmat Imam Khan and also u/s

468 IPC for committing forgery for the purpose of cheating.

3. I have heard the arguments on the point of sentence from both

sides and have carefully gone through the record.

4. It is submitted by Sh. Bakshish Singh, learned Special Public

Prosecutor, that on account of conspiracy to wage war against

the Government of India hatched by Md. Arif @ Ashfaq, Nazir

Ahmad Quasid and Farukh Ahmad Quasid along with their co-

accused (since proclaimed offenders or killed), they waged war

against Govt. of India in which three innocent Army personnels

were killed in Delhi in cold blooded manner. It was a well

planned and organized attack on Army camp inside Red Fort. It

was an attack on the sovereignty and integrity of the country.


: 379 :

The attack was launched at the instance of Lashkar-e-Toiba ,

after setting up bases in Delhi and bringing sophisticated

weapons and was aimed at destabilizing the country. It is

submitted that this makes out the instant case to be the rarest of

the rare type and as such death penalty may be awarded to the

three convicts.

5. It is also submitted that Rehmana Yusuf Farukhi, Sadakat Ali,

Babar Mohsin and Matloob Alam have also committed serious

offences, which facilitated the commission of crime referred to

above, as such they may also be awarded severe punishment.

6. On the other hand, Sh. R.M. Tufail, learned defence counsel

for Md. Arif @ Ashfaq @ Abu Hamad has submitted that his

case does not fall within the category of the rarest of the rare

type of cases. As such, no case is made out to award death

penalty to him. Life sentence is adequate punishment in the

instant case.

7. For Rehmana Yusuf Farukhi, it is submitted by Sh. R.M.

Tufail, ld. defence counsel, that she has suffered about five

years of trial while in judicial custody and as such a lenient

view may kindly be taken.


: 380 :

8. For Sadakat Ali, it is submitted by Sh. R.M. Tufail, learned

defence counsel, that he unintentionally let out his house to

Md. Arif @ Ashfaq and as such lenient view may kindly be

taken. He has also suffered a lot during trial and remained in

custody for about four years.

9. Sh. R.M. Tufail has also filed separate applications praying

that Rehmana Yusuf Farukhi and Sadakat Ali may be released

on probation.

10. For Nazir Ahmad Quasid and Farukh Ahmad Quasid, it is

submitted by Sh. Aman Lekhi, learned defence counsel, that

this is not a case of the rarest of the rare type. As such death

penalty may not be awarded to the them in this case and plea of

the learned Special Public Prosecutor for death penalty to them

is unwarranted. He has also filed written submissions and has

invited my attention to the following authorities :-

1. Hardyal Vs. State of U.P. (1976) 2 SCC 812.

2. Bachan Singh Vs. State of Punjab AIR 1980

SC 898

3. Triveniben Vs. State of Gujarat (1989) 1

SCC 678

4. Lehna Vs. State of Haryana (2002) 3 SCC 76


: 381 :

5. Shiv Mohan Singh Vs. State (Delhi Admn.)

(1977) 2 SCC 238

6. Dalbir Singh & Ors. Vs. State of Punjab

(1979) 3 SCC 745

7. Anshad & Ors. Vs. State of Karnataka

(1994) 4 SCC 381

8. Kehar Singh & Ors. Vs. State (Delhi Admn.)

(1988) 3 SCC 609

11. For Babar Mohsin, it is submitted by Sh. S.A. Hasami, learned

defence counsel, that when he sheltered Md. Arif @ Ashfaq, no

offence was committed, as such he is liable for a very minor

punishment u/s 216 IPC. It is also submitted that at the time of

the commission of crime, he was a young man aged about 25

years. He is the only son of his parents. He has also faced trial

for five years. It is prayed that lenient view may kindly be

taken.

12. For Matloob Alam, it is submitted by Sh. Anil Aggarwal,

learned defence counsel that he is a young person with two

minor children. On account of this case, he has lost his

business. He has faced trial for five years. It is prayed that a

lenient view may kindly be taken and he may be released on


: 382 :

probation. My attention has been invited to the following

authorities :-

1. Naher Singh Vs. State of Punjab 1994

(1) C C Cases 306 (HC)

2. State of UP Vs. Ranjit Singh AIR 1999

SC 1201

3. Bonela Swaminathan Vs. State of AP

AIR 2000 SC 3578(1)

4. Surender Kumar Garg Vs. State of

Uttar Pradesh 1993 (2) CC Cases 277

(SC)

LAW RELATING TO SENTENCE :-

13. I have carefully considered the submissions of both the

parties. Sentence is a difficult question and requires a lot of

consideration. While dealing with the question of sentence,

Hon'ble Supreme Court in an authority reported as B.G.

Goswami Vs. Delhi Administration 1973 SCC (Crl.) 796,

observed that :

“Now the question of sentence is always a difficult

question, requiring as it does proper adjustment and

balancing of various considerations which weight with

a judicial mind in determining its appropriate quantum


: 383 :

in a given case. The main purpose of the sentence

broadly stated is that the accused must realise that he

has committed an act which is not only harmful to the

society of which he forms an integral part but is also

harmful to his own future, both as an individual and as

a member of the society. Punishment is designed to

protect society by deterring potential offenders as also

by preventing the guilty party from repeating the

offence; it is also designed to reform the offender and

reclaim him as a law abiding citizen for the good of the

society as a whole. Reformatory, deterrent and punitive

aspects of punishment thus play their due part in

judicial thinking while determining the question. In

modern civilised societies however, reformatory aspect

is being given somewhat greater importance. Too

lenient as well as too harsh sentence both loose their

efficaciousness, One does not deter and the other may

frustrate thereby making the offender a hardened

criminal. .............................”

14. Similarly, in an authority reported as State Vs. Shaqila and

others, 2001 AD (DELHI) 701, Hon'ble High Court of Delhi

emphasized the principle of proportionality between crime and

punishment and observed as under:-

“Proportion between crime and punishment is

a goal respected in principle and in spite of


: 384 :

errant notions it remains a strong influence in

the determination of sentences. The practice

of punishing all serious crimes with equal

severity is now unknown in civilized

societies, but such a radical departure from

the principle of proportionality has

disappeared from the law only in recent

times. Even now a single grave infraction

that is thought to call for uniformly drastic

measures. Anything less than a penalty of

greatest severity for any serious crime is

though then to be a measure of toleration that

is unwarranted and unwise. But in fact quite

apart from those considerations that make

punishment unjustifiable when it is out of

proportion to the crime, uniformly

disproportionate punishment has some very

undesirable practical consequences.”

31. “The principle of mitigation, like the

principle of proportion has both legislative

and judicial applications. Discretionary

dispensations can be granted by a Judge in

order to make sentences right with regard to

these other things after he has first arrived at a

presumptive sentence based on desert

according to culpability. Probation and low

minimum sentence allow mitigation when


: 385 :

circumstances that have no bearing on the

crime provide a good reason for moderating a

sentence.”

15. Rule 1, Chapter 19, Volume III of Delhi High Court Rules

provides the guidelines regarding sentence, which is as under :-

1. “The award of suitable sentence depends on a

variety of considerations - The determination of

appropriate punishment after the conviction of an

offender is often a question of great difficulty and

always requires careful consideration. The law

prescribes the nature and the limit of the punishment

permissible for an offence, but the Court has to

determine in each case a sentence suited to the offfence

and the offender. The maximum punishment prescribed

by the law for any offence is intended for the gravest of

its kind and it is rarely necessary in practice to go up to

the maximum. The measure of punishment in any

particular instance depends upon a variety of

considerations such as the motive for the crime, its

gravity, the character of the offender, his age,

antecedents and other extenuating or aggravating

circumstances, such as sudden temptation, previous

convictions, and so forth, which have all to be carefully

weighed by the Court in passing the sentence.”


: 386 :

16. The gist of the law referred to above is that sentence should

neither be too harsh nor too lenient.

LAW RELATING TO DEATH SENTENCE :-

17. As per Section 354(3) Cr.P.C, when death sentence is

awarded, special reasons have to be given for the same. What

are the special reasons in such a case? In this regard, I would

like to quote the relevant law.

18. Dealing with the question of death sentence, Hon'ble

Supreme Court in an authority reported as Mohan and others

Vs. State of Tamilnadu, 1998, Crl. L.J. 3276 culled out

following guidelines from the judgment reported as Bachan

Singh V. State of Punjab, AIR 1980 SC 898 :-

(i) The extreme penalty of death need not be

inflicted except in gravest cases of extreme

culpability.

(ii) Before opting for the death penalty the

circumstances of the 'offender' also require to be

taken into consideration along with the

circumstances of the 'crime'.

(iii) Life imprisonment is the rule and death

sentence is an exception. Death sentence must be

imposed only when life imprisonment appears to


: 387 :

be an altogether inadequate punishment having

regard to the relevant circumstances of the crime,

and provided, and only provided, the option to

impose sentence of imprisonment for life cannot

be conscientiously exercised having regard to the

nature and circumstances of the crime and all the

relevant circumstances.

(iv) A balance-sheet of aggravating and

mitigating circumstances has to be drawn up and

in doing so the mitigating circumstances have to

be accorded full weightage and a just balance has

to be struck between the aggravating and the

mitigating circumstances before the option is

exercised.

19. Similarly in Devender Pal Singh Vs. State of N.C.T . Of

Delhi & Anr. 2002 III AD (S.C.) 245, Hon'ble Supreme

Court, in paragraphs 29, 30 and 31, observed as under :-

“29. Coming to the question of sentence of death as

awarded by the learned trial judge, the same has to be

judged in the background of what was stated by this

Court in several cases.

30. From Bachan Singh Vs. State of Punjab (AIR

1980 SC 898) and Machhi Singh and Ors. Vs.

State of Punjab (1983 (3) SCC 470), the principle

culled out is that when the collective conscience of


: 388 :

the community is so shocked, that it will expect the

holders of the judicial power centre to inflict death

penalty irrespective of their personal opinion as

regards desirability or otherwise of retaining death

penalty, same can be awarded. It was observed :

“The community may entertain such sentiment in the

following circumstances :-

(1) When the murder is committed in an extremely

brutal, grotesque, diabolical, revolting or dastardly

manner so as to arouse intense and extreme

indignation of the community.

(2) When the murder is committed for a motive

which evinces total depravity and meanness ; e.g.

Murder by hired assassin for money or reward ; or

cold blooded murder for gains of a person vis-a-vis

whom the murderer is in a dominating position or in

a position of trust ; or murder is committed in the

course for betrayal of the motherland.

(3) When murder of a member of a Scheduled Caste

or minority community etc., is committed not for

personal reasons but in circumstances which arouse

social wrath, or in cases of bride burning or dowry

deaths or when murder is committed in order to

remarry for the sake of extracting dowry once again

or to marry another woman on account of infatuation.

(4) When the crime is enormous is proportion. For

instance when multiple murders, say of all or almost


: 389 :

all the members of a family or a large number of

persons of a particular caste, community, or locality,

are committed.

(5) When the victim of murder is an innocent child,

or a helpless woman or old or infirm person or a

person vis-a-vis whom the murderer is in a

dominating position, or a public figure generally

loved and respected by the community.

If upon taking an overall global view of all the

circumstances in the light of the aforesaid

propositions and taking into account the answers to

the questions posed by way of the test for the rarest

of rare cases, the circumstances of the case are such

that death sentence is warranted, the Court would

proceed to do so.”

31. As the factual scenario of the present case

shows, at lease nine persons died, several persons

were injured, a number of vehicles caught fire and

were destroyed on account of the perpetrated acts.

The dastardly acts were diabolic in conception and

cruel in execution. The “terrorists” who are

sometimes described as “death merchants” have no

respect for human life. Innocent persons lost their

lives because of mindless killing by them. Any

compassion for such persons would frustrate the

purpose of enactment of TADA, and would amount

to misplaced and unwarranted sympathy. Death


: 390 :

sentence is the most appropriate sentence in the case

at hand, and learned trial Judge has rightly awarded

it.”

20. Similar observations were made by the Hon'ble Supreme

Court in an authority reported as State of Tamil Nadu vs

Nalini AIR 1999 Supreme Court 2640 in paragraphs 618, 619

and 620 as under :-

“618. We have been addressed arguments on the

question of sentence to be passed against the accused

which is the requirement of sub-sec. (2) of S. 235 of

the Code. Section 354 of the Code deals with the

contents of judgment. Sub-section (3) of S. 354 is

relevant. It is as under :-

“(3) When the conviction is for an offence

punishable with death or , in the alternative, with

imprisonment for life or imprisonment for a terms of

years, the judgment shall state the reasons for the

sentence awarded, and, in the case of sentence of

death, the special reasons for such sentence.”

619. Mr. Natrajan said that in case we hold that

Nalini (A-1) Santhan (A-2), Murugan (A-3) and

Arivu (A-18) are guilty, they do not deserve the

extreme penalty.

620. In Bachan Singh v. State of Punjab (1980) 2

SCC 684 : (AIR 1980 SC 898 : 1980 Cri, LJ 636) the


: 391 :

Constitution Bench of this Court was considering the

constitutional validity of S. 302, IPC. Though

holding that S. 302, IPC and S. 354(3) of the Code

are constitutionally valid this Court referred to the

circumstances both aggravating and mitigating for

imposing a sentence of death. It is also made

observations on Ss.354(3) and 235(2) of the Code. It

will be advantageous to quote paras 201, 202 and

209 (of SCC) (paras 199, 200 and 207 of AIR & Cri.

LJ) of the judgment which are as under :-

“201. As we read Ss 354 (3) and 235(2) and other

related provisions of the Code of 1973, it is quite

clear to us that for making the choice of punishment

or for ascertaining the existence or absence of

“special reasons” in that context the Court must pay

due regard both to the crime and the criminal. What

is the relative weight to be given to the aggravating

and mitigating factors, depends on the facts and

circumstances of the particular case. More often than

not, these two aspects are so intertwined that it is

difficult to give a separate treatment to each of them.

This is so because 'style is the man'. In many cases,

the extremely cruel or beastly manner of the

commission of murder is itself a demonstrated index

of the depraved character of the perpetrator. That is

why, it is not desirable to consider the circumstances


: 392 :

of the crime and the circumstances of the criminal in

two separate watertight compartments. In a sense, to

kill is to be cruel and therefore all murders are cruel.

But such cruelty may vary in its degree of

culpability. And it is only when the culpability

assumes the proportion of extreme depravity that

“special reasons” can legitimately be said to exist.

202. Drawing upon the penal statutes of the

States in USA framed after Furman V. Georgia

(1972) 33 L Ed 2d 346 : 408 US 238), in general, and

Clauses 2(a), (b), (c) and (d) of the Indian Penal

Code (Amendment ) Bill passed in 1978 by the Rajya

Sabha in particular, Dr. Chitalte has suggested these

“aggravating circumstances”:

Aggravating circumstances : A court may however,

in the following cases impose the penalty of death in its

discretion :

(a) if the murder has been committed after

previous planning and involves extreme brutality; or

(b) if the murder involves exceptional

depravity; or

(c) if the murder is of a member of any of the

armed forces of the Union or of a member of any police

force or of any public servant and was committed -

(i)while such member or public servant was on duty; or


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(ii)in consequence of anything done or attempted to be

done by such member or public servant in the lawful

discharge of his duty as such member or public

servant whether at the time of murder he was such

member or public servant , as the case may be, or had

ceased to be such member of public servant; or

(d)if the murder is of a person who had acted in the

lawful discharge of his duty under S. 43 of the Code

of Criminal Procedure, 1973, or who had rendered

assistance to a magistrate or a police officer

demanding his aid or requiring his assistance under

S. 37 and S. 129 of the said Code

.....................................................................................

...................................................................................”

WHETHER THE INSTANT CASE IS THERAREST OF THE RARE TYPE?

21.Now the question is : whether the present case is of the rarest

of rare type calling for extreme penalty of death? First I take

up the case of Mohd. Arif @ Asfaq, who first came to Delhi in

February-March 2000, in pursuance to conspiracy to wage war

against the Govt. of India. He is a Pakistan national and a

member of Laskar-e-Toiba. He admittedly, entered India

illegally and reached Delhi and set up bases at (i) 18-C, Gaffur


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Nagar, New Delhi, (ii) G-73, Muradi Road, Delhi and (iii)

308A, DDA Flats, Ghazipur, Delhi. Thereafter, his co-accused

(since proclaimed offenders or killed) came to Delhi fully

armed with AK-56 Rifles, ammunition and hand-grenades.

Previous planning and diabolical designs are reflected in the

lethal and sophisticated nature of weapons brought and used by

them. They carefully selected their target i.e. Army camp

inside Red Fort, a place of national importance and prestige.

They intentionally and deliberately selected Army camp inside

Red Fort as the incident there, would cause widespread

indignation and fear in the country.

22. In the attack, three innocent Army personnels Naik Ashok

Kumar, Uma Shankar and Abdullah Thakur were killed, while

on duty at a peace station. The convict and his co-accused

were acting at the instance of terrorist organization Lashkar-e-

Toiba, which aims at spreading terror in India.

23.The enormity of his crime is writ large on the face of the

record and requires no elaboration. Not only this such

dastardly acts are being committed with increased frequency

these days in which many peoples are being killed with


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impunity and people proudly claim responsibility of the same.

This needs to be curbed with a heavy hand by taking recourse

to all measures available under the law, and death sentence is

one of such measures, though to be used rarely, as it has

deterrent and preventive effect. This is a case where sentence

of imprisonment for life would be totally inadequate and ends

of justice would be served only and only by awarding death

sentence. There is no mitigating fact or circumstance on the

file.

24.Mohd. Arif @ Ashfaq @ Abu Hamad organized the entire

attack by setting up bases in Delhi and it is he, who led the

members of Lashkar-e-Toiba at the time of attack, being first to

come to Delhi. He also telephoned BBC Delhi and Sri Nagar

about the attack in most foul language i.e. “Do Dane Dal Diye

Hai”, and got arms and ammunition and his base at G-73,

Muradi Road, Okhla, Delhi discovered. For these reasons I am

satisfied that this is a fit case for being categorized as of the

rarest of the rare type, as far as Md. Arif @ Ashfaq @ Abu

Hamad is concerned.

25. However, as far as Nazir Ahmad Quasid and Farukh Ahmad


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Quasid are concerned, I find myself in agreement with learned

defence counsel Sh. Aman Lekhi, that there is nothing on the

file, which could make out their case as that of the rarest of rare

type.

26. It is further submitted by Sh. Anil Aggarwal and Sh. R.M.

Tufail that Rehmana Yusuf Farukhi, Sadakat Ali and Matloob

Alam may be released on probation. Written applications have

been filed on behalf of Rehmana Yusuf Farukhi and Sadakat

Ali. The plea of probation has been opposed by the learned

Special Public Prosecutor. Considering the nature of the case, I

do not find any merit in the applications or submission.

27.Now, I proceed to award sentence to the convicts, keeping in

mind the law referred to above, submissions of parties and the

facts and circumstances of the case.

28.It has come on record that financial condition of Mohd. Arif @

Asfaq, Rehmana Yusuf Farooqui, Sadaqat Ali and Nazir

Ahmad Quasid and Faruq Ahmad Quasid is quite good. Other

two are not far behind. In fact no plea has been made before

me that any of the convicts belong to a poor family.


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29.I fully understand that the maximum punishment prescribed by

the law for any offence is intended for the gravest of its kind

and it is rarely necessary in practice to go up to the maximum.

And the instant case is that rare case in which maximum

punishment is required to be inflicted to meet the ends of

justice, whatever may be the mitigating circumstances.

SENTENCE:

30. (1) MOHD. ARIF @ ASAFAQ @ ABU HAMAD

(i) I sentence Mohd. Arif @ Asfaq @ Abu Hamad to

death alongwith fine of Rs. One Lakh in default three (3) years

RI, subject to confirmation by the Hon'ble High Court, U/s 121

IPC, for waging war against the Government of India. I direct

that he shall be hanged by neck till he is dead.

(ii) I also sentence Mohd. Arif @ Asfaq @ Abu Hamad to

death alongwith fine of Rs. Three Lakhs in default RI for five

(5) years U/s 302 R/w sec. 120-B IPC, subject to confirmation

by the Hon'ble High Court, for committing murder of three

army personnels namely Ashok Kumar, Uma Shankar and

Abdullah Thakur inside Red Fort on 22.12.2000. I direct that


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he shall be hanged by neck till he is dead.

(iii) I also sentence him to rigorous imprisonment for ten

(10) years alongwith fine of Rs.25,000/- (Rupees Twenty Five

Thousand only) in default one (1) year RI U/s 121-A IPC for

conspiracy to wage war against the Government of India.

(iv) I also sentence him to rigorous imprisonment for three

(3) months alongwith fine of Rs.500/- (Rupees Five Hundred

only) in default one (1) month RI U/s 186 IPC for obstructing

public servants on duty

(v) I also sentence him to rigorous imprisonment for two

(2) years alongwith fine of Rs. 10,000/- (Rupees Ten Thousand

only) in default one (1) year RI U/s 353 IPC for assaulting

public servants on duty.

(vi) I also sentence him to rigorous imprisonment for three

(3) years alongwith fine of Rs.10,000/- (Rupees Ten Thousand

only) in default one (1) year RI U/s 25 of Arms Act for

possessing a pistol unauthorisedly on 26.12.2000 at 308-A,

DDA Flats, Ghazirpur, Delhi.

(vii) I also sentence him to imprisonment for life alongwith

fine of Rs.25,000/- (Rupees Twenty Five Thousand only) in


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default one (1) year RI U/s 4 of Explosive Substances Act, as

the hand-grenades were concealed by him in the course of

conspiracy, during which human life was endangered.

(viii) I also sentence him to rigorous imprisonment for five

(5) years alongwith fine of Rs.25,000/- (Rupees Twenty Five

Thousand only) in default one (1) year RI U/s 14 of Foreigners

Act.

(ix) I also sentence him to rigorous imprisonment for seven


only) in default one (1) year RI U/s 420 IPC, for cheating

Ghaziabad Transport Authority.

(x) I also sentence him to rigorous imprisonment for seven


only) in default one (1) year RI U/s 468 IPC, for committing

forgery for the purpose of cheating regarding his ration card

and driving licence, purported to be issued by public servants

in their official capacity.

(xi) I also sentence him to rigorous imprisonment for seven


only) in default one (1) year RI U/s 471 IPC for using forged


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ration card and driving licence, for acquiring Indian identity,

purported to be issued by public servants in their official

capacity.

(xii) I also sentence him to rigorous imprisonment for seven


only) in default one (1) year RI U/s 474 IPC, for keeping

forged documents i.e. Ration card and driving licence in his

possession, which were being used as genuine and purported to

be issued by public servants in their official capacity.

31. (2) REHMANA YUSUF FAROOQUI

(i) I sentence Rehmana Yusuf Farooqui to Rigorous

imprisonment for seven (7) years alongwith fine of Rs.10,000/-

(Rupees Ten Thousand only) in default one (1) year RI U/s

216 IPC for sheltering Mohd. Arif @ Asfaq before and after

the incident.

(ii) I also sentence her to rigorous imprisonment for seven


only) in default one (1) year RI U/s 118 IPC, as the offences

were committed on account of her non-disclosure of designs of

Mohd. Arif @ Asfaq.


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32. (3 & 4) NAZIR AHMAD QASID AND FAROOQ AHMAD QASID.

(i) I sentence Nazir Ahmad Qasid and Farooq Ahmad

Qasid to imprisonment for life alongwith fine of Rs.50,000/-

(Rupees Fifty Thousand only) each in default two (2) years RI

U/s 121 IPC for waging war against the Government of India.

(ii) I also sentence both of them to rigorous imprisonment

for ten (10) years alongwith fine of Rs.25,000/- (Rupees

Twenty Five Thousand only) each in default RI for one (1) year

U/s 121-A IPC for conspiracy to wage war against the


(iii) I also sentence both of them to imprisonment for life

alongwith fine of Rs.25,000/- (Rupees Twenty Five Thousand

only) each in default one (1) year RI U/s 120-B read with sec.

109 IPC for conspiracy to murder all those who came in their

way in waging war against Government of India and due to

which Uma Shankar, Abdulla Thakur and Ashok Kumar were

killed.

33. (5) BABAR MOHSIN BHAGWALA

(i) I sentence Babar Mohsin Bhagwala to Rigorous

imprisonment for seven (7) years alongwith fine of Rs.10,000/-


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(Rupees Ten Thousand only) in default in one (1) year RI U/s

216 IPC. The plea of Ld. Defence counsel that sheltering was

only before the incident is contrary to record as this was both

before and after the incident.

(ii) I also sentence him to Rigorous imprisonment for

seven (7) years alongwith fine of Rs.10,000/- (Rupees Ten

Thousand only) in default one (1) year RI U/s 118 IPC, as the

offences were committed on account of his non-disclosure of

designs of Mohd. Arif @ Asfaq.

34. (6) MATLOOB ALAM :-

(i) I sentence Matloob Alam to Rigorous imprisonment

for seven (7) years alongwith fine of Rs.10,000 (Rupees Ten

Thousand only) in default one (1) year RI U/s 468 IPC for

forging ration card of Mohd. Arif @ Asfaq to give him Indian

identity.

(ii) I also sentence him to Rigorous imprisonment for

seven (7) years alongwith fine of Rs.10,000 (Rupees Ten


cheating B.R. Joshi and Azmat Imam Khan.

(iii) I also sentence him to Rigorous imprisonment for


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committing forgery of ration cards of B.R. Joshi and Azmat

Imam Khan for the purpose of cheating.

35. (7) SADAQAT ALI

(i) I sentence Sadaqat Ali to rigorous imprisonment for



sheltering Mohd. Arif @ Asfaq at 18-C, Gaffur Nagar, Okhla,

Delhi, before and after the incident.

(ii) I also sentence him to rigorous imprisonment for

seven (7) years alongwith fine of Rs. 10,000/- (Rupees Ten

Thousand only) in default one (1) year RI U/s 118 IPC as the

offences were committed on account of his non-disclosure of

designs of Mohd. Arif @ Asfaq.

(iii) I also sentence him to rigorous imprisonment for five


only) in default one (1) year RI U/s 14 of Foreigners Act for

keeping Mohd. Arif @ Asfaq, a Pak national, in his house

without information to the authorities.


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(iv) I also sentence him to rigorous imprisonment for six

(6) months alongwith fine of Rs.1,000/- (Rupees One Thousand

only) in default one (1) month RI U/s 188 IPC for letting out

his premises No.18-C, Gaffur Nagar, Okhla, New Delhi to

Mohd. Arif @ Asfaq without informing the police and this act

caused danger to human life.

36. The sentence of death to Md. Arif @ Ashfaq shall not be

executed unless the same is confirmed by the Hon'ble High

Court of Delhi.

37. All sentences of all seven convicts shall run concurrently.

38.Certified copies of the judgment and order be given to all

seven convicts free of cost immediately.

39. As per provisions of Section 363 (4) Cr.P.C., the Md. Arif @

Ashfaq @ Abu Hamad has been informed that he may file an

appeal, if he wishes to do so, within a period of thirty days

from today against his conviction and sentence awarded to him

herein above.

40.Benefit of sec. 428 Cr.P.C. be given to the convicts as per law.

41. All convicts are in custody to serve out the sentence awarded

to them.


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42. A copy of the judgment and order be placed on each file.

43. I record my appreciation for the assistance given by Ld.

Special Public Prosecutor Sh. Bakshish Singh as well as

learned defence counsel S/Sh. I.U. Khan, R.M. Tufail, Anil

Aggarwal, P.R. Aggarwal, Aman Lekhi, S.A. Hasmi, D.K.

Sharma, Satpal Singh and others during trial of the case. I also

record my apprection for the work done by Investigating

Officer Insp. Surender Kumar Sund. I also record my

appreciation for the witnesses, who deposed during the trial of

the case, particularly army officials, who in some cases came

from distant places and faced lengthy examination and cross-

examination for days together.

44.I also note with satisfaction that all eleven accused were very

punctual during the trial and they were generally of good

behaviour, though occasionally Mohd. Arif @ Asfaq, Rehmana

Yusuf Farooqi and Sadakat Ali indulged in temperamental

behaviour, accusations and shouting, which was never taken

note of.

45. Proceedings of the case along with exhibits, complete in all

respects, are being submitted to the Hon'ble High Court of


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Delhi, for confirmation of sentence of death awarded herein

above as provided by Section 366 Cr.P.C.

Announced in open court (O.P. SAINI)on 31.10.2005 Addl. Sessions Judge : Delhi


Red Fort Case

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