Case: State Of Mahrashtra Vs. Fazal Rehman Abdul

Dr. B.S. Chauhan, J. 1. This criminal appeal has been preferred against the impugned judgment and order dated 2.8.2007, passed by a Special Judge of the Designated Court under the Terrorist and Disruptive Activities (Prevention) Act, 1987 (hereinafter referred to as the ‘TADA’) in the Bombay Blast Case No. 1/93, acquitting the respondent of all the charges. 2. Facts and circumstances giving rise to this appeal are that : A. As the facts of this case and all legal issues involved herein have been elaborately dealt with in the connected appeal i.e. Criminal Appeal No. 1728 of 2007 [Yakub Abdul Razak Memon v. State of Maharashtra thr. CBI], it may be pertinent to mention only the relevant facts and charges against the respondent.B. Bombay Blast took place on 12.3.1993 in which 257 persons lost their lives and 713 were injured. In addition thereto, there had been loss of property worth several crores. The Bombay police investigated the matter at initial stage but subsequently it was entrusted to the Central Bureau of Investigation (hereinafter referred to as ‘CBI’) and on conclusion of the investigation, a chargesheet was filed against a large number of accused persons. Out of the accused persons against whom chargesheet was filed, 40 accused could not be put to trial as they have been absconding. Thus, the Designated Court under TADA framed charges against 138 accused persons. During the trial, 11 accused died and 2 accused turned hostile. Further the Designated Court discharged 2 accused during trial and the remaining persons including respondent (A-76) stood convicted.C. The respondent had been charged for general conspiracy which is framed against all the accused persons for the offences punishable under Section 3(3) TADA and Section 120-B of Indian Penal Code, 1860 (hereinafter referred to as the ‘IPC’) read with Sections 3(2)(i)(ii), 3(3), (4), 5 and 6 TADA and read with Sections 302, 307,326,324,427,435,436, 201 and 212 IPC and offences under Sections 3 and 7 read with Sections 25 (I-A), (l-B)(a) of the Arms Act, 1959, Sections 9-B (1)(a)(b)(c) of the Explosives Act, 1884, Sections 3, 4(a)(b), 5 and 6 of the Explosive Substances Act, 1908 and Section 4 of the Prevention of Damage to Public Property Act, 1984.D. In addition, the respondent had been charged for persuading his brother-in-law Firoz Amani Malik (A-39) to undergo weapons’ training in Pakistan and keeping in his possession 4 handgrenades brought to him by Firoz Amani Malik (A-39) and for handing over the same to Mohd. Jabir (A-93-dead), showing that the same had been smuggled into India for committing terrorist activities.E. The Designated Court after conclusion of the trial acquitted the respondent of all the charges.Hence, this appeal. 3. Shri Mukul Gupta, learned senior counsel appearing for the appellant has submitted that the respondent had been responsible to send the co-accused to Dubai, and further to Pakistan to have training for handling the arms, ammunition and explosives, and therefore, his acquittal for all the charges is liable to be reversed. 4. On the contrary, learned counsel appearing for the respondent has submitted that the co-accused (A-39), who was brother-in-law of respondent himself, had not been aware of the purpose for which he had been taken to Dubai. The respondent cannot be held responsible for sending Firoz (A-39) for any criminal activity. Thus, the well- reasoned judgment of the Special Judge does not require interference. 5. We have considered the rival submissions made by learned counsel for the parties and perused the record. There is no confession by the respondent accused (A-76). 6. Confessional statement of Firoz @ Akram Amani Malik (A-39) revealed that the said respondent was the brother-in-law of Firoz @ Akram Amani Malik (A-39). The said accused Firoz @ Akram Amani Malik (A-39) had been awarded the death sentence in this very case and his appeal is being heard alongwith this case. Respondent (A-76) used to advise the said accused (A-39) to go to Dubai and the said accused also expressed his willingness and desire to go to Dubai in the month of January, 1993. He (A-39) got a passport and went to Dubai with Miyaz. After getting a visa they left the airport. One person named Ayub Bhai took them to a building near Kadar Hotel. There they found another person Nasim who took them to a flat on the 2nd floor. Nasim told him there that he would be going to Pakistan and his purpose for this visit would be explained later. 7. Prakash Khanvilkar (PW-513), deposed about the recovery of handgrenades from Mohmed Jabir Abdul Latif Mansoor (A-93). However, he does not make any reference so far as the respondent Fazal Rehman Abdul Khan (A-76) is concerned. 8. The Designated Court after appreciating the entire evidence came to the conclusion that there was nothing on record to show that the respondent though facilitated sending Firoz @ Akram Amani Malik (A-39) to Dubai, had any knowledge of the purpose of going to Dubai or Pakistan for the simple reason that Firoz @ Akram Amani Malik (A-39) himself disclosed that he was told in Dubai that he would go to Pakistan and the purpose for going there would be explained to him later on. The confessional statement of A-39 did not reveal the involvement of the respondent in persuading A-39 to undergo weapons’ training in Pakistan.9. This Court has laid down parameters for interference against the order of acquittal time and again. The appellate court should not ordinarily set aside a judgment of acquittal in a case where two views are possible, though the view of the appellate court may be the more probable one. While dealing with a judgment of acquittal, the appellate court has to consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial court were perverse or otherwise unsustainable. The appellate court is entitled to consider whether in arriving at a finding of fact, the trial court had failed to take into consideration admissible evidence and/or had taken into consideration the evidence brought on record contrary to law. Similarly, wrong placing of burden of proof may also be a subject- matter of scrutiny by the appellate court. In exceptional cases where there are compelling circumstances, and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial courts acquittal bolsters the presumption of his innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is “against the weight of evidence”, or if the finding so outrageously defies logic as to suffer from the vice of irrationality. 10.

Decision:
0[ds]The Designated Court after appreciating the entire evidence came to the conclusion that there was nothing on record to show that the respondent though facilitated sending Firoz @ Akram Amani Malik (A-39) to Dubai, had any knowledge of the purpose of going to Dubai or Pakistan for the simple reason that Firoz @ Akram Amani Malik (A-39) himself disclosed that he was told in Dubai that he would go to Pakistan and the purpose for going there would be explained to him later on. The confessional statement of A-39 did not reveal the involvement of the respondent in persuading A-39 to undergotraining in Pakistan.9. This Court has laid down parameters for interference against the order of acquittal time and again. The appellate court should not ordinarily set aside a judgment of acquittal in a case where two views are possible, though the view of the appellate court may be the more probable one. While dealing with a judgment of acquittal, the appellate court has to consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial court were perverse or otherwise unsustainable. The appellate court is entitled to consider whether in arriving at a finding of fact, the trial court had failed to take into consideration admissible evidence and/or had taken into consideration the evidence brought on record contrary to law. Similarly, wrong placing of burden of proof may also be a subject- matter of scrutiny by the appellate court. In exceptional cases where there are compelling circumstances, and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial courts acquittal bolsters the presumption of his innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it isthe weight ofor if the finding so outrageously defies logic as to suffer from the vice ofDesignated Court after appreciating the entire evidence has drawn a conclusion that the respondents may be under the impression that they were being sent there for training of arms so that it can be used in self defence and they came to know only when they were in Dubai that they were being sent for training to Pakistan. However, the training could not be finalized/arranged and they came back to Bombay. Therefore, the learned Designated Court had drawn the inference that as they did not have knowledge that they were going to Pakistan for training in handling of arms they could not be held guilty.25. The parameters laid down by this Court in entertaining the appeal against the order of acquittal have to behave gone through the entire record and we are of the view that none of the respondents was aware of the intention of the conspirators to send the respondents to Pakistan for training to deal with the arms and ammunition rather they had been taken away to Dubai on false pretext and had beenthe evidence of all the witnesses is read conjointly, it becomes evident that none of the witnesses had named either of the respondents. The other persons of the police team who had been named stood convicted. The respondents have been acquitted on the ground that in absence of Test Identification Parade or their identification by any of the witnesses/accused in the court, it was not safe to make a guess work that they or either of them could also be member(s) of the said police team which intercepted the contraband. The evidence on record reveal that police team headed by Inspector Patil was having 6-7 constables. There is nothing on record on the basis of which it could be assumed that the respondents were the members of the said team. It iscase that the total strength of the Shrivardhan Police Station was 7 or 8, so it can be presumed that all except one or two might have come. The Sarpanchas of 7 villages in close proximity, deposed in court to falsify the alibi taken by the respondents that they were on police patrolling in their villages. Statements made by the Sarpanchas that none of the respondents had visited their village on patrolling cannot be a proof that the respondents were members of the team, which intercepted the said trucks.37. The learned Designated Court dealt with the issue elaborately and came to the conclusion that there was no material to connect the respondents with the aforesaid incident and it was not safe to presume that the respondents were also the members of the police team which intercepted the said trucks carrying contraband.38. The parameters laid down by this Court in entertaining the appeal against the order of acquittal have to bethe present case, admittedly Rule 15(3)(b) has not been complied. No memorandum as required was made. There is also no contemporaneous record to show the satisfaction of the recording officer after writing of confession that the confession has been voluntarily made. The confession of Accused 7 does not even state that it was read over to him. Thus, the confessional statements are inadmissible and cannot be made the basis of upholding the conviction. Once confessional statements are excluded the conviction cannot be sustained.The parameters laid down by this Court in entertaining the appeal against the order of acquittal have to be applied.52. In view of the above, we are of the considered opinion that the learned Designated Court rightly rejected the confessional statement made by the respondent and the co-accused as the first part of these statements has not been recorded in consonance with the requirement of statutoryDesignated Court has acquitted the respondent (A-38) of the said charges only on the ground that the truck was owned by Hasan Adhikari and the prosecution did not consider it proper to make Hasan Adhikari as an accused or as a witness to find out as to whether the respondent (A-38) had been a regular driver with him and as to whether on that particular date he was on duty. No person had identified him as he was driving the said vehicle on the said date. The confessional statement of Tulsi Ram Dhondu Surve (A-62) was not corroborated by any other witness/accused.62. The parameters laid down by this Court in entertaining the appeal against the order of acquittal have to bein the second part of the confession which was recorded on 4.5.1993 the respondent had not been warned that he was not bound to make the confession. Though he was asked as to whether he was making the statement under any pressure and whether he was willing to make the confession but even then he was not warned that he was not bound to make the statement. The certificate issued by the officer regarding the confessional statement mentions the belief of the recording officer that the statement was signed of his own will.73. Exactly the same is the position so far as the confessional statements of co-accused Ahmed Shah Khan Durrani (A-20) and Aziz Ahmed Mohd. Ahmed Shaikh (A-21) are concerned.74. The Designated Court has discarded the confessional statements as the same was not in accordance with the said provisions. We concur with the finding of the Designated Court in view of the law laid down by this court in S.N. Dube (supra), where it was held that the compliance of Section 15 and Rule 15 of TADA, 1987 is mandatory. [Vide: Lal Singh (supra) and Bharatbhai (supra)].75. As there is no admissible evidence on record connecting the respondent (A-80) to the crime, he has rightly been acquitted by the courtThe parameters laid by this Court in entertaining the appeal against the order of acquittal have to be applied.86. The only allegation against the respondent had been that she had accompanied her hushand (AA) while he carried the arms, ammunition and explosives. Further, there is nothing on record to show that she had any knowledge of such arms, and the purpose for which the same had been brought. Further, the sister-in-law of the respondent was neither made the accused nor a witness. Her husband is still absconding. In such a fact-situation, the findings recorded by the learned Designated Court do not warrant anyappreciating the aforesaid evidence the Special Judge came to the conclusion that the respondent (A-105) had not made any confession. So far as the confession of Faki Ali Faki Chacha (A-74) is concerned, it contained reference regarding the presence of one father, but the same does not specifically reveal A-105 being person while the goods were being concealed after taking them from the house of the respondent-accused to the mango grove. The same conclusion was drawn regarding the confession of Jananrdan Pandurang Gambas (A-81). He (A- 81) made a passing remark revealing the presence of respondent A-105 at the relevant time. Still the same specifically failed to depict any act committed by him in relation with the contraband goods. More so, there seems to be some contradiction and variance in the sequence of events as given in the aforesaid confessions. Thus, it was difficult to accept that the said material in confession of the co-accused can be accepted without there being any independent corroboration, though the corroboration was required only on material points and not on each and every point. The confessional statement of the aforesaid accused particularly Faki Ali Faki Chacha (A-74) and Jananrdan Pandurang Gambas (A-81) cannot be said to be cogent enough for establishing involvement of the respondent (A-105) in commission of the acts amounting to a criminal offence required to be strictly proved.97. The parameters laid down by this Court in entertaining the appeal against the order of acquittal have to be applied.98. In the instant case, there is no evidence on record to show that the respondent had been involved in the crime in any manner. If his sons had indulged in the offence, his mere presence in his house, where the contraband had been hidden, would not make the respondentSpecial Judge has given benefit of doubt to the respondent (A-132) reaching the conclusion that the prosecution failed to disclose the correct identity of the accused. None of the witness/accused had referred to his full name or address even once. In such a fact-situation, the Special Judge has rightly given him the benefit of doubt.110. In the facts and circumstances of the case, as the prosecution failed to fix the identity of the accused who had gone to Pakistan for training, we are of the opinion that the respondent has rightly been given the benefit of doubt.111. The parameters laid down by this Court in entertaining the appeal against the order of acquittal have to beDesignated Court after appreciating the entire evidence on record came to the followingwith regard to submission canvassed on behalf of A-27 and after carefully considering the material in his confession and the same having shown the manner in which he had acted in episode it is crystal clear that he was full aware that he was involved in an illegal operation. Having regard to same and so also having regard to the amount received by him it will be difficult to perceive that he was not aware that he was effecting any illegal operation. Now considering the acts committed by him clearly denotes of himself having transported the goods brought into the country at a p lace which was not a port and all the facts regarding the said operation the same are sufficient to denote of the same being a smuggling operation. However, there being no express evidence of A-27 having seen the nature of goods transported and the evidence having indicated that he cannot be said to be a person present at Wangni tower when the exchange of material from vehicles to another vehicle was effected for concealing the same in cavity and the person from Bombay being only present along with Tiger Memon and A-14 & A-17 his liability would be restricted for commission of offences under Customs Act he would be required to be held guilty only for commission of offence under Section 111 r/w Section 135(b) of Customs Act and would be required to be held not guilty for commission of other offences including that of conspiracy in view of his acts being not of a nature for coming to the conclusion of the same being for furthering the object of conspiracy of or involvement of A-27 in the(Emphasis added)124. The parameters laid down by this Court in entertaining the appeal against the order of acquittal have to be applied.125. There is no evidence on record to show that the respondent had any knowledge about the nature of the articles smuggled inparameters laid down by this Court in entertaining the appeal against the order of acquittal have to be applied.137. There is no evidence on record to show that the respondent had any knowledge about the nature of the articles smuggled in India. In view thereof, we agree with the reasoning given by the Special Judge.Special Judge recorded the finding that the respondent did not do anything to further the object of conspiracy. However, landing was not of silver and gold, but of arms, ammunition and explosives. The respondent was fully aware of the nature of the smuggled articles and also the purpose for which the contraband goods had been smuggled into India. Even after having such a knowledge, his close association with Tiger Memon (AA) confirmed and he participated and facilitated the transportation of the said articles.In such a fact-situation, the Special Judge was not justified in acquitting the respondent (A-17) of the charge ofparameters laid down by this Court in entertaining the appeal against the order of acquittal have to be applied.189. From the confessional statement made by the accused it can be ascertained that he (A-24) was aware of the arms and ammunition being landed. He stated that he was given arms and further, was told to sit on alert. He also stated that Tiger Memon (AA) even taught him how to use handgrenades and also paid him for his services. He was also later contacted by co-accused for the disposal of 59 packets stored in a godown and was paid Rs. 5 lakhs for the same. He further revealed that the contraband used in the Bombay Blast of 12.3.1993, was the same as had been landed by him and other co-accused at Shrivardhan. Co-accused Imtiyaz (A-15), Noor Mohammed (A-50), Nasir Dhakla (A-64), Tulsi Ram (A- 62) Dawood Yusuf (A-91), Shahnawaz (A-29) and Ethesham (A-58) have corroborated the knowledge of the respondent and the fact that he was present when the landing was takinginvolvement and participation of Munna (A-24) was throughout the main conspiracy. The order of the learned Designated Court acquitting him on the charge of larger conspiracy is perverse, in view of the evidence on record. Therefore, conspiracy stands proved.With regard to argument canvassed that material in above referred confession or that of witnesses pertaining to events which had occurred at Wangni Tower not disclosing any positive overt act on part of A-55 or that at time of exchange of goods he was not at Wangni Tower or that he was only travelling on motor cycle etc. and as such himself being involved by Investigating Agency in case only because he is son of A-14 does not appeal to mind after considering in proper perceptive relevant material. Even accepting that A-55 was then moving on motor cycle still considering time of dead night at which he was doing so, place at which he was moving etc. clearly shows falsity of all said submissions after considering material in entirety disclosing acts committed by A-55. The same considered upon earlier acts of A-55 in concealment of weapons at his house in absence of his father etc. his participation in going to house of A- 42 as disclosed by aforesaid material clearly repels all said submission.However, even carefully considering all material/evidence available against A-55 and same having not transcended beyond acts committed by him in facilitating Dighi landing and/or transportation of goods smuggled and same failing to disclose any material showing his nexus with conspiracy for which he is charged with or conspiracy for which his father A-14 held to be guilty it will be extremely difficult to accept that his guilt for same can be said to have been established by prosecution only on basis of his guilt found to be established for commission of offence u/sec.3 (3) of TADAIn light of discussion made hereinabove Point Nos. 170 to 173 will be required to be answered in consonance with the conclusion arrived during the said discussion i.e. A-72 having committed all the said offences for which the said points are framed but for the reasons stated hereinabove. However, hardly there being any evidence of A-72 of having committed the said offence in pursuance of conspiracy for which he has been charged due to nexus of material found with him being not established with the material smuggled for commission of Serial bomb Blast and there being no other evidence he will be required to be absolved from the offence of conspiracy for which he is charged(Emphasis added)212. The parameters laid down by this Court in entertaining the appeal against the order of acquittal have to be applied.213. From the above discussion it is evident that Baba Chauhan (A-41) had given 20 hand grenades to one Ayub resident of Oshiwara. However, he has also disclosed that after his arrest on 28th March, 1993, the said contraband had been produced before the police by his father through HajiDesignated Court, after appreciating the entire evidence on record with respect to Nizammudin Qureshi, has recorded the followingsaid evidence considered in proper perspective clearly reveals close association of A-135 with Tiger Memon and/or himself man of confidence of Tiger Memon. All said evidence considered in proper perspective clearly reveals involvement of A-135 in Shekhadi landing episode.Similarly entire evidence having remained confined to act committed by A-135 of assisting and aiding Shekhadi landing and transportation operation and there existing no cementing material revealing his involvement in conspiracy he will be required to be held not guilty for offence of conspiracy for which charge is framed at head 1st ly.Undoubtedly, the respondent had participated in the landing at Shekhadi when the contraband were smuggled into India. However, as the evidence on record as well as the findings recorded by the Designated Court remain to the effect that he had not been aware of the articles smuggled, he cannot be held liable for punishment for conspiracy.224. The parameters laid down by this Court in entertaining the appeal against the order of acquittal have to beDesignated Court after appreciating the entire evidence on record reached the conclusion asconsidering material in the confession of A-58 and aforesaid co-accused the same leads to the conclusion of A-58 also being involved in Shekadi landing operation as denoted by said material and as such having committed offence u/s. 3(3) of TADA for which he is charged at head 2nd ly clauseIn the said context it is necessary to add that considering evidence pertaining to Shekhadi landing in proper perspective and role carried out by A-58 in the same and during said operation contraband material being opened at the sea shore and so also exchanged from truck to other vehicles at Wangni Tower, the defence submission that A-58 was not aware about nature of contraband material to be brought etc. does not appeal to mind. Needless to add that considering material in confession of other co-accused regarding Shekhadi landing episode it is difficult to accept such submission. Needless to add that A-58 was man of close confidence of Tiger Memon is being also revealed from fact of himself being given weapon during relevant operation. Similarly A-58 himself having participated in said operation in which large quantity of arms, ammunition and explosives were smuggled into India leading to legitimate conclusion of same being brought for commission of terrorist act and still A-58 thereafter having agreed to undergo weapon training in operating arms, ammunition in foreign country and in said process having gone to Dubai but being required to return in view of further arrangements being not made clearly denotes A- 58 was party to conspiracy to commit terrorist act punishable u/sec. 3(3) of TADA Act.However all said acts committed by A-58 being much prior to main conspiracy of committing serial blast having taken final shape i.e. during conspiratorial meetings held in month of March, 1993 and A-58 after returning from Dubai having not participated in any act furthering object of larger conspiracy for which charge at head 1st ly in framed he cannot be held liable for larger conspiracy and he will be required to be held guilty for conspiracy to commit terrorist act as statedadded)233. The parameters laid down by this Court in entertaining the appeal against the order of acquittal have to beparameters laid down by this Court in entertaining the appeal against the order of acquittal have to be applied.248. The Special Judge recorded the finding that the respondent did not do anything to further the object of conspiracy. However, he was involved in sending Mohd. Jamil Omar Khatlab (PW-1) to Dubai and further to Pakistan for getting initiated in the training of weapons. The respondent received the co-accused at the airport and attended 7 conspiratorial meetings held in Dubai. Admittedly, the respondent who travelled to Dubai had a fictitious passport for a particular purpose. He further went to Pakistan and undertook the training in handling the arms, ammunition and explosives. He met Tiger Memon (AA) in Dubai, who told him that they would teach a lesson to the Indian Government by exploding bombs etc. However, the learned Designated Court did not convict him on the charge of conspiracy. Such a conclusion is not worth acceptance and the said finding being perverse, is liable to be setCourt has laid down parameters for interference against the order of acquittal time and again and the same have to be followed herein.266. In view of the fact that the respondent (A-94) had gone to Pakistan and took training in handling the arms, ammunition and explosives and also attended the conspiratorial meeting at Dubai and took oath in the name of Quran not to divulge any information regarding the conspiracy, it is abundantly clear that the respondent was aware of the purpose of training in Pakistan and he undertook the training there without any protest.267. We are of the view that the Special Judge committed an error in not convicting the respondent for the larger conspiracy.