Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL  APPEAL NO. 535 OF 2009

Mohd. Ayub Dar  ……..Appellant

Versus

State of J&K ……..Respondent

J U D G M E N T

V. S. Sirpurkar, J.:

1. Appellant Mohd. Ayub Dar S/o Abdul Ahad – Original  

accused no.1 challenges his conviction for the offence  

punishable  under  Section  3  (3)  of  the  Terrorist  and  

Disruptive  Activities  (Prevention)  Act,  1987  (In  

short “TADA ACT”), as also for the offence punishable  

under  Section  302  of  the  RPC.  Originally,  the  five  

accused  persons  were  tried  in  respect  of  murder  of  

Mirwaiz Moulvi Farooq, which took place on 21.5.1990, at  

about 11 O’ clock in the morning.  Accused no. 2 Abdul  

Rehman Shigan and accused no.3 Abdulla Bangroo expired  

during  pendency  of  the  trial,  while  the  other  two  

accused persons namely Javed Ahmed Bhat @ Ajmal Khan @  

Ditta s/o. Habibulla Bhat and Zahoor Ahmed @ Bilal @  

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Zana  were untraceable.  Thus, out of the five accused  

persons,  we  are  concerned  only  with  accused  no.1  

(appellant herein) Mohd. Ayub Dar S/o Abdul Ahad.

2. It so happened that on 21.5.1990, at about 11 O’  

clock in the morning, three unknown terrorists entered  

into  the  house  of  Mirwaiz  Moulvi  Farooq  with  the  

intention of killing him and Moulvi Farooq was severely  

injured by gun-shot. He, ultimately, succumbed to the  

injuries in Soura Hospital, Srinagar, and, therefore,  

the offence registered u/s. 307 of the RPC originally  

was converted into the offence u/s. 302 of the RPC on  

the same day.  The initial investigation was done by  

Police Station, Nageen, which was thereafter transferred  

to CBI under the orders of the Government of India vide  

Notification  No.228/3/90-AVD.II,  dated  11.06.90.  The  

house  of  Moulvi  Farooq  was  in  New  Colony,  Nageen,  

Shrinagar, known as ‘Mirwaiz Manzil’, wherein one small  

doubled  storeyed  building  was  constructed  for  the  

purpose  of  residential  Office  of  Mirwaiz.  This  small  

Office had two rooms on the ground floor and one big  

hall on the first floor.  In one of the two rooms; on  

the  ground  floor,  the  Personal  Assistant  of  Mirwaiz  

Moulvi  Farooq  used  to  sit  and  the  second  room  was  

adjacent to the said room, which had office of Mirwaiz  

Moulvi Farooq.  The entrance to the Office of Mirwaiz  

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Moulvi  Farooq  was  from  the  room  of  his  Personal  

Assistant.  

3. It was the prosecution case that, due to popularity  

of Mirwaiz Moulvi Farooq, two terrorists outfits namely  

Jamt-e-Islami  in  general  and  Hizbul-Mujahideen  in  

particular were apprehensive that Moulvi Farooq would  

eventually assume political leadership of Kashmir.  They  

also  viewed  him  as  an  agent  of  Government  of  India  

working  against  the  interests  of  militant  groups.  

Therefore,  in  the  year  1990  itself,  in  the  month  of  

April, accused Abdulla Bangroo, Javed Ahmed Bhat @ Ajmal  

Khan  @  Bitta  and  Mohd.  Ayub  Dar  @  Ishfaq  –  present  

appellant, who belong to Hizbul Mujahideen, entered into  

a  criminal  conspiracy  to  eliminate  Mirwaiz  Moulvi  

Farooq.  Accused Abdulla Bangroo, who was then heading  

Hizbul Mujahideen, instructed Javed Ahmed Bhat @ Ajmal  

Khan and Mohd. Ayub Dar @ Ishfaq – present appellant to  

plan elimination of Mirwaiz Moulvi Farooq. Javed Ahmed  

Bhat @ Ajmal Khan was then working as an Area Commander  

of Hizbul-Mujahideen in the downtown area of Srinagar;  

whereas  the  appellant/accused  was  working  as  a  Group  

Commander  in  that  very  area.  Later  on,  Abdul  Rehman  

Shigan @ Inayat and Zahoor Ahmed @ Bilal @ Zana also  

joined the conspiracy.  It came out in the investigation  

that,  in  the  second  week  of  May,  1990,  under  the  

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instructions of Javed Ahmed Bhat @ Ajmal Khan, Mohd.  

Ayub Dar @ Ishfaq – present appellant and Abdul  Rehman  

Shigan  @  Inayat  had  visited  the  residence  of  Moulvi  

Farooq at Nageen, Srinagar and had requested him for  

financial  help  to  their  militant  organization  i.e.  

Hizbul Mujahideen. Moulvi Farooq had agreed to help them  

and had asked them to meet after 2/3 days during the  

morning hours. Thereafter, two accused surveyed the area  

as  per  their  plan  and  informed  the  details  to  Javed  

Ahmed Bhat @ Ajmal Khan. It was on 21.05.1990 that the  

three accused namely Mohd Ayub Dar @ Ishfaq (present  

appellant),  Abdul  Rehman  Shingan  @  Inayat  and  Zahoor  

Ahmed @ Bilal @ Zana armed with loaded pistol visited  

the ‘Mirwaiz Manzil’ at Nageen.  Accused Javed Ahmed  

Bhat @ Bilal had instructed the appellant that, out of  

the three accused persons, Zahoor Ahmed @ Bilal would  

fire  on  Moulvi  Farooq  and  the  remaining  two  accused  

persons namely Ayub Dar i.e. present appellant and Abdul  

Rehman Shingan were to provide cover to Zahoor Ahmed @  

Bilal. As per the plan, they all reached the gate of  

Mirwaiz  Manzil  and  met  Maqbool  Shah,  the  gate-keeper  

(PW-16) and informed him that they wanted to meet Moulvi  

Farooq.  Maqbool Shah (PW-16) then asked Gulam Qadir  

Sofi,  the  gardener,  to  take  them  to  the  Personal  

Assistant  as  he  himself  was  going  to  the  market.  

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Accordingly, the gardener – Gulam Qadir Sofi took the  

three  to  the  Personal  Assistant  namely  Saidur  Rehman  

(PW-17), who asked them about their names and one of  

them  disclosed  his  fake  name  as  Gulzar  Farooq  r/o.  

Batmaloo.  That  name  was  written  by  the  Personal  

Assistant on a slip of paper and the said slip was sent  

inside  the room of Moulvi Farooq through the gardener  

Gulam Qadir Sofi. After sometime, Moulvi Farooq called  

the three accused inside the Office, on which Zahoor  

Ahmed @ Bilal entered the room of Moulvi Farooq and the  

remaining  two  accused  persons  including  the  present  

appellant  took  up   position  in  the  PA’s  room.  On  

entering the room of Moulvi Farooq, Zahoor Ahmed @ Bilal  

fired several rounds on Moulvi Farooq from his pistol  

and  immediately,  accused  Inayat  also  fired  from  his  

pistol in the air while coming out of PA’s room, which  

hit the outside wall of the Office. On hearing the sound  

of firing, the gardener came inside the Office and tried  

to  catch  hold  of  Ishfaq,  who  was  trying  to  escape.  

However, all the accused persons escaped giving a push  

to the Gardener Gulam Qadir Sofi. Accused Bilal also  

tried to run away, but he was caught by Gulam Qadir  

Sofi.  There  was  a  scuffle  between  the  two,  in  which  

Bilal sustained an injury below his right eye. Later,  

after  firing  one  round  from  his  pistol,  Bilal  also  

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managed  to  escape.  The  accused  persons  ran  towards  

Kashmir  University,  who  were  followed  by  Gulam  Qadir  

Sofi upto the main road and near the University Gate,  

the assailants ran towards Soura through the University  

compound  and  reached  Chhatargaon  in  the  afternoon  of  

21.05.1990. They then reported killing of Moulvi Farooq  

to Abdulla Bangroo and Ajmal Khan. All the three accused  

persons were directed by Abdulla Bangroo and Ajmal Khan  

to go underground for sometime.  

4. The prosecution urged that appellant Mohd Ayub Dar  

@ Ishfaq had visited Pakistan, where he was trained in  

the handling of firearms and explosives. He was involved  

in a number of other terrorists’ cases and was arrested  

in  Delhi  by  the  Delhi  Police  on  6.5.1991.   He  was  

further arrested in the present case on 15.6.1991 by  

CBI. When his statement was recorded u/s. 15 of the TADA  

Act, he confessed the aforesaid crime and disclosed the  

names of other two assailants namely Abdul Rehman Sigan  

@ Inayat and Zahoor Ahmed @ Bilal.  He also confessed  

regarding  involvement of accused Abdulla Bangroo and  

Ajmal Khan in the crime.  

5. Accused Abdul Rehman Singan @ Inayat, who was in  

the judicial custody in a case of CID, Srinagar, was  

also  arrested  in  this  case  on  20.9.1990.  He  also  

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confessed the guilt and corroborated the statement made  

by the present appellant.  

6. After he was fired, injured Mirwaiz Moulvi Farooq  

was  removed  to  Sher-e-Kashmir  Institute  of  Medical  

Sciences, Soura by Manzoor Ahmed and Saffad Ahmed, who  

were his brothers-in-law and Nazir Ahmed Dar, a servant.  

He was examined by Dr. Abdul Mazid and was immediately  

operated  thereupon.  Dr.  Afzak  Wani,  Head  of  the  

Department  of  Neurosurgery,  Institute  of  Medical  

Sciences, Soura was also consulted. But, at about 12.30  

P.M., Mirwaiz Moulvi Farooq succumbed to the injuries in  

the hospital. Injury Report was prepared by Dr. Abdul  

Mazid. However, post mortem on the dead body could not  

be carried out as a very serious law and order situation  

ensued owing to death of Moulvi Farooq. A huge mob got  

collected at the spot and they demanded that the dead  

body  of  deceased  be  handed  over  to  them  without  the  

post-mortem  being  carried  out.   The  dead  body  was,  

ultimately handed over to the followers of Moulvi Farooq  

and the last rites were performed on the next day.  His  

wearing apparels were seized and were referred to the  

Central  Forensic  Science  Laboratory  (C.F.S.L.)  along  

with the bullets and empty cartridges seized from the  

place  of  occurrence.   The  C.F.S.L.  opined  that  the  

wearing apparels were having holes corresponding to the  

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injuries of the deceased.  It was further opined that  

the empty fired cartridges which were seized, as also  

the bullets seized from the place of occurrence were  

fired from two types of small arms. The facts suggested  

that  the  present  accused/appellant  and  Abdul  Rehman  

Shigan @ Inayat had committed an offence u/s. 302 r/w.  

section 34 of the RPC, while the other accused persons  

namely  Abdulla  Bangroo  @  Khalid,  Javed  Ahmed  Bhat  @  

Ajmal Khan along with Mohd. Ayub Dar @ Ishfaq (present  

appellant) and Zahoor Ahmed @ Bilal @ Zana and Abdul  

Rehman Shigan @ Inayat had committed an offence under  

Section 3 (3) of the TADA Act, 1987.

7. Under  the  above  circumstances,  the  

appellant/accused alone came to be charged.  About 24  

witnesses  came  to  be  examined  and  the  confessional  

statement recorded by A. K. Suri (PW-2), who was then  

working as S.P., CBI, came to be relied upon by the  

prosecution.  The  statement  came  to  be  recorded  on  

27.6.1991 after the accused/appellant was brought from  

Delhi to Srinagar.  

8. The trial Court considered the evidence of all the  

witnesses individually.  The Court also took notice of  

the argument that copy of the First Information Report  

was not sent to the Court and came to the conclusion  

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that  the  contention  raised  by  the  defence  was  not  

correct. The Court further came to the conclusion that  

there was nothing suspicious regarding non-sending of  

the  First  Information  Report.   The  trial  Court  also  

rejected the argument of the defence that there were  

inconsistencies and contradictions in the evidence of  

prosecution witnesses inter-se.  It pointed out that the  

minor discrepancies could not and did not matter in this  

case. It was, in fact, observed that the defence was not  

able  to  point  out  any  material  contradiction  in  the  

evidence of witnesses during the course of arguments.  

The  trial  Court  came  to  the  conclusion  that  non-

performance  of  post-mortem  did  not  matter  as  it  was  

clear that Moulvi Farooq died due to gun-shot injuries.  

In fact, the trial Court accepted the evidence of Dr.  

Mohd.  Afzal  Wani  (PW-6).  Ultimately,  the  trial  Court  

also  accepted  the  confession  given  by  the  appellant.  

Relying upon the evidence, the trial Court convicted the  

accused/appellant for the offence u/s. 3 (3) of the TADA  

Act and u/s. 302 of the RPC. After hearing the accused  

person  on  the  question  of  sentence,  the  trial  Court  

awarded imprisonment for life with a fine of Rs.6,000/-  

and in default of payment of fine, the appellant was  

directed to suffer further imprisonment for six months  

for the offence u/s. 302 of the RPC.  The appellant is  

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also sentenced to undergo imprisonment for a period of  

five years and to pay a fine of Rs.5,000/- u/s. 3(3) of  

the TADA Act. In default of making the payment of fine,  

the accused was directed to undergo imprisonment for six  

months.

9. Lastly, the trial Court, following Section 374 of  

the J & K Code of Criminal Procedure, 1989, ordered that  

the  imprisonment  for  life  would  be  subject  to  

confirmation  by  this  Court  since  this  Court  is  the  

appellate Court.  It is this judgment which is being  

challenged before us.   

10. Shri  Sushil  Kumar,  learned  Senior  Counsel,  

initially raised a preliminary argument to the effect  

that the life imprisonment ordered by the trial Court  

was liable to be confirmed by the High Court and the  

same not having been done, this Court could not look  

into the question of legality of the life imprisonment.  

The argument is based on Section 374 of the Criminal  

Procedure Code as applicable in the State of Jammu and  

Kashmir, under which even a life imprisonment ordered by  

the Court in that State is required to be confirmed.  

The argument is, however, not correct inasmuch as it is  

specifically provided in Section 14 (3) of the TADA Act  

that  the  Designated  Court  shall,  for  the  purpose  of  

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trial of any offence, have all the powers of a Court of  

Session and shall try such offences as if it were the  

Court of Session so far as may be in accordance with the  

procedure prescribed in the Code for the trial before  

the Court of Session. The word “Code” is defined u/s. 2  

(b) of the TADA Act, wherein is it provided that the  

word “Code” means the Code of Criminal Procedure, 1973  

(2 of 1974). Therefore, it is clear that the trial has  

to  be  conducted  in  accordance  with  the  Criminal  

Procedure  Code,  1973  and  not  in  accordance  with  the  

Criminal Procedure Code as applicable to the State of  

Jammu and Kashmir.  U/s. 19 (1) of the TADA Act, an  

appeal  is  provided  against  the  judgment,  sentence  or  

order, not being an interlocutory order by a Designated  

Court to the Supreme Court of India. Sub-section (2)  

thereof provides that, except the cases mentioned under  

sub-section (1), no appeal or revision shall lie to any  

Court from any judgment, sentence or order including an  

interlocutory order of a Designated Court.  Section 25  

of the TADA Act provides that the provisions of the TADA  

Act or any Rule thereunder or any order made under any  

such  rule  shall  have  effect  notwithstanding  anything  

inconsistent therewith contained in any enactment other  

than the TADA Act or in any instrument having effect by  

virtue of any enactment other than this Act. In view of  

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these  provisions  on  which  Mr.  Rawal,  the  learned  

Additional Solicitor General of CBI, relies upon, there  

will be no question of applicability of Section 374 of  

the Criminal Procedure Code as applicable to the State  

of  Jammu  and  Kashmir.   Realizing  this,  Shri  Sushil  

Kumar, learned Senior Counsel did not seriously press  

this  objection,  though  considerable  arguments  were  

tendered before the Court earlier. In that view of the  

matter,  the  first  question  raised  by  learned  Senior  

Counsel  Shri  Sushil  Kumar  is  decided  against  the  

defence.

11. The  main  thrust  of  the  argument  of  the  learned  

Senior Counsel appearing on behalf of the appellant was  

that the prosecution has failed to prove the offence  

u/s. 302 of the RPC independently of the confession. It  

was urged that, if the confession is ignored, then there  

would remain no material to involve the accused. It is  

pointed out that the accused also stood convicted for  

the offence u/s. 3 (3) of the TADA Act, wherein he was  

awarded a punishment of five years and to pay a fine of  

Rs.5,000/- in default to suffer further imprisonment for  

six months.  It is pointed out that the accused had  

already  served  out  the  sentence  of  five  years.   The  

learned  Senior  Counsel,  therefore,  did  not  seriously  

challenge his conviction u/s. 3 (3) of the TADA Act and  

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instead, concentrated on the conviction for the offence  

u/s. 302 of the RPC.  It was pointed out to us that  

there  was  no  material  to  hold  that  the  accused  ever  

conspired or was a part of conspiracy to commit murder  

of Moulvi Farooq. The learned Senior Counsel urged that  

there was practically no evidence and the oral evidence  

tendered on behalf of the prosecution to prove the guilt  

of the appellant for both the offences was hopelessly  

vague and could not have been relied upon by the trial  

Court to convict the appellant of both the offences.  

The learned Senior Counsel took us through the evidence  

of prosecution witnesses and urged that the evidence of  

the  witnesses  is  wholly  unreliable  and  took  the  

prosecution nowhere.  By way of additional submission,  

the learned Senior Counsel urged that the trial Court  

erred in relying upon the confession recorded by A. K.  

Suri (PW-2) as the said confession could not have been  

accepted to be a genuine confession. It was urged that  

the said confession was neither in the language of the  

accused  nor  the  accused  had  ever  made  any  such  

confession, much less before the witness. It was then  

pointed out that the original of the Confession made was  

also not available nor was placed before the Court.  It  

was  further  suggested  that  the  oral  evidence  runs  

counter  to  the  statement  made  in  the  confession  and  

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therefore, the confession was untrustworthy.  

12. Before considering the confession allegedly made by  

the appellant, we would take the stock of criticism made  

against the oral evidence.  But even before that, to put  

the record straight, we would choose to place the clear-

cut language of Section 3 (3) of the TADA Act, for which  

the appellant stands convicted.  Section 3, sub section  

(3) of the TADA Act provides as under   :

“whoever conspires or attempts to commit, or advocates,  abets, advises or incites or knowingly facilitates the  commission of, a terrorist act or any act preparatory to  a terrorist act, shall be punishable with imprisonment  for a term which shall not be less than five years but  which may extend to imprisonment for life and shall also  be liable to fine.“

13. We have carefully examined the appeal memo filed  

u/s. 19 of the TADA Act. Very strangely, we do not find  

any challenge to the conviction u/s. 3 (3) of the TADA  

Act.  All through, the challenge is to the conviction  

for the offence u/s. 302, as also to Section 120-B r/w.  

Section 3 of the RPC. Conviction u/s. 3(3) of the TADA  

Act was not seriously challenged by Shri Sushil Kumar,  

learned Senior Counsel; perhaps, because the accused has  

already suffered more than five years of imprisonment,  

which was the sentence awarded to him for that offence.

14. It is in the backdrop of this factual situation  

that the oral evidence would have to be considered.

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15. It was not seriously contested that Moulvi Farooq  

died of bullet injuries and that this was a case of  

homicidal  death.   The  first  relevant  witness  amongst  

those who were present at the time of incident is Nazir  

Ahmed Dar S/o Mohd. Abdulla Dar (PW-11). He was a family  

servant  in  the  house  of  Moulvi  Shafat,  who  was  the  

brother-in-law of Moulvi Farooq. He heard the sound of  

fire and went to see as to whether the sound of fire had  

come. He saw two persons jumping from the southern wall  

of Moulvi Farooq and going towards the southern side.  

He helped in arranging a vehicle and admitting Moulvi  

Farooq in the hospital. He was declared hostile as far  

as  he  failed  to  identify  the  accused.  However,  he  

admitted that he did not remember whether even the third  

person had also jumped from the wall. He also did not  

remember whether he has given description of the first  

man whom he saw jumping over the wall.  He categorically  

suggested that the accused person in the Court was not  

there.  His evidence is, therefore, of no consequence  

for the prosecution.  The evidence of Zahid Ali Lone  

(PW-13),  S/o  Habib-ullah  Lone,  an  Advocate  by  

profession, is also of no consequence as he refused to  

even identify the accused and asserted that he did not  

see the accused.  Mohd. Yasin s/o. Misri Khan (PW-14)  

was on the guard duty at the bungalow of Moulvi Farooq.  

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In his presence, empty cartridge cover was seized from  

the courtyard of Moulvi Farooq by one Gunwant Singh. The  

witnesses so far considered by us only go to show that  

Moulvi Farooq had died homicidal death due to fire and  

some three persons had entered his house on that day,  

who escaped.   

16. The evidence of Salam-id-Din S/o Mohd. Maqbool Shah  

(PW-15) is also of no consequence as he had neither seen  

the deceased nor the assailants. He only came to know  

about  death  of  Moulvi  Farooq.   This  witness  was  the  

Public Relations Officer of Moulvi Farooq.  Mohd. Maqbul  

Shah S/o Khazir Muhammad Shah (PW-16) was the peon of  

Moulvi  Farooq,  but  he  was  not  on  the  spot  when  the  

incident took place. Much was made of the evidence of  

this witness that he had not identified the two persons  

who had come to Moulvi Farooq in the morning.  However,  

it is clear that the two persons that he was speaking  

about could not have been the accused persons as they  

had  come  at  9  O’clock  to  Moulvi’s  place  and  it  is  

nobody’s case that the accused persons had come at 9 O’  

clock in the morning. He had acted as a panch witness  

also.   Saidur  Rehman  s/o.  Amir  Din  (PW-17)  was  

specifically  referred  by  Shri  Sushil  Kumar,  learned  

Senior Counsel.  This witness was his Public Relations  

Officer (PRO)-cum-Personal Assistant (PA).  According to  

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him, after the death of Moulvi Farooq, he continued to  

work as a P.R.O. of his son Moulvi Umar Farooq.  He  

claimed that, on the fateful day, his peon informed that  

three persons wanted to meet Moulvi Saheb.  They were  

brought in and were made to sit in the Office.  Their  

names were asked and one of them stated his name to be  

Gulzar Farooq. He did not remember the other two names.  

He claims that he made the name slip of Gulzar Farooq  

with his own pen and sent the same to Moulvi Saheb.  The  

said slip (Exhibit D-16) was shown to him. He identified  

the  same.  He  also  identified  his  own  signature.  

According to him, all the three persons went inside. He  

was engaged in conversation on telephone. Then he heard  

the  sound  of  fire  and  suddenly  the  door  of  Moulvi  

Saheb’s room opened and those persons fled away. He saw  

that Moulvi Farooq was lying in a pool of blood. He then  

spoke  about  Moulvi  Farooq  being  transfered  to  the  

hospital and his death. He has confirmed that, while  

fleeing away, he saw a revolver in the hand of one of  

the boys.  He also confirmed that the peon Gulam caught  

hold of one of the men, but he got away while fleeing  

himself.   Even  this  witness  has  not  identified  the  

accused/appellant  in  the  Court.  He  specifically  

contended that, since the incident was 13 years old, it  

would be difficult for him to identify any of the three  

1 7

persons. He specifically stated that there was nobody  

amongst them present in the Court. In fact, much could  

have been done by cross-examining this witness by the  

prosecution for the reasons unknown. Even that was not  

done.   

17. Amjad Parvez Munir was examined as PW-18 who spoke  

about the seizures and the panchas.  PW-19 is Javaid  

Firdous S/o Alam Din, who is resident of Lucknow and was  

a Professor working in the Kashmir University. There is  

nothing that he has spoken about the accused. In fact,  

we do not know why he was cross-examined.   Same is the  

story about Shafat Ahmad (PW-20) S/o Late Moulvi Gulam  

Rasool, who is brother-in-law of deceased Late Moulvi  

Mohd. Farooq.  He also did not see any man, though he  

heard the noise of fire-shots. His evidence also would  

be of no consequence except to prove that Moulvi Farooq  

was shot at and that he died in the hospital.  Mohd.  

Tariq s/o. Gulam Hussain (PW-21) is another witness who  

is a witness on seizure of cover of bullet from the  

spot.  Nothing  has  come  out  in  his  cross-examination.  

Methlas Kumar Jha is another witness who is posted as a  

Dy.S.P. CBI SFC II. He had acted as an Investigating  

Officer. He claimed to have received the FIR copy on  

12.6.1990.   He  spoke  about  the  murder  having  been  

admitted by Hizbul Mujahideen organisation. He further  

1 8

spoke  that  Late  Abdullah  Bangroo,  Ajmal  Khan,  Bilal,  

Ishfaq i.e. present appellant and Abdul Rehman Shigan  

were the accused of murder and that they entered into  

conspiracy to kill Moulvi Farooq. He then referred to  

the arrest made of the appellant by Delhi Police. He  

went to arrest Ayub Dar/present appellant in Delhi and  

brought  him  to  Srinagar  on  police  remand.   He  then  

asserted  that,  during  the  investigation,  Ayub  Dar  

confessed and stated that he wanted to make statement.  

He was then produced before the S.P. for recording his  

statement. He then confirmed that the statement was then  

recorded by the S.P. He identified the accused as the  

same person who was arrested and who gave his statement  

u/s. 15 of the TADA Act, which was recorded by the S.P.  

He pointed out that he also got recorded statement of  

accused Abdul Rehman Shigan u/s. 15 of the TADA Act as  

he was already arrested in some other case, in pursuance  

of the request made by accused Abdul Rehman Shigan. He  

was  extensively  cross-examined  by  the  defence.  He  

claimed to have received the whole file (Exhibit D-2)  

from Parvaiz Mirza SHO, P.S. Nageen. He identified the  

photo copy of FIR which was written in 19 lines. He also  

confirmed  that  the  copy  of  FIR  was  sent  to  the  

Magistrate.  He identified the FIR. Several inadmissible  

questions seem to have been asked to this witness about  

1 9

the  statements  recorded  u/s.  161,  which  are  of  no  

consequence.  However, all that can be said about this  

witness  is  that  he  went  to  arrest  the  accused  and  

produced  him  before  the  S.P.  for  recording  his  

statement.  There is no question asked on that aspect.  

It has again and again come in the cross-examination  

that he had produced the accused/appellant for recording  

his  statement  under  the  TADA  Act;  that  the  

accused/appellant  was  under  his  custody  and  that  his  

statement was recorded by the S.P.  He asserted that the  

accused  had  requested  him  verbally  for  recording  his  

statement and he also verbally brought the request of  

the accused to the attention of the S.P.  According to  

him, the statement of accused was recorded on 27.6.1991  

when  the  accused  was  produced  at  11  O’clock  in  the  

morning before the S.P. for recording his statement. He  

claimed that he did not remain present there.  After his  

statement was recorded, the accused was taken away by  

this witness. He also had collected second copy of the  

statement.  In  short,  it  cannot  be  said  that  the  

witnesses  have  identified  the  accused  as  one  of  the  

three persons who had killed Moulvi Farooq. Shri Sushil  

Kumar, learned Senior Counsel, therefore, is undoubtedly  

right when he says that if the other evidence is taken  

into  account  de-hors  of  the  confession  made,  the  

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prosecution cannot claim to have proved the offence that  

the  accused/appellant  was  one  of  the  accused  persons  

present along with the two other accused persons who had  

fired at Moulvi Farooq.

18. However, one thing is certain that the prosecution  

has  been  able  to    prove  homicidal  death  of  Moulvi  

Farooq by being shot at.  Prosecution has proved that,  

on that day, at about 10.30, three persons had come.  

They  had  gone  to  the  room  of  Moulvi  Farooq  and  had  

fired.  It  is  also  proved  that,  it  is  due  to  those  

injuries that Moulvi Farooq died a homicidal death. True  

it  is  that  no  post  mortem  was  conducted;  however,  

prosecution has given proper explanation that the post  

mortem could not have been conducted due to angry public  

reaction.   However,  in-spite  of  that,  there  is  good  

evidence  to  suggest  that  Moulvi  Farooq  died  of  the  

bullet injuries almost immediately after he was fired.  

All  this  could  not  have  been  possible  unless  the  

assailants had entered into conspiracy to murder Moulvi  

Farooq. It was in pursuance of that conspiracy alone  

that the assailants entered the chamber of Moulvi Farooq  

and fired at him.  The evidence of P.R.O. is very clear  

in that context. The only question to be considered is  

whether this appellant was one of assailants. Seeing the  

prosecution evidence as it is, if all the three accused  

2 1

came  together  and  approached  the  chamber   of  Moulvi  

Farooq and one of them fired at him, there will be no  

question of only the individual liability.  Everything  

was clear as sun-shine that three had come not with an  

idea to chat with Moulvi Farooq or to seek any favour  

from him, but they had come specifically with a specific  

design to eliminate Moulvi Farooq.  We, therefore, do  

not find anything wrong in the verdict of guilt given by  

the trial Court so far as Section 3 (3) of the TADA Act  

is concerned. However, the question would still remain  

as  to  whether  the  appellant/accused  was  one  of  the  

assailants.   That  could  have  been  proved  by  direct  

evidence firstly or alternatively or in addition to it,  

by the confession statement recorded u/s. 15 of the TADA  

Act.  If the confession statement stands to the Acid  

test  on  credibility,  voluntariness  and  truthfulness,  

then that would be sufficient to pin the guilt of the  

accused.  Therefore, it is now to be examined as to  

whether the trial Court was justified in relying upon  

the statement u/s. 15 of the TADA Act.     

19. Shri Sushil Kumar, learned Senior Counsel, firstly  

urged  that  the  confession  was  shrouded  in  mystery  

inasmuch  as  it  was  not  clear  as  to  whether  it  was  

recorded  and  under  what  circumstances.  He  clearly  

criticized  the  same  saying  that  it  could  have  been  

2 2

recorded on the video tapes, but was not done. He also  

pointed out that the confession was not recorded in the  

language  of  accused/appellant  nor  was  it  a  true  

representation of what was stated. He pointed out that  

it was contradictory with the oral evidence and there  

were innate contradictions which went on to disprove its  

very credibility. Relying on Rule 15 (2) of the TADA  

Act, he pointed out that it was explained or interpreted  

to the maker. He further urged that the original of the  

confession is not on record. It was further urged that  

the whole confession is destroyed by the other evidence.  

Shri Sushil Kumar pointed out that, the confession, as  

it stands proved, is in English language and there was a  

clear-cut admission on the part of A. K. Suri (PW-2)  

that  he  had  not  explained  the  same  to  the  accused.  

Basically, the argument of Shri Sushil Kumar was that  

the confession could not have been relied upon, insofar  

as  the  offences  under  the  R.P.C.  were  concerned.  

According to the learned Counsel, the confession could  

be relied upon only for the offences under the TADA Act.  

The learned Counsel heavily relied on the language of  

Section 15.  

20. As against this, Shri Rawal, learned ASG urged that  

there was clear-cut evidence on record that the accused  

spoke in English, in which language he confessed also.  

2 3

He  further  pointed  out  that  necessary  caution  was  

administered to the accused inasmuch as he was told that  

the said confession could be used in evidence against  

the accused/appellant.  Learned ASG further contended  

that  necessary  circumstances  were  explained  and  

signature was appended to the confession and, therefore,  

there was no question of rejecting the confession.  As  

regards the last point urged by Shri Sushil Kumar, the  

learned  ASG  has  pointed  out  that  the  question  of  

admissibility of confession against the offences under  

the RPC was no more res-integra and was finally answered  

by  this  Court  in  a  decision  of  Five  Judges  Bench  

reported in Kartar Singh Vs. State of Punjab [1994 (3)  

SCC 569].  Besides this, Shri Rawal also pointed out  

that the oral evidence regarding the confession by A. K.  

Suri  (PW-2)  remained  unchallenged  in  the  cross-

examination on behalf of the defence. He also pointed  

out that the confession was corroborated as the chit  

(Exhibit D-16) was brought on record. He answered the  

criticism of the learned Senior Counsel by pointing out  

that  some  witnesses  were  not  examined  as  they  were  

either dead or it was obvious that they were not present  

at the time of incident.  It is this basis that the  

confession is now to be tested.

21. It will be better first to examine in detail the  

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oral  evidence  of  A.K.  Suri  (PW-2).  The  said  witness  

deposed regarding presence of the accused in the Court  

on  27.6.1991  and  about  his  making  confessional  

statement.  The witness reiterated that the accused was  

asked number of questions regarding free will on the  

part  of  accused  to  make  a  confession.   He  also  

specifically asserted that he had informed the accused  

that he was not bound to make a confessional statement  

and that if he makes the one, the same would be read  

against  him.   The  witness  also  reiterated  that  the  

accused was given time to ponder over and even after  

pondering  over  the  issue  of  making  the  confessional  

statement,  the  accused,  of  his  own  free  will,  was  

prepared  to  give  confessional  statement  which  was  

recorded in his own words by the witness.  The witness  

also identified signature of the accused. He had also  

produced a questionnaire and asserted that, even after  

the questionnaire was given to the accused, one and half  

hours’ time was given to the accused to ponder over,  

which  opportunity  was  utilized  by  the  accused.   The  

witness first proved his writing about being satisfied  

that  the  accused  was  prepared  to  offer  confessional  

statement  of  his  own  free  will  and  then  proved  the  

statement. He also reiterated that the accused put his  

signature on each and every page and after the statement  

2 5

was recorded, it was read over and was understood by the  

accused,  who,  only  after  accepting  the  same  to  be  

correct, put the signatures.  The witness was subjected  

to  cross-examination  by  the  defence.  However,  we  are  

constrained to observe that his cross-examination was a  

lackluster.  Some  confusion  was  tried  to  be  created  

regarding Exh. PWAK, a carbon copy and Exh.PWAK1 also  

not being done over the original and being made over a  

carbon  copy.  However,  after  seeing  the  documents  and  

hearing   Shri Rawal, we are convinced that there was no  

confusion and the original confession as well as the  

preliminary documents were made over to the Court.  Some  

unnecessary  questions  were  put  to  the  effect  that  

whether the witness was in uniform while recording the  

statement.  Some insignificant circumstances were also  

brought that the word ‘voluntary’ was not written while  

recording preparedness of the appellant to record the  

confession.  He  asserted  that  he  had  dispatched  the  

confessional statement report. The last suggestion given  

to the witness in the cross-examination was almost fatal  

to the defence which was to the effect that he did not  

interpret statement of the accused because the same was  

written in the language in which the accused gave it.  

He was again specifically asked about his satisfaction  

statement being on page No.10, to which he specifically  

2 6

answered that the accused had finished his statement at  

page 9 and therefore, he wrote his satisfaction at page  

No.10.   Again,  almost  at  the  end  of  the  cross-

examination, it has come that the witness had taken the  

statement in English and when the accused was talking to  

the witness, he was taking in English. In short, the  

whole cross-examination does not dent the case of the  

prosecution and it can be inferred that the criticism  

against the confession that it was not recorded in the  

language  of  the  accused  is  not  justified.   There  is  

absolutely no effort made by the defence to establish  

that the statement was not made in the language of the  

accused persons.  Much was said by Shri Sushil Kumar,  

learned Senior Counsel that the Original statement is  

not  on  record.   However,  Shri  Rawal,  learned  ASG  

painstakingly  pointed  out  from  the  record  that  the  

confession  cannot  be  foiled  on  that  count  and  the  

original  confession  was  very  much  available  on  the  

record.  

22. Shri  Sushil  Kumar,  learned  Senior  Counsel,  had  

specifically  raised  a  question  regarding  witnesses  

Gunwant Singh and Ghulam Qadir Sofi not being examined  

to corroborate any role ascribed to them.  According to  

the learned Senior Counsel, non-examination of Gunwant  

Singh and Ghulam Qadir Sofi was extremely material and  

2 7

created a dent in the prosecution story.  Shri Rawal,  

learned ASG pointed out that, looking at the overall  

evidence of the witnesses, more particularly, all those  

who were present at the spot, it cannot be gathered that  

Gunwant  Singh  was  present  at  the  time  of  incident.  

Insofar  as  the  evidence  of  Ghulam  Qadir  Sofi  is  

concerned, it was pointed out by Saidur Rehman (PW-17)  

that said Ghulam Qadir Sofi was already dead at the time  

of  trial.   Therefore,  the  criticism  levelled  by  the  

learned defence Counsel would be of no consequence.

23. Shri  Sushil  Kumar  then  urged  that  the  so-called  

confession given by this appellant in other matter was  

disbelieved right upto the Supreme Court.  He relied  

upon the decision in Mohd. Ayubdhar & Anr. Vs. State of  

NCT of Delhi [2000 (10) SCC 296].  This was also a case  

where the charges were under Section 3, 4 and 5 of TADA  

Act alongwith Section 302 read with Section 120 IPC.  

This  was  a  case  where  the  cassette  wherein  the  

confession was recorded was destroyed.  From the second  

cassette, it was seen that the concerned officer had not  

given any warning to the accused that he was not bound  

to  make  the  statement.   The  officer  also  had  

categorically admitted that no specific warning had been  

given to the accused.  It was on that basis that this  

Court did not choose to rely upon the confession.  Shri  

2 8

Sushil Kumar heavily relied on this ruling and urged to  

take the same course.  We have already given our reasons  

for accepting the confession.  In that view, we cannot  

rely on this judgment.  We are unable to accept this  

contention for the simple reason that the facts of the  

said case in the reported decision are neither relevant  

nor admissible for the present purposes.  Shri Sushil  

Kumar  also  relied  on  a  reported  decision  in  Prakash  

Kumar @ Prakash Bhutto Vs. State of Gujarat  [2007 (4)  

SCC 266]  wherein the confession was disbelieved. We do  

not find any similarity between the facts in the afore-

mentioned  reported  decision  and  the  facts  which  have  

come in the present matter.  The confession in this case  

was disbelieved on merits and it was made by the co-

accused.  The facts are clearly distinguishable.  The  

learned  Senior  Counsel  further  relied  on  Abdulvahab  

Abdul Majid Shaikh & Ors. Vs. State of Gujarat etc. etc.  

[2007 (9) SCC 293], more particularly on observations in  

Paragraphs 9 and 13 thereof.  However, the observations  

in Para 9 relate to the confession of the co-accused and  

its admissibility and reliability.  The Court, in fact,  

relied upon the confession taking the view that there  

was no coercion, threat or any undue influence to the  

accused.   The  other  facts  are  not  apposite  to  the  

controversy.  We, therefore, reject the contention of  

2 9

the learned Senior Counsel.   

24. Our attention was also drawn to the Constitution  

Bench decision reported in  Kartar Singh Vs. State of  

Punjab [1994 (3) SCC 569] and more particularly, to the  

paragraphs  263  and  265  thereof.   There  can  be  no  

question  about  these  principles  which  have  been  

suggested by way of guidelines by this Court.  In fact,  

at the end of the Paragraph 263 of the judgment, the  

Court has recommended that the Central Government should  

take  note  of  the  guidelines  and  incorporate  them  by  

appropriate amendments in the Act and the Rules.  We  

have not been pointed out any such amendments either in  

the Act or in the Rules.  However, when we see the  

guidelines  laid  down  and  compare  them  with  the  care  

taken  in  this  case  about  the  confession,  we  feel  

completely satisfied that the confession was properly  

recorded  and  it  was  also  recorded  in  the  free  

atmosphere,  as  A.K.  Suri  (PW-2)  had  given  sufficient  

time to the accused for the reflection.  The accused had  

also  at  no  point  of  time  complained  regarding  any  

coercion to any authority.  The defence, as is apparent  

from examination of the appellant-accused under Section  

313  of  the  Cr.P.C.,  is  that  he  had  not  given  any  

statement at all.  In view of this, we do not think that  

the observations of this Court in Paragraphs 263 and 265  

3 0

of  the  aforementioned  decision  would  be  of  any  

consequence for the decision of this matter.  In fact,  

in Paragraph 406 of the judgment, this Court has spoken  

about  the  importance  of  confession  and  the  various  

aspects attached to it such as appearance of objectivity  

and necessity of removing the suspicion and has gone to  

the  extent  of  saying  that  the  provision  itself  is  

unfair, unjust and unconscionable, offending Articles 14  

and 21 of the Constitution of India.  This was in a  

minority judgment by Hon’ble K. Ramaswamy, J.  Hon’ble  

Sahai,  J.,  however,  in  Paragraph  456,  went  on  to  

observe:-

“The word ‘offence’ used in the article should be given  its ordinary meaning.  It applies as much to an offence  committed under TADA as under any other Act.  The word  ‘compelled’ ordinarily means ‘by force’.  This may take  place positively and negatively.  When one forces one to  act in a manner desired by him it is compelling him to  do that thing.”

His  Lordship  further  observed  that  a  confession  

made by an accused or obtained by him under coercion,  

suffers  from  infirmity  unless  it  is  made  freely  and  

voluntarily.  His Lordship then found that Section 15  

was  violative  of  Articles  20(3)  and  21  of  the  

Constitution.   Again  the  observations,  though  very  

strongly  worded,  do  not  become  binding  since  

constitutionality of Section 15 has been upheld by the  

3 1

majority judgment authored by Hon’ble Pandian, J.  We  

are quite mindful of the strength of the language used  

in  the  opinions  expressed  by  two  learned  Judges.  

However,  even  with  that,  we  cannot  say  that  this  

confession suffers from any defects.   

25. Similarly,  our  attention  was  also  invited  to  a  

decision in State (NCT of Delhi) vs. Navjot Sandhu @  

Afsan  Guru  etc.  etc. [2005  (11)  SCC  600] (more  

particularly to para 185).  This was again a judgment  

concerning  the  terrorist  attack  on  the  Parliament  of  

India by five fidayeen militants.  It may immediately be  

observed that this was not a case under TADA Act, but  

under  the  Prevention  of  Terrorism  Act  (POTA),  2002.  

Very heavy reliance was placed on Paragraph 185 therein,  

which deals with the lapses and violations of procedural  

safeguards  guaranteed  in  the  statute,  on  account  of  

which the confessional statement of Afzal was not relied  

upon by this Court.  The learned Senior Counsel was at  

pains to point out that in this case also, there were  

lapses  and  violations  of  procedural  safeguards  

guaranteed in the statute.  We, however, did not find  

any such lapses or violations which would affect the  

credibility of the confession.  On the other hand, we  

found  that  the  confession  was  fully  acceptable  and  

reliable.

3 2

26. A  reference  was  made  to  the  decision  in  State  

through Superintendent of Police, CBI/SIT Vs. Nalini &  

Ors. [1999 (5) SCC 253].  However, we must observe that  

the learned Senior Counsel has not, in any manner, shown  

as to how any of the observations made therein apply to  

the present matter.  We would leave the matter at that.

27. As  against  this,  Shri  Rawal,  learned  ASG  

highlighted  two  decisions  before  us,  they  being  S.N.  

Dube  Vs.  N.B.  Bhoir  &  Ors.  [2000  (2)  SCC  254]  and  

Ravinder  Singh  alias  Bittu  Vs.  State  of  Maharashtra  

[2002 (9) SCC 55].  The other two decisions relied upon  

by learned ASG are Lokeman Shah & Anr. Vs. State of W.B.  

etc. etc. [2001 (5) SCC 235] and Abdulvahab Abdul Majid  

Shaikh & Ors. Vs. State of Gujarat etc. etc. (cited  

supra).  Shri Rawal pointed out that in the decision in  

S.N. Dube Vs. N.B. Bhoir & Ors. (cited supra), in fact,  

the confession was recorded in the police station and as  

such, the guidelines provided in Kartar Singh Vs. State  

of Punjab (cited supra) were not strictly adhered to.  

Further, our attention was invited to the observations  

made by this Court in the following terms:-

“Therefore, merely because some of those guidelines were  not followed while recording the confessions it cannot  for that reason be held that the said confessions have  lost their evidentiary value.  If while recording the  

3 3

confessions the police officer had followed all those  guidelines also then that would have been a circumstance  helpful  in  inferring  that  the  confessions  were  made  after full understanding and voluntarily.”

It would, therefore, be clear, as rightly contended  

by Shri Rawal that merely because guidelines in Kartar  

Singh Vs. State of Punjab (cited supra) were not fully  

followed,  that  by  itself  does  not  wipe  out  the  

confession recorded.  We have already given our reasons  

for holding that the confession was recorded by A.K.  

Suri (PW-2) taking full care and cautions which were  

required to observe while recording the confession.  In  

Ravinder  Singh  alias  Bittu  Vs.  State  of  Maharashtra  

(cited supra), it has been observed in Paragraph 19 that  

if the confession made by the accused is voluntary and  

truthful and relates to the accused himself, then no  

further corroboration is necessary and a conviction of  

the accused can be solely based on it.  It has also been  

observed that such confessional statement is admissible  

as  a  substantive  piece  of  evidence.   It  was  further  

observed that the said confession need not be tested for  

the contradictions to be found in the confession of the  

co-accused.  It is for that reason that even if the  

other oral evidence goes counter to the statements made  

in the confession, one’s confession can be found to be  

voluntary and reliable and it can become the basis of  

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the  conviction.   In  this  case,  there  is  ample  

corroboration to the confession in the oral evidence as  

well as the documentary evidence in shape of a chit,  

which is referred to in the said confession.  There is a  

clear reference that the Personal Assistant, who was a  

non-Kashmiri and kept a beard, had sent a slip inside.  

Ultimately, that slip was found by the police, which  

corroborate  the  contents  in  the  confession.   In  our  

opinion,  that  is  a  sufficient  corroboration  to  the  

confession.  In  Lokeman Shah & Anr. Vs. State of W.B.  

etc.  etc.  (cited  supra),  this  Court  considered  the  

confession  which  was  under  Section  164  Cr.P.C.  

Therefore, this case is not of much importance to us.  

In  the  last  referred  case  of  Abdulvahab  Abdul  Majid  

Shaikh & Ors. Vs. State of Gujarat etc. etc. (cited  

supra), a plea was raised that though the Chief Judicial  

Magistrate  was  readily  available  to  record  the  

confession, the police officer recorded the confession  

himself.   This  Court,  in  Paragraph  9  of  the  said  

judgment, observed as follows:-

“The crucial question is whether at the time when the  accused was giving the statement he was subjected to  coercion, threat or any undue influence or was offered  any inducement to give any confession.”

The Court ultimately came to the conclusion that  

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the confession did not suffer from these defects.  In  

Paragraph  13  of  the  said  judgment,  the  question  of  

availability  of  the  Chief  Judicial  Magistrate  was  

discussed.  Further the Court observed:-

“Under  Section  15  of  the  TADA,  a  police  officer  is  permitted to record the confessional statement of the  accused  and  certain  strict  procedure  is  prescribed.

The appellants have no case that this procedure has  in any way been violated.  Merely because the confession  was retracted, it may not be presumed that the same was  not voluntary.”

The confession was accepted by this Court and the  

appeal was dismissed.

28. All these cases suggest that the only test which  

the Court has to apply is whether the confession was  

voluntary and free of coercion, threat or inducement and  

whether  sufficient  caution  is  taken  by  the  police  

officer  who  recorded  the  confession.   Once  the  

confession passes that test, it can become the basis of  

the conviction.  We are completely convinced that the  

confession  in  this  case  was  free  from  all  the  

aforementioned defects and was voluntary.

29. We have gone through the complete confession as was  

given and we are of the clear opinion that the said  

confession was totally voluntary and all the necessary  

precautions were taken while recording the same.  We  

are, therefore, of the opinion that the appellant had,  

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in fact, given the confession voluntarily and he was  

not, in any way, compelled to give the same.  Once that  

position is clear, it only remains to be seen as to  

whether  the  said  confession  could  be  relied  on  

exclusively for proving the offence u/s. 302 of the RPC.  

30. A very substantial argument was raised before us  

that, considering the language of Section 15 of the TADA  

Act,  the  said  confession  could  have  been  used  only  

against the TADA Act offences namely Section 3 of the  

TADA Act which was charged against the accused/appellant  

and  it  cannot  be  used  for  a  Non-TADA  offence  like  

Section 302 of the RPC and it could not even be read in  

order  to  prove  the  said  offence.   This  question  is  

already settled against the defence as we have earlier  

pointed out.  Shri Sushil Kumar urged that we should at  

least make a reference to the larger Bench as the case  

was not correctly decided nor the Judgment was properly  

given.  We are unable to accept the argument of Shri  

Sushil Kumar. The aforementioned judgment is by a three  

Judge Bench and is binding on us.  This is apart from  

the fact that the facts relating to Section 3 (3) of the  

TADA Act and the facts relating to Section 302 of RPC  

are completely inter-mixed in this matter. They are the  

part of the same transaction. A plain reading of the  

confession clearly goes to show that the accused was  

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guilty  of  conspiring  or  attempting  to  commit  or  

advocating, abetting, advising or inciting or knowingly  

facilitating the commission of a terrorist act or any  

act preparatory to a terrorist act. The act of killing  

Moulvi Farooq comes within the definition of ‘terrorist  

act’  as given in Section 2 (h) r/w. Section 3 (1) of  

the  TADA  Act  inasmuch  as,  in  order  to  achieve  the  

objectives as described in Section 3 (1), Moulvi Farooq  

was put to death by firing at him.  The confession in  

clearest  possible  terms  and  in  detailed  manner  shows  

formation  of  a  group  of  terrorists,  who  were  in  all  

seven in number.  The confession of accused refers to  

the training in the use of fire arms and his visit to  

Pakistan in the year 1989 by crossing the border from  

Chowkibal side which is on Kupwara side. The appellant  

has given the whole outfit including the names of leader  

and other companions and the confession also refers to  

the fire arms brought by the group of terrorists from  

Pakistan and the training which was for bringing into  

effect the terrorist activities in the Kashmir valley.  

The appellant then gives a graphic account of the five  

terrorists’  action  in  the  years  1989  and  1990.   The  

appellant  also  gives  a  detailed  account  about  the  

members in the group who had taken active part in those  

activities.   The  last  activity  was  about  killing  of  

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Mirwaiz Moulvi  Farooq on 21.5.1991.  While elaborating  

the  5th terrorist  activity,  it  was  confessed  by  the  

appellant that Moulvi Farooq was considered to be an  

agent of the CBI and the Government of India and two  

days prior to his death, one Abdulla Bangroo had ordered  

killing of Mohd. Farooq. At the time when these orders  

were given, Ajmal Khan and the appellant herein were  

with Abdullah Bangroo.  It is clear from the confession  

that the whole modus operandi was discussed and after  

discussions, the task was given to himself, Bilal and  

Inayat.   They  had  also  visited  the  house  of  Moulvi  

Farooq  and  met  the  Chowkidar  five  days  prior  to  the  

incident.   They  again  visited  the  house  of  deceased  

where  the  appellant  had  a  talk  with  deceased  Moulvi  

Farooq and the financial help which he had promised for,  

was sought.  The date and time for further meeting was  

decided at that time itself. He then gave reasons for  

not killing Moulvi Farooq on that day itself.   

31. The appellant, thereafter, gave a complete story as  

to how they went to Moulvi’s house and further that he  

was  carrying  a  German  pistol,  Inayat  was  carrying  a  

French pistol and Bilal was carrying a Chinese pistol.  

According to him, it was decided that it was Bilal who  

was to fire on  Moulvi while appellant and Inayat were  

to give him protection from others. Detailed description  

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is thereafter given as to how they went from Naidyar by  

Shikara by giving Rs.20/- to him and how they came to  

Durgah Hazratbal.  It has then come in the confession  

that from Hazratbal they walked down to the house of  

Moulvi Farooq and met the Chowkidar whom they had met  

earlier.  A very significant fact is then stated that,  

after they met the Personal Assistant of Moulvi Saheb,  

the said Personal Assistant gave a slip and the Mali who  

had taken the chit inside came out and informed that  

Moulvi Saheb was calling them inside.  Therefore, they  

all got up from the chair and Bilal went inside the room  

of  Moulvi,  while  the   appellant  and  Inayat  took  

positions and took out guns and Inayat had also fired  

one round after Bilal had started firing inside Moulvi’s  

room. The accused had also taken active part in ordering  

others to put their hands up. Thereafter, they ran away.  

He also confirmed that his shirt was held by Gulam Qadir  

Sofi, but he got himself released and ran away.  The  

details of the act,  of their movements after the act  

and about the chit totally convince that this confession  

of the accused was not only a voluntary confession but  

was truthful one.  Anxiety on the part of the appellant  

to given press note after the act has also figured in  

the confession. It has also come in the confession of  

the appellant herein that the appellant got Rs.35,000/-  

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and  he,  therefore,  went  to  Delhi  to  terrorise  the  

Central  Government.  He  then  also  referred  to  his  

activity in Delhi and his total stay in Delhi.  It has  

come in the confession that their group carried out five  

bomb blasts in Delhi.  A graphic description thereof has  

also come in the confession. It has also come in the  

confession  that  he  had  visited  Pakistan,  Lahore  and  

Muzzaffarabad to meet other members of the group namely  

Hyder, Hanif Hyder, Nasir Khan and Yusuf Bangroo on a  

fake passport.  The said confession also gives details  

that the said passport was issued in Sikar,  Rajastan  

with Visa of Pakistan.  He also gave details of the  

dress which he was wearing on the day when Moulvi was  

put  to  death.   All  these  details  cannot  be  said  to  

simply have been imagined by A. K. Suri (PW 2) so as to  

include the same in the confession of the accused.  In  

his  examination  under  Section  313  of  the  Code  of  

Criminal Procedure, the appellant has flatly denied of  

having  made  any  statement,  much  less  confessional  

statement to Shri A.K.Suri.  His answer to a question is  

as follows   :

“I  was  arrested  by  the  Delhi.   I  didn’t  make  any  statement  before  Mr.Suri.   Mr.  Suri  has  indulged  in  making a  wrong statement.  In none of the cases, I made  my statement. Mr. Suri, Company Officer of a case was a  Supervising  Officer.   Whatever  used  to  come  in  his  heart,  he  used  to  do  that.  He  was  conducting  all  proceedings at Delhi. “

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The afore-cited answer suggests that the appellant, at  

no point of time, had ever made any statement to Shri A.  

K. Suri either in Delhi or in Srinagar.  Very strangely,  

however,  in  Ground  A  of  the  appeal,  a  portion  of  

confessional statement is quoted as under:

“Inayat came out of P. A.’s room and had also fired one  round as Bilal started firing inside Moulvi’s room. I  had also taken up the position told the occupant of the  P.A.’s room to hands up. “

Relying on this, the ground further says as under:

“Such a conviction and sentence is prima facie wrong as  the  appellant  at  the  best  could  be  held  guilty  of  abetting the crime of murder and not committing murder.  Therefore,  the  life  sentence  imposed  upon  him  under  Section 302 RPC is wrong in law....... “

32. In  view  of  the  above,  it  is  clear  that  the  

appellant herein on one hand has chosen to rely upon a  

part of the confession and on the other hand, he asserts  

that he had, at no point of time, made any confessional  

statement.  We do not wish to rely on this circumstance.  

However,  we  have  made  mention  of  it  only  to  show  

hollowness of defence on the part of the appellant.

33. Even  otherwise,  we  are  fully  satisfied  that  the  

confession  was  indeed  made  by  the  appellant  and  the  

details  given  in  the  confession  and  the  meticulous  

planning that went behind committing murder of Moulvi  

Farooq, which has been reflected in the confession, not  

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only render it voluntary, but truthful also.  We are  

thoroughly convinced that this confession is not only a  

good, voluntary and truthful confession but a reliable  

one also and the trial Court has committed no mistake  

whatsoever in relying upon the said confession.  Once we  

accept  the  confession  made  u/s.  15  of  the  TADA  Act,  

there  is  no  necessity  of  any  other  evidence  being  

required. A very halting argument was made before us  

that the charge was only for the conspiracy and it was  

clear that the accused was convicted for the offence  

u/s. 302 of RPC simplicitor.  We do not think that such  

an argument can be made when the appellant has taken  

part in the conspiracy.  The way the appellant himself  

has worked in the success of the conspiracy, the way he  

has  handled  the  guns  and  accompanied  two  other  

assailants to the house of Mirwaiz Moulvi Faooq and the  

manner in which the plan was executed convince us that  

the order is absolutely correct.  We have not been able  

to  see  nor  the  learned  Senior  Counsel  appearing  on  

behalf  of  the  appellant  is  able  to  point  out  any  

prejudice being caused on account of defect of charge,  

which  question  was  not  even  argued  before  the  trial  

Court.  We do not find any merit in the instant appeal  

and  proceed  to  dismiss  the  same.   Consequently,  the  

appeal is dismissed.

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................ J.                                        [V. S. Sirpurkar]

                                 .........................J.          [Dr. Mukundakam Sharma]

New Delhi; July 21, 2010.

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