Delhi District Court
87 vs Sreelaka- With Regard To Bank Details Of on 10 February, 2023
1
IN THE COURT OF SH. SANJAY KHANAGWAL
LD. ASJ-02: NEW DELHI DISTRICT
Date of Judgment:- 10.02.2023
SC No. 23/2016
Case No. 9378/2016
FIR No. 67/2015
u/s 17/18/18B/20 of UAPA,
467/471 IPC & 12 (1)
(b) of Indian Passport Act.
P.S. Special Cell
CNR No. DLND01-004616-2016
Complainant: State
REPRESENTED BY State
ACCUSED
1. Mohd. Asif @ Abdul
Rashid
S/o Ata-ur-Rehman,
R/o H. No. 268,
Mohalla Deepa Sarai
Chowk,
District Sambhal, U.P.
2.Zafar Masood @
Guddu
S/o Masood Al Hassan
R/o H. No. 611, Madina
Nagar, Deepa Sarai,
District Sambhal, U.P.
3. Mohd. Abdul
Rehman
S/o Mohd Usman Ali
R/o Village Satabatia,
P.S. Jagatpur,
District Cuttack,Odisha.
State v. Mohd. Asif & ors
FIR No. 67/2015 Page 1 of 180
2
4. Syed Anzar Shah
S/o Syed Momin Shah
R/o H. No. 327, Third
Cross, Hegde Nagar,
Bengaluru, Karnataka.
(Discharged on
17.10.17)
5.Abdul Sami @ Uzair
@ Hasan
S/o Abdul Sattar
R/o Flat No. 3-A, AK
Residency, B-Block,
Dhatkheddi, Line No.3,
Jamshedpur, Jharkhand
Also R/o H. No. 145-G,
Sir Sayed Road, Near
Masjid Umar, Kabir
Nagar, Sarai Kela, Near
Jamshedpur, Jharkhand
6. Syed Mohd Zishan
Ali
S/o Syed Raghebul
Islam Haider
R/o H. No 40, Road No
14, West Zakir Nagar,
PS Azad Nagar,
Jamshedpur, Jharkhand.
7. Dr. Sabeel Ahmed
S/o Maqbool Ahmad
R/o H. No. 1981, 26th
Cross, 9th Main 2nd
Stage, Banashankari,
Bangalore, Karnataka.
State v. Mohd. Asif & ors
FIR No. 67/2015 Page 2 of 180
3
8. Syed Akhtar @
Qasim
S/o Ataur
R/o Gulhadwali Masjid,
Deepa Sarai, District
Sambhal, U.P.
(Declared P.O on
12.07.2016)
9. Sanaul Haq @
Maulana Asim Umar
S/o Irfan Ul Haq @
Chuttu
R/o Deepa Sarai,
District Sambhal, U.P.
(Declared P.O on
12.07.2016)
10. Mohd Sharjeel
Akhtar
S/o Mohd Nehal Akhtar
R/o H. No. 611, Madina
Nagar, Anjuman Road,
Deepa Sarai, Sambhal,
Uttar Pradesh.
(Declared P.O on
12.07.2016)
11. Usman @ Asad
S/o Khurshid
R/o Anjuman Road,
Deepa Sarai, District
Sambhal, Uttar Pradesh.
(Declared P.O on
12.07.2016)
12. Mohd Rehan
S/o Mohd Nisar Ahmad
R/o C-48/26, Gali No.
14, Noorani Masjid,
Chauhan Bangar, Delhi-
State v. Mohd. Asif & ors
FIR No. 67/2015 Page 3 of 180
4
110053.
(Declared P.O on
12.07.2016)
13. Abu Sufiyan
S/o Mohd Sarajuddin
R/o Village Misraul, PO
Khadayya, PS Tandwa,
District Chatra,
Jharkhand.
(Declared P.O on
12.07.2016)
14. Syed Mohammad
Arshiyan @ Haider
S/o Syed Raghebul
Islam Haider
R/o H. No 40, Road No
14, West Zakir Nagar,
PS Azad Nagar,
Jamshedpur, Jharkhand.
(Declared P.O on
12.07.2016)
15. Mohammed
Shahid Faisal @ Ustad
S/o Mohammed Musa
R/o H. No. 9, 2nd Cross,
Model Colony,
Yeshwanthapur,
Bangalore, Karnataka.
(Declared P.O on
12.07.2016)
16. Farhatullah Ghori
S/o Ahmedullah Ghori
R/o H. No. 17-9-161,
Kurmaguda, Saidabad,
Hyderabad, Telangana.
(Declared P.O on
12.07.2016)
State v. Mohd. Asif & ors
FIR No. 67/2015 Page 4 of 180
5
17. Mohd Umar @
Umar Hyderabadi
S/o Mohd Sirajuddin
R/o H. No. 1057/A,
Mohammed Nagar,
Chandrayangutta,
Hyderabad, Telangana.
(Declared P.O on
12.07.2016)
REPRESENTED BY Sh. Sarim Naved and
Sh. Akram Khan,
Advocate for accused
Mohd. Asif, Zafar
Masood, Abdul Sami
and Abdul Rehman.
Sh. M. S. Khan,
Advocate for accused
Dr. Sabeel Ahmed and
Syed Mohd. Zishan Ali
Date of Offence 14.12.2015
Date of FIR 17.12.2015
Date of Charge-sheet 10.06.2016
Date of Framing of Charges On 06.03.2018
( Accused Mohd. Asif,
Zafar Masood, Abdul
Sami, Syed Mohd.
Zishan Ali).
On 06.04.2018 and
19.04.2022 (Accused
Maulana Abdul
Rehman).
On 31.03.2022
(Accused Dr. Sabeel
Ahmed).
State v. Mohd. Asif & ors
FIR No. 67/2015 Page 5 of 180
6
Date of commencement of evidence 24.05.2018
Date on which judgment is reserved 30.01.2023
Date of the Judgment 10.02.2023
Final Order 10.02.2023
ACCUSED DETAILS :
Rank Name of Date of Date of Offence Whether Sentence Alread
Accused Arrest Release charged Acquitted/ Imposed -y
on Bail with convicted underg
-one
period
of
detenti
-on
durin-
g Trial
for
Sec.
428,
CrPC
Mohd. Asif @ 14.12.2015 NA 18/18B Convicted -- --
Abdul Rashid /20 UAPA
Zafar Masood 16.12.2015 NA 18/18B Convicted -- --
@ Guddu /20 UAPA
Mohd. Abdul 16.12.2015 NA 18/18B Convicted -- --
Rehman /20 UAPA
& 467/471
IPC & 12
(1)(b)
Passport
Act.
Mohd. Abdul 18.01.2016 NA 18/18B Convicted -- -
Sami @ Uzair /20 UAPA
@ Hasan
Syed Mohd 09.08.2017 NA 18/18B Acquitted NA -
Zishan Ali /20 UAPA
Dr. Sabeel 28.08.2020 NA 17/18/20 Acquitted NA --
State v. Mohd. Asif & ors
FIR No. 67/2015 Page 6 of 180
7
Ahmed UAPA &
174A IPC
LIST OF PROSECUTION / DEFENCE / COURT
WITNESSES
A. PROSECUTION :
RANK NAME NATURE OF EVIDENCE
(EYE WITNESS, POLICE
WITNESS, EXPERT WITNESS,
MEDICAL WITNESS, PANCH
WITNESS. OTHER WITNESS)
Head Constable Kunjumon Duty Officer (PW1)
Thomas
Owner of Chaudhary Lekh Ram With regard to identification of
Trading Rana accused Mohd. Asif (PW2)
Public Witness Khalid Pasha With regard to hatred speeches
given by accused Maulana Abdul
Rehman (PW3)
Public Witness Syed Dil With regard to speeches of accused
Nawaz Maulana Abdul Rehman. (PW4)
Public Witness Mohd. Brother of accused Rehan (PO)
Zeeshan (PW5)
Director of Minar P. S. Duggal With regard to visit of accused
Travels (India) Ltd Mohd. Asif, Md. Sharjeet Akhtar
and Md. Rehan to Iran. (PW6)
Personal Banker, Shubham With regard to bank account of
HDFC Bank, Jor Sharma accused Syed Mohd. Zishan Ali.
Bagh branch. (PW7)
Assistant Branch Suraj Kumar With regard to bank account of
Manager, HDFC Rohina Ishrat. (PW8)
Bank, South
Extension-I branch
Principle of Anglo- Anwar With regard to School Leaving
Urdu High School, Hussain Certificate of accused Zafar
Gujarat Sheikh Masood. (PW9)
Under Secretary, Ram Singh With regard to Passport of accused
Ministry of Housing Zafar Masood. (PW10)
State v. Mohd. Asif & ors
FIR No. 67/2015 Page 7 of 180
8
and Urban Affairs
Laboratory Assistant, Anuradha Dey With regard to recording of voice
CFSL. sample of accused Mohd. Asif,
Mohd. Abdul Rehman and Zafar
Masood. (PW11)
Head Constable Pawan Kumar With regard to deposit of hard disc
in RFSL Chanakya Puri. (PW12)
Assistant Sub- Shree With regard to apprehention of
Inspector, Counter Bhagwan accused Syed Mohd. Zishan Ali at
Officer at IGI Airport IGI Airport. (PW13)
Head Constable Rohtash With regard to deposit of
Kumar questioned as well as specimen
handwritings in FSL Rohini.
(PW14)
Assistant Sub Sanjeev MHC(M) (PW15)
Inspector
Inspector Dilip Singh With regard to recording the social
media proceedings of accused
Mohd. Asif. (PW16).
Constable Ravi With regard to recording of voice
sample of accused Mohd.Asif and
Maulana Abdul Rehman at CFSL.
(PW17)
Inspector Kailash Singh With regard to investigation qua
Bisht accused Maulana Abdul Rehman,
Mohd. Asif. (PW18)
Scientist-B, Cert-In Surender With regard to recording of social
Expert Kumar media activities of accused Mohd.
Asif, Syed Anzar Shah and Zafar
Masood. (PW19)
Inspector Vikram With regard to investigation qua
Dahiya accused Mohd. Asif, Mohd. Abdul
Sami. (PW20)
Inspector Pankaj Singh With regard to seizure of CPU
from Qureshi Bone Mill. (PW21)
Owner of Qureshi Shakir Singh With regard to seizure of CPU
Bone Mill from Quresh Bone Mill qua
accused Mohd. Asif. (PW22)
Public Witness Shane Alam With regard to handing over of the
passport of accused Zafar Masood.
(PW23)
Inspector Yogesh With regard to recording of voice
State v. Mohd. Asif & ors
FIR No. 67/2015 Page 8 of 180
9
Kumar sample of accused Mohd. Asif and
Abdul Rehman(PW24).
Inspector Ravinder With regard to arrest of accused
Kumar Tyagi Sabeel Ahmed and seizure of bank
details. (PW25)
Assistant Sub- Rajeev Kumar With regard to recording of voice
Inspector sample of accused Syed Mohd.
Zeeshan Ali. (PW26)
Traffic Assistant, Shah Mohd. With regard to reply filed by PIA
Pakistan International Sana-ul- Haq qua passport and journey of
Airlines. accused Abdul Sami. (PW27)
Assistant Director, Suresh With regard to handing over of
Intelligence Bureau, Kadiyan electronic data qua interception of
MHA. mobile numbers and also qua
sanction order for intercepted
conversation of 12 wanted accused
persons (PW28)
Security Supervisor Sh. R. Rama- With regard to passport and
Emirate Airlines nathan journey details of accused accused
Abdul Rehman. (PW29)
Inspector Rahul Kumar With regard to investigation qua
accused Mohd. Asif and Syed
Mohd. Zeeshan Ali. (PW30)
Assistant Satyabir With regard to arrest and
Commissioner of Dagar disclosure statement of accused
Police, Special Cell. Abdul Sami. (PW31)
Assistant Sub- Rajbir Singh With regard to seizure of passport
Inspector and mobile phones of accused
Abdul Sami from his father.
(PW32)
Inspector Rahul Kumar With regard to investigation qua
Singh accused Zafar Masood. (PW33)
Senior Scientific Dr.Subrat With regard to voice examination
Officer, CFSL. Kumar of accused Mohd. Asif and Mohd.
Choudhary Abdul Rehman. (PW34)
Assistant Chemical Syed Ahmar With regard to examination of
Examiner, FSL. Ali specimen writings of accused
Hashmi Mohd. Asif and Abdul Rehman.
(PW35)
Senior Scientific Mahesh With regard to voice recording of
Officer, CFSL Kumar Jain accused Zeeshan Ali. (PW36)
Manager, Bluestar Mohammad With regard to stay of accused
State v. Mohd. Asif & ors
FIR No. 67/2015 Page 9 of 180
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Hotel Eman Quazi Mohd. Asif. (PW37)
Chief Manager, V. Sreelaka- With regard to bank details of
Canara Bank, shmi accused Sabeel Ahmed. (PW38)
Bengluru
Cloth Trader Ashok Goel With regard to handing over
money to accused Mohd. Asif.
(PW39)
Nodal Officer Amit Sharma With regard to mobile phone
Reliance details. (PW40)
Inspector Pramod With regard to investigation qua
accused Abdul Rehman. (PW41)
Assistant Central Devendra With regard to passport and travel
Intelligence Officer Kumar details of Imdadullah Khan.
(PW42)
Inspector Rohit Kumar With regard to investigation qua
Sharma accused Syed Mohd. Zishan Ali.
(PW43)
Salesman Bhagirath Das With regard to identification of
accused Mohd. Asif and handing
over of money to him. (PW44)
Junior Passport Prashant With regard to certified copy of
Assistant, Gujarat Sharma passport details and its destruction.
(PW45)
Public Witness Mohd. Saquib With regard to accused Abdul
Khan Sami, Zishan for recruitment and
speeches given by accused Abdul
Rehman. (PW46)
Sub-Inspector M. Baxla With regard to deposit of case
MHC(M) property in the malkhana. (PW47)
Public Witness Mohd. Sadiq With regard to address details of
Imdadullah Khan. (PW48)
Worker, Ahmed Imtiyaz With regard to stay of Munir and
Guest House, Ahmed Syed. (PW49)
Karnataka.
Station Suptd. Kaushik With regard to travel detail of
Thai Airways. Chatterjee accused Abdul Sami from Bangkok
to Dubai. (PW50)
Public Witness Tajir Pasha With regard to acquaintance with
accused Mohd. Asif and Abdul
Rehman. (PW51)
Assistant Sub- S. Paul With regard to deposit of exhibits
State v. Mohd. Asif & ors
FIR No. 67/2015 Page 10 of 180
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Inspector in CFSL. (PW52)
Protected Public "X" With regard to secret
Witness meetings/logistics provided by
accused Sabeel Ahmed. (PW53)
Assistant Govind With regard to investigation qua
Commissioner of Sharma accused Zishan Ali. (PW54)
Police.
Public Witness Ismail Khan With regard to family detail of
Imdadullah Khan. (PW55)
Deputy Manishi IO of the case. (PW56)
Commissioner of Chandra
Police
Assistant Lalit Mohan With regard to investigation qua
Commissioner of Negi accused Abdul Rehman and Sabeel
Police. Ahmed (PW57)
Scientist-F Omveer Singh With regard to recording of social
Cert-In media activities of accused Mohd.
Asif, Syed Mohd. Zishan Ali.
(PW58)
Passport Officer, K. Venkata- With regard to passport of
RPO, Banglore ramana Imdadullah Khan and other
documents. (PW59)
Notary Public, B. Gopala With regard to attestation of
Banglore Krishna affidavit sworn by accused Abdul
Rehman. (PW60)
B. DEFENCE WITNESSES, IF ANY: NONE
RANK NAME NATURE OF EVIDENCE
(EYE WITNESS, POLICE
WITNESS, EXPERT WITNESS,
MEDICAL WITNESS, PANCH
WITNESS. OTHER WITNESS)
- - --
C. COURT WITNESSES, IF ANY: NONE
State v. Mohd. Asif & ors
FIR No. 67/2015 Page 11 of 180
12
RANK NAME NATURE OF EVIDENCE
(EYE WITNESS, POLICE
WITNESS, EXPERT WITNESS,
MEDICAL WITNESS, PANCH
WITNESS. OTHER WITNESS)
-- - --
LIST OF PROSECUTION/ DEFENCE / COURT EXHIBITS
A. PROSECUTION
Sr. No. Exhibit Number Description
1. Ex. PW 1/A FIR
2. Ex. PW 1/B Rukka
( Ex. PW 56/A)
3. Ex. PW 1/C & Ex.PW 1/D DD Entries
4. Ex. PW 2/A Statement U/s. 161 Cr.
P.C.
5. Ex. PW 5/A Seizure Memo
(Letter , envelopes
slip)
6. Ex. PW 5/P1 English Typed Letter
7. Ex. PW5/P2 DTDC envelope
8. Ex. PW 5/P3 DTDC receipt
9. Ex. PW 6/A Notice u/s. 91 CrPC
10. Ex. PW 6/B Notice u/s. 91 CrPC
11. Ex. PW 6/C Certificate u/s. 65B of
the Evidence Act
12. Ex. PW 6/D Passenger Manifest
Flight
13. Ex. PW 6/E (E1 to E3) Reservation
Confirmed Forced
14. Ex. PW 6/F Invoices
15. Ex. PW6/G Invoices
16. Ex. PW 6/H & Ex. PW 6/I Minar Travel agency
State v. Mohd. Asif & ors
FIR No. 67/2015 Page 12 of 180
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receipt
17. Ex. PW 7/A Notice U/s 91 CrPC to
the HDFC Manager
18. Ex. PW 7/B Instant Account
Opening Form
19. Ex. PW 7/C Bank Statement
HDFC
20. Ex. PW 8/A Notice u/s. 91 CrPC
HDFC Bank, South
Extension branch for
providing the details
of bank accounts for
investigation
purposes.
21. Ex. PW 8/B Net banking opening
form
22. Ex. PW 8/C Bank Statement
23. Ex. PW 9/A Notice u/s. 91 Cr. P.C.
for providing the
information
/verification of SLC,
in the investigation in
the case.
24. Ex. PW9/B School Leaving
Certificate
25. Ex. PW 9/C Reply/Verification of
School Leaving
Certificate to Anglo
Urdu High School
26. Ex. PW 10/A Notice u/s. 91 Cr. P.C.
for providing the
information / details
of the passports for the
investigation in the
case.
27. Ex. PW 10/B Notice u/s. 91 Cr. P. C.
regarding to providing
the information /
details of the passports
for the investigation in
State v. Mohd. Asif & ors
FIR No. 67/2015 Page 13 of 180
14
the case.
28. Ex. PW 10/C Passport Application
Form
29. Ex. PW 11/A Seizure memo voice
sample of Mohd. Asif
30. Ex. PW 11/B Seizure memo voice
sample of Abdul
Rehman
31. Ex. PW 13/A Form for detection of
(Ex. D14) LOC in respect of
accused Syed Mohd.
Zeeshan Ali
32. Ex. PW 15/A Register no. 19
MHC(M) entry
33. Ex. PW 15/B Register no. 19
MHC(M) entry
34. Ex. PW 15/C Register no. 19
MHC(M) entry
35. Ex. PW 15/D Register no. 19
MHC(M) entry
36. Ex. PW 15/E Register no. 19
MHC(M) entry
37. Ex. PW 15/F Register no. 19
MHC(M) entry
38. Ex. PW 15/G Register no. 19
MHC(M) entry
39. Ex. PW 15/H Register no. 19
MHC(M) entry
40. Ex. PW 15/I Register no. 19
MHC(M) entry
41. Ex. PW 15/J Register no. 19
MHC(M) entry
42. Ex. PW 15/K Register no. 19
MHC(M) entry
43. Ex. PW 15/L Register no. 19
MHC(M) entry
44. Ex. PW 16/A Seizure memo of E-
mail DVD of accused
State v. Mohd. Asif & ors
FIR No. 67/2015 Page 14 of 180
15
Mohd. Asif
45. EX. PW 18/A Supplementary
Disclosure of Mohd.
Asif
46. Ex. PW 18/B Copy of order of The
JMFC, Salipur Dist.
Cuttack order dt.
16.12.2015
47. Ex. PW 18/DA Statement u/s 161
Cr.P.C. Of Inspector
Kailash Singh Bisht
48. Ex. PW 18/E Seizure Memo of
accused Md. Abdul
Rehman
49. Ex. PW 18/E2 Pocket Diary
50. Ex. PW 18/ E3 Phone No's entry
papers small diary
pages
51. Ex. PW 18/E5 Retail invoice of
Nokia Mobile
52. Ex. PW 18/E6 Letter to Branch
Manager, Canara
Bank regarding
change of mobile no.
53. Ex. PW 18/E7 Sale deed dt.
04.08.2010
54. Ex. PW 18/E8 Pan Card copy of
Abdul Rehman
55. Ex. PW 18/E9 Fax Number
56. Ex. PW 18/E10 Charger retail invoice
57. Ex. PW 18/E11 Signature Verification
of Abdul Rehman
58. Ex. PW 18/E12 SBI Cash deposit slip
receipt
59. Ex. PW 18/E13 WARIS, Nikahnama
registration entry
60. Ex. PW 18/E14 Letter to Inspector
Incharge, Cantonment
State v. Mohd. Asif & ors
FIR No. 67/2015 Page 15 of 180
16
PS, Cuttack
61. Ex. PW 18/E15 Copy of Voter ID Card
of Mohd. Abdul
Rehman
62. Ex. PW 18/E16 Railway Ticket
Reservation slip
63. Ex. PW 18/E17 Railway Ticket
Reservation slip
64. Ex. PW 18/E18 Railway Ticket
Reservation slip
65. Ex. PW 18/D Request for medical
examination of
accused Mohd. Abdul
Rehman
66. Ex. PW 18/E Report of Doctor
67. Ex. PW 18/C Seizure list of accused
Abdul Rehman
68. Ex. PW 18/F Kalandara U/s 41
Cr.P.C.
69. Ex. PW 18/G Arrest Memo of
Mohd. Abdul Rehman
70. Ex. PW 18/H Disclosure Statement
of Abdul Rehman
71. Ex. PW 18/I Supplementary
Disclosure Statement
Abdul Rehman
72. Ex. PW 18/J Supplementary
Disclosure Statement
Abdul Rehman
73. Ex. PW 18/K Supplementary
Disclosure Statement
of Mohd. Asif
74. Ex. PW 18/L Supplementary
Disclosure Statement
of Abdul Rehman
75. Ex. PW 18/M Supplementary
Disclosure Statement
of Abdul Rehman
State v. Mohd. Asif & ors
FIR No. 67/2015 Page 16 of 180
17
76. Ex. PW 18/N Arrest Memo of Syed
Abzar Shah
77. Ex. PW 18/O Personal Search
Memo of accused
Syed Anzar Shah
78. Ex. PW 18/P Disclosure Statement
of Syed Anzar Shah.
79. Ex. PW 18/Q Kalandara U/s 41.1
Cr.P.C.
80. Ex. PW 18/R Arrest Memo of Syed
Anzar Shah
81. Ex. PW 18/S Disclosure Statement
of Syed Anzar Shah
82. Ex. PW 18/T Disclosure Statement
of Maulana Abdul
Rehman
83. Ex. PW 18/U Supplementary
Disclosure Statement
of Maulana Abdul
Rehman
84. Ex. PW 18/V Supplementary
Disclosure Statement
of Syed Anzar Shah
85. Ex. PW 18/W Seizure memo of Hard
Disk
86. Ex PW 18/X1 to X48 Specimen
Handwriting of
accused Abdul
Rehman
87. Ex. PW 18/Y Supplementary
Disclosure Statement
of Syed Anzar Shah
88. Ex. PW 18/Z Supplementary
Disclosure Statement
of Syed Anzar Shah
89. Ex PW 18/Z1 Supplementary
Disclosure Statement
of Mohd. Abdul
Rehman
State v. Mohd. Asif & ors
FIR No. 67/2015 Page 17 of 180
18
90. Ex. PW 18/Z2 Transcription of
Mohd. Asif
91. Ex. PW 19/A Certificate U/s 65 B of
the Evidence Act
92. Ex. PW 19/B Seizure memo of E
mail Hard Disk of
accused Syed Anzar
Shah.
93. Ex. PW 19/C Certificate U/s 65 B of
the Evidence Act
94. Ex. PW 19/D Seizure memo of E
mail Hard Disk of
accused Syed Anzar
Shah
95. Ex. PW 19/E Certificate U/s 65 B of
the Evidence Act
96. Ex. PW 19/F Seizure memo of
Email /CD
97. Ex. PW 19/G Certificate U/s 65 B of
the Evidence Act
98. Ex. PW 20/A Naksha Mauka
99. Ex. PW 20/B Pointing out memo of
accused Mohd. Asif
100. Ex. PW 20/C Arrest memo of
accused Abdul Sami
101. Ex. PW 20/D Personal Search
Memo of Abdul Sami
102. Ex. PW 20/DA Statement U/s 161
Cr.P.C. Of SI Vikram
Dahiya
103. Ex. PW 20/E Disclosure statement
of Abdul Sami
104. Ex. PW 20/F Disclosure statement
of Abdul Sami
105. Ex. PW 20/G Supplementary
Disclosure Statement
of Abdul Sami
State v. Mohd. Asif & ors
FIR No. 67/2015 Page 18 of 180
19
106. Ex. PW 20/H Supplementary
Disclosure Statement
of Abdul Sami
107. Ex. PW 20/I Supplementary
Disclosure Statement
of Abdul Sami
108. Ex. PW 21/DA Supplementary
Statement of SI
Pankaj Singh
109. Ex. PW 23/A Seizure memo of
Passport related to
Accused Zafar
Masood
110. Ex. PW 23/P1 Original Passport of
Zafar Masood
111. Ex. PW 25/A Interrogation Memo
112. EX. PW 25/B Arrest memo of
Sabeel Ahmed
113. EX. PW 25/C Disclosure Statment of
Dr. Sabeel Ahmed
114. EX. PW 25/DA General Diary
115. EX. PW 25/DB General Diary
116. EX. PW 25/DC Work Done of Police
SI, Suddaguntepalya
Police Station ,
Bangalore
117. Ex. PW 25/D Letter to Manager,
Canara Bank , Sarakki
Layout, Banashankari
Stage II, Jaynagar,
Bangaluru , Karnataka
118. Ex. PW 25/E Canara Bank
Document
119. Ex. PW 25/F Statement of Account
of Sabeel Ahmed,
Canara Bank
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FIR No. 67/2015 Page 19 of 180
20
120. Ex. PW 25/G Reply of Canara Bank
in respect of Notice
u/s 91 Cr.P.C.
121. Ex. PW 26/A Seizure memo of
Voice Sample
122. Ex. PW 27/A Notice U/s 91 Cr.P.C.
To Manager, Pakistan
International Airlines
123. Ex. PW 27/B Reply of Notice U/s
91 Cr.P.C. Pakistan
International Airlines
124. Ex. PW 28/A Letter to Deputy
Director, IB dated
08.04.2016
125. Ex. PW 28/B Certificate u/s 65B of
Indian Evidence Act.
126. Ex. PW 28/C Letter of IO to
Deputy Director, IB
127. Ex. PW 28/DA The Gazette of India
128. Ex. PW 28/D Certificate u/s 65(B)
of Asst Director ,
MHA
129. Ex. PW 28/E Forwarding Letter
130. Ex. PW 29/A Letter of Authority of
Security Supervisor
with Emirate Airlines
at Delhi
131. Ex. PW 29/B Notice U/s 91 Cr.P.C.
To Manager Emirates
132. Ex. PW 29/C Reply of The Emirates
133. Ex. PW 29/D Ticket reservation
receipt
134. Ex. PW 29/E Ticket reservation
receipt
135. Ex. PW 29/F Notice U/s 91 Cr.P.C.
The Manager Emirates
State v. Mohd. Asif & ors
FIR No. 67/2015 Page 20 of 180
21
Airline
136. Ex. PW 29/G Reply of the Emirates
Airlines
137. Ex. PW 29/H Ticket reservation
receipt
138. Ex. PW 29/I Notice U/s 91 Cr.P.C.
The Manager Emirates
139. Ex. PW 29/J Reply of the Emirates
140. Ex. PW 29/K Ticket reservation
receipt
141. EX. PW 29/L Ticket reservation
receipt
142. Ex. PW 30/A Seizure Memo
143. Ex. PW 30/B Arrest Memo Mohd.
Asif
144. Ex. PW 30/C Personal Search
Memo
145. Ex. PW 30/D Disclosure Statement
of Mohd. Asif
146. Ex. PW 30/DA Statement U/s 161
Cr.P.C. SI Rahul
Kumar
147. EX. PW 30/E Supplementary
Disclosure Statement
of Mohd. Asif
148. Ex. PW 30/F Disclosure Statement
of Mohd. Asif
149. EX. PW 30/G Supplementary
Disclosure Statement
of Mohd. Asif
150. Ex. PW 30/H1 to H10 Specimen handwriting
of accused Mohd. Asif
151. Ex. PW 30/I Supplementary
Disclosure Statement
of Mohd. Asif
152. Ex. PW 31/A Notice U/s 160 Cr.P.C.
State v. Mohd. Asif & ors
FIR No. 67/2015 Page 21 of 180
22
To Abdul Sami
153. Ex. PW 32/A Seizure memo of
Passport and mobile
phone
154. Ex. PW 33/A DD No. 17 dt.
15.12.2015
155. Ex. PW 33/B Arrest Memo
156. Ex. PW 33/C Personal search memo
of accused Zafar
Masood
157. Ex. PW 33/D Disclosure Statement of
accused Zafar
158. Ex. PW 33/DA Statement U/s 161
Cr.P.C.
159. Ex. PW 33/E DD No. 19 dt.
16.12.2015
160. Ex. PW 33/F Kalandara U/s 41.1
Cr.P.C.
161. Ex. PW 33/G Arrest memo of Zafar
Masood
162. Ex. PW 33/H Disclosure Statement of
Zafar Masood
163. Ex. PW 33/I Disclosure Statement of
Zafar Masood
164. Ex. PW 33/J Disclosure Statement of
Zafar Masood
165. Ex. PW 33/K Disclosure Statement of
Zafar Masood
166. Ex. PW 33/L Disclosure Statement of
Zafar Masood
167. Ex. PW 34/A Letter to CFSL
168. Ex. PW 34/B FSL report
169. Ex. PW 34/C Letter to CFSL
170. Ex. PW 34/D FSL report
State v. Mohd. Asif & ors
FIR No. 67/2015 Page 22 of 180
23
171. Ex PW 34/DA Auditory analysis of
CFSL
172. Ex. PW 34/DB Auditory analysis of
CFSL
173. Ex. PW 34/DC Auditory analysis of
CFSL
174. Ex. PW 35/A Letter to CFSL
175. Ex. PW 35/B FSL Result
176. Ex. PW 37/A Letter to Hotel Blue Star
of ACP
177. Ex. PW 37/B Reply of Blue Star
Lodge
178. Ex. PW 37/C Copy of Reply of Blue
State Lodge
179. Ex. PW 40/A Copy of letter to All
Telecom Service
Providers
180. Ex. PW 40/B CAF of Reliance of No.
9528029512
181. Ex. PW 40/E Certificate U/s 65 B
regarding the no.
9528029512
182. Ex. PW 40/D1 to D40 Tower location of no.
9528029512
183. Ex. PW 40/F CDR of Reliance No.
9528029512
184. Ex. PW 40/H Certificate U/s 65 B No.
9528029512
185. Ex. PW 40/G CAF of No.
9528029512
186. Ex. PW 41/A Seizure memo of E-mail
C.D.
187. Ex. PW 42/A Assistant Director/CFB
letter dt. 12.07.2022
State v. Mohd. Asif & ors
FIR No. 67/2015 Page 23 of 180
24
188. Ex. PW 42/B Regarding Details of
Passport of Imadullah
Khan
189. Ex. PW 42/C Letter to Govind
Sharma, ACP of IB
190. Ex. PW 43/A Supplementary
Disclosure Statement
Syed Mohd. Zishan
191. Ex. PW 43/B Supplementary
Disclosure Statement
Syed Mohd. Zishan
192. Ex. PW 43/C Seizure Memo of DVD
193. Ex. PW 43/D Supplementary
Disclosure Statement
Syed Mohd. Zishan
194. Ex. PW 43/E Study of Data retrived
by CERT-IN
195. Ex. PW 43/F Extraction Report
196. Ex. PW 43/G Transcript of intercept
call between accused
Syed Mohd. Zishan Ali,
Abdul Rehman and
other person.
197. Ex. PW 43/H Seizure memo of
transcript in a CD.
198. Ex. PW 43/I Road Certificate
199. Ex. PW 43/J1 Forwarding letter of IO
to RPO Banglore
200. Ex. PW 43/J2 Photocopy of passport
(23 documents) and reply of passport
office dated 02.07.2018.
201. Ex. PW 43/J4 Reply of RPO Banglore.
202. Ex. PW 43/K Forwarding letter of IO
to Chief Registrar, Birth
and Death, Banglore.
203. Ex. PW 43/K1 Photocopy of the
certificate.
State v. Mohd. Asif & ors
FIR No. 67/2015 Page 24 of 180
25
204. Ex. PW 43/L Reply of JD, Statistics,
BBMP.
205. Ex. PW 43/L1 Rule regarding weeding
out.
206. Ex. PW 43/M Forwarding letter of the
IO to Food & supply
Office.
207. Ex. PW 43/M1 Copy of the ration card
208. Ex. PW43/N Reply of Food & Supply
office.
209. Ex. PW 43/O Statement of Mohd.
Sadiq
210. Ex. PW43/P Statement of Imtiaz
Ahmed
211. Ex. PW 43/Q Statement of Ismail
Khan
212. Ex. PW 43/R Statement of B. Gopal,
Notary Public.
213. Ex. PW 43/S Reply of SHO, PS
Shivaji Nagar.
214. Ex. PW 45/A Certified Copy of order
regarding destruction.
215. Ex. PW 45/B Certified copy of the
(26 pages) passport related
documents of accused
Zafar Masood.
216. Ex. PW 45/C A set of documents Ex.
PW 45/B certified by H
A Malani.
217. Ex. PW 47/A Register no. 19
MHC(M) entry
218. Ex. PW 47/B Register no. 19
MHC(M) entry
219. Ex. PW 47/C Register no. 19
MHC(M) entry
220. Ex. PW 47/D Register no. 19
MHC(M) entry
State v. Mohd. Asif & ors
FIR No. 67/2015 Page 25 of 180
26
221. Ex. PW 47/E Register no. 19
MHC(M) entry
222. Ex. PW 50/A Notice u/s 91 CrPC to
Thai Airways.
223. Ex. PW 50/B Reply of Thai Airways
224. Ex. PW 50/C Arrival Stamp of Thai
Airways on the
passport of Abdul
Sami
225. Ex. PW 51/A Statement u/s 164
CrPC of Tajir Pasha
226. Ex. PW 51/B Statement u/s 161
CrPC of Tajir Pasha
227. Ex. PW 51/C Statement u/s 161
CrPC of Tajir Pasha
228. Ex. PW 52/A Copy of Road
Certificate
229. Ex. PW 52/DA Statement u/s 161
CrPC
230. Ex. PW 54/A Arrest memo of Syed
Mohd. Zishan Ali
231. Ex. PW 54/B Personal search memo
of Syed Mohd. Zishan
Ali
232. Ex. PW 54/C Seizure memo
233. Ex. PW 54/D Disclosure statement
of accused Syed
Mohd. Zishan Ali
234. Ex. PW 54/P1 Mobile phone
alongwith charger and
lead of Syed Mohd.
Zishan Ali
235. Ex. PW 54/P2 Boarding Pass of Syed
Mohd. Zishan Ali
236. Ex. PW 56/B Certificate u/s 65B of
Evidence Act
State v. Mohd. Asif & ors
FIR No. 67/2015 Page 26 of 180
27
237. Ex. PW 56/C Letter of IO to FRRO
238. Ex. PW 56/D Certified copy of
(De-exhibited) Hotel Blue Star
documents
239. Ex. PW 56/E Forwarding letter to
CERT-In
240. Ex. PW 56/F Letter to MEA
241. Ex. D5 Reply of MEA
242. Ex. PW 56/G Nine documents filed
with reply by MEA
243. Ex. PW 56/H Notice u/s 91 CrPC to
brother-in-law of
accused Zafar
Masood.
244. Ex. PW 56/I Letter to Assistant
Director, CFB to
provide details.
245. Ex. PW56/J & K Notices u/s 91 CrPC
to RPO Ahmedabad.
246. Ex. PW 56/L Notice u/s 91 CrPC to
RPO Bareilly.
247. Ex. PW 56/M Self explanatory note
248. Ex. PW 56/N Letter to DSP,
Bistupur, Jharkhand
249. Ex. PW 56/O Certified copy of
FIR/Case No.
21/2016, PS Bistupur
250. Ex. PW 57/A Application for
interrogation and
arrest of accused
Sabeel Ahmed.
251. Ex. PW 57/B Application for PC
remand of accused
Sabeel Ahmed.
252. Mark PW 57/C Copy of judgment of
State v. Mohd. Asif & ors
FIR No. 67/2015 Page 27 of 180
28
court of Saudi Arabia.
253. Ex. PW 58/A Letter to Cert-In
dated 21.08.2017
254. Ex. PW 58/B Certificate u/s 65B of
Evidence Act of
Omveer Singh.
255. Ex. PW 58/C Report of Omveer
Singh, Cert-In expert.
256. Ex. PW 58/D1 to D3 Photograph of sealed
parcels and of
exhibits/devices
257. Ex. PW 58/E Memory card imaging
report
258. Ex. PW 58/F Forwarding letter of
Cert-In expert
259. Ex. PW 59/A Forwarding letter to
ACP regarding
passport details of
Imdadullah Khan
260. Ex. PW 59/C1 to C8 Certified scanned
copies of the
application form of
Imdadullah Khan
261. Ex. PW 59/D Certified scanned
copy of police record
regarding Imdadullah
Khan.
262. Ex. PW 59/E1 to E4 Certified scanned
copy of application
form consisting of
four pages sent to
police for verification
263. Ex. PW 59/F Certified scanned
copy of the ration card
of Imdadullah Khan
264. Ex. PW 59/G Certified scanned
copy of the affidavit
of Imdadullah Khan
265. Ex. PW 59/H Certified scanned
State v. Mohd. Asif & ors
FIR No. 67/2015 Page 28 of 180
29
copy of non-
availability certificate
given by Imdadullah
Khan
266. Ex. PW 59/I-1 and I-2 Certified scanned
copy of affidavit of
Imdadullah Khan in
respect of his date of
birth.
267. Ex. PW 59/J Certified scanned
copy of Internet
reference no. 104593
B. DEFENCE: NONE
Sr. No. Exhibit Number Description
- - --
C. COURT EXHIBITS
Sr. No. Exhibit Number Description
Nil Nil
Nil Nil
D. MATERIAL OBJECTS :
Sr. No. Material Description
Object
Number
1 Nil Nil
2 Nil Nil
JUDGMENT
State v. Mohd. Asif & ors FIR No. 67/2015 Page 29 of 180 30
1. By way of the instant judgment, I propose to dispose off the instant case wherein the above mentioned accused persons have been sent up to face trial in this Court for commission of offences punishable u/s 17/18/18B/20 of UAPA, u/s 467/471 IPC and u/s 12(1)(b) of Indian Passport Act.
2. Facts in brief: Special Cell was receiving continuous information that militant organization AQIS is trying to set up its base in India to disturb its peace and tranquility for which its module became active in Western UP, particularly in District Sambhal, so the said information were cultivated and sources were deployed over there to find out the people visiting foreign countries including Iran, Turkey and Pakistan and involved in suspicious activities.
On 14.12.2015, at around 1.30 PM, on receipt of secret information regarding the presence of accused Mohd. Asif at Welcome Bus Stand, near Seelampur flyover at about 3.30 PM to take bus for going to Sambhal, Uttar Pradesh and that said Mohd. Asif would come there after meeting his associates in the area of Walled City, a raiding team was constituted. The members of raiding team took their respective position at about 3.15 p.m and at about 3.30 p.m, one person was seen coming from Seelampur side with a black colour shoulder bag who was identified by the secret informer as accused Mohd. Asif. Accused Mohd. Asif was apprehended by the raiding team. He was State v. Mohd. Asif & ors FIR No. 67/2015 Page 30 of 180 31 interrogated and his disclosure statement was recorded by the police wherein he revealed that he had joined the terrorist organisation Al-Qaeda (hereinafter referred to as "AQ") and the group to which he belonged was called Al- Qaeda in Indian Sub-continent (hereinafter referred to as "AQIS"). He revealed that he had radicalized youth of Western Uttar Pradesh to join Al-Qaeda and they were sent to Pakistan to receive terrorist training. Accused Mohd. Asif further disclosed that he was in direct contact with AQIS Chief Asim Umar, whose real name is Sana-ul- Haq r/o Sambhal UP and he personally met him and other wanted AQIS cadres i.e. accused Usman, Syed Akhtar @ Qasim and others in Waziristan, Pakistan. Mohd. Asif also admitted to have various outfit members namely Zafar Masood @ Guddu r/o Sambhal UP, Maulana Abdul Rehman r/o Cuttack, Odisha, Maulana Anzar Shah r/o Bangalore, Karnataka and others in India.
It is alleged that during investigation, the disclosure made by accused Mohd. Asif regarding above Al-Qaeda in Indian Subcontinent. He disclosed that he was in touch with one Syed Akhtar @ Qasim and Sanaul Haq @ Maulana Asim Umar @ Sannu who were verified and found to be wanted militants of AQIS and operating in India from abroad. Pursuant to the disclosure statement of accused Mohd. Asif, accused Zafar Masood @ Guddu was apprehended from Sambhal UP, accused Maulana Abdul Rehman was apprehended from Cuttack Odisha and Syed Anzar Shah was apprehended from Bengaluru, Karnataka. State v. Mohd. Asif & ors FIR No. 67/2015 Page 31 of 180 32 During investigation, it was also disclosed by accused Mohd. Asif that on 23.06.2013, he had left India for Pakistan illegally via Iran alongwith Mohd. Rehan r/o Delhi and Mohd. Sharjeel Akhtar r/o Sambhal UP for getting terrorist activities training.
During investigation, the travel details of accused Mohd Asif were collected from Minar Travels (India) Pvt. Ltd, Connaught Place, New Delhi, as per which, accused Mohd Asif, Mohd Sharjeel Akhtar and Mohd Rehan had booked air tickets by Mahan Airlines for departure from Delhi to Tehran on 23.06.2013 and arrival from Tehran to Delhi on 10.07.2013. However, neither accused Mohd Asif nor Mohd Sharjeel Akhtar and Mohd Rehan returned India on these tickets and their amount of Rs. 16860/- (approx) is still lying with the said office for refund of their return ticket as per rules of Airlines.
It is also alleged that during investigation, the arrival mode of accused Mohd Asif into India was sought from Ministry of External Affairs and as per report, accused Mohd Asif had come to India through Turkey, as he had submitted a false application before Consulate General of India, Istanbul, Turkey on 26.08.2014 with reason that he had come Istanbul, Turkey on tour and lost his passport. The Consular General verified his citizenship and issued Emergency Certificate on 29.09.2014 with remarks as "Illegally living in Turkey". During investigation, accused Mohd Asif was also found visiting Bangalore, Karnataka for meeting with other arrested State v. Mohd. Asif & ors FIR No. 67/2015 Page 32 of 180 33 AQIS militants i.e. Maulana Anzar Shah and Maulana Abdul Rehman. During this visit, he had stayed in Blue Star Lodge 34, Nawab Hyder Ali Khan Main Road, Kalasipalyam, Near Bus stand, Bangalore from 10.09.2015 to 11.09.2015 and met accused Maulana Anzar Shah and Maulana Abdul Rehman there. During investigation, it is also revealed from one intercepted call dated 11.09.2015 between him (Mohd Asif) and accused Maulana Abdul Rehman that the accused persons were having link with each other and wanted accused persons. In this intercepted call, they were also talking about wanted accused Mohd Umar @ Umar Hyderabadi and arrested accused Syed Anzar Shah.
During investigation, it is also revealed that accused Mohd Asif had received Rs. 2 Lacs from wanted AQIS accused Syed Akhtar @ Qasim through Hawala in Delhi for terrorist activities. During investigation, accused Mohd. Asif took the police team to Chaudhary Trading company, Naya Bazar, Lahori Gate, Delhi and pointed out towards one one Bhagirath Dass as the same person who had given him Rs. 2 Lacs. The said Bhagirath Dass also identified accused Mohd Asif as same person who had visited his office about 7-8 months ago to receive this amount.
3. During investigation and pursuant to the disclosure statement of accused Mohd. Asif, accused Zafar Masood @ Guddu was arrested in this case on 16.12.2015 from State v. Mohd. Asif & ors FIR No. 67/2015 Page 33 of 180 34 Sambhal, Uttar Pradesh. He was interrogated who made disclosure statement. During investigation, it was revealed that accused Zafar Masood @ Guddu was close to wanted accused Sanaul Haq @ Maulana Asim Umar @ Shanu, accused Usman @ Asad and accused Syed Akhtar @ Qasim. Accused Zafar Masood, on the directions of outfit members, visited Pakistan in November-December, 1999 pretending to be doing the business of Pan/Katha and met wanted accused Syed Akhtar @ Qasim and Sanaul Haq @ Maulana Asim Umar @ Shanu in terrorist outfit Harkat-e- Mujahidin camp. Accused also admitted to have received arms and ammunition training in Pakistan. He also admitted to have remained in touch with outfit members for terrorist activities. Accused Zafar Masood also disclosed that on the directions of accused Usman @ Asad in March 2001, he arranged for the stay of two Pakistani militants namely Syed Mohd @ Hamja and Maqsood Ahmed @ Ali in Jamia, Delhi but they were apprehended by the police. Accused Zafar Masood further disclosed that thereafter he started living at various places in Gujarat and during his stay in Gujarat, he obtained another passport with fake identity in the name of Zafar Masood Shaikh S/o Shaikh Masood Hasan. On verification, the said passport was found to be forged. During investigation, it was also revealed that in 2013, wanted accused Syed Akhtar @ Qasim instructed him to pay Rs.1 lakh to accused Mohd. Asif for terrorist activities and he accordingly paid the amount which was used by accused Mohd Asif to purchase State v. Mohd. Asif & ors FIR No. 67/2015 Page 34 of 180 35 tickets for himself, Sharjeel Akhtar and Mohd Rehan for purchasing to and fro air tickets of Delhi-Tehran (Iran) to go to Pakistan illegally via Iran-Afghanistan for terrorist training.
4. Pursuant to disclosure statement of accused Mohd Asif, on 16.12.2015 accused Mohd Abdul Rehman was apprehended from Cuttack, Odisha and was arrested in the present FIR on 17.12.2015. At the time of his arrest, mobile phone, Tab, Passport, SD card, Voice recorder, Compact Disks (CDs), PAN card, Trust Deed, paper slips having lots of mobile numbers etc were seized.
Accused Mohd. Abdul Rehman was interrogated and his disclosure statement was recorded in which he admitted that in the year 1999, he had met one Jaish-e- Mohd militant (JeM) Salim r/o Pakistan in Deoband, Uttar Pradesh, who was involved in hijacking of IC-814 Indian Airlines flight from Nepal and release of JeM militant Maulana Masood Azhar by the Govt. of India. He also admitted that he provided safer hideouts to militants Salim, Mansoor and Sajjad of terrorist outfit Jaish-e-Mohd for terrorist activities in India but they were killed in shootout at Gomti Nagar, Lucknow Uttar Pradesh in April 2001. Accused Mohd. Abdul Rehman also admitted that in the year 2009, he had met wanted accused Dr. Sabeel Ahmad in Bangalore who had come to India from London. It was further disclosed by accused Mohd Abdul Rehman that wanted accused Sanaul Haq @ Maulana Asim Umar (Head State v. Mohd. Asif & ors FIR No. 67/2015 Page 35 of 180 36 of AQIS) had also studied with him at Darul-uloom, Deoband.
During investigation, it is revealed that accused Mohd Abdul Rehman had sent wanted accused Mohd Umar @ Umar Hyderabadi, Abu SufIyan and accused Abdul Sami to Pakistan for training through other wanted accused Syed Mohd Arshiyan, Dr. Sabeel Ahmad and Shahid Faisal @ Yusuf.
During investigation, it is revealed that between 08.01.2015 to 28.02.2015, accused Mohd. Abdul Rehman visited Saudi Arab and during this period, he illegally travelled to Pakistan for meeting various outfit members. As per report of "Emirates Airlines" Dubai, UAE record, he had travelled from Karachi to Dammam via Dubai on 15/16.02.2015. During investigation, passport of accused Mohd Abdul Rehman was seized but no arrival/departure visit stamps or Visa of Pakistan was found. During investigation, accused Mohd Abdul Rehman has further admitted that during Pakistan visit, he met most wanted militant Zakir-ur-Rehman Lakhwi, Chief of Lashker-e-Toiba in Rawalpindi jail, Pakistan, Hafiz Syed Chief of Jamiat-ul-Dawa in Lahore, Pakistan, Kasim Bhai @ Sajid Mir who was wanted in 26/11 Mumbai attack and wanted accused Faratullah Gauri @ Chacha in Rawalpindi, Pakistan for planning to carryout more terrorist activities in India. Accused Mohd Abdul Rehman was found in contact with a criminal namely Raju r/o Tata Jamshedpur, having jihadi mindset, who used to run an arms factory. In State v. Mohd. Asif & ors FIR No. 67/2015 Page 36 of 180 37 the year 2012, the said Raju and his associates gave the delivery of arms in Bangalore but before any terrorist outfit, this huge haul of arms was seized by the police. During investigation, it is revealed that in September 2015, accused Mohd Abdul Rehman visited Bangalore and met accused Mohd Asif who gave him the message of accused Mohd Umar @ Umar Hyderabadi by introducing himself as head of AQIS (Al-Qaeda Indian Sub-Continent) and accused Sanaul Haq @ Maulana Asim Umar as head of AQIS. Mohd Asif discussed about the planning and objectives of AQIS and that he requires more youth for strengthening its base in India.
5. During investigation, in May 2018, it was revealed that accused Mohd Abdul Rehman had procured the passport bearing no. F1233600 in the year 2004 with fake name Imdadullah Khan S/o Khadar Nawaz Khan R/o No. 151, Lal Masjid Building upon the strength of forged and fabricated documents i.e. ration card, affidavit in support of his birth certificate. After verifying the documents, Section 464, 465, 468, 471, 174A, 120B, 174A of IPC and section 12 (1) B of Passport Act 1967 were also added against accused Mohd. Abdul Rehman.
Besides the present FIR, accused Mohd. Abdul Rehman was also found involved in (i) FIR No. 21/2016 dated 25.01.2016 at P.S. Bistupur East Singbhum District Jamshedpur, Jharkhand and (ii) Case no. 244/2015 dated 17.12.2015 at P.S. Jagatpur, Cuttack, Odisha & case No. 3 dated 25.02.2016 of P.S. Special Task Force, State v. Mohd. Asif & ors FIR No. 67/2015 Page 37 of 180 38 Bhubaneshwar Odisha.
6. During investigation, on 07.01.2016, accused Syed Anzar Shah was apprehended from Bengaluru, Karnataka and was arrested in the present case. He was also interrogated and his disclosure statement was recorded.
7. Pursuant to the disclosure statement of accused Mohd. Abdul Rehman, accused Abdul Sami was arrested on 18.01.2016. He was also interrogated and his disclosure statement was recorded wherein he stated that in the year 2000-01, he had met Maulana Abdul Rehman in Muhajir- Ansar Masjid, Usman Gani, Jakir Nagar, Jamshedpur, Jharkhand for discussion on Islam and religion. He was interested in studying at Madarsa and also wanted to become Hafiz. Initially his family members were not agreeing to send him Madarsa for study. Later on, his brothers convinced his father to allow him to send Madarsa for study. He used to see video/speeches of most wanted militant of Jaish-e-Mohd (JeM) Maulana Masood Azhar and Jamat-ud-Dawa chief Hafiz Saeed on internet and he then got inclined towards Jihad and asked accused Mohd Abdul Rehman to send him to Pakistan for Jihadi training. In the mean time in June 2012, he met wanted accused Abu Sufiyan, who also had Jihadi mindset and he was also interested to go to Pakistan for Jihadi training. Accused Abdul Sami fixed a meeting with Mohd. Abdul Rehman who arranged talk of accused Abu Sufiyan with militant State v. Mohd. Asif & ors FIR No. 67/2015 Page 38 of 180 39 Salman and thereafter they both got Visa for Dubai and from there they reached Pakistan where they were received by Salman Bhai, whose real name was Mohd Shaheed Faisal @ Yusuf r/o Karnataka and Farhatullah Ghori @ Chacha r/o Hyderabad, Telangana. They obtained arms/ammunitions training in terrorist outfit camps at Muzaffrabad, POK. He further disclosed that after successful jihadi training, in January 2015, he reached Dubai after getting tickets and money from Mohd Shaheed Faisal @ Salman @ Yusuf and with the help of outfit member, he boarded PIA flight without Stamp and Entry on his passport and continued living there with outfit members and in March 2015, he reached India via Nepal and met Maulana Abdul Rehman who asked him to remain in touch for further terrorist action. During investigation, on verification of the passport, it is found that there is no arrival/departure entry of Pakistan on his passport. The travel details of accused Abdul Sami were also got verified and as per passport details and report of Emirates Airlines, Dubai UAE, he reached Dubai on 27.01.2014 using one way air ticket. As per report received from Pakistan International Airlines (PIA), he had left Karachi on 05.01.2015 and same day reached Dubai, UAE for which there was an arrival stamp of UAE on this passport and also there was an exit stamp dated 05.02.2014 of UAE on this passport, which is correct but there are fake stamps of arrival in Malaysia dated 05.02.2014 and exit dated 16.12.2014 on this passport to cover the illegal travel of State v. Mohd. Asif & ors FIR No. 67/2015 Page 39 of 180 40 accused Mohd Abdul Sami to Pakistan. It is also found that there was also an exit stamp of accused Mohd Sami from UAE on 09.03.2015 and arrival stamp at Kathmandu (Nepal) on 09.03.2015, which on verification were found to be correct. During investigation, it is established that accused Abdul Sami had illegally remained in Pakistan from 05.02.2014 to 05.01.2015 i.e. for over eleven months with his outfit members to learn the modus operandi of terrorist activities in India. Besides the instant FIR, accused Abdul Sami was also found involved in FIR No. 21/2016 dated 25.01.2016 U/s 121, 121A, 120B, 34 IPC, 25 (1-b) A, 26, 35 Arms Act, 17 CLA Act-1908, 6, 8, 19, 20, 23 Unlawful Activities (Prevention) Act-1967 at P.S. Bistupur East Singbhum District Jamshedpur, Jharkhand.
8. On 09.08.2017, accused Syed Mohd. Zishan Ali was apprehended from IGI Airport, he was interrogated and his disclosure statement was recorded by the police. During investigation, accused Syed Mohd Zishan Ali alongwith his other associates was found providing logistics/finance aid to the arrested as well wanted accused persons of AQIS outfit in India and abroad. Accused Syed Mohammad Arshiyan @ Haider is the real brother of Syed Mohd. Zishan ali and accused Sabeel Ahmed is the brother-in-law of accused Syed Mohd. Zishan Ali. On 16.10.2015, accused Syed Mohd Zishan Ali had come to Bengluru by air from Kingdom of Saudia Arab for attending Walima party on 26.10.2015 and thereafter he State v. Mohd. Asif & ors FIR No. 67/2015 Page 40 of 180 41 returned back on 12.11.2015. In that Walima Party, he had also invited accused Mohd. Abdul Rehman at Aliflamim Tower, Ranchi Road, Jamshedpur. During investigation, the transcript of an intercepted call between accused Syed Mohd. Zishan Ali and Maulana Abdul Rehman both using mobile number (8149200524) with third person, who was using mobile number 7893105850, on 06.11.2015 at 14:26:34 Hrs (Duration- 430 Seconds) proves that accused Maulana Abdul Rehman had visited Jamshedpur (Jharkhand) to meet accused Syed Mohd Zishan Ali to attend his Walima party on the said date.
9. During investigation, certified copies of Customer Application Form and Call Detail Record of mobile number 81429200524 used by accused Syed Mohd Zishan Ali was obtained from the service provider, as per which, accused Syed Mohd Zishan Ali had obtained this mobile SIM on his voter identity card having his own photograph but having wrong parentage and was in touch from this number with arrested and wanted accused persons of this case. During investigation, voice sample of accused Syed Mohd Zishan Ali and Maulana Abdul Rehman was obtained which got matched with their questioned intercepted call.
10.During investigation, the result of intercepted call of mobile number 9528029512 (used by accused Mohd. Asif) on 11.09.2015 at 15:33:20 hrs for having conversation State v. Mohd. Asif & ors FIR No. 67/2015 Page 41 of 180 42 Mohd Abdul Rehman was received and sample voice of both accused persons Mohd Asif and Mohd Abdul Rehman were found matched with this questioned intercepted call.
11.On 28.08.2020, accused Sabeel Ahmad, who was a Proclaimed Offender vide order dated 12.07.2016, was arrested by the National Investigation Agency (NIA), Hyderabad from IGI airport, Delhi in case RC No. 04/2012/NIA-HYD. At the time of his arrest, twelve mobile phones, 21 SIM cards, 04 Pen Drives, 01 I-Pad, 02- SD cards, 01-tab, 5 Banks Visa/Debit cards, 1-donation receipt book no. 11 having receipts from Sl. No. 1001 to 1100, Quick Pay card of Mohd Shahid Faisal (wanted) and other incriminating articles were seized from him. During investigation, it was revealed that he was in touch with Mohd Shahid Faisal, Mohd. Umar @ Umar Hyderabadi for terror activities. Accused Sabeel Ahmad was also collecting donation equivalent to Rs. 25,000/- which he used to keep with him in Saudi Arabia and send the amount of Rs. 25,000/- to accused Mohd Abdul Rehman from his rental income of properties situated in Bengaluru and other places in Karnataka through Amr Syed and Tajir Pasha.
12.Accused Sabeel Ahmed is reported to be also involved in case RC No. 04/2012/NIA/Hyd dated 25/11/2012 for hatching conspiracy to kill prominent politicians, police officers and journalists in Bengaluru, Hubli, Hyderabad State v. Mohd. Asif & ors FIR No. 67/2015 Page 42 of 180 43 and Nanded with the help of terrorist outfit Lashkar-e- Toiba (LeT) militants based in Saudi Arabia, Pakistan and their associates in India in Karnataka, Andhra Pradesh and Maharashtra etc and in another terror case related to suicidal attack at Glasgow Airport, United Kingdom on 30.06.2007 in which his elder brother Kafeel Ahmad succumbed to injuries in which he has already been convicted. Accused Sabeel Ahmed was arrested in the present FIR on the strength of the statement of witnesses, seized case properties etc. As the accused was declared Proclaimed offender, Section 174A IPC is also added against him in the charge-sheet.
13.After completion of investigation, charge-sheet and respective supplementary charge-sheets were filed against accused Mohd. Asif @ Abdul Rashid, Zafar Masood @ Guddu, Mohd. Abdul Rehman, Syed Anzar Shah, Abdul Sami, Syed Mohd. Zishan Ali and Sabeel Ahmed for offences punishable u/s 17, 18, 18B and 20 of Unlawful Activities (Prevention) Act, 2008 and 174A IPC. Proclamation proceedings were initiated against the remaining accused persons, namely, Syed Akhtar @ Qasim, Sanaul Haq @ Maulana Asim Umar, Mohd. Sharjeel Akhtar, Usman @ Asad, Mohd. Rehan, Abu Sufiyan, Syed Mohammad Arshiyan @ Haider, Mohammed Shahid Faisal @ Ustad, Farhatullah Ghori and Mohd. Umar @ Umar Hyderabadi and they were declared Proclaimed Offenders.
State v. Mohd. Asif & ors FIR No. 67/2015 Page 43 of 180 44
14.After taking cognizance, documents were supplied to the accused persons and the case was committed to the court of Sessions.
15.During the course of trial, vide order dated 17.10.2017, charge was framed against accused Mohd. Asif, Zafar Masood, Maulana Abdul Rehman and Abdul Sami for the offences punishable under Section 18, 18-B and 20 of UA(P) Act to which they pleaded not guilty and claimed trial.
However, accused Syed Anzar Shah was discharged of the offences u/s 18, 18-B and 20 of UA(P) Act.
16.Vide order dated 06.03.2018, charge was framed against accused Syed Zishan Ali for the offences punishable under Section 18, 18-B and 20 of UA(P) Act to which he pleaded not guilty and claimed trial.
17.Vide order dated 22.03.2022, charge was framed against accused Dr. Sabeel Ahmed for the offences punishable under Section 174A IPC and under Section 17, 18 and 20 of UA(P) Act to which he pleaded not guilty and claimed trial.
18.Vide order dated 01.04.2022, additional charge was framed against accused Maulana Abdul Rehman for the offences State v. Mohd. Asif & ors FIR No. 67/2015 Page 44 of 180 45 punishable under Section 467/471 of IPC and under Section 12(1)(b) of Indian Passport Act to which he pleaded not guilty and claimed trial.
19.In order to prove its case, prosecution has examined as many as 60 witnesses which are as under :-
PW1 HC Kunjomon Thomas was posted as Duty Officer, P.S Special Cell on 14.12.2015 and on that day, on receipt of rukka, he recorded the formal FIR Ex. PW 1/A. PW1 has proved his endorsement on the rukka as Ex. PW1/B. PW1 has also proved the Qaimi DD Entry no. 11A as Ex. PW1/C and also Bandi DD Entry no. 12A as Ex. PW1/D. He stated that after registration of present FIR, the investigation was handed over to IO Addl DCP Manishi Chandra.
PW2 Lekh Ram Rana, owner of office Chaudhary Trading situated at Naya Bazar. He has deposed that he was having business relations with Ashok Goel of M/s Nandini Enterprises situated at Kolkata. PW2 was cross- examined by Ld. Addl. PP and in his cross-examination, he has denied having told to the police that in May,2015, Ashok Goel had called him or gave phone number of a person or also asked him to give Rs.2 lacs to that person which was a consideration against the cloth purchased by him in Kolkata. PW2 further denied that the said person called him at his office number 9311333299 or that the said person came to his office in his absence and his staff State v. Mohd. Asif & ors FIR No. 67/2015 Page 45 of 180 46 member Bhagirath Das handed over to him Rs.2 lacs. PW2 Lekh Ram further denied that he adjusted the amount of Rs.2 lacs with Ashok Goel or that on 12.01.2016, the said person again came to his office alongwith police and identified Bhagirath Dass to be the person who had given him Rs.2 lacs or that later on, he came to know the name of that person as accused Mohd. Asif. PW2 Lekh Ram failed to identify accused Mohd. Asif.
PW3 Khalid Pasha has deposed that in the year 2016, he alongwith his father used to sell fruits under the name and style of S. K. Fruits but three years prior to recording of his statement by the police in the present case, he had met accused Maulana Abdul Rehman at Yarav Nagar, Banglore where he had gone to hear the speech of the accused. PW3 has deposed that the said meeting was arranged by one Aslam Bhai and he had met accused Maulana Abdul Rehman only 2-3 times and that too only for religious talks. He has deposed that thereafter, he started living alongwith his family at Belur where he got married and after marriage, he never met accused Maulana Abdul Rehman. PW3 was also cross-examined by Ld. Addl. PP but he denied that accused Maulana Abdul Rehman had imparted twisted version of religion to him or that he told him about the Jihad and the atrocities being committed upon the Muslims or that accused Abdul Rehman asked him to visit Pakistan and Afghanistan for taking Jihadi training. He has denied that accused Abdul Rehman used to instigate him for Jihad.
State v. Mohd. Asif & ors FIR No. 67/2015 Page 46 of 180 47 PW4 Syed Dil Nawaz has deposed that in the month of July, 2014, he had gone to the mosque of his village to listen the speech of accused Maulana Abdul Rehman. He had also gone to the village of accused Maulana Abdul Rehman where he met him and asked him to correct him as he was not well conversant with Quran, on this, accused Maulana Abdul Rehman asked PW4 to come to his Madarsa Jamiat Ul Harmain at Terwa Village, Cuttack. PW4 accordingly went to the Madarsa where he realized the speeches delivered by accused Maulana Abdul Rehman are against the interest of the nation as after starting the speech with Quran, accused Maulana Abdul Rehman used to start addressing on the contentious issues like Dadri pertaining to lynching of Akhlaq and of Jagatpur and that accused Maulana Abdul Rehman used to deliver provocative speech to the effect that RSS, BJP and VHP conspire against the Muslims and that Muslims should also unite and he also used to deliver speech regarding Jehad. PW4 discontinued meeting accused Maulana Abdul Rehman since November, 2014 and later on, PW4 came to know that accused Maulana Abdul Rehman was having association with terrorist organization Al Qaeda. PW5 Mohd. Zeeshan has deposed that his brother Rihan had indulged in terrorist activity and joined the organization like ISI and Al-Qaeda through accused Mohd. Asif. PW5 has proved the letters/envelopes regarding receipt of information about his brother as Ex. PW 5/P-1 to Ex. PW 5/P-3 which was seized vide memo Ex. PW 5/A State v. Mohd. Asif & ors FIR No. 67/2015 Page 47 of 180 48 by the IO Sh. Manishi Chandra. Ex. PW 5/P1 is the letter bearing email ID sent by his brother.
PW6 P. S. Duggal, Director of Minar Travels (India) Ltd has deposed that on 23.12.2015, upon receipt of notice u/s 91 CrPC Ex. PW 6/A from the IO furnished information regarding the queries vide reply Ex. PW 6/B regarding visit of accused Mohd. Asif, Md. Sharjeet Akhtar and Md. Rehan to Iran by flight no. W5-074 dated 23.06.2013 but he did not return back to India against the tickets already purchased. PW6 has proved the certificate u/s 65B of Indian Evidence Act, three tickets Ex. PW 6/E1 to E3, two separate invoices Ex. PW 6/F and G and receipts of payments made by the the accused persons as Ex. PW 6/H and Ex. PW 6/I. He has also deposed that payment for to and fro journey was paid in cash.
PW7 Shubham Sharma, Personal Banker in HDFC Bank, Jor Bagh branch has proved the certified copy of account opening form alongwith ID proof and introduction letter of A/c no. 03591050067374 as Ex. PW 7/B collectively pertaining to co-accused Sayed Mohd. Zishan Ali and the said information was provided to the IO by then Back up Branch Manager on receipt of notice u/s 91 CrPC Ex. PW 7/A. PW7 has also proved the statement of account for the period from 28.06.2010 to 12.10.2017 as Ex. PW 7/C. PW8 Suraj Kumar, Assistant Branch Manager in HDFC Bank, South Extension-I branch has proved the certified copy of account opening form alongwith ID proof of A/c no. 1966000000790 as Ex. PW 8/B collectively pertaining State v. Mohd. Asif & ors FIR No. 67/2015 Page 48 of 180 49 to one Rohina Ishrat and the said information was provided to the IO by then Operation Manager on receipt of notice u/s 91 CrPC Ex. PW 8/A. PW8 has also proved the statement of account for the period from 07.11.2011 to 23.12.2015 as Ex. PW 8/C. PW9 Anwar Hussain Sheikh, Principle of Anglo-Urdu High School, Gujarat has deposed that upon receipt of notice u/s 91 CrPC Ex. PW 9/A from the police, he gave his detailed reply Ex. PW9/C regarding the School Leaving Certificate Ex. PW9/B of co-accused Zafar Masood Hasan Sheikh dated 18.02.2016. PW9 in his reply has very specifically replied that no such certificate was issued from their school and co-accused Zafar Masood Hasan Sheikh was never enrolled in their school during the relevant period.
PW10 Ram Singh, Under Secretary, Ministry of Housing and Urban Affairs has deposed that upon receipt of notice u/s 91 CrPC Ex. PW 10/A, he gave reply Ex. PW 10/B, as per which, Passport no. R-625019 dated 16.08.1994, Passport no. A-4709346 dated 27.02.1998 and Passport No. K-6081464 dated 30.11.2012 were issued in the name of co-accused Zafar Masood but he has specifically testified that in Passport no. R-625019 and Passport No. K-6081464, the name of his father was mentioned as Masood Ul Hasan whereas in Passport no. A-4709346 dated 27.02.1998, the name of his father was mentioned as Masudul Hasan. He has also deposed that duplicate Passport of A-4709346 was denied due to adverse police State v. Mohd. Asif & ors FIR No. 67/2015 Page 49 of 180 50 verification report.
PW11 Ms. Anuradha Dey, Laboratory Assistant, CFSL has deposed that on 04.01.2016, she recorded the voice sample of accused Mohd. Asif and of co-accused Mohd. Abdul Rehman and Zafar Masood. The said voice samples were recorded in separate sandisks 4 GB Micro SDHC card which were given Mark S1 to S3. PW11 has proved the seizure memos qua accused Mohd. Asif and Mohd. Abdul Rehman as Ex. PW 11/A and Ex. PW11/B. The two SDHC cards on record are EX.PW11/P1 and Ex. PW 11/P3 respectively.
PW12 HC Pawan Kumar has deposed that on 05.04.2016, as per the directions of the IO, he got deposited the hard disc in RFSL, Chanakya Puri. PW13 ASI Shri Bhagwan has deposed that while he was posted as Counter Officer at IGI Airport, he had apprehended co-accused Sayed Mohd. Zishan Ali as LOC No. 2016418770 was issued against him. He informed Addl. DCP, Special Cell about the apprehension of co- accused Sayed Mohd. Zishan Ali as he was wanted in the present case and thereafter the custody of co-accused was handed over to Insp. Kailash Singh Bisht. PW13 has proved the relevant form for detection of LOC as Ex. PW 13/A. PW14 HC Rohtash has deposed that as per the directions of the IO, he deposited the questioned as well as specimen handwritings alongwith FSL form in FSL Rohini. He has deposed that till the documents remained in his custody, State v. Mohd. Asif & ors FIR No. 67/2015 Page 50 of 180 51 nobody tampered with the same.
PW15 ASI Sanjeev, MHC(M) of P.S Special Cell has proved the relevant entries regarding deposit of case properties in Register No. 19 as Ex. PW 15/A to Ex. PW 15/C and Ex. PW 15/H to Ex. PW 15/L. PW15 has also proved the relevant entries regarding deposit of case property with FSL in Register No. 21 as Ex. PW 15/D and Ex. PW 15/F. PW15 has also proved the copy of Road Certificate as Ex. PW 15/F. PW16 Insp. Dilip Kumar has deposed that on 16.12.2015, he remained associated with the investigation of this case when PW19 Surender Kumar Verma, Scientist- D, CERT-in had retrieved the mail date of accused Mohd. Asif on the official computer. He has deposed that on the said date, accused Mohd. Asif was given access by the team of CERT-in, headed by PW19 Surender Kumar Verma, who then opened his various IDs of Yahoo mail, Safemail.net, Facebook and Skype IDs. The CERT-in team copied all the available data and copied the same in two DVDs out of which one DVD Ex. PW 16/P1 duly sealed with the seal of SPL CELL NDR 1 was seized by the IO vide seizure memo Ex. PW 16/A bearing his signatures at Point A. PW19 Surender Kumar Verma has issued Certificate u/s 65B of Indian Evidence Act as Ex. PW 19/A to prove the authenticity of computer generated record. PW17 Ct. Ravi has deposed that on 04.01.2016, he alongwith SI Yogesh Kumar (PW24) went to CFSL, CBI for recording the voice sample of accused Mohd. Asif and State v. Mohd. Asif & ors FIR No. 67/2015 Page 51 of 180 52 co-accused Mohd. Abdul Rehman. The voice sample of accused Mohd. Asif and co-accused Mohd. Abdul Rehman was recorded in two separate SD Cards Ex. PW 11/P1 and Ex. PW 11/P3 which were seized by SI Yogesh Kumar vide seizure memos Ex. PW 11/A and Ex. PW 11/B respectively.
PW18 Insp. Kailash Singh Bisht has deposed that in the year 2015, he was posted as Inspector in P.S Special Cell and on 15.12.2015, on the basis of disclosure statement of accused Mohd. Asif Ex. PW 18/A, recorded in the presence of PW18, the name of accused Abdul Rehman cropped up. PW18 Insp. Kailash Singh Bisht alongwith SI Pramod ( PW41) and HC Balwant went to Cuttack on 15.12.2015 in the search of co-accused Abdul Rehman where a raiding team was constituted including the local police of P.S Jagatpur and accused Abdul Rehman was apprehended from outside his house. He has deposed that accused Abdul Rehman was arrested in the present case vide Kalandara u/s 41.1 CrPC alongwith documents was prepared and his transit remand was obtained from Ld. Judicial Magistrate First Class, Salipur, Bhuvneshwar, Odisha vide order Ex. PW 18/B. PW18 has proved the kalandara alongwith 16 documents as Ex. PW18/F alongwith other documents as Ex.PW18/A, Ex.PW18/C, Ex. PW18/D and Ex.PW18/E. PW18 Insp. Kailash Singh Bisht has further deposed that at the instance of accused Abdul Rehman, one samsung mobile phone Ex. PW 18/P3, Samsung tab Ex. State v. Mohd. Asif & ors FIR No. 67/2015 Page 52 of 180 53 PW 18/P2, passport, one SD card Ex. PW18/P5, voice recorder Ex. PW 18/P4 and ten CDs alongwith one cassette Ex. PW 18/P7 and Ex. PW18/P8 were recovered from his house which were seized vide seizure memo Ex. PW 18/C. He has deposed that at the instance of accused Abdul Rehman, one PAN card of Al Harmen Trust Ex. PW 18/E1, one pocket diary Ex. PW 18/E2, four paper slips and one slip containing mobile number detail in Urdu pasted on one paper sheet Ex. PW 18/E3, Trust Deed of Al Harmen Trust containing 31 pages Ex. PW 18/E4, Nokia mobile phone bill from Mohali, Jagatpur, Cuttack Ex. PW 18/E5, application to Branch Manager, Canara Bank signed by accused Abdul Rehman Ex. PW 18/E6, Sale Deed no. 16701 dated 04.08.2010 executed between Umurunnisa and Al Harmen Trust Ex. PW 18/E7, copy of PAN Card in the name of Mohd. Abdul Rehman Ex. PW 18/E8, slip containing one FAX number of Cuttack and international FAX number Ex. PW 18/E9, one travel ticket of Banglore-Cuttack road line dated 10.09.2013 number 1291 pasted on a paper sheet Ex. PW 18/E10, signature verification in the name of Mohd. Abdul Rehman from HDFC bank Ex. PW 18/E11, SBI slip showing deposit of Rs.3,500/- in a/c no. 31176651394 pasted on a paper sheet Ex. PW 18/E12, Nikahnama of the marriage of co-accused Zishan with one Sadia having been solemnized by accused Abdul Rehman Ex. PW 18/E13, one complaint consisting of two papers address to Inspector Incharge, Cantonment, PS Cuttack made by Sh. S. K. Rafakat Ali in Oriya State v. Mohd. Asif & ors FIR No. 67/2015 Page 53 of 180 54 language Ex. PW 18/E14, photocopy of Election I-card of accused Abdul Rehman Ex. PW 18/E15, three e-tickets of IRCTC in the name of accused Abdul Rehman Ex. PW 18/E16 to Ex. PW 18/E18 which were seized vide seizure memo Ex. PW 18/E. PW18 has correctly identified all the articles produced in the court during his testimony.
PW18 Insp. Kailash Singh Bisht has further deposed that on 17.12.2015, accused Abdul Rehman was arrested in the present case vide arrest memo Ex. PW 18/G. PW18 has proved the recording of Disclosure statement of accused Abdul Rehman on 17.12.2015, 24.12.2015 and 28.12.2015 vide Ex. Ex. PW 18/H, PW 18/I and Ex. PW 18/J. He has further deposed that IO interrogated accused Mohd. Asif and recorded his disclosure statement Ex. PW 18/K. PW18 has also proved the disclosure statements of accused Abdul Rehman recorded on 03.01.2016 as Ex. PW 18/L and on 05.01.2016 Ex. PW18/M. PW18 Insp. Kailash Singh Bisht has further proved the disclosure statement of accused Maulana Abdul Rehman recorded on 09.01.2016 as Ex. PW 18/T; on 11.01.2016 as Ex. PW 18/U and disclosure statement recorded on 30.01.2016 as Ex. PW18/Z1. PW18 has deposed that these disclosure statements were made by the accused persons before the IO in his presence and he identified his signatures on the same at Point A. PW18 Insp. Kailash Singh Bisht has further deposed that he alongwith Insp. Umesh Barthwal, SI State v. Mohd. Asif & ors FIR No. 67/2015 Page 54 of 180 55 Rahul, ASI Rajbir and Ct. Jagannathan had gone to Banglore in search of accused Syed Anzar Shah and he was apprehended and arrested vide memo Ex. PW 18/N. His personal search was conducted vide memo Ex. PW 18/O. His disclosure statement was also recorded in the presence of PW18 as Ex. Pw 18/P bearing bearing his signatures at Point A. PW18 has further deposed that on 07.01.2016, accused Syed Anzar Shah was brought to Delhi vide Kalandara Ex. PW 18/Q and was handed over to the IO. Accused Syed Anzar Shah was arrested vide arrest memo Ex. PW18/R and his disclosure statement was recorded by the IO vide Ex. PW 18/S in his presence and he identified his signatures at Point A on Ex. PW 18/S. He has also proved the disclosure statement of accused Syed Anzar Shah as Ex. PW 18/V recorded on 11.01.2016.
PW18 Insp. Kailash Bisht has further deposed that on 12.01.2016, on the instructions of the IO, he alongwith SI Pankaj (PW21) went to Qureshi Bone Mill, Village Begumpur, Muradabad Road, Sambhal, UP where the owner of the said mill Sakir Ali (PW22) handed over one CPU upon which accused Mohd. Asif used to operate as an Assistant Accountant. He has deposed that SI Pankaj withdrew the hard disc from the CPU and with the help of forensic tools generated its hash value. He has proved the seizure memo of hard disc as Ex. PW 18/W and the same was deposited in the malkhana. PW18 has also proved the said hard disc as Ex. PW 18/P1.
PW18 has further deposed that on 12.01.2016 State v. Mohd. Asif & ors FIR No. 67/2015 Page 55 of 180 56 itself, the IO procured specimen handwriting and signatures of accused Abdul Rehman on 48 paper-sheets and the said 48 sheets have been proved as Ex.PW18/X1 to Ex.PW18/X48 bearing his signatures. He has also proved the disclosure statement and supplementary disclosure statement of accused Syed Anzar Shah recorded on 15.01.2016 and 19.01.2016 as Ex. PW 18/Y and Ex. PW 18/Z. PW18 has further deposed that on 11.05.2016, the IO Sh. Manishi Chandra (PW56) prepared the transcript pertaining to the intercepted call dated 11.09.2015 between accused Mohd. Asif and Abdul Rehman and the said transcript has been proved as Ex. PW18/Z2. PW18 has identified the hard disc recovered from Qureshi Bone Mill as Ex. PW 18/P1, one Samsung tab as Ex. PW 18/P2, Samsung mobile phone as Ex. PW 18/P3, voice recorder Ex. PW 18/P4, one SD card Ex. PW18/P5 and one Sagem mobile phone as Mark M1. He has also identified the Micromax mobile phone of accused Abdul Rehman recovered during his personal search as Ex. PW 18/P6. He also identified ten CDs alongwith one cassette as Ex. PW 18/P7 and Ex. PW18/P8. All these articles which were produced during the testimony of PW18 Insp. Kailash Bisht were duly identified by him. PW19 Surender Kumar Verma CERT-In expert has deposed that on 16.12.2015 while he was posted as Scientist-B, on the request received from Special Cell, he came to the office of Special Cell and in the presence of State v. Mohd. Asif & ors FIR No. 67/2015 Page 56 of 180 57 accused Mohd. Asif and witnesses, he started recording the activities of accused Mohd. Asif on the official computer of Cyber Lab, Special Cell by using the Fast Tone software. PW19 has deposed that accused Mohd. Asif logged into his various mail IDs, Facebook ID and Skype IDs and complete activities by the accused in his above mentioned IDs were saved in respective folders and all the folders/files so generated were placed in a folder and data was burnt into one DVD make Moserbaer marked as DVD-1 which was seized by the IO vide seizure memo Ex. PW 16/A and to establish the authenticity of the computer generated record, PW19 issued certificate u/s 65B of Indian Evidence Act Ex. Pw 19/A. PW19 Surender Kumar Verma has further deposed that pursuant to the request received from the office of Special Cell, he had gone to the office of Special Cell on 15.01.2016, 25.01.2016 and 27.01.2016 where after giving access to co-accused Sayed Anzar Shah, co- accused Sayed Anzar Shah opened his IDs of Yahoo mail and gmail. The CERT-in team copied all the available data and copied the same in separate hard drives, Ex. PW19/P5 and Ex. PW 19/P6, duly sealed with the seal of SPL CELL NDR 1 was seized by the IO vide memo Ex. PW 19/B and Ex. PW 19/D respectively. PW19 Surender Kumar Verma has also proved Certificates u/s 65B of Indian Evidence Act as Ex. PW 19/C and Ex. PW 19/E respectively.
PW19 Surender Kumar Verma has further deposed that on 23.12.2015 also, he went to the office of State v. Mohd. Asif & ors FIR No. 67/2015 Page 57 of 180 58 Special Cell where after giving access to co-accused Zafar Masood, co-accused Zafar Masood @ Guddu opened his Facebook ID. The CERT-in team copied all the available data and copied the same in a DVD duly sealed with the seal of SPL CELL NDR 1 Ex. PW 19/P3 was seized by the IO vide memo Ex. PW 19/F. PW19 Surender Kumar Verma has also proved Certificate u/s 65B of Indian Evidence Act as Ex. PW 19/G. PW19 Surender Kumar Verma, however, could not identify accused Mohd. Asif and Zafar Masood in the court. He has identified the case property as Ex. PW 16/P1 to Ex. PW 16/P7.
PW20 Insp. Vikram Dahiya was posted as SI in P.S Special Cell on 14.12.2015 and on that day, at about 1.30- 1.45 p.m, he was informed by IO Addl. DCP Sh. Manishi Chandra informed him about the fact that Al-Qaeda was trying to set up its base in India and in that connection, accused Mohd. Asif r/o Sambhal, Uttar Pradesh being the member of Al-Qaeda (Indian Sub-continent) was coming at Welcome Bus stand at around 3.30 p.m. Therefore a raiding team was constituted comprising of himself, Addl. DCP Manishi Chandra, Insp. Sanjay Dutt, Insp. Rahul Kumar, Insp. Kailash Bisht, SI Rahul Kumar, Insp. Umesh Bharthwal, SI Dilip, two ASIs, six Head Constables and five Constables and they reached Welcome bus stand at about 2.55 p.m alongwith the secret informer. PW 20 has further deposed that at about 3.30 p.m on the indication of secret informer, accused Mohd. Asif was apprehended who State v. Mohd. Asif & ors FIR No. 67/2015 Page 58 of 180 59 disclosed that through social media, he was in touch with one of his friend namely Qasim r/o Sambhal, Uttar Pradesh who has gone to Pakistan and upon the instigation of Qasim, he joined Al-Qaeda and even visited Pakistan, Iran and Turkey. Accused Mohd. Asif also disclosed about recruitment of some more persons in Al-Qaeda. PW20 has further deposed that from his possession, a bag containing one Toshiba laptop and one Samsung Galaxy Note 3 phone. Similarly from his personal search, one Intex mobile phone and one Sagem Hutch phone were also recovered. Rukka was prepared by Addl. DCP Manishi Chandra for registration of the FIR and PW 20 Insp. Vikram Dahiya took the rukka and handed over it to Duty Officer and got registered the FIR.
On 12.01.2016, PW 20 again joined the investigation and witnessed that accused Mohd. Asif, in pursuance to his disclosure statement on 10.01.2016, led the investigating team to Chaudhary Trading Company at Naya Bazar Road, Lahori Gate, Delhi where he identified Bhagirath and the said Bhagirath also identified accused Mohd. Asif as the person to whom he handed over Rs.2 lacs 7-8 months back which were sent to him by Syed Akhtar from Pakistan, however, accused Mohd. Asif claimed that the said money was sent to him by Ashok from Calcutta in lieu of some cloth payments. PW20 has proved the site plan of the said shop as Ex. PW 20/A and also proved the pointing out memo as Ex. PW 20/B prepared by the IO.
State v. Mohd. Asif & ors FIR No. 67/2015 Page 59 of 180 60 PW20 Insp. Vikram Dahiya has further deposed that on 18.01.2016, he again joined the investigation and at about 12.30 p.m, accused Mohd. Abdul Sami came to the Office of Special Cell pursuant to notice u/s 160 CrPC Ex. PW 31/A. Accused Mohd. Abdul Sami was arrested by ACP Satyavir Dagar (PW31) vide arrest memo Ex. PW 20/C. Personal search of accused Mohd. Abdul Sami was taken vide memo Ex. PW 20/D. PW20 has proved the disclosure statements of accused Mohd. Abdul Sami which were recorded by the IO in his presence on 18.10.2016, 22.01.2016, 26.01.2016, 27.01.2016 and 29.01.2016 as Ex. PW 20/E to Ex. PW20/I. PW20 has also identified the Toshiba laptop as Ex. PW20/P1, Intex mobile phone as Ex. PW20/P2, Samsung Galaxy Note 3 phone as Ex. PW20/P3 and Sagem Hutch phone as Ex. PW 20/P4. He also identified the black coloured pithu bag recovered from accused Mohd. Asif in which he was carrying Toshiba Laptop and Samsung mobile phone as Ex. PW 30/P1. PW20 also identified accused Mohd. Asif and accused Mohd. Abdul Sami in the court.
PW21 Insp. Pankaj Singh has corroborated the statement of Insp. Kailash Singh Bisht (PW18) regarding seizure of hard disc of CPU from the office of Sakir Ali, owner of Qureshi Bone Mill where accused Mohd. Asif was working as Assistant Accountant. The hard disc has been proved as Ex. PW 18/P1.
PW22 Shakir Ali, owner of Qureshi Bone Mill, Sambhal, State v. Mohd. Asif & ors FIR No. 67/2015 Page 60 of 180 61 Uttar Pradesh has also corroborated the statement of Insp. Kailash Singh Bisht (PW18) and of Insp. Pankaj Singh (PW21) regarding seizure of hard disc from his office. He has also identified the case property and also proved its seizure memo.
PW23 Shane Alam, brother-in-law of accused Zafar Masood has deposed that pursuant to receipt of notice, he handed over the passport Ex. PW 23/P1 of accused Zafar Masood to the IO on 21.12.2015 which was seized vide memo Ex. PW 23/A. PW24 Insp. Yogesh Kumar has deposed that pursuant to the directions of the IO Addl. DCP Manishi Chandra (PW56), he took accused Mohd. Asif and Mohd. Abdul Rehman to CFSL for recording their voice sample. The voice sample of accused Mohd. Asif and Mohd. Abdul Rehman were recorded in two separate SD Cards Ex. PW 11/P1 and Ex. PW 11/P3 which were seized by him vide seizure memos Ex. PW 11/A and Ex. PW 11/B respectively. He also witnessed the screen capturing proceedings of CERT-In expert qua accused Syed Anzar Shah by using the software.
PW25 Insp. Ravinder Kumar Tyagi has deposed that on 22.02.2021, he was posted as Inspector in P.S Special Cell. On production warrants, accused Sabeel Ahmed was produced from Bengluru Jail on 22.02.2021, ACP Lalit Mohan Negi (PW57) interrogated him vide interrogation memo Ex. PW25/A. Accused Sabeel Ahmed was arrested by the IO vide arrest memo Ex.PW25/B. He has deposed State v. Mohd. Asif & ors FIR No. 67/2015 Page 61 of 180 62 that on 02.03.2021, disclosure statement of accused Sabeel Ahmed Ex.PW25/C was recorded by the IO.
PW25 has deposed that on 03.07.2021, he alongwith SI Rahul Khokhar visited Banglore where he recorded the statement of witness Tajir Pasha u/s 161 CrPC. PW25 also carried out enquiry regarding the bank account of accused Sabeel Ahmed bearing no. XXXXXX1856 in Canara Bank, Bengluru. He identified the notice given to the Bank Manager to provide the details of the said bank account as Ex. PW 25/D. PW25 also proved the certified copy of the customer application form (CAF) Ex. PW 25/E, bank statements as Ex. PW25/F (44 sheets). PW25 also proved the forwarding letter of V. Sreelakashmi, Chief Manager (PW38) as Ex.PW25/G. PW25 Insp. Ravinder Tyagi on his return handed over all the relevant records/documents to the IO on 06.07.2021. The arrival/departure entry to Banglore have been proved as Ex. PW 25/DA to Ex. PW 25/DC.
PW26 ASI Rajeev Kumar has deposed that on 18.08.2017, he alongwith SI Rohit Kumar (PW43) took accused Sayed Mohd. Zishan Ali to CSFL where his voice sample was recorded by Mahesh Kumar Jain (PW36), Senior Scientific Officer, CFSL/CBI, in a micro SD card Sandisk 8GB Ex. PW 26/P1, which he (PW26) handed over to the IO who seized the same vide memo Ex.PW26/A. PW27 Shah Mohammad Sana ul Haq has deposed that one Sh. Saeed A. Khan, a Pakistani national, joined the State v. Mohd. Asif & ors FIR No. 67/2015 Page 62 of 180 63 office of Pakistan international airlines in India in 2014 as Station Manager, PIA, Delhi who got retired from the services on 31.12.2016. He has deposed that on 28.01.2016, upon receipt of notice u/s 91 CrPC Ex. PW 27/A, Saeed A. Khan filed detailed reply Ex.PW27/B on the letter head of PIA Pakistan dated 17.02.2016 addressed to Sh. Manishi Chandra (PW56).
PW28 Suresh Kadiyan, Assistant Director, I.B, Ministry of Home Affairs has deposed that pursuant to receipt of letters nos. 2592/Addl. DCP NDR/Spl.Cell and 2633/Addl. DCP NDR/Spl. Cell dated 08.04.2016 Ex.PW28/A and Ex. PW 28/C regarding electronic data of mobile numbers 9528029512 and 07795429070 and for providing intercepted conversations, if any, of 12 wanted persons, he provided two CDs containing details in the certificate u/s 65B of Indian Evidence Act Ex. PW 28/B issued under his signatures pertaining to mobile phone number 9528029512 which was on lawful interception in accordance to the relevant provisions of Indian Telegraph Act. PW 28 has further deposed that pursuant to receipt of letter Ex. PW 28/C, he verified and found intercepted conversations pertaining to mobile number 8149200524 used by accused Zishan Ali which was in conversation with mobile number 7893105850. PW 28 has deposed that mobile no. 8149200524 was taken under coverage vide HS Sanction order no. 14/3/97-T dated 23.10.2015 and he accordingly provided one CD containing details as mentioned in the certificate u/s 65B of Indian Evidence State v. Mohd. Asif & ors FIR No. 67/2015 Page 63 of 180 64 Act Ex. PW 28/D issued under his signatures to the IO alongwith forwarding letter Ex. PW 28/E pertaining to mobile phone number 8149200524 which was on lawful interception in accordance with the relevant provisions of Indian Telegraph Act. He has proved the relevant CDs as Ex. PW 43/P4 and Ex. PW 51/P1.
PW29 R. Ramanathan, Security Supervisor (Emirates Airlines) has deposed that on 05.01.2016, pursuant to notice u/s 91 Cr.PC Ex. PW 29/B sent by Sh. Manishi Chandra, Additional DCP, Special Cell to the Manager of Emirates pertaining to accused Mohd. Abdul Rehman, a detailed verification report/reply Ex. PW 29/C pertaining to the passport as well as journey information of accused Mohd. Abdul Rehman from Karachi to Damman via Dubai with Annexures i.e. two tickets Ex. PW 29/D and Ex. PW 29/E showing the journey details dt. 13.02.2015 and 15.02.2015 were handed over to Sh. Manishi Chandra, Additional DCP, Special Cell (PW56). PW 29 has proved the notice u/s 91 Cr.PC dated 22.02.2016 Ex. PW 29/F authored by Sh. Manishi Chandra, Additional DCP, Special Cell addressed to the Manager of Emirates, pursuant thereto, a detailed verification report/reply Ex. PW 29/G pertaining to the passport as well as journey information of accused Abdul Sami with annexure i.e. one ticket Ex. PW 29/H showing the journey details dated 27.01.2014 was handed over to Sh. Manishi Chandra, Additional DCP, Special Cell, as per which, accused Abdul Sami booked the ticket on 25.01.2014 for the journey to be taken on State v. Mohd. Asif & ors FIR No. 67/2015 Page 64 of 180 65 27.01.2014 from Kolkata to Dubai. PW29 has also proved the notice u/s 91 Cr.PC dated 31.12.2015 Ex.PW29/I sent by Sh. Manishi Chandra, Additional DCP to the Manager of Emirates, pursuant thereto, a detailed reply Ex.PW29/J pertaining to the journey information of accused Abdul Sami and Abu Sufian with annexures i.e. tickets in the name of Abu Sufian and Abdul Sami Ex.PW29/K and Ex.PW29/L. PW30 Insp. Rahul Kumar Singh was also the member of the member of the raiding team constituted on 14.12.2015 alongwith other members of the raiding team as per the directions of Addl. DCP Sh. Manishi Chandra. He also reached the spot and participated in the arrest of accused Mohd. Asif and recovery of several articles as stated by PW20 Insp. Vikram Dahiya from his possession. He also proved the recovery of laptop, mobile phones alongwith the sim cards and SD card and the bag from the possession of accused Mohd. Asif vide seizure memo Ex. PW 30/A bearing his signatures at Point A. He has also proved the arrest memo of accused Mohd. Asif as Ex. PW 30/B prepared by the IO Addl. DCP Manishi Chandra. PW30 has also witnessed the personal search of accused Mohd. Asif vide Ex. PW 30/C. PW30 has also proved the supplementary disclosure statements of accused Mohd. Asif, which were recorded by the IO on 15.12.2015, 16.12.2015, 24.12.2015 and 10.01.2016 as Ex. PW 30/D to Ex. PW 30/G and Ex. PW30/I bearing his signatures.
PW30 Insp. Rahul has further deposed that on State v. Mohd. Asif & ors FIR No. 67/2015 Page 65 of 180 66 25.12.2015, accused Mohd. Zishan came to the office of the Addl. DCP Sh. Manishi Chandra and handed over three documents, i.e. one English typed letter Ex. PW5/P1, a yellow colour envelope Ex. PW 5/P2, carbon copy of DTDC courier slip Ex. PW 5/P3 in the name of Nissar Ahmed and the same were seized by the IO Sh. Manishi Chandra in his presence vide memo Ex.PW5/A. PW30 has further deposed that on 30.12.2015, in his presence, the IO Addl. DCP Sh. Manishi Chandra had procured the specimen signatures and handwriting of accused Mohd. Asif on ten sheets as Ex.PW30/H-1 to Ex.PW30/H-10 and he identified the signatures upon the same at Point A. PW30 has also deposed that on 06.01.2016, he alongwith Insp. Kailash, Insp. Umesh Bharthwal, ASI Rajbir and Ct. Jagan Nath went to Banglore in search of accused Mohd. Anzar and at instance of secret informer, accused Syed Anzar Shah was arrested on 07.01.2016 vide Kalandara Ex. PW 18/Q. He identified his signatures at Point A on the arrest memo Ex. PW 18/N, personal search memo Ex. PW 18/O and disclosure statement Ex. PW 18/P of accused Syed Anzar Shah. He also identified the Toshiba laptop as Ex. PW 20/P1, intex mobile phone as Ex. PW 20/P2, Samsung mobile phone as Ex. PW 20/P3, Sagem Hutch mobile phone as Ex. PW 20/P4 recovered from the possession of accused Mohd. Asif and also identified the pithu bag in which accused Mohd. Asif was carrying Toshiba laptop as Ex. PW 30/P1.
PW31 ACP Satyabir Dagar has deposed that on State v. Mohd. Asif & ors FIR No. 67/2015 Page 66 of 180 67 18.01.2016, pursuant to notice u/s 160 CrPC Ex. PW 31/A, accused Abdul Sami was produced before him by Insp. Vikram Dahiya(PW20) who was arrested by him vide arrest memo Ex. PW 20/C, conducted his personal search vide memo Ex. PW20/D, interrogated accused Abdul Sami and recorded his disclosure statement Ex. PW 20/E. PW31 has further deposed that in the personal search of accused Abdul Sami, one notice u/s 160 CrPC besides Rs. 2960/-, one voter ID card, one purse containing few visiting cards and his photo were recovered and except the notice, all personal search articles were deposited in the Malkhana. PW31 has deposed that after obtaining PC remand of accused Abdul Sami, the accused alongwith the case record was handed over to the IO Sh. Manishi Chandra (PW56).
PW32 ASI Rajbir Singh has deposed that on 20.01.2016, he alongwith SI Pramod Chauhan (PW41) had gone to the house of accused Abdul Sami at Jamshedpur, Jharkhand from where they seized the passport Ex. PW 32/P3, one Samsung smart phone Ex. PW 32/P1 and one Samsung basic phone Ex. PW 32/P2 of accused Abdul Sami vide seizure memo Ex. PW32/A. PW33 Insp. Rahul Kumar Singh has deposed that on 15.12.2015, he alongwith SI Raj Kumar, ASI Krishan Ram and HC Rajeev went to Sambhal, Uttar Pradesh for investigation vide DD No. 17 dated 15.12.2015 Ex. PW 33/A from where he arrested accused Zafar Masood @ Guddu from Aman Banquet Hall, Muradabad, Uttar State v. Mohd. Asif & ors FIR No. 67/2015 Page 67 of 180 68 Pradesh u/s 41.1 CrPC vide arrest memo Ex. PW 33/B and conducted his personal search vide memo Ex. PW 33/C who made disclosure statement Ex. PW 33/D. PW33 has further deposed that custody of accused Zafar Masood alongwith relevant documents annexed with Kalandra u/s 41.1 CrPC Ex. PW 33/F was handed over to the IO Manishi Chandra Addl. DCP who arrested accused Zafar Masood vide memo Ex. PW 33/G and recorded his disclosure statement Ex. PW 33/H. PW 33 has further deposed that accused Zafar Masood also made supplementary disclosure statements Ex. PW 33/I to Ex. PW 33/L dated 20.12.2015, 23.12.2015, 27.12.2015, 30.12.2015 and 04.01.2016.
PW34 Dr. Subrat Kumar Choudhury, Senior Scientific Officer, CFSL has deposed that on 12.05.2016 on receipt of letter received from Addl. DCP Ex. PW 34/A, he had examined the questioned audio recording (Exhibit Q) with specimen voice recording of accused Mohd. Asif (Exhibit S-1) and of accused Mohd. Abdul Rehman ( Exhibit S-2) and prepared his detailed report. He has deposed that as per report Ex. PW 34/B, specimen voices contained in exhibits S-1 and S-2 were found similar to respective questioned voices contained in exhibit Q. PW34 has further deposed that he also examined the questioned audio recording (Exhibit Q) with specimen voice recording of accused Syed Mohd Zishan Ali (Exhibit S-1) and of accused Mohd. Abdul Rehman ( Exhibit S-2) and prepared detailed report Ex. PW 34/D, as per which, State v. Mohd. Asif & ors FIR No. 67/2015 Page 68 of 180 69 specimen voices contained in exhibits S-1 and S-2 were found similar to respective questioned voices contained in exhibit Q. PW35 Sh. Syed Ahmar Ali Hashmi, Junior Forensic / Assistant Chemical Examiner (Documents) has deposed that he examined one questioned envelope having questioned writing marked Q1, one questioned writing on DTDC courier and Cargo Ltd. Slip marked as Q2, one pocket diary having questioned writing marked as Q3 to Q33 and six paper slips having questioned writing marked as Q34 to Q39 with specimen handwriting and signatures of accused Mohd. Asif (marked as S-1 to S-10) and accused Mohd. Abdul Rehman (S-11 to S-58) and gave his report Ex. PW35/B opining that the person who wrote the red enclosed writing stamped and marked as S11 to S58 also wrote the red enclosed writing similarly stamped and marked Q8 to Q13, Q15, Q17, Q18, Q20 to Q26, Q28 and Q29 and further opined that the person who wrote the red enclosed writing stamped and marked S1 to S5 also wrote the red enclosed writing similarly stamped and marked Q1. He has also proved the documents Ex. PW5/P2, Ex. PW 5/P3, Ex. PW 18/E1 to Ex. PW 18/E3, Ex. PW 18/X1 to X48 and Ex. PW 30/H1 to Ex. PW 30/H10.
PW36 Mahesh Kumar Jain, Senior Scientific Officer, Grade-II (Physics) CFSL has deposed that on 18.08.2017, he recorded the voice sample of accused Zishan in a micro SD card Sandisk 8GB Ex. PW 26/P1 which was kept in a sealed envelope and handed over the same to the IO who State v. Mohd. Asif & ors FIR No. 67/2015 Page 69 of 180 70 seized the same vide memo Ex.PW26/A. PW37 Sh. Mohammad Emran Quazi, Manager in Blue Star Lodge (boarding and lodging department) has proved the relevant record regarding the stay of accused Mohd. Asif in Blue Star Lodge vide his reply Ex. PW37/B, as per which, accused Mohd. Asif had stayed in Room No. 209 of the abovesaid lodge from 10.09.2015 (3.00 pm) till 11.09.2015 (4.00 pm). PW37 correctly identified accused Mohd. Asif in court to be the person who had stayed in his lodge. He has deposed that the original record in this regard is no longer traceable as the owner of the lodge has shifted to Kuwait and he has proved the letter of owner Sh. Ayub Khan as Ex. PW 37/C. PW38 Ms. V. Sreelakashmi, Chief Manager, Canara Bank has proved the certified copy of the account opening form Ex. PW 25/E and bank statement Ex. PW 25/F of Joint a/c no. 0883101011856 in the joint names of Sabeel Ahmed, Maqbool Ahmed, Zakir Ahmed and Kafeel Ahmed which she handed over to the police alongwith forwarding letter/reply Ex. PW 25/G. PW39 Ashok Goel has deposed that he was into the business of clothes and in the year 2015, one person namely Munir brought some cloth samples i.e. woolen jackets, kids clothes etc to his shop which he (PW39) approved and placed an order worth Rs.2.5 lacs, out of which, he paid Rs.50,000/- to Munir and remaining Rs.2.0 lacs were delivered to a person in Delhi deputed by Munir. PW40 Amit Sharma, Nodal Officer, Reliance State v. Mohd. Asif & ors FIR No. 67/2015 Page 70 of 180 71 Communication Limited has deposed that mobile no. 9528029512 was registered in the name of Rijvana D/o/w/o Abid Ali R/o 446, Bhartal Sirsi, Naksha, Sambhal, Uttar Pradesh which was activated in her name on 05.06.2015 and terminated on 05.11.2018. He has proved the certified copy of CDR of the abovesaid mobile number for the period w.e.f 15.04.2015 to 14.12.2015 alongwith location chart as Ex. PW 40/D1 to Ex. PW40/D40 alongwith Certificate u/s 65B of Indian Evidence Act Ex. PW 40/E. PW 41 Insp. Pramod has deposed on the similar lines of PW18 Insp. Kailash Singh Bisht (PW18) as he accompanied him during the arrest of accused Abdul Rehman from Cuttack, Odisha on 15.12.2015 and proved the documents regarding his arrest and recovery from accused Abdul Rehman.
PW41 has further deposed that on 20.12.2015, CERT-in expert Omveer Singh came in the office of Special Cell and as per the instructions of the IO downloaded one Skype ID and two telegram IDs using software 'Fast Tone Capture' at the instance of accused Mohd. Asif who was also present in the Cyber Lab. The contents of all the said IDs were saved in a folder 'Asif Capture' and the same was burnt in a CD which was seized by the IO Ex. PW 41/A along-with certificate u/s 65B Ex. PW 56/B of Cert-In expert Sh. Omveer Singh.
PW41 Insp. Pramod has further deposed that on 23.12.2015, CERT-in expert Surender Kumar came in State v. Mohd. Asif & ors FIR No. 67/2015 Page 71 of 180 72 the office of Special Cell and at the request of IO downloaded one Facebook ID using software 'Fast Tone Capture' at the instance of accused Zafar Masood who was also present in the Cyber Lab. The contents of the said three IDs were saved in a folder 'FIR 67 Zafar' and the same was burnt into a CD which was seized by the IO vide seizure memo Ex.PW19/F alongwith certificate u/s 65B of Indian Evidence Act in this regard as Ex. PW19/G of Cert- In expert Sh. Surender Kumar.
PW41 has further deposed that on 21.01.2016, he went to the house of accused Abdul Sami where he met his father Abdul Sattar who handed over to him one passport of accused Abdul Sami and two mobile phones which were seized vide seizure memo Ex. PW 32/A. He also identified all the articles which were produced and identified by PW18 Insp. Kailash Bisht in his testimony. He has proved the passport recovered from Abdul Sattar, father of accused Abdul Sami as Ex. PW 32/P3 and also two Samsung mobile phones as Ex. PW 32/P1 and Ex. PW 32/P2. PW41 has also proved He has also proved the one DVD (CD-1 Moserbaer) in its plastic case as Ex. PW41/P2 with respect to the data got recovered from accused Mohd. Asif. PW41 also identified the CD pertaining to the data got recovered at the instance of accused Zafar Masood vide CD Ex. PW 19/P3 and seizure memo in this respect has already been proved as Ex. PW 19/F. PW42 Devendra Kumar, Assistant Central Intelligence State v. Mohd. Asif & ors FIR No. 67/2015 Page 72 of 180 73 Officer, IB, MHA has proved the letter dated 14.05.2018 Ex. PW42/B addressed to Assistant Director/CFB, pursuant to which a detailed reply Ex. PW 42/C was given by the then Assistant Director Sh. S. K. Gupta qua the travel details in connection with Passport No. F1233600 in the name of Imdadullah Khan. He has deposed that as per record, no arrival/departure details of travel were traced on the given parameters.
PW43 Insp. Rohit Kumar Sharma was posted as SI at Special Cell on 13.08.2017. ACP Govind Sharma (PW54) interrogated accused Syed Mohd. Zishan Ali and recorded his supplementary disclosure statement Ex. PW 43/A. He also proved the recording of another supplementary disclosure statement of accused Syed Mohd. Zishan Ali Ex. PW 43/B on 18.08.2017 in his presence. PW43 has further deposed that Sr. Scientific Officer M. K. Jain FSL expert in his presence recorded the voice sample of accused Syed Mohd. Zishan Ali and he seized the micro SD card in an envelope vide seizure memo Ex. PW 26/A and deposited the same to the MHC(M).
On 21.08.2017, PW43 had witnessed the proceedings of capturing the access of social media account by Syed Mohd. Zishan Ali in the office of Special Cell conducted by CERT-In expert Omveer Singh (PW58) who captured the social media account of accused Syed Mohd. Zishan Ali through a software and downloaded the proceedings and saved the same in two separate DVDs State v. Mohd. Asif & ors FIR No. 67/2015 Page 73 of 180 74 which were handed over to PW43 by ACP Govind Sharma vide seizure memo Ex. PW 43/C. Cert-In expert Omveer Singh had also handed over certificate u/s 65B of Evidence Act Ex. PW 58/B to the IO. PW43 also witnessed the recording of another supplementary disclosure statement of accused Syed Mohd. Zishan Ali Ex. PW 43/D on 23.08.2017 in his presence. PW43 has further deposed that on 23.08.2017, ACP Govind Sharma, in his presence, procured the print outs Ex. PW 43/F of the data consisted of some anti-national speeches and some objectionable material like how to prepare explosives etc and seized the same vide seizure memo Ex. PW 43/E containing the 'Study of data retrieved by CERT-in' bearing his signatures at Point A. PW43 has proved the printouts consisting of 107 pages on record are already Ex.PW43/F (colly).
PW43 Insp. Rohit Kumar Sharma has deposed that on 30.10.2017, IO ACP Govind Sharma (PW54) in his presence prepared the transcript Ex. PW 43/G of intercepted call between accused Syed Mohd. Zishan Ali, Abdul Rehman and one another person. He has proved the seizure memo of CD Ex. PW 26/P1 containing the intercepted conversation between accused Syed Mohd. Zishan Ali, Abdul Rehman and one another person as Ex. PW 43/H. He also deposited the exhibits i.e. voice sample of accused Syed Mohd. Zishan Ali in micro SD card and voice sample of accused Abdul Rehman in micro SD card Ex. PW 26/P2 and voice call between accused Syed Mohd. Zishan Ali, Abdul Rehman and one another person State v. Mohd. Asif & ors FIR No. 67/2015 Page 74 of 180 75 to CFSL, CBI vide RC No. 192/21/17 Ex. PW43/I and CFSL form Ex. PW 34/C. PW43 Insp. Rohit Kumar Sharma has further deposed that vide forwarding letter of IO ACP Govind Sharma (PW54) Ex. PW 43/J1, he went to Banglore to verify the passport of Imdadullah Khan alongwith its annexures, i.e. copy of birth certificate, copy of ration card and affidavit, from the office of Regional Passport Office, Koramanglam Banglore, Chief Registrar ( Birth and Death) Banglore and the office of Food and Supply, Banglore and as per the replies received from the competent authorities Ex. PW 43/J2 (23 documents collectively), Mark Ex. PW 43/J4, Ex. PW 43/L and Ex. PW 43/N, the record being old has already been weeded out. PW43 Insp. Rohit Kumar Sharma has further deposed that on the instructions of IO Lalit Mohan Negi (PW57), he alongwith the local police went to Lal Masjid area in search of witnesses Munir and Syed mentioned in the passport application form of Imdadullah Khan but they were also not found traceable at the given address. He accordingly recorded the statement of Sadiq and Imtiaz Khan Ex. PW 43/O and Ex PW 43/P. PW43 has further met Ismail Khan, in whose name the ration card was issued and the said Ismail Khan gave his statement Ex. PW 43/Q to the effect that he has no brother by the name of Imdadullah Khan. PW43 has further deposed that he also examined Sh. B. Gopal Krishna, Notary Public who had prepared and attested the affidavit of Imdadullah Khan and State v. Mohd. Asif & ors FIR No. 67/2015 Page 75 of 180 76 his statement in this regard has been proved as Ex. PW 43/R. PW43 also went to P.S Shivaji Nagar to collect the police verification report but the same was also destroyed and reply in this regard of SHO PS Shivaji Nagar has been proved as Ex. PW 43/S. PW43 has identified the DVD make Moser Baer which was containing the downloaded data of the social media activity of accused Syed Mohd. Zishan Ali as Ex. PW43/P2 handed over by CERT-In expert Omveer Singh. He has also identified CD make moserbaer containing the intercepted conversations between accused Maulana Abdul Rehman, Syed Mohd. Zishan Ali and unknown person as Ex. PW43/P4 kept in a khaki envelop Ex. PW 43/P3.
PW44 Bhagirath Das has deposed that he was employee in the cloth shop of Lekh Ram at Naya Bazar, Delhi who had instructed him to give Rs.2 lacs to accused Mohd. Asif who had come to the shop to collect money on the asking of PW39 Ashok Goel, business partner of Lekh Ram. PW44 has correctly identified accused Mohd. Asif as the person whom he had given Rs.2 lacs. On being cross- examined by Ld. Addl. PP, PW44 Bhagirath Das has deposed that Ashok Goel of M/s Nandani Enterprises, Kolkata business partner of Sh. Lekh Ram has sent accused Mohd. Asif to collect money from their shop and on 12.01.2016, accused Mohd. Asif came to their shop alongwith the police party to the shop of Sh. Lekh Ram and pointed out towards their shop from where he received State v. Mohd. Asif & ors FIR No. 67/2015 Page 76 of 180 77 the said amount of Rs.2.0 lacs vide memo Ex. PW 20/B. He has admitted that before coming to the shop, accused Mohd. Asif, confirmed by calling at the office number 9311333299.
PW45 Prashant Sharma has proved the certified copy of passport application registration form alongwith relevant documents as Ex. PW 45/B (Colly) and stated that the hard copy/record of the same has been destroyed vide order dated 10.03.2008 Ex. PW 45/A of Deputy Secretary, CPV Division, Ministry of External Affairs, New Delhi. PW45 has also proved the set of the said documents, which is part of judicial record, as Ex. PW 45/C which was certified by Sh. H. A Malani, Superintendent and bearing the signatures of Sh. C. V. Raveendaran, Assistant Passport Officer.
PW46 Mohd. Saquib Khan has deposed that in the year 2015, he was introduced to accused Abdul Rehman and Abdul Sami by one Sh. Kalim and his son Ujjefa, who were already known to him, at an inauguration ceremony of mosque i.e. Sarfuddin Masjid and madarsa in Jamshedpur, Jharkhand. PW46 has further deposed that thereafter he attended various meetings of accused Abdul Rehman on the invitation of said Ujjefa wherein the speeches of Islam were delivered by accused Abdul Rehman.
PW46 has further deposed that he realised that the speeches delivered by accused Abdul Rehman are not in consonance with true Islam and true Islam is infact not State v. Mohd. Asif & ors FIR No. 67/2015 Page 77 of 180 78 what accused Abdul Rehman was teaching, therefore, PW46 detached himself from accused Abdul Rehman and Abdul Sami. PW 46 has admitted in his statement Ex. PW 46/A that accused Abdul Rehman was making inflammatory speeches to radicalize the Muslim youth. PW47 SI M. Baxla, MHC(M) of P.S Special has proved the relevant entries made regarding deposit of case property in the instant matter in Register No. 19 as Ex. PW 47/A to Ex. PW 47/E. PW47 has handed over three envelopes containing the case property to SI Rohit for depositing the same in CFSL which was deposited vide RC No. 192/21/2017 Ex. PW 43/I. PW47 has also proved endorsement at Point D of Ex. PW 47/A regarding deposit of exhibits in CERT-in through HC Pravesh. PW47 has also proved the entry at Point X on Ex. PW47/A regarding receipt of exhibits from CERT-in and depositing the same in malkhana.
PW48 Mohd. Sadiq, Khidmatgar in Lal Masjid, has deposed that on enquiry, he had informed the police no person by the name of Imdadullah Khan has been residing in Lal Masjid and on seeing the photograph Ex. PW 43/J2, PW48 identified the said person who had come to Lal Masjid for collection of donation and identified him in the court as accused Abdul Rehman. PW48 also informed the police that even no one by the name of Mohd. Syed or Munir is residing in Lal Masjid or in his neighbourhood. PW49 Imtiyaz Ahmed has deposed that on 26.02.2019, on enquiry regarding the whereabouts of Munir and Syed, State v. Mohd. Asif & ors FIR No. 67/2015 Page 78 of 180 79 he had informed the police vide statement Ex. PW 43/P that no one by the name of Munir and Syed is residing in House No. 31 or 26.
PW50 Kaushik Chatterjee has deposed that upon receipt of notice u/s 91 CrPC Ex. PW 50/A, Sh. Viset Sontichai, the then Director of Thai Airways International, has given reply Ex. PW 50/B. He has deposed that as per the record, accused Abdul Sami had not travelled in their airline on 05.01.2015 from Bangkok to Dubai.
PW51 Tajir Pasha in his testimony before the court has confirmed his statement u/s 164 CrPC Ex. PW 51/A having been made to the Magistrate and he correctly identified his voice in the CD Ex. PW 51/P1 played in the court room. He also identified accused Maulana Abdul Rehman and stated that accused Maulana Abdul Rehman used to deliver speeches in the surrounding mosques. PW51 Tajir Pasha also identified accused Dr. Sabeel Ahmed whom he met at the house of one Aleem where accused Maulana Abdul Rehman used to stay on his visits at Banglore. He has also identified his phone numbers. PW52 ASI S. Paul has deposed that on 12.05.2016, as per the directions of the IO Sh. Manishi Chandra/ Addl. DCP (PW56), he deposited three sealed pulandas, as mentioned in RC No. 63/21/16 Ex. PW52/A in CFSL, CBI against acknowledgment/receipt.
PW53 "Mr. X", a protected witness has deposed that Islamic gatherings/meeting were conducted by Call and Guidance Centre, Riyadh, Saudi Arabia in an auditorium State v. Mohd. Asif & ors FIR No. 67/2015 Page 79 of 180 80 called Istrah where he met one Mohd. Akram. After the program, one Mohd. Bhai, Abu Hamzla, Engineer Shahid, Azmath and Asad Khan conducted secret meetings with said Mohd. Akram and these meetings were also attended by accused Sabeel Ahmed. He has deposed that three such secret meetings were attended/organized by the above mentioned persons. He has further deposed that the abovesaid persons assigned a task to Mohd. Akram to kill some prominent VHP leader. In these secret meetings, logistics were provided by accused Sabeel Ahmed. PW53 has further deposed that he desisted Mohd. Akram from carrying out any illegal activity and also informed his sponsor (locally known by the term Kafeel) to ensure his expulsion from Saudi Arabia to which the said sponsor agreed.
PW53 has further deposed that under the pressure of Mohd. Bhai, Abu Hamzla, Asad Khan, Engineer Shahid, Azmath and accused Dr. Sabeel Ahmed, the said Mohd. Akram came back to India from where he was arrested by the police.
PW54 ACP Govind Sharma was also the IO of the present case. On 09.08.2017, he received secret information regarding wanted accused Syed Mohd. Zishan Ali, who was already declared Proclaimed offender and on the basis of the information received, accused Syed Mohd. Zishan Ali was apprehended from the airport and arrested by him vide arrest memo Ex. PW 54/A. He conducted his personal search vide Ex. PW 54/B and recovered one State v. Mohd. Asif & ors FIR No. 67/2015 Page 80 of 180 81 mobile phone and documents i.e. passport etc vide seizure memo Ex. PW 54/C. PW54 also recorded disclosure statements of accused Syed Mohd. Zishan Ali Ex. PW 54/D and Ex. PW 43/A. During investigation, accused Syed Mohd. Zishan Ali was taken to CFSL, CBI through SI Rohit Kumar for obtaining his voice sample. He has also proved the data in two DVDs pertaining to the social media and email ID access of accused Syed Mohd. Zishan Ali carried out by CERT-In expert and the seizure memo of the DVD alongwith certificate u/s 65B of Indian Evidence Act as Ex. PW 43/C. He has also proved the disclosure statements of accused Syed Mohd. Zishan recorded on 18.08.2017 and 23.08.2017 as Ex. PW 43/B and Ex. PW 43/D. He also prepared the transcript of conversation between accused Syed Mohd. Zishan Ali and Maulana Abdul Rehman vide Ex. PW 43/G. He also seized the intercepted voice in a CD vide memo Ex. PW 43/H and sent the same to CFSL for examination through SI Rohit Kumar. PW54 during investigation has procured the mandatory sanction under UAPA. PW54 identified Nokia mobile phone alongwith charger and lead recovered from accused Syed Mohd. Zishan Ali as Ex. PW 54/P1. He has also identified the DVD Ex. PW 43/P2 containing the social media activity of accused Syed Mohd. Zishan Ali and CD Ex. PW 43/P4 containing the intercepted conversation between Abdul Rehman, Syed Mohd. Zishan Ali and unknown person. He also identified documents comprising detection of LOC subject as Ex.D14, boarding State v. Mohd. Asif & ors FIR No. 67/2015 Page 81 of 180 82 pass and passport in the name of accused Syed Mohd. Zishan Ali and 23 other documents collectively as Ex. PW 54/P2.
PW54 has further deposed that during investigation, he collected the CDR, CAF, location charts of mobile phone used by the accused persons and also collected the bank statement of accounts maintained by accused persons. He has further deposed that during investigation, it was revealed that accused Mohd. Abdul Rehman has obtained a passport in the name of Imdadullah Khan from Banglore and he collected the relevant documents for further investigation. He has further deposed that during investigation, result was obtained, statement of witnesses was recorded and also obtained mandatory sanction of UAPA and after completion of investigation, the charge-sheet was filed in the court concerned.
PW55 Ismail Khan s/o Khader Nawaz Khan has deposed that he has no brother by the name of Imdadulla Khan and he gave the statement Ex. PW 43/Q to this effect. PW 56/IO DCP Sh. Manishi Chandra that on 14.12.2015, at about 13.30 hours, on receipt of secret information about arrival of accused Mohd. Asif in Delhi to meet his associates in the Walled City i.e. Delhi-6; Mohd. Asif was expected to take a return bus to Sambhal from Welcome Bus Stand, near Seelampur Flyover at about 3.00 hours, a raiding team was constituted and the team reached Welcome bus stand alongwith the secret State v. Mohd. Asif & ors FIR No. 67/2015 Page 82 of 180 83 informer. At about 15.30 hours, at the pointing out of secret informer, accused Mohd. Asif, carrying a black colour shoulder bag was apprehended.
PW56 Manishi Chandra has further deposed that on cursory interrogation, Mohd. Asif disclosed his name and upon confrontation, he admitted being a member of AQIS and a propagator of its ideology. He has further deposed that from the personal search of accused Mohd. Asif, one phone make Samsung was recovered which he was carrying in his hand and from his shoulder bag, one Toshiba laptop, two others cell phones make Intex and Sagem etc. were recovered and the IO seized the same vide memo Ex. PW 30/A. PW56/ IO Sh. Manishi Chandra has deposed that he got the FIR Ex. PW1/A registered through SI Vikram Dahiya.
PW56 Manishi Chandra has further deposed that he interrogated accused Mohd. Asif and arrested him in the present case vide arrest memo Ex.PW30/B and personal search memo Ex.PW30/C. He has deposed that on 16.12.2015, he sent a letter Ex. PW 56/C to FRRO, New Delhi seeking the traveling details of accused Mohd. Asif pursuant to which FRRO provided the details vide reply Ex. D1. PW56 had also sent a letter Ex. PW 6/A to the Manager, Minar Travel Pvt. Ltd. Connuaght Place seeking details of travel of accused Mohd. Asif, accused Mohd. Rehaan and Sherjeel Akhtar pursuant to which Sh. P.C. Duggal, Director, Minar Travel gave reply Ex. PW6/B alongwith the relevant records and certificate u/s 65B of State v. Mohd. Asif & ors FIR No. 67/2015 Page 83 of 180 84 Evidence Act Ex.PW6/C to ExPW6/I. PW 56 Manishi Chandra has further deposed that on 22.12.2015, exhibits i.e. devices recovered from accused Mohd. Asif and Abdul Rehman and Zafar Masood were sent to CERT-in department vide forwarding letter Ex. PW56/E. PW56 Sh. Manishi Chandra has deposed that on 30.12.2015, a request letter Ex. PW 56/F was sent by him to Ministry of External Affairs for obtaining details regarding emergency certificate issued to accused Mohd. Asif from Turkey in the month of October, 2014, pursuant to which the reply Ex. D5 alongwith the attested copies of the requisite documents Ex. PW 56/G (colly) with regard to issuance of emergency certificate to accused Mohd. Asif were supplied by MEA. PW56 Sh. Manishi Chandra has further deposed that upon receipt of notice u/s 91 CrPC Ex. PW 56/H, Shane Alam, brother-in-law of co-accused Zafar Masood, produced the passport of accused Zafar Masood which was seized vide memo Ex. PW23/A. PW56 Sh. Manishi Chandra has deposed that pursuant to letter dated 27.01.2016 Ex. PW 56/I, Assistant Director, CFB provided the requisitioned information regarding travelling details of co-accused Zafar Masood vide memorandum Ex. D2 along-with the history of visit by co-accused Zafar Masood to Pakistan consisting of two pages which are part of Ex.D2.
PW56 Sh. Manishi Chandra has deposed that pursuant to notices u/s 91 CrPC Ex. PW 56/J and Ex PW 56/K, Regional Passport Office, Ahmedabad provided the State v. Mohd. Asif & ors FIR No. 67/2015 Page 84 of 180 85 certified copies of the passport application registration form, ID proof and other relevant documents Ex. PW 45/C ( colly) annexed by accused Zafar Masood at the time of the applying for the passport.
PW 56 Manishi Chandra has further deposed that pursuant to notice u/s 91 CrPC Ex. PW 56/L Regional Passport Office Bareily gave reply Ex.PW10/B wherein it was specifically stated that the passport bearing number R- 625019 and passport no. A4709346 in the name of Zafar Masood S/o Masood-Ul- Hasan and in the name of Mohd. Zafar S/o Masood -Ul- Hasan respectively were issued from RPO, Bareily on the strength of police report, however, the duplicate passport of the original passport no. A4709346 was not issued in the above-mentioned name due to adverse police report and the RPO also provided the copy of the relevant record Ex. PW 10/C ( Colly).
PW 56 Manishi Chandra has deposed that pursuant to letter Ex.PW56/N, DSP, Bistupur, Jamshedpur, Jharkhand provided the certified copies of FIR/Case No. 21/2016, PS Bistupur pertaining to accused Maulana Abdul Rehman and Abdul Sami, Ex.PW56/O alongwith forwarding letter Ex.D9.
PW57 ACP Lalit Mohan Negi has deposed that on 28.08.2020, accused Sabeel Ahmed was arrested by NIA, Hyderabad in regular case FIR No. 04/2012, PS NIA Hyderabad and was produced in the present case on 22.02.2021 on production warrants. PW57 obtained permission to interrogate/arrest co-accused Sabeel Ahmed State v. Mohd. Asif & ors FIR No. 67/2015 Page 85 of 180 86 on his application Ex.PW57/A and interrogated accused Sabeel Ahmed vide interrogation memo Ex.PW25/A who was formally arrested vide memo Ex.PW25/B. PW57 obtained 10 days police custody remand of accused Sabeel Ahmed vide application Ex. PW 57/B and interrogated him.
PW 57 ACP Lalit Mohan Negi has further deposed that he collected the certified copy of charge-sheet filed by NIA, Hyderabad against accused Sabeel Ahmed in case FIR No. 4/2012 Ex. D18. PW57 has deposed also procured the photocopy of the judgment of court of Kingdom of Saudi Arabia Mark PW 57/C where accused Sabeel Ahmed was convicted. PW57 has further deposed that after completion of investigation and procuring mandatory sanction u/s 45 of UAPA, he filed the supplementary challan against accused Sabeel Ahmed.
PW58 Omveer Singh, CERT-in expert, has corroborated the testimony of Insp. Rohit Kumar Sharma (PW43) regarding retrieval of data from the social media accounts of accused Syed Mohd. Zishan Ali on the request letter of Special Cell Ex. PW 58/A; the retrieved data was saved in DVD Ex. PW 43/P2 which were seized by IO ACP Govind Sharma vide memo Ex. PW 43/C alongwith certificate u/s 65B of Evidence Act Ex. PW 58/B. PW58 has proved his detailed report as Ex. PW 58/C about retrieval of data from the phones, sim cards, memory card, laptop and tablets recovered from accused persons on request vide letter Ex. PW 56/E; he also clicked the photograph of sealed parcels State v. Mohd. Asif & ors FIR No. 67/2015 Page 86 of 180 87 and of the exhibits/devices/ objects Ex.PW58/D1 to Ex.PW58/D3 after opening the parcel and annexed them as Annexure-I in his detailed report. PW58 also annexed the memory card imaging report Ex. PW 58/E as Annexure-II alongwith his report. PW58 has further deposed that he prepared two pen drives containing the retrieved data from the exhibits/devices/ objects and out of the said two pen drives, one Pen Drive was sealed with the seal of CERT-In and the other pen drive was kept unsealed for investigation purposes and both the pen drives were handed over to the IO alongwith sealed parcels vide forwarding letter Ex.PW58/F. PW59 K. Vanaja Venkataramana, Assistant Passport Officer, Banglore has deposed that on receipt of letter Ex. PW 43/J1 and photocopy of passport No. F1233600 Ex. PW 43/J2 in the name of Imdadullah Khan, on checking, was found to be issued on the basis of police verification report. PW59 has provided the certified scanned copy of the application form along-with relevant documents i.e. copy of ration card, copy of affidavit in the name of Sh. Imdadullah Khan S/o Sh. Kahdar Nawaj Khan duly notarized by the Notary Public in support of date of birth of the applicant, non-availability certificate issued from the office Chief Registrar of Birth and Death in support of affidavit showing his date of birth as the birth was not registered with Registrar Office, another notarized affidavit showing date of birth and declaration about non- availability certificate, application in support of affidavit State v. Mohd. Asif & ors FIR No. 67/2015 Page 87 of 180 88 and the scanned copy of internet reference number 104593 vide which the scanned copies were stored along-with forwarding letter Ex.PW59/A and the printout of the particulars of the applicant Imdadullah Khan, certified scanned copies of the application form (8 pages) Ex.PW59/C1 to Ex.PW59/C8, certified scanned copy of the police record Ex.PW59/D and certified scanned copy of the application form( 4 pages) sent to the police for verification Ex.PW59/E1 to Ex.PW59/E4 were handed over to IO by PW59. PW59 has further deposed that she also handed over to the IO the certified scanned copy of the ration card given by the applicant alongwith application form Ex.PW59/F, the certified scanned copy of the affidavit (2 pages) given by the applicant alongwith application form Ex.PW59/G (collectively), certified scanned copy of non-availability certificate given by the applicant alongwith application form Ex.PW59/H, certified scanned copy of the another affidavit given by applicant in support of his date of birth with letter Ex.PW59/I-1 and Ex.PW59/I-2 and certified scanned copy of internet reference no. 104593 vide which scanned record was stored in the system Ex.PW59/J. PW60 B. Gopala Krishna, Notary Public has deposed that he had notorized the affidavit of accused Maulana Abdul Rehman Ex. PW 59/I-1 duly signed by the witness and gave his statement Ex. PW43/R that he attested the said affidavit in usual course of work with bonafide intention.
State v. Mohd. Asif & ors FIR No. 67/2015 Page 88 of 180 89
20. After conclusion of Prosecution Evidence, statement of accused persons was recorded u/s 313 CrPC wherein they all have denied the prosecution case.
21. The accused persons opted not to lead any evidence in their defence.
22. During trial, Ld. Defence counsels on behalf of all accused persons admitted the following documents :-
1. The reply of the FRRO dated 29.12.2015 Ex.D1 (at page no.201 of the charge-sheet dated 10.06.2016).
2. The reply of the FRRO dated 02.02.2016 along-with annexures Ex.D2 (at page no.268 to 270 of the charge-sheet dated 10.06.2016).
3. The reply of the FRRO dated 29.12.2015 along-with annexures Ex.D3 (at page no.546 to 550 of the charge-sheet dated 10.06.2016).
4. The reply of the FRRO dated 08.01.2016 along-with annexures Ex.D4 (at page no.552 to 563 of the charge-sheet dated 10.06.2016).
5. The reply of the Joint Secretary, MEA (Ms. Rashmi Ranjan) dated 23.02.2016 along-with annexures Ex.D5 (at page no.221 to 230 of the charge-sheet dated 10.06.2016).
6. The sanction u/s 45 dated 01.06.2016 qua accused Mohd.
Asif, Jaffar Masood, Abdul Rehman, Syed Anzar Shah and Abdul Sami Ex.D6 (placed at page no. 638 of charge-sheet dated 10.06.2016).
7. The sanction u/s 45 dated 09.01.2018 qua accused Syed Mohd. Zishan Ali Ex.D7 (placed at page no. 211 of charge- sheet dated 22.01.2018).
8. The sanction u/s 45 dated 18.04.2020 qua accused Sabeel Ahmed Ex.D8 (placed at page no. 202-203 of charge-sheet dated 20.07.2021).
9. Letter of the Dy. SP, C.C.R. Jamshedpur dated 06.04.2016 along-with copy of FIR No. 21/2016, PS Bistupur Jharkhand and the annexures thereto Ex. D9 (colly) (placed at page no. 477 to 485 of the charge-sheet dated 10.06.2016). (the admission is without prejudice to the right of the accused in the trial pending against accused Abdul Sami and State v. Mohd. Asif & ors FIR No. 67/2015 Page 89 of 180 90 Maulana Abdul Rehman in concerned court).
10. Letter of Sh. P.R. Satpathy, SP, Special Task Force, CID, CB, Bhuvneshwar, dated 25.02.2016 along-with the annexures thereto (placed at page no. 487 to 492 of the charge-sheet dated 10.06.2016) and attested copies of charge-sheet at page 256 to 274 of the charge-sheet dated 22.01.2018) Ex. D10 (colly). (the admission is without prejudice to the right of the accused in the trial pending against accused Maulana Abdul Rehman in concerned court).
11. Letter of the SI A.P. Braham Bhat, Spl. Operation Group, Surat Sahar, Surat, dated 10.12.2016 along-with the annexures thereto Ex. D11 (colly) (placed at page no. 247 to 255 of the charge-sheet dated 22.01.2018)(the admission is without prejudice to the right of the accused in the trial pending against accused Jaffar Masood in concerned court).
12. Letter dated 12.10.2017 from Kotak Mahindra Bank along-with the annexures thereto Ex. D12 (colly) (placed at page no. 122 to 134 of the charge-sheet dated 22.01.2018).
13. Letter of Nodal Officer TATA, dated 09.10.2017 along- with the annexures thereto Ex. D13 (colly) (placed at page no. 135 to 145 of the charge-sheet dated 22.01.2018).
14. The report of ASI Sribhagwan regarding the detention of accused Syed Mohd. Zishan Ali, dated 09.08.2017 along-with the annexures thereto Ex. D14 (colly) (placed at page no. 44 to 68 of the charge-sheet dated 22.01.2018).
15. The copy of arrest memo, personal search memo and seizure memo of accused Sabeel Ahmed dated 28.08.2020 at IGI Airport now Ex.D15, Ex.D16 and Ex.D17 respectively. (placed at pages no. 142 to 147 of the charge-sheet dated 20.07.2021) (the admission is without prejudice to the right of the accused in the trial pending against accused Sabeel Ahmed in case RC No. 4/2012/ NIA/ Hyderabad pending trial before the Special Court for NIA cases (XLIX Additional City, Civil & Sessions Court, Banglore).
16. The copy of the charge-sheet dated 22.02.2021 having RC No. 4/2012/ NIA/ Hyderabad pending trial before the Special Court for NIA cases (XLIX Additional City, Civil & Sessions Court, Banglore) (placed at pages no. 54 to 175 of the charge- sheet dated 20.04.2021) Ex.D18. (the admission is without prejudice to the right of the accused in the trial pending against accused Sabeel Ahmed in case RC No. 4/2012/ NIA/ Hyderabad pending trial before the Special Court for NIA cases (XLIX Additional City, Civil & Sessions Court, Banglore).
17. Letter dated 15.12.2020 issued by Assistant Passport Officer, Bangluru (page no. 116 of charge-sheet dated State v. Mohd. Asif & ors FIR No. 67/2015 Page 90 of 180 91 20.07.2021) now Ex. D19.
18. Letter dated 10.10.2017 issued by Assistant Director, IB alongwith annexures now Ex. D20 ( Page no. 96 to 98 of charge-sheet dated 22.01.2018).
23.Sh. Irfan Ahmed, Ld. Addl. PP for the State has vehemently contended that the prosecution by way of examination of 60 witnesses and producing the incriminating evidence against the accused persons has successfully been able to prove the charges of conspiracy and recruitment for the terrorist act. It is further submitted that prosecution has been able to establish on record that the accused persons were members of the banned terrorist organisation 'Al-Qaeda' and they were actively involved in the preparatory act to commit the terrorist act and for that purpose, accused persons remained inter-connected to each other and some of the accused persons have also visited Pakistan, either to obtain terrorist training or radicalizing youth or to collect funds for the purpose of terrorist act.
24.On behalf of accused Mohd. Asif, Zafar Masood, Maulana Abdul Rehman, Abdul Sami, it is contended by Ld. Defence counsel Sh. Sarim Naved, Adv. that accused persons have been falsely implicated in the present case and nothing has come on record during the trial to establish their affiliation or even sympathy towards Al- Qaeda. It is submitted that there is no evidence produced by the prosecution to link the accused persons with the terrorist organisation Al-Qaeda in terms of Section 20 of UAPA. It is further argued that as per Section 18 of UAPA, State v. Mohd. Asif & ors FIR No. 67/2015 Page 91 of 180 92 which deals with conspiracy to commit a terrorist act, nothing has come on record during the trial that any terrorist act, as defined u/s 18 of UAPA, was even contemplated and therefore, there is no evidence even of radicalizing or recruiting any person for the purpose of commission of any terrorist act.
25. Allegations qua accused Mohd. Asif, it is argued that no public witness was joined during the process of his arrest at the spot and there is no evidence to show that with whom accused Mohd. Asif met before coming to the spot from where he was arrested.
So far as recovery of laptop and cellphone from the possession of accused Mohd. Asif is concerned, the same were not sealed, therefore, it creates a doubt upon the authenticity regarding material recovery of laptop and cellphone.
It is also submitted that with regard to letter sent to brother of accused Mohd. Rehan by accused Mohd. Asif, there is nothing in the said letter which shows that accused Mohd. Asif's or his brother's association with Al- Qaeda or any terrorist organisation.
26.Ld. defence counsel has further termed the accusations of prosecution qua the travelling of accused Mohd. Asif to Pakistan as completely a story which is absolutely falsely being not supported with any kind of valid evidence.
State v. Mohd. Asif & ors FIR No. 67/2015 Page 92 of 180 93
27. It is also contended that intercepted conversation between accused Mohd. Asif and Maulana Abdul Rehman is not an admissible piece of evidence due to absence of compliance u/s 46 of UAPA. It is submitted that as per Section 46 of UAPA, the contents of any intercepted conversation shall not be admissible in evidence unless each accused has been furnished with the copy of the sanction/interception order granted by competent authority not less than 10 days before the trial and such compliance is missing in the present case, therefore, the intercepted conversations of the present case are not admissible and even the interception order from the competent authority has not been produced on record. It is also argued that there is no evidence to show that accused Mohd. Asif received Rs.2 lacs from wanted AQIS cadre Syed Akhtar @ Qasim through hawala in Delhi for commission of terrorist activities.
28. For accused Zafar Masood, It is also contended that there is no evidence against him that he handed over a sum of Rs.1,00,000/- ( Rs.65,000 +Rs.35,000) to co-accused Mohd. Asif for committing terrorist activities after withdrawing it from the HDFC bank account of his wife and prosecution has not been able to show any corresponding withdrawal to the tune of Rs.65,000/- and Rs.35,000/- respectively.
29. In response to the allegations against accused Mohd. Abdul Rehman, it is argued that his passport only shows his entry into Dubai from Saudi Arabia and then, exit from Dubai State v. Mohd. Asif & ors FIR No. 67/2015 Page 93 of 180 94 into Saudi Arabia. It is submitted that prosecution has failed to show his travel to Pakistan. Ld. Counsel has further submitted that the allegations qua the inflammatory speeches against accused Abdul Rehman are baseless and said speeches does not indicate any abetment or incitement towards the commission of any terrorist activity or even preparation of the same. Ld. Defence counsel has further submitted that the allegations of forged passport in the name of Imdadullah Khan have also not been proved against accused Abdul Rehman.
30. It is also submitted that prosecution has also failed to connect the travel of accused Mohd. Abdul Sami in contemplation of any terrorist activity or his connection with the banned terrorist organisation ' Al-Qaeda'. Ld. Defence counsel has placed reliance upon the judgment of Hon'ble Apex Court in the matter of Sharad Birdhichand Sarda v. State of Maharashtra 1984 SCC (4) 116.
31. On behalf of accused Syed Mohd. Zishan Ali and Dr. Sabeel Ahmed, it is argued by Ld. Defence counsel Sh. M. S. Khan that the essential ingredients to establish the existence of conspiracy and its objectives are missing which can be inferred from the surrounding circumstances and the conduct of the accused persons and the prosecution has failed to establish the same. It is submitted that the evidence brought on record by the prosecution has failed to prove the inter-se connectivity between the accused State v. Mohd. Asif & ors FIR No. 67/2015 Page 94 of 180 95 persons as the alleged intercepted call which has been produced by the prosecution is not an admissible piece of evidence which leads the case of the prosecution nowhere. It is also submitted that no incriminating material has been recovered from all the proceedings of screen capturing the social media accounts of the accused persons. It is further submitted that there is no evidence of funding or recruitment against the accused persons.
32.Qua accused Sabeel Ahmed, it is submitted by Ld. Defence counsel that there is no evidence to prove that accused Sabeel Ahmed was providing the financial assistance to co-accused Maulana Abdul Rehman. It is submitted that there is no conspiracy/connectivity of accused Sabeel Ahmed with co-accused Abdul Rehman and the witnesses examined by the prosecution to prove the same have fallen flat on account of either not admissible piece of evidence or the witness turning hostile.
POINT OF DETERMINATION
33. In the present case, the prosecution is required to prove :-
(1) Whether accused persons have conspired :
A: To commit any act preparatory to the commission of a terrorist act.
(2) Whether accused persons in pursuance to the said conspiracy :-
A: Illegally visited Pakistan.
B: Collected huge money for the purpose of terrorist
act.
State v. Mohd. Asif & ors
FIR No. 67/2015 Page 95 of 180
96
C: Radicalized and recruited the youth.
D: Created forged and fabricated documents.
E: Having connection with terrorist organisation.
...(U/Section 18 of UAPA)
(3) Whether the accused persons in furtherance of
conspiracy to commit terrorist act :-
A: Radicalized and recruited several youth from
District Sambhal, Uttar Pradesh and other parts of the country to join Al-Qaeda.
...(U/Section 18B of UAPA) (4) Whether accused persons were found to be the members of Al-Qaeda, a banned terrorist organisation ( under First Schedule Srl. No. 28) which is involved in committing terrorist acts.
...(U/Section 20 of UAPA) (5) Whether accused Sabeel Ahmed raised or provided/collected the funds with the intention that the same would be used by the terrorist organisation 'Al-Qaeda' to commit the terrorist act.
...(U/Section 17 of UAPA) (6) Whether accused Sabeel Ahmed was declared a Proclaimed Offender as he failed to appear before the Court on the given dates and time.
...(U/Section 174A of IPC) (7) Whether accused Abdul Rehman procured the passport :-
(A) By forging the Passport application form and affidavit in the name of Imdadullah Khan S/o Khadar Nawaz Khan :
I. By signing the said documents.
II. By pasting his own photograph on the same.
State v. Mohd. Asif & ors
FIR No. 67/2015 Page 96 of 180
97
...(U/Section 467 of IPC)
(B) Whether accused Abdul Rehman used the forged and
fabricated affidavit, application form and ration card as genuine and furnished the same to procure the passport with the knowledge that the same are forged and fabricated.
...(U/Section 471 of IPC) (C ) Whether accused Abdul Rehman by furnishing the false information and suppressing the material information on his identity obtained the passport in the said manner.
...(U/Section 12(1)(b) of Passport Act)
34. In the present case, the trial has been faced by accused persons, namely, Mohd. Asif, Zafar Masood, Mohd. Abdul Rehman, Mohd. Abdul Sami, Syed Mohd. Zishan Ali and Dr. Sabeel Ahmed. Other accused persons, namely, Syed Akhtar @ Qasim, Sanaul Haq @ Maulana Asim Umar, Mohd. Sharjeel Akhtar, Usman @ Asad, Mohd. Rehan, Abu Sufiyan, Syed Mohammad Arshiyan @ Haider, Mohammed Shahid Faisal @ Ustad, Farhatullah Ghori and Mohd. Umar @ Umar Hyderabadi were also allegedly involved in the commission of the alleged offences and are absconding and declared 'Proclaimed Offenders' vide order order dated 12.07.2016.
ROLE OF ACCUSED PERSONS MOHD. ASIF :-
35. Accused Mohd. Asif was allegedly the head of 'Al-Qaeda in Indian Sub-Continent' in India. He was found involved in recruiting accused Mohd. Sharjeel Akhtar (P.O) and State v. Mohd. Asif & ors FIR No. 67/2015 Page 97 of 180 98 Mohd. Rehan (P.O) in this terror outfit AQIS. Accused Mohd. Asif took both the aforesaid accused persons to Pakistan via Iran for training. Accused Mohd. Asif also arranged cash of Rs.1 lakh from co-accused Zafar Masood for the purpose of their travelling expenses to Pakistan. He also met AQIS Chief Sana-ul-Haq @ Asim Umar (P.O), Mohd Umar @ Umar Hyderabadi (P.O) and others in Pakistan. On the directions of his handlers, Mohd. Asif also visited Banglore and conveyed the well being message of accused Mohd. Umar @ Umar Hyderabadi to Maulana Abdul Rehman by meeting him in a mosque in September, 2015. It is also alleged against him that he had also conveyed the well being message of accused Mohd. Rehan via DTDC courier to his parents in Delhi. It has also been alleged against him that accused Mohd. Asif had also collected a sum of Rs. 2 lacs via hawala transaction for terror activities.
MAULANA ABDUL REHMAN :-
36. Accused Maulana Abdul Rehman has also been projected as one of the main accused in this case. There are allegation that he was collecting fund for terror activities in India as well as in abroad. His role is also of recruting accused Syed Mohd. Zishan Ali, Mohd. Abdul Sami, Mohd. Umar @ Umar Hyderabadi (P.O) and Syed Mohammad Arshiyan @ Haider (P.O). It is also alleged against him that he was found visiting Pakistan illegally for obtaining arms and ammunitions and also for obtaining State v. Mohd. Asif & ors FIR No. 67/2015 Page 98 of 180 99 training where he also met top wanted militants. Accused Maulana Abdul Rehman was also found obtaining financial assistance from co-accused Dr. Sabeel Ahmed and accused Syed Mohd. Zishan Ali for running terror activities.
ZAFAR MASOOD :-
37. Accused Zafar Masood has also been projected as member of 'AQIS'. He was allegedly found in contact with co- accused Maulana Abdul Rehman and accused Mohd. Asif. It is also alleged against him that on the instructions of his handlers, he had given cash of Rs.1 lakh to accused Mohd. Asif for his travel to Pakistan via Iran alongwith accused Mohd. Sharjeel Akhtar and his own nephew. It is also alleged against him that he also got issued several passports with some deceptive similarities of his name and particulars on the basis of forged and fabricated documents.
DR. SABEEL AHMED :-
38. It is alleged against accused Sabeel Ahmed that he was providing financial and logistic assistance to the co- accused persons and also the absconding accused persons in India and abroad. Accused Sabeel Ahmed is brother-in- law (Sala) of accused Syed Mohd. Zishan Ali. It is also alleged against him that he was also arrested by Kingdom of Saudi Arabia for keeping the money illegally without the knowledge of the Government.
State v. Mohd. Asif & ors FIR No. 67/2015 Page 99 of 180 100 SYED MOHD. ZISHAN ALI :-
39. Accused Syed Mohd. Zishan Ali is the younger brother of wanted accused Syed Mohammad Arshiyan @ Haider (P.O). Accused Syed Mohd. Zishan Ali used to provide financial and logistic assistance to arrested as well as wanted accused persons in India and abroad. Accused Syed Mohd. Zishan Ali is brother-in-law of accused Sabeel Ahmed.
ABDUL SAMI :-
40. Accused Abdul Sami was recruited by accused Abdul Rehman to join the terror outfit. He was further sent to obtain training from Pakistan. For his travel to Pakistan, he created forged exit and entry of immigration of various countries in his passport. It is also alleged against him that he visited Pakistan and obtained arms / ammunitions / bomb /IED / Grenades etc. as he was supposed to do terror activities on the directions of accused Abdul Rehman.
41. The present case is about the terrorist organisation 'Al-
Qaeda' which was trying to set up its base in India under the banner of 'Al-Qaeda in Indian Sub-continent' (hereinafter referred to as 'AQIS') and for the purpose of executing its evil design, several persons including the accused persons herein were roped in. In order to commit the act preparatory to commission of terrorist act, accused persons illegally visited Pakistan, collected huge money State v. Mohd. Asif & ors FIR No. 67/2015 Page 100 of 180 101 for the purpose of terrorist act. In furtherance of the conspiracy to commit terrorist act, they had radicalized and recruited several youth from District Sambhal, Uttar Pradesh and other parts of the country, so that, more and more persons shall join 'Al-Qaeda'. Some of the accused persons had even created fake identity documents to fulfill their act of terrorism. Not only that, some of the accused persons have also illegally travelled to Pakistan by creating forged and fabricated exit and entry stamps of various countries. In one of the case, the accused in association with members of his handler located in Pakistan has also even managed to suppress immigration entry on his passport.
42. Criminal conspiracy is committed when two or more persons agree to do or cause to be done an illegal act or legal act by illegal means. It is also necessary to establish that there is an intention to commit crime and joining of hands with the persons having the same intention. Not only the intention, there has to be an agreement to carry out the object of the intention, which is an offence.
43. For the offence of conspiracy, it is rarely possible to prove conspiracy by direct evidence, therefore, the existence of conspiracy and its objects have to be inferred from the circumstantial evidence and the conduct of the accused persons. To prove the charges of conspiracy, it is not necessary that intended crime was committed or not. State v. Mohd. Asif & ors FIR No. 67/2015 Page 101 of 180 102 Similarly, it is also not necessary that all the conspirators should agree to the common purpose at the same time. They may join with other conspirators at any time before the consummation of the intended objective, and all are equally responsible. In the offence of conspiracy, it is always not known to the conspirators that as to what part each conspirator has to play or as to when a conspirator joined the conspiracy and when he left. In the offence of criminal conspiracy, the unlawful agreement which amounts to conspiracy need not be formal or express but may be inherent in and inferred from the circumstances, especially declarations, acts and conduct of the conspirators. At the same, the prosecution is also required to establish that there are cogent and convenient evidence against each of the accused persons charged with the offence of conspiracy. Reliance has been placed upon the judgment of the Hon'ble Apex Court in the matter of State v. Nalini,(1999) 5 SCC 253 (Rajiv Gandhi Assassination case) in Para no. 583 wherein it has been observed here as under:
"..................................................................... ........................................................................ ........................................................................ ..................
3. Conspiracy is hatched in private or in secrecy. It is rarely possible to establish a conspiracy by direct evidence. Usually, both the existence of the conspiracy and its objects have to be inferred from the circumstances and the conduct of the accused.
........................................................................ ........................................................................ ........................................................................
State v. Mohd. Asif & ors FIR No. 67/2015 Page 102 of 180 103 ..................
6. It is not necessary that all conspirators should agree to the common purpose at the same time. They may join with other conspirators at any time before the consummation of the intended objective, and all are equally responsible. What part each conspirator is to play may not be known to everyone or the fact as to when a conspirator joined the conspiracy and when he left.
8. As stated above it is the unlawful agreement and not its accomplishment, which is the gist or essence of the crime of conspiracy. Offence of criminal conspiracy is complete even though there is no agreement as to the means by which the purpose is to be accomplished. It is the unlawful agreement which is the gravamen of the crime of conspiracy. The unlawful agreement which amounts to a conspiracy need not be formal or express, but may be inherent in and inferred from the circumstances, especially declarations, acts and conduct of the conspirators. The agreement need not be entered into by all the parties to it at the same time, but may be reached by successive actions evidencing their joining of the conspiracy.
........................................................................ ........................................................................ ............
10. A man may join a conspiracy by word or by deed. However, criminal responsibility for a conspiracy requires more than a merely passive attitude towards an existing conspiracy. One who commits an overt act with knowledge of the conspiracy is guilty. And one who tacitly consents to the object of a conspiracy and goes along with other conspirators, actually standing by while the others put the conspiracy into effect, is guilty though he intends to take no active part in the crime...."
44. Section 2(m) of UAPA provides the definition of 'Terrorist Organisation' which reads as under :-
2. Definitions :-
............................................................................... .............................................................................. ................................................................................
(m) "terrorist organisation" means an organisation listed in the Schedule or an organisation operating under the same name as State v. Mohd. Asif & ors FIR No. 67/2015 Page 103 of 180 104 an organisation so listed...."
45. "Terrorist Act" has been defined u/s 15 of UAPA, according to which any act with intention to threaten or likely to threaten the unit, integrity, security or sovereignty of India or with intention to strike terror or likely to strike terror in the people or any section of the people in India by any one of the activities, as mentioned in the section, such as by using bombs, firearms or any other lethal weapons or by any other means of whatever nature that are likely to cause death or injuries, damage to property and damages to the country.
46. 'Al-Qaeda' of whose member the accused persons have been projected in the present case, has been listed as a terrorist organisation in the First Schedule of UAPA as it has been found involved in the terrorist acts, as mentioned u/s 15 of UAPA.
47. Section 18B of UAPA provides the punishment for recruitment of any person for terrorist act.
48. Section 20 of UAPA provides the punishment for being the member of the terrorist gang or organisation.
49. Therefore, it is to be seen that whether the prosecution has been able to prove the existence of conspiracy between the accused persons for any act preparatory to the commission of terrorist act and in furtherance of their common object State v. Mohd. Asif & ors FIR No. 67/2015 Page 104 of 180 105 of committing the terrorist act, recruitment of several youth from District Sambhal, Uttar Pradesh had taken place and fund was also raised. It is also required to be proved by the prosecution that accused persons were the member of terrorist organisation "Al-Qaeda'.
ROLE OF ACCUSED MOHD ASIF PREPARATORY ACT TO THE COMMISSION OF TERRORIST ACT :-
50. Accused Mohd. Asif was allegedly the head of 'Al-Qaeda in Indian Sub-Continent' in India. He was found involved in recruiting accused Mohd. Sharjeel Akhtar (P.O) and Mohd. Rehan (P.O) in this terror outfit AQIS. Accused Mohd. Asif took both the aforesaid accused persons to Pakistan via Iran for training. Accused Mohd. Asif also arranged cash of Rs.1 lakh from co-accused Zafar Masood for the purpose of their travelling expenses to Pakistan. He also met AQIS Chief Sana-ul-Haq @ Asim Umar (P.O), Mohd Umar @ Umar Hyderabadi (P.O) and others in Pakistan. On the directions of his handlers, Mohd. Asif also visited Banglore and conveyed the well being message of accused Mohd. Umar @ Umar Hyderabadi to Maulana Abdul Rehman by meeting him in a mosque in September, 2015. It is also alleged against him that he had also conveyed the well being message of accused Mohd. Rehan via DTDC courier to his parents in Delhi. It has also been alleged against him that accused Mohd. Asif had also State v. Mohd. Asif & ors FIR No. 67/2015 Page 105 of 180 106 collected a sum of Rs. 2 lacs via hawala transaction for terror activities.
(i) RECOVERY :-
51. On 14.12.2015, the raiding team apprehended accused Mohd. Asif and from his possession, laptop Ex. PW 20/P1, Intex mobile phone Ex. PW 20/P2, Samsung Galaxy Note 3 mobile phone Ex. PW 20/P3, Sagem Hutch mobile phone Ex. PW 20/P4 were recovered. The members of the raiding team I.e. Insp. Rahul Kumar (PW30) and IO DCP Manishi Chandra (PW56) have proved the arrest and the recoveries effected from accused Mohd. Asif. The seizure memo with respect to the recovery of the above articles has been proved as Ex. PW 30/A. Cert-In expert prepared detailed report Ex. PW 58/C about the retrieval of the data from the mobile phones, sim cards, memory cards, laptop, tablet etc recovered from the possession of accused persons. He has also proved the photographs of the sealed parcels and devices as Ex. PW 58/D1 to Ex. PW 58/D3. PW58 has proved the certificate u/s 65B of Indian Evidence Act as Ex. PW 58/B regarding the retrieval of the data which was provided by him to the IO in Pen Drive Ex. PW 58/P8. PW58 has also proved the Memory Card Imaging Report as Annexure-II alongwith detailed report and the same has been proved as Ex. PW 58/E. The data recovered from the phone of accused Mohd. Asif, which is marked as X2C-MOB, found containing many State v. Mohd. Asif & ors FIR No. 67/2015 Page 106 of 180 107 images including some images of Ex-Chief Al-Qaeda Osama Bin Laden. Insp. Rohit Kumar Sharma (PW43), ACP Govind Sharma (PW54) and Sh. Omveer Singh (PW58) have proved the retrieved data vide Ex. PW 43/E and Ex. PW 43/F and Ex. PW 58/E which shows a video containing the fight of a terrorist with the forces abroad. Extraction of mobile phone data of the accused Mohd. Asif further shows some anti-national speeches and some objectionable materials. There is recovery of data as to the method to prepare explosives. From the memory card recovered from his Samsung mobile phone is marked as X2C-MOB which was found containing a file with the heading " The Mujahideen Explosive Handbook" having details to prepare explosives with the help of RDX, TNT, Potassium Chlorate etc. From the said memory card, another file containing the Press Release dated 16.09.2014 of Al-Qaeda in the Indian Sub-continent was found showing support from Pakistan Armed Forces and one more file containing the preachings of Maulana Asim Umar and Sanaul Haq to the Muslim youth in India to engage in terrorism. Relevance of recovery of data from the mobile phone of accused Mohd. Asif is to be seen in the light of his conduct and further evidence.
(ii) RECRUITMENT FOR COMMISSION OF TERRORIST ACTS AND ILLEGAL TRAVEL :-
52. It has been alleged against accused Mohd. Asif that he was setting up terror outfit 'Al-Qaeda' in India and for that purpose, he carried out the recruitment of several youth in State v. Mohd. Asif & ors FIR No. 67/2015 Page 107 of 180 108 this outfit and in order to facilitate the recruitment and training of said persons, accused Mohd. Asif arranged cash from different sources. In furtherance to the same, it is alleged that he took two such persons, namely, accused Mohd. Sharjeel Akhtar and Mohd. Rehan (both are Proclaimed Offenders) to Pakistan via Iran for training.
53. In this regard, the testimony of Sh. P. S. Duggal (PW6), Director of Minar Travels India Pvt. Limited is important as accused Mohd. Asif, Mohd. Sharjeel Akhtar and Mohd.
Rehan had booked their travel tickets in cash for to and fro journey to Pakistan via Iran from this agency. Notice u/s 91 CrPC is on record and the same has been proved by PW6 as Ex. PW 6/A and his para-wise reply to the said notice has also been proved by him as Ex. PW 6/B. The certificate u/s 65B of Indian Evidence Act Ex. PW 6/C has also been furnished by PW6 in order to show that the documents/tickets pertain to their travel to Iran on 23.06.2013. PW6 has proved the passenger manifestation as Ex. PW 6/D, three tickets as Ex. PW 6/E1 to Ex. PW 6/E3, two invoices as Ex. PW 6/F and Ex. PW 6/G and payment receipts in this regard as Ex. PW 6/H and Ex. PW 6/I. This witness has further deposed that payment of to and fro journey was made in cash for the booking of tickets. He has further deposed that accused Mohd. Asif, Mohd. Sharjeel Akhtar and Mohd. Rehan travelled to Iran on 23.06.2013 but they did not return back to India against the tickets already purchased by them and the amount of State v. Mohd. Asif & ors FIR No. 67/2015 Page 108 of 180 109 their return tickets amounting to Rs.16,860/- approximately is still lying with them as refund of their return tickets, as per the rules of the airlines.
Perusal of the evidence available on record shows that as per the confirmed reservation tickets Ex. PW 6/E to Ex. PW 6/E3, accused Mohd. Asif and Mohd. Sharjeel Akhtar had to pick up their return flight from Imam Khomeini International Airport, Tehran (Iran) on 10.07.2013 and accused Mohd. Rehan on 19.07.2013 but no one returned back to Delhi. Moreover, accused Mohd. Sharjeel Akhtar and Mohd. Rehan have opted not to return to India till date and have been declared as Proclaimed Offenders in the present case vide order dated 12.07.2016.
54. So far as the return of accused Mohd. Asif is concerned, although, he had not returned back to India as per his scheduled ticket, he came back to India in the month of December, 2015 and thus, from 23.06.2013 till December, 2014 i.e. for the period of 1½ years, he did not come back to India and remained somewhere else and as per the case of the prosecution, accused Mohd. Asif was in Pakistan during that period for the purpose of getting training for himself and as well as for the training of accused Mohd. Sharjeel Akhtar and Mohd. Rehan, who were recruited by him and went to Iran alongwith accused Mohd. Asif.
55. It has also been alleged against accused Mohd. Asif that via Iran he travelled to Pakistan unauthorisedly and State v. Mohd. Asif & ors FIR No. 67/2015 Page 109 of 180 110 thereafter came back to India through Turkey by submitting a false application before the Consulate General of India, Istanbul, Turkey on 26.08.2014 that he had come to Istanbul, Turkey on tour and lost his passport. The Consular General verified his details and issued Emergency Certificate on 29.09.2014 by observing that he is illegally living in Turkey. The Emergency Certificate of the Consulate General of India, Istanbul is Ex. D5. The letter sent by the IO to the Ministry of External Affairs is Ex. PW 56/F and response in reference to the said letter received from Ministry of External Affairs is Ex. D5 which is an admitted document containing the relevant copies of the documents with respect to the issuance of Emergency Certificate in lieu of his lost passport. The alleged application sent by accused Mohd. Asif to the Consulate General of India, Istanbul is Ex. PW 56/G and the other documents such as application form for miscellaneous services as Annexure-III, Additional information required for applying for Emergency Certificate as Annexure-IV and the certified copy of Emergency Certificate alongwith identity documents of the accused are collectively exhibited as Ex. PW 56/G. In the said application, accused Mohd. Asif has stated that on 28.12.2013, he came to Istanbul and from there he had to go to Europe but he lost his passport and he requested for the issuance of new passport so that he could go back to India. Perusal of the application would show that accused Mohd. Asif came to Iran on 28.12.2013 whereas infact he travelled from India State v. Mohd. Asif & ors FIR No. 67/2015 Page 110 of 180 111 to Iran on 23.06.2013 and as per the testimony of PW6, his return ticket was for 10.07.2013 but he did not return for which an amount of Rs.16,860/- is still lying with the office of Minar Travels India Pvt. Limited as refund. From 23.06.2013 till moving of his application on 26.08.2014 and the issuance of Emergency Certificate, there is nothing which has been produced by accused Mohd. Asif to show that where he had been during this period and as to why he has given false information of his travel in the application for the issuance of Emergency Certificate. The Emergency Certificate is dated 29.09.2014 and from 23.06.2013 till 29.09.2014, the whereabouts of the accused were never been known and the conduct of the accused goes to show that he was intentionally staying somewhere else, so that, his whereabouts could not be known.
56. The above observation finds support from several landmark judgments of Hon'ble Superior Court in which it has been held that in such kind of cases where terrorist activities are being carried out by some persons, direct evidence rarely comes and conspiracy of such offences are seldom an open affair, therefore, the existence of the object of conspiracy and the conduct of the accused can only be gathered through circumstantial evidence. This Court is also aware of the fact that such circumstances should be proved so as to form a chain of events from which a conclusion about the guilt of the accused can be safely drawn and hypothesis about the guilt of the accused should State v. Mohd. Asif & ors FIR No. 67/2015 Page 111 of 180 112 be avoided. Accused Mohd. Asif has not been able to rebut the presumption created from the facts and circumstances of the case qua his travel to abroad and taking two persons alongwith him and also the conduct that as to why he had not returned to India despite having booked his return ticket and similarly, he has not given any cogent defence qua his furnishing of false information to the Consulate General of India, Istanbul.
57. The charges against accused Mohd. Asif are of his involvement in the conspiracy of preparatory act which was performed by him in preparation for a terrorist act. For preparatory act, it is not required that actually some terrorist act has been committed. As per the case of the prosecution, he travelled to Pakistan for the purpose of meeting the members of Al-Qaeda and also took there his two recruits, namely, Mohd. Sharjeel Akhtar and Mohd. Rehan, whose existence is also not known. Furthermore, there has been a recovery of suspicious articles from the possession of accused Mohd. Asif which shows his association with the banned terrorist organisation 'Al- Qaeda' which is being operated from Pakistan and inference in such circumstances in view of the conduct and secrecy maintained by him with respect to his travel can easily be drawn u/s 114 of Indian Evidence Act that he went to Pakistan for the purpose of making some preparation for the commission of terrorist act. Recruitment for terrorist act cannot be an open affair, all State v. Mohd. Asif & ors FIR No. 67/2015 Page 112 of 180 113 secrecies are maintained. It is only from the act and conduct of the person concerned, an inference can be drawn that some people are being brought together for some common cause which is not legal. The association of accused Mohd. Asif with accused Mohd. Sharjeel Akhtar and Mohd. Rehan in this manner shows that some association was being formed with some hidden object and they were taken by accused Mohd. Asif. Considering the conduct of accused Mohd. Asif and evidence surfaced against him, it is clear that they were recruited by accused Mohd. Asif.
(iii) CONTACTS WITH ACCUSED MOHD. REHAN AND MOHD. SHARJEEL AKHTAR :-
58. Ld. defence counsel has argued that merely going through the same flight to the same destination does not show inter-se connection of the accused either with Mohd. Rehan or Mohd. Sharjeel Akhtar.
59. In order to establish the acquaintance of accused Mohd.
Asif with Mohd. Rehan, testimony of Mohd. Zeeshan (PW5) is important. PW5 had received a letter through DTDC Courier addressed to his father and brother and was about the well-being of his brother Mohd. Rehan given by accused Mohd. Asif. The said letter has been proved as Ex. PW 5/P1, envelope of courier as Ex. PW 5/P2 and DTDC receipt as Ex. PW 5/P3. The evidence regarding sending of this letter by accused Mohd. Asif only has been proved by State v. Mohd. Asif & ors FIR No. 67/2015 Page 113 of 180 114 the handwriting expert Syed Ahmar Ali Hashmi (PW35), Junior Forensic / Assistant Chemical Examiner (Documents) who prepared the detailed report Ex. PW 35/B in this regard and opined that the person who wrote the red enclosed writing stamped and marked as S1 to S5 also wrote the red enclosed writing similarly stamped and marked Q1. The questioned hand writing is of accused Mohd. Asif, therefore, it is established that the letter was sent by accused Mohd. Asif to the brother of accused Mohd. Rehan through DTDC courier, therefore, their remains no doubt that accused Mohd. Asif was having connection with accused Mohd. Rehan and it was not merely a coincidence that both of them travelled in the same flight on the same day. Even the ticket of their travel was booked from the same travel agent i.e. Minar Travels which has been duly proved by PW6 P. S. Duggal.
60. Similarly, for accused Mohd. Sharjeel Akhtar, he had also booked the tickets from Minar Travels and the date of booking of the tickets of accused Mohd. Asif and Mohd. Sharjeel Akhtar is same as that of 16.06.2013. Moreover, the copy of ticket Ex. PW 6/G which has been proved by PW6 P. S. Duggal bears the name of accused Mohd. Asif and Mohd. Sharjeel Akhtar on the same ticket and the total amount for the booking of the tickets i.e. Rs.48,626/- was also paid in case vide payment receipt Ex. PW 6/I.
61. These evidences, as discussed above, are sufficient to State v. Mohd. Asif & ors FIR No. 67/2015 Page 114 of 180 115 show that accused Mohd. Asif, Mohd. Sharjeel Akhtar and Mohd. Rehan were having acquaintance and contacts with each other as they were infact being taken by accused Mohd. Asif alongwith him in the same flight. This evidence is showing the involvement of accused Mohd. Asif in their recruitment as well.
(iv) VISIT OF ACCUSED MOHD. ASIF TO
BANGLORE :-
62. It is alleged against accused Mohd. Asif that he was found visiting Banglore, Karnataka for meeting with members of terrorist organisation AQIS i.e. Syed Anzar Shah and Maulana Abdul Rehman. During his visit, accused Mohd. Asif had stayed in Blue Star Lodge, Banglore, Karnataka from 10.09.2015 to 11.09.2015 and also met accused Abdul Rehman and Syed Anzar Shah. After reaching Banglore, accused Mohd. Asif talked to Tajir Pasha (PW51) and from the phone of Tajir Pasha, he talked to accused Abdul Rehman.
63. In order to prove the visit of accused Mohd. Asif to Banglore and staying at Blue Star Lodge, Mohammad Emran Quazi (PW37), Manager of Blue Star Lodge, has been examined who deposed about the stay of accused Mohd. Asif in the lodge from 10.09.2015 to 11.09.2015 and also correctly identified accused Mohd. Asif in the court as the person who stayed in the hotel Blue Star Lodge during the aforementioned period. In response to the notice given by the IO, he filed his reply Ex. PW 37/B State v. Mohd. Asif & ors FIR No. 67/2015 Page 115 of 180 116 and by way of his reply, he gave details regarding the stay of accused Mohd. Asif in Blue Star Lodge. Although this witness has not produced the original record of the stay of accused Mohd. Asif but filed on record the photocopy of the same which is not an admissible piece of evidence but the testimony of this witness in this regard cannot be fully discarded as he has specifically identified accused Mohd. Asif being the person who stayed in the lodge on the given dates and his oral testimony, in view of his identification of the accused and affirming his stay, cannot be discarded.
64. Appreciation of evidence has been explained in Section 3 of Indian Evidence Act and also been affirmed by the Hon'ble Apex Court in several judgments like Krishna Pillai v. State of Kerala reported in 1981 Crl.L.J 743 and also in Sucha Singh v. State of Punjab (2003) 7SCC 643 wherein it has been held that even if major portion of the evidence is found to be deficient, if residue is found sufficient to prove guilt, conviction can be formed on the basis of the same. This is one evidence with respect to the stay of accused Mohd. Asif in Banglore on 10.09.2015 and 11.09.2015, there are certain other evidences proved by the prosecution to establish his stay at Banglore on those dates.
65. During his stay at Banglore, accused Mohd. Asif used mobile number 9528029512 to talk to Tajir Pasha (PW51) on his mobile number 07795429070 and 9448307692. In his testimony, Tajir Pasha (PW51) has admitted that prior State v. Mohd. Asif & ors FIR No. 67/2015 Page 116 of 180 117 to 2016, he was using mobile number 07795429070 and 9448307692. Perusal of Call Detail Record Ex. D13 of mobile number 07795429070 used by PW51 Tajir Pasha and Call Detail Record of mobile number 9528029512 used by accused Mohd. Asif and its location chart Ex. PW 40/D1 to Ex. PW40/D40 clearly establish the location of accused Mohd. Asif in Banglore on 10.09.2015 and 11.09.2015.
66. During investigation, laptop Ex. PW 20/P1, Intex mobile phone Ex. PW 20/P2, Samsung Galaxy Note 3 mobile phone Ex. PW 20/P3, Sagem Hutch mobile phone Ex. PW 20/P4 were recovered from accused Mohd. Asif which were seized vide memo Ex. PW 30/A. As per the Call Detail Record of mobile number 9528029512, IMEI no. of the mobile phone used by accused Mohd. Asif on 10.09.2015 and 11.09.2015 has been mentioned as 911439550853950 which is of the same Intex mobile phone Ex. PW 20/P2 which was recovered from his possession on 14.12.2015 and was seized vide memo Ex. PW 30/A. Although the subscription of the mobile number which was being used by accused Mohd. Asif, when he was in Banglore, could not be established for the want of original Customer Application Form and also the fact that mobile phone was also not subscribed in his own name. But as per the CDR and cell ID chart, the use of mobile number on the given dates clearly mentioning the IMEI Number to be the same as that of State v. Mohd. Asif & ors FIR No. 67/2015 Page 117 of 180 118 Intex mobile phone which was recovered from his possession. Hence, it is clearly establish on record that accused Mohd. Asif was in Banglore on 10.09.2015 and 11.09.2015 and on 11.09.2015, he had called Tajir Pasha (PW51) on his mobile number 7795429070 from his Intex mobile phone having IMEI no. 911439550853950.
(v) CONTACT OF ACCUSED MOHD. ASIF WITH
ACCUSED ABDUL REHMAN AT
BANGLORE :-
67. In order to prove the link between accused Mohd. Asif and Maulana Abdul Rehman, prosecution has examined Tajir Pasha (PW51) who was resident of Banglore, Karnataka and was in contact with accused Abdul Rehman. In his testimony, he has stated that he used to converse with accused Abdul Rehman after a gap of 15/20 days or even after about a month. Accused Abdul Rehman was known to him for past about 10-12 years.
68. The main evidence regarding the link of accused Mohd.
Asif and Abdul Rehman is the intercepted conversation which was recorded in a CD Ex. PW 51/P1 but this piece of evidence is inadmissible in view of the proviso of Section 46 of UAPA as has been pointed out by Ld. Defence counsel.
69. Regarding the intercepted calls, Sh. Suresh Kadiyan, Assistant Director, IB, MHA (PW28) has been examined who on receipt of request letter Ex. PW 28/A has provided State v. Mohd. Asif & ors FIR No. 67/2015 Page 118 of 180 119 the record of intercepted conversation of two mobile numbers 9528029512 and 07795429070 and the data was provided in the form of CD. The witness, in his cross- examination, has stated that he cannot produce the sanction order dated 01.09.2015 as the same has already been destroyed after the expiry of six months. Therefore, in compliance of Section 46 of UAPA, the sanction order has not been produced qua the interception of mobile numbers 9528029512 and 07795429070. The contents of the intercepted communication cannot be received in evidence unless the copy of the interception/sanction order of the competent authority has been supplied to the accused persons. In the present case, although the contents of the intercepted conversation contained in CD Ex. PW 51/P1 cannot be relied upon with respect to the contents of the communication taken place between accused Mohd. Asif and Tajir Pasha (PW51) which has also come on record through written transcript Ex. PW 18/Z2. But still the communication, exclusing its content, carried out through the respective mobile phones of accused Mohd. Asif and PW Tajir Pasha can be used in evidence in order to show the connectivity between accused Mohd. Asif, Tajir Pasha and accused Abdul Rehman and also to show their location as well. As observed above, it has been established that mobile number 9528029512 was used by accused Mohd. Asif and mobile number 07795429070 was used by Tajir Pasha (PW51) and location of both the mobile phones on 11.09.2015 was in Banglore. The intercepted conversation State v. Mohd. Asif & ors FIR No. 67/2015 Page 119 of 180 120 was recorded in a CD and PW51 Tajir Pasha has identified his voice in the same and he has not even denied that on 11.09.2015, he was not using the mobile number 07795429070. The conversation between both of them had taken place on 11.09.2015 and the communication between them is allegedly established from the respective CDRs of their respective mobile numbers which were being used by them at that point of time. PW34 Dr. Subrat Kumar Choudhary, Senior Scientific Officer, CFSL, who carried out the analysis of specimen voice sample and questioned voice recording of accused Mohd. Asif and Abdul Rehman, has proved his report as Ex. PW 34/B. He conducted audiometry examination of specimen voice recording of both the accused persons and their respective voice samples were matched with the questioned voice recording which shows that the recorded audio conversation of the intercepted calls of the accused persons have matched with their sample voices.
70. So far as the voice of third person i.e. PW51 Tajir Pasha is concerned, he identified his voice from the intercepted call it was played in the Court from CD Ex. PW 51/P1. PW51 Tajir Pasha has deposed that " It is correct that I handed over the phone to other person during the recorded conversation. Since I have already said that I do not remember, therefore, I can neither endorse nor reject the suggestion that the other persons in the recorded conversation are accused Mohd. Asif and Abdul Rehman." State v. Mohd. Asif & ors FIR No. 67/2015 Page 120 of 180 121 From the testimony of PW51 Tajir Pasha, it is clear that the alleged conversation took place on 11.09.2015 and during the said conversation, he handed over his phone to another person. From the evidence adduced by the prosecution, it is established that during this conversation, one of the person has been identified as accused Mohd. Asif. Other person has been identified as accused Abdul Rehman by the FSL expert who had matched their voices, so, therefore, it is also clear that in the telephonic conversation which had taken place on 11.09.2015, three persons were involved, one is accused Mohd. Asif, another is accused Abdul Rehman and third person is Tajir Pasha (PW51) himself. From this evidence, it is also established that the phone was handed over to accused Abdul Rehman through which he talked to accused Mohd. Asif and the duration of the said call has been mentioned as 6 minutes and 59 seconds at 15:32 hours in the Call Detail Record of mobile phones of accused Mohd. Asif and Tajir Pasha (PW51) and as per the cell ID chart and CDR, their location has also been proved to be at Banglore.
71. Hence, in this manner, it has been successfully established that on 11.09.2015 when accused Mohd. Asif was in Banglore, by using his own phone, he talked to accused Abdul Rehman through the phone of PW51 Tajir Pasha, who handed over the phone to accused Abdul Rehman.
(vi) RECEIPT OF MONEY FOR A PREPARATORY State v. Mohd. Asif & ors FIR No. 67/2015 Page 121 of 180 122 ACT:-
72. It has also been alleged against accused Mohd. Asif that he received Rs.2 lacs from wanted AQIS militant Syed Akhtar through hawala in Delhi for commission of terrorist activities. In order to prove this allegation, prosecution has examined Lekh Ram Rana (PW2), owner of Chaudhary Trading Company, Naya Bazar, Delhi; Ashok Goel (PW39) of M/s Nandini Enterprises, Kolkata and Bhagirath Das (PW44), employee of PW2.
PW39 Ashok Goel has deposed that in the year 2015, someone came to his shop carrying the samples of woollen clothes and he placed an order worth around Rs.2.5 lacs with that person who paid Rs.50,000/- in advance and for the purpose of remaining payment of Rs.2 lacs, that person asked him to make the payment in Delhi. Thereafter, the said person went to the shop of Lekh Ram Rana (PW2) at Naya Bazar, Delhi where he met Bhagirath Dass (PW44) who on the instructions of his owner Lekh Ram Rana (PW2) handed over Rs.2 lacs. Ashok Goel (PW39) has not been able to identify the said person but Bhagirath Dass (PW44) has identified accused Mohd. Asif as the same person who came to his shop and collected Rs.2 lacs from him.
Ld. Defence counsel has submitted that the witnesses are not reliable as one of them has not identified accused Mohd. Asif and PW2 Lekh Ram Rana, on whose instructions PW44 Bhagirath Dass had made the payment, State v. Mohd. Asif & ors FIR No. 67/2015 Page 122 of 180 123 has also not supported the case of the prosecution and also denied the factum of making the payment of Rs. 2 lacs by PW44 on his instructions. Ld. Defence counsel has further submitted that no documentary proof has been produced to show the employment of PW44 Bhagirath Dass in the said shop and even the acknowledgment of payment is also missing.
73. On this point, I concur with the submissions made by Ld. Addl. PP that despite the fact that PW39 has not identified accused Mohd. Asif as the person who had come for the sale of woolen clothes but he has established the factum of his visit and purchase and also regarding the payment of balance amount of Rs.2 lacs which had taken place at Delhi. Similarly, payment of Rs.2 lacs has been established by Bhagirath Dass (PW44) who has also identified accused Mohd. Asif being the same person who came to his shop and to whom he had made the payment of Rs.2 lacs. PW44 has corroborated the testimony of police officials regarding the visit of accused Mohd. Asif to his shop in police custody on 12.01.2016 and also the pointing out memo Ex. PW 20/B. Although no document has been produced to support the oral testimony but in totality of the evidence produced by the prosecution proves the visit of accused Mohd. Asif for the collection of money from PW44 Bhagirath Dass. It has been the case of the prosecution that the payment of Rs.2 lacs were made to accused Mohd. Asif State v. Mohd. Asif & ors FIR No. 67/2015 Page 123 of 180 124 through hawala and the payment was made in cash. PW39 Ashok Goel has not identified accused Mohd. Asif and had not produced the account of purchase of clothes. It is quite understandable that if money is ill gotten, nobody would create its account, so is the case here, where PW39 has not produced the record and has denied to identify accused Mohd. Asif but PW44 Bhagirath identified him as the same person who took money from him on the instructions of PW2 Lekh Ram Rana. Therefore, in this regard, even if PW2 Lekh Ram Rana has not admitted making of the payment to accused Mohd. Asif, then also the conjoint reading of testimony of PW39 Ashok Goel and PW44 Bhagirath Dass and pointing out memo Ex. PW 20/B of the accused as well as the identification of the accused when he came at the shop clearly establishes that the payment of Rs.2 lacs was made to accused Mohd. Asif. Although the clear cut evidence that the money came through hawala transaction is missing but at the same time, this Court cannot loose sight of the fact that in such cases of preparatory act, direct evidence usually do not surface and it has to be inferred from the circumstances and the conduct of the accused. This theory also finds support from the fact that accused has not been able to discard this evidence against him and also not been able to explain his purpose of visit to the shop of PW39 Ashok Goel and PW44 Bhagirath Dass.
(vii) CUMULATIVE EFFECT OF EVIDENCE :-
State v. Mohd. Asif & ors FIR No. 67/2015 Page 124 of 180 125
74. In the present case, the allegations against the accused Mohd. Asif is that he was involved in preparatory act by setting up the base of AQIS to disturb the peace and tranquility of the country and he was also involved in causing recruitment of youth in his terror outfit.
75. Section 15 of UAPA provides the definition of "terrorist act" as such acts which has been committed with an intent to threaten the unity, integrity, security and sovereignty of India. One Samsung mobile phone alongwith sim card and memory card was recovered from the possession of accused Mohd. Asif which was found containing a file with heading "The Mujahideen Explosive Handbook"
having details to prepare explosives with the help of RDX, TNT, Potassium Chlorate, Detonators, Fuses, Capsule timer. One more file of "Press Release September 16, 2014 of Al-Qaeda" in the sub-continent showing their support by Pakistan Armed Forces. There is another file having heading "As-Sahab presents WHY IS THERE NO STORM IN YOUR OCEAN?" A message for the Muslims of India from Maulana Asim Umar and Sanaul Haq, who have been declared as Proclaimed Offenders in the present case. Its gist was that he was preaching to Muslim youths of India on behalf of Al-Qaeda including U.P, Bihar, Gujarat, Mysore to engage in terrorism and saying that the Muslims of other country are also with them. The contents of memory card of his mobile phone and his other activities such as his visit to Pakistan and coming back by State v. Mohd. Asif & ors FIR No. 67/2015 Page 125 of 180 126 making false averments in his application of his visit and misplacement of his Passport. Further he has failed to explain his whereabouts from 23.06.2013 till his filing of application dated 26.08.2014 for issuance of Emergency Certificate: Similarly, collecting money from PW44 Bhagirath Dass and his failure to explain the purpose of collecting money. Moreover, his journey with accused Mohd. Sharjeel Akhtar and Mohd. Rehan in the same flight by getting booked the tickets himself and absence of Mohd. Sharjeel Akhtar and Mohd. Rehan since then. Although the evidence produced against him individually may not be able to disclose commission of an offence. When all these evidences are put together, it gives reasonable suspicion that activities and the conduct of the accused Mohd Asif were not beyond reasonable doubt. The recoveries effected from his possession have already established his link with 'Al-Qaida', a banned terrorist organisation as per Schedule I of UAPA.
76. Contact of accused Mohd. Asif with co-accused persons like Abdul Rehman, Zafar Masood coupled with their own conduct and evidence come on record against them alongwith cumulative consideration of the circumstances brought on record, prosecution has been able to establish on record that accused Mohd. Asif was associated with the member of a banned terrorist organisation 'Al-Qaida', he was actively involved in the commission of preparatory act to the commission of terrorist act and also in recruitment of young persons in his terror outfit. This observation finds State v. Mohd. Asif & ors FIR No. 67/2015 Page 126 of 180 127 support from Section 114 of Indian Evidence Act having regard to the natural course of events and human conduct in relation to the facts and circumstances of his case.
ROLE OF ACCUSED MOHD ABDUL REHMAN PREPARATORY ACT TO THE COMMISSION OF TERRORIST ACT :-
77. Accused Maulana Abdul Rehman has also been projected as one of the main accused in this case. There are allegation that he was collecting fund for terror activities in India as well as in abroad. His role is also of recruting accused Syed Mohd. Zishan Ali, Mohd. Abdul Sami, Mohd. Umar @ Umar Hyderabadi (P.O) and Syed Mohammad Arshiyan @ Haider (P.O). It is also alleged against him that he was found visiting Pakistan illegally for obtaining arms and ammunitions and also for obtaining training where he also met top wanted militants. Accused Maulana Abdul Rehman was also found obtaining financial assistance from co-accused Dr. Sabeel Ahmed and accused Syed Mohd. Zishan Ali for running terror activities.
(i) LINK OF ACCUSED ABDUL REHMAN WITH
ACCUSED MOHD. ASIF :-
78. The alleged link of accused Mohd. Asif and Abdul Rehman has already been established by way of above State v. Mohd. Asif & ors FIR No. 67/2015 Page 127 of 180 128 discussion qua his talks with accused Mohd. Asif over the phone of PW51 Tajir Pasha. Location of accused Abdul Rehman in Banglore has also been established during the said communication. It has also been established that accused Mohd. Asif was also in Banglore at that time. Therefore, for the sake of brevity, the discussion already mentioned above is not being repeated here also.
(ii) SPEECHES AGAINST THE INTEREST OF THE NATION AND RECOVERY :-
79. To prove the preparatory act on the part of accused Abdul Rehman to the commission of terrorist act, testimony of Sayed Dil Nawaz (PW4) who is resident of Odisha is important. PW4 has deposed that " On many occasion, I went to hear the speech of Maulana Abdul Rehman, he used to start the speech with Quran however, thereafter, he used to start addressing on the contentious issues like Dadri pertaining to lynching of Akhlaq and of Jagatpur. He also used to deliver the provocative speech to the effect that RSS, the BJP and VHP conspire against the Muslims and that Muslims should also unite. He also used to deliver speech regarding Jehad. Since I did not find his speeches in the interest of the Nation, so I discontinued meeting him since the month of November, 2014. The atmosphere in Odisha in peaceful so he used to bring the issue of other States to Odisha which had absolutely no concern with Odisha. From the TV news I came to know that accused Abdul Rehman was having association with State v. Mohd. Asif & ors FIR No. 67/2015 Page 128 of 180 129 terrorist organization i.e. Al-Qaeda." PW4 Sayed Dil Nawaz, in his cross-examination, has also deposed that " I went to learn Quran in Madarsa despite reluctance of my father and I told him after my return that everything is not fine there in Madarsa." This witness is important to show the conduct and activities of accused Abdul Rehman while delivering the speeches in the mosque and PW4 Sayed Dil Nawaz, who used to listen his speeches, found his speeches against the interest of the nation.
80. In order to prove the conduct of the accused Abdul Rehman, prosecution has examined another witness of similar nature, namely, Mohd. Saquib Khan (PW46) who in his testimony has deposed that "Meanwhile I also realised that the speeches of Abdul Rehman are inconsistent with true Islam and true Islam is infact not what Abdul Rehman was teaching. I accordingly, opted to detach from these guys." This witness, in his testimony, has also mentioned about the time or period when he met accused Abdul Rehman, he has deposed that " In the year 2015, I was about 16-17 years old. At that time, I met with a person named Abdul Rehman in a new mosque namely Sarfuddin Masjid near my home." PW46 has also deposed about the involvement of the accused in organising Islamic speeches and for that purpose, he was also once invited to attend such speech at Ranchi.
Moreover, the suspicious conduct of the accused is further highlighted with his arrest and State v. Mohd. Asif & ors FIR No. 67/2015 Page 129 of 180 130 subsequent recoveries. After his arrest, at his instance, PW18 Insp. Kailash Singh Bisht got recovered the mobile phones, Samsung tab and SD card. The data of the Samsung mobile phone (Golden colour) of accused Abdul Rehman Marked X1A-MOB was retrieved by the Cert-In expert in Pen Drive Ex. PW 58/P8 and was handed over to the investigating team which was containing audio files having hatred/anti-national speech. From another phone make Micromax recovered from accused Abdul Rehman, the retrieved data marked X1B-MOB was a containing a video folder MP4 file containing hatred video with pics of political leaders including Sh. Narender Modi, Prime Minister of India. There are two more video MP4 files found to be containing hatred speech by a Maulvi and anti-national/hatred video of Kashmiri people.
81. On the one hand, there is recovery of such inflammatory data from his mobile phones, on the other hand, the same has been corroborated by the public witnesses PW4 Syed Dil Nawaz and PW46 Mohd. Saquib Khan as to the nature of his teachings/speeches which shows his anti-national conduct and intentions.
(iii) VISIT OF ACCUSED ABDUL REHMAN TO PAKISTAN
82. PW29 R. Ramanathan, Security Supervisor in Emirates Airlines, in his testimony, has proved the detailed verification report/reply as Ex. PW29/C pertaining to the State v. Mohd. Asif & ors FIR No. 67/2015 Page 130 of 180 131 Passport details/journey information of accused Abdul Rehman from Karachi to Dammam via Dubai on 15/16.02.2015 and he has also proved the certified copy of the tickets as Ex. PW 29/D and Ex. PW 29/E.
83. Ld. Defence counsel has challenged the production of these tickets and argued that these tickets are not admissible in evidence as certificate u/s 65B of Indian Evidence Act has not been furnished by PW29.
84. On this count, Ld. Addl. PP has rightly pointed out that PW29 has proved the travel history of accused Abdul Rehman from Karachi to Dammam via Dubai in view of the reply/letter Ex. PW 29/C alongwith details of his passport and the documents in this regard in original have been produced and hence, production of the certificate u/s 65B of Indian Evidence Act is not required. In his testimony, PW29 has deposed that the verification report is signed by Dr. Abdullah-al-Hashmi with whom he had worked during the period from 2003 to 2006 and who is now heading the group security of Emirate Airlines. He has further deposed that he has been authorised to testify in the present matter by Vice President Mohd Sarhan, who is looking after the operation of emirates in India and Nepal and has proved the said authority letter as Ex. PW 29/A. The proper authorisation of PW29 and documents produced by him are admissible in evidence. Therefore, in view of the testimony of PW29 R. Ramanathan, the travel State v. Mohd. Asif & ors FIR No. 67/2015 Page 131 of 180 132 of accused Abdul Rehman to Karachi, Pakistan has been established on record for which the accused has failed to bring on record any reason and the purpose of visiting the hostile nation like Pakistan. It commensurates with his anti-national activities as discussed above.
(iv) RADICALIZATION OF YOUTH :-
85. It is also alleged against the accused Abdul Rehman that he was involved in the radicalization and recruitment of several youth in his terror outfit.
86. In order to prove these allegations, again testimony of Mohd. Saquib Khan (PW46) is important. It has already come in the statement of Mohd. Saquib Khan (PW46) regarding the inflammatory speeches of accused Abdul Rehman which are against the true Islam. PW46 has further stated that he came into contact of accused Abdul Rehman at the time of inauguration of a new mosque namely Sarfuddin Masjid near his house and one Kaleem and Ujeffa introduced him to accused Abdul Sami and Abdul Rehman. He has further deposed that after one or two days of the inauguration, Ujeffa called him and conveyed the intention of accused Abdul Rehman to meet him and during the meeting, accused Abdul Rehman enquired about his family background and education. Thereafter, Ujeffa invited him to attend Islamic speeches of accused Abdul Rehman. This witness has further deposed that after about a month, accused Abdul Rehman State v. Mohd. Asif & ors FIR No. 67/2015 Page 132 of 180 133 enquired about his future study plans and on this, PW46 informed him that he was having plan to go abroad and then, accused informed him that accused Abdul Sami has already got job in abroad and he could also help him in arranging a job abroad. The witness has further deposed that Ujeffa thereafter called him and asked him to open a Skype account for the purpose of his online interview in which one Zeeshan had participated. PW46 Mohd. Saquib Khan, thereafter, came to know that the intentions of accused is to recruit young boys for education. The witness has further stated that during this period, accused Abdul Sami also told him that he was going to Dubai for a job and thereafter, the witness was contacted by Ujeffa who enquired about his intention/plans for overseas job. The witness has further submitted that accused Abdul Rehman had also requested him to teach the kids in his madarsa to which the witness had flatly refused.
87. PW4 Syed Dil Nawaz has already proved about the extremist speeches of accused Abdul Rehman. Such recruitment never can be an open affair where membership is being offered, documentations are taking place. It is about creating more and more sympathiser to their cause by persuading their teachings to the targeted group of people to do something by offering them something nice. Since the offence here was at the preparatory stage of terrorism, if the actual recruitment has not taken place even then something is being done in that direction would State v. Mohd. Asif & ors FIR No. 67/2015 Page 133 of 180 134 also support to bring the act under the ambit of Section 18 of UAPA.
88. In this manner, accused Abdul Rehman was trying to entice the young persons on the pretext of overseas jobs. In the testimony of PW46 Mohd. Saquib Khan, names of accused Abdul Sami and Zeeshan had also come up who contacted the witness and told him about the overseas job. The witness was also tried to be roped in madarsa teachings. Considering his conduct qua inflammatory teachings, going to Pakistan with undisclosed purpose and enticing the youth creates a serious doubt upon the intention and in totality of facts and circumstances only indicating towards his intention to recruit young persons for the purpose of radicalizing the youth for preparation of some undisclosed act which is in the light of his links with co-accused persons and evidence came on record against accused Abdul Rehman indicates towards the act of preparation of some terrorist act.
(v) COLLECTION/RAISING OF FUNDS :-
89. The activities of accused Abdul Rehman are not free from suspicion, in view of the testimony of Mohd. Sadiq (PW48) who was attendant in Lal Masjid, Bengaluru. He identified accused Abdul Rehman as the person who used to come in Lal Masjid for the collection of donations, chanda etc. Accused has failed to justify the purpose of State v. Mohd. Asif & ors FIR No. 67/2015 Page 134 of 180 135 said collection, it also creates serious doubt over his intention and conduct coupled with incriminating evidence come on record.
(vi) PROCURING FAKE PASSPORT IN THE NAME OF IMDADULLAH KHAN UPON THE STRENGTH OF FORGED AND FABRICATED DOCUMENTS USING THEM AS GENUINE AND SUPPRESSING CORRECT INFORMATION :-
90. It is alleged against the accused that accused Abdul Rehman got issued Passport bearing no. F1233600 in the fake name of Imdadullah Khan. Accused Abdul Rehman has denied the issuance of any such Passport as the Passport in original could not be produced on record by the prosecution to show that actually it was got issued by the accused in his own name. On this point, the testimony of Ms. K. Vanaja Venkataramana (PW59), Passport Officer, Banglore is important. PW59 has produced the scanned copy of the passport record alongwith the scanned copy of the relevant documents. She has produced the certified copy of the passport record which has been objected to by Ld. Defence counsel as original has not been produced and the same are merely the scanned copies and there is no certificate u/s 65B of Indian Evidence Act alongwith the same and hence are not admissible documents in evidence. In view of the submissions made by Ld. Defence counsel, the documents which have been produced by PW59 to show the passport record for the identity of Imdadullah State v. Mohd. Asif & ors FIR No. 67/2015 Page 135 of 180 136 Khan which were got issued by accused Abdul Rehman for creating false identity are not admissible piece of evidence. Despite that, there is one witness by the name of B. Gopala Krishna (PW60), Notary Public in Banglore who in his testimony has affirmed the attestation of the affidavit Ex. PW 59/I-1 by identifying his seal and signatures on the said affidavit. After seing the affidavit from the judicial record, PW60 has also deposed that he had given a hand written statement Ex. PW 43/R to the police with regard to attestation/notorization of the affidavit Ex. PW 59/I-1. PW60 has also identified accused Abdul Rehman being the person who claimed himself to be the Deponent of the said affidavit ex. PW 59/I-1. This witness has not produced any register or record from which he can confirm the identity of the accused getting attested the affidavit which is being relied upon by the prosecution for the purpose of proving the attestation by PW60 which is merely a scanned copy and authenticity of the document has also not been proved as Certificate u/s 65B of Indian Evidence Act has also not been produced alongwith the scanned record.
91. The original record from the office of Chief Registrar ( Birth and Death) Banglore and the office of Food and Supply, Banglore could not be proved on record as the same being weeded out on account of being the old record. Similarly, the police verification report of P.S Shivaji Nagar with respect to Passport of Imdadullah Khan also found destroyed.
State v. Mohd. Asif & ors FIR No. 67/2015 Page 136 of 180 137
92. Apart from this, it has come in the testimony of ACP Lalit Mohan Negi (PW57) that he had neither seen nor seized the passport in the name of Imdadullah Khan and he has also not procured the hand written samples to get it verified from FSL to detect the author of the documents related to the said Passport. Therefore, in the totality of facts and circumstances, it is not established that accused Abdul Rehman had procured the fake Passport in the name of Imdadullah Khan on the basis of forged and fabricated documents and affidavit in the name of Imdadullah Khan and used the said false documents as genuine.
(vii) CONNECTION BETWEEN ACCUSED ABDUL REHMAN, SYED MOHD. ZISHAN ALI AND ABDUL SAMI :-
93. There are allegations against accused Abdul Rehman that he was found recruiting accused Zishan and Abdul Sami and also Mohd. Umar @ Umar Hyderabadi (P.O) and Syed Mohammad Arshiyan @ Haider (P.O) for the activities of his terror outfit. Although the accused has denied his connection with Abdul Sami and Syed Mohd. Zishan Ali but in order to establish this allegation, the testimony of Mohd. Saquib Khan (PW46) is important. PW46 has deposed that during his contact with accused Abdul Rehman, he also met accused Abdul Sami in Sanchi Jamshedpur who told him that he was going to Dubai for job. He has also deposed that when accused Abdul State v. Mohd. Asif & ors FIR No. 67/2015 Page 137 of 180 138 Rehman again came back to Jamshedpur, Ujeffa again contacted him and enquired about his intention of going abroad and also informed that accused Abdul Sami has already left for his overseas job. PW46 has further deposed that prior to that, in the year 2015, he had met accused Abdul Rehman in the inauguration of a new mosque i.e. Sarfuddin Masjid near his house and at that point of time, he also met accused Abdul Sami in the mosque alongwith another person named Kaleem who was staying in Murda Maidan Madarsa alongwith his son Ujeffa. It is further deposed by him that Kaleem and Ujeffa introduced him to accused Abdul Sami and Abdul Rehman. The testimony of this witness shows that accused Abdul Sami used to come to the masjid of accused Abdul Rehman where other persons, very specifically Ujeffa, who was associated with accused Abdul Rehman introduced him to accused Abdul Sami and Abdul Rehman which shows the connection of accused Abdul Rehman with accused Abdul Sami. It is further corroborated with the fact of going of accused Abdul Sami to Dubai for job and for the similar purpose i.e. of providing him a job, PW46 was also approached by accused Abdul Rehman and Ujeffa.
94. It is further deposed by PW46 that accused Abdul Rehman after some time met him and on being enquired by him, PW46 informed him that he got prepared his Passport and accused Abdul Rehman informed him that Abdul Sami has also got a job abroad and in case, if he was interested, he State v. Mohd. Asif & ors FIR No. 67/2015 Page 138 of 180 139 could help him in arranging a job abroad.
95. In order to establish the acquaintance between accused Abdul Rehman and Syed Mohd. Zishan Ali, again testimony of PW46 Mohd. Saquib Khan is important. PW46 has deposed in his testimony that when accused Abdul Rehman offered him a job abroad, Ujeffa, on his behalf, contacted him and asked him to open a Skype ID, so that his interview could be arranged. PW46 accordingly opened his Skype account in which he received a voice call from accused Syed Mohd. Zishan Ali who enquired from him as to what he was pursuing. This shows that accused Syed Mohd. Zishan Ali was also in contact with accused Abdul Rehman and that he was causing recruitment of young persons into his terror outfit.
(viii) CUMULATIVE EFFECT OF EVIDENCE :-
96. In order to prove the nature of offences which has been alleged against the accused, the basis of proving the guilt of the accused is primarily the circumstantial evidence coupled with the conduct of the accused from which his true intentions and object behind his activities can be inferred. In the totality of the circumstances, in the present case, shows that accused Abdul Rehman was involved in the preparatory act of commission of a terrorist act in terms of Section 15 and 18 of UAPA. The visit of accused Abdul Rehman to Pakistan without explaining the reasons for such visits causes serious doubt upon his intentions as the hostile country like Pakistan is not a tourist place State v. Mohd. Asif & ors FIR No. 67/2015 Page 139 of 180 140 where usually one goes. Even if accused had gone with such plan of tourism, he should have come forward to bring on record such material on record to rebut the case of the prosecution as alleged against him that he was involved in collecting funds for terrorist activities in India and was also involved in recruiting several members in the terror outfit of a terrorist organisation. His connection with other accused persons is also established on record. The said act of accused Abdul Rehman also comes under the purview of the act preparatory to the commission of a terrorist act alongwith causing recruitment of young persons for his terror activities in India.
ROLE OF ACCUSED ZAFAR MASOOD PREPARATORY ACT TO THE COMMISSION OF TERRORIST ACT :-
97. During investigation and pursuant to the disclosure statement of accused Mohd. Asif, accused Zafar Masood @ Guddu was arrested in the present case on 16.12.2015 from Sambhal, Uttar Pradesh. During investigation, it was revealed that accused Zafar Masood was close to wanted accused Sanaul Haq @ Maulana Asim Umar @ Shanu, Usman @ Asad and accused Syed Akhtar @ Qasim. It is alleged against the accused that in November/December, 1999, accused Zafar Masood, by pretending to be doing the business of paan-kaththa, visited Pakistan and met members of terrorist outfit. He was also involved in arranging shelter to Pakistani militants. It is also alleged against him that during his stay in Gujarat, accused Zafar State v. Mohd. Asif & ors FIR No. 67/2015 Page 140 of 180 141 Masood obtained another Passport in the name of Sheikh Zafar Masood S/o Sheikh Masud-ul-Hasan which on verification was found to be forged. It is also alleged against him that on the instructions of accused Sayed Akhtar @ Qasim, accused Zafar Masood paid Rs.1 lakh to accused Mohd. Asif for terrorist activities by withdrawing a sum of Rs.65,000/- and Rs.35,000/- respectively from the HDFC bank account of his wife and with that amount, accused Mohd. Asif purchased tickets for himself, Mohd. Sharjeel Akhtar and Mohd. Rehan to go to Pakistan via Tehran.
(i) RECOVERY :-
98. In order to prove the charges of commission of act preparatory to the commission of terrorist act, prosecution has examined Insp. Rahul Kumar Singh (PW33) who as per the directions of the IO, arrested accused Zafar Masood and from his personal search, mobile phone make Samsung Ex. PW 33/P1 with two Sim cards alongwith other articles were recovered. The retrieval of the data of his mobile phone was carried out by Cert-In expert Omveer Singh (PW58) and the retrieved data was handed over to the IO in a pen drive Ex. PW 58/P8. The data which was recovered from the phone of the accused Mohd. Asif, Abdul Rehman and Zafar Masood is Ex. PW 43/F and the study of data retrieved by Cert-In is Ex. PW 43/E. The Samsung mobile phone of accused Zafar Masood, which has been marked by PW58 as X4-MOB was found State v. Mohd. Asif & ors FIR No. 67/2015 Page 141 of 180 142 to be containing various international mobile numbers of Saudi Arab and various other states, as mentioned in the extraction report of sim card X4 SIM2. The international numbers recovered from his mobile phone does not show any incriminating piece of evidence and merely having international numbers in his mobile phone is not an offence unless the same are not connected with any overt act towards the execution of the conspiracy.
(ii) BOOKING OF AIR TICKETS :-
CONNECTION BETWEEN ACCUSED ZAFAR
MASOOD AND ACCUSED MOHD. ASIF :-
99. In order to establish the allegations that accused Zafar Masood helped Mohd Asif in arranging travel tickets by making payment of Rs.1 lakh to accused Mohd. Asif from the HDFC bank account in the name of his wife Rohina Ishrat, the prosecution has examined Sh. Suraj Kumar (PW8), Assistant Branch Manager in HDFC Bank, South Extension-I branch who has proved the certified copy of the relevant record of the said bank account as Ex. PW 8/A and Ex. PW 8/B. The statement of account for the period w.e.f 07.11.2011 to 23.12.2015 as Ex. PW 8/C. Although from the bank statement, it is revealed that there are several transactions of withdrawal of money but there is no specific withdrawal for a sum of Rs.65,000/- and Rs.35,000/- to support the case of the prosecution. Although accused Mohd. Asif purchased the tickets by making payment in cash which has already been proved State v. Mohd. Asif & ors FIR No. 67/2015 Page 142 of 180 143 vide payment receipts Ex. PW 6/H and Ex. PW 6/I dated 15.06.2013 and 18.06.2013 respectively. One of the payment receipt Ex. PW 6/H is for an amount of Rs.24,650/- and payment receipt Ex. PW 6/I is for an amount of Rs.48,268/-, the to/fro travel tickets have already been proved as Ex. PW 6/E1 to Ex. PW 6/E3 by Sh. P. S Duggal (PW6), Director of Minar Travels. The payments which are sought to be linked to the bank statement Ex. PW 8/C are from March, 2013 to 12.06.2013. Though the specific amount of Rs.65,000/- and Rs.35,000/- is not reflected but the payments are being made for the amount in the range of 5,000, 10,000, 20,000 which Ld. Defence counsel has also pleaded that the same cannot be linked with the booking of tickets in cash by accused Mohd. Asif.
At this stage, this Court cannot lose sight of the fact that in such offences where the preparation to commit a terrorist act is carried out, no person would leave a direct evidence against him and he would definitely maintain an utmost secrecy so that he may not be associated with any of the act which comes under the purview of a preparatory act in order to commit a terrorist act. In such cases of conspiracy and preparatory act, circumstances and the conduct of accused is important where link is required to be established by the prosecution to infer that the acts of accused persons were aimed at achieving some common object. Here the withdrawals are made for different amounts which are prior to the date of State v. Mohd. Asif & ors FIR No. 67/2015 Page 143 of 180 144 booking of air tickets and as per the allegations against the accused, the cash was handed over to accused Mohd. Asif but no explanation has come on record from the side of the accused that as to why these amounts were withdrawn from the bank account of his wife. Moreover, this bank account statement also shows that there has been a continuous deposit of cash amount on several occasions also in the range of Rs.45,000/-, 26,000/-, 25,000/- and 35,000/-. On the one hand, the accused has not been able to explain how this cash amount has been deposited in the account of his wife, if she was under any employment or occupation and from which source she was earning that amount, similarly, it has also not been brought on record by the accused that as to why these withdrawals had taken place from the account of his wife. In view of the allegations made against accused Zafar Masood and withdrawal of the amount has been linked with booking of ticket by accused Mohd. Asif for himself and for accused Mohd. Sharjeel Akhtar and Mohd. Rehan. The burden was upon the accused to rebut this presumption but he has failed to do so, therefore the evidence available on record, it has been established that accused Zafar Masood gave Rs. 1 lakh from the bank account of his wife to accused Mohd. Asif, who was having contacts with terrorist organisation ' Al-Qaeda' and the said amount was used for the purpose of booking of the tickets and through those tickets, accused Mohd. Asif, Mohd. Sharjeel Akhtar and Mohd. Rehan travelled to Iran, whereabouts of Mohd. Sharjeel Akhtar State v. Mohd. Asif & ors FIR No. 67/2015 Page 144 of 180 145 and Mohd. Rehan are still not known till date and even the refund amount of their return tickets is still with the office of Minar Travels. So far as accused Mohd. Asif is concerned, although he returned but for coming back to India, he also got issued Emergency Certificate on the basis of false averments. Accused Mohd. Asif has not been able to justify his absence for such a long period of time.
(iii) ISSUANCE OF PASSPORTS UPON THE STRENGTH OF FORGED AND FABRICATED DOCUMENTS :-
100. It is also alleged against the accused Zafar Masood that he got issued four Passports in his name with some deceptive similarities in his name but with same parentage, address and photograph. It has also come on record vide Ex. D11 that for the offence of getting issued the Passport on the basis of forged and fabricated documents, accused Zafar Masood is already facing trial in a case already registered against him at P.S DCB, Surat, Gujarat. Vide Ex.
D11, the documents pertaining to the said case have been produced which have not been disputed by the accused as well. Since the case has already been registered for the same offence in Gujarat and the accused is facing trial for the same, therefore, the observation of this Court is not touching upon the merits of the said case as for the same offence, the accused cannot be charged twice but at the same time, the documents or record produced in the form of evidence in the present case can be looked into for the purpose of ascertaining the alleged offence of conspiracy State v. Mohd. Asif & ors FIR No. 67/2015 Page 145 of 180 146 to commit a terrorist act.
101. In order to prove the issuance of several passports in the name of accused Zafar Masood and which are also of deceptive similarities in his name, the testimony of Sh. Ram Singh, Under Secretary, Ministry of Housing & Urban Affairs (PW10) is important. PW10 Ram Singh was posted as Passport Officer in Passport Office Bareilly, Uttar Pradesh in the year 2016 and on receipt of notice u/s 91 CrPC Ex. PW 10/A, he prepared a detailed reply Ex. PW 10/B after verifying from the record and relevant portion of his reply has been reproduced herein for the ready reference :-
"...1. Passport No. R-625019 dated 16.08.1994 was issued against file No. 10(22520)94 (copy enclosed) in the name of Zafar Masood s/o Masood Ul Hasan, Mother's Name Intekhab Begum R/O Deepa Sarai, Anjuman Road, Post:
Sambhal, Moradabad, (POB & DOB: Sambhal, Moradabad, 04.07.1971). A clear police Verification report has been received from SSP concerned in this case file
2. Passport No. A4709346 dated 27.02.1998 was issued by this office against file No. BLY-402(48778)97 (copy enclosed) in the name of Mohammad Zafar S/O Masudul Hasan, Mother's Name: Intekhab Begum, R/O Deepa Sarai Anjuman Road, Mali Ka Bagh, Post- Sambhal, Distt.
Moradabad, (POB & DOB: Sambhal 04.07.1976). A clear Police Verification report also received in this case from SSP concerned.
3. Mohammad Zafar again applied in this office for duplicate passport in lieu of above passport No. A4709346 dated 27.02.1998 vide file No. D000546 on dated 29.07.2002 (copy enclosed) with slight change in the spelling of his name and father's name (Mohammad Jafar s/o Masudal Hasan). But passport was not issued to him due to receipt of adverse Police Report from SSP concerned and State v. Mohd. Asif & ors FIR No. 67/2015 Page 146 of 180 147 file was closed.
4. A passport No. K-6081464 dated 30.11.2012 was also issued by this office vide file No. BL1060348961812 (copy enclosed) in the name of Zafar Masood s/o Masoodul Hasan, Mother's Name Intekhaab Begum, Spouse Name:
Roheena Ishrat, POB: Sambhal, DOB: 04.07.1976, Address:
H.No. 611, Madina Nagar Deepa Sarai, Sambhal. A clear Police Verification report has been receipt from SSP concerned in this case file also.
5. A application No. AHDB81070702 of 2002 is also appearing on system which is related to Passport Office, Ahmedabad and it is appearing on computer system that a passport No. E4651311 dated 16.04.2003 was issued from Regional Passport Office, Ahmedabad in the name of Zafar Masood Shaikh S/O Shaikh Masood Hasan, Mother's Name: Shaikh Aisha Masood, POB: Surat (Gujarat) DOB:
04.07.1977. Mostly the particulars of this person is matching with the same person whose details are given above at Serial No. 1, 2, 3 and 4. However, it can not be confirmed with surety that this person is same or different.
Details may be obtained from Regional Passport Office, Ahmedabad..."
102. These three passports which were got issued from Passport Office, Bareilly shows that parentage and address of accused is same whereas there is a little bit of change in his name. He had got issued one Passport in the name of 'Zafar Masood', another in the name of 'Mohd. Zafar' and third in the name of 'Zafar Masood'.
103. Accused Zafar Masood had also got issued another Passport from Passport Office, Ahmadabad in the name of 'Sheikh Zafar Masood' and the record pertaining to the same has been proved by Sh. Prashant Sharma (PW45). As earlier observed, accused Zafar Masood got issued three passports in different names and fourth passport in the name of Sheikh Zafar Masood.
State v. Mohd. Asif & ors FIR No. 67/2015 Page 147 of 180 148
104. All these passports are having deceptive similarity in the name of his father. In these three passports got issued from Passport Office Bareilly, the father's name is mentioned as 'Masud-ul-Hasan' or 'Masudul Hasan' whereas in the fourth passport got issued from Passport Office Ahmedabad, the father's name is mentioned as 'Sheikh Masud-ul-Hasan'. For the purpose of issuance of passports, accused Zafar Masood had produced alongwith the application registration form, a School Leaving Certificate Ex. PW 9/B from Anglo Urdu High School, Surat, Gujarat. In this regard, PW9 Anwar Hussain Sheikh, Principal of Anglo Urdu High School, has been examined who in response to notice u/s 91CrPC Ex. PW 9/A, gave his detailed reply Ex. PW 9/C specifically mentioning that School Leaving Certificate Ex. PW 9/B in the name of Zafar Masood S/o Hasan Sheikh was never issued from their school as the said Zafar Masood s/o Hasan Sheikh was never enrolled in their school during the relevant period. Therefore, it is established that on the basis of forged and fabricated documents, accused Zafar Masood got issued the School Leaving Certificate which is evident from the testimony of PW9 Anwar Hussain Sheikh. As the matter pertains to forgery of documents, a case already been registered at Surat, Gujarat therefore, on this aspect of offence which is subject matter of trial before the concerned court at Surat, this Court cannot adjudicate but the evidence came on record having bearing on the offence State v. Mohd. Asif & ors FIR No. 67/2015 Page 148 of 180 149 alleged in the present case against the accused, this Court well within its power to adjudicate upon the same. Accused here charged with the commission of offence under UAPA Act. Therefore, this piece of evidence with respect to proving the conduct of the accused and to prove the prevailing circumstances as to the commission of offence of conspiracy and preparatory act of terrorism shows that on the one hand, he is getting issued four Passports with some deceptive similarities of his name and particulars and on the other hand, forged and fabricated documents were also created to get them issued. Evidence against accused Zafar Masood establishes that accused was in the habit of getting issued various Passports. From the conduct of accused only one inference can be drawn that he was intending to hide his real identity as well as his travel history. The admitted document Ex. D2 shows that he once travelled to Pakistan on 05.11.1995. He has not shown the purpose of this visit. So many passports in his name creates suspicion that there might have been other instances of his Pakistan travel. He has also failed to justify the reason of having so many passports.
(iv) CUMULATIVE EFFECT OF EVIDENCE :-
105. His connection with accused Mohd. Asif has also been surfaced on record. His involvement of arranging the travel of Mohd. Asif, Mohd. Sharjeel Akhtar and Mohd. Rehan is already establish and any connection with such evidence and his travel to Pakistan although for once but a State v. Mohd. Asif & ors FIR No. 67/2015 Page 149 of 180 150 presumption can easily be drawn from the facts and circumstances of the case that he must have travelled to Pakistan on several other occasions also as he had got issued four Passports in his name. Normally, nobody would get issued several Passports in his name unless he is having some intention to commit some unlawful act or to hoodwink the authorities so that his activities could not be traced out. Although the direct evidence regarding his travel to Pakistan on the basis of these Passports has not come on record as the original passport Ex. PW 23/P1 of accused Zafar Masood has never been recovered but in the totality of facts and circumstances coupled with the role of the accused and his connection with other accused persons and his travel to Pakistan, shows his involvement in commission of an act preparatory to the commission of a terrorist act. It has already been observed by Hon'ble Apex Court in number of cases that in such cases, where there has been a conspiracy to commit a terrorist act, the direct evidence does not come easily and only from the conduct of the accused and the circumstances, the object and the existence of such conspiracy and illegal act can be inferred. It has also been held by Hon'ble Superior Courts that cumulative effect of the proved circumstances should be taken into account in determining the guilty of the accused rather than adopting an isolated approach to each of the circumstances. Therefore, it has successfully been proved that accused Zafar Masood has committed an act preparatory to the commission of a terrorist act which also State v. Mohd. Asif & ors FIR No. 67/2015 Page 150 of 180 151 involve recruitment of young persons in the same.
ROLE OF ACCUSED SYED MOHD. ZISHAN ALI :-
PREPARATORY ACT TO THE COMMISSION OF TERRORIST ACT :-
106. On 09.08.2017, accused Syed Mohd. Zishan Ali was apprehended by the investigating team. During investigation, it was found that he was providing logistic/financial aid to the arrested as well as wanted accused persons of 'AQIS' outfit in India. Accused Sabeel Ahmed is brother-in-law of accused Syed Mohd. Zishan Ali. On 16.10.2015, accused Syed Mohd. Zishan Ali came to Bangluru by flight of Kingdom of Saudi Arabia for his Walima Party on 26.10.2015 which was attended by accused Abdul Rehman. The transcription of intercepted call between accused Abdul Rehman and Syed Mohd. Zishan Ali proves the connection of accused Syed Mohd. Zishan Ali with accused Abdul Rehman. PW34 Dr. Subrat Kumar Choudhary, Senior Scientific Officer, CFSL vide his CFSL report Ex. PW 34/D gave opinion about matching of the voice samples of accused Syed Mohd. Zishan Ali and accused Maulana Abdul Rehman but this piece of evidence is inadmissible in nature as the same is hit by Section 46 of UAPA as the copy of the sanction order of the competent authority with regard to interception of calls of mobile number 8149200524 (Syed Mohd. Zishan Ali) and 7893105850 ( of another person) has not been supplied to the accused persons nor produced State v. Mohd. Asif & ors FIR No. 67/2015 Page 151 of 180 152 before this Court.
107. The connection of accused Syed Mohd. Zishan Ali with accused Abdul Rehman has come out in the recovery of articles effected from the possession of accused Abdul Rehman in which the copy of Nikahnama Ex. PW 18/E13 of Zishan Ali with Sadia was also recovered but in my view, this piece of evidence cannot be considered as incriminating in the want of any overt act towards the conspiracy on the part of accused Syed Mohd. Zishan Ali. Since the only evidence against him is that he came to India to attend his Walima party. In the disclosure statement of co-accused persons, his name cropped up regarding commission of offence in connivance with other co-accused persons. The intercepted calls is inadmissible piece of evidence in view of bar created u/s 46 of UAPA. Therefore, prosecution has failed to establish through the circumstantial evidence so as to infer from the circumstances that the conduct of the accused was in any way proving him to be connected with any act preparatory to the commission of terrorist act. It has been held by hon'ble Superior Courts in number of cases that an overt act on the part of the accused is required to held him guilty.
108. There is nothing on record to show that he illegally went to Pakistan, collected funds, radicalized youth and also being the member of the terrorist organisation or remained associated or connected with the co-accused State v. Mohd. Asif & ors FIR No. 67/2015 Page 152 of 180 153 persons. Although there has been allegation against him that he is brother-in-law (Jija) of accused Sabeel Ahmed but despite that prosecution has not been able to show any evidence against him of his involvement alongwith other co-accused persons in commission of any terrorist act. There is nothing on record to show or infer that he was providing logistics/financial aid to the accused persons.
109. As per the testimony of Mohd. Saquib Khan (PW46), Ujeffa one day called him and asked him to open a Skype ID so that an interview can be arranged. PW46 accordingly opened an account on Skype and received a voice call on Skype from one Zishan who inquired from him as to what he was doing whereupon he informed him about his studies. Prosecution has not been able to show that the person who made voice call through Skype was actually accused Syed Mohd. Zishan Ali. His identity has not been established being the person who contacted PW46 Mohd. Saquib Khan. Even in the testimony of PW46, nothing has come out that accused Syed Mohd. Zishan Ali has ever tried to influence him or tried to convince him to go abroad for any job. Screen video recording of social media activities of accused Syed Mohd. Zishan Ali, which was carried out by Sh. Omveer Singh (PW58), also suggest nothing incriminating against him.
110. As per the Passport of accused Syed Mohd. Zishan Ali Ex. PW 57/B, his father's name has been shown as State v. Mohd. Asif & ors FIR No. 67/2015 Page 153 of 180 154 Syed Raghebul Isslam Haider but as per the Customer Application Form and Call Detail Record Ex. D13 in respect of mobile no. 8149200524 collected by the IO from Tata Teleservices Limited, the said number was registered in the name of Zeshan A. Haider s/o A. Arshiyan Haider which is an admitted document produced by the prosecution. In order to prove its subscribership and use of the same which is depicted in the corresponding Call Detail Records, there is no investigation to the documents annexed with Customer Application Form and hence, sufficient evidence is missing to connect him with the conspiracy of preparatory act of terrorism.
111. This has not been the only sole instance when the connection of accused Abdul Rehman and Zishan Ali has surfaced and it has also come on record that accused Abdul Rehman attended the Walima Party of accused Zishan and copy of Nikahnama has also been proved as Ex. PW 18/E13 but the same is not admissible piece of evidence being merely a photocopy.
ROLE OF ACCUSED ABDUL SAMI :-
PREPARATORY ACT TO THE COMMISSION OF TERRORIST ACT :-
112. Pursuant to the disclosure statement of accused Abdul Rehman, accused Abdul Sami was arrested on 18.01.2016. Accused Abdul Sami was recruited by accused Abdul Rehman to join his terror outfit and he was also sent State v. Mohd. Asif & ors FIR No. 67/2015 Page 154 of 180 155 to Pakistan via Dubai for training for terror activities.
113. During investigation, on verification of passport of accused Abdul Sami, it was found that there was no arrival/departure entry to Pakistan. On verification, his travel details from Emirate Airlines, Dubai was received and as per reply Ex. PW 29/G dated 23.02.2016, accused Abdul Sami reached Dubai on 27.01.2014 by one way ticket and as per the reply Ex. PW 27/B received from Pakistan Airlines, no record could be found that accused Abdul Sami had left Karachi for Dubai on 05.01.2015. However, it was confirmed by PW27 that accused Abdul Sami travelled from Dubai to Karachi in their flight.
114. In order to prove the travel details of Passport Ex. PW 32/P3 of accused Abdul Sami, Sh. R. Ramanathan, Security Supervisor, Emirate Airlines (PW29) has been examined and as per their reply Ex. PW 29/G, accused Abdul Sami booked the ticket Ex. PW 29/H on 25.01.2014 for his journey from Kolkata to Dubai on 27.01.2014. Pursuant to another notice dated 31.12.2015 Ex. PW 29/I, another reply dated 04.01.2016 Ex. PW 29/J was furnished, as per which, accused Abdul Sami and Abu Sufian have booked one way tickets Ex. PW 29/L and Ex.PW 29/K from Kolkata to Dubai on 27.01.2014.
Ld. Defence Counsel has submitted that on the one hand, certificate u/s 65B of Indian Evidence Act has not been furnished by the witness alongwith the ticket, State v. Mohd. Asif & ors FIR No. 67/2015 Page 155 of 180 156 therefore, the same is inadmissible piece of evidence and moreover, the documents furnished by PW29 does not bear the particulars of his passport. On this point, it is observed that passport of accused Abdul Sami has already been proved as Ex. PW 32/P3 and the corresponding entries on his passport from Kolkata to Dubai on 27.01.2014 has also been established from arrival and departure entry of Immigration Department of India and UAE respectively on his passport. Therefore, the entries in the passport corroborates the version of PW29 about the journey detail of accused Abdul Sami.
So far as non-production of Certificate u/s 65B of Indian Evidence Act is concerned, PW29 Sh. R. Ramanathan has proved the journey details of the accused from his official record and the documents have been furnished in original under the signatures of Dr. Abdulla Al Hashimi, Senior Vice President-Group Security whose signatures have also been identified by PW29 being worked with him. PW29 has also proved the authority letter Ex. PW 29/A given under the seal and signatures of Mohammed Sarhan, Vice President (India & Nepal), Emirate Airlines.
115. The travelling details of accused Abdul Sami are suspicious and he has put all efforts to hide the actual place of his travel by managing forged stamps of departure/arrival on his Passport but infact he travelled to Pakistan during the relevant period after reaching Dubai on State v. Mohd. Asif & ors FIR No. 67/2015 Page 156 of 180 157 27.01.2014. In order to camouflage the status of his travel, he affixed forged stamps to show that he left Dubai on 05.02.2014 to Malaysia. There is a stamp with respect to his departure from UAE on the said date. There is a forged stamp of his reaching Malaysia on 05.02.2014. He has also managed forged seal for his onward journey from Malaysia to Thailand on 16.02.2014. He further affixed forged seal on his passport for his travel to UAE on 05.01.2015. Although accused Abdul Sami had tried to hide his travel to Pakistan but PW27 Shah Mohammad Sanaul Haq from Pakistan Airlines has been examined by the prosecution who has deposed that on receipt of notice u/s 91 CrPC Ex. PW 27/A on 28.01.2016, Sh. Saeed A Khan, Station Manager, PIA, Delhi gave his detailed reply Ex. PW 27/B dated 17.02.2016 on the Letter Head of Pakistan International Airlines, as per which, accused Abdul Sami had travelled in their flight PK210 on 06.02.2014 from Dubai to Karachi but he could not confirm regarding his travel from Karachi to Dubai on 05.01.2015.
116. As per his travel history as mentioned in the Passport, on 05.02.2014, accused Abdul Sami left Dubai for Malaysia whereas documents of PIA shows that on 06.02.2014, accused Abdul Sami left for Karachi through PIA. During this period and till his leaving UAE on 09.03.2014 to Nepal, accused Abdul Sami remained in Pakistan as per the evidence produced by the prosecution. State v. Mohd. Asif & ors FIR No. 67/2015 Page 157 of 180 158 He actually did not carry out any travel to Malaysia and Thailand and as per evidence, when he travelled to Pakistan on 06.02.2014, then how he could be in Malaysia on 05.02.2014. Accused Abdul Sami has miserably failed to show any record or evidence with respect to his travel to these countries during the aforementioned relevant period. Ld defence counsel has argued that his passport does not bear the Immigration entry of Pakistan. This question of defence has already been answered by PW27 vide his reply Ex. PW 27/B, therefore, it is established that he travelled to Pakistan and it further strengthens the case of the prosecution that such secret travel to Pakistan was intended to be taken for some preparation against the interest of the nation. Such manipulation of visit to Pakistan showing entry and exit seal of immigration is only possible when some Pakistani authorities are also involved who had managed to conceal his entry and exit through Pakistani Immigration. It further strengthens the case of the prosecution that accused Abdul Sami must have gone stealthily to the hostile nation only with an aim to commit some destructive activity in his own country otherwise why accused would require to conceal his visit to Pakistan and to create forged entries in his passport of different countries. Accused has failed to show that he actually visited Malaysia and Thailand, as per the entries in his passport and has failed to produce any supporting evidence of his stay there.
State v. Mohd. Asif & ors
FIR No. 67/2015 Page 158 of 180
159
(i) CONNECTION BETWEEN ACCUSED ABDUL
REHMAN AND ABDUL SAMI :-
117. It has been alleged against accused Abdul Sami that he was working on the instructions of accused Abdul Rehman and in order to show his connection with him, Mohd. Saquib Khan (PW46) has been examined who in his testimony has stated that at the time of inauguration of new mosque, he also met accused Abdul Sami through Ujeffa who introduced him to Abdul Sami and Abdul Rehman. Thereafter, Abdul Rehman enquired from PW46 about his future study plan and he told him that want to go abroad and work there, who then informed him that accused Abdul Sami has also got a job abroad and offered his help to get a job for him if he was interested.
118. Mohd Saquib Khan (PW46) was enticed through Abdul Sami to come under his clutches and this is further clarified from the fact that when PW46 stated in his testimony that he also met accused Abdul Sami at Jama Masjid, Sanchi Jamshedpur who told him that he was going for a job to Dubai and thereafter Ujeffa again contacted PW46 when accused Abdul Rehman was present in Jamshedpur and enquired about his intention and informed him that accused Abdul Sami has already left for overseas job. PW46 has identified accused Abdul Sami in the court. PW46 also deposed about the conduct of accused Abdul Rehman, as discussed above. In this manner, testimony of PW46 clearly establishes the State v. Mohd. Asif & ors FIR No. 67/2015 Page 159 of 180 160 connection of accused Abdul Sami not only with accused Abdul Rehman but also in executing his plan of recruiting young people in his outfit.
(ii) CUMULATIVE EFFECT OF EVIDENCE :-
119. His connection with accused Abdul Rehman who was involved in recruitment of youth by radicalizing them. Connection of accused Abdul Rehman with accused Mohd. Asif, Abdul Sami's own conduct of secret visit to Pakistan, his false exit/arrival entry on his passport. The cumulative effect of the evidences came on record coupled with prevailing circumstances and conduct of accused, indicating his involvement in some preparatory act against the interest of the nation within the meaning of Section 15 of UAPA alongwith radicalization of youth under Section 18B of UAPA.
ROLE OF ACCUSED DR. SABEEL AHMED PREPARATORY ACT TO THE COMMISSION OF TERRORIST ACT :-
120. Accused Sabeel Ahmed was declared a Proclaimed Offender but was arrested on 28.08.2020. It has been alleged against accused Sabeel Ahmed that during investigation, he was found involved with terrorists like Mohd Shahid Faisal, Mohd. Umar @ Umar Hyderabadi for terror activities. Accused Sabeel Ahmad was also receiving donation equivalent to Rs. 25,000/- which he used to send to accused Mohd Abdul Rehman from his State v. Mohd. Asif & ors FIR No. 67/2015 Page 160 of 180 161 rental income of properties situated in Bengaluru and other places in Karnataka through Amr Syed and Tajir Pasha. It is also alleged against him that he was also arrested by Kingdom of Saudi Arabia for keeping the money illegally without the knowledge of the Government.
(i) RECEIVING DONATIONS :-
121. In order to show the withdrawal of amount from his account, Ms. V. Sreelakashmi (PW38) has been examined qua the joint account of accused Sabeel Ahmed alongwith three other persons. PW38 has proved the account opening form Ex. PW 25/E and statement of account consisting of 44 pages as Ex. PW 25/F. So far as evidence with respect to withdrawal of Rs.25,000/- from the account of accused Sabeel Ahmed and giving it to Tajir Pasha or Amr Syed to deliver it to accused Abdul Rehman is concerned, PW38 has proved the statement of account bearing several debit credit entries but from these entries, the actual or specific entries could not be brought on record from which the amount was withdrawn and was given to Tajir Pasha (PW51).
So far as handing over money to accused Abdul Rehman through Tajir Pasha is concerned, Tajir Pasha (PW51), in his testimony, has deposed that " I do not remember if I told the police in my statement dated 04.07.2021 that earlier Sabeel Ahmed used to send Rs.25,000/- directly to Abdul Rehman however, subsequently the brother-in-law of Sabeel Ahmed namely State v. Mohd. Asif & ors FIR No. 67/2015 Page 161 of 180 162 Amr Syed used to give me Rs.25,000/- in cash which I further used to hand over to accused Abdul Rehman..." This part of his testimony shows that accused Sabeel Ahmed through his brother-in-law Amr Syed used to give Rs.25,000/- to Tajir Pasha (PW51) which he further used to hand over to accused Abdul Rehman. There is no cross- examination of this witness to this effect. Hence, it is proved that Rs.25,000/- was paid to accused Abdul Rehman through Amr Syed. This Court is aware of this fact that direct evidence in such kind of terror funding cannot be obtained and it has to be inferred from the circumstance and the conduct of the accused persons. There is nothing on record to show that as to for what purpose this amount of Rs.25,000/- was handed over to accused Abdul Rehman. Moreover, any evidence even to draw any inference are also missing. Therefore, it is required to be further tested in the light of other evidences recorded against accused Sabeel Ahmed.
(ii) ATTENDED SECRET MEETINGS:-
122. On the point of secret meetings, as deposed by PW53 "X", Ld. Defence counsel has argued that this witness does not pertain to conspiracy alleged in this case, rather, he is a witness to hatching of conspiracy in the NIA matter which is not subject matter of trial in the present case. It is also argued that the testimony of this witness is hit by hearsay rule as this witness has deposed about the task assigned to Mohd. Akram in the secret meetings State v. Mohd. Asif & ors FIR No. 67/2015 Page 162 of 180 163 which were not attended by him and the source of the said information is unknown.
123. On this count, protected witness "X" (PW53) has deposed that he was in Saudi Arabia where Islamic gatherings/meetings were conducted by Call and Guidance Centre, Riyadh in an auditorium Hall Istrah where he met one Mohd. Akram who was driver by profession and after the program, a secret meeting was conducted by Mohd. Bhai, Abu Hamzla, Engineer Shahid, Azmath and Asad Khan with Mohd. Akram. PW53 has further deposed that total three such secret meetings were conducted with Mohd. Akram and accused Sabeel Ahmed also attended said secret meetings. PW53 has further deposed that he was informed by Mohd. Akram that he had been assigned a task to kill some prominent VHP leaders, for which immense pressure is mounted upon him by the said Mohd. Bhai. PW53 has also deposed that Dr. Sabeel Ahmed also attended the said secret meetings and in these secret meetings, the logistics were provided by accused Sabeel Ahmed. In his cross-examination, PW53 has admitted that secret meetings were conducted in Riyadh. Mohd. Akram was resident of Al-Karjah which was at a distance of 100 km from Riyadh in Saudi Arabia and he never attended the secret meetings. He further admitted that Delhi Police has never recorded his statement. PW53 has derived all the information from Mohd. Akram and he himself had no information about the secret meetings and as to what had State v. Mohd. Asif & ors FIR No. 67/2015 Page 163 of 180 164 happened in the said meetings. I concur with Ld. Defence counsel that evidence of PW53 "X" is an evidence which is hit by hearsay rule. Mohd. Akram would have been the appropriate witness for the purpose of deposing about the factum of the said secret meetings and involvement of accused Sabeel Ahmed in any kind of conspiracy pursuant to the said meetings. He has not been cited as witness in the present case.
(iii) JUDGMENT OF KINGDOM OF SAUDI ARABIA :-
124. The prosecution has also relied upon the photocopy of judgment of Kingdom of Saudi Arabia Ex. PW 57/C. As rightly pointed out by Ld.defence counsel that the same is not an admissible piece of evidence as its certified copy has not been furnished. Therefore, the presumption provided u/s 86 of Indian Evidence Act is not available to this piece of documents as it is merely a photocopy.
(iv) CONNECTION WITH ACCUSED ABDUL
REHMAN :-
125. With respect to the connection of accused Sabeel Ahmed with accused Abdul Rehman is concerned, prosecution has examined Tajir Pasha (PW51) who has deposed that accused Abdul Rehman was known to him and he told to the police that he often visited Banglore and stayed at the house of one Alim also. He has further stated that on one occasion, he had met with accused Sabeel State v. Mohd. Asif & ors FIR No. 67/2015 Page 164 of 180 165 Ahmed also at the house of Alim. PW51 Tajir Pasha has not deposed in his statement that he met accused Abdul Rehman and Sabeel Ahmed together at the house of Alim. He even has not stated that at any point of time, he had seen them together despite the fact that accused Abdul Rehman was known to him and he used to deliver speeches in the surrounding mosques and PW51 also used to participate in the said speeches. No other evidence is produced by the prosecution to show their link.
(v) CHARGE-SHEET OF NIA CASE IN
BANGLORE :-
126. It is also alleged against accused Sabeel Ahmed that vide the admitted document Ex.D18 which is the charge- sheet of NIA case, seizure memo of one donation receipt book of madarsa Jamiat-ul-Harman in Hyderabad were recovered from the possession of accused Sabeel Ahmed which is stated to be the mosque of accused Mohd. Umar @ Umar Hyderabadi and accused Sabeel Ahmed used to collect donations upon these receipts and send the money generated through these receipts to accused Abdul Rehman in Banglore through Tajir Pasha (PW51) to recruit more people for terrorist activities.
On this piece of evidence, I am of the view that firstly, the admission of the charge-sheet in the NIA case as Ex. D18 does not mean that the documents in the same have also been admitted and it is merely a copy of the charge-sheet which has been admitted by the accused State v. Mohd. Asif & ors FIR No. 67/2015 Page 165 of 180 166 persons. There is no specific admission of the documents i.e. receipt book by the accused persons and while admitting the copy of the charge-sheet, it has been specifically mentioned in the statement of Ld. Defence counsel that the same is admitted without prejudice to the right of the accused in trial pending against accused Sabeel Ahmed in the Special Court of NIA in Banglore. Moreover, the original record is also not produced before this court. The only evidence left against accused Sabeel Ahmed is handing over of the money i.e. Rs.25,000/- to accused Abdul Rehman through Tajir Pasha (PW51) is not the conclusive proof to show his involvement with accused Abdul Rehman. The other connecting evidence to show their link and and his involvement with accused Abdul Rehman in terrorist activities are missing. Prosecution has not been able to show any link which could make the act of accused Sabeel Ahmed as part of one series alongwith other co-accused persons.
(vi) OFFENCE U/S 174A OF IPC :-
127. Charges have been framed against accused Sabeel Ahmed under Section 174 A IPC as he was declared Proclaimed offender vide order dated 12.07.2016. The perusal of the report Ex. CW2/B annexed with the proclamation proceedings shows that there is nothing on record to show that accused Sabeel Ahmed was actually residing at the given address at the time when the process was served upon him. One of the witness to the execution of process u/s 82 CrPC, in his statement recorded by the process server HC Bachchu Singh, namely Sh. Mehboob has stated that accused was residing there but has left to State v. Mohd. Asif & ors FIR No. 67/2015 Page 166 of 180 167 Dubai 10 years ago which is further corroborated from the report Ex. CW 2/E on process u/s 83 CrPC containing the statement of witness Sheikh Shadik who has stated that accused was not residing at the given address for long and he was also not having any movable or immovable property. In such circumstances, how the execution of warrants is possible when accused was not residing at the given address since so long.
128. Therefore, in view of the material brought on record alongwith process u/s 82 CrPC, sufficient material is not there to proceed with Section 174A IPC against accused Dr. Sabeel Ahmed. Hence, prosecution has not been able to prove its case against accused Sabeel Ahmed for the offence u/s 174A IPC.
CONCLUSION
PREPARATORY ACT TO THE COMMISSION OF A
TERRORIST ACT AND EXISTENCE OF
CONSPIRACY :-
129. Preparatory acts are performed in preparation for a terrorist offence. Individuals can be prosecuted not just for the actual commission of a terrorist act but also travelling abroad to make any preparation for dong a terrorist act in his own country. It also includes the act of facilitating someone's travel to the hostile nation for preparing him for terrorist activities. It also covers the recruitment of State v. Mohd. Asif & ors FIR No. 67/2015 Page 167 of 180 168 someone for this purpose. These types of act focus on the concept of preparation and future consequences of preparatory action. even though there is no actual terrorist act has yet been committed. Therefore, the preparation in itself in terms of Section 18 of UAPA becomes a criminal act.
130. Preparatory acts of terrorism that can lead to terrorist offence. The preparatory acts of terrorism are mainly offences that do not require any specific, identified concrete acts to be attempted. For instance, the preparatory offence could entail membership of a terrorist organisation or association with these organisation or individuals. Preparatory acts are thus seen as acts that are criminalised based on the belief that they could lead to a terrorist act.
131. In the present case, charge has been framed against the accused persons for committing the preparatory act to the commission of a terrorist act in furtherance of conspiracy in which they have travelled to Pakistan illegally, collected money, radicalized youth being associated with terrorist organisation with a common object to disturb the peace and tranquility of the nation.
132. It has been held by Hon'ble Supreme Court in V. C. Shukla v. State (Delhi Admn.) (1980) 2 SCC 665 that "
in most cases, it is difficult to get direct evidence of an agreement to establish the conspiracy but the conspiracy State v. Mohd. Asif & ors FIR No. 67/2015 Page 168 of 180 169 can be inferred even from the circumstances giving rise to a conclusive or irresistible inference of an agreement between two or more persons to commit an offence".
Similarly, in Noor Mohammad Yusuf Momin v. State of Maharashtra 1970(1) SCC 696, Hon'ble Supreme court has held that " in most cases proof of conspiracy is largely inferential though the inference, must be founded on solid facts. Surrounding circumstances and antecedent and subsequent conduct, among other factors, constitute relevant material".
133. Individual conduct of the accused persons is already dealt with herein above. Now it is to be seen that from the conduct of the accused persons whether any inference can be drawn from the proved circumstances to show the existence of an agreement between the accused persons to show the existence of conspiracy to commit the alleged offence. To establish this fact, an inter-se connection, direct or indirect, between the accused persons is of foremost importance. The offence of conspiracy requires some kind of physical manifestation of agreement. The express . agreement, however, need not to be proved, nor it is necessary to prove the actual words of communication. The evidence as to the transmission of thoughts sharing the unlawful design may be sufficient, as has been held by Hon'ble Supreme Court in the case of State (NCT of Delhi) v. Navjot Sandhu (2005) 11 SCC 600.
State v. Mohd. Asif & ors FIR No. 67/2015 Page 169 of 180 170
134. In the present case, firstly, accused Mohd. Asif was arrested. His connection with accused Abdul Rehman through Call Detail Records, matching of their voice samples has already been established. The conduct of accused Mohd. Asif with accused Zafar Masood in withdrawal from the bank account of his wife and corresponding booking the travel tickets by giving cash and travelling with accused Mohd. Sharjeel Akhtar and Mohd. Rehan shows their connectivity with each other. Similarly, accused Abdul Rehman is found connected with accused Mohd. Asif through the telephonic calls and matching of voice samples. Accused Abdul Rehman is also found connected with accused Abdul Sami in view of the testimony of Mohd. Saquib Khan (PW46). In this manner, accused Mohd. Asif, Maulana Abdul Rehman, Zafar Masood and Abdul Sami are found to be connected with each other directly or indirectly.
135. Merely having contact with each other will not be sufficient in order to prove the existence of conspiracy between them. Common object is also required to be established from the conduct of the accused persons. So far as accused Mohd. Asif is concerned, from his possession objectionable material of his connection with Al-Qaida and also material of procedure to prepare explosives with the help of various methods etc, as discussed above were recovered.
Similarly, from accused Abdul Rehman, State v. Mohd. Asif & ors FIR No. 67/2015 Page 170 of 180 171 recovery has been effected of inflammatory material i.e. a video folder MP4 file containing hatred video with pics of political leaders including Sh. Narender Modi, Prime Minister of India. There are two more video MP4 files found to be containing hatred speech by a Maulvi and anti- national/hatred video of Kashmiri people. Accused Mohd. Asif and Abdul Rehman were following the same design which indicates towards such an act of threatening the unity, integrity, security of the country. This belief from the conduct of the accused and recovery from accused persons further finds support from the fact that accused Mohd. Asif went to Pakistan alongwith Mohd. Sharjeel Akhtar and Mohd. Rehan. Mohd. Asif himself came back to India but whereabouts of Mohd. Sharjeel Akhtar and Mohd. Rehan are still not known and the amount of their tickets still remained un-utilized as per the statement of witnesses. The conduct of accused Mohd. Asif however indicates towards his involvement in illegal activity when he got issued an emergency certificate Ex. PW 56/G from Consulate General of India, Istanbul on the basis of false submissions/representations. Accused Mohd. Asif has not been able to justify his absence for such a long period from the country and his existence is registered during that period neither in India nor in Iran for which he got issued the tickets for travelling. Moreover visit of accused Abdul Rehman, Abdul Sami, Zafar Masood to Pakistan and their direct or indirect inter-se connection further strengthens the belief that accused Mohd. Asif had also visited State v. Mohd. Asif & ors FIR No. 67/2015 Page 171 of 180 172 Pakistan during the abovesaid period. In these circumstances, direct evidence qua his visit to Pakistan has not come out but his conduct and recoveries from his possession and his unexplained absence shows that he went to Pakistan for the purpose of executing some preparatory act for terrorism in India. This belief further finds support from the fact that when he was trying to contact PW5 Mohd. Zeeshan, brother of accused Mohd. Rehan to hand over the letter kept in an envelope. It is established that the said envelope bears the handwriting of accused Mohd. Asif which further strengthens the belief of existence of some conspiracy against the interest of the nation.
136. Similarly, accused Abdul Rehman was also following the same objective as that of accused Mohd. Asif which is evident from the testimony of PW4 Syed Dil Nawaj and PW46 Mohd. Saquib Khan who have proved that the speeches of accused Abdul Rehman were inflammatory and were against the interest of the nation. Witnesses have also established his journey to Pakistan. There is no explanation about the reason of his journey to Pakistan.
137. It is has been held by Hon'ble Supreme Court in the case of Navjot Sandhu (supra) that in most of the cases of conspiracy, there may not be direct evidence of agreement amounting to criminal conspiracy but if the circumstance State v. Mohd. Asif & ors FIR No. 67/2015 Page 172 of 180 173 is considered together, it would establish beyond reasonable doubt that accused was party to the conspiracy and had played active part in various acts done in furtherance of conspiracy and such circumstance cannot be viewed in isolation. From the conduct and action of the accused persons, the Court can draw a presumption u/s 114 of Indian Evidence Act having regarding to the natural course of events and human conduct to show the nexus between the accused persons. From the conduct of accused Mohd. Asif, articles recovered from his possession, his booking of the tickets by obtaining money from accused Zafar Masood, his contact with accused Abdul Rehman, further his visit to Banglore, staying in Blue Star Lodge, Banglore, having telephonic conversation with accused Abdul Rehman through the phone of PW51 Tajir Pasha shows the connection between them. Despite that the contents of their intercepted conversation is inadmissible piece of evidence but still the evidence available on record is sufficient to show their connection. Moreover accused Mohd. Asif obtained a sum of Rs.2 lacs from PW 44 Bhagirath Dass who has identified accused Mohd. Asif being the same person and unexplained source of money and its use and failure of the accused to show the purpose for which the same was received by him alongwith his visit to Pakistan and furnishing false information to the Consulate General of India are sufficient to show the existence of conspiracy.
State v. Mohd. Asif & ors FIR No. 67/2015 Page 173 of 180 174
138. Similarly, from the conduct of accused Abdul Rehman, articles recovered from his possession, testimony of PW4 Syed Dil Nawaj and PW46 Mohd. Saquib Khan, his travel to Pakistan, his contacts with accused Mohd. Asif and also the testimony of PW46 Mohd. Saquib Khan who has deposed about accused Abdul Sami and his recruitment abroad and also allurement of PW46 Mohd. Saquib Khan for an overseas job also indicates towards the existence of conspiracy.
139. The conduct of accused Zafar Masood in which he gave money to accused Mohd. Asif amounting to Rs.1 lakh, his visit to Pakistan and also obtaining four Passports of deceptive similarities in his name and parentage. The recovery of forged School Leaving Certificate which is also proved by the relevant witnesses. It has also come on record that he got issued four Passports. When someone is getting issued the Passport in such a manner, the possibility of its use to hide his travel more specifically for the purpose of illegal travel to Pakistan in view of his conduct and facts and circumstance of this case cannot be ruled out. There has been recovery of some international numbers of Saudi Arabia but keeping the international numbers is not an offence but accused has not been to justify the existence of these numbers in his mobile phone. Keeping in view the totality of circumstances, the prosecution has been able to establish the involvement of accused Zafar Masood alongwith co-accused in achieving State v. Mohd. Asif & ors FIR No. 67/2015 Page 174 of 180 175 a common object in furtherance of conspiracy.
140. In the similar manner, the conduct of accused Abdul Sami and his connection with accused Abdul Rehman is not far from indicating him also as one of the constituents for conspiracy alongwith other accused persons. As per the evidence produced by the prosecution, he travelled to Pakistan illegally hiding his travel by creating forged and fabricated departure/arrival stamps of Immigration on his passport. His direct contact and recruitment by accused Abdul Rehman is also established by witnesses more specifically PW46 Mohd. Saquib Khan. His conduct and overt act also is indicating towards the existence of conspiracy and his involvement in the same.
Therefore, from the facts and circumstances, conduct of the accused persons, it is established beyond reasonable doubt that accused Mohd. Asif and Abdul Rehman were indulged in carrying out such acts to disturb the unity and integrity, peace and tranquility of India and for that purpose, they not only travelled to Pakistan illegally but also roped in accused Abdul Sami, Zafar Masood in their common design. Although the present case is not about committing of a specific terrorist act but act of accused persons is indicating towards preparation of some terrorist act. Preparatory act is being indicated by the conduct of the accused persons and the prevailing circumstances as no person normally would be indulged in such kind of activities. The activities of each accused State v. Mohd. Asif & ors FIR No. 67/2015 Page 175 of 180 176 persons are not to be seen in isolation. The evidence available on record clearly indicate towards the existence of conspiracy to commit a terrorist act but when the inter- se link of the accused persons, their illegal travel to Pakistan , recruitment of young persons in their terror outfit, inflammatory speeches, objectionable articles, obtainment of emergency certificate on false representation, obtainment of various passports by creating false and fabricated documents, if taken up as a whole and weighed, it gives a cumulative effect of existence of some common design or object to achieve something which is not in the interest of the country. The act of the accused persons shows that their conduct was conscious and clearly enough to infer their concurrence as to their common design and its execution. The evidence produced by the prosecution considering the surrounding circumstances and the conduct of the accused persons to show that the same is a relevant material which is required to complete the offence of conspiracy and also to show an agreement between the accused persons. Such agreement of doing a preparatory act to commit a terrorist act can never be a disclosed agreement which is required to be inferred from the circumstances and the conduct of the accused persons. Therefore, in the totality of circumstances, it is proved beyond reasonable doubt that act of accused persons was preparatory in nature with the intention to disturb the peace, tranquility, unit, integrity and security of the country within the meaning of Section 15 and Section 18 State v. Mohd. Asif & ors FIR No. 67/2015 Page 176 of 180 177 of UAPA.
141. So far as recruitment for the purpose of terrorist act is concerned, the evidence in the form of PW46 Mohd. Saquib Khan is there who has deposed about his association with accused Abdul Rehman, Abdul Sami and his recruitment for the overseas job and also attempt of influencing Mohd. Saquib Khan (PW46) by accused Abdul Rehman to join his outfit under the garb of overseas job within the meaning of Section 18 and Section 18B of UAPA.
So far as accused Mohd. Asif is concerned, there is evidence against him that alongwith him, he also took Mohd. Sharjeel Akhtar and Mohd. Rehan to Pakistan after obtaining money from Zafar Masood. Accused Mohd. Asif travelled alongwith them by booking the travel tickets also shows his involvement in the recruitment of young persons for the purpose of commission of terrorist activities within the meaning of Section 18 and Section 18B of UAPA.
142. It has been alleged against the accused persons that they were members of the banned terrorist organisation Al- Qaeda and more specifically its Indian outfit i.e. AQIS. The evidence already come on record establishes the existence of conspiracy between accused Mohd. Asif, Abdul Rehman, Abdul Sami and Zafar Masood having common objective of disturbing the peace and tranquility State v. Mohd. Asif & ors FIR No. 67/2015 Page 177 of 180 178 of India for which they joined hand together. From the possession of accused Mohd. Asif, incriminating material has been recovered which is connected with Al-Qaeda. The connection between accused Abdul Rehman, Zafar Masood, Mohd. Asif and Abdul Sami has already been established and it is also established that all the accused persons were acting towards the achievement of common object, therefore, their direct and indirect association with each other and inclination towards Al-Qaeda, which has been declared a terrorist organisation under Schedule-I of UAPA, shows that they were associated with Al-Qaeda only. Being the members of the such terrorist organisation, seldom be an open affair, anyone who is joining such terror outfit would be concealing his identity and acts. It cannot be expected that such membership would be offered in public. It is only from the conduct, facts and circumstances and their association, inference can be drawn about their association or involvement with a terrorist organisation. Although direct evidence to show that they were members of terrorist organisation 'Al-Qaeda' are missing but facts and circumstantial evidence produced by the prosecution shows their association with the terrorist organisation. Therefore, the ingredients of membership of terrorist organisation within the meaning of Section 20 of UAPA are not proved. Despite that, there is no bar to prove the charges u/s 18, 18B of UAPA for which membership is not required.
State v. Mohd. Asif & ors FIR No. 67/2015 Page 178 of 180 179
143. As a cumulative effect of the above detailed discussions, accused Mohd. Asif, Zafar Masood, Mohd. Abdul Rehman and Abdul Sami @ Uzair @ Hasan are held guilty for commission of offence punishable u/s 18 and 18B of UAPA and are convicted thereunder. Accused Mohd. Abdul Rehman is acquitted of the offences punishable u/s 467/471 IPC and also under Section 12 (1)
(b) of the Indian Passport Act.
144. With regard to accused Syed Mohd. Zishan Ali and Dr. Sabeel Ahmed, I am of the considered view that the evidence available on record is not of sterling quality to hold both of them liable for the commission of offence charged with and accordingly accused Syed Mohd. Zishan Ali and Dr. Sabeel Ahmed are acquitted of the offences charged with. They be released forthwith if not required in any other case. They both are directed to furnish PB/SB in the sum of Rs10,000/- in compliance of Section 437A CrPC.
145. However, prosecution is at liberty to revive its case as and when accused Syed Akhtar @ Qasim, Sanaul Haq @ Maulana Asim Umar, Mohd. Sharjeel Akhtar, Usman @ Asad, Mohd. Rehan, Abu Sufiyan, Syed Mohammad Arshiyan @ Haider, Mohammed Shahid Faisal @ Ustad, Farhatullah Ghori and Mohd. Umar @ Umar Hyderabadi (who have been declared as 'Proclaimed Offenders' vide order dated 12.07.2016) are arrested by the police.
State v. Mohd. Asif & ors FIR No. 67/2015 Page 179 of 180 180
146. Convicts/accused persons, namely, Mohd. Asif, Zafar Masood, Mohd. Abdul Rehman and Abdul Sami @ Uzair @ Hasan, shall be heard on the point of sentence on the date fixed.
147. In terms of the directions of Hon'ble High Court in the matter of Karan Singh v. State of NCT of Delhi in Crl. A. No. 352/2020 dated 27.11.2020, convicts Mohd. Asif, Zafar Masood, Mohd. Abdul Rehman and Abdul Sami @ Uzair @ Hasan are directed to file their affidavits of their assets and income alongwith directions to State through Ld. Addl. PP to file a report/affidavit with regard to expenses incurred by State for the litigation in the present case.
Announced in the open court on 10.02.2023 (Sanjay Khanagwal) Additional Sessions Judge-02:
New Delhi District: PHC:ND State v. Mohd. Asif & ors FIR No. 67/2015 Page 180 of 180