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1. Sessions Cases No. 2/2011 and 39/2011 are the subject matter of this judgment.

2. Briefly stated facts of prosecution case are that on September 14, 2010 at about 3 PM, an information was received from Central Intelligence Agency (CIA in short) that a Pakistani spy was residing in the area of Samalkha, Delhi on fake/forged documents of Indian nationality in the name of Mohd. Parvez and was involved in supplying confidential documents/information related to Indian Armed Forces to his Pakistani mentors, which was a serious threat to the safety, security and the interest of the Nation and it was likely to affect the sovereignty and integrity of India. It was further informed that Mohd. Parvez would be coming to NSG Camp, red light, Samalkha at about 6 PM having some secret/confidential documents related to Indian Armed Forces in his possession and the same could be recovered from his possession, if apprehended. The said information was discussed with the senior police officers and at their direction, a raiding party was constituted under the supervision of Inspector. Sanjay Dutt.

"At 3:00 PM it is lodged that an information was received from Central Intelligence Agency that a Pakistani spy is residing in the area of Samalkha, Delhi on fake/forged documents of Indian nationality in the name of Md. Parvez and he is involved in supplying confidential documents/information related to Indian Armed Forces to his Pakistani mentors, which is a serious threat to the safety, security and the interest of the nation and is likely to affect the sovereignty and integrity of India. It was further informed that the above mentioned Md. Parvez would be coming to at NSG Camp red light Samalkha at about 6:00 PM having some secret/confidential documents related with Indian Armed Forces in his possession and the same can be recovered from his possession, if apprehended. Information is being discussed with senior officers and action will be taken accordingly. By self."

29. From the submissions of counsel for both the parties, first question emerges as to whether there is any admissible evidence on record to prove that accused was in touch with his Pakistani mentors either through mobile phone or internet?

30. In order to prove that accused used to contact with his mentors in Pakistan i.e. Major Sameer and Ali Akbar, prosecution has relied upon the disclosure statement of the accused wherein he disclosed that he used to contact them from his mobile phone having connection 9555742965 on their mobile phone no. 923334978809. Prosecution has also relied upon the CDR of mobile phone no. 9555742965, which is exhibited as Ex. PW30/A. Perusal of the said CDR reveals that accused had contacted four times with the holder of mobile no. 923334978809 during the period January 1, 2010 to September 11, 2010. First call was made on April 15, SC No. 2/2011 & 39/2011 Page no. 22 of 57 State Vs. Sajjad Haider @ Mohd. Parvej & State v. Jainuddin 2010; second call was made on May 15, 2010; third call was made on July 20, 2010; and fourth call was made on August 18, 2010. In his disclosure statement Ex. PW10/E, accused disclosed that in the month of March- April, 2010 Major Sameer informed him that henceforth he would be under the control of Major Ali Akbar. It means that the last three calls were not made to Major Sameer. In his disclosure statement Ex. PW10/C, accused disclosed that he got a message from Major Sameer to collect some confidential documents from one Salim in Delhi and the same was to be sent to one of his Pakistani mentor namely Suleman Mohmmad in Dubai through courier. It is admitted case of the prosecution that accused was apprehended on September 14, 2010. Thus, in nutshell prosecution case is that after April 2010, accused was working under the control of Major Ali Akbar, but he got a message from Major Sameer to collect some confidential documents from one Salim and the same were required to be sent to Suleman Mohmmad. If it was so, the message must have been received prior to April 2010 because after April, 2010 accused was working under the control of Major Ali Akbar. It appears quite absurd that if message was received in April, accused would implement it in September, 2010. Moreover, during interrogation no effort was made to know when he received the message from Major Sameer. Even the last call was made to the alleged Ali Akbar/Sameer on August 18, 2010, which was much prior to September 14, 2010 when accused was allegedly apprehended with confidential documents. Moreover, the said call was made by the accused and not by the alleged Ali Akbar/Sameer and accused in his disclosure statement did not disclose that when he made a call to his mentor, he directed him to collect the confidential documents from Salim. Thus, it is established that the alleged message was not conveyed on the said mobile phone of the accused.

45. Prosecution has built up its case on the basis of disclosure statement of the accused made on September 14 and 15, 2010, which are exhibited as Ex. PW10/C and Ex. PW10/D. In his disclosure statement Ex. PW10/C, accused disclosed that the documents were given to him by one Salim in Delhi whereas in his disclosure statement Ex. PW10/D he disclosed that he got a message from Major Sameer to collect some confidential documents from one Salim, which gives the impression that he had collected the documents from Salim. If the disclosure statement is correct, it means that Salim is still in India, which is not good for the country because as per prosecution Salim was the person who had procured the said confidential documents. Thus, it was Salim who could tell about the traitor who had supplied these confidential documents to him.