# 8 S.C.R. 916 MOHD. AYUB DAR v. STATE OF J & K

- **Citation:** [2010] 8 S.C.R. 916
- **Court:** Supreme Court of India
- **Decided:** 2010-07-21
- **Case number:** Criminal Appeal No. 535 of 2009
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/8-s-c-r-916-mohd-ayub-dar-v-state-of-j-k-26815
- **Pages:** 36

## Headnote

A
B
(2010] 8 S.C.R. 916
MOHD. AYUB DAR
V.
STATE OF J & K
(Criminal Appeal No. 535 of 2009)
JULY 21, 2010
[V.S. SIRPURKAR AND DR. MUKUNDAKAM SHARMA,
JJ.]
Ranbir Penal Code, Samvat 1989 (AD 1932) - ss. 302
C and 1208 r/w s. 3(3) of TADA Act - Conviction under - By
designated court - On appeal, held: Conviction is justified -
Prosecution was able to prove the homicidal death - The
confession made by the accused was voluntary and truthful
and hence reliable - The confessional statement was also
D corroborated by oral and documentary evidence - Once
confession made uls. 15 of TADA Act is accepted, no other
evidence is required - Terrorist and Disruptive Activities
(Prevention) Act, 1987 - ss. 3(3) and 15.
E
F
G
H
Terrorist and Disruptive Activities (Prevention) Act, 1987:
s. 15 - Confessional statement under - Held: Can be
used for proving non-TADA offences - Ranbir Penal Code,,
Samvat 1989 - ss. 302 and 1208.
s. 15 - Confessional Statement under - Evidentiary
value - Need for corroboration - Held: If the confession is
voluntary and truthful and relates to accused himself, no
corroboration necessary - Conviction can be solely based on
it.
J & K .Code of Criminal Procedure, Samvat 1989 (AD
1933) - s. 374 - Applicability of - Conviction of accused for
the offences under TADA Act and RPC, by designated court
- Life imprisonment - Appeal to Supreme Court without
confirmation of the order of imprisonment by High Court -
916
MOHD. AYUB DAR v. STATE OF J & K
917
Power of Supreme Court to look into legality of life
A
imprisonment in view of s. 374 - Held: In view of ss. 2(b), 14,
19 and 25 of TADA Act, for the trial before designated court,
Cr.P.C., 1973 is applicable and not Cr.P.C., Samvat 1989 -
Thus, s. 374 is not applicable - Therefore, Supreme Court
can look into the legality of life imprisonment - Terrorists and
B
Disruptive Activities (Prevention) Act, 1987 - ss. 2(b), 14(3),
19' and 25 - Ranbir Penal Code, Sam vat 1989 - ss. 302 and
120 B.
Appellant-accused, alongwith four other accused
C
persons, was prosecuted uls. 3 (3) of Terrorist and
Disruptive Activities (Prevention) Act, 1987 and u/s. 3o2
and 1208 of Ranbir Penal Code, Samvat 1989. As per the
prosecution
case,
two terrorist groups were
apprehensive that the deceased would assume political
leadership of Kashmir and that he was an agent of Indian
D
Government. The accused pe_!§ons, who were members
of one of the militant groups, entered. into a criminal
conspiracy to eliminate the deceased. On the fateful day,
the appellant-accused alongwith two of the accused went
to the office of the deceased. One of the other two
E
accused fired at the deceased, while the other, accused
fired in the air. Thereafter the three accused as per the
direction of their head went underground. The appellantaccused was arrested in Delhi in some other case.
Thereafter, he was arrested in the instant case. In his
F
statement u/s. 15 of the TADA Act, made before PW-2, he
confessed his crime and the involvement of other
accused persons. The post-mortem of the dead body
could not be carried out as a very serious law and order
situation arose due to death of the deceased and on the
G
demand of the followers of the deceased, the dead-body
was handed over to them without the post-mortem being
carried out.
Two of the assailants died during pendency of the
H
918
SUPREME COURT REPORTS
[2010) 8 S.C.R.
A trial, while the other two were untraceable. Appellantaccused alone came to be charged. The designated court,
relying on the evidence of the witnesses and the
confessional statement of the appellant-accused,
convicted him u/s. 3(3) of TADA Act and u/s. 302 of RPC
B and sentenced him to life imprisonment and fine with
default stipulation. The instant appeal was filed against
the order of the designated court by the accused.
Dismissing the appeal, the Court
C
HELD: 1. It is not correct to say that the life
imprisonment ordered by the trial court was liable to be
confirmed by the High Court and the same having not

## Text

_Characters 0–39,885 of 72,655. This is a partial read: ask again with offset=39885 for what follows._

A
B
(2010] 8 S.C.R. 916
MOHD. AYUB DAR
V.
STATE OF J & K
(Criminal Appeal No. 535 of 2009)
JULY 21, 2010
[V.S. SIRPURKAR AND DR. MUKUNDAKAM SHARMA,
JJ.]
Ranbir Penal Code, Samvat 1989 (AD 1932) - ss. 302
C and 1208 r/w s. 3(3) of TADA Act - Conviction under - By
designated court - On appeal, held: Conviction is justified -
Prosecution was able to prove the homicidal death - The
confession made by the accused was voluntary and truthful
and hence reliable - The confessional statement was also
D corroborated by oral and documentary evidence - Once
confession made uls. 15 of TADA Act is accepted, no other
evidence is required - Terrorist and Disruptive Activities
(Prevention) Act, 1987 - ss. 3(3) and 15.
E
F
G
H
Terrorist and Disruptive Activities (Prevention) Act, 1987:
s. 15 - Confessional statement under - Held: Can be
used for proving non-TADA offences - Ranbir Penal Code,,
Samvat 1989 - ss. 302 and 1208.
s. 15 - Confessional Statement under - Evidentiary
value - Need for corroboration - Held: If the confession is
voluntary and truthful and relates to accused himself, no
corroboration necessary - Conviction can be solely based on
it.
J & K .Code of Criminal Procedure, Samvat 1989 (AD
1933) - s. 374 - Applicability of - Conviction of accused for
the offences under TADA Act and RPC, by designated court
- Life imprisonment - Appeal to Supreme Court without
confirmation of the order of imprisonment by High Court -
916
MOHD. AYUB DAR v. STATE OF J & K
917
Power of Supreme Court to look into legality of life
A
imprisonment in view of s. 374 - Held: In view of ss. 2(b), 14,
19 and 25 of TADA Act, for the trial before designated court,
Cr.P.C., 1973 is applicable and not Cr.P.C., Samvat 1989 -
Thus, s. 374 is not applicable - Therefore, Supreme Court
can look into the legality of life imprisonment - Terrorists and
B
Disruptive Activities (Prevention) Act, 1987 - ss. 2(b), 14(3),
19' and 25 - Ranbir Penal Code, Sam vat 1989 - ss. 302 and
120 B.
Appellant-accused, alongwith four other accused
C
persons, was prosecuted uls. 3 (3) of Terrorist and
Disruptive Activities (Prevention) Act, 1987 and u/s. 3o2
and 1208 of Ranbir Penal Code, Samvat 1989. As per the
prosecution
case,
two terrorist groups were
apprehensive that the deceased would assume political
leadership of Kashmir and that he was an agent of Indian
D
Government. The accused pe_!§ons, who were members
of one of the militant groups, entered. into a criminal
conspiracy to eliminate the deceased. On the fateful day,
the appellant-accused alongwith two of the accused went
to the office of the deceased. One of the other two
E
accused fired at the deceased, while the other, accused
fired in the air. Thereafter the three accused as per the
direction of their head went underground. The appellantaccused was arrested in Delhi in some other case.
Thereafter, he was arrested in the instant case. In his
F
statement u/s. 15 of the TADA Act, made before PW-2, he
confessed his crime and the involvement of other
accused persons. The post-mortem of the dead body
could not be carried out as a very serious law and order
situation arose due to death of the deceased and on the
G
demand of the followers of the deceased, the dead-body
was handed over to them without the post-mortem being
carried out.
Two of the assailants died during pendency of the
H
918
SUPREME COURT REPORTS
[2010) 8 S.C.R.
A trial, while the other two were untraceable. Appellantaccused alone came to be charged. The designated court,
relying on the evidence of the witnesses and the
confessional statement of the appellant-accused,
convicted him u/s. 3(3) of TADA Act and u/s. 302 of RPC
B and sentenced him to life imprisonment and fine with
default stipulation. The instant appeal was filed against
the order of the designated court by the accused.
Dismissing the appeal, the Court
C
HELD: 1. It is not correct to say that the life
imprisonment ordered by the trial court was liable to be
confirmed by the High Court and the same having not
been done, this Court could not look into the question
of legality of the life imprisonment because u/s. 374 of
D Cr.P.C., Samvat 1989, as applicable to Jammu and
Kashmir, even if a life imprisonment ordered by the court
is that State is required to be confirmed, it is specifically
provided in Section 14(3) of the Terrorist and Disruptive
Activities (Prevention) Act that the designated court shall,
E for the purpose of trial of any offence, have all the powers
of a Court of Session and shall try such offences as if it
were the Court of Session so far as may be in
accordance with the procedure prescribed in the Code
for the trial before the Court of Session. The word "Code"
F as defined u/s. 2(b) of the TADA Act, means the Code of
Criminal Procedure, 1973. Therefore, it is clear that the
trial has to be conducted in accordance with the Cr.P.C.,
1973 and not in accordance with the Cr.P.C., Samvat 1989
as applicable to the State of Jammu and Kashmir. Under
G Section 19(1) of the TADA Act, an appeal is provided
against the judgment, sentence or order, not being an
interlocutory order by a designated court to the Supreme
Court of India. Sub-section (2) thereof provides .that,
except the cases mentioned under sub-section (1), no
appeal or revision shall lie to any court from any
H
MOHD. AYUB DAR v. STATE OF J & K
919
judgment, sentence or order including an interlocutory A
order of a designated court. Section 25 of the TADA Act
provides that the provisions of the TADA Act or any Rule
thereunder or any order made under any such rule shall
have effect notwithstanding anything inconsistent
therewith contained in any enactment other than the B
TADA Act or in any instrument having effect by virtue of
any enactment other than this Act. In view of these
provisions there will be no question of applicability of
Section 374 of Cr.P.C., Samvat 1989. [Para 10] [930-A-H]
2 .1. It is not correct to say that de hors the /c
confession of the accused, the prosecution has not been
able to prove that the accused/appellant was one of the
accused persons present alongwith the other accused
persons who had fired at the deceased. The prosecution
has certainly been able to prove homicidal death of the D
deceased by being shot at. True it is that no post mortem
was conducted, however, prosecution has given proper
explanation that the post mortem could not have been
conducted due to angry public reaction. However, inspite of that, there is good evidence to suggest that the E
deceased died of the bullet injuries almost immediately
}
after he was fired. All this could not have been possible
unless the assailants had entered into conspiracy to
murder the deceased. It was in pursuance of that
conspiracy alone that the assailants entered the chamber
F
of the deceased and fired at him. Seeing the prosecution
evidence as it is, if all the three accused came together
and approached the chamber of the deceased and one
of them fired at him, there will be no question of only the
individual liability. Therefore, the trial court was right in G
convicting the accused u/s. 3 (3) of the TADA Act. [Paras
17 and 18] [936-B, F-H; 937-A-D]
2.2. Whether the appellant/accused was one of the
assailants, could have been proved by direct evidence H
920
SUPREME COURT REPORTS
[2010] 8 S.C.R.
A firstly or· alternatively or in addition to it, by the
confessional statement recorded uls. 15 of the TADA Act.
If the confessional statement stands the acid test on
credibility, voluntariness and truthfulness, then that
would be sufficient to pin the guilt of the accused. [Para
B 18] [937 -D-F]
2.3. If the confession made by the accused is
voluntary and truthful and relates to the accused himself,
then no further corroboration is necessary and a
conviction of the accused can be solely based on it. Such
C confessional statement is admissible as a substantive
piece of evidence. The said confession need not be
tested for the contradictions to be found in the
confession of the co-accused. It is for that reason that
even if the other oral evidence goes counter to the
D statements made in the confession, the confession can
be found to be voluntary and reliable and it can become
the basis of the conviction. In the instant case, there is
ample corroboration to the confession in the oral
evidence as well as the documentary evidence in shape
E of a chit, which is referred to in the said confession. [Para
27] [945-B-D]
S.N. Dube vs. N.B. Bhoir and Ors. 2000 (2) SCC 254;
Ravinder Singh alias Bittu vs. State of Maharashtra 2002 (9)
F sec 55, relied on.
Lakeman Shah and Anr. vs. State of WB. etc. etc. 2001
(5) SCC 235; Abdulvahab Abdul Majid Shaikh and Ors. vs.
State of Gujarat etc. etc. 2007 (9) SCC 293, referred to.
G
2.4. The only test which the court has to apply is
whether the confession was voluntary and free of
coercion, threat or inducement and whether sufficient
caution is taken by the police officer who recorded the
confession. Once the confession passes that test, it can
H become the basis of the conviction. The confession in the
MOHD. AYUB DAR v. STATE OF J & K
921
instant case was free from all the aforementioned defects
A
and was voluntary. It was properly recorded and it was
also recorded in the free atmosphere, as PW-2 the Police
Officer who recorded the confession had given sufficient
time to the accused for the reflection. The accused had
also at no point of time complained regarding any B
coercion to any authority. The de.fence, as is apparent
from examination of the appellant-accused u/s. 313
er.P.e., 1973 is that he had not given any statement at
all. [Paras 24 and 28) [946-E-F; 942-E-G]
c
Kartar Singh vs. State of Punjab 1994 (3) sec 569,
followed.
State (NCT of Delhi) vs. Navjot Sandhu @ Afsan Guru
etc. etc. 2005 (11) sec 600, relied on.
Mohd. Ayubdhar and Anr. vs. State of NCT of Delhi 2000
(10) SCC 296; Prakash Kumar@ Prakash Bhutto vs. State
of Gujarat 2007 (4) SCC 266; Abdulvahab Abdul Majid
Shaikh and Ors. vs. State of Gujarat etc. etc. 2007 (9) SCC
293, distinguished.
State through Superintendent of Police, CBI/SIT vs.
Nalini and Ors. 1999 (5) sec 253; Lakeman Shah and Anr.
vs. State of WB. etc .. etc. 2001 (5) SCC 235; Abdulvahab
Abdul Majid Shaikh and Ors. vs. State of Gujarat etc. etc.
2007 (9) sec 293, referred to.
D
E
F
2.5. The appellant on one hand has chosen to rely
upon a part of the confession and or. the other hand, he
asserts that he had, at no p~int. of time, made any
confessional statement. This shows the hollowness of G
defence on the part of the appellant. The confession was
indeed made by the appellant and the details given in the
confession and the meticulous planning that went behind
committing murder of the deceased which has been
H
922
SUPREME COURT REPORTS
[2010] 8 S.C.R.
A
reflected in the confession, not only render it voluntary,
but truthful also. This confession is not only a good,
voluntary and truthful confession but a reliable one also
and the trial court has committed no mistake whatsoever
in relying upon the said confession. Once the confession
s made u/s. 15 of the TADA Act is accepted, there is no
necessity of any other evidence being required. The way
the appellant himself has worked for the success of the
conspiracy, the way he has handled the guns and
~i::companied two other assailants to the house of the
c deceased and the manner in which the plan was
executed convinces that the order is absolutely correct.
[Paras 32 and 33] [950-D-H; 951-A-C]
2.6. The whole cross-examination does not dent the
case of the prosecution and it can be inferred that the
D criticism against the confession that it was not recorded
in the language of the accused is not justified. There is
absolutely no effort made by the defence to establish that
the statement was not made in the language of the
accused persons. The confession also cannot be foiled
E on the ground that the original confessional statement
was not on record as the original confession was very
much available on the record. [Para 21] [940-D-F]
2.7. The failure to examine two-persons ('GS' and
F
'GQ) as witnesses, would be of no consequence looking
at the overall evidence of the witnesses, more particularly,
·all those who were present at the spot. It cannot be
gathered that 'GS' was present at the time of incident.
Insofar as the evidence of 'GQ' is concerned, it was
G pointed out by PW-17 that said person was already dead
at the time of trial. [Para 22] [940-G-H; 941-A-B]
H
3. It is not correct to say that the confession u/s. 15
of TADA Act could have been used only against the
TADA Act offences and it c;>.iinot be used for a Non-TADA
MOHD. AYUB DAR v. STATE OF J & K
923
offence like Section 302 of the RPC and it could not even A
be read in order to prove the said offence. The facts
relating to Section 3(3) of the TADA Act and the facts
relating to Section 302 of RPC are completely inter-mixed
in this matter. They are the part of the same transaction.
A plain reading of the confession clearly goes to show B
that the accused was guilty of conspiring or attempting
to commit or advocating, abetting, advising or inciting or
knowingly facilitating, the commission of a terrorist act or
any act preparatory to a terrorist act. The act of killing the
deceased comes within the definition of 'terrorist act' as c
given in Section 2 (h) r/w. Section 3(1) of the TADA Act.
[Para 30] [947-A-E]
Kartar Singh vs. State of Punjab 1994 (3) SCC 569,
followed.
Case Law Reference:
2000 (1 O) sec 296
distinguished.
Para 23
2001 (4) sec 266
distinguished.
Para 23
2001 (9) sec 293
distinguished.
Para 23
referred to.
Para 27
1994 (3) sec 569
followed.
Para 24
2005 (11) sec 60o
relied on.
Para 25
1999 (5) sec 253
referred to.
Para 26
2000 (2) sec 254
relied 011.
Para 27
2002 (9) sec 55
·relied on.
Para 27
2001 (5) sec 235
referred to.
Para 27
CRIMINAL AP PELLA TE JURISDICTION : Criminal Appeal
No. 535 of 2009.
D
E
F
G
H
924
SUPREME COURT REPORTS
[2010] 8 S.C.R.
A
From the Judgment & Order dated 7.3.2009 of the 3rd
Additional Sessions Judge, Jammu (Designated Court under
TADA) in File No. 101/Ch.
Sushi! Kumar, Aditya Kumar, Amit Kumar Sharma, E.C.
B
Agrawala for the Appellant.
c
H.P. Rawal, ASG, A. Mariarputham, Ranjana Narayan,
P.K. Dey, A.K. Sharma, Shail Kumar Bhat, B. Krishna Prasad,
Anis Suhrawardy, S. Mehndi Imam, Tabrez Ahmad, Mohd,
Parvez Dabas for the Respondent.
The Judgment of the Court was delivered by
V. S. SIRPURKAR, J. 1. Appellant Mohd. Ayub Dar S/o
Abdul Ahad - Original accused no.1 challenges his conviction
for the offence punishable under Section 3 (3) of the Terrorist
D
and Disruptive Activities (Prevention) Act, 1987 (In short 'TADA
ACT"), as also for the offence punishable under Section 302
of the RPC. Originally, the five accused persons were tried in
respect of murder of Mirwaiz Moulvi Farooq, which took place
on 21.5.1990, at about 11 O'clock in the morning. Accused
E
no. 2 Abdul Rehman Shigan and accused no.3 Abdulla
Bangroo expired during pendency of the trial, while the other
two accused persons namely Javed Ahmed Bhat @ Ajmal Khan
@ Ditta s/o. Habibulla Bhat and Zahoor Ahmed @ Bilal @
Zana were untraceable. Thus, out of the five accused persons,
F
we are concerned only with accused no.1 (appellant herein)
Mohd. Ayub Dar S/o Abdul Ahad.
2. It so happened that on 21.5.1990, at about 11 O' clock
in the morning, three unknown terrorists entered into the house
G
of Mirwaiz Moulvi Farooq with the intention of killing him and
Moulvi Farooq was severely injured by gun-shot. He, ultimately,
succumbed to the injuries in Soura Hospital, Srinagar, and,
therefore, the offence registered u/s. 307 of the RPC originally
was converted into the offence u/s. 302 of the RPC on the same
H
day. The initial investigation was done by Police Station,
MOHD. AYUB DAR v. STATE OF J & K
925
[V.S. SIRPURKAR, J.]
Nageen, which was thereafter transferred to yBI under the A
orders of the Government of India vide Notification No.228/3/
90-AVD.11, dated 11.06.90. The house of Moulvi Farooq was
in New Colony, Nageen, Shrinagar, known as 'Mirwaiz Manzif,
wherein one small doubled storeyed building was constructed
for the purpose of residential Office of Mirwaiz. This small Office
B
had two rooms on the ground floor and one big hall on the first
floor. In one of the two rooms; on the ground floor, the Personal
Assistant of Mirwaiz Moulvi Farooq used to sit and the second
room was adjacent to the said room, which had office of
Mirwaiz Moulvi Farooq. The entrance to the Office of Mirwaiz c
Moulvi Farooq was from the room of his Personal Assistant.
3. It was the prosecution case that, due to popularity of
Mirwaiz Moulvi Farooq, two terrorists outfits namely Jamt-elslami in genera'! and Hizbul-Mujahideen in particular were
apprehensive that Moulvi Farooq would eventually assume D
political leadership of Kashmir. They also viewed him as an
agent of Government of India working against the interests of
militant groups. Therefore, in the year 1990 itself, in the month
of April, accused Abdulla Bangroo, Javed Ahmed Bhat @
Ajmal Khan @ Bitta and Mohd. Ayub Dar @ lshfaq - present E
appellant, who belong to Hizbul Mujahideen, .entered into a
criminal conspiracy to eliminate Mirwaiz Moulvi Farooq.
Accused Abdulla Bangroo, who was then heading Hizbul
Mujahideen, instructed Javed Ahmed Bhat@ Ajmal Khan and
Mohd. Ayub Dar@ lshfaq - present appellant to plan elimination
F
of Mirwaiz Moulvi Farooq. Javed Ahmed Bhat @ Ajmal Khan
was then working as an Area Commander of HizbulMujahideen in the downtown area of Srinagar; whereas the
appellanUaccused was working as a Group Commander in that
very area. Later on, Abdul Rehman Shigan@ lnayat and Zahoor G
Ahmed @ Bilal @Zana also joined the conspiracy. It came out
in the investigation that, in the second week of May, 1990, under
the instructions of Javed Ahmed Bhat @ Ajmal Khan, Mohd.
Ayub Dar @ lshfaq - present appellant and Abdul Rehman
Shigan @ lnayat had visited the residence of Moulvi Farooq
H
926
SUPREME COURT REPORTS
[2010] 8 S.C.R.
A
at Nageen, Srinagar and had requested him for financial help
to their militant organization i.e. Hrzbul Mujahideen. Moulvi
Farooq had agreed to help them and had asked them to meet
after 2/3 days during the morning hours. Thereafter, two
accused surveyed the area as per their plan and informed the
B
details to Javed Ahmed Bhat @ Ajmal Khan. It was on
21.05.1990 that the three accused namely Mohd Ayub Dar@
lshfaq (present appellant}, Abdul Rehman Shingan @ lnayat
and Zahoor Ahmed @ Bilal @ Zana armed with loaded pistol
visited the 'Mirwaiz Manzi!' at Nageen. Accused Javed Ahmed
c Bhat @ Bilal had instructed the appellant that, out of the three
accused persons, Zahoor Ahmed @ Bilal would fire on Moulvi
Farooq and the remaining two accused persons namely Ayub
Dar i.e. present appellant and Abdul Rehman Shingan were to
provide cover to Zahoor Ahmed @ Bilal. As per the plan, they
D
all reached the gate of Mirwaiz Manzi! and met Maqbool Shah,
the gate-keeper (PW-16) and informed him that they wanted
to meet Moulvi Farooq. Maqbool Shah (PW-16) then asked
Gulam Qadir Sofi, the gardener, to take them to the Personal
Assistant as he himself was going to the market. Accordingly,
the gardener - Gu lam Qadir Sofi took the three to the Personal
E
Assistant namely Saidur Rehman (PW-17), who asked them
about their names and one of them disclosed his fake name
as Guizar Farooq r/o. Batmaloo. That name was written by the
Personal Assistant on a slip of paper and the said slip was sent
inside the room of Moulvi Farooq through the gardener Gulam
F
Qadir Sofi. After sometime, Moulvi Farooq called the three
accused inside the Office, on which Zahoor Ahmed @ Bilal
entered the room. of Moulvi F arooq and the remaining two
accused persons including the present appellant took up
position in the PA's room. On entering the room of Moulvi
G
Farooq, Zahoor Ahmed @ Bilal fired several rounds on Moulvi
Farooq from his pistol and immediately, accused lnayat also
fired from his pistol in the air while coming out of PA's room,
which hit the outside wall of the Office. On hearing the sound
of firing, the gardener came inside the Office and tried to catch
H
MOHD. AYUB DAR v. STATE OF J & K
927
[V.S. SIRPURKAR, J.]
hold of lshfaq, who was trying to escape. However, all the
A
accused persons escaped giving a push to the Gardener
Gulam Qadir Sofi. Accused Bilal also tried to run away, but he
was caught by Gu lam Qadir Sofi. There was a scuffle between
the two, in which Bilal sustained an injury below his right eye.
Later, after firing one round from his pistol, Bilal also managed
B
to escape. The accused persons ran towards Kashmir
University, who were followed by Gulam Qadir Sofi upto the
main road and near the University Gate, the assailants ran
towards Soura through the University compound and reached
Chhatargaon in the afternoon of 21.05.1990. They then reported c
killing of Moulvi Farooq to Abdulla Bangroo and Ajmal Khan.
All the three accused persons were directed by Abdulla
Bangroo and Ajmal Khan to go underground for sometime.
4. The prosecution urged that appellant Mohd Ayub Dar
@ lshfaq had visited Pakistan, where he was trained in the
D
handling of firearms and explosives. He was involved in a
number of other terrorists' cases and was arrested in Delhi by
the Delhi Police on 6.5.1991. He was further arrested in the
present case on 15.6.1991 by CBI. When his statement was
recorded u/s. 15 of the TADA Act, he confessed the aforesaid
E
crime and disclosed the names of other two assailants namely
Abdul Rehman Sigan @ lnayat and Zahoor Ahmed @ Bilal. He
also confessed regarding involvement of accused Abdulla
Bangroo and Ajmal Khan in the crime.
5. Accused Abdul Rehman Singan @ lnayat, who was in
the judicial custody in a case of CID, Srinagar, was also
arrested in this case on 20.9.1990. He also confessed the guilt
and corroborated the statement made by the present appellant.
F
6. After he was fired, injured Mirwaiz Moulvi Farooq was
G
removed to Sher-e-Kashmir Institute of Medical Sciences,
Soura by Manzoor Ahmed and Saffad Ahmed, who were his
brothers-in-law and Nazir Ahmed Dar, a servant. He was
examined by Dr. Abdul Mazid and was immediately operated
thereupon. Dr. Afzak Wani, Head of the Department of
H
928
SUPREME COURT REPORTS
[2010] 8 S.C.R.
A
Neurosurgery, Institute of Medical Sciences, Soura was also
consulted. But, at about 12.30 P.M., Mirwaiz Moulvi Farooq
succumbed to the injuries in the hospital. Injury Report was
prepared by Dr. Abdul Mazid. However, post mortem on the
dead body could not be carried out as a very serious law and
B
order situation ensued owing to death of Moulvi Farooq. A
huge mob got collected at the spot and they demanded that
the dead body of deceased be handed over to them without
the post-mortem being carried out. The dead body was,
ultimately handed over to the followers of Moulvi Farooq and
c the last rites were performed on the next day. His wearing
apparels were seized and were referred to the Central Forensic
Science Laboratory (C.F.S.l.) along with the bullets and empty
cartridges seized from the place of occurrence. The C.F.S.L.
opined that the wearing apparels were having holes
D corresponding to the injuries of the deceased. It was further
opined that the empty fired cartridges which were seized, as
also the bullets seized from the place of occurrence were fired
from two types of small arms. The facts suggested that the
present accused/appellant and Abdul Rehman Shigan @ lnayat
had committed an offence u/s. 302 r/w. section 34 of the RPC,
E
while the other accused persons namely Abdulla Bangroo @
Khalid, Javed Ahmed Bhat @ Ajmal Khan along with Mohd.
Ayub Dar@ lshfaq (present appellant) and Zahoor Ahmed @
Bilal @ Zana and Abdul Rehman Shigan @ lnayat had
committed an offence under Section 3 (3) of the TADA Act,
F
1987.
7. Under the above circumstances, the appellant/accused
alone came to be charged. About 24 witnesses came to be
examined and the confessional statement recorded by A. K.
G Suri (PW-2), who was then working as S.P., CBI, came to be
relied upon by the prosecution. The statement came to be
recorded on 27.6.1991 after the accused/appellant was brought
from Delhi to Srinagar.
8. The trial Court considered the evidence of all the
H
MOHD. AYUB DAR v. STATE OF J & K
929
[V.S. SIRPURKAR, J.]
witnesses individually. The Court also took notice of the
A
argument that copy of the First Information Report was not sent
to the Court and came to the conclusion that the contention
raised by the defence was not correct. The Court further came
to the conclusion that there was nothing suspicious regarding
non-sending of the First Information Report. The trial Court also
rejected the argument of the defence that there were
inconsistencies and contradictions in the evidence of
prosecution witnesses inter-se. It pointed out that the minor
discrepancies could not and did not matter in this case. It was,
B
in fact, observed that the defence was not able to point out any c
material contradiction in the evidence of witnesses during the
course of arguments. The trial Court came to the conclusion
that non-performance of post-mortem did not matter as it was
clear that Moulvi Farooq died due to gun-shot injuries. In fact,
the trial Court accepted the evidence of Dr. Mohd. Afzal Wani
0
(PW-6). Ultimately, the trial Court also accepted the confession
given by the appellant. Relying upon the evidence, the trial Court
convicted the accused/appellant for the offence u/s. 3 (3) of the
TADA Act and u/s. 302 of the RPC. After hearing the accused
person on the question of sentence, the trial Court awarded
imprisonment for life with a fine of Rs.6,000/- and in default of
E
payment of fine, the appellant was directed to suffer further
imprisonment for six months for the offence u/s. 302 of the
RPC. The appellant is also sentenced to undergo imprisonment
for a period of five years and to pay a fine of Rs.5,000/- u/s.
3(3) of the TADA Act. In default of making the payment of fine,
the accused was directed to undergo imprisonment for six
months.
9. Lastly, the trial Court, following Section 374 of the J &
F
K Code of Criminal Procedure, 1989, ordered that the
G
imprisonment for life would be subject to confirmation by this
Court since this Court is the appellate Court. It is this judgment
which is being challenged before us.
10. Shri Sushil Kumar, learned Senior Counsel, initially
H
930
SUPREME COURT REPORTS
[2010] 8 S.C.R.
A raised a preliminary argument to the effect that the life
imprisonment ordered by the trial Court was liable to be
confirmed by the High Court and the same not having been
done, this Court could not look into the question of legality of
the life imprisonment. The argument is based on Section 374
B of the Criminal Procedure Code as applicable in the State of
Jammu and Kashmir, under which even a life imprisonment
ordered by the Court in that State is required to be confirmed.
The argument is, however, not correct inasmuch as it is
specifically provided in Section 14 (3) of the TADA Act that the
c Designated Court shall, for the purpose of trial of any offence,
have all the powers of a Court of Session and shall try such
offences as if it were the Court of Session so far as may be in
accordance with the procedure prescribed in the Code for the
trial before the Court of Session. The word "Code" is defined
D u/s. 2 (b) of the TADA Act, wherein is it provided that the word
"Code" means the Code of Criminal Procedure, 1973 (2 of
1974). Therefore, it is clear that the trial has to be conducted
in accordance with the Criminal Procedure Code, 1973 and not
in accordance with the Criminal Procedure Code as applicable
to the State of Jammu and Kashmir. U/s. 19 (1) of the TADA
E Act, an appeal is provided against the judgment, sentence or
order, not being an interlocutory order by a Designated Court
to the Supreme Court of India. Sub-section (2) thereof provides
that, except the cases mentioned under sub-section (1 ), no
appeal or revision shall lie to any Court from any judgment,
F sentence or order including an interlocutory order of a
Designated Court. Section 25 of the TADA Act provides that
the provisions of the TADA Act or any Rule thereunder or any
order made under any such rule shall have effect
notwithstanding anything inconsistent therewith contained in any
G enactment other than the TADA Act or in any instrument having
effect by virtue of any enactment other than this Act. In view of
these provisions on which Mr. Rawal, the learned Additional
Solicitor General of CBI, relies upon, there will be no question
of applicability of Section 374 of the Criminal Procedure Code
H as applicable to the State of Jammu and Kashmir. Realizing
MOHD. AYUB DAR v. STATE OF J & K
931
[V.S. SIRPURKAR, J.]
this, Shri Sushil Kumar, learned Senior Counsel did not
A
seriously press this objection, though considerable arguments
were tendered before the Court earlier. In that view of the
matter, the first question raised by learned Senior Counsel Shri
Sushil Kumar is decided against the defence.
B
11. The main thrust of the argument of the learned Senior
Counsel appearing on behalf of the appellant was that the
prosecution has failed to prove the offence u/s. 302 of the RPC
independently of the confession. It was urged that, if the
confession is ignored, then there would remain no material to
C
involve the accused. It is pointed out that the accused also stood
convicted for the offence u/s. 3 (3) of the TADA Act, wherein
he was awarded a punishment of five years and to pay a fine
of Rs.5,000/- in default to suffer further imprisonment for six
months. It is pointed out that the accused had already served
out the sentence of five years. The learned Senior Counsel,
therefore, did not seriously challenge his conviction u/s. 3 (3)
of the TADA Act and instead, concentrated on the conviction
for the offence u/s. 302 of the RPC. It was pointed out to us
D
that there was no material to hold that the accused ever
conspired or was a part of conspiracy to commit murder of
E ·
Moulvi Farooq. The learned Senior Counsel urged that there
was practically no evidence and the oral evidence tendered on
behalf of the prosecution to prove the guilt of the appellant for
both the offences was hopelessly vague and could not have
been relied upon by the trial Court to convict the appellant0f
F
both the offences. The learned Senior Counsel took us through
the evidence of prosecution witnesses and urged that the
evidence of the witnesses is wholly unreliable and took the
prosecution nowhere. By way of additional submission, the
learned Senior Counsel urged that the trial Court erred in relying
G
upon the confession recorded by A. K. Suri (PW-2) as the said
confession could not have been accepted to be a genuine
confession. It was urged that the said confession was neither
in the language of the accused nor the accused had ever made
any such confession, much less before the witness. It was then
H
932
SUPREME COURT REPORTS
[2010] 8 S.C.R.
A pointed out that the original of the Confession made was also
not available nor was placed before the Court. It was further
suggested that the oral evidence runs counter to the statement
made in the confession and therefore, the confession was
untrustworthy.
B
12. Before considering the confession allegedly made by
the appellant, we would take the stock of criticism made against
the oral evidence. But even before that, to put the record
straight, we would choose to place the clear-cut language of
Section 3 (3) of the TADA Act, for which the appellant stands
C convicted. Section 3, sub section (3) of the TADA Act provides
as under:
"whoever conspires or attempts to commit, or advocates,
abets, advises or incites or knowingly facilitates the
D
commission of, a terrorist act or any act preparatory to a
terrorist act, shall be punishable with imprisonment for a
term which shall not be less than five years but which may
extend to imprisonment for life and shall also be liable to
fine."
E
13. We have carefully examined the appeal memo filed u/
s. 19 of the TADA Act. Very strangely, we do not find any
challenge to the conviction u/s. 3 (3) of the TADA Act. All
through, the challenge is to the conviction for the offence u/s.
302, as also to Section 120-B r/w. Section 3 of the RPC.
F Conviction u/s. 3(3) of the TADA Act was not seriously
challenged by Shri Sushi! Kumar, learned Senior Counsel;
perhaps, because the accused has already suffered more than
five years of imprisonment, which was the sentence awarded
to him for that offence.
G
14. It is in the backdrop of this factual situation that the oral
evidence would have to be considered.
15. It was not seriously contested that Moulvi Farooq died
H of bullet injuries and that this was a case of homicidal death.
MOHD. AYUB DAR v. STATE OF J & K
933
[VS. SIRPURKAR, J.]
The first relevant witness amongst those who were present at
A
the time of incident is Nazir Ahmed Dar S/o Mohd. Abdulla Dar
(PW-11 ). He was a family servant in the house of Moulvi Shafat,
who was the brother-in-law of Moulvi Farooq. He heard the
sound of fire and went to see as to whether the sound of fire
had come. He saw two persons jumping from the southern wall
of Moulvi Farooq and going towards the southern side. He
helped in arranging a vehicle and admitting Moulvi Farooq in
the hospital. He was declared hostile as far as he failed to
identify the accused. However, he admitted that he did not
remember whether even the third person had also jumped from
the wall. He also did not remember whether he has given
description of the first man whom he saw jumping over the wall.
He categorically suggested that the accused person in the
Court was not there. His evidence is, therefore, of no
consequence for the prosecution. The evidence of Zahid Ali
Lone (PW-13), S/o Habib-ullah Lone, an Advocate by
profession, is also of no consequence as he refused to even
identify the accused and asserted that he did not see the
accused. Mohd. Yasin s/o. Misri Khan (PW-14) was on the
guard duty at the bungalow of Moulvi Farooq. In his presence,
empty cartridge cover was seized from the courtyard of Moulvi
Farooq by one Gunwant Singh. The witnesses so far
considered by us only go to show that Moulvi Farooq had died
homicidal death due to fire and some three persons had
entered his house on that day, who escaped.
B
c
D
E
F
16. The evidence of Salam-id-Din S/o Mohd. Maqbool
Shah (PW-15) is also of no consequence as he had neither
seen the deceased nor the assailants. He only came to know
about death of Moulvi Farooq. This witness was the Public
Relations Officer of Moulvi Farooq. Mohd. Maqbul Shah S/o
G
Khazir Muhammad Shah (PW-16) was the peon of Moulvi
Farooq, but he was not on the spot when the incident took
place. Much was made of the evidence of this witness that he
had not identified the two persons who had come to Moulvi
Farooq in the morning. However, it is clear that the two persons
H
934
SUPREME COURT REPORTS
[2010] 8 S.C.R.
A that he was speaking about could not have been the accused
persons as they had come at 9 O'clock to Moulvi's place and
it is nobody's case that the accused persons had come at 9
O'clock in the morning. He had acted as a panch witness also.
Saidur Rehman s/o. Amir Din (PW-17) was specifically referred
B by Shri Sushil Kumar, learned Senior Counsel. This witness
was his Public Relations Officer (PRO)-cum-Personal Assistant
(PA). According to him, after the death of Moulvi Farooq, he
continued to work as a P.R.O. of his son Moulvi Umar Farooq.
He claimed that, on the fateful day, his peon informed that three
c persons wanted to meet Moulvi Saheb. They were brought in
and were made to sit in the Office. Their names were asked
and one of them stated his name to be Guizar Farooq. He did
not remember the other two names. He claims that he made
the name slip of Guizar Farooq with his own pen and sent the
0 same to Moulvi Saheb. The said slip (Exhibit D-16) was shown
to him. He identified the same. He also identified his own
signature. According to him, all the three persons went inside.
He was engaged in conversation on telephone. Then he heard
the sound of fire and suddenly the door of Moulvi Saheb's room
opened and those persons fled away. He saw that Moulvi
E Farooq was lying in a pool of blood. He then spoke about
Moulvi Farooq being transfered to the hospital and his death.
He has confirmed that, while fleeing away, he saw a revolver
in the hand of one of the boys. He also confirmed that the peon
Gulam caught hold of one of the men, but he got away while
F fleeing himself. Even this witness has not identified the
accused/appellant in the Court. He specifically contended that,
since the incident was 13 years old, it would be difficult for him
to identify any of the three persons. He specifically stated that
there was nobody amongst them present in the Court. In fact,
G much could have been done by cross-examining this witness
by the prosecution for the reasons unknown. Even that was not
done.
17. Amjad Parvez Munir was examined as PW-18 who
H spoke about the seizures and the panchas. PW-19 is Javaid
MOHD. AYUB DAR v. STATE OF J & K
935
[V.S. SIRPURKAR, J.]
Firdous S/o Alam Din, who is resident of Lucknow and was a
Professor working in the Kashmir University. There is nothing
that he has spoken about the accused. In fact, we do not know
why he was cross-examined. Same is the story about Shafat
Ahmad (PW-20) S/o Late Moulvi Gulam Rasool, who is brotherin-law of de.ceased Late Moulvi Mohd. Farooq. He also did not
see any man, though he heard the noise of fire-shots. His
evidence also would be of no consequence except to prove that
Moulvi Farooq was shot at and that he died in the hospital.
Mohd. Tariq s/o. Gulam Hussain (PW-21) is another witness
who is a witness on seizure of cover of bullet from the spot.
Nothing has come out in his cross-examination. Methlas Kumar
Jha is another witness who is posted as a Dy.S.P. CBI SFC II.
He had acted as an Investigating Officer. He claimed to have
received the FIR copy on 12.6.1990. He spoke about the
murder having been admitted by Hizbul Mujahideen
organisation. He further spoke that Late Abdullah Bangroo,
Ajmal Khan, Bilal, lshfaq i.e. present appellant and Abdul
Rehman Shigan were the accused of murder and that they
entered into conspiracy to kill Moulvi Farooq. He then referred
to the arrest made of the appellant by Delhi Police. He went to
arrest Ayub Dar/present appellant in Delhi and brought him to
Srinagar on police remand. He then asserted that, during the
investigation, Ayub Dar confessed and stated that he wanted
to make statement. He was then produced before the S.P. for
recording his statement. He then confirmed that the statement
was then recorded by the S.P. He identified the accused as
the same person who was arrested and who gave his statement
A
B
c
D
E
F
u/s. 15 of the TADA Act, which was recorded by the S.P. He
pointed out that he also got recorded statement of accused
Abdul Rehman Shigan u/s. 15 of the TADA Act as he was
already arrested in some other case, in pursuance of the
G
request made by accused Abdul Rehman Shigan. He was
extensively cross-examined by the defence. He claimed to have
received the whole file (Exhibit D-2) from Parvaiz Mirza SHO,
P.S. Nageen. He identified the photo copy of FIR which was
written in 19 lines. He also confirmed that the copy of FIR was
H
936
SUPREME COURT REPORTS
(2010] 8 S.C.R.
A sent to the Magistrate. He identified the FIR. Several
inadmissible questions seem to have been asked to this
witness about the statements recorded u/s. 161, which are of
no consequence. However, all that can be said about this
witness is that he went to arrest the accused and produced him
B before the S.P. for recording his statement. There is no question
asked on that aspect.