STATE OF DELHI Vs. MOHD ARIF ALIAS ASHFAQ ALIAS ABU HAMAD
HIGH COURT OF DELHI
MOHD. ARIF ALIAS ASHFAQ ALIAS ABU HAMAD
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P.K.BHASIN, J. -
(1.) India achieved independence from the British Raj on 15th August, 1947. Lal Quila in Delhi, which was built by the Mughal King Shahajahan, till then was under the control of the British Army and after achieving independence the Indian Army took it over and it became a symbol of the British power's defeat and since then every year on 15th of August the Prime Minister of independent India unfurls the Indian tricolour flag and delivers Independence Day speech from the ramparts of Lal Quila. This Quila thus became a place of utmost national importance after independence for every Indian. To protect it from being taken over once again by some foreign power various Units of the Indian Army have since then been occupying the Lal Quila. However, that Lal Quila, which was taken over by the British Army during the war of Independence in 1857 from the last Mughal Emperor Bahadur Shah Zafar and which could then be taken over from the British in August, 1947 by India after so many Indian freedom fighters lost their lives in the long fought struggle for independence from the British Raj, was suddenly attacked by some enemies of peace on the night of 22nd December, 2000 and those people armed with sophisticated arms and ammunition barged into that part of the Lal Quila which during those days was occupied by 7 Rajputana Rifles Unit of the Indian Army and started firing indiscriminately from their AK-56 Rifles and gunned down three jawans who lost their precious lives. It isjm that incident which led to the prosecution of eleven persons whom the police claimed to be the members of a banned militant organisation by the name of Lashker-e-Toiba. Those eleven persons along with many others who, however, could net be arrested were found to have hitched a conspiracy to wage war against the Government of India in order to grab India occupied Kashmir go that it could become a totally Muslim occupied and ruled territory. Out of those eleven accused persons seven were convicted for different effenees while four were acquitted. To one of the convicted accused, namely, Mohd. Arif @ Ashfaq @ Abu Hamad (Appellant in Crl. Appeal No.927 of 2005), death sentence was awarded and for its confirmation a reterence was made to this Court by the trial court under Section 366 Code of Criminal Procedure, 1973. The convicted accused persons filed separate appeals praying for reversal of the judgment of the trial Court The State also filed two appeals, one of which was fer converting the sentence of life imprisonment awarded to two accused persons, namely, Farooq Ahmad Qesid and Nazir Ahmad Qasid(appeilants in Crl. Appeal no. of 944-45 of 2005) to death sentence and the other one was for setting aside the acquittal of the three convicted accused persons, namely, Sadakat Ali(appellant in Crl. Appeal no. 891 of 2005), Rehmana Yusuf Farukhi(appellant In Crl. Appeal no.892 of 2001), and Babar Mohsin Baghwala(appellant in Crl. Appeal No. 946 of 2005 for the offence of conspiracy to wage war against the Government of India and to commit murders of innocent persons. The reference as well as the appeals filed by the convicted accused and the State were heard analogously and the same are now being disposed of by this common judgment.
(2.) The prosecution case as borne out from the trial Court record is that on the night of 22nd December, 2000 at about 9 p.m. some terrorists belonging to a banned militant organisation Lashkar-e-Toiba armed with AK-56 rifles and hand grenades entered the Lal Quila and started firing indiscriminately and gunned down three Army jawans of 7 Rajputana Rifles, When the armymen of Quick Army Reaction Team returned the firing towards the intruders they immediately made good their escape by scaling over the rear side boundary wall of the Lal Quila towards the Ring Road side. It appears that the armymen who had fired at the intruders were conscious of the fact that due to darkness their shots could hit their own jawans also and so they did not fire back indiscriminately and none of their shots hit any of the intruders.
(3.) Information about the incident of firing inside the Lal Quila reached the local police station, i.e. Kotwali police station where that information was recorded vide DD No. 19-A(Ex. PW-15/B) and then Sub-Inspector Rajinder Singh(PW-137) rushed to the spot where he came to know that in the incident of firing two Army jawans had died at the spot itself while the third one had been removed to Army hospital in serious condition. Inspector Roop Lal(PW-234), who was the SHO of Kotwali police station, also reached the spot and he recorded the statement of one Capt. S.P.Patwardhan(PW-189). That statement(Ex. PW-189/A) of Capt. Patwardhan was as under:-
"1. At 21/05 Hrs. on 22 Dec. 2000 I was in my room in the officers mess and heard firing from the general direction of the M.T. On coming out, I learnt the following.
2.Around 21/05 hrs on 22nd December 2000 (Friday) two persons in dark clothing and armed with AK 56/47 Rifles entered the Red Fort from direction of Saleem Garh gate/ Yamuna Bridge. While moving inside they came across a civilian sentry by the name of Abdullah Thakur deployed on duty at 339 (Independent) supply platoon and fired a burst hitting him in the chest and the individual died on the spot. Thereafter the intruders ran and near 7th Raj Rifles MT lines came across Rifleman (barber) Uma Shanker and fired a burst at him due to which the individual died. Thereafter the intruders ran into a room in the unit lines close to the office complex and shot Naik Ashok Kumar, who was seriously injured. The intruders then ran towards ASI Museum complex. They fired in the direction of police guard room located inside the museum. At this stage they were fired upon by the Army quick reaction team. However, intruders escaped into wooded area close to the Ring Road (Mahatma Gandhi Marg). We have recovered some fired/ unfired ammunition which we will produce. The area of Red Fort has been sealed off by the army and search of the area is being carried out. At the same time, Police which had been alerted and has cordoned off the area. This is for your information and legal action please. At the time of firing, I was inside my room in the officers' mess. Sd/- (S.P.PATWARDHAN) CAPTAIN, 7 RAJ RIFLE, RED FORT, DELHI-06." On the basis of this statement of Capt. Patwardhan Inspector Roop Lal got a case registered under Sections 186/353/302/307/34 IPC and Sections 25/27 of the Arms Act at Kotwali police station vide FIR No.688/00(Ex. PW-15/E).;
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