Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 23.01.2012
+ CRL.A. 229/2011, Crl. M. (Bail) 295/2011 & Crl. M.A. 6722/2011
TARIQ MEHMOOD & ANR ..... Appellants
Through : Sh. N.D. Pancholi and Sh. Kahorngam
Zimik, Advocates along with the appellants in person.
+ CRL.A. 281/2011, Crl. M. (Bail) 367/2011 & Crl. M. (Bail) 70/2012
MOHD MUFTI ASRAR ..... Appellant
Through : Ms. Sima Gulati and Sh. Sugam Puri,
Advocates along with appellant in person.
+ CRL.A. 307/2011, Crl. M.A. 2831/2011
ARSHAD KHAN @ ASLAM KHAN @ MASAB ..... Appellant
Through : Proxy counsel (appearance not given) for
Sh. M.S. Khan, Advocate along with the appellant.
+ CRL.A. 986/2011, Crl. M. (Bail) 1388/2011
GHULAM MOHD DAR ..... Appellant
Through : Sh. Vishal Gosain, Advocate along with the
appellant.
versus
STATE ..... Respondent
Through : Sh. Dayan Krishnan, ASC, for the State
along with Sh. Nikhil. A. Menon.
CORAM:
MR. JUSTICE S. RAVINDRA BHAT
MR. JUSTICE S.P. GARG
MR. JUSTICE S.RAVINDRA BHAT
%
1. The present order will dispose of four appeals – Crl. A. 229/2011 –
Tariq Mehmood & Anr. v. State; Crl. A. 307/2011 – Arshad Khan v. State;
Crl. A. 229/2011 , Crl. A. 281/2011 , Crl. A. 307/2011 & Crl. A. 986/2011 Page 1
Crl. A. 281/2011 – Mufti Mohd. Asrar v. State and Crl. A. 986/2011 –
Ghulam Mohd. Dar v. State.
2. All the appellants – Tariq Mehmood and Ishaq Ahmed (in Crl. A.
229/2011), Arshad Khan; Mufti Mohd. Asrar and Ghulam Mohd. Dar were
tried together with several other accused. By common judgment and order
dated 24.12.2010 and 15.01.2011 of Ms. Pinki, learned ASJ/Designated
Court, Saket, New Delhi (which have been challenged in the present
appeals), these accused/appellants were convicted for committing various
offences. These appeals were heard on several dates. During the course of
hearing, the appellant’s counsel submitted that having regard to the nature of
evidence and the fact that the principal accused Abdul Majeed was held
guilty and awarded 10 years sentence for the offence of criminal conspiracy
under Section 120-B IPC, (which was the maximum punishment to him),
was reduced to 8 years Rigorous Imprisonment by this Court, in a previous
order and that the same was to run concurrently with the sentences for the
other offences, it was urged that having regard to the allegations leveled
against these appellants, Tariq Mehmood and Ishaq Ahmed (in Crl. A.
229/2011), Arshad Khan; Mufti Mohd. Asrar and Ghulam Mohd. Dar, and
the findings of the Trial Court, they would not be contesting or pressing for
setting-aside of the conviction. The appellants were also present; they were
present pursuant to production warrants issued by the Court. They concurred
with the statements made on their behalf by the counsel.
3. The prosecution case was that the principal accused Abdul Majeed, in
conspiracy with several others, had plotted committing various subversive
and terrorist acts in India. These included possibility of kidnapping several
Crl. A. 229/2011 , Crl. A. 281/2011 , Crl. A. 307/2011 & Crl. A. 986/2011 Page 2
highly-placed individuals, and also getting some terrorists, who were lodged
in Indian jails, released in bargain. The role attributed to Abdul Majeed was
a prominent one; he is alleged to have purchased a plot with a view to stay in
India to provide hideout to the others, some of whom were from Pakistan
and also to mastermind operations and provide logistic support.
4. Although the present appellants and the other accused, i.e. Abdul
Majeed, Mohd. Amran and Mohd. Ashraf were named in the same First
Information Report (FIR), and also arraigned (charged) along with these
appellants, in view of the fact that some of them pleaded guilty, the order of
conviction and sentence was passed much earlier. In the case of Abdul
Majeed and Mohd. Amran, the conviction was on 30.09.2003. Mohd.
Ashraf’s conviction was on 18.09.2003. These orders were made by the
learned Designated Judge (POTA). The relevant sentences awarded by the
learned Designated Judge(POTA) on 15.10.2003 were noticed by the Trial
Court in the impugned judgment, in the form of a chart. The same is
extracted below:
“XXXXXX XXXXXX XXXXXX
Sr.
No.
Name of
Accused
Convicted U/S Sentence Awarded
1. Abdul Majeed
Mohd. Amran
Mohd. Ashraf
3 (3) of POTA Eight Years RI with
fine of Rs. 15,000/-
each. ID one year RI.
2. Abdul Majeed
Mohd. Amran
Mohd. Ashraf
3 (5) of POTA Five Years RI with
fine of Rs. 25,000/-
each. ID one year RI.
3. Abdul Majeed
Mohd. Amran
Mohd. Ashraf
20 of POTA Five Years RI with
fine of Rs. 10,000/-
each. ID six months
Crl. A. 229/2011 , Crl. A. 281/2011 , Crl. A. 307/2011 & Crl. A. 986/2011 Page 3
RI.
4. Abdul Majeed 3 (6) of POTA Five Years RI with
fine of Rs. 5,000/-.
ID one year RI.
5. Abdul Majeed 4(b) & 5 of
Explosive
Substances Act
R/w 5 of POTA
Ten Years RI with
fine of Rs. 25,000/-.
ID one year RI.
6. Abdul Majeed 22(2) & 22(3) of
Seven Years RI with
fine of Rs. 10,000/-.
ID six months RI.
7. Abdul Majeed
Mohd. Amran
Mohd. Ashraf
POTA
25 of Arms Act
R/w 5 of POTA
Five Years RI with
fine of Rs. 5,000/-
each. ID three
months RI.
8. Abdul Majeed
Mohd. Amran
Mohd. Ashraf
120B IPC Ten Years RI with
fine of Rs. 25,000/-
each. ID one year RI.
9. Abdul Majeed
Mohd. Amran
Mohd. Ashraf
121A IPC Eight Years
Imprisonment (RI)
with fine of Rs.
25,000/- each. ID
one year RI.
10. Abdul Majeed
Mohd. Amran
Mohd. Ashraf
122 IPC Eight Years RI with
fine of Rs. 25,000/-
each. ID one year RI.
11. Mohd. Amran 307 IPC Five Years RI with
fine of Rs. 5,000/-.
ID three months RI.
12. Mohd. Ashraf 465 IPC Two Years RI with
fine of Rs. 5,000/-.
ID three months RI.
13. Mohd. Ashraf 471 IPC Two Years RI with
fine of Rs. 5,000/-.
ID three months RI.
14. Abdul Majeed
Mohd. Amran
Mohd. Ashraf
14 Foreigners
Two Years RI with
fine of Rs. 10,000/-
each. ID six months
Act
Crl. A. 229/2011 , Crl. A. 281/2011 , Crl. A. 307/2011 & Crl. A. 986/2011 Page 4
RI.
XXXXXX XXXXXX XXXXXX”
5. The Court also noticed the modification on quantum of sentence
awarded against Abdul Majeed, Mohd. Amran and Mohd. Ashraf by this
Court in various appeals by each one of the same accused, in Crl. A.
239/2004, Crl. A. 774/2003 and Crl. A. 775/2003. The relevant part of the
impugned judgment in that regard reads as follows:
“XXXXXX XXXXXX XXXXXX
C.8 MODIFICATION OF QUANTUM OF SENTENCE
AWARDED UNDER SECTION 120B OF INDIAN PENAL
CODE
C.8(a) Vide order dated 26.05.2009 passed by Hon’ble
Mr. Justice Pradeep Nandrajog and Hon’ble Ms. Justice
Indermeet Kaur, Judges, Delhi High Court in Criminal Appeal
No. 239/04, the order on sentence in respect of accused Mohd.
Ashraf was modified.
C.8(b) Vide order dated 26.10.2009 passed by Hon’ble
Mr. Justice Pradeep Nandrajog and Hon’ble Mr. Justice
Suresh Kait, Judges, Delhi High Court in Criminal Appeal No.
774/03, the order on sentence in respect of accused Mohd.
Amran was modified.
C.8(c) Vide order dated 18.01.2010 passed by Hon’ble
Mr. Justice Pradeep Nandrajog and Hon’ble Mr. Justice
Suresh Kait, Judges, Delhi High Court in Criminal Appeal No.
775/03, the order on sentence in respect of accused Abdul
Majeed was modified.
C. 8(d) The sentences awarded vide order dated
15.10.2003 passed by Sh. S.N. Dhingra, learned Designated
Crl. A. 229/2011 , Crl. A. 281/2011 , Crl. A. 307/2011 & Crl. A. 986/2011 Page 5
Judge POTA (as his lordship then was) which is on page 467 to
468 Part-IB has been modified only in respect of quantum of
sentence imposed for the offence punishable under Section
120B Indian Penal Code as follows:
Sr. No. Name of Accused Under
Section
Modified
Sentence
1. Abdul Majeed 120 B IPC Eight Years
RI with fine
of Rs.
25,000/-. ID
one year RI.
2. Mohd. Amran 120 B IPC Eight Years
RI with fine
of Rs.
25,000/-. ID
one year RI.
3. Mohd. Ashraf 120 B IPC Eight Years
RI with fine
of Rs.
25,000/-. ID
one year RI.
XXXXXX XXXXXX XXXXXX”
6. In the present case, the order of conviction and sentence appearing in
the Trial Court’s judgment, in para 22 reads as follows:
“XXXXXX XXXXXX XXXXXX
22. The convicts continues to pose a serious threat to society
and are likely to do so for the future. Therefore, they are being
awarded the sentence as mentioned herein below:-
Crl. A. 229/2011 , Crl. A. 281/2011 , Crl. A. 307/2011 & Crl. A. 986/2011 Page 6
Sr.
No.
Name of the Convicts Convict
ed U/S
Sentence
Awarded
1. Tariq Mehmood @
Naeem
Ishaq Ahmad @
Dilshad
Mufti Mohd. Asrar
Arshad Khan
Ghulam Mohd. Dar
Ghulam Qadir Bhat
3(3)
POTA
Imprisonment for
life and fine in
sum of Rs.
15,000/- and in
default of
payment of fine RI
for one year for
each convict.
2. Mufti Mohd. Asrar 3(4)
POTA
Ten years RI and
fine in sum of Rs.
10,000/- and in
default of
payment of fine RI
for eight months.
3. Tariq Mehmood @
Naeem
Ishaq Ahmad @
Dilshad
Mufti Mohd. Asrar
Arshad Khan
Ghulam Mohd. Dar
Ghulam Qadir Bhat
3(5)
POTA
Twelve years RI
and fine in sum of
Rs. 12,000/- and
in default of
payment of fine RI
for fourteen
months for each
convict.
4. Ghulam Mohd. Dar
Ghulam Qadir Bhat
3(6)
POTA
Twelve years RI
and fine in sum of
Rs. 12,000/- and
in default of
payment of fine RI
for fourteen
months for each
convict.
5. Tariq Mehmood @
Naeem
Ishaq Ahmad @
Dilshad
Mufti Mohd. Asrar
Arshad Khan
20
POTA
Ten years RI and
fine in sum of Rs.
10,000/- and in
default of
payment of fine RI
for eight months
Crl. A. 229/2011 , Crl. A. 281/2011 , Crl. A. 307/2011 & Crl. A. 986/2011 Page 7
Ghulam Mohd. Dar
Ghulam Qadir Bhat
for each convict.
6. Ghulam Mohd. Dar
Ghulam Qadir Bhat
22(2) &
22(3)
POTA
Ten years RI and
fine in sum of Rs.
10,000/- and in
default of
payment of fine RI
for eight months
for each convict.
7. Tariq Mehmood @
Naeem
Ishaq Ahmad @
Dilshad
25 of
Arms
Act r/w
5 of
POTA
Five years RI and
fine in sum of Rs.
5,000/- and in
default of
payment of fine RI
for four months
for each convict.
8. Tariq Mehmood @
Naeem
Ishaq Ahmad @
Dilshad
Mufti Mohd. Asrar
Arshad Khan
Ghulam Mohd. Dar
Ghulam Qadir Bhat
120 B
IPC
Ten years RI and
fine in sum of Rs.
10,000/- and in
default of
payment of fine RI
for eight months
for each convict.
9. Tariq Mehmood @
Naeem
Ishaq Ahmad @
Dilshad
Mufti Mohd. Asrar
Arshad Khan
Ghulam Mohd. Dar
Ghulam Qadir Bhat
121A
IPC
Ten years RI and
fine in sum of Rs.
10,000/- and in
default of
payment of fine RI
for eight months
for each convict.
10. Tariq Mehmood @
Naeem
Ishaq Ahmad @
Dilshad
Mufti Mohd. Asrar
Arshad Khan
122 IPC Ten years RI and
fine in sum of Rs.
10,000/- and in
default of
payment of fine RI
for eight months
Crl. A. 229/2011 , Crl. A. 281/2011 , Crl. A. 307/2011 & Crl. A. 986/2011 Page 8
Ghulam Mohd. Dar
Ghulam Qadir Bhat
for each convict.
11. Tariq Mehmood @
Naeem
474 IPC Five years RI and
fine in sum of Rs.
5,000/- and in
default of
payment of fine RI
for four months.
12. Tariq Mehmood @
Naeem
Ishaq Ahmad @
Dilshad
Arshad Khan
14 of
Foreign
ers Act
Two years RI and
fine in sum of Rs.
10,000/- and in
default of
payment of fine RI
for six months for
each convict.
7. It is argued by learned counsel that the previous orders of the Court so
far as it dealt with the other appeals of Abdul Majeed, Mohd. Amran and
Mohd. Ashraf is concerned, it consistently accepted the plea for reduction of
sentence. The appellant’s counsel relied upon the orders made by this Court
in that regard. One of those is reported as Mohd. Amran @ Naved v. State
164 (2009) DLT 262. The relevant part of the said order reads as follows:
“XXXXXX XXXXXX XXXXXX
……………….It is urged that the appellant has expressed
remorse for his conduct and at the first instance has pleaded
guilty. Thus, it is urged that the mitigating circumstance i.e. the
expression of remorse by the appellant has to be taken into
account and sentence tempered accordingly. It is urged that for
the commission of the substantive offences in respect whereof
the charge of conspiracy was framed, the sentence imposed is
of 8 years rigorous imprisonment and thus it does not stand to
reason as to why for the charge of conspiracy relating to the
said substantive offences, the sentence imposed should be 10
years RI.
Crl. A. 229/2011 , Crl. A. 281/2011 , Crl. A. 307/2011 & Crl. A. 986/2011 Page 9
8. It is urged that as per the Code of Criminal Procedure, if
the fines are not paid, the relatable period of incarceration to
be undergone has to be undergone by the appellant and that in
relation to payment of fine, the sentences cannot run
concurrently. It is urged that the sum total of the fine imposed
upon the appellant is in the sum of Rs.1,45,000/- and if the
same is not paid, the imprisonment required to be undergone
would be 6 years and 6 months.
9. Learned Counsel for the State urges that the offence of
conspiracy is a substantive offence and therefore the learned
Trial Judge justify in imposing the sentence of Rigorous
Imprisonment for 10 years pertaining to the offence of
conspiracy. Learned Counsel urges that keeping in view the
magnitude of the offence for which the appellant was charged
of, namely to enter into conspiracy to commit terrorist acts
directed at the President of India and the noted cricketer
Sachin Tendulkar, sentences imposed are adequate. Learned
Counsel urges that the scourge of terrorism which has created
a fear psychosis in the society needs to be put down with a
heavy hand. Learned Counsel urges that the society’s cry for
justice in the form of appropriate sentence has to be respected
because the crime of terrorism shocks the conscience of the
society.
10. Having considered the rival submissions, we but note
that prima facie it seems discriminatory and inappropriate to
impose a lesser sentence for a crime which has manifested itself
in the form of commission of the crime vis-a-vis the conspiracy
to commit the crime and impose a higher sentence for the
substantive offence of conspiracy.
11. We agree with the submissions made by the learned
counsel for the state that for offences relatable to terrorism, no
leniency in the imposition of sentence has to be shown, more so,
when the crime is committed by foreign national who trespasses
Crl. A. 229/2011 , Crl. A. 281/2011 , Crl. A. 307/2011 & Crl. A. 986/2011 Page 10
into the territory of the Union of India and attempts to over awe
the very existence of the State.
12. Thus, we do not find any infirmity in the impugned order
in so far the fines have been imposed and in default, further
imprisonment for respective period has been directed to be
undergone.
13. But, we find a hiatus with respect to the substantive
sentence of rigorous imprisonment for 10 years imposed for the
charge punishable under Section 120B IPC for the reason for
the charge of conspiracy the relatable offences have resulted in
a conviction for a maximum period of 8 years.
14. We accordingly take corrective action. The appeal stands
disposed of modifying the order of sentence dated 15.10.2003,
but limited to the sentence imposed for the offence punishable
under Section 120B IPC. We direct that for the offence
punishable under Section 120B IPC, the appellant shall
undergo rigorous imprisonment for 8 years and pay a fine in
sum of Rs.25,000/-, in default of payment of fine would undergo
rigorous imprisonment for one year.
15. The appeal stands disposed of as aforesaid……………..
XXXXXX XXXXXX XXXXXX”
8. It is urged by the learned Addl. Standing Counsel, Sh. Dayan
Krishnan that the plea urged on behalf of the appellants merits consideration.
He does not dispute that the material which persuaded the Trial Court in this
case to convict the accused in this case points to a far lesser role by the
appellants than that of Abdul Majeed, the mastermind and the principal
conspirator, who was sentenced to a maximum of 8 years Rigorous
Imprisonment.
Crl. A. 229/2011 , Crl. A. 281/2011 , Crl. A. 307/2011 & Crl. A. 986/2011 Page 11
9. We have carefully considered the evidence in the course of hearings
these last few days. We are also independently of the opinion that the
depositions and materials placed on record, which persuaded the Trial Court
to convict the present appellants do not reveal their role of such nature as
was alleged against Abdul Majeed. In view of the plea made on their behalf
by counsel as well as by each one of them (which has been recorded
separately in their appeals, that they would not challenge the conviction and
would be contended if the sentences are reduced in the same manner as was
awarded to the other three accused, whose appeals were disposed of by this
Court), we are of the opinion that such relief is warranted. Here, it would be
necessary to recollect the judgment of the Supreme Court in Harbans Singh
v. State of U.P. 1982 (2) SCC 101 and Akhil Ali Jehangir Ali Sayyed v. State
of Maharashtra 2003 (2) SCC 708, which was noticed in a recent judgment,
reported as Ajmer Singh v. State of Haryana 2010 (3) SCC 746. Such parity
in sentencing is called for. The need to maintain a consistent sentencing
policy in the given facts of a case, if joint responsibility is attributed, was
emphasized in R. v. Christie, 2004 ABCA 287, by the Alberta Court of
Appeal in Canada, in the following terms:
“XXXXXX XXXXXX XXXXXX
"40. Parity is a principle which must be taken into account in
any sentence, and particularly where the offence was a joint
venture. There will, of course, be cases where the
circumstances of the co-accused are sufficiently different to
warrant significantly different sentences, such as where one
co-accused has a lengthy related criminal record or played a
much greater role in the commission of the offence."
XXXXXX XXXXXX XXXXXX”
Crl. A. 229/2011 , Crl. A. 281/2011 , Crl. A. 307/2011 & Crl. A. 986/2011 Page 12
"43. What we must strive for is an approach to sentencing
whereby sentences for similar offences committed by similar
offenders in similar circumstances are understandable when
viewed together, particularly in cases involving joint ventures."
XXXXXX XXXXXX XXXXXX”
10. In the subsequent judgment of Alberta Court of Appeal in Wahby v. R.
2004 WASCA 308, it was stated as follows:
“XXXXXX XXXXXX XXXXXX
(6) "In considering the application of the principle, all
the circumstances of the case are to be taken into account;
those concerned with the commission of the offence and those
which are personal to the offender before the court and the co-
offender. Where there are differences, as almost inevitably
there will be, true parity will be produced by different
sentences, each proportionate to the criminal culpability of
each offender,bearing in mind, as is often said but is worth
repeating, that sentencing is not and should not be a process
involving a search for mathematical precision, but is an act of
discretion informed by the proper application of sentencing
principles to the particular case. Inevitably there will be a
range of appropriately proportionate sentences which may be
passed for the offence before the court."
XXXXXX XXXXXX XXXXXX”
11. The parity principle was explained by the Australian High Court in
Postiglione v. R. (1997) 189 CLR 295: 94A Crim R 397, in the following
terms:
“XXXXXX XXXXXX XXXXXX
Crl. A. 229/2011 , Crl. A. 281/2011 , Crl. A. 307/2011 & Crl. A. 986/2011 Page 13
"The parity principle upon which the argument in this
Court was mainly based is an aspect of equal justice. Equal
justice requires that like should be treated alike but that, if
there are relevant differences, due allowance should be made
for them In the case of co-offenders, different sentences may
reflect different degrees of culpability or their different
circumstances. If so, the notion of equal justice is not violated
...
Discrepancy or disparity is not simply a question of the
imposition of different sentences for the same offence. Rather, it
is a question of due proportion between those sentences, that
being a matter to be determined having regard to the different
circumstances of the co-offenders in question and their different
degrees of criminality."
XXXXXX XXXXXX XXXXXX”
"...... the concept simply is that, when two or more co-
offenders are to be sentenced, any significant disparity in their
sentences should be capable of a rational explanation."
XXXXXX XXXXXX XXXXXX”
12. Having regard to the overall conspectus of the facts in the present
appeals, we are of the opinion that since none of the appellants was in fact
convicted for offences punishable under the Explosive Substances Act,
(unlike Abdul Majeed), who was so sentenced, and having regard to the
nature of allegations against each of them, we are of the opinion that their
cases deserve application of principle of parity. Consequently, even while
leaving their conviction undisturbed (of all, except Ghulam Mohd. Dar), the
sentences are reduced to 8 years Rigorous Imprisonment in respect of POTA
and IPC offences, except in the case of Tariq Mehmood, Ishaq Ahmed,
whose sentences in addition under Sections 25 of the Arms Act read with
Crl. A. 229/2011 , Crl. A. 281/2011 , Crl. A. 307/2011 & Crl. A. 986/2011 Page 14
Section 5 of POTA and Section 474 IPC, of 5 years Rigorous Imprisonment
with fine are left undisturbed. Their sentences under POTA and IPC,
however, are reduced to 8 years Rigorous Imprisonment with fine. The
sentence of fine in respect of all the Appellants, too, is modified; each of
them is sentenced to pay ` 25,000/- in aggregate, failing which to undergo
simple imprisonment for six months.
13. The allegations against Ghulam Mohd. Dar was of his assisting in the
financing operations; the prosecution sought to prove the case against him
by relying upon the bank transactions in the form of deposit of amounts in
his bank accounts by Abdul Majeed. No other allegations were leveled or
proved against him. We also notice that the prosecution did not make any
effort to trace the amounts transferred to various accounts in Jammu and
Kashmir (J&K) and whether they were in fact used for subversive purposes.
Having regard to these aspects, we are of the opinion that since he has
chosen not to challenge the conviction, this is an appropriate case to reduce
the sentence to 6 years Rigorous Imprisonment which we are told he has
undergone. The appeal is allowed to such extent. The directions with regard
to fine in his case would be the same as indicated in the previous paragraph,
i.e. ` 25,000/- or in default, to undergo simple imprisonment for six months.
All the appellants will be at liberty to deposit the fine with the concerned Jail
Superintendent, as per rules.
14. The appeals are allowed in the above terms; the appellants Mufti
Mohd. Asrar and Ghulam Mohd. Dar shall be released unless they are
required in any other case. The appellants, Tariq Mehmood, Ishaq Ahmed
Crl. A. 229/2011 , Crl. A. 281/2011 , Crl. A. 307/2011 & Crl. A. 986/2011 Page 15
and Arshad Khan shall be sent for conclusion of trial in Kolkata in respect of
another offence, pending before the competent Court.
15. The appeals are disposed of in the above terms; order Dasti; a copy of
the order shall be sent to the Jail Superintendent for appropriate action.
S. RAVINDRA BHAT
(JUDGE)
S.P. GARG
(JUDGE)
JANUARY 23, 2012
Crl. A. 229/2011 , Crl. A. 281/2011 , Crl. A. 307/2011 & Crl. A. 986/2011 Page 16