MOHD AYUB DAR Vs. STATE OF JANDK

JUDGEMENT

(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 and Disruptive Activities (Prevention) Act, 1987 (In short "TADA ACT"), as also for the offence punishable under Section 302 of the IPC. 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 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, 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 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 Under Section 307 of the IPC originally was converted into the offence Under Section 302 of the IPC on the same day. The initial investigation was done by Police Station, Nageen, which was thereafter transferred to CBI under the orders of the Government of India vide Notification No. 228/3/90-AVD.II, dated 11.06.90. The house of Moulvi Farooq was in New Colony, Nageen, Shrinagar, known as 'Mirwaiz Manzil', wherein one small doubled storeyed building was constructed for the purpose of residential Office of Mirwaiz. This small Office 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 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-e-Islami in general and Hizbul-Mujahideen in particular were apprehensive that Moulvi Farooq would eventually assume 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 @ Ishfaq - present 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 @ Ishfaq - present appellant to plan elimination of Mirwaiz Moulvi Farooq. Javed Ahmed Bhat @ Ajmal Khan was then working as an Area Commander of Hizbul-Mujahideen in the downtown area of Srinagar; whereas the appellant/accused was working as a Group Commander in that very area. Later on, Abdul Rehman Shigan @ Inayat and Zahoor 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 @ Ishfaq - present appellant and Abdul Rehman Shigan @ Inayat had visited the residence of Moulvi Farooq at Nageen, Srinagar and had requested him for financial help to their militant organization i.e. Hizbul 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 details to Javed Ahmed Bhat @ Ajmal Khan. It was on 21.05.1990 that the three accused namely Mohd Ayub Dar @ Ishfaq (present appellant), Abdul Rehman Shingan @ Inayat and Zahoor Ahmed @ Bilal @ Zana armed with loaded pistol visited the 'Mirwaiz Manzil' at Nageen. Accused Javed Ahmed 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 all reached the gate of Mirwaiz Manzil 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 - Gulam Qadir Sofi took the three to the Personal Assistant namely Saidur Rehman (PW-17), who asked them about their names and one of them disclosed his fake name as Gulzar 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 Qadir Sofi. After sometime, Moulvi Farooq called the three accused inside the Office, on which Zahoor Ahmed @ Bilal entered the room of Moulvi Farooq and the remaining two accused persons including the present appellant took up position in the PA's room. On entering the room of Moulvi Farooq, Zahoor Ahmed @ Bilal fired several rounds on Moulvi Farooq from his pistol and immediately, accused Inayat 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 hold of Ishfaq, who was trying to escape. However, all the accused persons escaped giving a push to the Gardener Gulam Qadir Sofi. Accused Bilal also tried to run away, but he was caught by Gulam 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 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 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.