STATE Vs. MOHAMMAD AFZAL

JUDGEMENT

(1.) Every criminal trial is a voyage of discovery in which truth is the quest. The journey, in the present case, has been navigated by the Designated Judge of the Special Court constituted under Section 23 of the Prevention of Terrorists Activities Act, 2002 (hereinafter referred to as POTA). In the Murder Reference and the connected appeals arising out of the judgment dated 16.12.2002, we are called upon to decide the legality and validity of the trial as also the sustainability of the judgment pronounced by the Designated Judge of the Special Court, POTA. By the impugned judgment, the learned Designated Judge has held that the prosecution has successfully brought home the charge of conspiracy against accused Nos. 1 to 3, for having entered into a conspiracy with the 5 slain terrorists who had attacked Parliament House on 13.12.2001 along with Mohd. Masood Azhar, Gazi Baba @ Abu Zehadi @ Abu Seqlain and Tariq Ahmed, all Pakistani nationals (declared as proclaimed offenders), to procure arms and ammunitions and attack the Indian Parliament when in session, intending to take as hostage or kill the Prime Minister, Central Ministers, Vice-President of India and Members of Parliament and for that purpose the said accused persons procured hide-outs in Delhi, helped in procuring arms and ammunition, a motor vehicle which facilitated the entry of the terrorists into Parliament House Complex; procured chemicals for manufacture of explosives used by the slain terrorists who attached Parliament House. The charge of conspiracy was held not proved against accused No.4, who was however found guilty of having knowledge of the conspiracy but failed to report the same to the police and hence was found guilty of having committed the offence under Section 123 IPC. Following sentence has been imposed on the accused:

(2.) Section 366 of the Code of Criminal Procedure,1973 requires confirmation by the High Court of a sentence of death passed by the Court of Session, before it being executed. In the reference proceeding under Section 367, the High Court, if it thinks fit, is empowered to make further inquiry and receive additional evidence upon any point bearing upon the guilt or innocence of the convicted person. Under Section 368, the High Court may confirm the sentence, annul it or pass any other sentence, or convict the accused of any offence of which the Court of Session might have convicted him or may order a new trial on the same or an amended charge. The scope of these three Sections has been interpreted by the Hon'ble Supreme Court as casting a duty on the High Court to satisfy itself by a reappraisal and reassessment of the entire evidence, uninfluenced by the judgment of the Court of Session, about the guilt or innocence of the accused person. Reference be made to:- A) AIR 1957 S.C. 469 Jumman & Ors Vs. State of Punjab

(3.) We have thus reheard the matter afresh and have considered the issues raised in their entirety with reference to the evidence and law applicable.