1995 Republic Day blasts in Jammu: SC reverses acquittal of Hizbul Mujahideen operative

Partly allowing the appeal filed by the State of Jammu & Kashmir vs Wasim Ahmed Malik @ Hamid and another (Criminal Appeal No. of 1743/2009) , the Supreme Court on Wednesday set aside the acquittal of a Pakistan national, a Hizbul Mujahideen operative, Ghulam Nabi Guide who was involved in the serial blasts at Maulana Azad Memorial Stadium in Jammu during the Republic Day function in 1995 that had claimed eight lives.

The judgment came in the appeal filed by the Jammu and Kashmir Government the judgment and order dated 02.03.2009 passed by the third Additional Sessions Judge i.e. the Designated Court under the  Act  in  File No. 26/Challan, acquitting both the accused of the offences  under  sections 3 and 4 of the TADA, section 120-B read with sections 302, 307 and 34 of Ranbir Penal Code and sections 4 and  5  of  the  Explosives  Substances Act, 1908 arising out of FIR No. 12 of 1995.

After investigation was taken over by CBI, one Mohd.  Irfan was arrested on 07.04.1995. On 09.04.1995 he made disclosure statements leading to certain recoveries. On 24.04.1995 said Mohd. Irfan  made  a    confessional statement which was recorded by PW2  Sharad  Kumar,  S.P. CBI, under section 15 of the Act to the effect that in furtherance of a criminal  conspiracy hatched under the aegis of ISI and Jamaat-e-Islami,  they  decided  to  carry two pre-set time bombs across  the  border  to  Jammu  for planting the same, one near the dais  and  the  other  near  the pavilion of MAM Stadium Jammu and deputed Mohd. Irfan and Ghulam Nabi for this task.

After completion of investigation, charge  sheet  was  filed  on  28.09.1995 in the Court of the Special Judge, Designated  TADA  Court,  Jammu (J&K) u/s 120-B RPC r/w section 302, 34, 307 RPC, 4 and 5 of the Explosives Substances Act and section 3(2), 4 and 6 of  the  Act.  The charge sheet was filed against Mohammad Irfan  @  Anwar,  a  Pakistani  National and other absconding accused. While the  matter  was  pending  before the Trial Court, Ghulam Nabi Guide was arrested by  J&K  police on 25.10.1995. Upon CBI making an appropriate application, custody of Ghulam Nabi Guide was granted to CBI on 04.12.1995. While in  custody, Ghulam  Nabi  Guide  made  a  confessional  statement  which  was    recorded by PW1  S.K.  Bhatnagar Superintendent of Police, CBI on 18.12.1995  u/s.  15  of  the  Act  wherein  he  confessed  about  his  involvement as also that of Mohd. Irfan, Wasim Ahmed  Malik  @  Hamid, Major Tariq, Major Ibrahim, Major Amir, Captain Farhan, Subedar  Anwar  (all of ISI, Pakistan), Ahmed Hassan, Commander of HM, Sialkot,  Amir- ul-Haq, Naib Commander, HM Sialkot and Zia Kashmiri R/o  Kupwara,  J&K in the criminal conspiracy culminating in the explosions  at  the  MAM     Stadium, Jammu 26.01.1955. Supplementary chargesheet  was  therefore  filed against him. During the pendency of the trial,  in a  jailbreak said Mohd. Irfan escaped from high security jail. While the trial  was pending and had reached the concluding stage,  another  accused  named  Wasim Ahmed Malik, who was marked as absconding accused, was  arrested on 15.01.2009. Since according to the prosecution there was sufficient  evidence in the form of confessional statements  of  Mohd.  Irfan  and  Ghulam Nabi Guide, said Wasim Ahmed Malik was supplied with copies  of all the relevant material and produced before the  Trial  Court.  Thus  only two accused i.e. Ghulam Nabi Guide and Wasim Ahmed Malik, present accused were  tried while the others remained absconding.

The trial court on an appreciation of the evidence before it, rejected the confessional statement of Ghulam Nabi Guide on the  ground  that  the  confessional   statement was recorded in Hindi  i.e.  not  in  the  language  of  the accused.  It observed that the safeguards provided in Rule 15 of the Rules made under the Act were not adhered to and therefore, the confessional statement of accused Ghulam Nabi Guide was required to be discarded.

The trial  court  further  observed  that  as  apart  from  such  confessional statement there was nothing else against said Ghulam Nabi  Guide, the accused was entitled to be acquitted.  The other accused, namely, Wasim Ahmed had not given any confessional statement and the case against him completely depended upon the confessional  statement  of co-accused Ghulam Nabi Guide.  Consequently accused Wasim Ahmed was also held entitled to be acquitted. The trial court had thus acquitted both the accused vide its judgment and order dated 02.03.2009, which was challenged in the appeal by the State.

A bench comprising of Justices A K Sikri and U U Lalit, while relying on the confessional statement of accused Ghulam Nabi given to the CBI, said, “the confession of an accused is a substantive piece of evidence and his conviction can be founded on such confession itself.”

The Bench explained the legal position this “It is settled position in law that a confession  recorded  under  Section 15(1) of the Act in accordance with statutory requirements and  in keeping with the guidelines is admissible against the maker, his co- accused, abettor or conspirator in a trial for an  offence  under  the  Act, subject to the condition stipulated in  the  proviso  to  Section 15(1).  Such confession is taken as substantive piece of evidence and can form the foundation or basis for conviction  of  the  maker,  co-accused, abettor or  conspirator.  However,  the  note  of  caution struck by  this Court is, insofar as use of confession of  an  accused against a co-accused is concerned,  rule of   prudence  would  require  the Court not to rely thereon unless corroborated generally  by  other evidence on record.”

The Court found the conclusions of the trial Court to be not legally tenable, saying that the confession was recorded fully in conformity with the Rule.  “The language  used  as  a  means  of  communication  between  the  confessing  accused  and  the  recording  officer   being   Hindi   or  Hindustani,  such  recording  of  confession  in  Hindi  language   is completely in conformity  with  the  requirement  of  the  Rule.   The conclusion drawn by the trial court that Ghulam Nabi  being  Pakistani  national his language must be Urdu and therefore the recording of  the confession in a language other than Urdu, must be held to  be  not  in conformity, is wrong.  Nothing has been placed  on  record  that  the confessing accused did not understand the line of questioning or  that he was not made to understand the contents of the confession after the recording was complete.  In our view the assessment made by the trial      court in this behalf is completely incorrect and against the record.

"We find no infirmity in the recording of confession by PW1 S.K.  Bhatnagar. The confession of  accused  Ghulam  Nabi  was  recorded  in keeping with the guidelines issued by this Court and was in accordance  with  the  statutory  requirement.”

The apex court, however, upheld the acquittal of another accused Wasim Ahmed, a Kashmiri, saying nothing was placed on record to establish his role in the conspiracy and execution thereof.

The court asked Nabi, who has been convicted under the now repealed Terrorist and Disruptive Activities (Prevention) Act (TADA), to appear before it for hearing him on question of sentence to be awarded to him in the case.

Three bomb explosions had taken place in the Maulana Azad Memorial Stadium in Jammu which was designed to kill the then Governor Lt General K V Krishna Rao during his address to a huge gathering of about 40,000 people, including dignitaries, VIPs, senior Government officers, political leaders and citizens on Republic Day in 1995. Rao had a narrow escape in the blasts which killed eight people and resulted in 18 persons sustaining injuries.

Read the Judgment here.