21. CASE OF AFSAN GURU @ NAVJOT SANDHU
The trial Court convicted her of the offence under Section 123 IPC imputing her the knowledge of conspiracy and concealing the evidence of design to wage war by reason of her illegal omission to inform the police. The High Court acquitted her of the charge. We are of the view that the High Court is fully justified in doing so. The prosecution case against this accused, who is the wife of Shaukat Hussain, is weak, especially, in the light of the exclusion of confessional statements of co-accused - Shaukat and Afzal. The High Court held the confessions inadmissible against the co-accused and we have expressed the same view. Incidentally, we may mention that even the confessions of co-accused do not attribute to her in clear terms the role of conspirator, though on the basis of confessions it could perhaps be held that she was in the know of things well before the planned attack on the Parliament. In fact, there was no earthly reason for inviting her to join the conspiracy. She was pregnant by then. Then it is to be noted that no recoveries were effected at her instance coming within the purview of Section 27 of the Evidence Act as interpreted by us and the High Court. Practically there is no evidence left to bring her within the purview of Section 123 IPC much less within the net of conspiracy to wage war and to commit terrorist act. Indisputably, no positive or participatory role has been attributed to her and as rightly observed by the High Court, "she provided no logistics; she procured no hideouts; she procured no arms and ammunition; she was not even a motivator." She could have had some knowledge of the suspicious movements of her husband with Afzal who is his cousin and a surrendered militant. Of course, she was aware of the fact that Shaukat accompanied by Afzal left in her truck on the day of Parliament attack in post-haste; but, the involvement of Afzal, direct or indirect, and the attitude of her husband in relation to the Parliament attack could have come to her knowledge after the attack when they abruptly left for Srinagar in the truck.
The prosecution sought to rely on her disclosure memo Ex. PW 66/14 but nothing was recovered as a direct result of the information given by her. Of course, as far as passing on the information regarding the truck by which Shaukat left for Srinagar, there is no dispute. But the recovery of laptop etc. from the truck is not distinctly relatable to the information contained in the alleged disclosure statement. The articles in the truck were recovered at the instance of Afzal and Shaukat when it was intercepted at Srinagar. We find no link between the disclosure and the recoveries as a cause and effect.
The next piece of evidence relied against her is the telephonic conversation she had with her husband Shaukat on the night of 14th December which was taped. We have held that the High Court erred in doubting the authenticity of the said intercepted conversation recorded on the tape. The call was received by Afsan on the Phone No. 9811573506 and the caller was her husband. The voice of both has been identified by the expert, as already noted. The conversation reads thus:
14.12.2001
Time: 2013 hrs
9811573506
Caller: Hello I am! Was there any telephonic call? (Shaukat)
Receiver: Shaukat where are you? (Afsan)
Caller: I am in Srinagar.
Receiver: Reached there.
Caller: Yes.
Receiver: Some person had come just now. Caller: From where?
Receiver: I don't know. Don't say anything.
Caller: O.K.
Receiver: I don't know they are with the lady of ground floor. Some vehicle is still parked outside.
Caller: O.K.
Receiver: I don't know. I did not speak anything.
Caller: O.K. Alright.
Receiver: Tell more, don't speak anything now and tell me. I am much afraid.
Caller: No, No nothing dear, O.K.
Receiver: Are you fine?
Caller: Yes, Yes.
Receiver: Reached safely?
Caller: Yes, Yes.
Receiver: And Chotu?
Caller: Yes, Yes.
Receiver: Do you know?
Caller: Yes, Yes alright you may make a call.
Receiver: When?
Caller: In the night right now. I am calling from outside
Receiver: Alright I will call up tomorrow (while weeping)
Caller: O.K.
As rightly observed by the High Court it shows that "Shaukat and Afsan were talking between the lines. Afsan was scared." An inference can be drawn that she was concerned about the safety of Shaukat and that she was aware that Shaukat and Afzal did something that attracted police surveillance. But from this circumstance alone, no inference can be drawn with a reasonable degree of certainty that she was having knowledge of the plan to attack the Parliament before it happened.
The scanty evidence on record does not justify her conviction either on the charges framed against her or under Section 123 IPC for which she was held guilty by the trial Court. The High Court's view is unexceptionable.
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22. IN THE RESULT, we dismiss the appeal filed by Mohd. Afzal and the death sentence imposed upon him is hereby confirmed. The appeal of Shaukat is allowed partly. He stands convicted under Section 123 IPC and sentenced to undergo RI for 10 years and to pay a fine of Rs. 25,000/- and in default of payment of fine he shall suffer RI for a further period of one year. His conviction on other charges is hereby set aside. The appeals filed by the State against the acquittal of S.A.R. Gilani and Afsan Guru are hereby dismissed.
