The High Court set aside the conviction of S.A.R. Gilani and acquitted him of the various charges.
There is no evidence to the effect that Gilani was maintaining personal or telephonic contacts with any of the deceased terrorists. There is no evidence of any participative acts in connection with or in pursuance of the conspiracy. He was not connected with the procurement of hideouts, chemicals and other incriminating articles used by the terrorists. Speaking from the point of view of probabilities and natural course of conduct there is no apparent reason why Gilani would have been asked to join conspiracy. It is not the case of the prosecution that he tendered any advice or gave important tips/information relevant to the proposed attack on Parliament. None of the circumstances would lead to an inference beyond reasonable doubt of Gilani's involvement in the conspiracy. There is only the evidence of PW 45, the landlord of Shaukat, that he had seen the deceased terrorists and Gilani visiting the house of Shaukat two or three days prior to 13th December. We have already discussed his evidence.
His version of identification of visitors by means of the photographs of the deceased terrorists was held to be incredible. As regards Gilani, in the first instance, he frankly stated that he could not identify the person who was sitting in the Special Cell i.e. Gilani, but, on a leading question put by the Public Prosecutor, on the permission given by the Court, PW 45 pointed out towards Gilani as the person that was in the Special Cell. It is noted in the deposition that initially the witness stated that he had not said so to the police about Gilani. In this state of evidence, no reliance can be placed on the testimony of PW 45 in regard to the alleged visits of Gilani to the house of Shaukat a few days prior to 13th December. The High Court observed that in any case PW 45 did not state that he had seen Gilani visiting the house of Shaukat in the company of five terrorists. Therefore, the case of the prosecution that Gilani participated in the meetings at Shaukat's place where the conspiracy was hatched does not stand substantiated.
The High Court after holding that the disclosure statement of Gilani was not admissible under Section 27 of the Evidence Act and that the confession of co-accused cannot also be put against him, observed thus: "We are, therefore, left with only one piece of evidence against accused S.A.R. Gilani being the record of telephone calls between him and accused Mohd. Afzal and Shaukat. This circumstance, in our opinion, do not even remotely, far less definitely and unerringly point towards the guilt of accused S.A.R. Gilani. We, therefore, conclude that the prosecution has failed to bring on record evidence which cumulatively forms a chain, so complete that there is no escape from the conclusion that in all human probabilities accused S.A.R. Gilani was involved in the conspiracy."
The High Court concluded that "the evidence on record does not bring out a high level of consciousness qua S.A.R. Gilani in the conspiracy."
We are in agreement with the conclusion reached by the High Court. However, we would like to enter into a further discussion on the incriminatory circumstances which, according to the prosecution, would have bearing on the guilt of the accused Gilani.
The fact that Gilani was in intimate terms with Shaukat and Afzal and was conversing with them through his mobile phone No. 9810081228 frequently between the first week of November and the date of the crucial incident is sought to be projected by the prosecution prominently as an incriminating circumstance against Gilani. Incidentally, it is also pointed out that there were contemporaneous calls between Gilani, Afzal and Shaukat and Afzal and Mohammed. It is particularly pointed out that after Shaukat acquired mobile phone 9810446375, the first call was to Gilani on 2.11.2001 for 22 seconds. Gilani in turn called him up and spoke for 13 seconds. Thereafter, there was exchange of calls between Shaukat and Gilani on seven occasions in the month of November. In the month of November, there was a call from Shaukat through his phone No. 9811573506 to Gilani on 7th December, 2001 and on the 9th December, 2001, Gilani spoke to Shaukat for 38 seconds. There was a call on the midnight of 13th December for 146 seconds from Gilani's number to Shaukat. There is a controversy about this call which we shall refer to in the next para. Then, soon after the attack on Parliament on 13th December, 2001, there was a call from Shaukat to Gilani and thereafter from Gilani to Shaukat. As regards the calls between Gilani and Afzal are concerned, the call records show that two calls were exchanged between them in the morning of 12th November, 2001. Then, Gilani called up Afzal on 17.11.2001 for 64 seconds and again on 7th December & 9th December, 2001. It is pointed out that on the reactivation of the telephone of Afzal i.e. 89429 on 7.12.2001, Gilani spoke to Afzal on the same day. The High Court observed that on the basis of these calls, it is not possible to connect Gilani to the conspiracy, especially having regard to the fact that Gilani was known to Shaukat and his cousin Afzal. Shaukat and Gilani lived in the same locality i.e. Mukherjee Nagar. It is not in dispute that Gilani played a part at the marriage ceremony of Shaukat (A2) and Afsan Guru (A4) in the year 2000. It is also not in dispute that they hail from the same District and were the students of Delhi University. The calls between them do not give a definite pointer of Gilani's involvement in the conspiracy to attack the Parliament. As far as the calls between Afzal and Gilani are concerned, there was no call too close to the date of incident. One call was on 7th December, 2001 and another was on 9th December, 2001. On the date of incident, there was exchange of calls between Shaukat and Gilani twice about half-an-hour after the incident. Not much of importance can be attached to this, as it is not unusual for friends talking about this extraordinary event. The phone calls between these three persons, if at all, would assume some importance if there is other reliable and relevant evidence pointing out the accusing finger against Gilani. That is lacking in the instant case. Gilani had invited problem for himself by disowning the friendship with Shaukat and the contacts with Afzal. In the course of examination under Section 313, he took the plea that Shaukat was a mere acquaintance and he had not visited him. When asked questions about the telephonic contacts giving the numbers thereof, Gilani feigned ignorance of the telephone numbers of Shaukat and Afzal by giving evasive answers - 'I do not remember'. Of course, a wrong question was also put with reference to the calls at 11.19 and 11.32 hours on 13th which were between Afzal and Shaukat as if Gilani had called them up at that time. Still, the fact remains that he did give false answers probably in his over anxiety to wriggle out of the situation. That does not make an otherwise innocuous factor on incriminating circumstance.
There was a debate on the question whether the call from Gilani's number to Shaukat's number at 00.41 hours on 12th December i.e. just on the eve of the Parliament attack was made by Gilani. The call lasted for 146 seconds. The defence of Gilani was that Gilani's brother called Shaukat to wish him on that night which happened to be shab-e-qadr festival night and that it was not unusual for the friends to exchange the greetings on that night. It is pointed out by the learned counsel for the State that the testimony of DW5 Gilani's wife, exposes the falsity of this defence. She stated that no one in the family used cell phone that night. She stated that namaz was performed on the night of 12th December, by all the family members together from 9.30 p.m. onwards. It was closed at 7.00 a.m. on 13th December, 2001 and then they slept. She further stated that during namaz, her husband did not move out of the room nor talked to anybody. She also stated that the cell phone was switched off and kept aside. She denied that any call was made by her husband on the cell phone at 00.45 hours on the intervening night of 12th / 13th December, 2001. It was contended before us that Gilani was not questioned on this point in his Section 313 examination. If a question was put, a clarification would have been given that in fact, the brother of Gilani had contacted Shaukat to convey good wishes. Comment was also made in regard to the role, assumed by the learned trial Judge, of putting questions to DW5. Though it appears that DW5's evidence is inconsistent with the defence version, as no specific question was put to Gilani on this aspect, we are not inclined to go so far as to hold that it is undoubtedly a false plea. Yet, it raises a grave suspicion that the accused was trying to hide something which might turn out to be adverse to him. Even if there was such a call on the 13th midnight between Shaukat and Gilani, undue importance ought not to be attached to this fact, having regard to the state of other circumstantial evidence on record.
Then, the prosecution relied on the evidence of PW39 who is the landlord of Gilani. He merely stated in general terms that he had seen Shaukat and Afzal visiting the house of Gilani two or three times during the period Gilani stayed in his house i.e. during a period of more than two years. PW39 did not say anything about visits of Afzal or Shaukat a few days or weeks before the incident.
Then, the prosecution relied on the disclosure statement Ext.PW66/13 to establish that Gilani was well aware of the names of the deceased terrorists, the change of hideouts by Afzal and the material such as police uniforms which were procured for the purpose of conspiracy. It is contended that the relevant portions in the disclosure statement amount to informations leading to the discovery of facts within the meaning of Section 27 of the Evidence Act. According to the learned counsel for the State Mr. Gopal Subramnium, the statement of Mr. Gilani disclosing the names of five deceased terrorists who had come from Pakistan, Shaukat taking a room on rent for Mohammed in Christian Colony and the terrorists securing explosives, mobile phones and police uniforms are all admissible inasmuch as these facts led the investigating agencies to further investigations which confirmed the information furnished by Gilani. In this connection, we may recapitulate the contention of the learned counsel that Section 27 rests on the principle of confirmation by subsequent events and that the facts discovered need not necessarily relate to material objects. We have already discussed the legal position in regard to the scope and parameters of Section 27 and we have not accepted the contention of the learned counsel for the State. We are of the view that none of the statements can be put against Gilani. It may be noted that Gilani was not taken to any places such as the hideouts where the incriminating articles were found. He only pointed out the house of Shaukat who was in the same locality on the 15th December, 2001 which is an innocuous circumstance. Though there is some dispute on this aspect, we are inclined to believe the evidence of the investigating officers because Afsan Guru, in her statement under Section 313, stated that Gilani was with the police when they came to her house. One more important aspect that deserves mention is that there is nothing to show that the information furnished by Gilani led to the discovery of facts such as identification of the deceased terrorists, recovery of chemicals, police uniforms etc., at the hideouts. That was all done on the basis of informations furnished by other accused. There is no inextricable link between the alleged informations furnished by Gilani and the facts discovered. None of the investigating officers deposed to the effect that on the basis of information furnished by Gilani, any incriminating articles were recovered or hideouts were discovered. On the other hand, the evidence discloses the supervening informations which led the I.Os. to discover the things.
The disclosure memo has also been assailed (Ext.PW66/13) on the ground that the arrest of Gilani was manipulated and therefore no credence shall be given to the police records. Whereas according to Gilani, the time of arrest was at 1.30 p.m. on 14th December, 2001 while he was going in a bus, according to the I.O., the arrest was effected at about 10 a.m. on 15th December, when he was about to enter his house. Though the time of arrest at 10 a.m. does not appear to be correct in view of the information which was already passed on to Srinagar regarding the truck of Shaukat there are certain doubtful features in the version of Gilani too that the arrest was effected on the afternoon of 14th December, 2001. It is not necessary to delve into this question further for the purpose of disposal of this appeal.
The last circumstance which needs to be discussed is about the telephonic conversation between Gilani and his brother Shah Faizal on the 14th December 2001 at 12.22 hours. His brother Shah Faizal examined as D.W. 6, spoke from Baramullah/Srinagar, which was intercepted and recorded on tape, Ex. P.W. 66/1, which conversation was admitted. The dispute is only about the interpretation of certain words used in that phone conversation. The conversation was in Kashmiri language, which was translated into Hindi by P.W. 71, a young man whose educational qualification was only V standard. As it was an ordinary colloquial conversation, there is no difficulty in the speech being translated by a less educated person. As against this translation, the defense version of translation was given by D.Ws. 1 & 2.
The relevant portion of the speech as translated by P.W. 71 is as follows:
Caller: (Bother of Gilani) What have you done in Delhi?
Receiver: (Gilani) It is necessary to do (while laughing) ( Eh che zururi).
Caller: Just maintain calm now.
Receiver: O.K. (while laughing)Where is Bashan?
This portion of the conversation appears almost towards the end of talk. The defence version of translation is as follows:
Caller: (Brother of Gilani) What has happened?
Receiver: (Gilani) What, in Delhi?
Caller: What has happened in Delhi?
Receiver: Ha! Ha! Ha! (laughing)
Caller: Relax now.
Receiver: Ha! Ha! Ha!, O.K. Where are you in Srinagar?
The controversy is centered on the point, whether the words "Eh che zururi" were used by Gilani or not. According to the prosecution these words indicate the state of mind of Gilani in relation to the atrocious incident in Delhi the previous day. The High Court commented thus in paragraph 346: "During the hearing of the appeal, we had called for the tape from Malkhana and in the presence of the parties played the same. Indeed the voice was so inaudible that we could not make head or tail of the conversation. We tried our best to pick up the phonetical sounds where there was a dispute as to what words were used, but were unable to do so. Testimony of PW 48 reveals that he could not analyse the talk as it was highly inaudible. PW 48 is a phonetic expert. If he could not comprehend the conversation in a clearly audible tone, the probability of ordinary layman picking up the phonetic sounds differently cannot be ruled out. The prosecution witness, PW 71, Rashid, who prepared a transcript of the tape is fifth class pass and it was not his profession to prepare transcript of taped conversation. The possibility of his being in error cannot be ruled out. Benefit of doubt must go to the defence."
However the trial Court took the view that the translation by PW 71 appeared to be correct. The learned Counsel for the State submits that the High Court should not have discarded this piece of evidence on the ground of inaudibility, when two of the defence witnesses could hear and translate it. However, the fact remains that the High Court was not able to make out the words used nor the phonetic expert PW 48. Moreover, there are different versions of translation. The defence version having been translated by persons proficient in Kashmiri and Hindi, the view taken by the High Court seems to us to be reasonable. At any rate, there is room for doubt. No doubt, as per the deposition of DW 6, the brother of Gilani and the version of Gilani in his statement under Section 313, the relevant query and answer was in the context of quarrel between him and his wife with regard to the Kashmir trip during Eid appears to be false in view of the tenor of the conversation. At the same time, in view of the discrepant versions, on an overall consideration, we are not inclined to disturb the finding of the High Court. However, we would like to advert to one disturbing feature. Gilani rejoiced and laughed heartily when the Delhi event was raised in the conversation. It raises a serious suspicion that he was approving of the happenings in Delhi. Moreover, he came forward with a false version that the remark was made in the context of domestic quarrel. We can only say that his conduct, which is not only evident from this fact, but also the untruthful pleas raised by him about his contacts with Shaukat and Afzal, give rise to serious suspicion at least about his knowledge of the incident and his tacit approval of it. At the same time, suspicion however strong cannot take the place of legal proof. Though his conduct was not above board, the Court cannot condemn him in the absence of sufficient evidence pointing unmistakably to his guilt.
In view of the foregoing discussion we affirm the verdict of the High Court and we uphold the acquittal of S.A.R. Gilani of all charges.
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