IMPORTANT POINT
A confessional statement to be reliable and acceptable should be voluntary and in the language of the accused.

JUDGMENT

V. S. Sirpurkar, J. —

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 RPC. 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 u/s. 307 of the RPC originally was converted into the offence u/s. 302 of the RPC 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