Deposition of Md. Usman Jan Khan (PW-2) Approver
148) In the light of the above principles, it is useful to analyse the entire evidence of PW-2 not only implicating A-1 but also other accused in respect of the incident that took place on 12.03.1993. PW-2, who turned approver, is a native of District Rampur, U.P. However, according to him, he is residing at Bombay for the last 28 years. He was working as an Estate Agent and Property Dealer. He was arrested on 10.05.1993 by the Bombay Police in connection with the Bomb Blasts Case. He was arrested on the allegations that he was involved in the conspiracy, landing, planning, training and planting of bombs. In his evidence, he admitted that he took training in handling of weapons in Pakistan for a period of 10 days along with others. During the training, according to him, they were also imparted training for handling RDX. For the present, since we are concerned about the role of A-1 relating to conspiracy, we are constrained to refer his evidence relating to the said aspect. He admitted that he knew Javed Dawood Tailor (AA) known as Javed Chikna, Mushtaq @ Ibrahim Abudal Razak Memon known as Tiger Memon and Yakub Adbul Razak Memon as Yakub (A1). While identifying the accused concerned in the Court, PW-2 identified him in the fourth batch consisting of eight persons. He further stated that all the accused persons whom he identified before the Court have worked with him and admitted that they were together in the bomb blasts. It was further stated that all the persons including A-1 were involved in planning, conspiracy, training, landing and planting of bombs. According to him, when he met Tiger Memon and others at Hotel Big Splash on 02.02.1993, he (Tiger Memon) told them that in communal riots in Bombay and Surat, Muslims have suffered a lot and Babri Masjid has been demolished and that restrictions have been put even on “Azaan” and “Namaz”. He informed all of them that during the riots their mothers and sisters have been dishonoured and the Government is not extending any help to them. So, he wanted to take revenge and he requested all of them to help him in this regard. When this meeting was going on, two persons, namely, Yeda Yakub and Shahid also joined them in the meeting. Tiger Memon also told them that he has arranged for arms and explosives from Pakistan which are coming on that day and he also warned them that if any person betrays him, he will finish him and his family.
149) He further deposed that on the same day, at about 4 p.m., all of them left for Shekhadi Coast in two Commander Jeeps. In one Jeep he was traveling along with Tiger Memon, Javed, Munna, Anwar, Akbar and Karimullah and others were in the second jeep driven by Shafi. According to him, at Shekhadi Coast, three agents of Tiger Memon, namely, Dadabhai, Dawood Taklya and Rahim Laundriwala along with 30/40 persons from the neighbouring village were present. At about 11 p.m., one speed boat came near the coast and passed over 7 military coloured bags containing guns, pistols and grenades of green colour having oval shape. The guns were AK-56 rifles. Tiger Memon distributed AK-56 rifles to Javed and Anwar and others including PW-2 were given handgrenades and pistols. PW-2 was also given a pistol. All the goods were loaded in a truck which was parked there. Tiger asked them to proceed towards Waghani Tower. When they reached Waghani Tower, PW-2 noticed that 2/3 jeeps and a Maruti Car were parked there. He along with others unloaded the goods from the truck and brought them to the central room of Waghani Tower. On Tiger’s instructions, he and others unpacked the bags. The bags were containing AK-56 rifles, hand grenades, pistols, round (cartridges), wires (detonators), magazines and RDX etc. All these items were then kept in the cavities of the motor jeeps. One box of detonators was kept in a blue coloured Commander Jeep by Shafi to take to Hotel Persian Darbar on the instructions of Tiger Memon.
150) He also explained about booking of a room in Hotel Persian Darbar at Panvel on 10.02.1993 in the name of Md. Usman Khan. On 11.02.1993, Javed Chikna came to his residence and asked for his passport telling him that ‘Tigerbhai’ has called for it. PW-2 handed over his passport to Javed Chikna. PW-2 informed the Court that he had obtained the passport in January, 1987 and his passport No. is B-751254. At about 1 p.m., he received a call from Javed Chikna informing him to come prepared for going to Dubai and to meet him at the Hindustan Soda Factory, Mahim. At about 4 p.m., he met Javed Chikna at the said place and from there Javed took him to the Al Hussaini Building. In categorical terms, he asserted that Tiger Memon resides in the Al-Hussaini Building at Mahim. On 11.02.1993, when he went there, Tiger Memon and Yakub Memon (A-1) were sitting together in the flat. Tiger Memon told Yakub Memon to give six air tickets to Javed Chikna (AA). Thereafter, Yakub Memon (A1) gave six air tickets to Javed Chikna. PW-2 and Javed Chikna wished “Khuda Hafiz” to Tiger Memon and left the place. Thereafter, he along with others went to the airport to go to Dubai. He reached Dubai at 10.30 p.m. At Dubai Airport, Ayub Memon (AA) had come to receive them. Ayub Memon is the brother of Tiger Memon. This was on 11.02.1993. He also informed the Court that on 13.02.1993, Tiger Memon and Ayub Memon met them at the Dubai Airport. Tiger Memon gave seven air tickets of Pakistan International Airlines and their passports to Javed Chikna. Tiger Memon informed all of them that they need not worry about their journey to Pakistan. He also informed that one Jafar Saheb will receive them at the Islamabad Airport and will take care of them. On reaching Islamabad Airport, Jafar Saheb escorted them and they were not required to pass through the immigration counter and various checks and they came out of the airport with their luggage without any problem. The Airport Officials salute Jafar Saheb when he was escorting them out of the Airport. He further explained that two Jeeps were parked outside the Airport and from there they were taken to a bunglow. On reaching the bungalow, Jafar Saheb collected their passports and air tickets and each one of them was given a fake name. He was named ‘Nasir’. Likewise, names of others were also changed. Jafar Saheb instructed them that during their stay in Pakistan they should call each other by these new names. They stayed in the bungalow for two days i.e. 14th and 15th. Then on 16th, Jafar Saheb took all of them to a different place and introduced them to two persons and informed them that these persons will impart training in arms and ammunitions and left the place. On the next day, three more persons joined the training camp and all of them were given training in operating fire arms like AK-56 rifles, pistols and they were also shown how to dismantle and reassemble the fire arms. Training in fire arms was given from 19.02.1993 to 21.02.1993. During this time, in the night, nine more persons came to the training camp, viz., Yeda Yakub (AA-11), Nasir Dhakla (A-64), Anwar Theba (AA-8), Irfan Chougule (AA-12), Shahnawaz (A-29), Abdul Akhtar (A-36), Mohmed Rafiq (A-94), Gullu (A-77) and Bashir Khan (AA-15). These persons also joined them for training. According to PW-2, in all, there were 19 persons taking training at the relevant time. On the next day, Tiger Memon along with one Ahmed Sahab arrived at the training camp and stayed there. In training, they were taught how to operate AK-56 rifles, pistols, hand grenades and the use of RDX for preparing bombs. They were given a practical demonstration of an RDX bomb which was fitted with a half an hour timer pencil detonator. The bomb explosion resulted in a deafening sound followed by huge black smoke and it blew up stonesand earth. The next day, Tiger left the camp. On 27.02.1993, they all returned from the training camp to the bungalow where they were kept on their arrival at Islamabad. All of them were escorted by Ahmed Sahab and Jafarbhai and without any checking they were given boarding cards and they left Islamabad by a PIA flight and reached Dubai at about 1.30 to 2 p.m. On reaching Dubai, Tiger took all of them to a bungalow situated at Al- Rashidia. After finishing their meals, they discussed the communal riots in Bombay and Surat where Muslims had suffered. Thereafter, Tiger directed Irfan Chougule (AA-12) to bring the holy Quran from the other room. Tiger administered oath to all of them by placing their hands on the holy Quran that they will not disclose anything about the training in Dubai and Pakistan to any person including their family members and about their proposed future plans and in the event that they were arrested by the Police they would not disclose their plans and names of their associates. Thereafter, Tiger Memon distributed 200 Dirhams to each one of them for shopping etc. Thereafter, they left Dubai in batches as and when they received their passports and tickets.
151) On 04.03.1993, they reached Sahar Airport, Bombay. The Disembarkation Card was filled by him in his own handwriting and he himself signed it. At the airport, he noted that one Ambassador Car and one Maruti Car had come to receive them. He further stated that Tiger Memon and Javed Chikna sat in the Maruti Car which was driven away by Tiger Memon. He along with Bashir Khan sat in the Ambassador Car in which Yakub Memon (A-1) and one more person was sitting. After reaching Mahim from there, he went to his house at 5 p.m.
152) The critical analysis of the evidence of PW-2 makes it clear that though he did not mention about the participation of A-1 in all the meetings, however, he identified A-1 in court and asserted that he is the brother of Tiger Memon and it was he who assisted his brother at the Al- Hussaini Building for all preparations, viz., purchasing tickets, getting visas, making arrangements for the persons who were sent to Pakistan via Dubai for training in handling and throwing bombs, filling RDX in vehicles etc., their stay at Dubai and comfortable return of such persons from Pakistan to Bombay, payments to various persons who underwent training which clearly prove the involvement of A-1 in the conspiracy as well as in subsequent events and actions along with his brother and other accused.
153) On the very same day, i.e, on 04.03.1993, all of them met at the Taj Mahal Hotel. In the hotel, they went to the Coffee shop, Shamiana. This was around 10.30 to 10.45 p.m. Tiger Memon, after discussion with one Farooqbhai took them towards the Share Market building in his car near Fountain and showed them the new and the old building of the Share Market. On the way, Tiger Memon told them to survey the Bombay Municipal Corporation Building and to check its two entrances. After noticing the same from there, they returned to the Taj Mahal Hotel. After dropping Tiger Memon at his residence i.e. at the Al-Hussaini Building, Mahim, they took his maruti car and went to the residence of Sardar Shawali Khan (A-54) at Kurla. Bashir Khan then administered oath to A-54 stating that whatever they will do, they will do for Islam and would take revenge for the demolition of the Babri Masjid and communal riots.
154) In respect of a question relating to the purpose of the survey, he answered that the purpose was to shoot down the Municipal Councillors of BJP and Shiv Sena parties with AK-56 rifles by indiscriminately firing upon them. After conducting the survey, they went to meet Tiger Memon and briefed him and after that left for their house. He explained that the third meeting was held on 07.03.1993 and in that meeting Javed Chikna (AA-7), Tiger Memon (AA-2), Nasim @ Yusuf (A-49), Kalu, Bashir Electrician (A-
13), Moin (A-43), Parvez Kelewala (A-100), Nasir Dhakla (A-64) and he along with Bashir Khan, Salim Rahim Shaikh, Akram @ Firoz and some persons who were with them in the training and Sardar Shahwali Khan (A-54) and Lalli were also present. In the said meeting, Tiger organized separate groups for surveying targets. The task assigned to his group was to survey the Sena Bhavan and Sahar Airport. According to him, as directed by Tiger, after completion of the work, he and others briefed Tiger.
155) On 08.03.1993, a fourth meeting was held at Babloo’s (AA-18) place between 10 and 10.30 p.m. This meeting was held at a flat on the terrace portion. After calling them, including PW-2 inside the flat, Tiger Memon selected the targets. These targets include Air India Building, Nariman Point, Bharat Petroleum Refinery, Chembur, Share Market near Fountain, Zaveri Bazaar near Mohd. Ali Road and Pydhoni, Five Star Hotels, Cinema Theatres, Shiv Sena Bhavan, Shivaji Park, Dadar, Bombay Municipal Corporation Building, V.T., Sahar Airport, Passport Office, Worli, Mantralaya etc. These were the places which were to be attacked by planting bombs, by using AK-56 rifles and by throwing hand grenades. Tiger Memon formed separate groups and gave instructions separately. About the Bombay Municipal Corporation Building, Tiger Memon also explained to them the entry and exit points of the said Building for the purpose of attacking BJP and Shiv Sena Councillors with AK-56 rifles. After this, they came back to Mahim and left for their residence.
156) According to PW-2, another meeting was held on 10.03.1993 at the Hindustan Soda Factory, Mahim in the evening. There he met Javed Chikna. At that time, Javed Chikna informed him that in the evening around 8 p.m. there is a meeting at Shakil’s place at Bandra and directed him to attend the said meeting. Pursuant to the same, PW-2 reached Shakil’s residence at 8.30 p.m. There he met Tiger Memon, Javed Chikna, Salim Bazarwala, Bashir Khan, Zakir, Nasir Dhakla, Parvez Kelewala, Moin, Iqbal, Sardar Shawali Khan, Bashir Electrician, Mehmood @ Kaloo and Nasim @ Yusuf. Tiger Memon also distributed Rs.5,000/- to each one of them in the said meeting. He explained to Tiger about the survey of the Chembur Refinery.
157) On the next day i.e., on 11.03.1993, they all gathered at the Hindustan Soda Factory, Mahim at 8 p.m. At 9.30 p.m., they received a phone call from Tiger Memon who directed all of them to reach the Al- Hussaini building immediately. Pursuant to the said direction, all of them including PW-2 went to the fifth floor of the said building, i.e, to Tiger’s flat and he noticed several persons interacting with Tiger. Tiger called him to his bedroom. There, once again, he explained the survey of the Chembur Refinery and informed him that there is very tight security, hence, it will be impossible to carry out the work there. On this, Tiger Memon cancelled the plan of Chembur Refinery. Tiger Memon instructed them that as they have learnt the work relating to detonators and timer pencils, they should fill RDX in the vehicles and place detonators and timer pencils in a proper way. They all agreed to do the same. Tiger Memon handed over some detonators and timer pencils to them. Tiger instructed them to go to the Share Bazaar i.e. Stock Exchange and Air India Building. Tiger also gave pencils to various persons and instructed Javed Chikna and Anwar Theba to pay Rs. 5,000/- to each one of them and also directed that they have to act and work according to the directions of Javed Chikna and Anwar Theba.
158) He further informed the Court that Tiger Memon conveyed to them that after the blasts in Bombay, there will be communal riots, so all of them should leave Bombay and they can contact him over the telephone. He gave his telephone No. of Dubai as 27 27 28. Thereafter, Tiger Memon met all of them and left in a Maruti Car with Anwar (AA-8), Asgar (A-10) and Shafi (AA-
9). He also stated that in the garage Abdul Akhtar (A-36), Iqbal (A-23), Moin (A-43), Kalu @ Mehmood, Nasim @ Yusuf (A-49) were filling RDX in the dicky of the motor vehicles. PWs 2 and 6 met Farooq Pawale (A-16) and Javed Chikna instructed Farooq Pawale to take one maruti car to Shiv Sena Bhavan, Dadar and park it near there. As directed, PW-2 accompanied A-16 in a white maruti car and it was he who drove the maruti car to Shiv Sena Bhavan. He further informed that one Hawaldar (Constable) was sitting there who was not allowing us to park the car but with great difficulty he parked the maruti car near the wall by the side of the service station within the campus of petrol pump. The said petrol pump was Lucky Petrol Pump and it has a common boundry wall with Shiv Sena Bhavan.
159) He also explained that after reaching the Al-Hussaini Building, he went to the fifth floor in Tiger’s flat. There he saw Javed Chikna was distributing hand grenades to some persons, namely, Salim Bazarwala (A-52), Abdul Akhtar (A-36), Kalu @ Mehmood, Moin (A-43) and Bashir Electrician (A-
13). They all were given four hand grenades each by Javed Chikna. He instructed them that they would have to throw these hand grenades in Fishermen’s Colony at Mahim. He also gave four hand grenades each to Iqbal (A-23) and Nasim @ Yusuf (A-49) and directed them to throw the same to Sahar Airport. As planned, several blasts took place at various places in Bombay. He contacted Tiger Memon and apprised him of the same and as directed left Bombay immediately and reached Calcutta. From there also, he contacted Tiger but he could not speak to him. He reached Delhi by train and went back to his village at Rampur, U.P. He was arrested on 10.05.1993 and on the same day, he was brought to Bombay. About his statement to DCP Bishnoi, he deposed before the Court on 25.06.1993 that the DCP has correctly recorded his statement. It bears his signature and is also counter signed by DCP Bishnoi.
160) On 20.09.1993, he wrote a letter to the Joint Commissioner of Police, Mr. M.N. Singh through the Jail Authorities. In this letter, he expressed that he is repenting the crime committed by him against his country and humanity and so he wanted to confess his crime before the Court. At Killa Court, ACP Babar told him that if he is really repenting what he has done then he can be made a witness and can be given pardon if he will tell the truth before the Court. On his statement, he was produced before the Chief Metropolitan Magistrate. The CMM asked him about his involvement in the Bombay blasts which took place on 12.03.1993. He stated before the CMM about his involvement in the conspiracy and planting of bombs and expressed that he is repenting for what he had done. When the CMM asked him whether he will state the same in the Court, PW-2 answered in the affirmative, i.e., Yes. At this, the CMM offered him pardon and he accepted it. The entire conversation between the CMM and PW-2 was recorded by the typist and read over to him. He also expressed that tender and acceptance of pardon was correctly recorded and it bears his signature. On 28.09.1993, when he was granted pardon in the Killa Court, he was brought back to the prison and kept in Ward No. 10.
161) In the cross-examination, he admitted that he had been a resident of Mahim since 1985. With regard to several questions put by various counsel, in his cross-examination, he admitted that he was involved in the case from the stage of conspiracy till planting of bombs and is responsible for the explosions. He also admitted that he participated in all the stages of conspiracy till the achievement of the object. He admitted that the blasts that took place on 12.03.1993 were very heinous and a serious crime.
162) When he was produced before the DCP, namely, Shri K.L. Bishnoi (PW-193) on 25.06.1993, in categorical terms, he explained that the DCP had cautioned him that he was going to record his confession under Section 15 of TADA and also warned him that he was not bound to make a statement before him and that the said statement would be used against him in the court during the trial.
163) In respect of a question relating to certain variations in his earlier statement (Exh. 25A), he informed the court that “I cannot say why it is not recorded in my statement Exh. 25A”. Though counsel appearing for the accused pointed out certain variations/omissions, if we consider the entire statement both in the examination-in-chief and his explanation in the cross examination, we are of the view that those omissions do not materially affect his statement. In fact, he has admitted that he narrated the whole story to Mr. Bishnoi and he recorded whatever was told to him. However, he admitted that certain statements have been incorrectly recorded in Exh. 25A.
164) In cross-examination, he reiterated what he had stated in the examination-in-chief that he came into contact with Tiger in connection with property dealing through Javed Chikna. Thereafter, he admitted that he used to meet Tiger at the Hindustan Soda Factory where Javed Chikna also used to visit. He informed the Court that Javed Chikna was a ‘dada’ and hatchman of Tiger. He was assured that there was no risk in participating in the landing of goods which were being smuggled by Tiger as Tiger was known for managing everyone. According to him, the Hindustan Soda Factory at Mahim was a den for all sorts of anti-social activities which was owned by the brother-in-law of accused Hanif Kandawala. In the meeting, he agreed to participate in the conspiracy because Tiger aroused his religious feelings mentioning about communal riots and demolition of the Babri Masjid. He admitted that on 12.03.1993, he left the Al-Hussaini building in a Maruti Van bearing No. MFC 1972 in order to attack the Bombay Municipal Corporation building which was the target entrusted to him and to his team.
165) When he was in custody, he came to know that most of other accused have also made confessions like him. He also admitted that he was aware that they will be caught for the destruction caused in bomb explosions and the maximum penalty will be death. Assistant Commissioner of Police, Mr. Babar had told him in Killa Court that if he agreed to become a prosecution witness and make a true and full disclosure of events, he will be granted pardon to which he agreed. According to him, he read the Order Exh. 27. The order was directed to be produced before the Metropolitan Magistrate, 13th Court, Dadar for recording a statement under Section 164. In para 215 of the cross-examination, in categorical terms, he admitted “my statement Exh. 25A is correctly recorded except small mistakes and so what I deposed before the Court in my examination-in-chief and recorded on Page 138 in para 88 to the effect that my statement recorded on 28.06.1993 and 29.06.1993 is correctly recorded, is correct.”
166) In para 233 of his cross-examination, PW-2 has admitted that “the contents of the retraction (Exh-D-2) are not his statements as it contains language and words of a qualified person conversant with legal terminology”. For another question, he specifically denied that prior to becoming an approver, he was trying to extract money from other accused persons. He also denied the allegation as incorrect that on 05.10.1993 he expressed his unwillingness to become an approver and showed his anxiety to join the company of other accused. He also denied the allegation that while he was in police custody, the police obtained his signature on blank sheets.
167) With regard to the Al-Hussaini Building, he stated that there were certain open and closed garages. He described that the Al-Hussaini building is a multistoried building and Mahim Police Station is situated at a walking distance of one minute from the said Building. In para-243 of his statement, in categorical terms, he admitted that “I have participated in all the stages of conspiracy till Bombay blasts on 12.03.1993 i.e. in landing of arms and ammunitions and explosives, weapons training at Islamabad, survey of targets chosen for causing bomb explosions in various meetings held to plan things and also in planting of motor vehicle bombs near Shiv Sena Bhavan and in the unsuccessful attempt to attack i.e. preparation by proceeding towards the goal in a Maruti Van MFC-1972 to attack Councillors of BJP and Shiv Sena in B.M.C. Building at V.T.”
168) Regarding weapons training, he mentioned in para 244 that “It is correct to say that for the first time in my life, I was given weapon training in handling and operation of AK-56 rifles, 9 mm pistols, handgrenades and RDX explosives during the period 17.02.1993 to 27.02.1993. Before this, I have never operated any fire arm. It is true that I was given a loaded Pistol at Shekhadi Coast on the night of 02.02.1993 with clear instructions to attack any outsider who comes to the landing site, I did not tell Tiger Memon that I do not know how to operate Pistol.” Regarding training and execution of work, he stated that “my object was to take training and participate in the acts in accordance with the instructions of Tiger Memon”.
169) About his reaction after Bombay blasts, he stated in his deposition that “on 12.03.1993, after the successful explosion of bombs, my only desire was to run away and escape as otherwise if I was arrested by the police, my position would have been precarious.” Regarding landing of ammunitions and explosives, he admitted that arms and ammunitions and explosives were landed at Shekhadi in the intervening night between 02.02.1993 and 03.02.1993 and this consignment was carried out as per the instructions of Tiger Memon.
170) Regarding filling of RDX and other ammunition, he stated that the work of filling RDX in the motor vehicles started after half an hour of Tiger Memon’s departure. According to him, there were about 10-12 motor vehicles like Ambassador cars, Maruti cars, Commander jeeps and scooters. He explained that a motor vehicle bomb can be prepared by loading RDX explosive in its dicky or at any place in the vehicle and by fixing it with a timer pencil and that it will explode at the time set in the Timer Pencil. The time of explosion will deviate and depend on the temperature. The timer pencil which he was shown in the training had a duration ranging from half an hour to five hours. He and others were trained in Pakistan to prepare motor vehicle bombs.
171) In para 322, he asserted that in his statement before P.I. Pharande, DCP Bishnoi and P.I. Chavan, he had stated the truth and made full and true disclosure of all the facts within his knowledge. In his statement before these officers, he reiterated that he had stated all the relevant and important events within his knowledge. He also admitted that “he was motivated to participate in this heinous crime by Tiger Memon by arousing his sentiments by administering oath on holy Quran for taking revenge of the demolition of Babri Masjid, riots in Bombay and Surat in which Muslim people had suffered a lot, destruction caused in communal riots in Bombay and Surat, restrictions imposed on ‘Azaan’ and ‘Namaz’ and dishonouring of their family members in riots and Government remaining silent and hence, he got prepared to participate in the crime to take revenge.”
172) With regard to the relationship of A-1 with his brother and others, it was stated by him that “In my statement before P.I.Chavan I have stated that Yakub Memon, with one more person had come to receive us at the Sahar Airport on our return from Dubai as stated by me before the Court which is recorded on Page: 108 Para 60. Similarly, I also stated that I along with Bashir Khan sat in the Ambassador Car in which Yakub Memon and one more person were there, as stated by me before the Court, but, it is not recorded in my statement before P.I.Chavan, I can not assign any reason why it is not recorded by P.I.Chavan.” He also reiterated that his confessional statement was recorded as per his narration and DCP, Bishnoi (PW-193) used to dictate it to the typist as per his say.
173) He is also very well aware of the fact that giving false evidence in Court is an offence and asserted that he is a law abiding citizen. In para 364, he fairly accepted that after recording his statement and after its completion, he signed it on all the pages at the bottom and at the end of the statement before he came out of the office of the DCP. After his signature, DCP Bishnoi checked up his signature on all the pages and, thereafter, he also signed the same.
174) About his willingness to confess his guilt before the Court, let us consider whether all the required formalities and procedures have been complied with by the concerned investigating officer and the court concerned. The Chief Investigating Officer, Bomb Blast Case, in his letter dated 28.09.1993, addressed to the Chief Metropolitan Magistrate stated that after the Bombay blast that took place on 12.03.1993, one of the accused, namely, Mohammed Usman Ahmed Jan Khan (PW-2) who also participated right from the conspiracy ending with blasts on 12.03.1993 and who had been arrested has submitted an application from jail on 20.09.1993 expressing voluntary readiness and willingness to confess his guilt before the Court. In the said letter, it was further stated that during the investigation, it has transpired that a conspiracy was hatched between the accused persons in Dubai and in pursuance of the said conspiracy, some of the accused persons involved in the blasts were sent to Pakistan for training in handling RDX explosives, firearms, grenades etc. It further transpired during investigation that the said conspiracy was hatched in order to strike terror in people as well as to affect adversely the harmony between Hindus and Muslims and also to wage war against the Central and the State Government. In the said letter, it was further stated that except the participants, nobody had any personal knowledge of how, when, where and why the criminal conspiracy was hatched and how all the details were chalked out to perfect the said conspiracy, how different acts were carried out with determined intention of achieving the object of the said conspiracy including training in Pakistan, how RDX explosives and other firearms were smuggled into India, how the RDX laden vehicles were planted at different places in Bombay and how the bomb blasts took place. The officer has further stated that the said accused (PW-2) has voluntarily expressed his desire to confess before the Court out of repentance. Accordingly, he suggested that instead of his mere confession, his evidence before the Court as a prosecution witness would help the prosecution to a great extent in collecting evidence against such other offenders. He also noted that inasmuch as the accused is repenting very much and is prepared to run the risk of giving a judicial confession, the said accused would be a very good witness as an approver if pardon is granted to him by this Court. Hence, it was urged that it is necessary to tender pardon to the said accused on the condition of his true and full disclosure of all the facts and circumstances within his knowledge so far as conspiracy hatched in Dubai, training in Pakistan, smuggling of RDX and landing of the same at Dighi and Shekhadi coasts, transportation of RDX to Bombay, filling of the vehicles with RDX and planting of the same at important places in Bombay on 12.03.1993 and other acts incidental thereto are concerned. With these particulars and details, the Chief Investigating Officer prayed before the Court or such other Metropolitan Magistrate that he may kindly be directed to record his statement under Section 164 of the Code.
175) The said application of the Chief Investigating Officer, Bombay Bomb Blast case on 28.09.1993 was submitted to the Court through Special Public Prosecutor Shri Nikam. Shri Nikam has also produced the warrant issued by the Designated Court in Misc. Application No. 632 of 1993 in TADA Special R.A. No. 34 of 1993. In the said warrant, the Designated Court directed that the accused Mohammed Usman Jan Khan be produced and forwarded to the Court of Chief Metropoitan Magistrate on 28.09.1993 at 1200 hours with a direction to the said Court to tender pardon to him on the condition of his true and full disclosure of facts pertaining to the Bombay blast offences within his personal knowledge. Thereafter, after fulfilling all the formalities, the said accused was first questioned by the Chief Metropolitan Magistrate, Bombay at 4.15 p.m. The accused stated that he is aware that he is before the Court of Chief Metropolitan Magistrate of Bombay. Thereafter, the Chief Metropolitan Magistrate showed the accused his handwritten application dated 20.09.1993 addressed by him from Bombay Central Prison to Shri M.N.Singh, Joint Commissioner of Police, Bombay. The accused identified his hand writing and his signature. On being confronted with this letter, the accused stated that the letter was written by him voluntarily. The Chief Metropolitan Magistrate, thereafter, asked the accused as to whether he was aware as to why he was being produced before him. By way of reply, the accused stated that he was involved in the Bombay blasts which took place in Bombay on 12.03.1993 along with other persons in a conspiracy and as he desires to disclose all these things in full detail, he is being produced before him. The Chief Metropolitan Magistrate further noted that he was prepared to make all the disclosures in detail. The accused also replied that he is ready and willing to stand as a witness for prosecution and would make all these disclosures if pardon is granted to him. The Chief Metropolitan Magistrate has also recorded that on going through the replies given by the accused to several queries, he was satisfied that the accused is ready and willing to give a full and true disclosure of all circumstances within his knowledge relating to Bombay Bomb Blasts Case. The Chief Metropolitan Magistrate has also carefully perused the report of the Chief Investigating Officer and was fully satisfied that it is a case of conspiracy and in pursuance to the said conspiracy, the accused and other persons had planted and caused explosion of bombs at various places in Bombay on 12.03.1993. Therefore, he was satisfied that the grounds given by the Chief Investigating Officer in his application were true and correct. After recording the same, on 28.09.1993 itself, he passed an order in view of powers conferred on him under Section 306 of the Code and tendered pardon to the accused-Mohammed Usman Jan Khan (PW-2) on the condition of his making full and true disclosure of all the circumstances within his knowledge relating to the blasts which occurred on 12.03.1993 and also in respect of the offence of conspiracy and such other offences connected therewith in the commission thereof. The said order has been read over and explained to the accused in Hindi and he accepted the tender of pardon on the aforesaid condition. Pursuant to the same, the Superintendent, Central Jail, Bombay was directed to keep the accused (PW-2) in a separate cell under proper surveillance and to make him available for the purpose of producing him before the Metropolitan Magistrate for recording his statement under Section 164 of the Code as requested by Chief Investigating Officer. The above mentioned letter of the Chief Investigating Officer dated 28.09.1993 and the consequential order passed by the Chief Metropolitan Magistrate dated 28.09.1993 giving pardon and recording his statement satisfy the procedure prescribed and there is no flaw with regard to the grant of pardon and the recording of his statement thereafter.
176) A perusal of the entire evidence of PW-2 clearly show that at no point of time he acted under pressure to become an approver. It is also clear that after serious thought and due to repentance, he realized that in such a serious matter it is better to reveal all the details to the Court. He withstood the lengthy cross-examination. PW-2’s testimony runs into hundreds of pages and he covered all the aspects starting from initial conspiracy and ending with execution of blasts at various places in Bombay on 12.03.1993. We are also satisfied that his confessional statement before the Deputy Commissioner of Police and his statement before the Designated Court are not borne out of fear but due to his conscience and repentence. We are also satisfied that his statement is believable and merely because at one or two places, he made certain comments on the omission/addition in the statement recorded by the Chief Investigating Officer, it does not materially affect the statement. On the whole, his testimony is reliable and acceptable and the Designated Court rightly relied on his entire statement in support of the prosecution case.
177) It was further contended by learned senior counsel that the evidence of the approver does not incriminate the appellant (A-1). The deposition of PW-2 reveals several incriminating circumstances against the appellant (A-1) which may be summarized as follows:
(i) PW-2 identifies the appellant in Court.
(ii) PW-2 has deposed that on being told by Tiger Memon (AA), the appellant gave six air tickets to Javed Chikna (AA) at Al-Hussaini Building on 11.02.1993 for going to Dubai. PW-2 and Asgar Mukadam (A-
10) were also present at the flat of Tiger Memon where the appellant handed over air tickets to Duabi. Further, the fact that three air tickets were given by the appellant to Javed Chikna instead of six has been expressely denied by PW-2.
(iii) These six air tickets were actually used by the accused persons to undergo training in Pakistan where they went via Dubai. The appellant was thus instrumental in achieving the ultimate object of conspiracy by arranging for and handing over the air tickets to accused persons in the presence of Tiger Memon.
(iv) On return from arms training in Pakistan, PW-2 states that Tiger Memon (AA), Javed Chikna (AA), Bashir Khan (AA) and he returned together from Dubai to Bombay on 04.03.1993 by Emirates Flight. At the airport, two cars were waiting to receive them and PW-2 sat in an Ambassador car in which the appellant was also present.
178) PW-2 stated that the tickets were given by the appellant to a co- conspirator which fact has been corroborated by A-10 in his confessional statement. If this evidence is considered along with the fact that these tickets were arranged by the appellant (A-1) and he was present in the meeting of the co-conspirators, i.e., in the meeting of Tiger Memon, PW-2, Javed Chikna and A-10, it very clearly establishes his unity with the object of the conspiracy.
179) The prosecution has established by evidence that arranging the tickets to Dubai was one of the responsibilities of A-1. It is very clear that the deposition of PW-2 to the extent that when PW-2 and other conspirators were called by Tiger Memon, Yakub Memon was also present there, who on being asked by Tiger Memon, handed over the tickets to a co- conspirator which clearly establishes the active participation of A-1 in the conspiracy. If it was a conspiracy only known to Tiger Memon and Yakub Abdul Razak Memon did not share the object of the conspiracy with the Tiger Memon and other co-conspirators then Tiger memon would not have met with the co-conspirators in the presence of A-1. The fact that the co- conspirators were called for the meeting in the presence of A-1 and were being given instructions by Tiger Memon about the conspiracy in his presence clearly establish the active participation of A-1 in the conspiracy.
180) It has further come in evidence that when PW-2 returned from Dubai along with Tiger Memon and other co-conspirators, A-1 was present with the car at the airport and returned to Mahim along with other co-conspirators. In fact, if A-1 had gone to the airport to receive his brother only, he would then have returned in the car with his brother alone. However, he came back in the car with other co-conspirators which also show his familiarity with other co-conspirators.
181) It has also been contended by learned senior counsel for A-1 that the evidence of an approver is very weak and reliance has been placed on various decisions of this Court to that effect. In the light of the provisions of Section 133 read with Section 114 Illus (b) of the Evidence Act this Court has held that the evidence of an approver needs to be corroborated in material particulars. The evidence of the approver has been corroborated in material particulars by way of primary evidence by the prosecution. The following table may summarise the corroboration provided by various materials and evidence on record:
|Sr. | Deposition of PW-2 | Corroborating Evidence ||No. | | |
|1 |Stay of co-accused and |Entries in the Big Splash Hotel (Register) || |Meeting at Hotel Big | |
| |Splash by Tiger Memon |Confession of co-accused A-24, A-12, A-15, A-29|| | |and A-64. |
| | | || | |Employees of Hotel Big Splash – PWs 141 and | | | |304. |
|2 |a) Participation in Ist|Confession of co-accused A-14, A-17, A-64, |
| |Landing-Unloading and |A-16, A-12, A-29, A-15, PW-108 and PW-137 |
| |loading at Wagni Tower |(Watchman of Wagini Tower), PW-145 (panch), |
| | |PW-588 (I.O.) || | | |
| |b) Participation in |Confession of co-accused A-64, A-16, A-100, |
| |IInd landing –Stay at |A-24, A-58, A-14, A-17 and A-11. | | |Persian Darbar | | | |Hotel-During |Art.-1. Entries in Hotel Register by name M.V. | | |transportation –visit |Khan. Exh. 20. | | |of 2 Customs Officer. |(A-14), A-82 and A-113. | |3 |Handing over of Tickets|PWs-311, 341, 420 | | |by A-1 |Confession of A-46, A-67 and A-10. | |4 |Departure to Dubai and |Exh. 21-A – Embarkation Card (Emirates) | | |from Dubai to Pakistan |Confession of A-100, A-52, A-16 and A-32. | | |for training |Immigration Officers-Bill-1244 | |5 |Assumed names given to |Exs. 1243, 1244, 1247, 1245 | | |the trainee’s |A-52, A-100, A-32, A-36, A-49, A-98, A-16, | | |co-accused |A-64, A-29. | |6 |No checking at the time|Passport of A-77, Exh. 1730 | | |of arrival in Pakistan |A-29 Exh. 1731. | | | |A-98 Exh. 648 | |7 |No checking at the time|Confession of co-accused A-39, A49, A-98, A-64,| | |of Departure from |A-52 and A-16. | | |Pakistan | | |8 |Administration of Oath |Exh. 2487 – Tigers presence at Dubai. | | |at Dubai by Tiger Memon|Exh. 2490 – Ayub’s Passport. | | | |Confesion of co-accused A-64, A32, A-36, A-39, | | | |A-49, A-98, A-52 and A-16. | |9 |Arrival in India |Disembarkation Card-Exh. 22 – Emirates and | | | |other Disembarkation Card and Immigration | | | |Officer. | |10 |Meeting at Taj Hotel |Confession of co-accused A-44 | |11 |Meeting at the |Confession of co-accused A-32, A-52, A-49, | | |residence of accused |A-13, A-64 and A-100. | | |Mobina on 07.03.1993 | | |12 |Survey of Shiv Sena |Confession of co-accused A-100 and A-64. | | |Bhavan and Sahar | | | |Airport | | |13 |Meeting at the |Confession of co-accused A-64, 39, 16 and A-98.| | |residence of Babloo | | |14 |Selection of targets |Confession of co-accused A-64, 39, 16 and A-98.| |15 |Meeing at the residence|Confession of co-accused A-52, 64, 100 and | | |of Mobina |A-13. | |16 |Survey of Chembur |Confession of co-accused A-39. | | |Refinery | | |17 |Meeting at the |Confession of co-accused A-64, 13, 52, 100, 49 | | |residence of Tiger |and A-29. | | |Memon Distribution of | | | |Money | | |18 |Departure of Tiger |Exh. 2487-Tiger’s Passport. | | |Memon |Confession of co-accused A-10 and A-9. | |19 |Filing of RDX | Confession of co-accused A-57, 12, 39, 49, 64,| | | |23 and A-43. | |20 |Planting at Shiv Sena |Confession of A-16, PW-11 and 12 identified | | |Bhawan |Pw-2 and A-16. | | | |PW-469-SEM, TI Parade. | | | |Letter to FSL 2447, 2469. | | | |FSL opinion 2447A, 2448. | |21 |Distribution of |Confession of co-accused A-32, 36, 39, 52, | | |Handgrenades for |Pws-5 and 6 and PW-13. | | |throwing at Mahim | | |22 |Member of Maruti Van |Seizure of Van-Pw-46 and PW-371. | | |MFC-1972 with other | | | |co-accused | | |23 |Presence at Tonk |Confession of co-accused A-20 and A-130. | |24 |Stay at Hotel Harry |Art. 2 | | |Palace-New Delhi in the|Exh. 3. | | |name of Nasir Khan. |Art. 3, Exh. 24. | | |Natraj-Howrah | |
182) It is further contended by the appellant (A-1) that the statement of approver dated 25.06.1993 given to DCP Bishnoi-(PW-193) was subsequently retracted in terms of a letter dated 10.12.1993 and, accordingly, should not be relied upon. The said statement has not been pressed into service by the prosecution during the course of trial against any accused person including the appellant. PW-2 has himself explained the episode leading to the drafting of the said retraction and stated that the said statement was drafted at the instance of one Hanif Kadawala and Samir Hingora. The witness remained unshaken about the said aspect in the deposition. PW-2 was clear that he was told in jail by Hanif Kadawala and Samir Hingora that unless PW-2 retracts his statement they would finish him and his family. The following extracts from the deposition are pertinent in this regard: Para 142 of the cross-examination of PW-2 “…..(The attention of the witness is drawn to one letter tendered by Majeed Memon) “This letter has been written by me at the instance of Hanif and Samir at the time I was made to write my retraction by them. The letter is marked as Exh. D-1. This letter D-1 was got prepared as a rough note on the basis of which my retraction was finalized on 10.12.1993. The application dated 10.12.1993 retraction is marked as D-2. At the time in my examination in chief on 21.07.1995 whebn I stated before the court that Exh. D-2 was obtained from me by Hanif Kadawala and Samir Hingora I did not mention that there was another letter or letters obntained by them like the letter Exh. D-1. Witness volunteers that there were two/three such letters prepared and on the basis of all such letters the retraction Exh. D-2 was finalized and produced before the Court. I did not read it but has written Exh. D-1 as dictated to me by Hanif Kadawala and Samir Hingora. All these letters which were prepared before the retraction D-1 were in possession of accused Hanif Kadawala and Samir Hingora. I did not want to die. Today I do not fear deasth. At this stage witness complains to the Court that his family members are receiving repeated threats and on Saturday i.e. 29.07.1995 in his jail mulaquat he was informed that the family is receiving threats he suspects the threats are coming from Samir Hingora and Hanif Kadawala. The witness wants the court to take necessary action.” Para 143 “…It is not correct to say that no threats have been received by my family members and tht I am mentioning this in the Court falsely.” In my statement Exh. 25-A recorded by DCP Bishnoi there is no mention on names Hanif Kadawala and Samir Hingora because at that time I was not concerned with them. Till Friday 28.07.1995 I did not tell about these letters like D-1 and others to any authority or to the court as it was not asked. I had made a complaint to the court. I have made an oral complaint 15/20 days of filing the retraction Exh. D-2. I did not make any complaint t the court as I was with the accused persons in jail and I was afraid of them.” Para 91 “….I sign in Hindi and English as per my choice. I can read write and understand English. …..It is true that his application was written by me and is signed by me and it was forwarded to the court. This application is written in my hand. This application was not presented by me but it was presented by hanif Kadawala and Samir Hingora. This application was obtained from me against my wish. I did not complain of this to the court at any time till today. I did not complaint to the Superintendent Jail about this application that it has been obtained from me by the other two accused against my wish either orally or in writing.
Para 233 “The contents of the retraction D-2 are not mine as it contains language and words of a qualified person conversant with legal terminology. The retraction D-2 was written by me during the day on 9- 12-1993 and was submitted in the court on 10-12-1993 through the Jailor. This was written by me when I was with other accused persons in the circle. In my Retraction Exhibit D-2 there is no reference of Samir Hingora nad Hanif kadawala……” Ans: “I did not tell the court because I was kept with the accused persons and was under their influence and pressure”.
Para 234… “It will be correct to say that Hanif Kadawala, Samir Hingora and Abdul Hamid Birya these three accused persons had filed an application before this court on affidavit that I am demanding monies from them. I do not know what were the contents of the affidavit filed by these three accused persons before this Court. I was informed by these accused persons that they are going to file such an affidavit in the court before it was filed in the court on 1-10-1993. The accused Abdul Hamid Birya was not in it and he did not tell me that he was going to file such an affidavit. It is not correct to say that I demanded a huge sum of money from hanif kadawala and samir hingora for not becoming an approver. It is not correct to say that I also told them if they do not give me money I will falsely implicate them. It is not true that for these reasons the accused Hanif kadawala and Samir Hingora filed an application on oath before this court on 1.10.1993. It is not correct to say that similarly I have been demanding monies from other accused persons otherwise I threatened them of falsely implicating them in the case. It is not correct to say that at the instance of police I was pressurizing the accused persons to turn approver like me……..” In para 235….”It is not correct to say that prior to becoming an approver I was trying to extract money from the other accused persons. It is not correct to say that as I did not get Satisfactory response from the accused persons I turned to the police expressing my willingness to become an approver and negotiated terms and conditions with them. It it not correct to, state that I made deliberate mistakes in my letter addressed to Mr. M.N.Singh i.e. Exh. 26 in order to keep my options open. It is not correct to state that after making an half hearted attempt of becoming an approver I again started demanding money from the accused to decide on the names of involvement and non-involvement in my evidence. It is not correct to state that immediately, prior to my evidence in the court and during my evidence being recorded & I coerced or induced the accused persons at the instance of police to turn approver in the case like me and failed. It is not correct to state that my evidence before the court and attribution of roles of various accused persons is guided by this consideration.” Para 236…”It is not correct to state that retraction D-2 was prepared by me with the assistance of co-accused persons on my request and willing. It is not correct to state that I approached the accused S M Thapa, R K Singh and Mr. Sayyed of the Customs Department by requesting them to prepare an effective retraction. It is not correct to state that retraction D-2 was read over and understood by me and I willingly signed it in the presence of jailor for dispatch to this court.” Para 237…. “It is correct to state that the co-accused facing trial in this case were unhappy on my becoming an approver. It is not correct to say that in order to convince the accused persons that in reality I have not become an approver and I have mislead the police by writing exhibit 26 in which I have deliberately made three important mistakes and that the accused should be rest assured that I am not an approver, I wrote the letter D-1 to be retained as a documentary proof of the above fact with the accused.” Para 238….”It is not correct to state that on 28-9-1993 before I signed Exhibit 27 the order was not read over to me or I read it. It is not correct to state that Hanif kadawala and Samir HIngora never threatened me at any time. It is not correct to state that I did not write anything like D-2 under the threat or influence of Hanif and Samir. It is not correct to state that letter Exhibit D-1 is not a preparatory note.” Para 243….”It is not true to say that my confession Exhibit 25-A is involuntary and my retraction Exhibit D-2 is voluntary. It is not true to say that my letter Exhibit D-1 is true expression of events written by me in the said letter on my own accord and independent of any external influence. It is not true to say that it is not possible for any co-accused to repeatedly give threats to other accused and extract any writings spread over several days. It is not correct to say that accused Hanif kadawala and Samir Hingora never gave me any threats and never asked me to write anything against my wish anytime. It is not true to say that I am making false statement against Hanif and Samir because they refused to pay monies demanded by me.”
183) It has been further contended by the appellant (A-1) that there are variations in the statement given by PW-2 in relation to the air tickets to Dubai. PW-2, in his examination-in-chief has clearly stated that the appellant (A-1) gave six air tickets for Dubai to Javed Chikna (AA) on 11.02.1993, on the instructions of Tiger Memon. This statement has been clarified by PW-2 in his cross-examination where he confirms that “It did not happen that Tiger Memon told Yakub Memon to give six air tickets to Asgar and Yakub Memon gave six air tickets to Asgar. The air tickets were given to Javed Chikna by Yakub Memon as told by Tiger Memon…” It is wrongly recorded in my statement Exhibit 25A. I cannot assign any reason why it is so recorded.” Further, PW-2 has clarified his statement and asserted that it was the appellant (A-1) who gave the air tickets. It is further submitted that there is no contradiction about the fact that such a meeting amongst the co-conspirators took place where the appellant (A-1) was present and he was asked to provide the tickets. The contradiction pointed out by the defence does not go to the root of the matter and is not a material contradiction.
184) In the light of the above discussion, we hold that the evidence of PW- 2 very clearly implicates the appellant (A-1) in respect of his involvement in the conspiracy.
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