[Pulwama Attack] Jammu & Kashmir and Ladakh High Court rejects alleged conspirator's claim of 'juvenility'

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Synopsis

Allegedly, Islam harboured three Jaish-e-Mohammad terrorists in 2018, and in pursuance of a conspiracy to cause the Pulwama attack, he bought Aluminium powder for making IEDs which were used for a VBIED attack on CRPF personnel.

The Jammu & Kashmir and Ladakh High Court recently dismissed an appeal moved by one Waiz-ul-Islam, an alleged conspirator in the Pulwama attack in 2019, against the trial court order rejecting his claim of juvenility.

Allegedly, Islam bought the Aluminium powder for making two IEDs which were used for a Vehicle Borne Improvised Explosive Device(VBIED) attack at Lethpora, Pulwama on 14 February 2019 leading to the killing of 40 Central Reserve Police Force (CRPF) personnel.

A division bench of Justice Rajnesh Oswal and Justice Mohal Lal opined that if an offence is constituted of several acts and when the accused is major at a time when subsequent act is committed forming part of an offence, he cannot claim to be juvenile.

"Thus, this court has no hesitation to hold that the appellant was more than 18 years of age and was not juvenile at the time of commission of offence," Court, therefore, held. 

Islam challenged the trial court's decision on the ground that he was minor when he allegedly placed the order for purchase of the Aluminium powder from the Amazon.

His counsel argued that Islam was required to be treated as juvenile as the orders were placed twice in the month of January 2019 and the last consignment was received by Islam on January 22 whereas, his date of birth is January 25, 2001. Moreover, he submitted that there was no evidence that Islam was part of the conspiracy that led to the Pulwama attack. 

Perusing the records, Court noted, Islam has been figured as accused No. 7 in the charge-sheet filed by the National Investigation Agency (NIA) before the trial court and has been accused for commission of offences under sections 120-B read with sections 121, 121-A, 122, 123, 302 and 307 RPC, sections 4, 5 and 6 of the Explosive Substances Act, sections 16, 17, 18, 19, 20, 21, 38 and 39 of the Unlawful Activities (Prevention) Act, section 14 C of the Foreigners Act and section 4 of the Jammu and Kashmir Public Property (Prevention of Damage) Act, 1985.

Court observed that the charge-sheet against Islam revealed that allegedly he was in contact with the other Jaish-e-Mohammad terrorists and many incriminating voice notes and pictures of Islam had been recovered from Mohammad Umar Farooq’s (co-accused) mobile extract.

Therefore, stressing that the allegations against Islam were very serious and on the date of the Pulwama attack he was not a juvenile, Court refused to agree with the arguments of Islam's counsel. 

Furthermore, relying upon the judgment of the Supreme Court in Firozuddin Basheeruddin and others vs State of Kerala, (2001), Court stated, "...it is clear from the law laid down by the Apex Court that if two or more persons engage into a conspiracy, any act done by any of them pursuant to the agreement is, in contemplation of law, the act of each of them and they are jointly responsible there for."

Accordingly, Court concluded that in the instant case, the relevant date would be February 14, 2019 and once the VBIED blast took place on that date at Lethpora, Pulwama that was the ultimate result of a conspiracy of which Islam had been alleged to be a partner, then he was equally responsible for the said illegal act.

Case Title: Waiz-ul-Islam v. Union Territory of J&K through NIA Jammu