2000 Red Fort Attack | Supreme Court Issues Notice On Curative Petition Filed By LeT Militant Against Death Penalty

The Supreme Court on Thursday issued notice on a curative petition filed by Lashkar-e-Taiba militant Mohd. Arif, who was sentenced to death in the 2000 Red Fort attack case.

A bench of Chief Justice Surya Kant, Justice Vikram Nath and Justice JK Maheshwari issued notice on the curative petition challenging the November 2022 judgment of the Supreme Court which had affirmed the death penalty awarded to Arif and dismissed his review petition.

In the November 2022 judgment, the Court had held that acts of terrorism which challenge the unity, integrity and sovereignty of India constitute the most aggravating circumstances and outweigh any mitigating factors.

The case arises from the terror attack at the Red Fort in Delhi on December 22, 2000, when intruders opened indiscriminate fire, killing three Army jawans of the 7th Rajputana Rifles.

Mohd. Arif, a Pakistani national, was arrested on December 25, 2000. The trial court convicted him on October 24, 2005 and awarded him the death sentence on October 31, 2005. The Delhi High Court confirmed the death sentence by its judgment dated September 13, 2007.

The Supreme Court dismissed Arif's appeal against his conviction on August 10, 2011. His review petition was dismissed on August 28, 2011.

While upholding the death sentence at that stage, the Court had observed that the attack was directed against the nation, that Arif was a foreign national who had entered India without authorisation, and that the conspiracy involved deceit and multiple offences aimed at waging war against India and murdering Indian Army personnel. The Court had concluded that the death sentence was the only appropriate punishment in the circumstances of the case.

The Supreme Court stayed Arif's execution on April 28, 2014. In 2016, the Court decided to re-hear his review petition after a Constitution Bench ruling held that review petitions in death sentence cases must be heard in open court.

In the review proceedings, Arif raised several grounds, arguing that the courts had erred in admitting call detail records in evidence without the mandatory certificate under Section 65B of the Indian Evidence Act, 1872.

He contended that his disclosure statements were inadmissible due to alleged ill-treatment between his actual arrest and formal arrest. He also argued that the recovery of ammunition and the encounter of one Abu Shamal at Batla House could not be linked to his disclosure statement.

Another ground raised was that the courts had failed to consider the possibility of his retribution and rehabilitation, or whether he would continue to pose a threat to society.

While dealing with the challenge to electronic evidence, the Supreme Court noted that electronic evidence such as call detail records must be accompanied by a certificate under Section 65B(4), unless the original electronic record itself is produced.

Applying this principle, the Court held that the call detail records relied upon by the prosecution, which were not supported by the requisite certificate, had to be excluded from consideration.

The Court observed that even after excluding the circumstances directly attributable to the call detail records, the remaining evidence on record clearly established Arif's involvement in the crime beyond any doubt.

On the issue of sentencing, the Court rejected the argument that the possibility of retribution or rehabilitation had not been considered.

The Court held that there was nothing on record to support any mitigating circumstance in favour of Arif and that the aggravating factors, particularly the direct attack on the sovereignty of the nation, completely outweighed any mitigating considerations.

Case no. – Diary No. 29481/2024

Case Title – Mohd Arif@Ashfaq v. State (NCT of Delhi)