Yasin Malik May Have Given Up Guns In '94, But Did Not Desist From Violence; Can't Claim To Be Gandhian: Delhi Court

While awarding life sentence to Kashmiri separatist leader Yasin Malik in connection with Jammu & Kashmir terror funding case, a Delhi Court today observed that the crime in question fails the test of rarest of rare case as held by the Apex Court.

Special NIA Judge Praveen Singh of Patiala House Courts also rejected Malik's submission that he had followed Gandhian principle of non violence and was spear heading a peaceful non violent struggle.

"However, the evidence on the basis of which charges were framed and to which convict has pleaded guilty, speaks otherwise. The entire movement was planned to be a violent movement and large scale violence ensued is a matter of fact. I must observe here that the convict cannot invoke the Mahatma and claim to be his follower because in Mahatma Gandhi's principles, there was no place for violence, howsoever high the objective might be," the Judge said.

He added "It only took one small incident of violence at Chauri Chaura for the Mahatma to call off the entire non cooperation movement but the convict despite large scale of violence engulfing the valley neither condemned the violence nor withdrew his calendar of protest which had led to the said violence."

Mailk had claimed that after the cease fire in the year 1994, he had declared that he would follow peaceful path of Mahatma Gandhi and would engage in non violent political struggle. He had further contended that since then there was no evidence against him that in the last 28 years, that he had provided any hide out to any militant or had provided any logistic support to any terrorist organization.

Noting Malik's claim that he gave up the gun in the year 1994 and thereafter, he was recognized as a legitimate political player, the Court was of the opinion that there was no reformation of Yasin Malik.

"It may be correct that the convict may have given up the gun in the year 1994, but he had never expressed any regret for the violence he had committed prior to the year 1994. It is to be noticed that, when he claimed to have given up the path of violence after the year 1994, the government of India took it upon its face value and gave him an opportunity to reform and in good faith. tried to engage in a meaningful dialogue with him and as admitted by him, gave him every platform to express his opinion. However, as discussed in the order on charge, the convict did not desist from violence," the Court said.

It added "Rather, betraying the good intentions of government he took a different path to orchestrate violence in the guise of political struggle."

Furthermore, the Court said that the manner of the commission of crime, the kind of weaponry used in the crime would lead to a conclusion that the crime would fail the test of rarest of rare case.

While noting that the NIA argued that while awarding sentence, the court should consider that Malik was responsible for the genocide of Kashmiri Pundits and their exodus, the Court said:

"However, I find that as this issue is neither before this court, nor has been adjudicated upon and thus court cannot allow itself to be swayed by this argument. I accordingly find that this case does not call for awarding death sentence as demanded."

Malik has been sentenced as follows:

- Sec. 120B of IPC: imprisonment of 10 years and Rs. 10,000 fine

- Sec. 121 of IPC: life imprisonment

- Sec. 121A of IPC: imprisonment of 10 years and Rs. 10,000 fine

- Sec. 17 of UAPA: life imprisonment and Rs. 10 lakh fine

- Sec. 18 of UAPA: imprisonment of 10 years and Rs. 10,000 fine

- Sec. 20 of UAPA: imprisonment of 10 years and Rs. 10,000 fine

- Sec. 38 and 39 of UAPA: Imprisonment of 5 years and Rs. 5,000 fine

The development came after the Court had framed charges against Malik and others under Unlawful Activities Prevention Act (UAPA) in the case, in March this year.

However, Malik had pleaded guilty to the said charges.

Others who were charged and claimed trial are Hafiz Muhammad Saeed, Shabbir Ahmad Shah, Hizbul Mujahideen Chief Salahuddin, Rashid Engineer, Zahoor Ahmad Shah Watali, Shahid-ul-Islam, Altaf Ahmad Shah @ Fantoosh, Nayeem Khan, Farooq Ahmad Dar @ Bitta Karate and others.

However, the Court had discharged three namely Kamran Yusuf, Javed Ahmad Bhatt and SyedahAasiya Firdous Andrabi.

According to the chargesheet, various terrorist organizations such as Lashkar-e-Toiba(LeT), Hizb-ul-Mujahiddin (HM), Jammu and Kashmir Liberation Front (JKLF), Jaish-e- Mohd. (JeM), with the support of ISI had perpetrated violence in the Kashmir valley by attacking civilians and security forces.

It was alleged that funds were collected domestically and abroad through various illegal channels including hawala for funding separatist and terrorist activities in J&K and as such the accused had entered into a larger conspiracy for causing disruption in the valley by way of pelting stones on security forces, systematically burning of schools, damage to public property and waging war against India.

It was further alleged that in the year 1993, All Parties Hurriyat Conference (APHC) was formed to give political front to the secessionist activities.

Accordingly, the Ministry of Home Affairs vide order dated May 30, 2017 directed the NIA to register a case. The case was thus registered for offences under sec. 120B, 121, 121A of IPC and sec. 13, 16, 17, 18, 20, 38, 39 and 40 of UAPA.

While framing charges, considering the material on record, the Court was of the view that the statements of witnesses and documentary evidence had connected the accused persons with each other and to a common object of secession, their close association to terrorist or terrorist organizations "under the guiding hand and funding of Pakistani establishment."

The Court had added that there was an "orchestra conspiracy" committed by the accused persons in the matter as in such conspiracy, each player has its own instrument to play but sharing the same stage, every player or member of the orchestra knows the other player and the role the other person has to play.

Case Title: NIA v. Hafiz Muhammad Saeed & Ors.

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