NEW DELHI: The Delhi high court on Monday told the Jammu & Kashmir Liberation Front (JKLF) chief Yasin Malik to respond to the petition filed by the National Investigation Agency (NIA) against the trial court judgment that handed out a life term to Malik in a terror funding case in May 2022.
Solicitor general Tushar Mehta, appearing for NIA, sought the death penalty for Yasin Malik, stressing that the crimes that he has committed fall within the definition of the rarest of the rare crimes that merit the death penalty and even compared the 57-year-old JKLF chief to al-Qaeda chief Osama bin Laden.
The bench comprising justices Siddharth Mridul and Talwant Singh issued notice to Yasin Malik on NIA’s petition but disapproved of the comparison with Laden,
There can be no comparison between the two because Laden did not face any trial in any court of law, said justice Mridul. The bench has also issued a production warrant for Malik that will require the Tihar jail authorities to produce him before the high court on the next date of hearing.
“Possibly, USA was right,” said Mehta in response. Laden was shot dead by the US special forces in a fortified compound near the Pakistani capital Islamabad in May 2011 and his body was dumped in the sea.
Yasin Malik was sentenced to life imprisonment for waging war against the State on May 25, 2022, after he pleaded guilty in one terror funding case.
NIA special judge Praveen Singh held that his crimes struck at the heart of the idea of India but blocked the NIA push for the death penalty which cited many other crimes including the genocide of Kashmiri Pandits that Malik is accused of. “I find that as this issue (genocide) is neither before this court, nor has been adjudicated upon and thus the court cannot allow itself to be swayed by this argument,” the trial court said in its 20-page verdict.
Malik is currently incarcerated in Tihar jail and is serving life imprisonment awarded by the trial court.
Mehta said not awarding the death penalty just because he pled guilty during the trial will erode the faith in the justice delivery system.
“If this is not rarest of rare crime, then I question myself what would be? If death penalty is not given, then tomorrow all terrorist would come, plead guilty and avoid death sentence…, “ Mehta said.
Mehta said that Malik killed four IAF officers and also abducted Rubaiya Sayeed, the daughter of then home minister, to secure the release of terrorists who then went on to plot the 26/11 terror attacks.
Justice Mridul asked Mehta to show the part of the trial court’s order of charges where it was said that Malik was responsible for the death of public functionaries and that he abducted an individual to force the government to do something.
When Mehta’s team could not locate it for some time, the court asked the SG to take a pass over and show the specific averments in the order of charge, as framed by the trial court.
“Chargesheet it is there, where is it in order? We are not talking about charge sheet. We are talking about specific charges, “ justice Mridul said.
The court passed over the case for a few minutes and granted time to NIA to show the specific averment on the deaths and loss of lives in the trial order on charges.
When the hearing resumed, the SG told the court that Section 121 of the Indian Penal Code (waging war against the country), there was a specific reference to the death penalty. Under Section 121, the minimum punishment is life imprisonment while the maximum is death.
While also issuing notice on the application for condonation of delay, the court said, “In view of the circumstance that Yasin Malik, the sole respondent in this appeal, has inter alia pleaded guilty to a charge under Section 121 IPC which provides for alternate death sentence, we issue notice to him in both the application and appeal through jail superintendent”.
Malik was arrested in 2019 on terror funding charges. On May 10 last year, he pleaded guilty under sections 16 (terrorist act), 17 (raising funds for the terrorist act), 18 (conspiracy to commit terrorist act), and 20 (member of terrorist gang or organisation) of UAPA and sections 120-B (criminal conspiracy), 121 & 121 A (waging war against the state) and 124-A (sedition) of the IPC.
He was also awarded 10 years’ rigorous imprisonment under sections 120B IPC, 121A of the IPC and sections 15, 18 and 20 under UAPA. Additionally, he was also sentenced to five years imprisonment for sections 38 and 39 of UAPA. All the sentences will run concurrently.
Malik, one of Kashmir’s top separatists, is also charged in several other cases, including the 1989 abduction of Rubaiya Sayeed, daughter of then home minister Mufti Mohammad Sayeed, and the 1990 killing of four Indian Air Force personnel.
In its appeal filed through advocates Akshay Malik, Akshay Sehgal and Khawar Saleem, NIA said the country has lost many soldiers due to the “act of war” committed by terrorists. “Not giving capital punishment to such dreaded terrorist will result in miscarriage of justice, as, an act of terrorism is not a crime against society but it’s a crime against the entire nation; in other words, it’s an act of ‘external aggression’, ‘an act of war’ and an ‘affront to the sovereignty of nation’,” the plea said.
