The prosecution's story may be attractive, but it must be proven by "cogent evidence", a special NIA court here has observed while acquitting an employee of Islamic preacher Zakir Naik-led Islamic Research Foundation (IRF), arrested in 2016 for allegedly indoctrinating youngsters into joining ISIS.
The special National Investigation Agency (NIA) court judge A M Patil on Friday acquitted Arshi Qureshi, who worked at the IRF, now banned, of all the charges against him for lack of evidence. A detailed order was made available on Saturday.
Qureshi was arrested in 2016 following a complaint filed by the father of an alleged Islamic State of Iraq and Syria (ISIS) member, Ashfaq Majid, after he went missing and informed his sister that he joined terror outfit. The NIA had charged Qureshi under various sections of the Unlawful Activity (Prevention) Act (UAPA) for his alleged involvement in unlawful activities, in spreading hatred against India and for providing support to the proscribed terrorist organisation ISIS by furthering its activities.
Special public prosecutor Sunil Gonsavles said the case is related to the indoctrination of Ashfaq Majid and his associates into extreme Jihadi ideology by a group of like-minded youths from Kerala and some members of the IRF, who motivated and radicalised Ashfaq and his associates to join ISIS. He had submitted that another accused, Abdul Rashid Abdulla, used to conduct classes for the group of missing youths at Ashfaq's house.
They all used to discuss that India is not a land where Sharia law is established. They would discuss that to be a good Muslim and to be able to follow the best practices of religion one should live in the land where Sharia law is established, the SPP had argued. Abdulla was in touch with people from ISIS and used dark net browsers to communicate with them, the prosecution added. However, Qureshi's lawyers, T W Pathan and I A Khan, claimed that the NIA's FIR was an "afterthought and concocted at a belated stage" as the case was already being probed by two police stations (in Kerala).
The NIA case is "ingeniously designed" so as to implicate this accused, who is the employee of IRF Trust and there was no "direct as well as circumstantial" evidence against the accused, the lawyers said. As far as radicalisation/indoctrination/propagation of Jihadi mentality among the missing youths is concerned, there is no direct evidence or even circumstances against this accused. No witness has deposed about the same, they added. The prosecution examined 57 witnesses in the case, including the family members of the missing youth.
However the most important witness, Ashfaq's father, didn't support the prosecution's case. He deposed that he had filed a missing complaint about his son at a police station in Kerala. However, at Nagpada police station in Mumbai, a complaint was written by the police and he was asked to sign. The NIA's case is based on the FIR registered by the Nagpada police station.
The court noted that upon perusal of provisions of the law along with the facts, circumstance and evidence in the present case, it came to light that it was for the prosecution to prove the ingredients of the section by way of leading evidence.
"Mere submission does not take the place of the proof. Arguments and story of the prosecution may be attractive, but it must be proved by the cogent evidence. In absence of evidence it can not be said that prosecution has succeeded in proving the case," the court said. The most important testimony of the witnesses - the father, mother and brother of Ashfaq - is silent about the unlawful act and support given to the terrorist organisation by Qureshi, it said.
So far as the message given by Ashfaq to his brother (also a witness in the case) in respect of his stay in ISIS is concerned, serious doubt has been created on the testimony of this witness (Ashfaque's brother) because his mobile phone was not seized by the NIA along with the voice message, the court added. The court noted the theory of conversion of two witnesses to Islam by Qureshi also came under the shadow of doubt because of the testimony of these witnesses in their cross-examination.
They categorically deposed in the cross-examination that accused-Arshi Qureshi did not express any objectionable things or statement to them and they have no any complaints against the accused, the court said, adding the evidence of other witnesses too is not sufficient to prove the charge against the accused. "In these circumstances, it can be inferred that prosecution has failed to prove the charges against the accused-Arshi Qureshi and therefore, he is entitled to be acquitted," the court added. The IRF was declared an unlawful organisation by the central government in November 2016.