"Even Osama bin Laden...": SG refers to Al-Qaeda founder while seeking death penalty for Yasin Malik

Solicitor General Tushar Mehta while appearing for the NIA demanded a death sentence for Malik saying that the case was the rarest of the rare cases.

New Delhi:The Delhi High Court on Monday issued a notice to jailed Kashmiri separatist leader Yasin Malik over a plea by the National Investigation Agency seeking a death sentence for him in the terror funding case even as the Solicitor General (SG) Tushar Mehta referred to Al-Qaeda founder Osama bin Laden to buttress his claim that terrorists can dodge death penalties by pleading guilty.

A bench of Justice Mridul and Justice Talwant Singh while hearing the request by the NIA, issued a notice to Malik, who is in Tihar Jail after being sentenced to life in an alleged terror funding case. The bench also issued warrants that Malik be produced before it on August 9.

Solicitor General (SG) Tushar Mehta, who appeared on behalf of the NIA, argued that the accused indulged in terrorist and secessionist activities and should be awarded the death penalty by treating the matter as a rarest of rare case. Mehta said the NIA's plea was an appeal against the sentencing order as he emphasised that a terrorist cannot be awarded a life sentence because he has pleaded guilty and chosen not to go through the trial. Such a tactic by an accused to avoid the death penalty, he said, cannot be allowed when he knows that facing trial would lead to the imposition of capital punishment.

"Any terrorist can come here, do terrorist activities, plead guilty and court says since he has pleaded guilty, I give him only life term and not capital punishment," said Mehta, adding that even Osama bin Laden would have been permitted to plead guilty here and that "possibly the USA was right" in its dealing with the Al Qaeda founder.

The court responded that there could be no comparison between Malik and Laden as the latter never faced trial and it would not comment on matters affecting foreign relations. Mehta stated that Malik committed the "sensational" killing of four IAF officers and even kidnapped the daughter of then home minister Mufti Mohammad Sayeed which led to the release of four dreaded criminals who masterminded the 26/11 attack in Mumbai in 2008.

In view of the ground that Yasin Malik, sole respondent in this appeal, has inter alia pleaded guilty to a charge under IPC section 121 (waging war against the Government of India) which provides for an alternate death sentence, we issue notice to him... to be served through the jail superintendent, the court ordered.

The court also issued notice to Malik on NIA's application seeking condonation of delay in "re-filing" the present appeal. Mehta urged the court to condone the delay, saying "technicalities" should not have a bearing in matters such as the present one.

On May 24, 2022, a trial court here had awarded life imprisonment to Jammu Kashmir Liberation Front chief Malik after holding him guilty for various offences under the stringent Unlawful Activities (Prevention) Act (UAPA) and the IPC. Malik had pleaded guilty to the charges, including those under the UAPA, and he was convicted and sentenced to life imprisonment.

During his submissions, Mehta said Malik crossed over to Pakistan for training, was coordinating stone pelting and spreading "rumours" on social media about oppression by security forces.

"If this is not 'rarest of rare' when someone is continuously, by armed rebellion, killing army people and propagating one region of the nation as separate, there can never be rarest of case. This is the rarest of the rare cases (for awarding a death penalty)... If this is not, what could be," he said.

Mehta said even in the trial court order, the judge has observed that there was "no reformation" even though Malik claimed to have "given up guns in 1994 but he never expressed regret for the violence". The court asked the NIA to bring its attention to the law commission report on death penalty in its submissions in the matter. It also directed that the trial court record be brought before it.

In its plea before the high court for enhancement of the sentence to death penalty, the NIA has said if such dreaded terrorists are not given capital punishment on account of pleading guilty, there would be complete erosion of the sentencing policy and terrorists would have a way out to avoid capital punishment. (With agency inputs)