The New Nation - Internet Edition

High Court Division

(Criminal Appellate Jurisdiction)

Khademul Islam Chowdhury and Md. Ashfaqul Islam, JJ

Criminal Appeal No.1351 of 2003

Abdus Satar @ A. Satar @ Sotar

v.

The State

Date of Judgment : June 26. 2006

Result : Appeal allowed.

Evidence Act, 1872 (I of 1872)

Section-3

Code of Criminal Procedure, 1898

(V of 1898)

Section-439

Confessional statement of co-accused by itself is not an evidence within the meaning of section 3 of the Evidence Act unless supported in material particular by other evidence, at best it can be used against the maker, when the prosecution fails to bring home the charge under sections 395 and 397 of the Penal Code by any cogent evidence as to the identity and participation of the accused in the commission of the offence no conviction can be passed on the basis of surmises or any other hypothesis. Hence, the appellant is entitled to acquital.

Since the charge under sections 395/397 of the Penal Code except the confessing accused Pijush has' totally failed against the other accused for want of proof suo moto cognisance can be taken of the mater under section 439 of the Code of Criminal Procedure to set aside conviction and sentence of other accused though they were tried and convicted and sentenced in absentia and could not prefer any appeal. The principle of law that even the non appealing convict can be acquited by this court if the charge is not proved against him, is equally applicable in case of a person who is tried in absentia and convicted and sentenced but who is otherwise found to be not guilty of the charge leveled against him.

Judge while convicting the appellant has, totally based his decision on the, confessional statement of the co-accused ………… (Paras--18, 19 & 20)

Mr. Md. Khurshid Alam Khan, Advocate, for the convict- appellant

Mr. Md. Iqbal- Hossain, A.A.G. For the State.

Judgment

Md. Ashfaqul Islam, J: Accused appellant Abdus Satar @ A. Sater @ Soter along with other accused namely, Pijush Kanti Barua, Md. Hossain; Md. Soleman, Baharul Islam @ Bahar, Bashikka and Sunil Ghose were found, guilty under sections 395/397 of the Penal Code and each of them were convicted and sentenced to suffer rigorous imprisonment for 10 years in Session Case No.161 of 1994 arising out of Raozan Thana Case No.8(3)/90 corresponding to GR, 30/1990 by the judgment and. order of conviction and sentence dated 15.3.2003 passed by the learned Assistant Sessions Judge and 3rd Artha Rin Adalat, Chitagong. Except the accused-appellant Abdus Satar and the accused Pijush Kanti Barua all other accused-persons were tried in absentia and convicted and sentenced as above. The present appeal is against the said judgment and order or conviction and sentence at the instance of the convict-appellant Abdus Satar.

2. The prosecution case, as it is, reveals from the FIR lodged by the informant Milon Kanti Barua in brief, is that on 21.3.1990 at about 11 o'clock at night he along with his wife Nandita were sleeping in their house when the informant's elder brother Jenu Lal Barua went out to respond to the call of nature at about 12 in the night with a torch in hand and had seen Kanu Barua, Kazal Barua and Kazal Barua's cousin and other 15/20 persons rented by them armed with deadly weapon like pipe gun, Kiris, Lathis, etc, were entering into the house of the informant and physically assaulting both the informant and his wife Nandita Barua and also the inmates of the house. The dacoits looted away one 100 c.c. Honda motorcycle, a colour television, two two-in-one music component, 5 tola gold, 6 pieces of sarees, one table fan, one wrist watch and other goods. As the informant and the other inmates raised alarm, the people of the locality started to proceed towards the house of the informant 'when the accused persons started firing and fled away. Hence the informant lodged the FIR on 28.3.90 under sections 147/148/323/380 of the Penal Code.

3. The police Investigated the mater, prepared sketch map with index, visited the place of occurrence, recorded the statement of the witnesses under section 161 of the Code of Criminal Procedure and at the instance of the police, the magistrate recorded the confessional statement of the co-accused Pijush Kanti Barua and after investigation submited charge sheet under sections 395/397 of the Penal Code against the appellant and others.

4 Thereafter the case record was transferred to the Court of Session Judge. Chitagong and registered as Sessions Case No.161 of 1994 which was subsequently transferred to the Court of Assistant Sessions Judge and 3rd Artha Rin Adalat for trial.

5. During the trial the charge was framed under section 395/397 of the Penal Code against the convict-appellant and others to which the convict-appellant pleaded not guilty and claimed to be tried.

6. At the time of trial the prosecution examined 6 witnesses who were cross-examined by the defence thoroughly and the defence examined none.

7. The defence case as it transpires from the trend of cross-examination of the P.Ws. is that the convict-appellant is innocent and he has been falsely implicated in the case out of suspicion and no offence has been commited by the convict-appellant for which he should be acquired.

8. After hearing the parties and considering the evidences on record the learned Assistant Sessions Judge and 3rd Artha Rin Adalat, Chitagong convicted the appellant under sections 395/397 of the Penal Code with other accused persons as aforesaid.

9. Me Md. Khurshid Alam Khan, the learned Counsel appearing on behalf of the accused-appellant after taking us through the entire evidences on record, specially depositions of the PWs., FIR, charge sheet and the impugned judgment and order of conviction and sentence has mainly submited that it is a case of no evidence against the convict-appellant By elaborating, his submissions the learned Counsel pointed out that none of the PWs. has stated the name of the convict-appellant and his involvement in the alleged occurrence of dacoity in any manner. It is only on the basis of inculpatory confessional statement made by the co-accused Pijush Kanti Barua, the appellant has been convicted which cannot be the sole basis of conviction in the eye of law, The learned Counsel empathetically submits that this is the setled principle of law and cites a decision reported in 18 BLD (AD) 43 in support of his contention, Besides, he also contends that the Magistrate' who recorded the confessional statement under section 164 of the Code of Criminal Procedure was also not examined in the instant case. His another contention is that the learned Judge while passing the order of conviction and sentence also contradicted in his finding holding that a proceeding should be initiated against the informant Milon Kanti Barua for bringing out the false and fictitious proceeding against the accused-persons involved in the case. He further submits in addition to what he has submited as above that the appellant is not FIR named accused, no T.I. Parade was held. Investigating Officer has not been examined and no booty was recovered from the accused-appellant On the basis of the above submissions Mr. Khan prays for the acquital of the convict-appellant

10. Mr. Md. Iqbal Hossain, the learned Assistant Atorney-General appearing on behalf the State on the other hand submits that from the evidences on record it is clearly found that the convict-appellant was very much involved in the commission of dacoity as alleged in the FIR and prays that this appeal should be dismissed in all fairness.

11. Let us now discuss the prosecution witnesses one after another.

12. P.W.I Milon Kanti Barua as the informant deposed, that on 21.3.1990 while he was sleeping his elder brother Jenulal Barua went out to respond to the call of nature and at about 11 to 11-30 at night he saw 20/25 persons lighting up torch calling his brother by bad name. At that time he could recognise Shawpan Bania, Kazol Barua, Samiron Barua with the light of torch. Thereafter some other persons entered into the room armed with deadly weapon and commited dacoity by looting away goods. He proved the FIR as Ext I and his signature thereto Ext 11. In his cross-examination he categorically mentioned that he could not recognise anybody other than Samiron and Kazal Barua. He also stated in his cross-examination that he did not identify anyone in the Test Identification Parade. In cross-examination he did not mention the name of the convict-appellant:

13. P.W.2 Loknath Barua who is the servant working in the informant's house in his deposition only narrated that the occurrence which took place on 21.3.90 at about II at night without recognising any of the accused including the appellant From the cross-examination of this witness the 'name of the convict-appellant could not be revealed.

14. P.W.3 Tapan Kanti Barua also deposed and narrated the incident that took place on the fateful night stating that he could not recognise any of the dacoits as their faces were covered with mask. He also could not recognise the accused on the dock. He was cross-examined by the defence wherefrom the name of the appellant was not found.

15. P.W.4 Jenu Lal Barua is the brother of the informant also narrated in his testimony that he could not recognise the dacoits.

16. P.W.S Shewli Barua stated in her deposition and gave contradictory statement In her examination-in-chief she stated that she could recognise the dacoits whereas in the cross-examination she named nobody but only said that she knew the accused from before.

17. P.W.6 Mukul Barua in his deposition also stated about the incident of dacoity but could not recognise any of the dacoits rather in his cross-examination he stated that he knows the accused persons who are from the same locality and by profession they are teachers and that they are good persons.

18. These are all the evidences available on record.

19. The learned Assistant Sessions Judge after due consideration of the depositions of the witnesses and considering the exhibits and other material available on record convicted and sentenced the convict-appellant under sections 395/397 of the Penal Code. It has been already stated that Mr. Khurshid Alam Khan in his submissions categorically mentioned that this is a case of no evidence in respect of the convict-appellant Abdus Satar. The learned Counsel pointed out that the conviction of the appellant is solely based on inculpatory confessional statement made by the co-accused Pijush Kanti Barua. We have seen the confessional statement recorded under section 164 of the Code of Criminal Procedure. The magistrate who recorded the confessional statement was not examined. In the confessional statement the name of the appellant was mentioned by the co-accused Pijush Kanti Barua with the name of other accused-persons. This certainly cannot be the sole basis of conviction of the appellant This proposition of law is well setled. Mr. Khan also refers the decision of 18 BLD (AD) 43 on this point This decision and so many other decisions decided that confessional statement of co-accused by itself is not an evidence within the meaning of section 3 of the Evidence Act unless it is supposed in material particular by other evidence, at best it can be used against the maker. We find substance in the above submissions of the learned Counsel and hold that the, learned Judge while convicting the appellant has totally based his decision on the confessional statement of the co-accused Pijush Barua and commited wrong We have also seen that none of the PWs. has named the appellant to be seen or recognised in the commission of the dacoity. Here we would like to mention that in a case of dacoity the 'recognition' or 'identification' of the dacoits is the most vital aspect which has to be established by the prosecution. In the present case this essential element has been adversely established against the prosecution as it has been found from the deposition of the PWs. and other atending circumstances. The involvement of the appellant in the commission of dacoity remains totally absent as it appears from the examination-in-chief and cross-examination of the PWs. Moreover. we have seen that there was no arrangement, as it transpires from the record, for holding of the T.I. Parade for identifying the convict-appellant or other accused-persons during the investigation. The Investigating Officer has not been examined and the booties were also not recovered from the appellant or other accused-persons. So, in totality it can be inferred that the prosecution in the instant case has miserably failed to implicate the convict-appellant in the alleged case of dacoity in the manner depicted in the FIR beyond all reasonable doubt Thus when the prosecution fails to bring home the charge under sections 395 and 379 of the Penal Code by any cogent evidence as to the identity and participation of the accused in the commission of the offence, no conviction can be passed on the basis of surmises or any other hypothesis. Hence, the appellant is entitled to acquital.

20. Next comes the question what will happen to the other accused persons who were tried in absentia and convicted and sentenced aforesaid and could not prefer appeal. In this case appellant along with other accused namely, Pijush Kanti Barua, Bahadurul Islam @ Vanu. Bashikka, Md. Soleman, Shushil Ghose and Md. Hossain were jointly charged under sections 395/397 of the Penal Code and each of them was convicted under the same section of the Penal Code and sentenced to suffer 10 years rigorous' imprisonment out of which except the appellant and accused Pijush Kanli Barua all were absconding from the inception of the case. Since the charge under sections 395/397 of the Penal Code except the accused Pijush Kanti Barua who is a confessing accused has. totally failed as against the other accused namely, accused Bahadurul Islam @ Vhanu, accused Bashikka, Md. Soleman, Shushil Ghose and Md. Hossain for want of proof we are of the view that in such a situation we can take suo moto cognisance of the mater under section 439 of the Code of Criminal Procedure and set aside the conviction and sentence of other accused persons named above even though they were tried and convicted and sentenced in absentia and could not prefer any appeal.

21. The principle of law that even the non appealing convict can be acquited by this court if the charge is not proved against him, which has been established and reflected in various decisions of this court like 2 DLR 304, 28 DLR - 253, 40 DLR -97, 3 BLD1983P-108, 14 PLD 1962.WP. (Queta) P-5, PLD 1949 Lahore- 179 and many others, is equally applicable in case of a person who is tried in absentia and convicted and sentenced but who is otherwise found to be not guilty of the charge levelled against him.

22. From the conspectus of the observations made above the inevitable result that follows is that this appeal succeeds.

23. In the result, the appeal is allowed. The judgment and order of conviction and sentence dated 15.3.2003 passed by the learned Assistant Sessions Judge 'and 3rd Artha Rin Adalat, Chitagong in Sessions Case No.161 of 1994 is hereby set aside as against the convict-appellant Abdus Satar @ A. Satar @ Satar along with the accuseds namely, accused Bahadurul Islam @ Vhanu, accused Bashikka, accused Md. Soleman, accused Shushil Ghose and accused Md. Hossain as they are found not guilty of the charge brought against them.

24. The convict-appellant Abdus Satar @ A. Satar @ Satar shall be set at liberty forthwith if he is not wanted in connection with any other case. . He is also discharged from his bail bond.

25. Send down the lower court records expeditiously.

High Court Division

(Criminal)

Syed Muhammad Dastagir Husain-J.

And

Mamnoon Rahman-J.

CRIMINAL MISC. CASE NO. 709 OF 2003 With CRIMINAL MISC. CASE NO. 2663 OF 2003 .

(Application u/s 561A Cr. Pc. for quashment of proceedings of Metro Special Case No, 95 of 2002 of Metropolitan Senior Special Judge, Dhaka) Khondaker Fazlul Haque……….Petitioner. in Crl. Misc. No. 709/2003.

Md. Aftabuddin Ahmed @ Abtabuddin

……Petitioner.

in Cr1. Misc. 'No. 2663 of 2003.

Vs

The State …….. opposite parties in both cases.

For the petitioner in both cases: Mr. A.K.M. Ali Advocate

For the State Mr. A.B.M.Waliur Rahman Khan, A.A.G.

Judgment: 5 January 2003

Code of Criminal Procedure Section 561A- Quashment of proceedings cannot be allowed when the application is premature and involves question of enquiry as to the truth or otherwise of the allegations

Penal Code 1860-

Section 409- Criminal misappropriation-

Prevention of Corruption Act, 1947

Section 5(2)- Offence of criminal misconduct-

Proceedings of a case where the charge has not yet been framed are held by the learned judges of the High Court Division as in the instant case cannot be quashed.

Where prima facie materials are there on the record disclosing the offence, and where the question of enquiry to find out the truth or otherwise of the allegations is involved, the application u/s 561A Cr. PC is not maintainable as those question can only be decided by the trial Court after taking evidence during trial.

Therefore it has not been decided to sell out the vacant land of the Metal Packeging Limited situated in Chitagong and the decision taken by the Board of Trustee cannot be changed by a purchase commitee to sell out the said land. The purchase commitee of the Trust taken such decision to sell out the property belonging to the trust appears to be a prima-facie case which cannot be decided by this court……..(Para 7)

Further it appears the charge has not yet been framed. The trial Court will testify the decision of the board and these are the maters for the trial Court according to the case reported in 45 D.L.R. (A.D.) 48. In a proceeding under Section 561A this court cannot be drawn in an enquiry as to the truth or otherwise of the facts which are not in the prosecution case.

In this case whether other co-accused had any role in the transaction or whether they abeted the principal offenders are the questions involved which can only be decided on taking evidences. Therefore we are not inclined to quash the proceeding at this stage. Accordingly the Rule is discharged. Stay granted earlier by this court is hereby vacated…………..Para 8.

Judgment

Syed Muhammad Dastagir Husain J.:- Two Rules were heard analogously as it arises out of the same FIR and it involved common question of facts and disposed of by one judgment

2. These Rules are directed against the proceeding in Metro Special Case No. 95 of 2002 under Sections 409, 402/109 of the Panel Code read with Section 5(2) of the Anti-Corruption Act, 1947 arising out of BAC GR. Case No. 33 of 2002 now pending in the court of Metropolitan Senior Special Judge Court, Dhaka.

3. Buareau of Anti-Corruption lodged an FIR against the petitioners and others alleging inter alia, that the petitioner and others in collusion with each other by misusing official power caused a financial loss of Tk 1.10 crore to Bangladesh Muktijuddah Kallyan Trust by selling its landed property measuring 2 acres of Metal Pakage Ltd. Dhaka at a price less than the Government fixed rate bypassing the decision taken on 61st meeting of the board of trustee. The Burueau of Anti Corruption after investigation submited charge sheet on 21.7.2002 under Sections 409/420/109 of the Penal Code read with Section 5(2) of the Prevention of Corruption Act, 1847. The petitioner came before the court and obtained the bail from the Chief Metropolitan Magistrate. Thereafter the petitioner moved this application and obtained the present Rule.

4. Mr. AKM Ali, the learned Advocate appearing on behalf of the petitioners in both the cases, submits that in the FIR nothing has been specifically mentioned about the participation of this petitioner and he is not even named in the body of the FIR and the other petitioner in Miscellanous Case No. 2663 of 2003 is not named in the FIR. Further submits that he has raised objection with regard to the fixation of the price and on his objection a valuer was appointed to evaluate the price of the property and they are the subordinate officers of the trust and cannot avoid decision of the superior authority.

Therefore they are not at all involved or the allegation as made therein does not atract the petitioner in any way.

5. Mr ABM Waliur Rahman Khan, the learned Assistant Atorney General appearing on behalf of the State, by filing counter-affidavit submits that on 61st meetings of the Board of Srustees no decision was taken to sell out the vacant land of Metal Packages Ltd. belonging to Bangladesh Freedom Fighters Welfare Trust situated at Nasirabad, Chitagong.

The decision which was taken in the said meeting was to start construction for multistoried commercial/ residential building and the petitioners with ill motive and in collusion with each other have taken alternative, decision to sell out the said property through a meeting held on 9.2.2000.

Therefore they have misused the official power and they have taken arbitrary, illegal and malafide decision. He further submits that the decision of the Board of Trustee can only be altered by a decision of the Board of Trustees.

The decision to sell out the most valuable property belonging to the Trust is a misuse of official power thus commited the offence which is triable and they will be given opportunity to defend themselves in the court below as such the proceeding at this stage can not be quashed.

6. We have gone through the F.I. R. charge sheet and the counter-affidavit and the reply to the counter-affidavit, it appears that in the 61st decision in gha it has been decided which runs as follows :

‡gUvj c¨v‡K‡Rm wjt-Gi PÆMÖvg¯’ bvwmivev‡`I Lvwj RvqMvq eûZj evwbwR¨K/ AvevwmK feb wbg©vY Kiv n‡e|

7. Therefore it has not been decided to sell out the vacant land of the Metal Packaging Limited situated in Chitagong and the decision taken by the Board of Trustee cannot be changed by a purchase commitee to sell out the said land. The purchase commitee of the Trust taken such decision to sell out the property belonging to the trust appears to be a prima-facie case which cannot be decided by this court

8. Further it appears the charge has not yet been framed. The trial Court will testify the decision of the board and these are the maters for the trial Court according to the case reported in 45 D,L.R, (A.D.) 48. In a proceeding under Section 561 A this court cannot be drawn in an enquiry as to the truth or otherwise of the facts which are not in the prosecution case.

In this case whether other co-accused had any role in the transaction or whether they abeted the principal offenders are the questions involved which can only be decided on taking evidences.

Therefore we are not inclined to quash the proceeding at this stage. Accordingly, the Rule is discharged. Stay granted earlier by this court is hereby vacated.