The New Nation - Internet Edition

MI Farooqui

Bangladesh judiciary has attained "collective independence" vis-a-vis the Executive, which includes "personal and substantive independence" of the judges as well. This we achieved in December 1999 in Masdar Hossain: Case (20 BLD AD 104) that has been substantially implemented by the present Caretaker Government headed by Dr. Fakhruddin Ahmed.

What we have achieved is the terms and conditions of judicial service of lower tier having been adequately secured to ensure that individual judges are not subject to executive control and that in the discharge of their judicial functions of judge is subject to the law and his conscience. We have achieved what the International Bar Association (IBA) has formulated in 1982 under the title "Personal and substantive independence" of the judges to attain the "collective independence".

In the hierarchy of the judiciary in Bangladesh the "personal and substantive independence" of the judges of the Supreme Court is secured under Part VI of he Constitution of the Republic. The tenure of offices of the judges is fully ensured until they attain the age of sixty-seven ; they cannot be removed from office except through the legal process of Supreme Judicial Council under Article 96. On reference from the President the Council has constitutional authority to enquire into the capacity conduct of a judge or of any other functionary who is not removable from office except in like manner as a judge. The President may direct the Council to enquire into the conduct of a judge if he apprehends that a judge has ceased to be capable of properly performing the functions of his office by reason of physical or mental incapacity ; or had been guilty of gross misconduct. If after making the inquiry, the Council reports to the President that in its opinion the judge has ceased to be capable of properly performing the functions of his office or had been guilty of gross misconduct, the President shall, by order, remove the judge from office.

The IBA's minimum standard of judicial independence also requires that "ministers of the government shall not exercise any form of pressure on judges, whether overt or covert, and shall not make statements, which adversely affect the independence of individual judges or of judiciary as a whole. To malign a judge or the judiciary in name of "irregular appointment" by the past Government with spectre of twenty years to bear them is derogastory to the concept of independence of the judiciary.

The judge of the superior court are unwittingly made laughing stocks by un-throught-of comments. There might be irregular and incapable judges on the bench. But who is the best judge to judge the judges ? There is constitutional way to judge them in the interest of constitutional way of life that we still claim. Basic Principles on the Independence of Judiciary were endorsed by the General Assembly resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985. The basic principles also endorse that judges shall be subjected to suspension or removal only for reasons of incapacity or behaviour that renders them unfit to discharge their duties and all disciplinary suspension or removal proceedings shall be determined in accordance with established standards of judicial conducts.

Why should we bear this burden of wrongs of the past for the next twenty years ?" This was a question raised by a senior member of the Bar in reply to the apprehension of the honourable Chief Justice Md. Ruhul Amin that irregularities in the appointment of judges in the past would require twenty years to correct. Another former Chief Justice Mr. Justice Mustafa Kamal who is Chairman of the Law Commission has suggested forming of a 'council of elders' to look into the allegations against and conduct of the judges. He further said that the idea to form 'council of elders' is accepted in different countries to institutionalise such councils. Some national dailies in their scoops had apprehended that the President would soon invite some of the judges over cups of tea to show them the door.

Let us examine how the advanced countries have acted to resolve similar issues.

Disciplinary actions in USA.

All federal judges appointed under the provisions of Article III of the Constitution hold office "during good behaviour", which means in effect for life or until they choose to step down. The only way they can be removed from the bench is by impeachment (indictment by the House of Representatives) and conviction by the Senate. In accordance with constitutional requirements (for Supreme Court justices), impeachment may occur for "treason, bribery, or other high crimes and misdemeanours." Since 1789 the House of Representatives has initiated impeachment proceedings against only 13 jurists, although about an equal number of judges resigned just before formal action was taken against them. Of these 13 cases, only seven resulted in a conviction, which removed them from office. In USA also retirement and removal of judges is difficult. Retirement plans, no matter how effective in getting the older judge to resign, are of little use against the younger jurist who is incompetent, corrupt, or unethical. Throughout American history the states have used procedures such as impeachment, recall elections, and concurrent resolutions of he legislature to dismiss these judges. These methods were only minimally effective, however, either because they proved to be politically difficult to put into operation or because of their time consuming cumbersome nature. Judges often time their resignations to occur when their party controls the presidency so that they will be replaced by a jurist of similar political and judicial orientation. A 1990 study found that especially since 1954, "judicial retirement/resignation rates have been strongly influenced by political/ideological consideration, and infused with partisanship," thus indicating that many jurists view themselves as part of policy link between the people, the judicial appointment process, and the subsequent decisions of the judges and justice. See wwwd. usinfo. state. gov

Disciplinary action in India : Judges in India are protected in the way the USA judges are protected till they attain the age of 65 years. They cannot be removed unless they are impeached by the Parliament Mr. Ram Jethmalani in his article Judiciary and Corruption (composed in December 1991) printed in his book "Conscience of a Maverick" has vividly described misconduct of some Indian judges :

"Serious allegations of misconduct were widely aired in June 1990. Justice Mr. S K Desai, the senior-most puisne Judge of the Bombay High Court had to resign as he was transferred following an allegation that he had attempted to influence Justice Mr. MP Konia in a case that was pending before the two of them. Some years ago, Rs. 32 lakh were discovered from the house of Chief Justice Mr. Veeraswamy.

The CBI registered a case involving this recovery which is still pending. Former Chief Justice of India Mr. Venkataramaiah publicly stated that out of a total of about 450 High Court Judges all over the country, as many as 90 were out practically every evening, wining and dining either at a lawyer's house or at a foreign embassy. He said that there were charges of corruption against at least 88 High Court Judges. And several Judges had their sons and close relatives practice in all the High Courts. Because of these reasons, several years ago, the Bar Council of Punjab and Haryana High Court adopted a resolution requesting the President and the Chief Justice of India to ensure that Judges domiciled in Punjab and Haryana, especially those whose family members are advocates and practicing in the same High Court, are not allowed to occupy the benches of the Punjab and Haryana High Court.

Neither has USA nor India resorted to or has ever thought of doing the thing in a summary way over a cup of tea ignoring the constitutional mandate. They have strictly followed the Constitution. T

he present Caretaker Government, there might be some deviation though, is a de jure Government as it has come into power through the safe passage of 13th Amendment to the Constitution., The President, the Chief Adviser, the Law Adviser and the Chief Justice of the country are under oath to protect the Constitution. The judges are protected under the Constitution and they cannot be removed by any other means. I am afraid that it would be the end of the Constitution and independence of the Judiciary if the judges were removed by any other means other than what the Constitution had provided.

(The writer is Senior Advocate of the Supreme Court of Bangladesh. He may be reached at farooqui @ citechco.netl.)

Mr. Justice Md. Ruhul Amin (Chief Justice)

Mr. Justice M. M. Ruhul Amin

Mr. Justice Md. Tafazzul Islam

Mr. Justice Md. Hasan Ameen

Criminal Petition for Leave to Appeal

No. 181 of 2004

The State ttt.. Petitioner

-Versus-

Abdus Sattar and others

tt.. Respondents

For the Petitioner: Mr. Golam Kibiria, Deputy Attorney General, instructed by Mr. B. Hossain, Advocate-on-record.

Respondents : Not represented

Date of hearing : The 3rd April, 2007.

Result: Dismissed

Evidence Act, 1872

Section-32

Story of dying declaration-false

In the instant case, it appears that the informant, who lodged the FIR. long after more than 24 hours alleged that he heard the occurrence from his son, on the date of occurrence. In this connection, it may be recalled here that the attending physicians at Nashingdi hospital or the persons, who were allegedly present at hospital have not said about any dying declaration allegedly made by the deceased. Furthermore, inquest report, which was prepared at Dhaka in presence of near and dear ones of the deceased namely Pws.4, 9 and 10 did not state anything about the alleged dying declaration so said to have been made by the deceased at Narshingdi hospital, Further, it appears that there is no corroborative evidence about the alleged report of the occurrence to the informant (PW. l) by way of dying declaration. We have already found that the Pws.4, 9 and 10 who were all along present with the deteased up to Dhaka Medical College Hospital in no way dared to state about the alleged dying declaration so said to have been made by the deceased. In view of such facts and circumstances of the case, we are of the opinion that the learned Judge of the Division Bench of the High Court Division correctly arrived at a decision that the story of dying declaration is false and concocted. ]

Para-17

Section -114(g)

The non-examination of Baten, the alleged companion of the deceased at the time of occurrence together with non-production of' motorcycle on which the deceased along with his friend Baten was allegedly traveling, has made the entire prosecution story unworthy to believe. [Para-19]

Code of Criminal Procedure, 1898-Section 154 read with Section 161

It appears that the FIR. was lodged long after more than 24 hours of the time of occurrence and prosecution failed to come with any explanation for such inordinate delay, inasmuch as the evidence on record indicates that the police officers including the Superintendent of Police Narshingdi, visited the house of the informant (since he was local M.P.) and stayed with him for quite reasonable period and 'admittedly, the informant' did not make any formal FIR. before them. The long delay in lodging the FIR. after more than 24 hours, in our view, has been taken in order to' bolster up a false case to take revenge upon the, rivals. Since investigation commenced before lodging of formal' FIR, the same ought to have been treated as statement under Section 161 of the Code of Criminal Procedure as the information so made during conversation with the police officials after the occurrence could have been the FIR of this case. The prosecution having failed to come with any reasonable, explanation for such inordinate delay and the same led us to hold that the FIR. lodged by the informant, father of the deceased, was brought to light just td manufacture a false case to take revenge upon the enemies

Para-18

Judgment

Mr. Md. Hassan Ameen, J:- This criminal petition for leave to appeal is directed against the judgment and order passed by a Division Bench of the High Court Division on 11 th April, 2004 in Death Reference No.37 of 2001 (heard along with Criminal Appeal No,3199 of 2001 and Jail Appeal No.3331 of 2001).

2. The reference under Section 374 of the Code of Criminal Procedure was made by the learned Additional Sessions Judge, Narshingdi for confirmation of sentence of death awarded by him by the judgment and order dated 26-08-2001 in Sessions Case No.56 of, 1995 to condemned prisoner, Abdus Sattar upon convicting him under Sections 302/34 of the Penal Code. The Court of Sessions by the selfsame judgment upon convicting 6 others under Sections 302/34 of the Penal Code sentenced them to imprisonment for life and to pay fine of Tk. 10,000/- each, in default, to suffer one year rigorous imprisonment. Criminal Appeal being No 3199 of 2001was preferred by all the convicts including the condemned prisoner except the absconding convict Alamgir and Jail Appeal No.3331 of 2001 was preferred by the condemned prisoner appellant alone against the said judgment and order of conviction. The Reference and the appeals were heard together and disposed of by a single judgment of a Division Bench of the High Corut Division.

3. The prosecution caee, in brief, is that on 29-4-2005 deceased Masud Ahmed, son of informant Shamsuddin Ahmed, a Member of the Parliament, went to Shibpur in connection with business along with his friend Abdul Baten on a motorcycle. After conclusion of his business while the deceased was coming back in same motorcycle at about 10 AM they reached at cross road junction at Drahnandi of Narshingdi town when the appeallants namely (1) Abdus Sattar (condemned prisoner), (2) Mohsain Hossain Bidyut, (3) Ahadul, (4) Hasan, (5) Abdur Rahman alias Khokan, (6) Nazrul and absconding convict (7) Alamgir being armed with deadly weapons attacked them. The aforesaid accused stopped the motorcycle of the deceased when absconding convict Alamgir and convict appellant, Abdur Rahman alias Khokon grabbed deceased Masud, appellant Nazrul gave blow by the handle of a gun to Baten, who being frightened ran away therefrom. Thereafter, the convict appellants Mohsin Hossain, Bidyut and Ahadul struck dao blow on the head and right elbow of the deceased causing bleeding injuries and as a result, he fell down on the ground. The condemned-prisoner-appellant Abdus Sattar fired a gun shot upon the deceased while the other accused-appellants caused injures on different parts of the body of the deceased and left the place of occurrence hurriedly. The PWs. namely Badal Sarker, the security officer-in-charge of local Jaba Textile Mill, took the deceased by a rickshaw to Narshingdi Sadar Hospital wherein he made a dying declaration to the persons present there narrating the occurrence and disclosing the names of the condemned prisoner as well as other convicts as his assailants. The further case of the prosecution was that the condition of the deceased being serious the doctor on duty referred him to Dhaka Medical College Hospital for better treatment, but the doctor of the emergency department of the Dhaka Medical College Hospital declared him dead.

4. On the next day i.e. 30-04-1995 at 5 pm, the informant (father of the deceased) sent a written FIR to Narshingdi Police Station mentioning names of the accused-persons, and on the basis thereof regular police case was started. The police took up investigation and on completion of investigation, submitted charge-sheet against the accused-appellants and another under Sections 302/34 of the Penal Code. The case records were sent to the Court of Sessions. At the time of trial, Court of Additional Sessions Judge, Narshingdi on the basis of materials available on the record framed charge against the accused-appellants and another under Sections 302/34 of the Penal Code and read it over to the accused on dock to which they pleaded not guilty and demanded trial.

5. The prosecution examined as many as 16 PWs including the doctor, who held post-mortem examination and investigating officer, who were duly cross-examined by the defence.

6. After close of the examination of the prosecution witness, the accused on dock were examined under Section 342 of the Code of Criminal Procedure and they pleaded their innocence.

7. The defence did not adduce any evidence.

8. The defence case as could be gathered from trend of cross-examination is total denial and their case is that the deceased did not sustain any injury on the date, at time and place and in the manner as alleged by the 'prosecution, nor the deceased ever made any' dying declaration as alleged, but they have been falsely implicated in the case out of enmity and grudge.

9. The trial Court, in consideration of the evidence on record as well as facts and circumstances of the case, found the accused-appellants and another guilty for the offence charged and thereupon convicted as stated before and sentenced them to suffer rigorous imprisonment as mentioned above.

10. The Court of Additional Sessions Judge made reference for confirmation of the sentence of death so awarded to the condemned prisoner, Abdus Sattar. The other convicts aggrieved and dissatisfied with their conviction and sentence preferred the appeal before the High Court Division. The condemned prisoner filed appeal from Jail. The Reference and the appeals were heard together. The High Court Division rejected the Reference and allowed the appeals.

11. We have perused the materials in the paper book. We have also heard the learned Deputy Attorney-General.

12. The High Court Division upon elaborate discussion of the evidence on record arrived at a conclusion that the trial Court failed to sift 'the evidence on record and arrived at an erroneous conclusion and thereupon rejected the death reference in question and allowed the criminal appeal and jail appeal.

13. Being aggrieved and dissatisfied thereby the State as appellant has filed the present petition for leave to appeal.

14. The learned Deputy Attorney-General submitted that the findings and decisions of the High Court Division is bad in law since it failed to sift the evidence on record. He further, submits that High Court Division erroneously disbelieved, the evidence of PWs, .. .specially that of PWs. 4, 9, and 10 and that the findings and decisions of the High Court Division, so far, it relates to dying declaration is not at all sustainable in law and accordingly, he submits that the impugned judgment and order of acquittal is not sustainable in law.

15. In the instant case, it appears that prosecution tried to bank upon the alleged dying declaration of the deceased together with evidence of alleged eyewitness to the occurrence. As regards, dying declaration, we are of the view that the same (dying declaration) is oral and the prosecution tried to prove same by some private witnesses.

16. Section 32 of the Evidence Act provides that dying declaration may be written or verbal. A dying declaration may be recorded by any person, who is available and it may be verbal, it may be also indicated by signs and gesture, in answer to question if the person making it is not in a position to speak. There is no requirement of law that dying declaration should be recorded by Magistrate as in the case of confessional statement of an accused under Section 164 of 'the Code of Criminal Procedure. The legislature in its wisdom has put a dying declaration as per with evidence on oath for simple reason that' a man, under the apprehension of death is not likely to speak falsehood and involve innocent persons in preference to his assailants.

17. In the instant case, it appears that the informant, who lodged the FIR. long after more than 24 hours alleged that he heard of the occurrence from his son, the deceased at Narshingi hospital on the date of occurrence. In this connection in may be recalled here that the attending physicians at Narshingdi hospital or the persons, who were allegedly present at hospital, have not said about any dying declaration allegedly made by the deceased. Furthermore, in quest report, which was prepared at Dhaka in presence of near and dear ones of the deceased namely PWs. 4. 9 and 10 did not state anything about the alleged dying declaration so said to have been made by the deceased at Narshingdi hospital. Further, it appears that there is no corroborative evidence about the alleged report of the occurrence to the informant (PW.1) by way of dying declaration. We have already found that the PWs. 4.9 and 10 who were all along present with the deceased up to Dhaka Medical College Hospital in no way dared to state about the alleged dying declaration so said to have been made by the deceased. In view of such facts and circumstances of the case, we are of the opinion that the learned Judges of the Division Bench of the High Court Division correctly arrived at a decision that the story of dying declaration is false and concocted.

18. Secondly, it appears that the FIR, was lodged long after more than 24 hours of the time of occurrence and prosecution failed to come with any explanation for such inordinate delay, inasmuch as the evidence on record indicates that the police officers including the Superintendent of Police Narshingdi visited the house of the informant (since he was local MP) and stayed with him for quite reasonable period and admittedly, the informant did not make any formal FIR before them. The long delay in lodging the FIR, after more than 24 hours, in our view, has been taken in order to bolster up a false case to take revenge upon the rivals. Since investigation commenced before lodging of formal FIR, the same ought to have been treated as statement under Section 161 of the Code of Criminal Procedure as the information so made during conversation with the police officials after the occurrence could have been the FIR of this case. The prosecution having failed to come with any reasonable explanation for such inordinate delay and the same led us to hold that the FIR, lodged by the informant, father of the deceased was brought to light just to manufacture a false case to take revenge upon the enemies.

19. Thirdly, the non-examination of Baten, the alleged companion of the deceased at the time of occurrence, together with non-production of motorcycle on which the deceased along with his friend Baten was allegedly traveling, has made the entire prosecution story unworthy to believe. More so, PWs, 4.9 and 10, the close relations of the deceased, who were all along with him (deceased) remained meticulously silent about the dying declaration said to have been made by the deceased.

20. Lastly, the postmortem examination report, in proof where of the doctor (PW. 11) who deposed, in no way support the prosecution case about manner of causing injury to the deceased by gunshot. PW 3 who claimed to have shifted the deceased to Narshingdi hospital in no way gave any hints about dying declaration allegedly made by the deceased.

21. Regard being had to the above facts and circumstances of the case, we are constrained to hold that the prosecution bolstered up a false case in order to take revenge on the enemies by narrating some unusual facts which has not been proved. Lastly, we find no hesitation to hold that the prosecution 'hopelessly failed to prove its case by reliable witness and the prosecution has come with ill motive to take revenge upon the accused and the delay is lodging the FIR, together with failure to prove the occurrence by good' and satisfactory evidence as well as withholding of alleged companion of the deceased, who was with him (deceased) at the time of occurrence, has made the entire prosecution case unworthy to believe and the learned Judges, of the High Court Division found to have arrived at a correct decision on the basis of established principle of law

22. Since, there is no substance in this petition, we find no other alternative but to dismiss the same and accordingly, this petition for leave to appeal is dismissed.