The New Nation - Internet Edition

Appellate Division (Civil)

Mohammad Fazlul

Karim J

Md. Joynul Abedin J

Md. Hassan Ameen J

M/S. Ashraf & others Appellant, in C.A.No.184 of 2005

Bangladesh, represented by the Secretary, Ministry of Works and Housing, Dhaka tt. Appellant. (in C.A.No.185 of 2005)

Vs

Md. Zahangir Alam & others ttt Respondents. (in C.A.No.184 of 2005)

Judgment 21st January 2008

M/s. Ashraf and Sons and another tt.. Respondent. (in C.A.No.185 of 2005)

Judgment 21st January 2008

Since the highest price quoted was not satisfactory further quotations were invited by calling tenders consecutively for 5(five) times. The writ petitioner along with others participated in the 4th and 5th call of tenders (2)

Leave was granted to consider the following submissions whether the writ petitioner having deposited and paid for the bid money in respect of 5 items out of 14 items and taken delivery of the same as per the decision of the writ respondent No.2 vide Annexure-C series to the writ petition was competent to file the writ petition under reference for setting aside the notice of the 6th call of tender by the writ respondent No.2 for the remaining 9 items of the 5th call of tender and also for a direction for issuing work order in respect of the aforesaid 9 items; whether the writ Court acted in accordance with law in negotiating the price for the said items between the parties and in directing the writ respondent Government to accept the price so negotiated by the Court during hearing tt.(5)

We have examined the impugned judgment and considered the arguments and the materials on record. The points raised and argued by the learned Counsels for the appellants have a good deal of force. In terms of clause 9 of the relevant Tender Notice the writ respondent Government was not obliged to accept the bid of the writ petitioner respondent in toto or reject the same in toto. Writ respondent Government had the option to accept the bid in part. Hence the writ respondent Government by 5 letters dated 18.3.2004 vide Annexure-C series to the writ petition validly accepted the price offered by the writ petitioner in respect of 5 items out of 14 items. The writ petitioner having paid the price for the said 5 items and taken delivery of the same was debarred from raising any claim in relation to the remaining items and accordingly, the Rule was liable to be discharged. Further, the writ petition was also not maintainable for suppression of the material fact that the writ petitioner accepted the decision of the writ respondent Government without any demur vide Annexure-C series to the writ petition and took delivery of the said items by paying the agreed price inasmuch as negotiations of sale price between the parties never falls within the domain of the Courttt..(9-10)

TN Khan, Senior Advocate, instructed by Syed Mahbubur Rahman, Advocate-on- Recordt.For the Appellant (in C.A.No. 184 of 2005)

Monsur Habib, Additional Attorney - General, instructed by A.S.M. Khalequzzaman, Advocate-on-Record. tttt.. For the Appellant (in C.A.No.185 2005.

Syed Amirul Islam, Senior Advocate, instructed by Md. Aftab Hossain, Advocate-on-Record. For Respondent No.1 (in C.A.No. 184 of 2005)

Syed Amirul Islam, Senior Advocate, instructed by Md. Aftab Hossain, Advocate-on-Record For the Respondents (in CA No 185 of 2005)

Respondent Nos.6-7: (in CA. No.J84 of 2005). Not represented.

JUDGMENT

Md. Joynul Abedin J: These two appeals by leave are directed against the common judgment and order dated 4.1.2005 passed by a Division Bench of the High Court Division in Writ Petition No.1463 of 2004 making the Rule absolute.

2. The short fact is that Md. Zahangir Alam, the respondent No.1 in Civil Petition No.223 of 2005, filed Writ Petition No.1463 of 2004 stating, inter alia, that the Ministry of Housing and Public Works decided to sell out 374.31 metric tons of old Iron 'and steel materials lying in the godowns in Sylhet P.W.D. Zone. Accordingly auction notices inviting quotations of 14 items of the aforesaid materials were published by the writ respondent No.2, Executive Engineer, Sylhet P.W.D. Division, Sylhet. Since the highest price quoted was not satisfactory further quotations were invited by calling tenders consecutively for 5(five) times. The writ petitioner along with others participated in the 4th and 5th call of tenders. His quotations in the 5th call were found valid and on 28.12.2003 the writ petitioner was declared as the highest bidder by the tender committee as he was found to have quoted the highest price in all 14 items. Thereafter the tender committee forwarded all the tenders for approval by the zonal disposal committee headed by the writ respondent No.5, Additional Chief Engineer, PW.D. Chittagong Zone and thereafter on receiving decision of the said committee the respondent No.2, the Executive Engineer, Sylhet P.W.D. Division asked the writ petitioner in 5 separate letters dated 18.3.2004 (vide Annexure-C series to the writ petition) to deposit the bid money in respect of 5 items only. The writ petitioner accordingly deposited the bid money. But the writ petitioner was surprised to know that the writ respondent No.2, Executive Engineer, published fresh auction notice inviting quotations for sale of 252.409 metric tons M.S. Rods and 40.243 metric tons of MS. bars as the remaining materials of the 5th call and fixed 28.3.2004 for submitting fresh tenders without any notice to the writ p,etitioner. The writ petitioner, therefore, filed the writ petition challenging the auction notices of the 6th call dated 6.3.2004 and obtained Rule.

3. Writ respondent Nos.2 and 3 as well as the writ respondent No.7 Ashraf and sons opposed the Rule by filing separate affidavit-in-opposition denying the material statements in the writ petition contending, inter alia, that the writ respondent Government in exercise of its power under clause 9 of the Tender Schedule accepted the price offered by the writ petitioner in respect of 5 items only and accordingly asked him vide Annexure-C series to the writ petition to deposit the bid money and take delivery of the said 5 items and the petitioner having complied with the same without any demur was estopped from filing the writ petition under reference. Accordingly, the Rule was liable to be dismissed .

4. The High Court Division thereafter by the impugned judgment dated 4.1.2005 made the Rule absolute directing the writ respondent Government to accept the price negotiated by the court during the hearing of the Rule at the rate of Tk.l8,500/- per metric ton for M.S. Rod and M.S. Flat Bar as mentioned in item Nos. l, 2, 3, 6,9, 10, 13 and 14 and also to accept the price offered by the writ petitioner for item No.7. Consequently, the writ respondent Government filed Civil Petition for Leave to Appeal No.223 of 2005 and writ respondent No.7 M/s. Ashraf & Sons (highest bidder in the 6th call) filed Civil Petition for Leave to Appeal No.490 of 2005.

5. Leave was granted to consider the following submissions whether the writ petitioner having deposited and paid for the bid money in respect of 5 items out of 14 items and taken delivery of the same as per the decision of the writ respondent No.2 vide Annexure-C series to the writ petition was competent to file the writ petition under reference for setting aside the notice of the 6th call of tender by the writ respondent No.2 for the remaining 9 items of the 5th call of tender and also for a direction for issuing work order in respect of the aforesaid 9 items; whether the writ court acted in accordance with law in negotiating the price for the said items between the parties and in directing the writ respondent Government to accept the price so negotiated by the court during hearing for item Nos.l,2,3,6,9,10,13 and 14 at the rate of Tk.18,500/- per metric ton for M.S. Rod and M.S. Flat Bar and further to accept the bid offer of the writ petitioner for item No.7 and whether the writ petition was maintainable being hit by the principle of estoppel and for suppression of the material fact that the writ petitioner paid for the aforesaid 5 items and took delivery of them in terms of Annexure-C series to the writ petition without any objection.

6. We have heard Mr. T.H. Khan, the learned Counsel for the appellant in C.A.No.184 of 2005 and Mr. Monsur Habib, the learned Additional Attorney-General for the appellant in C.A.No.185 of 2005 and Mr. Syed Amirul Islam, the learned Advocate for respondent No.1 in C.A.No.184 of 2005 and for the respondents in C.A.No.185 of 2005 and perused the impugned judgment and other connected papers.

7. The learned Counsels for the appellants strenuously argue the aforesaid points and in elaboration thereof submit that the writ petitioner respondent Zahangir Alam having accepted the decision of the writ respondent Government as contained in Annexure-C series to the writ petition and paid for the aforesaid 5 items out of 14 items of the 5th call of tender and having taken delivery of them without any objection was estopped from filing the writ petition in question and the Rule issued therein was therefore liable to be discharged summarily. It is also argued that the learned Judges of the writ court acted in excess of their jurisdiction in negotiating the price and directing the writ respondent Government to accept such price for the aforesaid 9 items and, as such, the impugned judgment is liable to be set aside. It is further argued by the Counsels for the appellants that since the writ respondent Government was empowered in terms of clause 9 of the Tender Schedule to accept or reject any or all the offers of the writ petitioner the writ respondent Government acted within its right in accepting the offer of the writ petitioner in respect of 5 items only and issuing notices for the 6th tender for the remaining 9 items and the writ petitioner having taken delivery of the said '5 items without any reservation the writ petition challenging the auction notices of the 6th call for the remaining 9 items was liable to be dismissed in limini being incompetent and frivolous.

8. The learned Counsel for the writ petitioner respondent however argues in support of the impugned judgment and the reasoning assigned in support of the same.

9. We have examined the impugned judgment and considered the arguments and the materials on record. The points raised and argued by the learned Counsels for the appellants have a good deal of force. In terms of clause 9 of the relevant Tender Notice the writ respondent Government was not obliged to accept the bid of the writ petitioner respondent in toto or reject the same in toto. 'Writ respondent Government had the option to accept the bid in part. Hence the writ respondent Government by 5 letters dated 18.3.2004 vide Annexure-C series to the writ petition rapidly accepted the price offered by the writ petitioner in respect of 5 items out of 14 items. The writ petitioner having paid the price for the said 5 items and taken delivery of the same was debarred from at raising any claim in relation to the remaining 9 items and accordingly the Rule was liable to be discharged. Further, the writ petition was also not maintainable for suppression of the material fact that the writ petitioner accepted the decision of the writ respondent Government without any demur vide Annexure-C series to the writ petition and took delivery of the said 5 items by paying the agreed price.

Before we part with the matter, we would like to record our utmost disapproval and dissatisfaction at the conduct of the learned Judges of the writ Court in negotiating the price of the remaining 9 items by substituting the decision of writ respondent Government for the same and thereafter directing the said respondent Government to allow the writ petitioner to take delivery of the remaining 9 items by accepting such negotiated price, inasmuch as negotiation of sale price between the parties never falls within the domain of the Court.

1. For the reasons stated above, the appeals are allowed without any order as to cost.

Mr. Justice Md. Imman Ali

And

Mr. Justice A.F.M. Abdur Rahman

Death Reference No. 13 of 2004

The State

-Versus-

Amir Hossain Sheikh and others

tttt.Condemned Prisoners.

With

Criminal Appeals No. 255 of 2004

and 260 of 2004.

With

Jail Appeal No. 146 of 2004.

Amir Ali alias Amir Hossain Sheikh and another (in Crl. App. No. 255 /04 & Jail App. No. 146/04)

Eskender Howlader and others

(in Crl. App. No. 260/04 & Jail App. No. 146/04)

ttttCondemned Prisoners/ Appellants

-Versus-

The State tttt.Respondent.

Mr. Mohammad Ali Akanda, D.A.G. with

Mrs. Shahuaz Haque, A.A.G. &

Mr. A.K.M. Salahuddin, A.A.G.

tt.For the State

Mr. A.K.M. Nurul Alam, Advocate

tt.State Defence Lawyer for absconding convicts

Mr. Md. Abdur Rouf, Advocate for

Mr. M.A. Jalil, Advocate

tttt.For the Condemned Prisoners/Appellants in Crl.

Appl. No. 255/04

Mr. Md. Anisur Rahman Hatem, Advocate

ttttFor the Condemned Prisoners/Appellants in

Crl. Appl. No. 260/04

Judgment on : 9.1.2008.

Md. Imman Ali, J :

This Reference under, section 374 of the Code of Criminal Procedure made by the learned Additional Sessions Judge, Bagerhat, seeks confirmation of the sentence of death imposed by him upon accused Amir Hossain Sheikh, Eskender Howlader, Hemayet Sheikh, Babul Sheikh, Nazrul Islam Sheikh, Moti Howlader, Anser Ali Sheikh, Sultan Sheikh and Adhir Kumar Das alias Adhir Sadhu under sections 302/109/34 of the Penal Code, by his judgment and order dated 25.1.2004, passed in Sessions Case No. 58/97, corresponding to G.R. N.33/95, arising out of Kachua Police Station Case No.5 dated 21.4.95. Four convicts, namely Moti Howlader, Anser Ali Sheikh, Sultan Sehikh and Adhir Kumar Das alias Adhir Sadhu are shown to have been absconding at the time of judgment and are represented before us by a State Defence Lawyer. The remaining five convicts preferred Jail Appeal No. 146 of 2004. In addition accused appellants Amir Hossain Sheikh and Hemayet Sheikh preferred Criminal Appeal No. 255 of 2004 and appellants Eskender Howlader, Babul Sheikh and Nazrul Islam Sheikh preferred Criminal Appeal No. 260 of 2004. The Reference and all the appeals, arising out of the same judgment and order of conviction and sentence, were heard together and are disposed of by this judgment.

The prosecution case, in brief, is that accused Amir Hossain Sheikh was in possession of an employment visa for Saudi Arabia which was sent to his son and which he wanted to sell. Amir Hossain Sheikh was a labour leader of Habigonj Transport, Mitford Road, Dhaka, of which deceased Monirul Islam Khan was the Manager. Monirul showed interest to buy the said employment visa. On 12.3.95 deceased Monirul Islam Khan, went with accused Amir Hossain Sheikh to the village home of the latter's father-in-law and, thereafter, he could not be traced.

It is alleged that said accused Amir Hossain Sheikh along with the other accused persons killed the victim and distributed among themselves the Tk. 1,40,000/-, which the victim had taken with him in order to pay for the employment visa. The victim's brother Md. Basirul Islam Khan (PW12) lodged the First Information Report (F.I.R.) with Kachua Police Station on 21.4.95 without naming any accused persons but suspecting that he was killed by Amir Hossain and one Nesar Uddin, who was a labour leader of Habiganj Transport Agency based in Dhaka. The dead body of he victim was discovered in a field at village Ragudattakati on 13.3.95 and as a result U.D. Case No. 5 of 1995 was started and the informant was notified by the Chandina Police Station about the finding of a black money bag which contained the name of Md. Monir Khan. Thereafter, upon the lodging of the F.I.R. Kachua Police Station Case No. 5 dated 21.4.95 was set in motion.

After due investigation police submitted charge-sheet dated 25.1.96 against the nine accused persons named above and also one Syed Ali Sheikh under sections 302/109/34 of the Penal Code. The latter having died in the meantime, charge was framed on 16.2.98 against the remaining nine accused persons under sections 302/109/34 of the Penal Code, which was read over to the accued persons present in the dock, to which they pleaded not guilt and claimed to be tried.

In order to substantiate the charge against the accused persons, the prosecution examined 13 out of 16 witnesses produced, whereas the defence did not call any witness nor adduced any other evidence in their defence. Three of the witnesses produced, namely PWs, 9, 11 and 15 were tendered. From the trend of cross-examination of the prosecution witnesses and the statements made by the accused, when examined under section 342 of the Code of Criminal Procedure, the defence case appears to be one of innocence.

Mrs. Shahnaz Haque, the learned Assistant Attorney General appearing on behalf of the State, placed before us the F.I.R., deposition of the witnesses and other evidence and materials on record. The learned Deputy Attorney General, Mr. Mohammad Ali Akanda, appearing on behalf of the State, submits in support of the Reference and prays for dismissal of the appeals and confirmation of the sentence of death. In his submissions he further pointed out that, although there was no eyewitness of the occurrence of killing of the victim, the fact that the accused were involved in the murder is evidenced by the confessional statement of accused Amir Hossain Sheikh, which was recorded by the Magistrate under section 164 of the Code of Criminal Procedure. He points out specifically that the original statement as recorded by the Magistrate clearly shows that the Magistrate followed all the procedures and rules relating to the recording of confessional statements made by accused persons and in addition in this case, it appears that the confessing accused was so eager to make the confessional statement that even after conclusion of his statement he insisted on saying more and in fact at the time of signing the statement he, in his own hand writing, wrote that in total nine persons, including himself, were involved in the occurrence. He further points out that the deposition of PWs 3 and 8 bears evidence of the fact that the accused took the victim to the house of his father-in-law, which is commensurate with the statement made by accused Amir Hossain Sheikh in his confessional statement.

The learned D.A.G. concedes that the confessional statement of an accused cannot be used as substantive evidence to secure the conviction of other accused persons and, therefore, finds it difficult to support the conviction of the accused persons other than Amir Hossain, taking into consideration the evidence and materials available in this case. He prays that the Reference may be accepted upon dismissing the appeals.

Mr.A.K.M. Nurul Alam, learned advocate, appears as State Defence Lawyer on behalf of the four convicted accused, who are shown to be absconding, namely Moti Howlader, Anser Ali Sheikh, Sultan Sheikh and Adhir Kumar Das alias Adhir Sadhu.

The learned advocate first of all submits that the learned Judge has seriously erred in convicting Anser Ali Sheikh and sentencing him to death, since the records show that this accused person had died during the course of trial. Pointing to the order sheets of the trial Court, the learned advocate points out that as early as 19.1.2001 the order sheet indicates that accused Anser Ali Sheikh and Syed Ali had died. In fact Syed Ali died before the framing of charge. Hence no charge was framed against him. Subsequently, when the file was transferred to the learned Sessions Judge he ordered for the matter to be inquired into by the police, by his order dated 17.10.2001. In due course the police reported, after due inquiries, that accused Anser Ali had died on 3.5.200, which is reflected in the order of the trial Court dated 27.6.2002. He submits that in spite of such evidence appearing in the record itself the learned Judge convicted accused Anser Ali and sentenced him to death, which is a gross illegality and indicative of his failure to exercise judicial mind.

The learned advocate submits that it is apparent from the judgment that the learned trial Judge passed the orders being emotionally affected by the killing of a man. The learned advocate points out that the occurrence allegedly took place on 12.3.95 but the F.I.R. was lodged on 21.4.95, in spite of the fact that the informant became aware of the death of his brother on 15.3.95. He submits that there is no explanation for the delay in lodging the F.I.R. and such delay gave sufficient scope for the informant to manipulate the allegations against accused persons by concocting a false story. Next, the learned advocate points out that by his order dated 28.9.2003, the learned Judge allowed an application to admit into evidence the confessional statement of the accused under the provisions of section 509 of the Code of Criminal Procedure and went so far as to mark the statement as exhibit 11, which was illegal. The learned advocate submits that section 509 of the said Code does not provide for admission into evidence of a confessional statement and, therefore, the applications made by the Assistant Public Prosecutor (A.P.P) was misconceived and the learned Judge's order allowing such applications erroneous and illegal. The learned advocate submits, therefore, that the confessional statement recorded by the Magistrate, which was not approved in Court in accordance with law, could not have been taken into consideration and cannot be the basis of any conviction. By reference to the decision in the case of Bimal Chandra Das alias Vim and 3 others Vs. State, 51 DLR 466, which also refers to the earlier decision of the Appellate Division in the case of Babul alias Abdul Majid Khan and ors. Vs. The State, 42 DLR (AD) 186, he submits that it would be injudicious to accept the 164 statement as basis of the conviction in the absence of examination of the Magistrate, who recorded the statement.

The learned advocate submits that a further ground for convicting the accused was shown to be the abscondence of the accused persons, particularly those whom he represents. In this regard, he refers to State Vs. Badshah Mollah, 41 DLR 11, wherein it is observed that mere abscondence is not indicative of the guilt of the accused.

Finally, the learned advocate submits that the confession, in this case made by accused Amir Hossain Sheikh, cannot be the basis of the conviction of any of the other co-accused. In this regard he refers to Ustar Ali Vs. State, 3 BLC (AD) 53.

Mr. Abdur Rouf, learned advocate appearing on behalf of Mr. M.A. Jalil, learned advocate, who is indisposed and unable to atend the Court, made his submissions in favour of convict appelants Amir Hossain Sheikh and Hemayet Hossain. The learned advocate submits, first of all, that the charge is defective inasmuch as it does not specify the manner of occurrence, particularly as to which accused dealt flows upon the victim and how he came to meet his death. He also points out that the examination of the accused persons under section 342 of the Code of Criminal Procedure was not proper and in accordance with law, inasmuch as the specific evidence, as deposed by the witnesses, was not brought to the notice of the accused persons. By reference to the decision in Abdul Mannan and others Vs. State, 44 DLR (AD) 60, he submits that the examination of the accused under section 342 was perfunctory and as such the trial was vitiated. Next, the learned advocate points out that the statement of accused Amir Hossain Sheikh recorded under section 164 of the Code of Criminal Procedure on 2.7.95 was retracted by the accused by two separate petitions which are in the record, but which have not been considered by the cognizant Magistrate or the trial Judge. He further submits that the failure to examine the Magistrate, who recorded the confessional statement, and to make him available for cross-examination makes the confessional statement inadmissible in law. He submits that the marking of the confessional statement as exhibit 11 in the case and its admission into evidence is illegal since no witness has proved the document in accordance with law. He refers to the decision in Ashrafuddin Ahmed vs. The State, 16 DLR 223, wherein it was held that the simple marking of an exhibit in the order sheet is not sufficient and that the fact of marking a document or material as exhibit must be reflected in the transcript of the evidence. He submits that in the instant case none of the witnesses produced nor identified nor exhibited the said confessional statement of the accused and hence the learned trial Judge seriously erred in considering this as evidence in the case. The learned advocate submits that the provisions of section 80 of the Evidence Act. cannot be availed in order to utilize the confessional statement as evidence. In this regard he refers to Belal alias Belal and 2 others Vs. State, 54 DLR 80. He also mentioned the case of Babul alias Abdul Majid Khan and ors. Vs. The State, 42 DLR (AD) 186. Finally, he mentioned the decision in the case of Babor Ali Molla and others Vs. State 44 DLR (AD) 10, wherein it was held that confessional of a co-accused is not evidence against other accused persons, but may be taken into consideration to lend support to other substantive evidence. He submits that in the instant case there is no substantive evidence. The learned advocate prays that the appeal may be allowed and the appellants may be acquitted of the charges levelled against them.

Mr. Anisur Rahman Hatem, learned advocate appearing on behalf of convict appellants Eskender Howlader, Babul Sheikh and Nazrul Islam Sheikh, also pointing out the delay in lodging the F.I.R, submits that there was scope for concoction. He further points out that there was no eyewitness of the occurrence. He points out that the evidence of PWs 3 and 8 are to the effect that accused Amir brought the victim with him and stayed at the house of his father-in-law, but no mention is made of the involvement of any of the other accused persons. He points out also that the evidence of PW 12 does not implicate any of the other accused persons including the appellants, whom he represents. The learned advocate submits that clearly the conviction by the learned trial Judge is based upon the confession of accused Amir Hossain Sheikh, which is contrary to settled principles of law. In this regard he refers to The State Vs. Md. Tuku Biswas, 1 ADC 182 (2004) and Jajid Sheikh alias Majid and others Vs. State, 11 BLC (AD) 149 in support of his contention that the confession of a co-accused cannot be the basis of the conviction of there accused persons. He therefore, submits that there is no legal evidence upon which the learned trial Judge could have convicted the appellants and, therefore, prays that the appeal may be allowed and the appellants may be acquitted of the charges leveled against them.

In reply the learned DAG submits that the statement of the accused recorded under section 164 of the Code of Criminal Procedure, unlike other documentary evidence, need not necessarily be proved by any witness during trial. He submits that the confessional statement, which was recorded by a Magistrate at the behest of the trial/cognizant|| Magistrate and the accused having given his statemen, was sent back to the referring Magistrate along with the confessional statement, such statement automatically becomes part of the record and, furthermore its genuineness is presumed under section 80 of the Evidence Act. In this regard he refers to the decision in the case of Abul Khayer and 3 others Vs. State, 46 DLR 212, where the Magistrate had not been examined and where the confessional statement was accepted as sufficient as the sole basis for conviction of the maker of the statement, where the confession was accepted as true," and voluntary.

(To be continued)