The New Nation - Internet Edition

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)