The New Nation - Internet Edition

Shaheen Ahmed, Barrister-at-Law

Historically speaking, before revelation of the holy Qur'an women had no legal rights. In youth they were the goods and chattels of the father; after marriage the husband their lord and master. Polygamy was universal, divorce was easy and female infanticide was common. Thus, the status of women was not recognised in human society till the seventh century when for the first time Islam declared that "0 mankind! Truly We created you from a single (pair) of a male and a female, and made you into people and tribes that you may know each other t (Qur'an, 49:13; cf. 4:1).2 By this declaration Islam has recognised woman as a full and equal partner of man in the procreation humankind. Still it is very often alleged that the inheritance law of Islam of discriminatory in that it violates the equality clause as provided by the Constitution which is, in fact, misconstrued. It is evident from the proper construction of Article 27 of the Constitution of Bangladesh that the principle of equality requires that all persons have equal rights but they may not have 'identical rights'. It is further established that treating all persons equally in all respects without taking into consideration their respective needs and capacity is very much inconsistent with the principle of equality. It will be very unjust to say, without assessing the total scheme of the inheritance law of Islam, that Islam has discriminated against women

This paper is intended to find out, as per the judicial interpretation of the Article 27 of the Constitution ( equality clause), the spirit of the principle of equality in terms of mutual rights between men and women. It will also identity the rational basis or the reasonable criterion upon which the Islamic Law of Inheritance is based. Finally, an assessment will be made as to whether the actual needs of women demand either promulgating any further laws or enforcing their prevailing rights as granted by our Constitution as well as the divine law.

Judicial interpretation of the 'principle of equality' as per Article 27 of the Constitution:

Article 27 of the Constitution of Bangladesh provides: "All citizens are equal before law and are entitled to equal protection of law." A question arises as to whether the equality should be in its absolute sense or not. In response to this question, our apex Court has interpreted the equality clause in its various landmark decisions some of which are repeated below:

Equality before law is not meant to be interpreted in the absolute to be held that all persons are equal in all respects, in spite of different conditions and circumstances, in which they are situated or for possessing special qualities and characteristics that are lacking in others.3 The term 'equality before Law' means that all persons are not equal in all respects and that persons similarly situated should be treated alike. Equal protection of law is a guarantee that similar people should be dealt with in a similar way and that people of different circumstances will not be treated as if they were the same. The equality before law and equality of opportunity are both governed by the principle that the equality should be qualified by the qualification of the citizen. 'We have to consider whether there was discrimination among the citizens with equal qualification and equal claim.5 Any classification made upon a reasonable basis is never treated as inconsistent with the equality clause. Explaining the pre-requisites for applying the formula of equal treatment under Article 27, the apex Court observed that all citizens are equal before law, but they may be subjected to different provisions of law at different times, depending upon the circumstances in which they find themselves. The Article requires that likes should be treated alike. The Article does not stand on the way of adoption of a classification if such a classification is based on a rational criterion.

In discussing the issue of equality, Justice K Jagannatha Shetty of the Indian Supreme Court observed that it is now an accepted jurisprudence and practice that the concept of equality before the law and the prohibition of certain kinds of discrimination do not require identical treatment. The equality means the relative equality, namely, the principle to treat equally what are equal and unequally what are unequal. To treat! unequals differently according to their inequality is not only permitted but required. Again, in his book Constitution of India Shukla says, 'as matter of fact all persons are not alike or equal in all respects. The application of the same laws uniformly to all of them will therefore be inconsistent with the principles of equality. To avoid that situation laws must distinguish between those who are equal to whom they must apply and those who are different and to whom they should apply.

From the above discussions of the judicial interpretations of the term 'equality', it is that the spirit of the principle of equality not necessarily requires any mathema1 equal treatment rather it demands the relative equality meaning to treat equally of equal and unequally what are unequal.

Is Islamic Law of Inheritance discriminatory?

Under the Islamic Law of Inheritance, generally a male takes a share double that of a female in his own category. But at the same time a woman is entitled to inherit in different capacities as a daughter, sister, wife and mother. Still there are some people, especially the western feminists, who have misgivings about the status of women in Islam. To them, Islam has underscored the status of women by giving them half the share of their male counterparts. To me, these notions are totally wrong and are based on ignorance rathen than proper know1edge of Islam. Such misgivings are simply spreadiug misunderstanding and misinformation about the normative teachings of Islam. In order to analyse the allegation of discrimination against the law of Islam, one has to understand the attitude of Islam towards a man and a woman first. According to Islam, men and women have, to certain extent, their distinct capacity and needs and hence both men and women should not be subject to same obligations.

The fact that a fundamental difference exists between men and women has been explained by Nobel Laureate Dr. Alexis Carrel (1873-1944) with great perception thus: The differences existing between man and woman do not come from the particular form of the sexual organs, the presence of the uterus, from gestation, or from the mode of education. They are of a more fundamental nature. They are caused by the very structure of the tissues and by the impregnation of the entire organism with specific chemical substances secreted by the ovary. Ignorance of these fundamental facts has led promoters of feminism to believe that both sexes should have the same education, the same powers and the same responsibilities. In reality, woman differs profoundly from man. Every one of the cells of her body bears the mark of her sex. The same is true of her organs and, above all, of her nervous system. Physiological laws are as inexorable as those of the sidereal world. They cannot be replaced by human wishes. We are obliged to accept them just as they are Islam, considering this distinct physiological nature, differentiates between human equality and functional equality of man and woman. As for the functional equality, it takes into consideration their essential biological differences and determines their functional spheres accordingly. Islam considers man and woman equal as human being, but not identical. It draws a line between the concept of equal sexes and the concept of identical sexes in view of the most apparent biological, emotional and psychological differences between men and women. It would be rather injustice (particularly to woman) to consider men and women identical and ignore the essential differences between them. Therefore, it is observed that 'in matters related to the protection of the rights of weaker sex Islam discriminates in its favour, and in matters related to bearing the responsibilities Islam favours man. Thus, the division of labour is effected along the just principle of potentialities and capabilities and not along any abstract impracticable ideals.

For the reasons of fundamental structural difference as explained above, in distributing the shares between men and women heirs, 'Islam in its wisdom, has preferred an empirical equity to a mathematical equality. Thus, it has ensured a perfect equilibrium in the families, considering various financial responsibilities imposed upon every man but upon no woman (underlining are mine). Man in Islam is fully responsible for the maintenance of his wife, his children,., and in some cases of his needy relatives, especially the females. This responsibility is neither waived nor reduced because of his wife's wealth or because of her access to any personal income gained from work, rent., profit, or any other legal means. Women, on the other hand, have been exempted from any financial responsibility to support the family. Moreover, they have no obligation to spend on their families out of their properties or any income after marriage.

Besides maintenance, under the law of Islam, a woman is also entitled to receive 'dower' from her husband while entering into a marriage contract. The husband has a legal obligation to pay the dower money to his wife and in case of his death, the wife is entitled to recover the same from the property of the husband as a debt. Also in old age the right of a woman for maintenance continues and if the husband dies and she becomes unable to live on her share of the estate of the deceased, she can claim maintenance from her children.

Hence it is seen that a female has actually very few material needs to satisfy on her own account as compared with a man who has been saddled with very heavy economic obligations and liabilities. Considering all the aspects of rights and obligations between men and women, there is ample justification for awarding a man greater share m inheritance which should be treated as equitable instead of 'mathematical equal,.

Again, under the Islamic law of inheritance, a woman has got full freedom to enjoy the property she inherited exactly like her self-earned property. Her absolute ownership over the property is sanctioned by the holy Qur'an in the following clear words:

"To the men belongs what they earned;

And to the women belongs what they have earned' (Qur'an, IV,: 32).

Islam fully recognises woman's right to her money, real estate or any other properties. She retains her full rights to buy, sell, mortgage or lease any or all her properties. It is also noteworthy that such right remains in force even after her marriage.

A female is acknowledged as an independent personality, in possession of human qualities and worthy of spiritual aspirations. Islam has treated both as members of one another as Allah (SWT says: "And their Lord has accepted (their prayers) and answered them (saying): 'Never will cause to be lost the work of any of you, be it male or female; you are members, one of another." (Qur'an, 3: 195; of 9:71; 33:35-6; 66:19-21)14. It makes no distinction belween male and female in the pursuil of education and knowledge. Fourteen hundred years ago, the prophet of Islam declared that the pursuit of knowledge is mandatory for every Muslim male and Muslim female.

It is a matter to be understood that the instances that a man gets double the share of a woman is not a sign of giving preference or supremacy to man over woman. Here we can say that when taken as a whole the rights of woman are equal to those of man although not necessarily identical.

The whole status of woman is given clearly in the Qur'anic verse: "And women shall have rights similar to the rights against them, according to what is equitable; but men have a degree over them" (2: 228). This degree is not a title of supremacy or an authorisation of dominance over her. It is to correspond with the extra responsibilities of man and give him some compensation for his unlimited. liabilities which is more clearly explained by the Qur'an by saying that men are trustees, guardians, and protectors of women because God has made some of them excel others and because men expend of their means (Qur'an, 4:34).16

What is needed to improve the status of women - Reform of family laws or enforcement?

Protection of women's rights is much more difficult than either defining them or codifying new legislations. The main obstacle that lies in the way of the practical application of the legal rights of women in Bangladesh is primarily the contradiction of attitudes that persist in a male-dominated society. In real life, women are deprived of their rights of maintenance, dower, dissolution of marriage, custody, guardianship and other forms of property in spite of the fact that these are legitimate rights under the law of Islam. It was found in a study of the metropolitan city of Dhaka that 88% of Muslim wives did not receive any dower. A study of two villages revealed that 77% of women from families with land did not intend to claim their legal share in their parental property to retain better links with their natal family.

Thus, whatever legal rights women may have they are not necessarily being recognised. by the society. In this regard, the practical aspect of problem for women has rightly been identified by Mr. Justice ARM Khairul Haque in the following words of a landmark decision. "It is to be noted that a woman always has to adjust her position, sometimes with her husband, sometimes has to compromise between her children and her job. Unlike a working man a working woman of necessity has always to keep an eye on the interest of her family. This is how a woman is thrown and pushed in a discriminatory situation. Innumerable examples of such ordeals faced by women can be cited keeping them far away from the hallowed concept of gender equality so beautifully stated in the books on Constitution which is of no aid or consolation to a working woman in her practical life in this harsh and sadistic world of equality. However, it should not be misunderstood that Islam protects any patriarchal family life. Declaring marriage as a civil contract, the Qur'an intends to bring to an end all kinds of patriarchal and matriarchal family systems. The fact that the Qur'an permits women to independently own and run trades and businesses demonstrates that the family law system in Islam is not essentially patriarchal.

It should, therefore, be remembered by all, particularly those who are concerned in establishing women rights that mere framing rules and new legislations treating man and woman equally in its mathematical term cannot possibly, improve the status of women unless we fail to recognise their granted rights socially. In this respect, the observation of Mr. Justice ABM Khairul Haque is noteworthy: 'In the office, the superior officer, more often a man than a woman. in dealing with his women employee, should keep in mind her natural inbred circumstances and peculiar situations uniquely attached to her life, unknown to most men. This goes not only for the ordinary working women but also those engaged in various professions such as a physician, a teacher, an engineer, etc. Even we Judges can set an example. We may accommodate the learned Lady Advocates with their prayers for adjournment and other prayers with the circumspection and more liberally than her counterparts in the profession. In following the concept of equality if similar standard is maintained towards both men and women we shall perhaps, literally follow only the form and not the spirit of the concept of the gender equality enshrined in our Constitution.

It is a clear fallacy to say that Islamic Law of Inheritance has breached the principle of equality between men and women in distributing property. Having taken into consideration the proper construction of the Article 27 of the Constitution one must recognise that the spirit of the principle of equality does not necessarily require any 'mathematical equality' rather it allows any classification on a rational basis. This aspect of constitutional interpretation of the principle of equality by our apex court is very much consistent with the whole scheme of the Islamic law of inheritance, on the one hand, ensured equal rights between men and women while on the other hand, has treated them equitably (for sharing the property only) on the basis of their respective capacity and needs. It needs to be emphasised that mere mathematically equal treatment between men and women will not only go against the spirit of the constitutional clause of equality as well as the interest of women but also frustrate the ends of justice. Hence it is evident that the real problem is not of any reform but lack of enforcement of women's rights which are granted under the law of Islam for achieving gender equality.

(From previous issue)

He also refers to the decision in the case Madi Ganga V. State of Orissa, AIR 1981 (SC) 1165, where it was held that section 80 of the Evidence Act makes the examination of a Magistrate unnecessary in admitting the con confessional statement into evidence.

With regard to the contention of the learned advocate for the appellants about the alleged defect in the charge and examination of the accused under section 342 of the Code of Criminal Procedure, the learned D.A.G submits that the charge is required to reflect only the time and place of the occurrence and the, identity of the victim; there is no necessity to indicate the manner of the occurrence in the charge. He submits that it is only necessary to indicate the manner of the occurrence in the charge if it is not apparent from the name of the offence itself. With regard to the 342 statement, the learned D.A.G. submits that the requirement of law is that the accused is to be informed of the material evidence brought against him indicating his complicity in the offence alleged and that, in the facts of the instant case, such requirement has been satisfactorily met.

The learned D.A.C. further submits that the retraction mentioned by the learned advocate for the defence was not considered by the trial Court and in any event, such retraction is immaterial if the confession is accepted as voluntary and true. In this regard he refers to Balkul Chandra Sarker/Vs. The State, 45 DLR 260.

Let us now consider the evidence and material on record, as produced by the prosecution in order to substantiate the, charges levelled against the accused persons. Substantiate the charges leveled against the accused persons.

Md. Hemayet' Uddin, the Officer-in-Charge of Kachua Police Station deposed as PW 1 stating that he initiated the Kachua Police Station Case No. Stated 21.4.95 under sections 302/109/34 of the Penal' Code. This witness also gave evidence as PW 5 as the first Investigating Officer stating in his examination-in-chief that upon being entrusted with investigation he visited· the place of occurrence, prepared the sketch map (exhibit 2) and index (exhibit 3), wherein his signatures arc respectively marked as exhibits 2/1 and 3/1. He seized alamats and prepared seizure list (exhibit 4), wherein his signature is marked as exhibit 4/1. He stated that the alamat is a letter written by the victim, which he identified in Court. In his cross- examination he denied the suggestion that he did not investigate the case properly.

PW 2, Md. Abdur Rashid did not support the prosecution case and was declared hostile by the prosecution. In his cross-examination by the prosecution, he denied all the suggestions of the 'prosecution and the prosecution failed to elicit anything of significance from the witness.

PW3, Md. Zakir Hossain Dakua stated that he saw the victim Monir Hossain sitting by the road side on 12.3.95 and, upon his query, he told him that he came from Camilla and that he had been brought there by Amir and was staying at the house of Amir's father-in-law. He heard 18-20 days later that a person had, died in the field of Ragudattakati village. There was nothing of any significance elicited in his cross-examination.

PW 4, Abdus Shukur was the Sub-Inspector of Police, who was entrusted with examining the informant and recording his statement under section 161 of the Code of Criminal Procedure, which he did on 18.10.95.

PW 6, Abdul Matin, another Sub-Inspector of Police stated in his examination-in-chief that he investigated the U.D. Case No. 5/95 dated 13.3.95 and visited the place of occurrence, held inquest, seized alamats and took steps for post mortem examination of the dead body. He proved the post mortem examination report (exhibit 5), when in his signature is market as exhibit 5/1. He stated that he submitted a 6nal report with regard to the U.D. case and a regular case was started. He proved the U.D. Case (exhibit 6), wherein his signal the, is marked as exhibit 6/1. In his cross-examination he stated that one Narayan Chandra Das (not examined) was the informant in the U.D. case. He deposed that it is stated in the U .D. case that the dead body was of an unknown person and the inquest was therefore also of an unknown person, Suce no. one recognized the dead body.

PW 7, Dr. Goura Priya Majumder, deposed in support of the post mortem examination report, wherein he noted the following injuries:

1. One deep incised injury over right side of forehead and face start1l1g from car to the nose cutting underlying bone size 6" x 1" x ½ II (deep).

He stated that there arc nine, similar injuries detailed in the PM report.

On dissection: Extravasated ante mortem good clot present along and around the injuries described above.

Much soft tissue and bone cut deep to the injuries of face i.e. 1 & 2. Trachea transversely cut 11/2". Brain tissue injured deep to injury of skull. Muscles soft tissue scapula cut transversely deep to injury No.6. The stomach and liver injured deep to injuries of abdomen, abdominal cavity contained liquid blood 6 oz, left lung injured and the cavity contained liquid blood 6 oz.

In his opinion the death was due to shock and haemorrhage caused by· above mentioned injured which were ante mortem and homicidal in nature.

He proved the post mortem examination report (exhibit 7), wherein his signature is marked as exhibit 7/1.

In his cross-examination he stated that the dead body was brought to him and identified by Constable 276 Abdur Rahman. He denied the suggestion that he did not conduct the post mortem examination properly.

PW 8, Md. Shahidul Islam Khan, a cousin of the victim, identified the letter (exhibit 8) as being in the hand writing of deceased Monirul Islam, which was marked as exhibit 8/1. He stated that deceased that deceased Monir worker at Dhaka Transport owned by someone from Habiganj and whose labour leader was Amir Hossain, who took money from Monir in order to send him abroad. Monir went to Kachua in order to arrange payment of the money to go abroad and on 13.3.95 the Office-in-Charge informed that his dead body had been recovered. In his cross-examination he stated that he could not say how the dead body was discovered, but that he found out that it was recovered in Kachua. He stated that he last met deceased Monir on 8/9th March '95 at which he told him that he was going to the house of the labour leader in Kachua in order to arrange his travel abroad. He denied that he was deposing falsely at the behest of police.

PW 9, Abdul Malek Khan, P

W 11, Habibur Rahman Dakuya and PW 15, Ramesh Chandra Das were tendered by the prosecution. Their cross-examination by the defence was declined.

PW 10, Mollah Abdul Gaffar, was a witness to the seizure list relating to the money bag, later found to belong to deceased Monirul. He proved the seizure list (exhibit 4), wherein his signature is marked as exhibit 4/2. In his cross-examination he stated that he did not know the owner of the bag which was found next to the dead body.

The informant Md Bashirul Islam Khan, brother of the deceased Monir, deposed as PW 12. He was not an eyewitness of the occurence and only found out about the death of his brother from the information which he received from Chandina Police Station, which was relayed from Kachua Police Station on 15.3.95. He stated that he went to Kachua Police Station on 21.4.95 and found out that a U.D. case had been filed on 13.3.95 and, upon his query, the Officer-in-Charge showed him the black money bag, which had been found and wherein the name of Monir Khan and the address appeared. Thus, he realised that the dead person was his brother. He also recognised his brother's hand writing and also saw the photograph, which he recognised as his deceased brother. He also identified his brother by the wearing apparel. In his cross-examination he admitted that he did not see the occurrence and that he mentioned two persons in the F.I.R. as suspects.

PW 13, Golap Halder and PW 14, Ridoy Ranjan Das were mere witnesses to the inquest. They denied knowledge as to the identity of the deceased person.

PW 16, Md. Isahak Dukhu is the Second Investigating Officer, who arranged for accused Amir Hosain Sheikh, to have his statement recorded by a Magistrate under Section 164 of the Code of Criminal Procedure, which was recorded by Magistrate Abdul Hadi.

He also examined a number of witness and recorded their statements under section 161 of the Code of Criminal Procedure. Upon finding Prima-facie case he submitted charge-sheet against ten accused persons under sections 302/109/379/34 of the Penal Code. In his cross-examination he stated that he took over investigation of the case from 21.5.95. In his further cross-examination he stated that he arrested Amir Hossain on 1.7.95 and forwarded him to the Court on 2.7.95. He denied the suggestion that accused Amir did not make the confessional statement voluntarily. He also denied the suggestion that after arresting the accused he beat him and that the accused was compelled to confess according to his instruction.

The learned trial Judge, upon consideration of the evidence and materials on record, convicted the accused persons and sentenced them as stated above prescribed by law (i.e. by observing all the formalities prescribed by Ss, 164 and 364 Cr. P.C.) and the said confession duly taken is tendered in the Sessions Court, it proves itself under section 80 of the Evidence Act without calling the Magistrate who recorded it." His lordship went further to hold as follows: "The only two requirements for admitting such a confession into evidence as a self-proved document is (1) that it was taken in accordance with law and that (2) the identity of the accused who made the confession has been satisfactorily proved before the Court."

In the facts in the instant case, we do not find any challenge to the fact that accused Amir Hossain made the confessional statement nor do we find that the confessional statement was recorded, other than in accordance with the law. We may also point out that in the case of Babul alias Abdul Majid Khan and ors. (cited above), referred by the learned advocate for the appellants, it was observed as follows: "The said confessions were not proved formally by examining the Magistrate who recorded them. Even so the High Court Division was justified in holding that under section 80 of the Evidence Act, the Court was entitled to presume that the documents (containing confession) were genuine; that any statements as to the circumstances Islam Sheikh and also condemned accused Moti Howlader, Anser Ali Sheikh, Sultan Sheikh and Adhir Kumar Das alias Adhir Sadhu is set aside. They are acquitted of the charges levelled against them. Appellants Hemayet Sheikh, Eskender Howlader, Babul Sheikh and Nazrul Islam Sheikh may be released from custody forthwith if not wanted in connection with any other matter.

The warrant of arrest in respect of Moti Howlader, Sultan Sheikh and Adhir Kumar Das alias Adhir Sadhu is hereby recalled. The Jail Appeal No. 146 of 2004 is accordingly, deposed of.

Accused Amir Hossain Sheikh is directed to be removed from the condemned cell and to be kept in custody in accordance with law.

With regard to convict accused Anser Ali Sheikh, we find that the accused having died during the course of trial, the order of conviction and sentence passed against him is erroneous. The judgement in respect of Anser Ali Sheikh is a nullity. In this regard we wish to put on record our utter dissatisfaction at the treatment of this trial by the learned Judge and the lack of application of judicial mind which is patently evident, since he has condemned to death a person who was already dead according to the records before him. We fail to understand how a senior judge conducting a serious criminal trial can be so callous as to ignore the records, which are very much before him.

The order sheet clearly shows that a police report about the death of Anser Ali Sheikh was called and received by the Court. It is very much in the Court's records. Nevertheless the learned Judge treated the dead accused as absconding and awarded the death sentence upon him. The lackadaisical way in which a senior judicial officer has scruptinised the record of the case is highly deplorable.

The Registrar, Supreme Court of Bangladesh is directed to take steps in order to keep a copy of this judgement in the service record of Md. Golam Rabbani, the author Judge of the impugned judgment, who was at the relevant time Additional Sessions Judge, Bagerhat and also, in the light of our abovementioned observations, to make enquiries into his service records in order to assess whether the learned Judge is capable of continuing the functioning as a judicial officer.

Send down the lower Court record at once.

We have perused the evidence and materials on record and considered the submissions of the learned Advocates. It appears from the deposition of the witnesses that there was none who saw the occurrence of the killing of the victim and in the facts of the instant case there is also no circumstantial evidence connecting the accused persons with the death of the victim. We find from the evidence of PWs 3 and 8 that the victim was taken by accused Amir Hossain Sheikh to the house of his father-in-law, but none of the witnesses mentioned the names of any accused persons, other than Amir Hossain. Thus, the only evidence on record of any significance is the statement of accused Amir Hossain recorded by the Magistrate under section 164 of the Code of Criminal Procedure.

Contention has been raised with regard to the admissibility of the confessional statement of accused. Amir Hossain. Several cases have been cited before us, some of which tend to suggest that the confessional statement should not be admitted without the examination of the Magistrate, who recdorded the statement and also, conversely, that the statement recorded under section 164 of the Code of Criminal Procedure need not be proved by any witness and that it can be presumed to be correct under section 80 of the Evidence Act. We note from the records that by order dated 22.7.95 the Magistrate of the Cognisant Court, upon an application to record the statement of the accused Amir Hossain, sent the accused with an order that his statement would be recorded by Magistrate M A Hadi, who was entrusted with the responsibility of recording the confessional statement of the principal accused Amir Hossain Sheikh. On the same day an order sugned by Magistrate Hadi shows that he recorded the confessional statement of the accused and sent back the case record and the accused to the Cognisant Court. It also records that the form for confessional statement was filled and kept with that record.

(To be continued)

It is seen that on the same day the record and the accused were received back by the Congnisant Court and the accused was sent to jail custody. Although, we find two retraction petitions, one dated 28.8.95, and the other dated 12.12.96, which are lying in the record, it appears that the first such retraction petition was not signed by the accused and, upon scrutiny, we find that the signature on the second retraction petition dated 12.12.96 does not bear any resemblance to the signature of accused Amir Hossain appearing in the vokalatnama which has been filed by the appellant along with his memo of appeal. We also note that the signature in the volalatnama of accused Amir Hossain tallies with the signature of accused Amir Hossain as appearing in the confessional statement recorded by the Magistrate. We have also verified the contention of the learned D.A.G. that the accused was rather eager to make the confessional statement, so much so that he himself, in his own handwriting, wrote that altogether nine, including himself, were involved in the occurrence. Moreover, there was nothing said by the accused Amir Hossain when examined under section 164 of the Code of Criminal Procedure either denying having made the confessional statement or having made the statement due to any duress or compulsion. We have minutely gone through the form of the confessional statement and the statement of the accused itself written in the hand of the Magistrate and find that all the legal formalities have been complied. There is no allegation that accused Amir Hossain Sheikh did not make any such confessional statement. On the other hand, the body of the confessional statement shows that the accused voluntarily made the confession, where it is seen that in his own handwriting he wrote above his own signature. Thus, there can be no doubt that accused Amir Hossain Sheikh made the confessional statement voluntarily and no question has been raised as to its truthfulness.

With regard to the marking of the confessional statement as exhibit at the behest of the Court, we are of the view that in the facts and circumstances of the case such marking was not illegal, although undoubtedly the application by the learned A.P.P for admitting the 164 statement under the provisions of section 509 of the Code of Criminal Procedure was misconceived and allowing such application by the trial Judge was patently illegal. Nevertheless, that does not detract from the veracity of the statement nor the legality of the fact that such statement can be admitted into evidence. In this regard we may refer to section 533(1) of the Code of Criminal Procedure, which provides as follows: "If any Court, before which a confession or other statement of an accused person recorded or purporting to be recorded under section 164 or section 364 is rendered or has been received in evidence, finds that any of the provisions of either of such sections have not been compiled with by the Magistrate recording the statement, it shall take evidence that such persons duly made the statement recorded, and notwitbstanding anything contained in the Evidence Act. 1872, section 91, such statement shall be admitted if the error has not injured the accused as to his defence on the merits."

We infer from this provision that the examination of a Magistrate in connection with the recording of a statement of the accused under section 164 of the Code of Criminal Procedure becomes necessary only when a question is raised as to whether or not the Magistrate complied with sections 164/364 of the Code of Criminal Procedure in recording the statement or as to whether the statement was duly made by the accused. We take support from the decision in Emran Ali@ Md. Emran & ors. Vs. State, 37 DLR 1, whedrein Mostafa Kamal, J as he then was, observed as follows: "As such when the confession has been recorded in accordance with law by observing all the formalities