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Conviction on partly inculpatory confession

Appellate Division

(Criminal)

Md Ruhul Amin J

MM Ruhul Amin J

Md Tafazzul Islam J

Judgment

February 14th, 2007

Shamim Beg @ Md Shamim Beg ttt

ttt.Appellant

vs

State ttttRespondent

Code of Criminal Procedure (V of 1898) Section 164

Evidence Act (I of 1872)

Section 24

It appears that the appellant went to the place of occurrence and on the request of other accused he asked the night guard of the school to go out and then other accused came killed the deceased but he did not disclose the same to anybody. Thus it appears his confessional statement is not wholly exculpatory rather the same is partly exculpatary and partly inculpatory. It is true that he did not directly participate in the murder culpatary of deceased but he participated in the occurrence by asking the night guard of the school to go out and thereby facilitating the murder of the deceased by other accused as narrated by him in his confessional statement.

It is on record that the appellant retracted his confession in writing subsequently which clearly goes to show that he made the judicial confession. In the opinion of recording Magistrate, the confession is true and voluntary. The High Court Division upon correct assessment of the materials on record arrived at a correct decision and, as such, there is no cogent reason to interfere with the judgment of the said Division t. (10,11 & 13)

Ozair Farooq, Senior Advocate instructed by Md Nawab Ali, Advocate-on-Record-For the Appellant.

Golam Kibria, Deputy Attorney-General, instructed by B Hossain, Advocate-on-Record-For the Respondent.

Judgment

MM Ruhul Amin J : This appeal by leave is directed against the judgment and order dated 7-8-2001 passed by a Division Bench of the High Court Division in Criminal Appeal No. 1834 of 1999 dismissing the appeal.

2. Prosecution case, in brief, is that on 4-1-1996 one Khalil, the father of the deceased Azad, lodged FIR with Syedpur Police Station, District Nilphamari alleging, inter alia, that deceased Azad aged about 20 years used to work in 'The Latest VDO House' as operator located in Jikrul Haque Road, Syedpur town and one Albert Shing was owner of the said Video shop. The owner of the Video shop used to send the deceased with Video/VCP set to the house of the persons who used to hire his Video set. The further case is that on 30-12-1995 the said Albert Shing let out Video set to one Shamim Beg (convict-appellant) and sent the deceased along with the Video set to the house of the convict-appellant. The victim went there but did not return. Thereafter, the informant searched for his son but did not get any trace of him. On thorough search marks of blood near the place of occurrence were found and thereafter they found the dead body of deceased in a ditch.

3. The police, on completion of investigation, submitted charge sheet in the case. The convict-appellant Shamim Beg made confessional statement before a competent Magistrate who recorded it under section 164 of the Code of Criminal Procedure. The trial Court framed charge under sections 302/201/34 of the Penal Code.

4. The defence plea is one of innocence.

5. The prosecution has examined as many as 12 witnesses and the accused persons were also examined under section 342 of the Code of Criminal Procedure and they pleaded not guilty.

6. The trial Court on consideration of the circumstantial evidence and the confessional statement of the convict appellant convicted him under sections 302/34 of the Penal Code and sentenced him to suffer imprisonment for life. Being aggrieved he preferred appeal before the High Court Division and the High Court Division upon consideration of the materials on record dismissed the appeal.

7. Leave was granted to consider the submission that there is no legal ingredients for convicting the appellant under section 302 of the Penal Code, when the High Court Division disbelieved the case of the appellant under sections 302/34 of the Penal Code and further submission that from the confessional statement of the appellant and the evidence of PW 9, it appears that the accused person conjointly committed murder of the deceased with other accused but others were acquitted and the appellant has been convicted and, as such, the same is not sustainable as all of them stand on the same footing.

8. We have heard Mr Ozair Farooq, the learned Counsel for the appellant and Mr Golam Kibria, the learned Deputy Attorney General for the respondent and perused the judgment of the High Court Division and other connected papers.

9. In this case, the High Court Division mainly relied on the confessional statement of the appellant and the circumstantial evidence. Let us reproduce below the confessional statement of the appellant:

Avwg 30-12-1995 Bs Zvwi‡L Avjev‡U©i wfwWI †`vKvb nB‡Z wUwf I wfwmwc fvov Kwi| mKvj 10-00 Uvq Acv‡iUi †gvt AvRv` wUwf, wfwmwc Pvjy K‡i w`‡q hvq Ges e‡j ivZ 9-00 Uvq †mU wbqv hve I †mB g‡Z AvRv` ivZ 8-30 wgt Avgvi evmvq hvq Ges e‡j wUwf, wfwmwc wbqv †h‡Z G‡mwQ| Avwg wUwf, wfwmwc evwni Kwiqv †`B| AvRv`‡K H wZbRb Zzjmxivg evwjKv we`¨vj‡qi g‡a¨ wbqv hvq| wKQy¶b ci D³ †givR G‡m Avgv‡K Wv‡K| Avwg evwn‡i Avwm Avgv‡K Wv‡K| Avwg evwn‡i Avwm Avgv‡K ¯‹z‡ji g‡a¨ wbqv hvq Ges e‡j ¯‹z‡ji g‡a¨ wbqv hvq Ges e‡j ¯‹z‡ji bvBU MvW©‡K mivBqv w`‡Z e‡j| Avwg bvBU MvW©‡K evwn‡i hvB‡Z ewj‡j †m hvq| wKQy¶b ci nvi“b iW w`qv AvRv`‡K gv_vq Zvs †`q †m gvwU‡Z cwoqv hvq| ZLb †givR‡K Avwg ewj GUv wK Kiwj ZLb †m ¶zi evwni Kwiqv Avgv‡K Pzc _vK‡Z e‡j Ges Avwg ¶zi Kvwoqv wb‡Z †Póv Kwi ZLb Avgvi Kvs¸j KvwUqv hvq Avwg cÖvY f‡q Pzc _vwK| Zvici AvRv`‡K ¯‹z‡ji wcQ‡b wbqv hvq Ges †gviR ¶zi w`qv AvRv‡`i Mjv †K‡U RevB K‡i| Av‡cj nvZ a‡i wQj nvi“b `yBUv (†Qvov) awiqv wQj| Avvgv‡K KvD‡K ej‡Z wb‡la K‡i e‡j ej‡j †ZviI G Ae¯’v n‡e| c‡i ¯‹z‡ji wfZ‡i 1wU MZ© wQj Zv‡Z jvk †dwjqv evjy gvwU w`qv Pvcv w`qv iv‡L| Avwg evox P‡j Avwm| Avwg †ijI‡q nvmcvZv‡j hvB Ges nvZ e¨vÛR Kwi|

10. Thus it appears that he went to the place of occurrence and on the request of other accused he asked the night guard of the school to go out and then other accused came and killed the deceased but he did not disclose the same to anybody. Thus it appears that his confessional statement is not wholly exculpatory rather the same is partly exculpatory and partly inculpatory. It is true that he did not directly participate in the murder of the deceased but he participated in the occurrence by asking the night guard of the school to go out and thereby facilitating the murder of the deceased by other accused as narrated by him in his confessional statement.

11. The learned Counsel submits that the signature or LTI of the appellant was not obtained in the confessional statement. So the same cannot be relied upon. But it is on record that the appellant retracted his confession in writing subsequently which clearly goes to show that he made the judicial confession. In the opinion of recording Magistrate, the confession is true and voluntary. Together with this we have the circumstances of the case, PW 8, Albert 5hing, in his evidence, stated that on the night of occurrence at about 8.30, the deceased told him that he was going to bring VCP set but thereafter the deceased did not come back and subsequently his dead body was found near Tulshiram School. PW 9, Mostak Ahmed in his evidence stated that on 30-12-1995 he went to perform his duty as night guard as substitute of his father at Tulshiram School and found some persons talking near the latrine of the school. At that time accused Apel told him to go out and about 15/20 minutes after two more persons came and all of them told them to go out. He went to nearby primary school and stayed for half an hour near a grocer's shop.

12. The learned Deputy Attorney-General submits that the confessional statement of the appellant is sufficient for his conviction and in addition there is circumstantial evidence also and the High Court Division rightly maintained his conviction and sentence and dismissed the appeal.

13. From the discussion above, we are of the view that the High Court Division upon correct assessment of the materials on record arrived at a correct decision and, as such, there is no cogent reason to interfere with the judgment of the said Division.

The appeal is dismissed.

Contempt of Court : Unconditional apology accepted

Appellate Division

Criminal

J.R. Mudassir Husain-C.J.

Mohammad Fazlul Karim-J.

M. A. Aziz-J.

Amirul Kabir Chowdhury-J.

CRIMINAL APPEAL No. 14 OF 2003

(From the judgment and order dated 17 March 2003 passed by the High Court Division in Contempt Petition No.84 of 2002).

Abul Kalc1m Azad and others tttt Appellants ..

Vs.

Mohammad Iqbal Hossain & Ors ………ttt. Respondents.

For the Appellants: Mr. Md. Fazlul Karim, Senior ' Advocate, (Mr. Golam Mahiuddin, Advocate with him), instruted by Mr. Md. Nawab Ali Advocate-on-Record.

For Respondent Nos.1-4 : Mrs. Rabeya Bhuiyan, Senior Advocate, instructed by Mr. Md. Aftab Hossain, Advocate-on-Record.

Respondent Nos. 5-6 : Not represented.

Judgment: 5 April, 2004

Contempt of Courts Act, 1926-Section 2- Contempt of court for violation of the courts order

Apology accepted at the appellate stage-

Since there was some misconception as to the nature of the order alleged to have been violated,' the Appellate Division took lenient view and accepted the unconditional apology tendered by the contemner-appellants and set aside the order of sentence' passed by the High Court Division.

At the hearing of the appeal the appellants filed an application for accepting unqualified and unconditional apology admitting the guilt stating that they have violated the order dated 24.07.2002 in Writ Petition No. 1010 of 2002 of the High Court Division wherein Rule was made absolute directing that the Managing Committee of the School constituted on' 12.12.2002 shall be allowed to function upto 11.12.2003, the appellants simply regret and repent and express, remorse and sorrow for what they have done in respect of the order dated 27.4.2002 and simultaneously undertook not to repeat the offence again and accordingly begged for unconditional and unqualified apology to the Court and threw themselves at the mercy of the Courttttttt.. (Para 5)

We have heard the learned Counsels for the parties and considered the facts and circumstances of the case together with the unqualified and unconditional apology with an undertaking not to repeat the offence again. Since the dispute arose over the continuation of the Managing Committee upon formation of the Ad-hoc Committee giving rise to certain misapprehension and misconception regarding issues we are accepting the unqualified and unconditional apology on behalf of the appellants and accordingly set aside the impugned judgment and order of guilt of the appellants for contempt of Court tttt.(Para 6)

JUDGMENT MOHAMMAD FAZLUL KARIM-J:

Upon an application for drawing up contempt of Court, a Contempt Petition No.84 of 2002 arising out of Writ Petition No. 1010 of 2002 was filed on 16 November 2002 whereupon a rule was issued calling upon the appellants and others to show cause as to why contempt proceeding should not be drawn up against them and/ or pass such other or further order or orders as may deem fit and proper.

2. The respondents alleged that inspite of order of the High Court Division the Managing Committee which was constituted on 12.12.2000 was never allowed to function. Moreover, another Adhoc Committee was constituted and election was held for regular committee and regular committee was also constituted on 9.1.2003. It has also been pointed out that some of the respondents moved the Appellate Division for staying the operation of the judgment of this Court which was passed on 24.07.2002. The operation of the judgment was stayed for 2 weeks by an order of the Appellate Division dated 29.7.2002 but after the expiry of the stay, though the respondent made a prayer for extension of the stay the prayer was refused on 12.8.2002 and thereafter there was no stay of the operation of the judgment. In spite of the fact that there was no stay, the legally constituted Committee was not allowed to function. So, accordingly, the action of the respondent-contemners amounts to violation of the order of the Court passed in Writ Petition No. 1010 of 2002.

3. The appellants, however, submitted that Ad-hoc Committee was constituted during the stay granted by the Appellate Division which was in force till 12.8.2002. So, it was submitted that constitution of Ad-hoc Committee was not a violation and it was done in accordance with the Regulations as the term of the earlier Committee already expired and tried to impress upon that this was done for the betterment of the School and for day -to-day functioning of the school. It was also submitted that as the term of the second Ad-hoc Committee was also going to expire a new Committee was constituted for holding election in accordance with the provisions of the Regulation, 1977. So, according to him, nothing was done in violation of the order of the Court and whatever actions taken were done with bonafide belief. It was submitted that when the Appellate Division refused to extend the stay, the learned Judge of the Appellate Division in the Chamber made an observation to file a. regular leave petition to submit an application for stay at a later stage. It was tried to justify the action of the contemner Nos. 3-5 on the ground that as the question of granting stay was pending before the Appellate Division and as the Judge-in-Chamber made the above observation, the respondent-contemner Nos.3-5 took the actions on bonafide belief. It also referred to two decision reported in 14 DLR (SC) 273 and 15 DLR (SC) 150 and has submitted that the power granted to the Court to decide the question of contempt of Court should be used very sparingly. However, apology was tendered on behalf of the respondent-contemner Nos. 3-5.

4. Upon hearing of the Rule, the High Court Division, made the Rule absolute against respondent contemner-appellants and sentenced them to pay fine of Tk.2000/- each within a period of 15 days, in default, to suffer simple imprisomnent for one month each. From the said impugned order the appellants moved this Court with this appeal under Article 103(2)(c) of the Constitution of the People's Republic of Bangladesh.

5. At the hearing of the appeal the appellants filed an application for accepting unqualified and unconditional apology admitting the guilt stating that they have violated the order dated 24.07.2002 in Writ Petition No. 1010 of 2002 of the High Court Division wherein Rule was made absolute directing that the Managing Committee of the School constituted on 12.12.2002 shall be allowed to function upto 11.12.2003, the appellants simply regret and repent and express remorse and sorrow for what they have done in respect of the order dated 27.4.2002 and simultaneously undertook not to repeat the offence again and accordingly begged for unconditional and unqualified apology to the Court and threw themselves at the mercy of the Court.

6. We have heard the learned Counsels for the parties and considered the facts and circumstances of the case together with the unqualified and unconditional apology with an undertaking not to repeat the offence again. Since the dispute arose over the continuation of the Managing Committee upon formation of the Ad-hoc Committee giving rise to certain misapprehension and misconception regarding issues we are accepting the unqualified and unconditional apology on behalf of the appellants and accordingly set aside the impugned Judgment and order of guilt of the appellants for contempt of Court.

7. Accordingly, this appeal is allowed without any order as to costs.

Child labour-present scenario

Mohammad Rubaiyat Rahman

Child labour is a pervasive problem throughout the world, specifically in the developing countries. In the third world countries, it is not only a lively subject but also a most pressing problem. Child labour is simply the most severe form of exploitations and abuses of children in the society today. The global fight against child labour remains a daunting challenge. All over the world, children are being forced to undertake work that bereaves them of education and can often damage them physically or psychologically. The characteristics of child labour include: (a) work by young children; (b) long hours of work on a regular full time basis; (c) hazardous working conditions (physically or mentally or both); (d) insufficient or no access to school; (e) abusive or invective treatment by employer; and (f) work in slave arrangements (bonded labour).

Definition of "Child Labour": Child labour has no universally accepted definition. Varying definitions of the term are used by international organizations, non-government organizations, trade unions and other interest groups. Researchers do not always specify what definition they are using, and that often leads to confusion. However, the definition of child labour is broadly based on following factors:

some normative assist of minimum age for employment;

a presumption of access to education implying that any child out of school should be counted as a potential child worker;

a notion of rights implying thereby that children deprived of their fundamental childhood rights because of the nature of their work constitute child workers.

An accurate and wide-ranging definition of child labour encompasses all the elements that keep children away from the activities that would lead them to normal and healthy growth. However, school education forms a vital aspect of a child's growth and is accepted as a normal activity for a child.

Statistics on Child Labour: In Asia 22% of the workforce are children. In Latin America, 17% of the workforce are children. However, child labour is less in developed countries. The reasons behind it are as follows:

economic development that raised family incomes and living standards; affordable and relevant education enforcement of anti-child labour laws changes in public attitudes towards children that elevated the importance of education.

In May2006, the ILO published its second Global Report on Child Labour. The report indicated that in 2004 there were 218 million children trapped in child labour, of whom 126 million were in hazardous work. The number of child labourers globally fell by 11 percent over the last four years, while that of children in hazardous work decreased by 26 percent which is significant and positive trend.

However, the least progress is being made in the Sub-Saharan Africa, the region with the highest incidence of child labour, and where the overall number of child labourers rose somewhat-there are now nearly 50 million children under the age of 15 estimated to be working in the region.

Of nearly 218 million children engaged in child labor around the world, the vast majority-69 percent, or some 150 million-are working in agriculture. Child agricultural workers frequently work for long hours in scorching heat, haul heavy loads of produce, are exposed to toxic pesticides, and suffer high rates of injury from sharp knives and other dangerous tools. Their work is grueling and harsh, violating their rights to health, education, and protection from work that is hazardous or exploitative.

According to the ILO's new report on child labor, the number of children working in agriculture is nearly ten times that of children involved in factory work such as garment manufacturing, carpet-weaving, or soccer-ball stitching.

Child Labour and Globalization: Globalization is cultural and political, as well as economic, and in recent years primarily European and North American concepts of global human rights have been promoted throughout the world as political and cultural products that should be adopted by rich and poor countries alike. As part of this movement, the rights of children have become an increasingly important subject of international concern and action, and the U.N. Convention on the Rights of the Child (CRC), adopted in 1989 and now ratified by all countries except Somalia and the United States, has become the most widely subscribed human rights treaty ever. This convention has effectively focused and globalized international discussion of children's rights and established a set of principles and responsibilities to which nearly all countries are now officially committed. UNICEF and various nongovernmental child defense organizations are dedicated to securing the CRC's effective implementation. Because of its unparalleled official reach, the CRC can be seen as a globalized response for protecting children in a world becoming increasingly smaller and more interdependent.

The Nature and Role of International Conventions : International political action against child labor is closely linked to international conventions, a form of treaty that carries the force of law in signing nations, sponsored through the U.N. system and subscribed to by countries through a formal process of ratification. These conventions establish international guidelines and standards that ratifying countries commit themselves to follow in their own national policies. Three international conventions comprise the main global reference points for national and international policy regarding child labor: the ILO Minimum Age Convention (No. 138) of 1973, the already mentioned 1989 U.N. Convention on the Rights of the Child, and the new ILO Worst Forms of Child Labour Convention (No. 182) of 1999.2 Each of the two ILO conventions is accompanied by a set of recommendations regarding how to implement it. Together, the three conventions reflect competing and progressively changing notions of childhood and the role of work in it.

Child Labour Situation in Bangladesh: In our country child labour has been on the rise due to extreme poverty, low level of literacy, absence of educational facilities, gender discrimination, massive migration from rural areas and river erosion. The worst forms of child labour include working in wielding workshops, helper of tempo or human haulers, bidi factory, bedding store, tannery industries, battery factory and others. According to the second National Child Labour Survey 2003, there are 42.39 million children aged 5-17 years, including 7.42 million economically active. Of them, about 3.18 million were engaged in child labours representing 7.5 per cent of the entire child population of this range. About five million children out of 42.39 million aged 5-17 years were working and not attending school. About 52.7 per cent were engaged in agriculture and forestry,14.6 per cent in manufacturing and 14.2 per cent in trading, according to the survey. there are about 1 crore children under the age of 18 who are involved with different sorts of risky and harmful jobs, said a survey conducted by Save the Children, UK. According to the survey, 24 per cent of them are engaged in hazardous child labour to earn their livelihood while about 99 per cent of child labours deprived of having any basic facilities at their workplaces. Moreover, 80 per cent of child labours have to work for more time than the working hours, the survey says, adding that even 38 per cent of them works more than 10 hours every day.

Concluding Remarks: The existence of child workers and child labour is an indicator of poverty and the depressed economic status of a section of the population that supplies child labourer. If the wider definition of child labour is accepted, which is that all the children who do not attend school should be counted as child labour, the incidence of child labour is enormous. Intuitively, to create a theme for child labour is an easy task, but the tougher part is finding ladders for child labourers to climb out of the deep pits of violence and discrimination they live in. Elimination of child labour is a long process and it can't be done without the help of everyone. The best way to stop child abuse is to make people aware about child rights.

)Mohammad Rubaiyat Rahman, Student, LL.B., University of Dhaka, Research Assistant, CCB Foundation.)