Alamin @ Alam Vs. The State (Md. Abu Zafor Siddique, J.)

HIGH COURT DIVISION

(Criminal Miscellaneous Jurisdiction)

Mr.Md. Rezaul Haque, J.

And

Mr.Md. Abu Zafor Siddique, J.

Judgment

11.12.2011

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 Alamin alias Alam

…Accused-Petitioner.

Vs.

The State

…Opposite-party.

Code of Criminal Procedure (v of 1898)

Sections 342 and 561A

Arms Act (XI of 1878)

Section 19A

The object of the provisions of section 342 of the Code of Criminal Procedure is to put the incriminating evidence against the accused petitioners for the purpose of enabling them to explain the circumstances which having not been done so, the petitioner has been prejudiced as mandatory provision of law was not followed. Most of the prosecution witnesses are police personal, who corroborated one another but the public witnesses made contradictory statement which shows that the learned judge has not applied his judicial mind which is an abuse of the process of law and hence the impugned judgment and sentence is quashed.      …. (25 to 27).

Shahid Mia and another -Vs.- State and another, reported in 60 DLR (HCD),-371, ref.

Mr.Md.Saiful Alam, with

Mr.Md.Mozaffar Hossain, Advocate

–For the Petitioner.

Mr.Zaharul Haque,D.A.G.

–For the state

Judgment

Md. Abu Zafor Siddique,J:

On an application under section 561A of the Code of Criminal Procedure a rule was issued calling upon the opposite party to show cause as to why the judgment and order dated 17.03.2008 passed by the learned Additional Sessions Judge 2nd Court and Special Tribunal No.6, Kushtia, convicting the accused petitioner under section 19A of the Arms Act, 1878 and sentencing him to suffer rigorous imprisonment for 10(ten) years in Special Tribunal Case No.104 of 2006, arising out of G.R. Case No.177 of 2006 corresponding to Doulatpur Police Station Case No.11, dated 11.08.2006 shall not be quashed.

  1. 2.          The prosecution case at the trial, in short, is that one Md. Abdul Hai Sarker, Inspector of Police and Officer-in-charge of Daulatpur Police Station, Kushtia, lodge first information with Daulatpur Upazilla, Kushtia, alleging, inter alia, that on 10.08.2006 while the informant along with other officers and forces went out from Daulatpur Police Station, at that time he got secret information that accused Alamin @ Alam was staying in the house of his father-in-law namely Jamil Uddin in the village Tekala with arms. The informant party went to the house of Jamil Uddin with chowkider Sariful and dafader Nazrul Islam and the informant party caught red-handed the accused Alamin alis Alam with the arms from the dwelling hut of the said Jamil Uddin. Thereafter the informant prepared the seizure list in presence of witnesses and obtained the signature on the seizure list, hence the FIR.
  2. 3.          The case was investigated by the investigating officer who visited the place of occurrence and prepared a sketch map of the place of occurrence along with a index. He examined the witnesses and recorded their statements under section 161 of the Code of Criminal Procedure. After investigation the investigating officer found prima-facie case against the sole accused and submitted a charge sheet being No.141 dated 17.08.2006 under section 19A and 19(f) of the Arms Act, 1878, and the case record was transmitted to the Additional Session Judge, 2nd court and Special Tribunal-6, Kushtia (in-charge), for trial where it was registered as Special Tribunal Case No. 104 of 2006. Charge was framed against the sole accused and it was read over to him. The accused petitioner pleaded not guilty and claimed to be tried in accordance with law.
  3. 4.          During trial the prosecution examined as many as 12 witnesses out of 16 cited witnesses in the charge sheet, but the defence examined none. The defence case as it appears from the trend of cross-examination of the prosecution witnesses is that the case was false and no arms were recovered from the possession of the petitioner. The petitioner has been entangled with this case out of influence of enemies of the petitioner.
  4. 5.          Considering the facts, circumstances and deposition of prosecution witnesses and hearing the parties the trial court convicted and sentenced the accused in the manner as already stated above.
  5. 6.          Since the convict could not prefer appeal in time he filed an application under section 561A of the Code of Criminal Procedure and obtained the instant rule.
  6. 7.          Mr. Md. Saiful Alam, the learned Advocate appearing on behalf of the convict-petitioner, has submitted that the accused petitioner is innocent and he has been implicated in the instant case falsely. He has next submitted that the instant case is absolutely a case of no legal evidence and the prosecution miserably failed to prove the guilt of the convict-petitioner, as such, he should be acquitted. He has further submitted that the convict-petitioner was not also properly examined under section 342 of the Code of Criminal Procedure, and this being the mandatory provision of law the accused appellant has been seriously prejudiced and as such the convict-petitioner should be acquitted of the charge leveled against him and the impugned judgment and order of conviction is liable to be quashed. In support of his contention the learned Advocate of the petitioner has referred the case of Shahid Mia and another -Vs.- State and another, reported in 60 DLR (HCD),-371.
  7. 8.          In reply, Mr. Md. Zahurul Haque, the learned Deputy Attorney General appearing on behalf of the state, has supported the impugned judgment passed by the learned Judge of the Tribunal and has submitted the police personnel have categorically stated that the arms and ammunition were recovered from the absolute control and possession of the petitioner. He has further submitted the evidence of the police personnel are unimpeachable, so, there is no harm to convict a person relying upon the evidence of the police personnel, and as such there is no reason to quash the judgment and order of conviction.
  8. 9.          We have heard the submissions of both sides, perused the application under section 561A of the Code of Criminal Procedure, impugned judgment and order of conviction and sentence, First Information Report, charge-sheet, evidence of prosecution witnesses, examination of the convict petitioner under section 342 of the Code of Criminal Procedure and other materials and relevant documents available in the record.
  9. 10.      From the records it appears that the prosecution examined as many as 12 witnesses amongst them P.W.-1. Md. Foysal Alam A.S.I. of Police stated in his deposition that on 11.08.2006 he along with other officers and staffs went to the house of Jamil Uddin the father-in-law of the petitioner and caught the petitioner red-handed and recovered arms and ammunitions in presence of the witnesses. Thereafter, a seizure list was prepared in the place of occurrence. In his cross-examination he denied all the suggestions given by the defence.
  10. 11.      P.W.-2, Md. Nazrul Islam is a seizure list witness, he stated in his deposition that- the convict-petitioner Alamin was caught red-handed with a pistol and magzine. Police prepared a seizure list and obtained his signature on the seizure list. He proved his signature as Exbt.-1/2.
  11. 12.      P.W.-3, Naharul Islam is the local witness, he stated in his deposition that police showed him 1(one) round of bullet. In cross-examination he stated that he knew nothing about the recovery of alleged arms.
  12. 13.      P.W.-4, Md. Idriss Ali was tendered by the prosecution and the defence declined to cross-examination him.
  13. 14.      P.W.-5, Shahadat Hossain is the local witness. He deposed that police showed him an arms. He knew nothing more than that.
  14. 15.      P.W.-6, Zahurul Alam is a member of raiding party and cordoned of the place of occurrence. They caught red handed the accused with a pistol and 4 round bullets. In his cross-examination he denied all the suggestions given by the defence.
  15. 16.      P.W.-7, Sariful Islam is a local chowkider stated in his deposition that police caught red-handed the accused with arms and ammunition and prepared seizure list and took his signature. He proved his signature on the seizure list as Exbt,-1/3. In his cross-examination he denied all the suggestions given by the defence.
  16. 17.      P.W.-8, Md. Kamal is a member of raiding party. He was tendered by the prosecution and the defence declined to cross-examination him.
  17. 18.      P.W.-9, Abdus Salam is a member of raiding party. He was supported the prosecution case. In his cross-examination he dined all the suggestions given by the defence.
  18. 19.      P.W.-10, Delowar Hossain is another member of raiding party. He was tendered by the prosecution and the defence declined to cross-examination him.
  19. 20.      P.W.11, Abdul Hai Sarder Inspector of Police and Officer-in-charge of the Daulatpur Police Station, he is informant of the case. He supported the FIR story. He identified the FIR and the arms in the court. He Exbt. seizure list as Exbt.-1, and his signature Exbt.-1(4), FIR Exbt. 2 and signature Exbt.2/1, 2/2. One pistol material Exbt-I, Magzine material Exbt. II and Bullate material Exbt.III. In his cross-examination he denied all the suggestions given by the defence.
  20. 21.      P.W.-12, Police Inspector Abdul Karim the investigating officer of the Case. He visited the place of occurrence prepared sketch map with index, examined the witnesses and recoded the statement under section 161 of the Code of Criminal Procedure; and having prima face case he submitted charge sheet against the accused, under section 19A and (f) of the Arms Act 1878.
  21. 22.      These are all evidences adduced by the prosecution.
  22. 23.      In this case having gone through the examination of the petitioner under section 342 of the Code of Criminal Procedure on 04.01.2007 by the trial court.
  23. 24.      In the statement of section 342 of the Code of Criminal Procedure it is stated-

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  1. 25.      From the above statement it appears that while examining the accused-petitioner under section 342 of the Code of Criminal Procedure the tribunal did not put the incriminating evidence against the accused person for enabling him to explain any circumstance, which has prejudiced him. Section 342 of the Code of Criminal Procedure is based on the principle involved in the maxim audi alteram partem- that is no one should be condemned unheard. It is the utmost duty of the court to give an opportunity to an accused to defend himself. The real object of section 342 of the Code of Criminal Procedure is inviting the attention of the accused person to the points in the evidence which are against him for which he may be convicted, so, he is given a chance to offer his explanation as to those. But from the plain reading of examining the accused under section 342 of the Code of Criminal Procedure that this petitioner was not given proper opportunity to offer his explanation as to the guilt for which the accused petitioner has been prejudiced.
  2. 26.      We have carefully considered the provision of law it is clear that the object of this section is to ensure that the accused have examined as required under section 342 of the Code of Criminal Procedure, this is mandatory provision of law. But the trial court absolutely failed to do it. It has already observed that while examining the convict-petitioner under section 342 of the Code of Criminal Procedure the trial court failed to put the incriminating evidence against the convict petitioner for the purpose of enabling them to explain any circumstance and thereby the petitioner has been prejudiced. Section 342 of the Code of Criminal Procedure provides that the accused should be examined for the purpose of enabling him to explain any circumstance appearing in the evidence against him.
  3. 27.      At the same time on careful scrutiny of the evidence of the prosecution witnesses and other materials on record it appears that the prosecution witnesses are all most police personnel and corroborated each other but the public witnesses have stated contradictory statement. So the learned Judge has not applied his judicial mind in passing the order of conviction and sentence, which is an abuse of the process of the law, which deserves our interference.
  4. 28.      Accordingly, we find merit in this rule.
  5. 29.      In the result, the Rule is made absolute the impugned judgment and order of conviction and sentence dated 17.03.2008 passed by the learned Additional Sessions Judge, 2nd Court and Special Tribunal No.6, Kushtia, in Special Tribunal Case No.104 of 2006, arising out of G.R.Case No.177 of 2006 corresponding to Doulatpur Police Station Case No.11, dated 11.08.2006 is here by quashed.
  6. 30.      Let the petitioner be set at liberty at once, if not wanted in connection with any other case.

        Send down the Lower Court Records and communicate the order at once.

Ed.

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