Appellate Division Cases
Haider Ali and others………………….. Appellants.
The State ………………………………Respondents.
K. M. Hasan, C. J
Mohammad Fazlul Karim. J
Hamidul Haque. J
JUDGEMENT DATE: 4th November 2003
The Penal Code. Sections 141, 302/149.
Abdus Samad @ A. K.M. Abdus Samad-vs-The
State in 44 DLR (AD) 233. Bangladesh-vs-
AbedAli in 36 DLR (AD), 234.
That once the court finds that an offence, such as culpable homicide has been committed by any member of an unlawful assembly in prosecution of the principal offender has been convicted or not, all other members may be constructively liable and convicted for the offence provided they had the intention and knowledge as required under Section 149. P. C ……………………..(8)
Criminal Appeal Nos. 16 of 1998. (From the judgment and order dated 4.8 1997
passed by the High court Division in Criminal Appeal No. 1565 of 1995.)
A.K.M. Faiz, Advocate, Instructed by Md. Nawab Ali, Advocate-on-Record………. For the Appellants
A.K.M. shahidul Huq, Advocate-on-Record………………… For the Respondent
1. Md. Hamidul Haque, J :- This Criminal appeal by leave has been filed against the judgment and order passed by the High Court Division in Criminal Appeal No. 1565 of 1995 affirming the judgment and order of the trial court in Sessions Case No. 67 of 1992 convicting the appellants under Sections 302/149 of the Penal Code and sentencing each of them to suffer imprisonment for life and topay a fine of Tk. 5,000/- (five thousand) in default to suffer furhter imprisonment for two years.
2. Leave was granted to consider the question whether the High Court Division acted illegally in convicting all the accused under Sections 302/149 of the Penal code when the
prosecution failed to prove that victim Fatick Mia was killed in prosecution of the common object of all the members of the unlawful assembly.
3. The prosecution case is that on 10.2.1989 at about 9 a.m. the informant sona Mia was
passing by the ‘ail’ of a land and at that time accused Dilbahar asked him as to why he
uprooted the fencing of his land. The informant denied and there was altercation between them. At that time accused Khosh Bahar, Nannu Mia, Mosharraf, Nijamuddin, Jonab Ali, Haider, Faruk, A. Gafur, Afzal Mia and Amru Mia came to the place of occurrence armed with dao. Fikol, kocha sola, lathi and other weapon. On hearing the hue and cry, fatik Mia, brother of the informant, Bhabi named Angura Bibi, sister of the informant also named Angura Bibi his father Abdul Jalil and Lai Bibi came to the place of occurrence. Dilbahar, after taking a fikol from the hand of accused khosh Bahar, gave a blow in the left abdomen of Fatik Mia who fell down on the earth and accused Afzal
also gave a fikol blow on the palm of the left hand of Fatik Mia, accused Amru Mia also gave another fikol blow in the abdomen and on the right thigh of Fatik, accused Khosh Bahar also assaulted Fatik Mia by giving Lathi blows, when the relatives of the informant tried to rescue Fatik Mia, accused Nijamuddin caused injury on the left eye of father of the informant, Jonab Ali also gave a lathi blow on the right hand of the father of the informant, accused Hyder gave a fikol blow on the head of Angura Bibi, accused Faruk gave a dao blow on the head of his Bhabi Angura Bibi and accused Faruk also gave dao blow on the left hand of Lai Bibi Fatik Mia died on the spot and thereafter F.I.R. was lodged and ultimately charge sheet was submitted against the appellants . Charge was framed against them under Sections 302/149 of the Penal code and trial, court on
consideration of the evidence on record found them guilty of the charge and sentenced each of them to imprisonment for life as mentioned above. On appeal, the High Court Division confirmed the judgment and order of conviction and sentence passed by the trial Court. Now, the only question which has been agitated in this appeal is whiter conviction
under Sections 302/149 of the Penal Code of all the convicts was proper in the instant case.
4. Mr A. K. M. Faiz, the learned counsel who appeared on behalf of the appellants did
not cause injury to the victim Fatick Mia and only four of them actively participated. So he has argued that the High Court Division and also the trial Court committed an error in finding all the seven accused guilty of the charge under Sections 302/149 of the Penal code.
5. He has further argued that there is no evidence that the accused persons had a common
object of kiling Fatick Mia. So, according to him, the conviction under sections 302/149 of the Penal Code to all the seven accused was not proper and legal. Section 149 of the Penal Code does not itself create any offence. The Section is as follows :”149. If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly. or such as the members of that assembly knew to be likely to be committed in prosecution of that object ,every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence.”
6. To decide whether in a particular case provisions of section 149 is attracted, it is to be
proved, that the accused was a member of an unlawful assembly. An ‘unlawful assembly’ is an assembly of five or more person as explained in Section 141 of the Penal Code. The same Section is also re-produced below:”141 an assembly of five or more persons is designated an ‘unlawful assembly’ if the common object of the persons composing that assembly is First. -To overawe by Criminal force, or show of Criminal force, the
[Government or Legislature]}, or any public servant in the exercise of the lawful power of such public servant; or Second .-To resist the execution of any law, or of any legal process; or Third . -To commit any mischief, criminal trespass, or other offence; or
Fourth.-By means of Criminal force, or show of criminal force, to any person to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right; or Fifth.- By means of Criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do. Explanation -An assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly.”
7. In the instant case we find that the accused persons assembled to commit an
offence armed with fikol, lathi and other weapon. From the evidence of the eye witnesses
it is clear that all the seven appellants rushed to the place of occurrence armed with fikol,
lathi etc. The very fact that they rushed to the place of occurrence armed with weapon shows that they had a common object of committing an offence and they knew that any consequence might follow.
8. It is now a settled principle of law that actual participation is not necessary to attract
the offence under Section 149 of the Penal Code. In this connection, we may refer to the
case of Abdus Samad @ A. K.M. Abdus Samad and others-vs-The State reported in 44 DLR (AD) 233. In this case, it is observed that Section 149 postulates an unlawful assembly and commission of an offence by any of its members in prosecution of the common object of the unlawful assembly. In this cases we find that the principal offender was acquitted by the court and on that ground it was argued that the other accused cannot be convicted. This court has observed that once the court finds that an offence, such as culpable homicide has been committed by any member of an unlawful assembly in prosecution of the principal offender has been convicted or not, all other members
may be constructively liable and convicted for the offence provided they had the intention and knowledge as required under Section 149. P. C.
9. In the Case of Bangladesh-vs-Abed Ali and others as reported in 36 DLR (AD), 234,
this court has also held that if an offence is committed by any member of an unlawful assembly which used force or violence in prosecution of the common object of that unlawful assembly, each and every member is guilty even one of them did not do any overt act.
10. It is true that the members of the unlawful assembly in the instant case might not have
the common object of murdering Fatick Mia but it is clear from the evidence that they had the common object of committing an offence of any nature including murder to any one of the other party. This common object is clear from the fact that all of the appellants rushed to the place of occurrence armed with different weapon including deadly weapon. So we are of the view that thought there is evidence that only four of the appellants actually caused injury to the victim, the other three being members of that unlawful assembly are equally liable, Moreover, there is evidence to show that these three caused injury to those who came to the place of occurrence to rescue the victim. In view of our above discussion we fined no substance in this appeal and accordingly it is dismissed.
Source: I ADC (2004), 361