Khandaker Abdul Hannan Vs. Mosammat Sayara Begum

Appellate Division Cases

(CRIMINAL)

PARTIES

Khandaker Abdul Hannan……………………………. ……Appellant

=vs=

Mosammat Sayara Begum and another………………… Respondent

JUSTICE

Md. Ruhul Amin J

K.M. Hasan J

JUDGEMENT DATE: 22th April. 2003

section 6(5) of the Muslim family Laws Ordinance 1961, Farida Begum without obtaining permission of the Arbitration Council as per provisions in Section 6 of the Ordinance.

The learned Counsel having realized that the offence under Section 6(5) of the Ordinance 1961 is not compoundable and as such even though the appellant and the respondent No. 1 have arrived at compromise, but for that the appellant cannot be acquitted upon allowing the appeal. In that situation learned Counsel prayed for dismissal of the appeal upon reduction of the sentence to the extent of the period already served out. The submission so made in the background of the development that has taken place with the lapse of time in our view merits consideration.

Criminal Appeal No. 16 of 1997. (From the Judgment and Order dated July 11, 1996 passed by the High Court Division in Criminal Revision No. 801, of 1991 (Dhaka)/Criminal Revision No. 34 of 1987 (comilla)

Kazi Shahcidat Hossain, Senior Advocate.instructed by Mr. Md. Nawab AH. Advocate-on-record. For the Appellant

Mvi. Md. Wahidullah, Advocate- No.2 o n record. For Respondent Respondent No.l:Not represented

JUDGMAENT

1.MD RUHUL AMIN, J :- This appeal by leave is against the judgment and order dated July 11, 1996 of a Single Bench of the High Court Division in Criminal Revision No. 801 of 1991 (Dhaka)/ Criminal Revision No. 34 of 1987 (comilla) discharging the Rule obtained against the judgment and order dated March 30, 1987 of the Cout of Sessions Judge, Brahmanbaria, in Criminal Appeal No, 48 of 1986 dismissing the appeal upon modification of sentence of rigorous imprisonment to simple imprisonment. The appeal was filed against the judgment and order dated October 13, 1986 passed by the Court of Magistrate 1st Class, upazilla Nabinager, Brahmanbaria in C. R. Case No. 269 of 1986 convicting the appellant under section 6(5) of the Muslim family Laws Ordinance, 1961 ( the ordinance) and sentencing him to suffer one year rigorous imprisonment. The respondent No . 1 filed petition of complaint on August 12, 1986 before the Court of Magiatrate, Nabinagar upailla. Brahmanbaria. stating that the appellant drove away her from confjugal home and married one Farida Begum without obtaining permission of the Arbitration Council as per provisions in Section 6 of the Ordinance.

2. The appellant denied the allegations made by the complainant, respondent No. 1. In due course trial was held in the Court of Magistrate. 1st Class, upazilla Nabinagar. brahmanbaria and the said Court convicted and sentenced the appellant as stated above. Thereupon he went on appeal and the appellate Court upon modifying the sentence to simple imprisonment from rigorous imprisonment dismissed the appeal. The appellant moved the High Court Division in revisional jurisdiction, but did have the desired result.

3. Leave was granted to consider the submissions that although no direct evidence was adduced in support of the allegation of 2nd marriage against the appellant and the evidence of the p. ws. 3.4 and 5 being not the evidence of disinterested witnesses, the conviction of the appellant caused miscarriage of justice, that during the Pendency of

the revisional application out side the Court compromise was reached between the appellant and the respondent No. 1 and in support there of respondent No. sworn an affidavit and the same was filed in the court through respondent No. 1’s learned advocate, but unfortumately at the time of hearing of the revisional application the learned advocate inadvertently failed to bring to the notice of the Court the said fact of compromise and thus the appellant has been seriously prejudiced.

4. The learned Counsel for the appellant submits that since the appellant and the respondent No. 1 has arrived at compromise out side the Court and to that effect Respondent No. 1 affirmed an affidavit and the same was filed in the Court, the appeal may be allowed and the appellant may be set at liberty. The learned Counsel having realized that the offence under Section 6(5) of the Ordinance is not compoundable and as such even though the appellant and the respondent No. 1 have arrived at compromise, but for that the appellant cannot be acquitted upon allow ing the appeal. In that situation learned Counsel prayed for dismissal of the appeal upon reduction of the sentence to the extent of the period already served out. The submission so made in the background of the development that has taken place with the lapse of time in our view merits consideration.

5. Accordingly the appeal is dismissed upon reduction of the sentence to the extent of period of imprisonment already served out. The appellant is discharged from his bail bond.

Ed.

Source : I ADC (2004),32

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