Mr. Kazi M. Ejarul Haque, D.A.G with
Mr. Md Shafquat Hussain, A.A.G.
….For the respondents.
Md. Nazrul Islam Talukder, J:
This Rule was issued on an application under section 561 A of the Code of Criminal Procedure calling upon the opposite party to show cause as to why the impugned judgment and order dated 6.5.2009 passed by the learned Metropolitan Special Tribunal No. 7, Dhaka in Metropolitan Special Tribunal Case No. 1468 of 2004 arising out of Kafrul police station Case No. 22 dated 9.9.2004 corresponding to G.R. No. 520 of 2004 convicting the petitioner under section 19-A and 19 (f) of the Arms Act, 1878 and sentencing him thereunder to suffer rigorous imprisonment for 10 years and 7 years respectively with a direction to run both the sentence concurrently should not be quashed and/ or pass such other or further order or orders as to this Court may seem fit and proper.
- 2. The prosecution case, in short, is that on 9.9.2004 the informant along with other D.B. personnel went on petrol duty at Bhashantek area on the basis of G.D. No. 622. While on duty, the informant and his companions got a secret informantion that an absconding accused of Kafrul police station Case No. 11(5) 2004 under sections 304/34 of the Penal Code was staying at his present address at 5/4 West Bhashantek. On getting aforesaid information, the informant and others started for the place of occurrence and reached there about 22.10 hours. Reaching the place of occurrence, the informant and others arrested the petitioner and carried out a search on his body in presence of local witnesses, namely, Abdul Karim, Md. Mazharul Sikder and Md. Israfil and recovered a revolver along with one round bullet from the right side of the waist of the petitioner. After that, the D.B. Police prepared a seizure list and took signature of the witnesses on it. On interrogation, the petitioner disclosed his name as Hasanul Islam Hanif alias Galcuta Hanif. However, the petitioner could not show any valid paper for keeping the arms and bullet in his possession. Hence, the F.I.R was lodged against the petitioner under sections 19(A) and 19(f) of the Arms Act.
- 3. The police produced the petitioner before the Court of learned Chief Metropolitan Magistrate who sent the petitioner to the custody on 10.9.2004. The police took up the case for investigation and recorded the statements of the witnesses under section 161 of the Code of Criminal Procedure. Having found prima-facie case, the police submitted charge sheet against the petitioner under sections 19(A) and 19(f) of the Arms Act on 23.9.2004. After submission of the charge sheet, the case was transferred to the learned Judge, Metropolitan Special Tribunal No.7, Dhaka who framed charge against the petitioner under sections 19(A) and 19(f) of the Arms Act. The charge was read over to the petitioner who pleaded not guilty and prayed to face trial in accordance with law.
- 4. The prosecution examined as many as 11 witnesses and on the other hand, the defence examined none. The case of the defence as it appears from the trend of cross-examination of the witnesses is that the alleged arms and bullets were not recovered from the exclusive control and possession of the petitioner. The petitioner was falsely implicated in this case at the instance of a witness, namely, Abdul Karim with whom he had previous enmity. The alleged arms and bullet were planted by the witness, namely, Abdul Karim in the house of petitioner though he had no knowledge about the same.
- 5. The learned Judge of the Tribunal found the petitioner guilty under sections 19(A) and 19(f) of the Arms Act and sentenced him thereunder to suffer rigorous imprisonment for 10 years and 7 years respectively with a direction to run both the sentences concurrently.
- 6. Though the impugned judgment and order was appealable, the petitioner could not prefer criminal appeal before this Court for lack of legal advice as no Advocate was engaged on behalf of the petitioner to conduct the trial of the case. However, after expiry of the stipulated period of preferring appeal, the petitioner has come before this Court under section 561A of the Code of Criminal Procedure and obtained this Rule.
- 7. Mr. A.B.M. Waliur Rahman Khan, learned Advocate appearing for the petitioner, submits that the impugned conviction and sentence awarded by the Tribunal is not based no legal evidence and that the prosecution could not prove the case by adducing reliable and satisfactory evidence. He next submits that no seizure list witnesses in whose presence the arms and bullet were recovered were examined to prove the alleged recovery of arms and bullet from the exclusive control and possession of the petitioner and that the evidence given by police personnel was not supported and corroborated by independent witnesses. In support of his contention, he relied upon the decisions in the cases of Zillur Rahman alias Zillur Vs. The State, 6 BLC(2001)(HCD) 254, Aslam Jahangir Vs. The State, 5 BLC(2000) (HCD) 514 and Habibur Rahman alias Jane Alam Vs. The State, 47 DLR (1995)HCD) 323. He lastly submits that since the vital witnesses like the seizure list witnesses and other local witnesses were not produced and examined before the Court, non-examination of those vital witnesses renders the whole prosecution case doubtful and as such the impugned conviction and sentence should be quashed.
- 8. On the other hand, Mr. Kazi M. Ejarul Haque, learned Deputy Attorney General along with Mr. Md. Shafquat Hussain, learned Assistant Attorney General appearing for the State, submits that there is sufficient evidence on the record of the case to connect the petitioner with the offence and that prosecution examined as many as 7 witnesses who proved recovery of arms and bullet from the exclusive control and possession of the petitioner. Referring to section 134 of the Evidence Act, he next submits that no particular number of witnesses shall, in any case, be required for the proof of any fact. He lastly submits that that the evidence of police personnel should not be discarded simply because they belong to police force and that their evidence is also legal evidence within the meaning of section 3 of the Evidence Act. In support of his contention, he relied upon the decision in the case of Mohiuddin Vs. The State, 61 DLR (2009) (HCD) 35. In view of above facts and circumstances the Rule may be discharged.
- 9. We have gone through the application under section 561A of the Code of Criminal Procedure and the materials annexed thereto. We have also considered the submissions made by the learned Advocates for both the sides. It appears from the prosecution story that the D.B. police personnel arrested the petitioner form the place of occurrence and recovered a revolver with one round bullet from the waist of the petitioner. The police prepared a seizure list and took signature of 3 seizure list witnesses, namely, Abdul Karim, Md. Mozharul Sikder and Md. Israfil. The prosec-ution examined as many as 7 witnesses to prove its case but none of the seizure list witnesses was produced and examined to prove the recovery of arms and bullet from the exclusive control and possession of the petitioner. Admittedly all the 7 prosecution witnesses are police personnel who gave evidence in support of the prosecution case to prove the recovery of arms and bullet from the exclusive control and possession of the petitioner but that evidence was not supported and corroborated either by seizure list witnesses or by public witnesses in whose presence the arms and bullet were recovered . It is true that in view of section 134 of the Evidence Act, conviction can be based on the testimony of a solitary witness and it is not necessary to seek corroboration always from independent sources but in the instant case, neither the seizure list witnesses nor the public witnesses were produced and examined before the Tribunal to prove the recovery of the Arms and bullet from the control and possession of the petitioner. Besides, the Prosecution also remained silent on non-examination of aforesaid important and vital witnesses before the Tribunal. In the case of Abdul Haider Sikder and another Vs. The State, 43 DLR (AD)(1991) 95, it has been held that ‘conviction of the appellants can safely be based on the solitary evidence of eye witness, P.W.1’. It appears from paragraph No.6 of that judgment that three local witnesses were examined by the prosecution but none of them supported and corroborated the prosecution case. As for the present case, it appears that neither the seizure list witnesses nor the local witnesses were examined by the prosecution. In the context of above, the fact of above reported case, relating to corroboration appears to be distinguishable from the present case. Under the circumstances there is no hesitation in holding that the prosecution has totally failed to prove the recovery of the arms and bullet from the exclusive control and possession from the petitioner. Adverse presumption under section 114 (g) of the Evidence Act is, essentially, a question of fact which is for the Court to arrive at a decision. It appears to us that non-examination of important witnesses creates presumption under section 114(g) of the Evidence Act and raises doubt about the prosecution case and benefit of doubt would always go in favour of the accused petitioner. In the case of Aslam Jahangir Vs. The State, 5BLC (2000)(HCD) 514, it has been spelt out that ‘none of public witnesses either the seizure list witnesses or the men whose name find place in the F.I.R as witnesses supported the prosecution case regarding recovery of incriminating articles from the control and possession of the accused. In the result, the order of conviction and sentence is set aside’. The aforesaid legal view has been reflected in the cases of Zillur Rahman alias Zillur Vs. The State, 6 BLC (2000) (HCD) 254 and Habibur Rahman alias Jane Alam Vs. The State, 47 DLR (1995) (HCD) 323.
- 10. Considering the facts and the circumst-ances of the case and the evidence on record, we find that the prosecution has miserably failed to prove recovery of arms and bullet from the exclusive control and possession by adducing reliable and independent evidence before the Tribunal.
- 11. Having considered all aspects of the case, we find merit in this Rule.
- 12. Accordingly, the Rule is made absolute.
- 13. The impugned judgment and order dated 6.5.2009 passed by the Metropolitan Special Tribunal No.7, Dhaka in Metro Special Tribunal Case no. 1468 of 2004 is hereby quashed.
- 14. Let the convict petitioner, Hasanul Islam Hanif alias Galcuta Hanif alias Hanif, son of Haider Ali of Village- Rajapara, Police Station- Naria, District- Shariatpur be set at liberty at once if he is not wanted in connection with any other case.
Let the lower Court’s record with a copy of this judgment and order be sent down to the concerned Court at once.