Appellate Division Cases
(Criminal)
PARTIES
Md. Iftekhar Hasan @ Al Mamun ……………….. Petitioner
(In Jail Petition NO. 04 of 2006)
Shaiakh Abdur Rahman Ibne Abdullah @ Easan @ Moulana Abdur Rahman…………..Petitioner
(In Jail Petition No.07 of 2006)
Md. Siddiqul Islam Pramanik @ Azisul Islam @ Omar Ali @ Litu Miah @ Bangla
Bhai ………………….Petitioner (In Jail Petition No. 08 of 2006)
Md. Ataur Rahman @ Tarek Sani Ibne Abdullah……………. Petitioner
(In Jail Petition No. 09 of 2006)
Md. Abdul Awal @ Arafat @ Ashik ……………..Petitioner
(In Jail Petition No. 10 of 2006)
Md. Faruk Hossain Khan @ Faruk @ Khaled Saifullah @ Amjad………. Petitioner
(In Criminal P. No. 444 of 2006 & Jail Petition No. 06 of 2006)
-VS-
The State …. Respondent (In all the cases)
JUSTICE
Syed J.R. Mudassir Husain C J
Md. Ruhul Amin J
M.M. Ruhul Amin J
Md. Tafazzul Islam J
Amirul Kabir Chowdhury J
Md. Joynul Abedin J
JUDGEMENT DATE: 28th November 2006
The Constitution, Article 31 The Penal Code, Sections 120B/ 324/326/302/327/109/34
The Code of Criminal Procedure Sections 374, 326, 342. 164
Where law of the land provides for sentence of death in respect of certain offence
and one who has been sentenced to death quite in accordance to law for the commission of the offence providing sentence of death, his contention referring to provision of Article 31 of the Constitution so far provision thereof relates to ‘right to life’ is not well founded in law ………………….(6)
Since the convicts have disowned the jurisdiction of this Court thereby remained satisfied with the judgment under appeal displaying certain purely religious sentiments which a Court of law established by law has nothing to do and on my perusal of the impugned judgment no illegality is apparent therein to be interfered with, I am of the view that the provision of Article 31 of the Constitution has no manner of application in the instant case……………….. (9)
Provisions of Article 31 of the Constitution as mentioned by Md. Joynul Abedin, J. are not applicable in the present case as the convicts were tried by a competent court as per provisions of law of the land after complying with all necessary legal formalities and as such the jurisdiction question as raised by the convicts are rather irrelevant …………………………..(12)
In view of the fundamental right guaranteed under Article 31 of the Constitution
and the condemned prisoners having taken the ground that courts below did not have jurisdiction to try the condemned prisoners, a substantial question of law has been raised warranting this Court to look into the legality and propriety of their conviction and sentence. I differ with the above view expressed by my brother Md. Joynul Abedin, J. as the condemned convicts were tried by a competent Court in accordance with law of the land which provides for sentence of death in respect of offence under which the condemned prisoners were tried and so they cannot take shelter of the provisions of Article 31 of the Constitution…………………(13)
The Death Reference and the aforesaid jail appeal being heard together the High
Court Division by the impugned judgment and order accepted the Death Reference
and dismissed the jail appeal………………………(16)
In view of the statements made by the petitioners in reply to the charge, in their statements under Section 342 of the Code of Criminal Procedure and confessional statement of condemned petitioner Md. Iftekhar Hasan @ Al-Mamun (the petitioner in Jail Petition No. 06 of 2006) admitting the guilt, disowning the existing law of the land and also even denying the jurisdiction of the court of the country, the plea raised on behalf of the petitioners before this court for doing complete justice does not arise………………………..(64)
The Article 103 of the Constitution is invoked of and point is found in the impugned judgment involving substantial question of law…………….(65)
Plea of getting complete justice from this court does not arise and referring to the
materials on record the learned Additional Attorney General submits that the plea of getting complete justice is not warranted in a case like this in which there are clear admissions of the guilt by the petitioners in their replies to the charges, statements under Section 342 of the Code of Criminal Procedure and in the case of petitioner Mamun in Jail Petition No. 04 of 2006 in his aforesaid confessional statement and further, failure even to cross-examine the prosecution witnesses proving the charge to the hilt…………………… (66)
deposed to proved the aforesaid confessional statement Mumun did not deny the statement nor even made any suggestion challenging the voluntaries or truthfulness of the statement. The aforesaid confessional statement and the clear admission made by the petitioner Mamun in his examination under section 342 of the Code of Criminal Procedure coupled with evidence on record therefore clearly proves prosecution case against him………………….. (72)
From the evidence of witnesses specially P.Ws. 2 and 12 as mentioned already it is
proved that two or more persons i.e. petitioner Mamun along with other petitioners,
held meeting and conspired to blast bomb upon the Judges and others in the administration resulting in the murder of the two Judges and petitioner Mamun being one of them, his action comes within the mischief of offence punishable under Section 120B of the Penal Code as well. Moreover from the evidence of witnesses, specially P.Ws.l (informant), 11 (Badsha Mia) and 14 (Abdul Mannan Howlader) the offence of killing the two Judges by him has been well proved and as such his conviction under Sections 120B and 302/34 of the Penal Code cannot be found fault with ……………….(75)
Witness of the occurrence of bomb blast and as such he mentioned the name of only
accused Mamun in the First Information Report and the name of the present petitioner Faruk Hossain could not be mentioned. There is therefore on reason to have adverse inference for the omissin. It may however to have adverse inference for the omission. It may however be mentioned that in view of the circumstances revealed P.W.1, the informant added in the FIR “Bangla” which speaks for itself………………….(77)
All citizens of this country are bound by law of this country. Section 2 of the Penal
Code provides for trial of any Bangladeshi according to the provision of the said Code for any act done by him. Under section 5 of the Code of Criminal Procedure, all offences under the Penal Code shall be tried in accordance with the provisions of
the Code of Criminal Procedure. Under Article 101 of the Constitution the High
Court Division shall have jurisdiction, powers and functions as are or may be conferred on it by the Constitution or any other law. The urge of the petitioners to get their matter disposed of by the High Court Division or by this Division through Islamic law has got no leg to stand in view of the aforesaid provisions. Under Article 152 of the Constitution the word “law” means any Act, Ordinance etc. having the force of law in Bangladesh. The urge of the petitioners for trying their cases in accordance with Islamic law is nothing but an imaginary dream as the said so-called law is not recognised now by our constitution or in any other law except the sharia law codified as the law of the land. In this view of the matter urge of the petitioners to dispose of their case under Islamic law is an Utopian concept unknown to our legal jurisprudence …………………..(81)
Islam is a religion of peace. It is derived from the word “Salam” meaning peace.
Using the holy name of Islam, the petitioners have engaged in a wild mad struggle
jeopardizing the law and order of the country resulting in killing of innocent people as has been done in the present case of killing the two Judges. Does Islam permit killing of such innocent persons? Are those illfated Judges responsible for not implementing Islamic law in this Country? Is it the job of the Judges to legislate Islamic law in Bangladesh? Is there even any allegation against them of murdering any other persons or any adversary or being themselves Murtad? Islam does not encourage use of force, in the matter of religion. The way the petitioners resorted to outrageous atrocities in the name of Islam killing innocent persons has been prohibited clearly in Islam. The Quran says, ” whosoever killeth a human being for other than manslaughter or corruption in the earth, it shall be as if he had killed all mankind, and whoso saveth the life of one, it shall be as if he had saved the life of all mankind………….. ” Surat 5 : Al Maidah : 32…………….. (82)
Article 31 of the Constitution that on action detrimental to the life, liberty and body
shall be taken against any citizen except in accordance with law. Article 31 of the
Constitution guarantees protection of life and liberty to every citizen. The term cannot be confined only to taking away of life, but it means something more than mere animal existence. The inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed ………………..(87)
Criminal Petition for Leave to Appeal No. 444 of 2006
AND
Jail Petition Nos. 04, 06, 07, 08, 09 and 10 of (From the judgment and order dated 29 and31 August 2006 passed by the High Court Division in Death Reference No.47 of 2006
with Jail Appeal No.457 of 2006.)
Khalilur Rahman, Advocate instructed by A.S.M. Khalequzzaman, Advocate-on-Record.
….For the Petitioners (In Jail Petition Nos. 7, 8 & 9 Of 2006)
Salahuddin, Advocate, instructed by A.S.M. Khalequzzaman, Advocate-on-Record……………..For the Petitioners (In Jail Petition Nos. 4 & 10 of 2006)
Shamsul Alam, Senior Advocate, (Salahuddin Advocate, with him) instructed by Sufia
Khatun, Advocate-on-Record…………….. For the Petitioner ( In Criminal Petition No. 444 of 2006 & Jail Petition Nos. 6 Of 2006)
Abdur Razzaque Khan, Additional Attorney General (Helaluddin Mollah, Md. Faisal H.
Khan and Fahima Nasrin, all the Deputy Attorney General with him) instructed by
Ahsanullali Patwary, Advocate-on-Record……….. For the Respondent (In all the cases)
JUDGMENT
1. Syed J.R. Mudassir Husain CJ : I have gone through the draft judgment prepared by my learned brother, Amirul Kabir Chowdhury J and the separate dissenting note written by my learned brother Mr. Md. Joynul Abedin J.
2. The author Judge, Mr. Justice Amirul Kabir Chowdhury has elaborately narrated the facts and circumstances and thereupon arrived at his conclusion dismissing all the petitions.
3. Having regard to the facts and circumstances of the case, the provisions of Article
31 of the Constitution, in my view, cannot be applied because of the fact that the convicts
were tried by a competent Court of the country in accordance with law and upon due compliance of all the necessary formalities and in such view of the matter, jurisdiction question is rather redundant.
4. In the result, I also dismiss all the petitions and I fully concur with the judgment delivered by Mr. Amirul Kabir Chowdhury, J.
5. Md. Ruhul Amin J: I have gone through the draft judgment prepared by brother Mr.
Amirul Kabir Chowdhury, J. and the separate note written by brother Mr. Md. Joynul
Abedin, J. agreeing with the conclusion arrived at and made by brother Mr. Amirul
Kabir Chowdhury, J.
6. I am sorry that I differ with the view expressed by my brother Md. Joynul Abedin,
J. as to the provision of Article 31 of the Constitution relating to the matter of awarding
of sentence of death under the provision of the Penal Code or any other special law. Since the four convicts, as to whom my brother Joynul Abedin, J’s separate note relates, were tried by the competent Court in accordance to the law of land and as such jurisdictional question raised by the convicts was quite not relevant. Moreover where law of the land provides for sentence of death in respect of certain offence and one who has been sentenced to death quite in accordance to law for the commission of the offence providing sentence of death, his contention referring to provision of Article 31 of the Constitution so far provision thereof relates to ‘right to life’ is not well founded in law.
7. I agree with the judgment as well as the conclusion arrived at by my brother Mr.
Amirul Kabir Chowdhury. J.
8. Mohammad Fazlul Karim J: Perused the attached note of my brother Md. Joynul
Abedin, J along with the contention in appeal raised by the four convicts who have been
sentenced to death by the trial Court in accordance with law.
9. Since the convicts have disowned the jurisdiction of this Court thereby remained satisfied with the judgment under appeal displaying certain purely religious sentiments which a Court of law established by law has nothing to do and on my perusal of the impugned judgment no illegality is apparent therein to be interfered with. I am of the view that the provision of Article 31 of the Constitution has no manner of application in the instant case.
10. In the result, I agree with the judgment and order of my learned brother Amirul Kabir
Chowdhury, J.
11. M.M. Ruhul Amin J : I have gone through the judgment proposed to be delivered
by my learned brother Amirul Kabir Chowdhury, J and the separate notes added by
my learned brother Md. Joynul Abedin, J. agreeing with the judgmet of Amirul Kabir
chowdhury, J.
12. In my view the provisions of Article 31 of the Constitution as mentioned by Md. Joynul Abedin, J. are not applicable in the present case as the convicts were tried by a competent court as per provisions of law of the land after complying with all necessary legal formalities and as such the jurisdiction question as raised by the convicts are rather irrelevant. I agree with my learned brother Amirul Kabir Chowdhury. J.
13. Md. Tafazzul Islam J : I have gone through the draft judgment prepared by brother
Amirul Kabir Chowdhury J. and also the separate note added by brother Md. Joynul
Abedin j . agreeing with the conclusion arrived at by my brother Amirul Kabir Chowdhury, J but expressing the view that in view of the fundamental right guaranteed under Article 31 of the Constitution and the condemned prisoners having taken the ground that courts below did not have jurisdiction to try the condemned prisoners, a substantial question of law has been raised warranting this Court to look into the legality and propriety of their conviction and sentence. I differ with the above view expressed by my brother Md. Joynul Abedin, J. as the condemned convicts were tried by a competent Court in accordance with law of the land which provides for sentence of death in respect of offence under which the condemned prisoners were tried and so they cannot take shelter of the provisions of Article 31 of the Constitution. I agree with the judgment as well as the conclusion arrived at by my brother, Amirul Kabir Chowdhury, J.
14. Amirul Kabir Chowdhury J : Jail Petition No. 04 of 2006 has been preferred by
petitioner (I) Md. Iftekhar Hasan @ Al-Mamun, Petition No. 07 of 2006 is at the
instance of (2) Shayekh Abdur Rahman Ibne Abdullah @ Ehsan @ Maolana Abdur
Rahman, Petition No. 08 of 2006 is by (3) Md. Siddiqul Islam @ Azizul Islam @ Omar AH @ Litu Miah @ Bangla Bhai, Petiton No 09 of 2006 arises at the instance of (4) Md. Ataur Rahman @ Tariq Sani Ibne Abdullah While Petition No. 10 of 2006 is at the instance of (5) Abdul Awal @ Arafat @ Samad @ Asif hereinafter referred to as the petitioners. The judgment and order dated 29 and 31 August 2006 in Death Reference No. 47 of 2006 with Jail Appeal No. 457 of 2006 passed by the High Court Division against the aforesaid petitioners (condemned prisoners) gives rise to the petitions mentioned above.
15. Md. Faruk Hossain Khan @ Faruk @ Khaled Saifullah @ Amjad, another condemned prisoner, on the other hand, submitted Jail Petition No. 06 of 2006 regarding the aforesaid judgment and order but later filed Criminal Petition for leave to appeal registered as Criminal Petition for Leave to Appeal No. 444 of 2006 and Mr. M. Shamsul Alam learned Counsel representing him did not press the said Jail Petition in view of filing of the frcbh petition for leave.
16. The learned Additional Sessions Judge, Jhalakati by judgment and order dated
29.05.2006 in Sessions Case No. 28 of 2006 convicted the aforesaid six petitioners and coaccused Ashadul Islam @ Arif, who is absconding althrough, under Sections 120B
and 324/302/34 of the Penal Code and sentenced each of them to death. Another accused Md. Sultan Khan has however been acquitted. The learned Additional Sessions Judge after passing the said judgment submitted proceedings to the High Court Division
under Section 374 of the Code of Criminal Procedure on the basis of which Death
Reference No. 47 of 2006 was started. The aforesaid Jail Appeal No. 457 of 2006 was
preferred by condemned prisoner Md. Iftekhar Hasan @ Al-Mamun @ Shiheb
against the aforesaid judgment and order of the trial court. The Death Reference and the
aforesaid jail appeal being heard together the High Court Division by the impugned judgment and order accepted the Death Reference and dismissed the jail appeal.
17. Md. Abdur Rahman Bin Abdullah Bin Fazal in his lengthy petition stated, inter-alia,
” ^ft (is) $<$ f%ra *rf?r?ra (Bangla)
18. Md. Siddiqul Islam Bangla Bhai in his petition stated, inter-alia, “(Bangla)
18. The petitioner Abdul Awal in his petition stated (Bangla)
19. The petitioner Abdul Awal in his petition further stated “(Bangla)
20. Other Accused Md. Faruk Hossain Khan filing petition for leave to appeal challenged
the impugned judgment and order of his conviction and sentence and has been represented by his learned Counsel Mr. M. Shamsul Alam.
21. Prosecution case in brief is that on 14.11.2005 at about 8.50 A.M. Md. Sultan
Ahmed Khan (P.W.I) driver of the judgeship of Jhalakati took out the vehicle as usual and proceeded to pick up the judges namely, Jagannath Parey, Sohel Ahmed and others for taking them to the court and accordingly he collected the aforesaid two Judges who were on board in his vehicle and he also took Abdul Mannan Howlader (P.W.14) a peon in the said vehicle and that after taking them he proceeded to pick up another Judge namely, Mr. Abdul Awal and stopped the vehicle in the gate of Mr. Awal and while he was calling Mr. Awal he heard a huge monstrous sound and coming out from the house of Mr. Awal he found the vehicle, damaged to pieces and Judge Sbhel Ahmed was found hanging with the vehicle while the other Judge Jagannath Parey was lying with injuries and that he found Mannan (P.W.14) and another person named Badsha Mia (P.W.ll) also lying there with injuries and that he also saw another man lying there with bleeding injuries on the ground and that the injured persons were taken to hospital on rickshaw and he narrated the occurrence to the police and also about the other injured person that the said person was found immediately before the occurrence by him with a bag in his hand and later from his possession some leaflet claiming introduction of Quaranic Law were also recovered and that the witness was told by peon Mannan that aforesaid other injured person showed a paper to Judge Sohel Ahmed and taking advantage of handing over the paper on the plea of collecting address, the aforesaid person, whose name transpired as Mamun, exploded bomb through the window of the vehicle and two others namely, Badshah and Mannan (P.Ws.ll and 14) were thus injured and the two Judges Sohel Ahmed and Jagannath Parey were thus killed. On the basis of the statement of this
witness, Jhalakati P.S. Case No. 12 dated 14.11. 2005 was started against condemned
prisoner Mamun and others under Sections 302/34 of the Penal Code.
22. During investigation accused (1) Shayekh Abdur Rahman, (2) Md. SiddiquI Islam
Bangla Bhai, (3) Md. Ataur Sani, (4) Abdul Awal, (5) Md. Iftekhar Hasan @ Al-Mamun
and (6) one Sultan Khan were arrested. The investigating officer visited place of occurrence, seized alamats and examined Witnesses.
23. On 24.11.2005 accused Md. Iftekhar Hasan @ Al Mamun was produced before Mr.
Md. Safiq Anwar, Metropolitan Magistrate, Dhaka (P.W.41) to whom the accused gave a
confessional statement recorded by the aforesaid learned Magistrate. After investingation
P.W.44 Munshi Atiqur Rahman submitted chargesheet on 21.03.2006 against the petitioners and absconding accused Asadul Islam Arif and one Md. Sultan Khan under Sections 120B/326/427/302/109/34 of the Penal Code. The case thereafter being sent for trial was registered as Sessions Case No. 28 of 2006 in the Court of the learned Sessions Judge, Jhalakati and was transferred to the learned Additional Sessions Judge for trial.
24. The trial court framed charges against the accused under Sections 120B/302/34 and
Section 326 of the Penal Code. Co-accused Md. Faruk Hossain Khan @ Faruk @ Khaled
Saifullah @ Amjad and accused Arif being then in abscondence could not be examined
while other accused were examined accordingly.
25. Accused (1) Shayekh Abdur Rahman, (2) Md. SiddiquI Islam Bangla Bhai, (3) Md.
Ataur Rahman Sani, (4) Abdul Awal and (5) Md. Iftekhar Hasan @ Al-Mamun in reply to the charge did not deny the charges in so many words and claimed to be tried according to law of Allah (Bangla). Accused Sultan Khan (since acquitted) pleaded
absolute innocence and claimed to be tried.
26. Mr. Md. Siddique Hossain a Senior Advocate of local Bar was appointed as State defence lawyer to represent all accused as they did not appoint any lawyer of their choice. During the trial prosecution produced 44 witnesses while defence did not examine any one. As already mentioned above this is a case in which the petitioners did not raise plea of innocence rather they claimed to have taken their stand again,st, the present law of the country in order to establish law of Allah.
27. P.W.I Md. Sultan Ahmed Khan driver attached to the judgeship of Jhalakati is the
informant of the case who in his deposition narrated the occurrence as already mentioned
while describing the prosecution case. In his deposition he stated that at the time of occurrence of explosion of bomb in the vehicle the two Judges were killed and two others namely, Mannan and Badshah were injured. He further deposed that another person who was also injured was found by him carrying a bag in his hand before the occurrence and after the occurrence some leaflets were also found in his possession wherein it was written (Bangla) and that some bombs were also found in his possession and later his name was disclosed as Mamun. The witness identified condemned petitioner Mamun on dock. He also proved the ejaher lodged by him. In cross-examination he admitted that he did not know, accused Mamun from before.
28. P.W.2 Abdul Barek Khan, a shopkeeper having his shop near the place of occurrence
deposed that during April-May 2005 he saw a man selling honey and on query the man disclosed his name as Mehdhi and sued to come to his shop off and on and that Mehdhi told him that he was linked with an Islamic party and through constant discussion the witness also felt interested in Islamic party and seeing interest, the witness was invited to Mirdha Bari situated at Rupatali Laldigir Par and he went there and found aforesaid Mehdhi along with some others and that thereafter on one occasion Mehdhi took a loan of TK.500/from the witness and the witness in the first week of October had been to the aforesaid house at Mirdha Bari for the money and found Mehdhi along with some other persons coming to the house at about 10/10-30 P.M. and he found amongst others accused Mamun (petitioner in Jail Petition No. 04 of 2006) and Arif (absconding accused) and that the witness was told that the leaders of the Islamic party about whom the witness was told earlier would come to the house and the witness was asked to wait and accordingly he waited there and at about 12 to 12.30 at night five other persons came and on query Mehdhi disclosed their names as (1) Shayekh Abdur Rahman, (2) Md. Siddiqul Islam Bangla Bhai, (3) Md. Ataur Rahman @ Tariq Sani, (4) Abdul Awal,
and (5) Amzad @ Khaled Saifullah (the petitioners in Jail Petition Nos. 07 of 2006, 08 of
2006, 09 of 2006, 10 of 2006 and Civil Petition No. 444 of 2006 respectively). Thereafter some other persons also came and a meeting took place. The witness narrating the meeting deposed ” (Bangla)
29. The witness identified the aforesaid five accused present in dock i.e. the present petitioners except petitioner Mamun. He also deposed that in the newspaper he read the
news about the death of two judges out of bomb explosion. Seeing the picture of Mamun
therein he could identify easily that the man who was also present in the aforesaid meeting was Mamun and the said Mamun was identified on dock. In cross-examination he admitted that the proceeding of the meeting was not recorded. He denied that he did not see Shaiakh Adbur Rahman in the meting or that he was not present in the meeting. In cross-examination he also reiterated that he saw Bangla Bhai in the meeting. He did not
remember the dated of the meeting. He stated in cross-examination that the meeting was
attended by 10/12 persons including Mamun and (1) Shaiakh Abdur Rahman, (2) Bangla
Bhai, (3) Md. Ataur Rahman @ Tariq Ibne Abdullah Sani, (4) Abdul Awal, (5) Md.
Iftekhar Hasan @ Al Mamun and (6) Md. Faruk Hossain Khan @ Faruk @ Khaled
Saifullah @ Amjad (all other six petitioners). He denied that he did not see the accused in
the meeting or that deposed falsely.
30. P.W.3 Md. Abul Khair deposed that he was Imam of a mosque situated at Ruptali
Mirdha Bari and that in March 2005 one Moulana Miraz came to him to get information
about the owner of the house hanging a signboard “To-let” and in reply he told that
owner of the house stayed at Dhaka and one Md. Nazmul Huda Li ton (P.W.7) was the caretaker and then he went to Liton along with the man and the house was rented to the said person @ Tk. 1000/- as monthly rent and the name of another person coming with Moulana Miraz was disclosed to be Mehdhi and that they were in the house for about one and half months and that he learnt from Liton that thereafter they fled away without paying the rent and that after occurrence of bomb blast at Jhalakati, police took Mamun to the said house and seeing him the witness could identify the person to be one of the inmates of the said rented house. In cross-examination he stated that he saw Mamun about 3 to 4 times before the occurrence and denied the suggestion that he did not see Mamun or that he himself was a member of J.M.B. and that he advised the accused to kill the judges.
31. P.W.4 Pallabi Mukharjhee is wife of deceased Judge Jagannath Parey who narrated
the prosecution case as already mentioned before and was not cross-examined.
32. P.W.5 Rawsan Ara Begum deposed that a boy named Shaon took her house on rent and that along with him another boy disclosing his name to be Shehab @ Mamun also used to reside with him in the house and that after 25th Ramadan aforesaid Shehab @ Mamun was not traced out and that on query Shaon told her that Mamun left for his home to attend his ailing father. She deposed further that after the occurrence leading to killing of two Judges police went to her house and showed her Shehab @ Mamun whom he
recognised and identified as aforesaid Mamun residing in her house and she also identified accused Mamun on dock.
33. P.W.6 Md. Serajul Islam the imam of Rupatali Jame Mosque in his evidence corroborated P.W.3 Md. Abul Khair regarding letting out of the house at Rupatali Laldegi Mirdha Bari to Shaon.
34. P.W.7 Md. Nazmul Huda Liton in his evidence corroborated P.W.5 about letting out the house and identified accused Mamun on dock.
35. P.W.8 Uttam Kamar Das in his deposition identified accused Mamun to be a person
residing in the house at Mirdha Bari and also identified him as such on dock.
36. P.W. 11 Badsha Mia is a vendor selling milk to various persons visiting their house.
He deposed that on 14.11.2005 at about 8.45 A.M. while after delivering milk in the house of Judge Abdul Awal and a land Magistrate he was coming out therefrom he found a person talking in front of the house of Judge Abdul Awal and then Mannan (P.W. 14) was also standing in front of the house of Judge Abdul Awal and he heard sudden sound and he himself was injured he was taken to Jhalakati and from there to Barisal Hospital and that the man whom he saw in front of the house of Judge Abdul Awal with a bag in his hand was named Mamun and he identified him on the dock. In cross-examination he replied that except Mamun he did not know other accused.
37. P.W. 12 Md. Shamim Bahar supported the evidence of P.W.2 in toto deposing, inter-alia,
38. Only cross-examination put to this witness is “(Bangla)” So his evidence goes unchallenged and thus is taken as admitted by the accused.
39. P.W. 14 Abdul Mannan Howlader in his deposition corroborated P.W. 11 Badsha Mia
fully and deposed that accused Mamun had a bag in his hand who showed a paper to Judge Sohel Ahmed and then he threw the bag inside the vehicle carrying the Judges as a result of which bomb was exploded injuring him with splinter and killing the two Judges Jagannath Parey and Sohel Ahmed.
40. P.W. 16 Md. Sabir Hossen is the owner of a shop near Chadkathi Ebadullah Mosque
who deposed that on 14.11.2005 at about 8 to 8.15 A.M. while he was sitting in his shop a man came there with a bag in his hand and purchased banana and bread from him and the witness left the shop keeping his brother Md. Jubayer P.W. 17 in the shop asking him to take Tk. 8/- from the man and after a while he heard big sound, on hearing which he came out of his house and saw many persons in front of the house of Judge Abdul Awal and later saw in the paper that Judges Sohel Ahmed and Jagannath Parey have been killed
by the bomb blast and Badsha was also injured and on seeing the picture of the other
injured person he identified him to be the man who purchased banana and bread from him and the said person was recognised as accused Mamun whom he identified as such on the dock.
41. P.W.41 Md. Safiq Anwar, Metropolitan Magistrate, Dhaka deposed that on 24.11.2005 he recorded the confessional statement of accused Md. Iftekhar Hasan @ Al-
Mamun under Section 164 of the Code of Criminal procedure.
42. P.W.44 Munshi Atiqur Rahman after conclusion of the investigation submitted charge
sheet against the accused as already mentioned above.
43. After recording the evidence the learned Additional Sessions Judge examined the
accused petitioners under Section 342 of the Code of Criminal Procedure. In reply to
which the petitioner Shaiakh Abdur Rahman stated, inter-alia, “(Bangla)”
44. Similarly accused Siddique Bangla Bhai stated that he felt himself proud being a member of “(Bangla)” (JMB) and he also did not deny the allegation against him. Accused Khaled Saifullah stated, inter-alia. “4
45. Accused Mamun in his statement admitted that under order of Shaiakh Abdur Rahman and under the leadership of Khaled Saifullah he killed the two Judges.
46. Md. Ataur Rahman Sani also in his statement did not deny the prosecution case and
stated that due to prevalence of corruption and absence of Islamic law in the country, he felt compelled to wage zihad. Accused Abdul Awal stated that he was a muslim mujahid and to fulfil the demand of his iman he resorted to the path.
47. After concluding the trial, the learned Additional Sessions Judge recorded judgment
of conviction and sentence on 29.05.2006 as already mentioned above.
48. Hence are these petitions.
49. Mr. Khalilur Rahman, the learned State defence Lawyer represented the petitioners in
Jail Petition Nos. 7, 8 and 9 of 2006 preferred by condemned prisoners (1) Shaiakh Abdur Rahman Ibne Abdullah @ Easa @ Moulana Abdur Rahman, (2) Md. Siddiqul Islam Pramanik/alias Azizul Islam/alias Omar AH alias Litu Miah alias Bangla Bhai and (3) Md. Ataur Rahman alias Tariq Sani Ibne Abdullah respectively.
50. Placing the materials on record including the impugned judgment, the learned Advocate submits that the petitioners have been convicted on the basis of emotion having no evidence warranting their conviction.
51. He further submits that the witnesses deposing against his clients are procured witnesses and they in fact did not see any occurrence and confronted as to what prevented his clients from cross-examining the witnesses and/or even denying the prosecution case in so many words, the learned Advocate found it difficult to answer and of course submitted that the petitioners were not defended properly in the trial court.
52. He however submits that this court being the highest court of the country could consider the facts and circumstances and exercise the jurisdiction and acquit the petitioners as there was no cogent evidence against them.
53. Mr. Salahuddin, learned Advocate represented the petitioners in Jail Petition Nos. 04
of 2006 and 10 of 2006 namely, Md. Iftekhar Hasan @ Al-Mamun and Md. Abdul Awal @ Arafat @ Samad @ Asif respectively.
54. He however emphasizes that this court in its jurisdiction to do complete justice may
look into the materials which if examined thoroughly would reveal that in fact the prosecution case could not be proved against the petitioners beyond shadow of doubt and as such they are entitled to acquittal.
55. Mr. M. Shamsul Alam, learned Counsel appearing for the petitioner in Criminal
Petition for Leave to Appeal No. 444 of 2006 preferred by condemned prisoner Md. Faruk Hossain Khan @ Faruk @ Khaled Saifullah @ Amjad has taken us through the impugned judgment and submits, inter-alia, that there is at all no direct or indirect evidence to implicate his client with the charge under Sections 302/34 of the Penal Code and as such he is entitled to clean acquittal of the said charge.
56. Regarding conviction under Section 120B of the Penal Code the learned Counsel submits that out of 44 witnesses produced by the prosecution only two witnesses, namely,
P.W.2 Md. Anisur Rahman and P.W.I2 Md. Shamim Bahar deposed as to taking part of his client in criminal conspiracy but the said two witnesses are not natural witnesses and in fact they have been procured by the police and the prosecution totally failed to prove that his client was party to any criminal conspiracy for committing the alleged offence of killing the two Judges and as such the conviction under Section 120B of the Penal code cannot be maintained at all against his client.
57. He submits thereafter that the defence being not conducted properly the petitioner
has been deprived of adequate legal assistance.
58. Referring to the statement of his client made in his examination under Section 342 of
the Code of Criminal Procedure the learned Counsel submits that the inculpatory portion
of the statement under no circumstances can be the basis of his conviction and that apart
from such alleged statement of the accused the prosecution is bound to prove the charge
beyond shadow of doubt producing unimpeachable evidence and in the present case,
according to the learned counsel, the prosecution simply to discharge the onus and as such the order of conviction and sentence is liable to be set aside.
59. He further submits that admittedly the name of the petitioner is not in the FIR and no
allegation has at all been made against him in the said FIR.
60. According to the learned Counsel, not a single witness deposed against the petitioner as to his involvement in the alleged murder of the two Judges and as such conviction under Sections 302/34 of the Penal Code falls through at once.
61. Referring to the charge of criminal conspiracy against the petitioner the learned
Counsel submits that even according to prosecution P.W.2 Md. Anisur Rahman and
P.W.12 Md. Shamim Bahar are the only witnesses produced by the prosecution to the
effect.
62. He thereafter submits that P.W.2 hails from Barisal while P.W. 12 hails from
Jhalakati and both of them have been procured by the police to depose in the case
implicating the petitioner.
63. He advanced grievance of failure of the investigating agency to search the P.O. (place
of occurrence) of the alleged conspiracy and submits that in the meeting of such a grave
nature conspiring to kill the Judges, it is not believable that the two outsiders i.e. P.Ws. 2
and 12 would be allowed to attend and as such their evidence is neither believable nor
acceptable and relying on their evidence, the petitioner cannot be convicted for alleged
criminal conspiracy and as such the order of conviction and sentence is liable to be set
aside.
64. Mr. Abdur Razzaque Khan, learned Additional Attorney General appearing on
behalf of the State submits, inter-alia, that in view of the statements made by the petitioners in reply to the charge, in their statements under Section 342 of the Code of Criminal Procedure and confessional statement of condemned petitioner Md. Iftekhar Hasan @ Al-Mamun (the petitioner in Jail Petition No. 06 of 2006) admitting the guilt, disowning the existing law of the land and also even denying the jurisdiction of the court of the country, the plea raised on behalf of the petitioners before this court for doing complete justice does not arise.
65. Placing the provisions of Articles 103 and 104 of the Constitution, the learned
Additional Attorney General submits the Article 103 of the Constitution is invoked of
and point is found in the impugned judgment involving substantial question of law.
66. He further submits that in view of clear indication of the petitioners (except the petitioner in Jail Petition No. 444 of 2006 and Jail Petition No. 04 of 2006) disowning jurisdiction of this court question of raising the plea of getting complete justice from this court does not arise and referring to the materials on record the learned Additional Attorney General submits that the plea of getting complete justice is not warranted in a case like this in which there are clear admissions of the guilt by the petitioners in their replies to the charges, statements under Section 342 of the Code of Criminal Procedure and in the case of petitioner Mamun in Jail Petition No. 04 of 2006 in his aforesaid confessional statement and further, failure even to cross-examine the prosecution witnesses proving the charge to the hilt.
67. He refers to the seizure list dated 14.11.2005 marked as exhibit-15/1 and submits
that from the house, the place of occurrence of the conspiracy, 31 items were seized
on 16.11.2005. within two days of the occurrence which included a number of books containing exciting message for movement to introduce Islamic law, registers of delegates, plastic box, a number of PBC pipes, sunlight battery, a piece of glass, green wire etc. and thereafter he submits that from the nature of the articles it goes beyond doubt that the evidence of P.Ws. 2 and 3 as to making conspiracy in the house for the murder by bomb explosion by the petitioners has been established.
68. Thereafter referring to the evidence of P.W.2 the learned Additional Attorney
General submits that his evidence clearly proved involvement of the petitioners including
the petitioner of Petition No. 444 of 2006 that they were involved in the conspiracy
resulting in the murder of the two Judges. P.W.2 though was cross-examined, his evidence could not be shaken at all. He then submits that though P.W.I2 in his evidence corroborated P.W.2 in toto. he was not at all cross-examined even denying the vital part of the evidence against petitioners and as such the submissions of Mr. Alam, according to the learned Additional Attorney General, are of on use. Regarding other petitioners, according to the learned Additional Attorney General, nothing could be represented by the learned Advocates appearing for the accused to hold that their conviction has been unfair or illegal in any way. Moreso, in view of their statements, quoted above and there failure to cross examine the witnesses, thereby admitting the evidence against them the order of conviction cannot be found fault with. He reiterated that the petitioners amongst others were present in the meeting making the conspiracy as already mentioned above. He thereafter submits that the petitions are liable to be dismissed.
69. The learned Additional Attorney General submits that the two victims had no enmity
with the petitioners and still they have been done to death by the petitioners and the reason indicated by the petitioners is nothing but a mad cry to establish alleged Islamic law in the country. In this view of the matter, according to the learned Additional Attorney General, the sentences imposed against the petitioners are absolutely justified.
70. Lastly he submits that it appears from the record that either the trial court of the High
Court Division did not fail to exercise their jurisdiction or did not commit any error or
illegality whatsoever in the judgment and as such the petitions have not leg to stand and are therefore liable to be dismissed.
71. We have considered the submissions made at the Bar and perused the materials on record. Out of 7 convicts one of them namely Asadul Islam @ Arif being in abscondence did not prefer any petition and so there are 6 petitioners before us filing six petitions as mentioned above. During trial the petitioners were asked to reply to the charge of entering into criminal conspiracy as a result of which two Judges namely Shohel Ahmed and Jagannath Parey have been killed on 14.11.2005 at Purbachandkathi, Jhalakati committing thereby offences publishable under Sections 120B and 302/34 of the Penal Code. Prosecution produced 44 witnesses in support of the charge. P.W. 1 Md. Sultan Ahmed Khan, Driver of the Judgeship of the Jhalakati is the informant of the case who in his evidence narrated the occurrence as already mentioned by us herein before. He stated that petitioner Mamun was found by him carrying a bag in his hand before the occurrence who was again found after the occurrence lying on the road near the place of occurrence with injuries on his person out of bomb explosion whose name was later disclosed as Mamun and that some leaflets were also found from his possession wherein it was written “(Bangla)'” and the witness identified the accused petitioner Mamun on dock.
72. P.W.2 Anisur Rahman in his evidence deposed that he attended a meeting held in a
house at Rupatali Laldigirpar, Mirdha Bari which was attended, amongst others by
Mamun and all other petitioners i.e. (1) Shayekh Abdur Rahman, (2) Bangla Bhai, (3)
Ataur Rahman Sani, (4) Abdul Awal, and (5) Khaled Saifulla. Similarly P.W.3. Md. Abul
Khair, P.W. 5 Rawsan Ara Begum, P.W.7 Md. Nazmul Huda Liton, P.W. 8 Uttam Kumar
Das, P.W. 16 Md. Sabir Hossen, P.W. 17 Md. Jubayer, P.W. 18 Md. Eklas Mia and P.W. 20 Md. Tarek Hossen all in one voice deposed disclosing involvement of petitioner Mamun in the meeting of conspiracy and also in the occurrence itself resulting in the murder of the two Judges. In his connection P.W. 11 Badsa Mia and P.W 14 Abdul Mannan Hawlader, Both injured in the bomb blast, in their evidence made categorical statements that the petitioner Mamun exploded the bomb inside the vehicle resulting in the death of two Judges. In answer to his examination under Section 342 of the Code of Criminal Procedure Mamun admitted to have committed the offence and stated that he felt proud being able to kill the two Judges. In his confessional statement recorded under Section 164 of the Code of Criminal Procedure Mamun again admitted that according to premeditated plan of his leaders Abdur Rahman, Bangla Bhai he committed the occurrence at Jhalakati. It may be mentioned that while P.W. 41 Md. Safiq Anwar, learned Metropolitan Magistrate, Dhaka deposed to proved the aforesaid confessional statement Mumun did not deny the statement nor even made any suggestion challenging the voluntaries or truthfulness of the statement. The aforesaid confessional statement and the clear admission made by the petitioner Mamun in his examination under section 342 of the Code of Criminal Procedure coupled with evidence on record therefore clearly proves prosecution case against him.
73. Let us now quote Section 120B of the Penal code which is as under: ” 120B-(l) whoever is a party to a criminal conspiracy to commit an offence punishable with death, (imprisonment for life) or rigorous imprisonment of a term of two years or upwards shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.
74. In this connection Section 120A of the Penal Code, defining criminal conspiracy may
also be mentioned which runs as follows: “120A. When two or more persons agree to do, of cause to be done, (1) an illegal act, or (2) an cat which is not illegal by illegal means, such an agreement is designated a criminal conspiracy……………….”
75. From the evidence of witnesses specially P.Ws. 2 and 12 as mentioned already it is proved that two or more persons i.e. petitioner Mamun along with other petitioners, held meeting and conspired to blast bomb upon the Judges and others in the administration resulting in the murder of the two Judges and petitioner Mamun being one of them, his action comes within the mischief of offence punishable under Section 120B of the Penal Code as well. Moreover from the evidence of witnesses, specially P.Ws.l (informant), 11 (Badsha Mia) and 14 (Abdul Mannan Howlader) the offence of killing the two Judges by him has been well proved and as such his conviction under Sections 120B and 302/34 of the Penal Code cannot be found fault with. So the petition of the petitioner Mamun is found to have no substance at all.
76. Regarding other petitioners namely, (1) Shayekh Abdur Rahman, (2) Siddiqul Islam
Bangla Bhai, (3) Ataur Rahman Sani and (4) Abdul Awal, the evidence of prosecution witnesses already mentioned above may be referred to. P.W. 2 Anisur Rahman, as already noticed, in his evidence clearly proved the holding of a meeting held at the house at Repatali Laldigirpar Mirdha Bari before the occurrence attended by, amongst others, the aforesaid petitioners. The witness deposed He thereafter identified the petitioners.
In cross examination nothing tangible was brought out from this witness. Similarly P.W. 12 Md. Samim Bahar corroborated evidence of P.W.2 in toto. Surprisingly enough,
no suggestion even was given to this witness denying the conspiracy participated by aforesaid petitioners. The seizure list marked as Exhibit-15/1 of the articles seized from the house of conspiracy, the description of which has been given earlier goes to strengthen the charge of Criminal conspiracy of the petitioners in the house in question to commit the offence of bomb blast etc. In such view of the matter coupled with evidence of other witnesses as already mentioned hereinbefore in the evidence of these two witnesses (P. Ws. 2 and 12) the charge against the aforesaid petitioners in entering into criminal conspiracy resulting in the death of the two Judges has been proved beyond shadow of doubt. Moreover in their reply to the charge and in their examinations under Section 342 of the Code of Criminal Procedure, none of them denied the prosecution case and rather admitted to have committed the offence. The above mentioned clear admissions of the petitioners together with the categorical statements of witnesses made in their deposition disclosed clearly the participation of the petitioners in the offence of criminal conspiracy that resulted in the murder of the two Judges. In such view of the matter it is crystal clear that the prosecution has been able to prove the charge against the aforesaid petitioners beyond shadow of doubt. The petitions of the petitioners namely, (1) Shayekh Abdur Rahman, (2) Siddiqul Islam Bangla Bhai, (3) Ataur Rahman Sani and (4) Abdul Awal are thus bereft of any substance.
77. Let us now consider the case of Md. Faruk Hossain Khan @ Faruk @ Khaled Saifullah @ Amjad, petitioner in Criminal Petition No. 444 of 2006 who has been represented by Mr. M. Shamsul Alam, learned Counsel. It is true that his name does not find place in the First Information Report. The First Information Report was lodged by P.W.I Md. Sultan Ahmed Khan who witnessed the occurrence at the very time of occurrence who saw the petitioner Mamun with injuries on his person on the spot on whose possession some incriminating leaflets were found. He is a witness of the occurrence of bomb blast and as such he mentioned the name of only accused Mamun
in the First Information Report and the name of the present petitioner Faruk Hossain could not be mentioned. There is therefore on reason to have adverse inference for the omissin. It may however to have adverse inference for the omission. It may however be mentioned that in view of the circumstances revealed P.W.I, the informant added in the FIR ” which speaks for itself. The evidence of P.W. 2 Md. Anisur Rahman and P.W. 12 Md. Samim Bahar has already been mentioned above wherefrom it is clear that this petitioner Faruk Hossain @ Amjad was the head of Barisal Division who was asked as to the places convenient for blasting bomb aimed at Judges and police administration in order to establish Islamic law and that in reply in reply Amjad i.w. the petitioner told that Jhalakati and Bargona would be suitable for bomb blasts and then Shaiakh Abdur Rahman gave orders to petitioner Amjad for blasting bomb. Similarly P.W. 12 Md. Samim Bahar corroborated the said witness verbatim as already noticed. Nothing tangible could be elicited from P.W.2 in cross examination and P.W. 12 was not even cross-examined denying the involvement of the petitioner in the aforesaid conspiracy. Though it has been argued by the learned counsel that the witnesses have been procured by the police but there is nothing on record to show that there was any enmity between the petitioner and the witnesses nor any suggestion was given denying the occurrence. The plea now raised by the learned Counsel is too late for the day which was not raised by the accused at any stage nor any such suggestion was even given to the effect.
78. As already mentioned the petitioner in his examination under Section 342 of the Code of Criminal Procedure, clearly stated that he felt proud to be able to cause the bomb blasting and killing the two Judges. The learned Counsel persistently argued that this incriminating part of the statement of the accused petitioner in his examination under Section 342 of the Code of Criminal Procedure cannot be the basis of conviction. In this connection he has referred to the decision in the case of Shah Alam Vs. State in 10 BLD, AD 25. It appears that the facts are absolutely different in the said decision and the decision does not come to any use to the petitioner. Moreover we find that the inculpatory statement made by the petitioner in his examination under section 342 of the Code of Criminal Procedure is not the only material for recording his conviction. We have examined the evidence of witnesses including P.W.2 and P.W.I2. The evidence clearly leads us to an irresistible opinion as to the guilt of the petitioner. In such view of the matter we to do not find any substance in the submissions of the learned Counsel. In such circumstances we are of the view that, there in no reason to find the petitioner Md. Faruk Hossain Khan @ Faruk @ Khaled Saifullah @ Amjad not guilty of the charges and so his petition is also devoice of any substance.
79. We have perused the impugned judgment. The High Court Division after considering the facts and circumstances observed ” from what has been discussed the convicts
knowingly, and deliberately made the criminal conspiracy and in furtherance of the common intention generated from the conspiracy, they caused the bomb blast leading to the death of two Judges. The Prosecution could prove its case beyond all reasonable doubt. Therefore we hold that the condemend convicts are guilty of the charges under Section 120B, and 302/34 of the Penal Code. They deserve on leniency and the sentence of death is the appropriate penalty for them.”
80. We have ourselves given anxious consideration to the submissions and the materials
on record. We are of the view that the facts and circumstances in the case are conclusive
evidence of killing the two Judges through criminal conspiracy made by the petitioners
appealed for taking compassionate view in the matter as they have not been adequately
defended in the trial court.
81. Except Md. lftekhar Hasan @ Al-Mamun and Md. Faruk Hossain Khan, the petitioner in Jail Petition No. 04 of 2006 and Criminal Petition No. 444 of 2006 other petitioners
have not sought jus ice from this court. It may be mentioned that all citizens of this country are bound by law of this country. Section 2 of the Penal Code provides for trial of any Bangladeshi according to the provision of the said Code for any act done by him. Under section 5 of the Code of Criminal Procedure, all offences under the Penal Code shall be tried in accordance with the provisions of the Code of Criminal Procedure. Under Article 101 of t