Md. Joynal Abedin Vs. The State

Appellate Division Cases

(Criminal)

PARTIES

Md. Joynal Abedin and others ……………………….Petitioners.

-vs-

The State and another………………………………….Respondents

JUSTICE

Md. Ruhul Amin. J

Syed J. R. Mudassir Husain. J

M.M. Ruhul Amin J

JUDGEMENT DATE: 5th January, 2004.

The Code of Criminal Procedure, Section 342.

The Penal Code, Section 465, 109.

It appears that the learned Counsel for the Petitioners for the first time at the time of hearing of the review matter before this Division raised the plea that accused persons were not examined under Section 342 of the Code of Criminal Procedure by the Trial Magistrate and hence the same was accepted. The other points raised as stated above were duly answered in the judgment sought to be reviewed ……….(7)

Criminal Review Petition No. 10 of 2003 (From the Judgment and order dated 19.07.2003 passed by the Appellate Division of the Supreme Court in Criminal Petition No. 108 of 2003).

S.M. Zillul Hague, Senior Advocate instructed by Md. Aftab Hossain ,Advocate-on-

Record …………………….For the Petitioners

Not represented……………. Respondents

JUDGMENT

1. M. M. Ruhul Amin, J :- Petitioners are seeking review of the judgment dated 19.07.2003 passed by this Division dismissing the Criminal Petition for leave to Appeal No. 108 of 2003 which was filed challenging the judgment and order dated 24.03.2003 passed by a Single Bench of the High Court Division discharging the Rule in Criminal Revision No. 552 of 1998 obtained against the judgment and order dated 14.06.1998 passed by the learned Additional Sessions Judge, 4C” Court, Comilla in Criminal Appeal No. 144 of 1993 affirming the judgment and order of conviction and sentence dated 30.09.1993 passed by the learned Magistrate, Debidwar. Comilla in C.R Case No. 415 of 1987 convicting the petitioners and two others under sections 465/109 of the Penal Code and sentencing each of them to suffer rigorous imprisonment for l(one) year.

2. Short facts are that on 28.09.1987 the Complainant-opposite party-respondent No.2 brought C.R. Case No. 415 of 1987 in the Court of Upazilla Magistrate at Debidwar alleging, inter alia, that she along with her two sons, namely P.W. Kamal Hossain and P.W Shain Mia purchased AV2 decimals land of plot No. Ill A appertaining to Khatian No. 236 of Mouza Debidwar under police Station Debidwar by a registered deed dated 15.02.1987 from accused No.2 Abdul Latif @ Hanif. Thereafter, the said accused Latif again sold out the same area of land to accused No.l by another registered deed dated 30.08.1987 showing ante dated execution date on 09.01.1987 with a view to defraud the complainant.

3. The accused petitioner Nos.1-3 were the attesting witnesses in the said deed in favour of the accused No.l. During trial charge under section 465/109 of the Penal Code was framed against the accused persons to which they pleaded not guilty and claimed to be tried. The prosecution examined as many as 5 witnesses and the defence examined none. The learned Magistrate on consideration of the evidence on record convicted the accused Abdul Latif @ Hanif executant of the questioned document and attesting witnesses including the present petitioner under Section 465/109 of the Penal Code and sentenced each of them to suffer rigorous imprisonment for 1 year by the judgment and order dated 30.09.1993 in C.R. Case No. 415 of 1987.

4. We have heard Mr. S. M. Zillul Haque, learned Senior Counsel for the petitioners. He submitted that the land sold by the subsequent document to accused No.l is not the same land which was earlier sold to the complainant and the lands mentioned in the two deed are not the same. He further submitted that the petition of complainant did not disclose any allegation of abetment for committing forgery against the petitioners nor there is any evidence on record regarding abetment of commission of forgery by them. He further submitted that the petitioners were not examined under Section 342 of the Code of Criminal Procedure which is the mandatory requirement of law and as a result the trial has been vitiated. He further submitted that the accused petitioner No.l in good faith attested the deed in question knowing the same to be genuine.

5. The Petitioners can seek review of the judgment passed by this Division on 19.07.2002 in Criminal Petition for leave to Appeal No. 108 of2003 if they can show that there has been discovery of new and important matter or evidence which, after the excise of due diligence, was not within their knowledge or was passed or could not be produced by them at the time when the judgment order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason.

6. In the instant case, from the judgment sought to be reviewed it appears that this Division gave clear findings that the questioned document was antedated and forged one and appellant Abdul Latif @ Hanif has not denied the execution of the document in question and the document in favour of the complainant and her two sons in respect of the self same property

7. It appears that the learned Counsel for the Petitioners for the first time at the time of hearing of the review matter before this Division raised the plea that accused persons were not examined under Section 342 of the Code of Criminal Procedure by the Trial Magistrate and hence the same was accepted. The other points raised as stated above were duly answered in the judgment sought to be reviewed.

8. From our above discussion it is clear that the petitioners have not been able to show that there has been discovery of new and important matter or evidence which was not within their knowledge or could not be produced by them at the time when the Civil petition for leave to appeal was heard and disposed of. They also could not point out any mistake or error apparent on the face of the record. In view, of the discussion above the review petition is dismissed.

Ed

Source: I ADC (2004), 542

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