Appellate Division Cases
Md. Kabir Hossain ……..Petitioner. (In Jail Petition No.4 of 2007.)
Nannu Miah and another……………. Petitioners. (In Jail Petition No.6of 2007.)
The State…………………… Respondent. (In both the cases)
Md. Ruhul Amin CJ
Mohammad Fazlul Karim J
M. M. Ruhul Amin J
Md. Tafazzul Islam J
Md. Joynul Abedin J
Md. Hassan Ameen J
Md. Abdul Matin J
Judgment Dated: 4th May 2008
The Nari-O-Shishu Nirjatan Daman Ain, 2000 Section 9(3)
The Code of Criminal Procedure, Section 342
The Penal Code, Section 201, 302/34
Whereupon they made confessional statements implicating themselves…………..(3)
They however took a defence that they were forced to make the confessional statements by torture, duress and intimidation by police and they were falsely implicated in this case out of enmity and with ulterior motive………… (5)
Considered the Jail Petitions and the connected papers including the impugned judgment and order of the High Court Division. The High Court Division upon correct assessment of the evidence and materials on record arrived at a correct decision and committed no error in accepting the reference and dismissing the appeal. There is therefore no cogent reason to interfere with the same……………(11)
Accordingly, both the Jail Petitions are dismissed ……………….(12)
Md. Ilclul Uddin Mollah, Advocate For the Petitioners (In both the cases)
For the Respondent (In both the cases)……………….. Not Represented. •
Jail Petition Nos.4 & 6 of 2007
(From the judgment and order dated 29th and 30th March. 2005 passed by the High
Court Division in Death Reference No.28 of 2003 with Criminal Appeal No. 1458 & 815
of 2003 and Jail Appeal No. 190 of 2003.)
Md. Joynul Abedin J: The condemned prisoners, Md. Kabir Hossain, Nannu •Miah and Jahirul Islam alias Bhutto by filing separate jail petitions dated 22.2.2007 and 19.2.2007 from Jail seek leave to appeal against the judgment and order dated 29th and 30th March, 2005 passed by a Division Bench of the High Court Division in accepting the Death Reference No.28 of 2003 in part and dismissing the Criminal Appeal Nos.1458 and 815 of 2003.
2. The short fact of the case is that victim Kazal is a daughter of P.W.2 Shanaz Begum and P.W.3 Md. Harun. On 3.11.2002 in the evening accused Nannu Mia, sister’s husband of P.W.2, went to the house of P.Ws.2 and 3 and requested P.W.2 to allow Kazal to go with him for the purpose of writing a letter for him when P.W.2 asked her younger daughter Ruma to call Kazal from the adjacent house where she was playing and accordingly victim Kazal went out with accused Nannu Mia. P.W.2 became anxious as
Kazal was not returning home. Nannu again came to the house of P.w.2 and on being inquired by P.W.2 he informed her that Kazal did not go with him and asked him to come later for the purpose of writing of the letter. P.Ws.2 and 3 then searched for the victim in vain in the house of accused Nannu as well as in the house of their neighbours and relatives. Three days after the aforesaid occurrence P.W.2 again asked Nannu Mia about Kazal but he was silent and then absconded. Thereafter on 6.11.2002 at 6/6.30 p.m.
informant P.W.I Ali Hyder, the S.I. of Demra Police Station on an information went to Dogair Purbapar and recovered the naked dead body of a young woman from WAPDA canal and prepared inquest report on it in presence of witnesses. The neck and legs were tied and the lower limbs were without cloth. There were marks of injury on different parts oi” her body including her left breast and there were injuries by sharp cutting weapons
from the right breast to abdomen. He sent the dead body to morgue for postmortem examination and lodged FIR dated 6.11.2002 with the Officcr-in-chargc, Dcmra Police Station.
3. The police during investigation arrested the aforesaid three petitioners whereupon they made confessional statements implicating themselves. The police thereafter submitted charge sheet dated 19.11.2002 against the aforesaid three petitioners and one Md. Din Islam under section 9(3) of the Nari-O-Shishu Nirjatan Daman Ain, 2000.
4. The Druta Bichar Tribunal, Dhaka thereafter framed charge against all the four accused persons of the case for the offence under section 9(3) of the Nari-O-Shishu Nirjatan Daman Ain, 2000 and also for the offence under sections 302/201/34 of the Penal Code to which all the accused persons pleaded not guilty and claimed to be tried.
5. The prosecution examined as many as fifteen witnesses in support of its case but the defence examined none. After the close of the prosecution evidence the accused persons were examined under section 342 of the Code of Criminal Procedure when they again maintained their innocence and declined to adduce any evidence. They however took a
defence that they were forced to make the confessional statements by torture, duress
and intimidation by police and they were falsely implicated in this case out of enmity and with ulterior motive. It is also asserted on behalf of the accused persons that victim Kazal had love affairs with one Rafiq, son of Ansar Ali, the landlord of accused Nannu and frequently used to remain absent from the house in the night.
6. The Tribunal, on consideration of the material evidence on record and the facts and circumstances of the case, found all the accused persons guilty under section 9(3) of the Nari-O-Shishu Nirjatan Daman Ain, 2000 and inflicted death sentence upon each of them. The tribunal also found them guilty of the offence under sections 302/34 of the Penal Code and sentenced them to death and also to fine of Tk. 10,000/- each. The Tribunal also found them guilty of the offence under section 201 of the Penal Code and sentenced each of them to suffer 7 years rigorous imprisonment and also to pay a fine
of Tk. 10,000/-, in default, to suffer rigorous imprisonment for five months more.
7. The Tribunal having passed the aforesaid order of conviction and sentence by judgment dated 19.3.2003 made the reference for confirmation of death sentence of the condemned prisoners by Memo dated 20.3.2003.
8. The condemned prisoners thereupon filed separate petitions of Jail Appeal which were numbered as Jail Appeal No. 190 of 2003 and subsequently condemned prisoner Nannu Miah and Jahirul Islam Bhutto preferred Criminal Appeal No.815 of 2003 and condemned prisoner Md. Kabir Hossain and Md. Din Islam preferred Criminal Appeal No. 1458 of 2003.
9. The death reference and the appeals were heard and disposed of by the aforesaid judgment of the High Court Division. Being aggrieved by the aforesaid judgment
and order awarding death sentence the condemned prisoners preferred the aforesaid petition from the Jail seeking leave to appeal asserting that there were discrepancies in the evidence of the prosecution witnesses and also that they were falsely implicated in the case.
10. Mr. Md. Hclal Uddin Mollah, the learned Advocate for the petitioners argues that the confessional statements were not voluntary and true as they were extracted by force. Hence the impugned judgment and order dated 29th and 30th March, 2005 deserve interference by this court.
11. We have heard the learned Advocate for the petitioners, considered the Jail Petitions and the connected papers including the impugned judgment and order of the High Court Division. The High Court Division upon correct assessment of the evidence and materials on record arrived at a correct decision and committed no error in accepting the reference and dismissing the appeal. There is therefore no cogent reason to interfere with the same.
12. Accordingly, both the Jail Petitions are dismissed.
Source : V ADC (2008),628