Md. Khoka Mollah Vs. The State

Appellate Division Cases

(CRIMINAL)

PARTIES

Md. Khoka Mollah ……………………………Appellant

= Versus =

The State ………………………………………Respondent.

JUSTICE

Mahnuiwdul Amin Choudhury. C.J

Md. Ruhul Amin J

Abu Sayeed Ahmammed. J

JUDGEMENT DATE: May 20th, 2002

Section 561a of the code of Criminal procedureSpecial Powers Act 1974,

the P. W. 1 Badsha Miah who is the informant of the case, has been supported by his wife, P. W. 3 Rupban as well as P. W. 2 Nur Jahan an attached neighbors of the P. W. 1 So it cannot be called that it is a case of no evidence and that the appellant has been convicted without any evidence.

Mr. Md. Nowab Ali, the learned Advocateon-record appearing for the appellant places the judgment of the High Court Division as well as of the trial Court for our consideration, fails to convince us that the High Court Divisioii committed any illegality in discharging the Rule or that the trial court convicted the petitioner with-r out any evidence or it is a case of no evidence. …9

46 DLR(HC) 630, Shar Ali (Md) and others Vs The State, 46 D. L. R (AD) -67

Criminal Appeal No. 21 of 2001. (From the judgment and order dated 15.07.1999 passed by the High Court Division in Criminal Misc, Case No. 5980 of 1998)

Mr. Md. Nowab Ali Advocate -in-record …For the appellant

For the respondent: Ex-parte

JUDGMENT

1. ABU SAYEED AHAMMED. J : This appeal is against the judgment and order dated 15.07.1999 passed by the High Court Division discharging the Rule in Criminal Miscellaneous case no. 5980 of 1998 . The appellant was convicted under section 385 of the Penal Code in Special Tribunal Case no.826 of 1994 arising out of Pallabi p.s. ease no. 6(5)/94 by the Senior Special Tribunal Judge. Court no. 1, Dhaka no 30.03.1995 and sentenced him to suffer rigorous imprisonment for 7 years and to pay a fine of TK. 5000/- only, in default to suffer rigorous imprisonment for one year more in absentia and directed that the sentence will take effect from the date of arrest of the convict because the trial was held in absentia.

2. The short facts leading to this leave petition are that one Badsha Miah on 03.05.1994 lodged a F. I. R with Pallabi police station against the petitioner and others alleging that on 01.05.1994 . the accused persons trespassed into the house of the informant, and assaulted him and they also went to the shop of the informant and demanded TK.

2000/- as till and threatened the informant to kill incase he died not pay the money and upon that allegation the pallabi p.s. case no. 6(5)/94 was started. “

3. The police after investigation submitted charge sheet on 19.07.94 against the petitioner and two others. The accused petitioner was absconding and the trial having been commenced, the petitioner was, however, present on the first phase of the trial and he pleaded not guilty but having been enlarged on bail he again absconded and later on he

was arrested on 08.06.98 after passing of the judgment and there was a delay of 805 days from the date of the judgment and according to law the connected appeal itself was to be filed within 30 days.

4. According to the appellant, since the trial was held in his absence he could not prefer the appeal in time as prescribed by the Special Law and as such after arrest procuring the copy of the judgment and order of conviction and sentence he moved the High Court Division in Criminal Miscellaneous Case no. 5980 of 1998 under section 561a of the code of Criminal procedure for quashing the judgment and order of conviction and sentence passed against him by the said Tribunal Court on the ground that there is absolutely no evidence against him supporting the conviction and sentence. In this case prosecution examined as many a 4 p.ws. p. w. 1 is the informant Badsha Miah and P. W. 2 is Nur Jahan, a neighbour of the informant and P.W. 3 is Rupban. the wife of informant and P. W. 4 is the Investigating officer, the Sub-Inspector of pallabi police station.

5. It is the settled principle of law that only when a conviction and sentence is passed against a particular accused by the Special Tribunal upon Consideration of the evidence on record and if no appeal could be preferred within the prescribed periodical being 30 days as provided under the Special Powers Act, 1974 and if the conviction is based on no evidence or trial court had no jurisdiction which can be called Qurain non-judicc, then and then only the conviction and sentenced can be quashed under section 561 A of the Code of Criminal Procedure.

6. In the instant case, the criminal Misc, case was filed before the High Court Division only on the ground that although there is no iota of evidence against the appellant incriminating him with the alleged occurrence, still he has been convicted and sentenced. The High Court Division as it appears, by its impugned judgment and order has very distinctly and clearly found upon very careful consideration of the evidence on record while discharging the Rule, that the Special Tribunal had jurisdiction to try the case as offence was disclosed by the materials on record and it found correctly and legally the

petitioner guilty and there was evidence and other materials on record.

7. In case of Alamgir Hissain =Versus= The State reported in 46 DLR(HC) page 630 (special Bench) Their Lordships have held as follows : “A convict may invoke the jurisdiction of this Division under section 561A of the Code of Criminal Procedure if he can make a case of quram-non-judice of the trial court, or that the facts alleged do not constitute any criminal offence or the conviction has been based on no evidence or otherwise to secure the ends of justive and with that we add that he should approach the court with clean hands.” (Decision in the ease of Shar Ali (Md) and others Vs. The Slate, reported in 46 D. L. R AD) p-67 may be looked into).”

8. This Division granted leave in this case leading to this appeal only to consider whether the petitioner was convicted and sentenced without any evidence and whether the High Court Division committed illegality in discharging the Rule.

9. We have considered the evidence on record and we find that the P. W. I Badsha Mi ah who is the informant of the case, has been supported by his wife. P. W. 3 Rupban as well as P. W. 2 Nur Jahan an attached neighbors of the P. W. 1 So it cannot be called that it is a ease of no evidence and that the appellant has been convicted without an}’ evidence.

Mr. Md. Nowab Ali. the learned Advocate-onrecord appearing for the appellant places the judgment of the High Court Division as well as of the trial Court for our consideration, fails to convince us that the High Court Division committed any illegality

in discharging the Rule or that the trial court convicted the petitioner without any evidence or it is a case of no evidence .

10. For the reasons and discussions made above, we find no merits in this appeal and as such, it is dismissed accordingly.

Ed.

Source : I ADC (2004),57

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