Md. Shah Alam Mollah Vs. Md. Ruhul Amin Kha & another

Appellate Division Cases

(Criminal)

PARTIES

Md. Shah Alam Mollah…………………. Petitioner.

-Vs-

Md. Ruhul Amin Kha & another…………………. Respondents.


JUSTICES

Md. Ruhul Amin CJ

M.M. Ruhul Amin J

Md. Tafazzul Islam J

Md. Hassan Ameen J

Judgment Dated: 25th March 2007

Petition is dismissed

The Explosive Substance Act, Sections 2 and 4

The witnesses who were earlier examined during investigation under section 161 of the Code of Criminal Procedure by the police were again examined in the name of further investigation which is not permissible in law. The High Court Division further observed that during their earlier examination by police under section 161 of the Code of Criminal Procedure those witnesses did not mention the name of the present respondent nor made any allegation against him. Accordingly, the High Court Division held that a witness once narrated the occurrence without implicating the respondent with the offence in any manner can not be permitted to depose for the second time in the same acase with a view to implicating the self same accused and thereby play double standard and such allowance will encourage implication of innocent persons into false charge in the hands unscrupulous interested elements and it will frustrate the purpose of further investigation ……………………….(5)

Mohd. Ncnvab AH, Advocale-on-Record ………………For the Petitioner

Aftab Hossain, Advocate-on-Record…………………….For Respondent No.l

Criminal Petition for Leave to Appeal No. 256 of 2004

(From the judgment and order dated 10.07.2004 passed by the High Court Division in Criminal Appeal No. 1195 of 2004.)

JUDGMENT

M.M. Ruhul Amin J: This petition for leave to appeal is directed against the judgment and order dated 10.07.2004 passed by a Division Bench of the High Court Division in Criminal Appeal No. 1195 of 2004 allowing the appeal.

2. Short facts are that on 17.01.2003 one Shah Alam Molla lodged F.I.R with Muladi Police Station, District-Barisal against 9 accused persons including the present respondent alleging, inter alia, that criminal cases filed by him against the coaccused

were pending for trial. He was put under pressuz’e to withdraw those cases but he did not agree. As a result, the accused persons became infuriated. On the dated of occurrence the informant and his sister Shamima Nasrin after making election campaing for his brother-in-law came back at night and after taking meal slept with witness Nos.2 and 3 in their

house. At about 1.00 hours the accused persons armed with deadly weapons like cut rifle, pistol, ramdao etc., by breaking the door trespassed into their north bhiti dwelling hut and assaulted the informant and witness Nos.2 & 3 and also confined them. At one stage accused No.l forcibly snatched away one tola golden chain from the witness No.2, accused No.2 snatched cash money amounting to Tk. 5,500/- contained in the vanity bag of the said witness and accused No.3 looted away cash money amounting to. 10,000/- kept in the almirah by breaking the same. Thereafter, the accused persons sprinkled kerosene oil inside the fence, iron sheet and furniture and set fire with jute sticks brought form outside. The accused persons then came out and stood on the courtyard. When the

informant and witness Nos. 2 and 3 tried to come out of the dwelling house the accused persons fired blank shots and threatened loudly to kill the informant and others. On hearing hue and cry the neighbours arrived and when they tried io extinguish the fire, accused Nos. 1-3. 7 & 8 exploded hand bombs and thereby caused terror. In connection with aforesaid incident an information was lodged with the Police Station and a case was registered.

3. Police on completion of investigation submitted charge sheet under section 3 and 4 of the Explosive Substance Act against the 4 accused persons namely. (1) Dulal Molla, (2) Russel Mridha. (3) Chandu Molla, (4) Badal Kha out of 9(nine) accused named in Lhe First Information Report and submitted final report against the 5 accused persons. The

informant submitted naraji petition against the police report. The Tribunal after hearing,

allowed the prayer for further investigation in respect of 5 (five) accused persons.

4. On completion of further investigation police submitted a supplementary report against 8(eight) out of 9(nine) accused persons named in the First Information Report including the respondent No.l. On receipt of the aforesaid police report, the Special Tribunal took cognizance. On 20.03.2003 charge was framed under section 3 of the Explosive Substance Act against the respondent No.l and others.

5. Being aggrieved, the respondent No.l preferred appeal before the High Court

Division. The High Court Division on consideration of the materials on record held that the witnesses who were earlier examined during investigation under section 161 of the Code of Criminal Procedure by the police were again examined in the name of further investigation which is not permissible in law. The High Court Division further observed that during their earlier examination by police under section 161 of the Code of Criminal

Procedure those witnesses did not mention the name of the present respondent nor

made any allegation against him. Accordingly, the High Court Division held that a witness once narrated the occurrence without implicating the respondent with the offence in any manner can not be permitted to depose for the second time in the same acase with a view to implicating the self same accused and thereby play double standard and such allowance will encourrge implication of innocent persons into false charge in the hands unscrupulous interested elements and it will frustrate the purpose of further investigation.

6. We have heard Mr. Md. Nawab Ali. the learned Advocate-on-Record for the petitioner

and Mr. Aftab Hossain, the learned Advocate-on-Record for the respondent No.l and perused the judgment of the High Court Division and other connected papers.

7. In the facts and circumstances of the case and in view of the discussion made above, we are of the view that the High Court Division upon correct assessment of the materials on record arrived at a correct decision. There is no cogent reason to interfere with the same.

8. Accordingly, the petition is dismissed.

Source : V ADC (2008), 88

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