Appellate Division Cases
(Criminal)
PARTIES
Mukul son of Syed Taleb Ali ……………….Petitioner
-vs-
The State …………………………………..Respondent
JUSTICE
Md. Ruhul Amin. J
M. M. Ruhul Amin. J
Md. Tafazzal Islam. J
JUDGEMENT DATE: 10th July 2004
Section 10(1) of the nari-o-Shisha Nirjatan Daman (Bishesh Bidhan) Ain, 1995
The Ain , Sections 10 (1) and 14 . The constitution Article 105.
Rule 1 of order XXVI in part IV. PLD 1979 SC 741 . 3 BLC ( AD) 170 . 1 BLC(Ad) 219
The case of alibi i. e. absence of the condemned prisoner from the house at the relevant time was not established by the reliable evidence ………………..(10)
A petition for review of Criminal proceeding the petitioner is required to show that there is/ are error or errors in the judgment which is/are apparent on the face of the record and if such error or errors is/are allowed to continue injustice would be perpetuated ……………………………(13)
The uniform view review is not a guise, pretext or camouflage/ smoke screen or that a venture for hearing of the case by the Court against its own judgment or that re-hearing of the case where in judgment has been delivered. It is also the uniform view of the Court (s) whose view is binding on the Courts below it that review should sparingly be entertained or in other words unless a compelling situation is present i.e for removal of the palpable injustice……………………. (15)
The court has gone wrong in the application of the law to the facts of the particular case, or that erroneous inferences have been drawn as a result of appraisal or appreciation of evidence, does not constitute a valid ground for review…….. (14)
Criminal Review petition No.9 of 2004. (From the judgment and Order dated April 10,2004 passed by the Appellate Divisionin Criminal Petition for leave to Appeal No. 60 of 2004 ).
Mujibur Rahman, Senior Advocate, instructed by Md. Nawab Ali, Advocate-onrecord
………….For the Petitioner
Abdur Razzaque Khan, Additional attorney General, instructed by Mvi. Md. Wahidullah,
Advocate-on-record ……………..For the Respondent
JUDGMENT
1. Md Ruhul Amin, J :– This petition has been filed seeking review of the judgment and
order dated April 10, 2004 dismissing the criminal Petition for leave to appeal.
2. The Criminal petition for leave to appeal was filed against the judgment and order dated August 11, 2003 of a Division Bench of the High court Division passed in Death Reference No. 44 of 2000 (hearted along with Criminal Appeal No. 2839 of 2000 and Jail Appeal No. 2884 of 2000). The High Court Division upon dismissing the appeals accepted the reference.
3. The reference was made by the learned Judge of the Nari-o- Shishu Nirjatan Daman
Adalat (the Adalat), Narail upon convicting, on October 24, 2000, the condemned prisoner under Section 10(1) of the nari-o-Shisha Nirjatan Daman (Bishesh Bidhan) Ain, 1995 (the Ain) and sentencing him to death.
4. The condemned prisoner was put on trial to answer the charge under Section 10(1) of the Ain.
5. Prosecution case was that informant’s (P.V.I) daughter swapna Begum was given in
marriage to condemned prisoner, that the condemned prisoner made demand of dowry of Tk. 50,000/- that 3 months preceding the date of occurrence the condemned prisoner and the members of his family tortured swapna Begum for non payment of the amount demanded as dowry and having had heard about the said fact of torture the informant taking his *’ (Bangla) went to the village of the condemned prisoner and assured the condemned prisoner and the members of his family that he (P.W.I) would meet
the demand of dowry amounting to Tk. 50,000/after receiving the pension, that 5/6 days preceding the date of Eid-Ul-Azha upon beating Swapna begum the condemned preisoner and the members of his family sent her to parents house, that on April 9, 1999 condemned prisoner’s brother shelly came to the house of the informant, that on being persuaded by the parents Swapna Begum went back to his conjugal home with condemned prisoner’s brother, that on April 17, 1999 the informant was informed
by P.W. 13 that his daughter had taken poison and she had been admitted into hospital, that the informant having had received the information taking others with him proceeded for the village of condemned prisoner and reached at the house of the condemned prisoner in the early hours of the day and found Swapna Begum dead, that informant and his companions noticed mark of injury in the body of Swapna Begum.
6. Form the condemned prisoner’s side information was lodged with the Narail Police
Station about the unnatural death of Swapna Begum and thereupon U.D. Case No. 57 of
1999 dated 18.4.1999 was registered. The police personnel of Narail Police Station went
to the house of the condemned prisoner and after holding inquest sent the dead body to the morgue.
7. After receiving the post mortem report by the police, the informant lodged-the FIR on
April 24, 1999 and thereupon Narail P.S Case No. 29 of 1999 was started under Sections 10 (1) and 14 of the Ain. It may be mentioned in the post mortem report it was noted that death of Swapna Begum was due to asphyxia resulting from strangulation by manual pressure on the neck and upper part of the chest which was ante-mortem and homicidal in nature.
8. The trial Court on consideration of the evidence held the condemned prisoner guilty of
the offence under Section 10(1) of the Ain and sentenced him to death. The trial Court made the reference for the confirmation of the sentence so passed by it. The reference so made was registered as Death Reference No. 44 of 2000. The condemned prisoner filed appeal through the Advocate of his choice and also filed a petition of appeal from jail.
9. The High Court Division after hearing the reference and the appeals dismissed the
appeals and accepted the reference. Thereupon the condemned prisoner filed criminal petition for leave to appeal.
10. This Division upon hearing the learned counsel of the condemned prisoner dismissed
the petition so filed on the findings that prosecution through the evidence of P.W.I has established the fact of demand of dowry by the condemned prisoner, that the case of alibi i. e. absence of the condemned prisoner from the house at the relevant time was not established by the reliable evidence, that petitioner’s contention that as prosecution case of causing death of Swapna Begum was not established by any direct evidence and that as evidence of P.W. 14, Medical officer, who held post mortem examination, cannot be considered corroborative evidence as to manner of death of Swapna Begum and consequently prosecution case having not been established, High Court Division was in
error in accepting reference not well founded since P.W. 1 in his evidence has stated that he noticed mark of beating in the body of Swapna Begum and that fact of causing death in a violent manner i.e by strangulation has been established through the evidence of P. W 14 who held post mortem examination, that the contention of the petitioner’s Counsel that prosecution did not establish it was case beyond reasonable doubt is not correct as because prosecution by the evidence of competent witnesses has established the manner in which death was caused to the victim and that the contention that the victim and that the condemned prisoner caused death of the victim, that the contention that the conviction and sentence is not sustainable since prosecution case was not established by direct evidence is not well conceived as circumstantial evidence in the instant case is
incompatible to the innocence of the convict.
11. Provision of Article 105 of the constitution empowers this Division to review its judgment pronounced or order made “subject to the provisions of any Act of Parliament or of any Rules made by the Division”. This division has made Rules for the review of Criminal proceeding.
12. Rule 1 of order XXVI in part IV of the supreme Court of Bangladesh (Appellate
Division) Rules, 1988 provides for review of Criminal Proceeding “on the ground of an error apparent on the face of the record.”
13. So to maintain a petition for review of Criminal proceeding the petitioner is required
to show that there is/ are error or errors in the judgment which is/are apparent on the face of the record and if such error or errors is/are allowed to continue injustice would be perpetuated.
14. In the case of Zulfikar Ali Bhutto Vs. State reported in PLD 1979 SC 741 as to scope
of review and what is error apparent it has been observed “that in order that an error may be a ground for review, it is necessary that it must be one which is apparent on the face of the record, that is, it must be so manifest, so clear that no Court could permit such an error to remain on the record. It may be an error of fact or of law, but it must be an error which is self evident and floating on the surface, and does not require any elaborate discussion or process of ratiocination. The contention that the exposition of the law is incorrect or erroneous, or that the court has gone wrong in the application of the law to the facts of the particular case, or that erroneous inferences have been drawn as a result of appraisal or appreciation of evidence, does not constitute a valid ground for review. However, an order based on an erroneous assumption of material fact, or without adverting to a provision of law, or a departure from an undisputed construction of the law and the Constitution may amount to an error apparent on the face of the record. At the same time if the judgment under review of finding contained therein, although suffering from an erroneous assumption of facts, is sustainable on other grounds available on the record then although the error may be apparent on the face of the record, it would not justify a review of the judgment or the finding in question. In other words, the error
must not only be apparent, but must also have a material bearing on the fate of the case. Errors of inconsequential import do not call for review.”
15. The uniform view review is not a guise, pretext or camouflage/ smoke screen or that a venture for hearing of the case by the Court against its own judgment or that re-hearing of the case where in judgment has been delivered. It is also the uniform view of the Court (s) whose view is binding on the Courts below it that review should sparingly be entertained or in other words unless a compelling situation is present i.e for removal of the palpable injustice. In this connection the case of M. Amir Khan Vs Controller, Estate Duty reported in 14 DLR, SC 276 may be referred to wherein it has been observed ‘If there be found material irregularity, and yet there be no substantial injury consequent there on, the exercise of power of review to alter the judgment would not necessarily be required. The irregularity must be of such a nature as converts the process from being one in aid of justice to a process that brings about injustice. Where, however, there is found to be something directed by the judgment of which review is sought which is in conflict with the constitution or with a law, there it would be the duty of the Court unhesitatingly to amend the error” and “It is not because a conclusion is wrong but because something obvious has been overlooked, some important aspect of the matter has not been considered, that a review petition will lie. It is a remedy to be used only in exceptional circumstances.”
16. Review is not available to a party when a case has been fully heard and a decision given on all available material the party adversely affected by the decision cannot apply for review on the simply ground that it is not satisfied with the correctness of the decision.
17. In the case of Zobaida Naher @ Jharna Vs. Khairunnessa being dead her heirs Md. Feroz Alam and others reported in 3 BLC (AD) 170 it has been observed ” A review cannot be granted to urge fresh grounds when the judgment itself does not reveal an error apparent on the face of the record. To allow such a prayer for revise is to allow re -hearing of the appeal on points not urged by a party'”. In the case of Nurul Hussain Vs. government of the People’s Republic of Bangladesh reported in 1 BLC(Ad) 219 it has been held :lt is well known that a review was never meant and allowed to be utilized as another opportunity for rehearing the matter which is already closed by a final judgment.”
18. It is also the accepted principle as to scope of review that it cannot be a ground for review that the Counsel appearing in the original hearing did not argue or press a particular point although same was available to the Counsel and could have been found out with a little amount of diligence.
19. The learned Counsel in support of the prayer for review has submitted that circumstantial evidence is not incompatible to the innocence of the condemned prisoner, rather compatible to the innocence of the condemned prisoner, that the prosecution case has been falsified by the evidence of the prosecution witnesses, that case of alibi was established by the evidence of reliable witnesses, that it was established that the victim committed suicide as she could not reconcile her marriage with the condemned prisoner who is illiterate, that demand of dowry has been disproved by the evidence of P.Ws. 4 and 13, that medical evidence is the only corroborative of the eye witness and there being no eye witness to depose about manner of death the evidence of the medical officer cannot be considered as the corroborative evidence as regard manner of death and finally submitted that in the background of the materials on record question of conviction under Section 10(1) of the Ain does not arise.
20. While dismissing the criminal petition for leave to appeals we have considered the case of alibi which the condemned prisoner tried to establish and have found that case of alibi was not established by any reliable evidence. The defense put by the condemned prisoner was that he did not cause death of the victim, rather the victim committed suicide since she could not reconcile her marriage with the condemned prisoner as he is illiterate was also considered by us and the same because of evidence on record was found baseless It may be mentioned that P.W. 14, one of the members of the 3 doctors committee, who held post mortem examination of the victim deposed that cause of death of the victim was due to asphyxia resulting from strangulation by manual pressure on the neck and upper part of the chest and the same was ante -mortem and homicidal in nature. It may also be mentioned that P.W 1 father of the victim deposed that he noticed mark of beating in the body of the deceased and P.W. 17, Investigating officer has deposed that he did not notice any sign or symptom of hanging around the neck of the victim. The other contention of the learned Counsel was that prosecution case has be disproved by prosecution witnesses is also not correct since the said contention is too general. In the judgment sought to be reviewed it was held on consideration of the evidence, that prosecution established its case that condemned prisoner caused death of the victim. The contention of the learned Counsel that demand of dowry by the condemned prisoner has been disproved by the evidence of P.Ws. 4 and 13 is in fact repeating of the contention made at the time of hearing of the leave petition, we have considered this sub’ mission while rejecting the petition for leave to appeal and that we held that prosecution case that condemned prisoner made demand of dowry of Tk. 50,000/- and that he used to beat victim for not meeting the demand of dowry was established by the evidence of P.W.I. On consideration of the evidence of P.W.1 father of the victim, we found nothing in the evidence of said witness not to consider him reliable evidence. Nothing was pointed out from the side of the condemned prisoner in the evidence of P.W.I to make the said witness unreliable. The other contention that medical evidence is only the corroborative of the eye-witness is also not well founded. It may be mentioned that by the evidence of P.W. 14. Medical officer, who held post mortem examination, prosecution has established that death was done to the victim in violent manner. At the time of the hearing of the petition for leave to appeal the learned counsel for the petitioner referred us to the case reported in 43 DLR(Ad) 92 and at the time of hearing of the review petition he repeated the argument made earlier i.e while petition for leave to appeal was heard, upon referring to the decision reported in 43 DLR (AD), 92 . We have considered the submission of the learned counsel made upon referring to the decision reported in 43 DLR (AD) 92. while rejecting the petition for leave to appeal. None of the observations in 43 DLR (AD) 92 is of assistance to the condemned prisoner in any respect or in other words to come to the conclusion that facts established by the prosecution is insufficient to fined the condemned prisoner guilty of the charge levened against him.
21. It may be mentioned the learned Counsel be has not pointed out any error apparent on the face of the judgment which sought to reviewed nor has pointed out any error if allowed to continue injustice would be perpetuated. The learned Counsel in support of the review petition embarked upon reiteration of the same contentions as were advanced at the time of hearing of the petition for leave to appeal, which we considered in the judgment sought to be reviewed, in an effort to discover error said to be apparent on the face of the record.
22. In the background of our discussions made hereinabove as review cannot be granted for merely re-examination of the same argument, the petition for review is dismissed.
Ed
Source: I ADC (2004), 364