Nizam Hazari Vs. The State

Appellate Division Cases

(Criminal)

PARTIES

Nizam Hazari …………………Petitioner

-vs-

The State…………………………Respondent.

JUSTICE

Syed J. R. Mudassir Husain. C. J

Mohammad Fazlul Karim. J

Amirul Kabir Chowdhury. J

JUDGEMENT DATE: 26th June, 2004

The Arms Act, Sections 19A and 19 (f). The Special Powers Act and Special

Tribunal, Section 26. The Code of Criminal Procedure, Section 103.

Petition arguer Non-consideration of the relevant evidence by this court in passing the judgment has caused a miscarriage of justice and that inconsistency in the evidence of prosecution witnesses has not been considered by this Court and there has been suppression and misquotation of evidence of prosecution witnesses by the Special Tribunal which as been ignored in the judgment of this Court and that provision of Section 103 of the Code of Criminal Procedure has not been followed legally and as such it is necessary to review the judgment there being serious error in it …………………………..(4)

On the cloak of a review petition the same matter cannot be reopened. It has been repeatedly observed by this Division that a review is never meant nor can be allowed to be utilized as another opportunity for rehearing a matter which as already been

closed by a final judgment …………………….(7)

Criminal Review Petition No. 18 of 2002 (From the Judgment and order dated 27.04.2002 passed this Court in Criminal Petition for leave to Appeal No. 107 of 2001)

Abdul Malek, Senior Advocate, instructed by Md. Nowab Ali, Advocate-on-Record………….For the Petitioner

Not- represented…………………… Respondent

JUDGMENT

1. Amirul Kabir Chowdhury, J :- This is a petition for review of the judgment and order dated 27.04.2002 dismissing the Criminal Petition for Leave to Appeal No. 107 of 2001 filed by the petitioner.

2. The petitioner was prosecuted under Sections 19A and 19 (f) fo the Arms Act read with Section 26 of the Special Powers Act and Special Tribunal after recording evidence convicted him under Section 19A of the Arms Act and sentenced him to suffer Rigorous Imprisonment for 10 years and upon conviction under Section 19(f) of the Act he was sentenced to suffer rigorous Imprisonment for 7 years both the sentences to run concurrently. Against the aforesaid judgment of the Trial Court the petitioner preferred Criminal Appeal No. 2369 of 2000 before the High Court Division and a Division Bench of the High Court Division dismissed the appeal by judgment and order dated 01.05.2001.

3. Feeling aggrieved the petitioner filed Criminal Petition for leave to Appeal No. 107 of 2001 before the Appellate Division which after hearing the petitioner has been dismissed on 27.-4.2002 . Hence is this Petition.

4. Mr. Abdul Malek, learned Counsel, in support of the petition has taken us through the impugned judgment and order passed by this court and summits, inter alia, that non-consideration of the relevant evidence by this court in passing the judgment has caused a miscarriage of justice and that inconsistency in the evidence of prosecution witnesses has not been considered by this Court and there has been suppression and misquotation of evidence of prosecution witnesses by the Special Tribunal which as been ignored in the judgment of this Court and that provision of Section 103 of the Code of Criminal Procedure has not been followed legally and as such it is necessary to review the judgment there being serious error in it.

5. We have perused the judgment and order of this court. It appears that this court considered the facts and materials on record and the contention made on behalf of the petitioner that the High Court Division committed error in finding that there was no ground for disbelieving the evidence of the witnesses has no substance.

6. On consideration of materials on record it has been found by this court that the petitioner was in possession of a pipe gun and two rounds of live cartridges and the evidence and circumstances of the arrest of the petitioner with the aforesaid arms and ammunition have been found to be conclusive in nature and this court had no reason to disbelieve the witnesses only because they were police personnel.

7. It may be mentioned that on the cloak of a review petition the same matter cannot be reopened. It has been repeatedly observed by this Division that a review is never meant nor can be allowed to be utilized as another opportunity for rehearing a matter which as already been closed by a final judgment. The points raised by Mr. Abdul Malek being already considered the petitioner cannot be permitted to raise it now afresh and as such we do not find any substance in this petition. In view of the discussion made above, it appears to us that there is no error apparent on the face of the record and as such the review petition is dismissed.

Ed

Source: I ADC (2004), 544

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