Pannu Mollh and another………………………………………..Appellants
= vs =
The State…………………………………………………… Respondent
Md. Ruhul Amin J
Syed J. R. Mudassir Husain J
M. M. Ruhul Amin J
JUDGEMENT DATE: 6th January, 2003
Section 19 (a) and (f) of the Arms Act.
the arms and ammunitions were recovered from the possession of the arrested accused persons and they disclosed the names of their other companions who are the appellants. In such view of the matter, the appellants can not be held to be in possession of any arms.
Cirmina! Appeal No. 26 of 2001 (From the judgment and order dated 2’» (\2000
by the High Court Division in Criminal Miscellaneous Case No. 1838 of 2000 )
Mr. Md. Abdul Mcdek, Senior Advocate, instructed by Mr. Md. Nowah AH, Advocate -on-Rccord. For the appellants
Respondent : Ex-pane.
1.SYED J. R. MUDASSIR HUSAIN, J. : This Apeal. by way of leave, is from the judgment and order dated 2M.6.2000 discharging the Rule in Criminal Miscellaneous Case No. 1838 of 2000 in refusing to quash the con\ iction of the petitioners under Section 19 (f) of the Arms Act and the sentence of rigorous imprisonment for 10 ( ten) years as passed thereunder by special Tribunal No. 1, Jhenaidah in Special Tribunal Case No 100 of 1996 .
2. The prosecution case, in brief, is that upon a secret information police party went to the house of the accused petitioner No. 1 Pannu Mollah where they found 4 persons present in the room, that sensing presence of the police party two amongst them fled away and the other 2 persons were arrested by the police with 2 arms and cartridges and the accused persons disclosed to the police the names of other companions who are the appellants.
3. Police investigated the case and submitted charge-sheet against the appellant along with others under Section 19 (a) and (f) of the Arms Act. The case came up for trial before the Court of Additional Sessions Judge and Special Tribunal No . 1 Jhenidah and the prosecution examined 10 Pws. but none was examined on behalf of defence.
4. The Special Tribunal upon hearing the parties convicted the appellants and two others as aforesaid.
5. Being aggrived the appellants took a revision before the High Court Division for quashing the judgment and order of the Special Tribunal, the Rule issued was discharged.
6. Mr. Abdul Malek the learned Senior Counsel, appearing for the convict-appellants took us through the impugned judgment of the High Court Division as well as the judgment of the Special Tribunal and thereafter he submitted that the appellants were not aware of the trial and the same was held in their absence and the learned Additional Sessions Judge and Special Tribunal No. 1 convicted the accused appellants along with 2 others as aforesaid. He submits that the Special Tribunal acted illegally in convicting and sentencing the appellants, in as much as the conviction has been based on the testimony of the police personnel and no public witnesses did support the prosecution case. It has been further contended that the seized 2 arms were found with the other 2 accused-persons and the appellants were convicted assuming their constructive possession there of which is bad in the eye of law.
7. Mr. Malek lastly contended that the prosecution to prove the allegation that the 2 persons who fled away from the place of occurrence were the appellants relying on the statement of co-accused made to police party, which is inadmissible in evidence, and as such the findings and decisions arrived at by the High Court Division are liable to be set aside.
8. We have heard the learned Counsel and perused the impugned judgment of the High Court Division and also the judgment and order of the Special Tribunal, It appears that the arms in question have not been recovered from possession of the appellants and admittedly they were not present at the place of occurrence, the arms and ammunition were recovered from the possession of the arrested accused persons and they disclosed the names of their other companions who are the appellants. In such view of the matter, the appellants can not be held to be in possession of any arms. Furthermore, the complicity of the appellants, other than the statement of the co-accused which is inadmissible in evidence, has not been established by independent witnesses.
9. Under the aforesaid facts and circumstances of the case and in view of the submissions made by the learned Counsel, we find the appellants are entitled to be acquitted. The learned Judges of the High Court Division having failed to consider the aforesaid aspect of the case and the materials on record misdirected themselves in discharging the Rule.
10. Having regard to the materials on record, we are of the view that the impugned judgment of the High Court Division suffers from legal infirmity. We therefore set aside the impugned judgment of the High Court Division.
11. In the aforesaid premises, we find substance in this appeal and accordingly the same is allowed. The judgment and order of the Special Tribunal No. 1, Jhenidah passed in Special Tribunal Case No 100 of 1996 is quashed in so far the same relates to the appellants. The appellants are set at liberty if not wanted in other connection.
Source : I ADC (2004),28