Practice and Procedure

Practice and Procedure
No objection as to sanction was raised during the trial nor any such objection was raised even during the appeal, and it is for the first time in the Appellate Division that the question of sanction has been raised. Held—objection, if any, as to sanction, must be taken at the time of the trial.
Liakat Ali Vs. State 42 DLR (AD) 30.

—Where there is direct evidence for implicating an accused in an offence the absence of proof of motive not material.
Shah Alam Vs. State 42 DLR (AD) 31.

—A fugitive from justice is not entitled to protection of the Court. A convicted person against whom there stands a judgment and order of conviction will have to comply with the order by surrendering before the Court.
Abdus Samad Vs. State 41 DLR 291.

—Vokalatnama was not executed by the petitioners from jail. They initially were not entitled to any hearing in this Revision case.
Abdus Samad Vs. State 4l DLR 291.

—Criminal Court in a proceeding under section 145 not to say anything regarding the title of the case land. Mere pendency of a new partition stilt will not operate as a bar to the initiation of proceeding under section 145 CrPC. The aforesaid decision of the Supreme Court of Pakistan 23 DLR (SC) 14 has been followed by our Appellate Division in the case of Md. Shahabul Huda Vs. Md. Shqfi 36 DLR (AD) 44. Hence mere pendency of the new partition suit will not operate as a bar initiation of proceeding under section 145 the Code of Criminal Procedure and we do not agree with the contention of the learned Additional Sessions Judge on this point.
Moslem Uddin Dhail Vs. Helal Uddin Dhali  41 DLR 120.

—There is no provision in the Code Criminal Procedure that a Court before which a proceeding is pending will initiate complaint for the prosecution of a witness making defamatory statement. I am in respectful agreement with the observations made by the courts of the Indian Jurisdiction as quoted above AIR 1954 (Mad) 741 which are in accord with the view I have: taken to the effect that there is no bar under the: 1 Code of Criminal Procedure for making any complaint giving rise to a proceeding under sections 499/500 of the Penal Code independent of the criminal proceeding 1 which the defamatory statement has been made. There is no provision in the Code of Criminal Procedure a1o to the effect that it needs be initiated only on the complaint of the j court itself before which the statement has been made, by any of the parties in that proceeding, pending before that court.
AY Mashiuzzaman Vs. Shah Alam 41 DLR 180.

Appraising evidence as doubtful at the time of writing Judgment without observing anything about the demeanour of witnesses during their examination—The trial judges4 adverse observation about the credibility c witnesses whom the prosecution did r declare hostile and challenge their statement as untrue is untenable—Trial Court’s right to believe or disbelieve any witness has to be exercised judiciously.
MM Rafiqul Hyder Vs. State 41 DLR 274.

Two versions of the same occurrence— Simultaneous hearing and disposal of both the cases desirable.
Alauddinddin Mollah & ors. Vs. State. 40 DLR (AD) 282.

Appellant’s gross laches in approaching the High Court Division for simultaneous trial of both the cases.
Alauddin Mollah & ors. Vs. State 40 DLR (AD) 282.

Purpose of holding a simultaneous trial is lost if there is a long gap between the two trials.
Alauddin Mollah & ors. Vs. State. 40 DLR (AD) 282.

Two versions of the incident, one in evidence in Court and another in the ejahar——glaring discrepancies—No reliance to be placed on such evidence.
Shajahan Biswas Vs. State 40 DLR (AD) 291.

Differing views on the same point—
When one Division Bench of the High Court Division takes on of point of view differing from that. of another relying on a decision given by the Appellate Division of the Supreme Court, the matter need not be se& to the Chief Justice recommending a Full Bench to decide the matter.
Monindra Kumar Malaker Vs. State 42 DLR 349.

When proof of motive is necessary—
in a case where direct evidence as to commission of a crime is given by a person the veracity of whose statement is unquestioned reliance may be placed upon it—But where the witnesses are of dubious character and highly interested and depose from motive and competent witnesses are withheld, then proof of motive is necessary.
Circumstantial evidence— Proof of motive is also necessary where the case depends entirely upon circumstantial evidence—For no person commits a crime, particularly a gruesome murder, without some reason, purpose or motive.
Shah Alam Vs. State 42 DLR (AD) 31.

Suo motu rule—
When no one was making a grievance against the submission of the charge—sheet or the proceeding, issuance of a suo motu rule is beyond the comprehension of the Appellate Division—There was a profound absence of any necessity or purpose for raising a hypothetical proposition suo motu and then successfully demolishing it.
Shah Alam Chowdhwy Vs. State 42 DLR (AD) 10.

State filed a leave petition against the order of acquittal by the High Court Division which was dismissed after hearing subsequently the informant filed another leave petition. There is no scope for hearing the second petition at the, instance of the informant.
Mostoshir Ali Vs. Amman Ali and ors. 42 DLR (AD) 12.

Special rules of proof in criminal trial—
In a criminal that the prosecution is obliged to establish by evidence that the crime charged has been committed before seeking to prove that the accused on trial committed the crime.
Babul Vs. State 42 DLR (AD) 186.

Expunction of offending remarks—
The paragraphs containing offending observations and showing lack of judicial decorum are not, it is submitted, essential for maintaining the order cancelling the bail. Such paragraphs will be treated as expunged.
MA Wahab Vs. State 42 DLR (AD) 223.

Considerations in making an order of re—trial—Even in cases where retrial may be ordered, the court takes into consideration the aspects of delay, usefulness, harassment to the accused, etc. before passing an order for retrial.
Moslehuddin Vs. State 42 DLR (AD) 160.

It is only in a very rare case that a remand order (not like one as the present case), should be made for writing only a proper judgment. Single Bench of the High Court Division should have disposed of the appeal finally on making its independent findings pursuant to the appraisal of evidence made by it.
Moslehuddin Vs. State 42 DLR (AD) 160.

It was totally inexplicable why lessees should be examined when no case was made out by the prosecution that they were not available at trial forgiving evidence and not cited as witnesses in the charge—sheet. It was incumbent upon the Appellate Court below to dispose of the appeal on the basis of the existing evidence on record Order of remand for retrial will cause prejudice to the accused appellants which cannot be allowed.
Abdur Rahman Mondal Vs. State 43 DLR (AD) 16.

It has not been pleaded in the present case that there was want of evidence or any palpable defect n6r was there any plea to afford the prosecution a chance of curing any lapses. The offence alleged being a serious one the accused cannot be allowed to go scot free merely because of a mistake of the Judge in framing of charges invoking his jurisdiction for the trial. A fresh trial is ordered and should the appellant be found guilty in such trial the sentence he had already suffered should be taken into consideration while imposing sentence if any.
Mozammel Hoq Vs. State 42 DLR 527.

Superior Court Tradition—
Narrating facts of the case—Judges ale to digest the materials and summaries them in the judgment.
We record our strong disapproval of the manner in which the learned Judges of the High Court Division described the prosecution case in the two complaint cases. They have quoted in full the petitions of complaint in Bengali. The superior courts of this country have a tradition of narrating facts of the case in their own language, summarizing them as concisely as possible. Vernacular materials are translated into the language in which the judgment is written. Same is the case with the narration of FIR, Charge—Sheet, (where necessary) deposition of witnesses, etc the learned Judges are required to digest these materials and to summaries or paraphrase relevant and essential portions thereof in as short, succinct, concise and factual manner as possible Lest it develops into an infectious practice we like to nip this unhealthy trend in the bud.
Abdur Rahim Vs. Enamul Huq 43 DLR (AD) 173.

Examining a new question—
Apart from the question on which leave was granted, counsel for the appellant submitted that the allegations made in the FIR do not constitute any offence as alleged. Court did not like to examine this question while hearing the appeal.
Zakir Hossain Vs. State 43DLR (AD) 102.

Credibility of witness—
His disinterestedness, integrity and veracity—Court to look into surrounding circumstances as well as probabilities—Weight to be attached to the testimony of a witness depends on various considerations—Evidence should be in consonance with probabilities and consistent with the other evidence of the case to carry conviction of truth to a prudent mind.
Santosh Mia Vs. State 42 DLR 171.

—When a criminal Court is in seizin of the case against the detenu, the passing of order of detention is a colourable exercise of power.
Nabila Chowdhury Vs. Government of Bangladesh 41 DLR 345.

Fraud, when not taken into consideration—authorities accused of fraud and passing the impugned order have not been made parties in the Suit. Fraud cannot also be imputed to authorities exercising judicial function either as Court or as Tribunal.
Marida Begum Vs. Md. Hasan 43 DLR 242.

Judicial proceeding—
Court of first instance—Court’s duty to apply us judicial mind to the reflections made by the alleged defamatory statement vis-a-vis the exceptions under law. In a proceeding of this nature, initiated before the Court of  first instance, the court had  duty to apply its judicial mind to the reflections made by the alleged defamatory statement vis-a-vis the exception under the law and to find out whether those statements arc prima facie defamatory in nature or not before issue of the process. Nothing of this nature was done in the instant case by the learned Metropolitan Magistrate to apply his mind to the circumstances of the case as mentioned above, making his initial order of rejecting the complaint an illegality.
AY Mashiuzzaman Vs. Shah Alam & Ors 41 DLR 180.