occurrence i.e. Burirtek 5 times, but nobody’s statement was recorded albeit he met with Chair-man, Dafadar, school teachers and many other inhabitants of nearby place of occurrence and as per his sketch map there are many institutions in an around the so-called place of occurrence i.e. Burirtek of Kabirpur. He categorically admitted that he did not see the wearing apparels, specta-cles, shoes of the deceased and he never prepared any seizure list either at the place of occurrence or in the medical college hospital during his investin-gation. He visited the house of the deceased several times, but he did not record any statement of any witness which he has admit-ed in his cross examination. He went to Vowal-Mirzapur but he admitted in his cross examination that, ÒAvgvi Z`šÍKv‡j fvIqvj wgR©vcyi evmó¨vÛ Ges fvIqvj wgR©vcyi †_‡K evnv`yicyi n‡q kvóvi evox hvevi moK c‡_i KvBRvjyb ¯‹zj, Rqbvj evRvi, evwjqvevB` eªxR, myjZvbv †W‡Kv‡iUi mn †Kvb ¯’v‡bi gvbwPÎ I m~Px cÖ¯‘Z Kwi bvB|
Avgvi Z`šÍKv‡j myjZvbv †W‡Kv‡iUi bvgxq ¯’v‡b ev †jvKv‡j Avwg hvB bvB| myjZvbv †W‡Kv‡iUi †Kv_vq Avgvi Z`‡šÍ Avwg cvB bvB| (underlining is made by me).
Avgvi Z`šÍKv‡j Rq‡`ecyi †PŠiv¯Ív n‡q gvóvi evox w`‡q Qz‡K evnv`yicyi w`‡q fvIqvj wgR©vcyi evRvi ch©šÍ wM‡qwQ wKbv ¯§ib bvB| Ó
- 2. He further stated that on 3.3.1999 at about 18.25 hours he arrested Ansar Ali from in front of decorator shop of Mazahar of Bahadurpur and after seeing them he did not try to flee away to escape from arrest. He arrested Ansar Ali within jurisdiction of Joydebpur police station but he admitted that he did not make any G.D.E with Joydebpur Police station. He did not record any statement of Ansar Ali under Section 161 of the Code of Criminal Procedure. He denied the suggestion that Ansar Ali was tortured in the police station. He admitted in his cross examinat-ion that he did not get any number of Microbus or did not trace any Microbus. He candidly admitted in his cross examination that, ÒAvwg †h mv¶x‡`i Revbe›`x †iKW© Kwi Zviv †KDB e‡jb bvB †h, Avmvgx ie †`Iqvb, kvgmy †`Iqvb, RvwKi wgTv, Ry‡qj I Ab¨vb¨iv k¦vliæ× K‡i evw`bxi ¯^vgx wbnZ bvCg EwÏb‡K myjZvbv †W‡Kv‡iU‡i nZ¨v K‡i| D‡jøwLZ ¯^vÿxMY †KDB Revbe›`x cÖ`vbKv‡j Avgvi Kv‡Q e‡jb bvB †h, evw`bxi ¯^vgxi jvk Kweicy‡ii eywoi †U‡Ki KvPv iv¯Ívi cv‡k¦© Avmvgxiv wb‡q †d‡j iv‡L|
wbnZ bvCg DwÏb ev Zvi fvB mv‡bvqvi †nv‡m‡bi †Kvb gUi mvB‡K‡ji KvMRcÎ Rã Kwi bvB|
‡gvKÏgv i“Ryi c~‡e© evw`bx mvfvi _vbvq †gvKÏgv iæRy Ki‡Z hvq, wKš‘ mvfvi _vbv †Kvb gvgjv †bq bvB, GB wem‡q Avgvi Rvbv †bB| 17-2-1999 Bs Zvwi‡Li c~‡e© evw`bx Zvi ¯^vgxi g„Zz¨ msµvš— †gvKÏgv i“Ry Ki‡Z mvfvi hvq wKbv Avgvi Rvbv †bB| Avgvi Rvbv †bB †h, wZwb †gvKÏgv iæRy Ki‡Z wM‡qwQ‡jb wKš‘ mvfvi _vbv KZ©„c¶ †gvKÏgv †bq bvB|Ó
- 3. PW. 12Md. Safaruzzaman, Assistant Superintendent of Police, C.I.D. lastly took up the investigation on 24.02.2001. He perused the case diary and visited the place of occurrence. As per him he located 2 places of occurrence, one is Decorator shop of Bahadurpur where the deceased was killed and another is the place where the dead body of deceased was left by the miscreants and seized alamats including the necessary papers of motor cycle. During his investigation he came to know that there was enmity in between the deceased and accused persons and submitted charge sheet. He added only one witness namely Mayeen Uddin, who was not examined in this case.
- 4. P.W. 13 Abu HenaMd. Yusuf, Inspector, CID Dhaka took up the investigation on 20.5.1999 and he prepared sketch map and its index and examined witnesses and recorded their statements and visited the place of occurrence as per the statement of Ansar Ali. In cross examination he stated that nothing is mentioned in the statement of Ansar Ali that murder was committed or anybody murdered the deceased. He did not prepare any sketch map of the place of where Nayeem Uddin was taken. He further admitted in cross examina-tion that, ÒAvmvgxMb I wbnZ bvCg DwÏ‡bi g‡a¨ †Kvb we‡iva wQj Zr ¯^c‡ÿ †Kvb `wjj I KvMR cÎ Avwg Rã Kwi bvB|Ó He denied the defence suggestion that Ansar Ali was taken on remand although the court directed him to interrogate Ansar Ali with caution. But he made physical torture on Ansar Ali, as a result the learned Magistrate asked him to show cause by his order dated 3.6.1999.
- 5. On the other hand defence examined one Md. Akbar Ali as defence witness, who tried to say that Abdur Rouf Dewan went to his village for seeking vote as he was a candidate for guardian representative in the School Managing Committee Election. He was cross examined by the prosecution.
- 6. These are the evidences of both the sides in this case.
- 7. We have perused the F.I.R. charge sheet, impugned judgment and the sketch map, seizure list and the statement of Ansar Ali recorded under Section 164 of the Code of Criminal Procedure.
- 8. At first we propose to discuss about the delay in lodging of the F.I.R. The cause of delay in lodging the F.I.R. is not at all explained in the F.I.R. or in the deposition of P.W. 1. Here it may be noted that the informant herself is a police official and married lady and it has already been pointed out that before lodging of the F.I.R. She went to the concerned police station several times and met the investigating officer for several times and admittedly none prevented her to lodge the F.I.R., but alter lapse of about 1 5/ 16 days he lodged the F.I.R. suspecting some persons without making any specific complain or allegation against them. Rather a vague allegation has been made that there was enmity in between the deceased and the accused persons which cannot be treated as a authentic ground for causing such inordinate delay in lodging the F.I.R. It is well settled that in various decisions of ourApex Court that delay in lodging the F.I.R. gives opportunity to the prosecution for making embellishment and false implications. Further the P.W. 11, the investiga-ting officer admitted in cross examination that before lodging of the F.I.R. he carried on investigation on the basis of a G.D. Entry. It is also settled that if any KI.R. is made in course of investigation that F.I.R. is not an F.J.R. at all which can at best be treated as statement of witness under Section 161 of the Code of Criminal Procedure and it is not admissible in evidence.
- 9. Further in this case as per the learned Deputy Attorney General there is no eye witness of the occurrence and it is solely based on circumstantial evidence. Th‘e learned Deputy Attorney General referred a decision reported in 16 DLR, 161 regarding last seen. We have perused the aforesaid reported case and found it difficult to accept the submission that the deceased was last seen with the accused persons by witness Nos. 2 and 4. The fact of the reported case and the fact of the present case are quite distinguishable and further the circumstances which the aforesaid two witnesses disclosed in their evidence in this ease do not create any credence that they have seen the deceased with accused persons at about 8.00 am to 8.30 a.m that is accused Rouf Dewan, Hakim Dewan and deceased Naymuddin were standing with a Motorcycle by the side of the Balia Baid Road inasmuch as P.W. 2 staled that he has seen a Microbus which was standing at their right side with 5/7 persons, but nobody could give the number of Microbus or as per P. W. 4 the place is densely populated and there is Bus stand and a big Bazar nearby the place from where he saw his brother-in-law to go away alone by a Motor Cycle which is at a considerable distance from the place he claimed to have seen his brother-in-law and it is not a case that the accused persons have followed him with Microbus and abducted him, so the aforesaid reported case will not help the prosecution at all.
- 10. The learned Judge of the trial court mainly relied on so-called confessional statement of accused Ansar Ali as basis of conviction.
- 11. We have perused the statement of Ansar Ali which was marked as Ext. 5. We propose to reproduce his statement for ready reference which is as follows:-
AvbQvi Avjx Gi †dŠR`vix Kvh©wewa 164 aviv g‡Z Revbe›`xt
Avgvi bvgt AvbQvi Avjx, wcZvt jvj kixd Xvjx, MÖvg-Pv›Uv, _vbv-bwoqv, †Rjv-kwiqZcyi, eZ©gv‡b evnv`yi cyi, _vbvt Rq‡`ecyi, †Rjvt MvwRcyi, eqmt 50|
Avwg evnv`yicyi MÖv‡g †gvRnviæj n‡Ki RvqMvq _vwK Ges †W‡Kv‡iU‡ii †`vKvb PvjvB| gvwjKB †W‡Kv‡iUi w`‡q‡Q †mUvi Avq w`‡q Rxeb avib Kwi| gvm `yB GK Av‡Mi NUbv w`b Abyt 10.00 Uvi w`‡K 5/6 Rb gvbyl fwZ© mv`v gvB‡µvevm Avgvi †W‡Kv‡iU‡ii †`vK‡bi mvg‡b G‡m `vovq| Zv‡`i g‡a¨ K‡qKRb wKfv‡e Xz‡K e‡j kvUviwU †d‡j †`| Avwg f‡q kvUvi †d‡j †`B Ges evwn‡i `vovBqv _vwK| wfZ‡i Xz‡K GKRb‡K gviai K‡i| Avwg wPrKvi ïwb| 15/20 wgt Zviv wQj, Zviv Avevi wPrKvi w`‡q kvUvi Lyj‡Z e‡j| evwn‡i Zv‡`i Av‡iKRb wQj †m ZLb kvUvi †Lv‡j †`q Avwg mvnvh¨ Kwi| GKRb †jvK‡K Zviv aivawi K‡i gvB‡µv‡Z DVvq †es Mvox PvjvBqv P‡j hvq| Avwg Avt iDd‡K wPwb| Ab¨ KvD‡K wPwb bv| †`v‡b NUbvi K‡qKw`b Av‡M Avi‡Q GB myev‡` wPwb| Zvici Zviv mevB P‡j hvq| f‡q Avwg KvD‡K NUbv ewjwb| GB Avgvi e³e¨|
- 12. In the aforesaid statement Ansar Ali neither implicated himself in the commission of crime nor he implicated himself as abettor of the offence nor he stated that the deceased was killed inside the so-called decorator. Further it has been clearly stated by the learned Magistrate that Ansar Ali declined to make a confession under Section 164 of the Code of Criminal Procedure although he was forwarded for doing so, but he agreed to give some information about the occurrence and his statement was recorded on a white paper like other witnesses who made statement before him on the same date. It is curious to us that how the investigating officer or the prosecution treated this Ansar Ali as accused and how implicated him in the charge sheet, as accused and why the Magistrate considered him as witness? On the other hand the learned Magistrate also forgotten that he was asked to record his statement as an accused by another Magistrate, but he declined to make any confessional statement. It was the duty of the Magistrate to send him to custody without recording his statement as a witness. He has ex-ceded his own jurisdiction and he has played the part of the police officer in recording the statement for which he was not instructed. In this regard the learned Judge of Tribunal referred to a decision of the case of Golam Mohammad Khan Vs. King Emperor, reported in 54 CWN, 464 (PC). But just going through the head note, the learned Judge arrived at a decision that the aforesaid decision is applicable in this case, forgetting that in the body of the judgment it has been held that if the statement recorded following section 164 and 364 of the Code of Criminal Procedure then only the same is admissible in evidence and as such this so-called statement of Ansar Ali is not admissible in evidence inasmuch as it is difficult to ascertain as to whether it was recorded treating him as an accused or a witness and as such is not admissible in eviden-ce, as suggested in the aforesaid case.
- 13. He has referred another decision which is related to Civil Case and thus it has no manner of application in the present case.
- 14. The aforesaid act is not expected from a responsible Judge of Druto Bichar Tribunal. He has wrongly amalgamated the terms of admission and confession. Where the question is unsettled, whether the statement of Ansar Ali was recorded as a witness or an accused, even then the learned Judge based his judgment on the so-called statement of Ansar Ali treating it as confession of an accused.
- 15. We are constrained to hold that the learned Judge having power to inflict even death sentence upon a person should have sound knowledge in law.
- 16. It may be mentioned here that it has been well settled by the Apex Courts of this Sub-Continent that an accused can not be convicted on the sole basis of a confession made by co-accused unless it has got corroboration from independent source. In this ease the so-called statement of Ansar Ali is not confession at all, rather it is a statement of witness as admitted by recording Magistrate but he was shown in the column of accused as a result the convict accused persons did not get any scope to cross-examine him.
- 17. We have given our anxious thought over the whole prosecution case, but we are surprised to note that the police personnel’s have conducted a perfunctory investigation and submitted a belated charge sheet under Section 302/201/34 of the Penal Code and the learned Judge of the Druto Bichar Tribunal conducted the trial and arrived at a decision to inflict death sentence to one of the accused persons without proper appreciation of evidence on record in its true perspective.
- 18. Belated examination of witness: The delayed examination of witnesses by the Investigating officer afforded an opportunity of concoction and it makes testimony of the witness unreliable .
- 19. In this connection reference may be made to the case of the Sate Vs. Paran Chandro Baroi: Reported in 2 B.C.R. -292: Relevant Para-12-14: Where it has been held:
“‘ In this connection the power given to the Police officer under Section 175(1) of the Code of Criminal Procedure cannot be over looked. No reason has been given by the prosecution for the delayed examination of these two witnesses. They were examined by the I.O. after 4 days of the occurrence. The delay in examining them has not been explained. The delay in examining P.Ws. 4 and 5 in the circumstance of the case appears to be unjustified. In the facts and circumstances of the case I am of the opinion that it would not be safe to rely or the testimony of P.Ws. 4 and 5.
- 20. Further reference may be made to 25 BCR (HC)—216: Kazi Mahbubuddin Ahamed Vs. the State.
Held: “Unusual delay cannot be caused in the matter of noting down statement of a person/witness and mandate of law demands immediate recording statements when memory of witness remain fresh as human memory is always fleeting. Benefit of doubt arising out of the unusual delay of examining and noting down statements would got to accused.”
- 21. On perusal of the ease Diary it appears that the Investigating Officers examined the witnesses on the dates mentioned against their names:
A. Rashim ——– examined on 15.3.1999
Osman Gani ” ” on 15.3.1999
Abdur Rob ” ” —— 29.7.1999
Moksed Ali ” “—-29.7.1999
Md. Mainuddin ” “—12.9.2002
Sunwar Hossain ” “-—29.12.2001
SagorHossain ” “— 11.8.2002
Anwar Hossain “ “ — 8.10.2002
MunnuMia ” ” —8.9.2002
- 22. The above chart shows that the prosecution witnesses were examined at a belated stage without any explanation and as result their testim-ony became untrustworthy and unreliable. Ther-efore, no convic-tion can be recorded relying on their testimonies and thus from the above facts this case can safely be considered as a case of evidence.
- 23. We off and on hear through Media that police by exercising their prudence and after facing long trouble used to catch the criminals, but they used to get bail, even acquittal from this court and the general people of this country has been loosing their confidence upon the judiciary believing the aforesaid statements, specially made by the police department. But considering the present case we arc surprised to note that one of the police personnel was murdered and another police personnel is the informant in this case and at the same time a High Ranking Police Officer is a relation of the deceased and a perfunctory investigation was conducted consuming long time and changing Investigating Officers one after another, involved the accused persons without having any materials in the whole case records, but arranged to get the accused person convicted and one of them was sentenced to death. It is really shocking to us that the police officers who diverted the case by fabricating the facts for facilitating awarding of conviction towards the so-called enemies of a police officials are kept above law!
- 24. We also find that charge does not contain any essential materials to give proper notice to the accused persons as to what offence they have committed and thus it has caused prejudice to them.
- 25. We have given our anxious thought over the whole matters and hold that if we allow the reference and allow the execution of the death penalty, it will be treated as a “judicial murder”. So we are not inclined to commit such murder sitting on the high altar of judiciary.
- 26. In the result, the reference is rejected and the criminal appeals including the jail appeal are allowed.
- 27. Let an advance order be sent to the concerned court and the concerned jail authority to release the condemned prisoner forthwith, if not wanted in connection with any other case. Other convict appellants be discharged from their bail bond.
- 28. Send down lower courts record forthwith.
Let a copy of this judgment be forwarded to the Inspector General of Police with an expectation that he will look into the matter so that general people do not suffer, as those have been done in the present case, making favor to a police family.