Tafazzal Hossain @ Shajahan Vs. The State

Appellate Division Cases

(Criminal)

PARTIES

Tafazzal Hossain @ Shajahan……………..Appellant

-vs-

The State. ………………………………Respondent

JUSTICE

Md. Ruhul Amin. J

Abu Sayeed Ahammed . J

Md. Hamidul Haque. J

JUDGEMENT DATE: 1st July, 2003

The Arms Act (Law 11 of 1878) Sections 19 (a) and (f).

Prosecution in all examined 6 witnesses of whom P.W.I and P.W.3 are the official witnesses.

It is the prosecution case that 3 live cartridges were recovered from the pocket of

the jacket of the appellant. The fact of recovery of the ammunition has been proved by P.ws. 1,2 and 3. The only point that has been urged at the time of hearing of the appeal is that the sentence is too severe. In the background of the facts and circumstances of the case, to us it appears that submissions so made merits consideration ……………(7)

Accordingly, the appeal is dismissed upon reducing the sentence to the period already under gone. The appellant be set at liberty if not wanted in any other connection……………..(9)

Criminal Appeal No. 2 of 2002 (From the Judgment and Order dated February

23, 1997 passed by the High Court Division in Criminal Jail Appeal No. 2089 of 1992)

Farooq Ahmed, Advocate, instructed by Md. Nawab AH, Advocate-on-record…….For the Appellant

Ex-parte…………… For the Respondent

JUDGEMENT

1. Md. Ruhul Amin, J:– This appeal, by leave, has been directed against the judgment

and order dated February 23. 1997 of a Division Bench of the High Court Division in Criminal Jail Appeal No. 2089 of 1992 dismissing the same and thereby maintaining the judgment and order dated November 12, 1992 of the 4t h court of Additional Sessions Judge, Dhaka and Special Tribunal No.5, Dhaka, passed in Special Tribunal Case No. 559 of 1992 (arising from G.R. Case No. 452 of 1992, registered in connection with Mirpur RS. Case No. 58(2)/92) convicting the appellant and another under section 19 (a) and (f) of the Arms Act and sentencing them separately there under to suffer

imprisonment for life. The Special Tribunal by the same order directed that the sentences shall run concurrently.

2. It may be mentioned in the facts and circumstances of the prosecution case tried in the

special Tribunal, the Tribunal was in serious error in convicting and sentencing the appellant and another under section 19 (a) of the Arms Act since the facts brought on record for the indictment and trial of appellant and another there under did not disclose any offence of the kind said to have been committed by them.

3. Prosecution case, in short is that on February 16, 1992 on the basis of an information

sub-Inspector attached to the Detective Breach of Dhaka Metropolitan police along

with some other police personnel went to Taj Hotal at Mirpur and there appellant and his

companion were apprehended and on search one pipe gun concealed in the body of convict Amir Hossain and two cocktails concealed in the pocket of the jacket of the said convict were recovered and three live cartridges were found in the pocket of the jacket of the appellant. Thereupon a First Information Report was lodged by the Sub-Inspector attached to the Detective Branch of Dhaka Metropolitan Police. On completion of investigation, charge sheet was submitted recommending prosecution of the appellant and another. In due course the appellant and another were put on trial to answer the charges under Sections 19 (a) and (f) of the Arms Act. Accused Tafazzel Hossain alias Shahjahan pleaded innocent and claimed to be tried. The other accused, Amir Hossain, admitted his guilt but offered explanation that he was a Rickshaw puller and accused Tafazzel

Hossain handed over a packet to him and he kept the same under the seat of the Rickshaw

and while the police untied the packet then found their in arms. Prosecution in all examined 6 witnesses of whom P.W.I and P.W.3 are the official witnesses. The Tribunal upon placing reliance on the evidence on record convicted and sentenced the appellant and another in the manner as stated hereinbefore.

4. The appellant filed appeal from jail as against the judgment and order of the special

Tribunal, The appeal so filed was heard by a Division Bench in chamber and dismissed the same. The High Court Division upon placing reliance on the evidence on record, particularly on the evidence of p.W. 1, informant who along with the police personnel went to the Hotel and recovered the arms and ammunitions from possession of the appellant and another and P.W.3 police personnel attached to the Detective Branch of Dhaka Metropolitan police as well as on the evidence of P.W. 2 witness to be seizer

list, dismissed the appeal.

5. Leave, amongst other contentions, has been granted to consider the submission made

on behalf of the appellant that in the facts and circumstances of the case, sentence awarded i.e. imprisonment for life, is to severe.

6. At the time of hearing of the appeal, the learned Counsel for the appellant has made his

submissions on the question of severity of sentence.

7. It is the prosecution case that 3 live cartridges were recovered from the pocket of the

jacket of the appellant. The fact of recovery of the ammunition has been proved by P.ws. 1,2 and 3. The only point that has been urged at the time of hearing of the appeal is that the sentence is too severe. In the background of the facts and circumstances of the case, to us it appears that submissions so made merits consideration.

8. The appellant has been convicted on November 11, 1992 and it has been submitted

that since then he is in jail. The submission so made is not disputed from any corner. In the background of the facts it appears that the appellant by now has served out 10 years 7

months and 19 days. Section 19 A of the Arms Act provides sentence for offence under Section 19 (f) of the Arms Act imprisonment for life or rigorous imprisonment for a term which shall not be less then 10 years. It has already been mentioned that although appellant and the another have been tried and convicted under section 19 (a) and (f) of the Arms Act but no case was made out by the prosecution as to an offence under section 19 (a) of the Arms Act against the appellant. So, it comes to that the appellant has been convicted and sentenced under section 19 (f) of the Arms Act. In the background of the facts and circumstances of the case we are of the view as the appellant has already served out sentence for more then 10 and half years i.e he has served out sentence more than the minimum period of sentence as provided in section 19A of the Arms Act, ends of justice would best be met if the sentence of the appellant is reduced to the period already

undergone.

9. Accordingly, the appeal is dismissed upon reducing the sentence to the period

already under gone. The appellant be set at liberty if not wanted in any other connection.

Ed

Source: I ADC (2004), 268

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