Appellate Division Cases
(Criminal)
PARTIES
The State ……………… Appellant
-Vs-
Liaquat Hossain @ Liaqut ………………. Respondent
JUSTICES
Md. Ruhul Amin CJ
M. M. Ruhul Amin J
Md. Hassan Ameen J
Judgment Dated: 2nd August 2007
The Arms Act, Sections 19A and 19(f)
Abu Taher and others vs. Shrifa Begum and others reported in 15 BLD (1995) (AD) 91.
Allowing the appeal and setting aside the conviction and sentence of the accused-respondent and acquitting him of the charge under Section 19A and 19(f) of the Arms Act,1878. ………………..(1)
It appears that the learned Special Judge in consideration of evidence on record found the respondent guilty for the offence charged under Sections 19 (a) and 19(f) of the Arms Act and the learned Judges of the High Court Division though found that in presence of the official witnesses the incriminating articles were recovered from the control and custody of the respondent but erroneously acquitted him from the charge on the ground that the seizure list witnesses did not support the prosecution case inasmuch as they did not admit their presence at the time of alleged recovery of incriminating articles from the control and possession of the accused-respondent…………………… (10)
The aforesaid seizure list witnesses deposed on dock that the police took their signature on the seizure list by force but they did not take any legal action for the same. They admitted that they are members of Sabu jsangha Club and the accused-respondent is also a member of that club. So it is not unlikely that they (Pws.2. 3 and 4) being the seizure list witnesses will not support the prosecution case and the learned Judges of the High Court Division has failed to discard their evidence by any good reasoning……………………… (12)
The official witnesses (members of police force) such as Pws.l,5,7,8,10,13 and 14 are police personnel, corroborated each other about recovery of incriminating articles from control and possession of the accused-respondent and the learned Judges of the High Court Division failed to assign reason explanation as to why they deposed as such in view of the fact that they were never suggested that the accused-respondent had any enmity with them (police personnel) or that they deposed out of interest. In view of such facts and circumstances of the case, the findings of the High Court Division in the matter upon placing reliance on the Private witnesses (seizure list witnesses Pws.24) in our view deserves scrutiny in the contest of the position of the said witnesses. The Judges are competent to take judicial notice of the fact about the present condition of law and order situation in the country and as such it is not unlikely that the seizure list witnesses did not tell the truth for fear of their life…………………………….. (13)
Zahirul Haque Zahir; Deputy Attorney General, instructed by Sajjadul Huq, Advocate-on-Reeord ……………… For the Appellant
Respondent………………………… Ex-parte.
Criminal Appeal No.42 Of 2000
(From the judgment and order dated 20-061995 passed by the High Court Division in
Criminal Appeal No.2187 of 1993)
JUDGMENT
Md. Hassan Ameen J : This appeal is directed against the judgment and order dated 20-06-1995 passed by a Division Bench of the High Court Division in Criminal Appeal No.2187 of 1993 allowing the appeal and setting aside the conviction and sentence of the accused-respondent and acquitting him of the charge under Section 19A and 19(f) of the
Anns Act, 1878.
2. Prosecution case, in brief, is that on 0412-1991 at about 16 hours P.W. 18, S. B. Inspector, Saifur Rahman and P.W. 17 Inspector Aktaruzzaman went to Eskaton
Garden to trace the movement of respondent Md. Liaquat Hossain. an accused in Dr. Milan murder case and at about 17.05 hours they got secret information that respondent had been staying with arms in Sabujsangha Club at No.l Eskaton .Garden and thereafter they informed the higher authorities over the telephone for sending police force. After arrival of the police force the said Sabujsangha Club was cordoned. Thereafter, P.Ws. Saifur Rahman and Aktaruzzaman apprehended the respondent with a pistol bearing
No.9790 and recovered he same loaded with 7 round of bullets from him and prepared a seizure list in presence of seizure list witnesses and thereafter lodged the F.I.R. with Ramna Police Station whereupon Ramna P. S. Case No. 14 dated 0412-1991 was started.
3. Police submitted charge sheet after investigation under Sections 19A and 19(f) of the Anns Act since prima-facie case was made out against him,
4. The defence case is of innocence alleging, inter-alia, that no arms and ammunitions
were recovered from his possession and out of political enmity he has been falsely implicated in the case.
5. Under the aforesaid Sections of law the charge was framed and same was read over to the accused on dock to which he pleaded not guilty and demanded trial.
6. The prosecution examined 12 Pws. all of whom were cross examined by the defence. The defence however did not examine any witness.
7. The Special Tribunal by its judgment dated 23-10-1993 convicted the respondent under Section 19(a) and 19(f) read with Special Powers Act and sentenced him to suffer rigorous imprisonment of 10 (ten) years and to pay a fine of Tk.5000/in default, to suffer rigorous imprisonment for 1 (one) year more under Section 19(a) and also to suffer rigorous imprisonment for 7 (seven} years and to pay a fine of Tk.4000/-, in default, to suffer rigorous imprisonment for 6 (six) months under Section 19(0 °f the Arms Act, directing both the sentences to run concurrently.
8. Being aggrieved by the same, the appellant preferred Criminal Appeal No.2187 of 1993 before the High Court Division and the learned Judges of the High Court Division allowed the appeal Against the aforesaid judgment, the State filed the petition for leave to appeal and leave was granted by this Division.
9. Mr. Zahirul Haque Zahir, the learned Deputy Attorney General appearing for the appellant, submitted that the learned Judges of the High Court Division by misreading evidence on record and under misconception allowed the appeal and acquitted the respondent though a loaded unlicensed’ pistol was recovered from his possession. He further submitted that the High Court Division erred in law in acquitting the accused-respondent disregarding the evidence of so many police officers though there is no discrepancy in their evidence on material point.
10. It appears that the learned Special Judge in consideration of evidence on record found the respondent guilty for the offence charged under Sections 19 (a) and 19(f) of the Arms Act and the learned Judges of the High Court Division though found that in presence of the official witnesses the incriminating articles were recovered from the control and custody of the respondent but erroneously acquitted him from the charge on the ground that the seizure list witnesses did not support the prosecution case inasmuch as they did not admit their presence at the time of alleged recovery of incriminating articles from the
control and possession of the accused-respondent. He further submitted that the learned Judges of the High Court Division while reversing the judgment of the Tribunal failed to advert to the material findings made by it (Special Tribunal) on consideration of the evidence on record. In support of his argument, he referred to the decision in the case of Abu Taher and others vs. Sharifa Begum and others reported in 15 BLD (1995) (AD) 91. He also referred to a decision in the case of S. M. Kamal vs. the State reported in 6 BLC
(2001)113 wherein it has been held that Pw. 1 as informant lodged the FIR and while narrated the prosecution case on dock about said recovery of firearms there was no apparent falsehood in his evidence, which was corroborated by the official witnesses, who were the members of patrol party while other public seizure list witnesses did not support the prosecution case in spite of that there is no legal bar to Convict the appellant on the impeachable evidence of the police personnel, who carried out the raid. He then referred to a decision reported in 53. DLR (AD)1 wherein it has been held that the Judges
are competent of take judicial notice of the fact about the present condition of law and order situation in the country and as such it is not unlikely that a witness does not
hesitate to tell the truth for fear of life.
11. No one appeared on behalf of the respondent.
12. We have heard the learned Deputy Attorney General and perused the evidence on record with reference to impugned judgment passed by the High Court Division. It appears from the impugned judgment as well as the evidence of the Pws.2. 3 and 4 the seizure list witnesses, who are the members of public did not support the prosecution case so far it relates to recovery of incriminating articles from the control and possession in
their presence though they admitted their signature on the seizure list. The aforesaid seizure list witnesses deposed on dock that the police took their signature on the seizure list by force but they did not take any legal action for the same. They admitted that they are members of Sabujsangha Club and the accused-respondent is also a member of that club. So it is not unlikely that they (Pws.2.3 and 4) being the seizure list witnesses will not support the prosecution case and the learned Judges of the High Court Division has failed to discard their evidence by any good reasoning.
13. It appears that the prosecution examined 12 Pws. and tendered 5 Pws. who were cross-examined by the defence. Pws.2-4 are found to be seizure list witnesses deposed on dock to the effect that nothing was recovered in their presence and as a result prosecution declared them hostile and cross examined them where from it transpires that all of them including the accused-respondent are members of Sabujsangha Club and the learned
Judges of the High Court Division did not notice their interest in the matter. The official witnesses (members of police force) such as Pws.1,5,7,8,10,13 and 14 are police personnel, corroborated each other about recovery of. incriminating articles from control and possession of the accused-respondent and the learned Judges of the High Court Division failed to assign reason explanation as to why they deposed as such in view of the fact that they were never suggested that the accused-respondent had any enmity with
them (police personnel) or that they deposed out of interest. In view of such facts and circumstances of the case, the findings of the High Court Division in the matter upon placing reliance on the Private witnesses (seizure list witnesses Pws.2-4) in our view deserves scrutiny in the contest of the position of the said witnesses. The Judges are competent to take judicial notice of the fact about the present condition of law and order situation in the country and as such it is not unlikely that the seizure list witnesses did not tell the truth for fear of their life.
14. Regard being had to the above facts and circumstances of the case, we are constrained to hold that the High Court Division failed to consider the evidence on record in the context of present condition of the society inasmuch as the evidence of official witnesses as referred to above found to have proved the recovery of the arms in question from control and possession of the accused respondent in the context of admitted fact that the witnesses proved the recovery of incriminating articles from the control and possession
of the accused-respondent beyond reasonable doubt who are found to be independent/disinterest inasmuch as have got no enmity with the accused-respondent.
15. For the reason stated above, we are constrained to hold that the impugned judgment is not sustainable in law and accordingly the appeal is allowed. The judgment and order of the High Court Division is set aside and the judgment and order of the Special Tribunal is restored.
16. The accused-respondent is directed to surrender before the Deputy Commissioner, Dhaka within 30 days of receipt of the notice to serve out the remaining sentences, if any, failing which the Deputy Commissioner, Dhaka shall secure his arrest as per law.
Source : V ADC (2008),446