Appellate Division Cases
The State……………………………………… Petitioner
Md. Ruhul Amin J
K. M. Hasan J
Syed J. R.Mudassir Husain J
JUDGEMENT DATED : 13 May 2002
The Arms Act, Section 19(A).
The Code of Criminal Procedure (V of 1898), Section 164.
The learned Counsel next argued that in view of the proper discussion and assessment of the evidence on record it is found that confessional statement of the respondent under section 164 of the code of Criminal Procedure was corroborated by independent witness and also by documentary evidence and further by circumstantial evidence and as such the conviction and sentence as passed by the Special Tribunal is valid in law, but the learned Appellate Court illegally set aside the judgment of the Tribunal causing failure of justice (8)
Abdur Razzak Khan, Additional Attorney General instructed by Md. Ahsan Ullah Patwary Advocate-on-Record For the Petitioner
Not Represented Respondent
Criminal Petition For Leave to Appeal No. 15 of 2001.
(From the Judgment and Order dated 20-1-2000 passed by the High Court Division in Criminal Appeal No. 680 of 1994)
1. Syed J. R. Mudassir Husain J: – The State, the leave petitioner is seeking leave to appeal against the judgment and order dated 20-1-2000 passed by a Division Bench of the High Court Division in Criminal Appeal No. 680 of 1994 allowing the same Upon setting aside the order of the Assistant Judge and Special Tribunal, Shariatpur Convicting the accused respondent for the offence punishable under section 19(A) of the Arms Act and sentencing him to suffer rigorous imprisonment for 14 ( fourteen) years and also the pay a fine of TK. 10,00/- (ten thousand) in default to suffer for l(one) year more in Special Tribunal Case No. 18 of 1993.
2. The facts leading to the filing of this petition are that PW. 1 kazi Abdur Rouf, officer in charge, Dhamodya Police Station District Shariatpur lodged an ejhar with the said Police Station alleging that on 11-1-93 at about 09.00 A. M. one Monowar Hossain Bepari was proceeding towards Damodya from Bhedorganj on his way to Banoripara by rickshaw of one Babul Bepari; when he reached near the house of one Hasan AH Mutbar then three accused persons stopped . the rickshaw and one of them struck Monowar Hossain Bepari on his neck with the butt of a revolover and placing the revolver on his chest forcibly snatched away a hand bag containing TK. 38,00/clothes and a citizen calculator, the other accused snatched away a gold chain worth TK. 7000/- from said Monowar and ran away thereform. On the alarm raised by the said victim people came from nearby and chased the accused and caught hold the accused respondent red-handed with a revolver along with the said bag. The other accused escaped. The local people then informed the police at the Police Station and the informant with his force arrived on the spot and the people handed over the accused respondent to the police along with the revolver and black reksin bag containing the said amount of money and other valuable articles therein.
3. The informant, arrested the accused respondent, seized alamats by preparing seizure list in presence of witnesses and thereafter lodged the aforesaid FIR on his return to the Police Station. Accordingly, Damodya Police Station Case no. 6 dated 11-1-93 was started.
4. Police after investigation submitted charge sheet against the accused respondent under Section 19(A) of the Arms Act read with Special Power Act 1974. The case record was sent to the Special Tribunal No. 1 Shariatpur and cognizance of the offence was taken and framed charge under section 19(A) of the Arms Act against the accused respondent, the same was read over to him and to which he pleaded not guilty and demanded trial.
5. The Tribunal upon consideration of materials on record found the accused respondent guilty of the offence punishable under section 19(A) of the Arms Act and convicted and sentenced him there under as aforesaid.
6. Against the aforesaid order of conviction and sentence the accused respondent preferred appeal before the High Court Division and the Division Bench of the High Court Division allowed the same and acquitted the accused respondent of the charge leveled against him. Hence this leave petition.
7. Mr. Abdur Razzak Khan the learned Additional Attorney General appearing on behalf of the petitioner firstly contended that the Tribunal upon proper consideration of materials on record found the accused respondent guilty of the offence punishable under section 19(A) of the Arms Act but the High Court Division without adverting to the findings and decisions of the trial court illegally held that the accused respondent is not guilty of the charge leveled against him.
8. The learned Counsel next argued that in view of the proper discussion and assessment of the evidence on record it is found that confessional statement of the respondent under section 164 of the code of Criminal Procedure was corroborated by independent witness and also by documentary evidence and further by circumstantial evidence and as such the conviction and sentence as passed by the Special Tribunal is valid in law, but the learned Appellate Court illegally set aside the judgment of the Tribunal causing failure of justice.
9. It is further contended by the learned Counsel that the learned Judges of the High Court Division, in acquitting the accused-respondent, did not take into consideration the positive evidence of P.W. No. 5 an eyewitness and seizure list witness to recovery of seized revolver, who identified the material exhibit and also identified the accused on dock. Such non-consideration of material evidence is an illegality resulting in miscarriage of justice.
10. The points raised merit consideraion.
11. Leave is accordingly granted upon condonation of delay. The Petitioner is permitted to prepare the paper book out of court in accordance with Rules.
12. Let the accused respondent Nurul Islam Kabiraj @ Nuru Mohammad @ Nuru son of Futesh Ali kabiraj of village Putia, Police Station Bhedergonj, District, Shariatpur be arrested immediately and then enlarged on bail to the satisfaction of the Deputy Commissioner Concerned.
Source : III ADC(2006), 177.