Akbar Ali Lalu alias Roni Vs. The State [4 LNJ (2015) 278]

Case No: Criminal Appeal No. 251 of 2013

Judge: Moyeenul Islam Chowdhury,

Court: High Court Division,,

Advocate: Khandaker Mahbuhuddin Ahmed,Mahbubey Alam,Mrs. Nasrin Khandaker,Mr. Yusuf Hossain Humayun,Mrs. Mahmuda Khatun,,

Citation: 4 LNJ (2015) 278

Case Year: 2015

Appellant: Akbar Ali Lalu alias Roni

Respondent: The State

Subject: Circumstantial Evidence, Confessional Statement,

Delivery Date: 2013-11-18

HIGH COURT DIVISION
(CRIMINAL APPELLATE JURISDICTION)
 
Moyeenul Islam Chowdhury, J,
And
Kazi Md. Ejarul Haque Akondo, J.

 
Judgment on
14.11.2013,
17.11.2013
and
18.11.2013.
  Akbar Ali Lalu alias Roni
….Appellant
-Versus-
The State ….Respondent.
-And-
Saiful Islam alias Mamun and others
…Appellants
-Versus-
The State….Respondent.
-And-
Md. Rafiqul Islam alias Khokon
…Appellant
-Versus-
The State….Respondent.
-And-
Saiful Islam alias Mamun
…Appellant
-Versus-
The State….Respondent.
-And-
Md. Al Amin
…Appellant
-Versus-
The State….Respondent.
-And-
Akbar Ali Lalu alias Roni
…Appellant
-Versus-
The State….Respondent.
-And-
The State…..Petitioner
-Versus-
Saiful Islam alias Mamun and others
...Condemned-accused.
 
 
Evidence Act (I of 1872)
Sections 3 and 30
The confessional statement of a co-accused is admissible against other accused persons in the sense that it may be taken into consideration against them along with other evidence. But for this Section 30, the confessional statement of one accused will be inadmissible in evidence against another accused in view of Section 3 of the Evidence Act. . . . (156)

Evidence Act (I of 1872)
Section 8
It is well-settled that when a case rests on circumstantial evidence, such evidence must satisfy three tests. In the first place, the circumstances from which an inference of guilt is sought to be drawn must be firmly established by unimpeachable evidence; secondly, the circumstances are of a determinative tendency unerringly pointing towards the guilt of the accused; and thirdly, the circumstances taken cumulatively are incapable of explanation of any reasonable hypothesis save and except that of the guilt sought to be proved against the accused. The circumstances should form a chain so complete that there is no escape from the probability that the crime was committed by the accused and no one else. . . . (182)

Evidence Act (I of 1872)
Section 8
A conviction on circumstantial evidence can not be based unless and until all the inferences to be drawn from the whole history of the case point so strongly to the commission of the crime by the accused that the defence version appears on the face of it impossible or highly improbable. . . . (183)

Code of Criminal Procedure (V of 1898)
Section 103
The non-finding of any blood-stain at the place of occurrence and the non-seizure of any wet earth or sand there from, in our estimation, do not render the prosecution case doubtful.         . . . (192)

Evidence Act (I of 1872)
Sections 3 and 8
It is true that immediately after the occurrence, the accused Selim absconded and has been on the run as of now. This long unexplained abscondence of the accused Selim is, no doubt, a relevant fact under Section 8 of the Evidence Act and favours the prosecution pointing a finger at his alleged guilt, though abscondence by itself is not conclusive of one’s guilt. This unexplained abscondence of the accused Selim, in our view, is a supporting circumstance which must be considered along with the substantive evidence on record, if any, forthcoming against the accused Selim. The implication of the accused Selim in the commission of the offence in the confessions of the two co-accused, namely, Al Amin and Lalu, it is well-settled, is not a piece of substantive evidence within the meaning of Section 3 of the Evidence Act. . . . (199)

Code of Criminal Procedure (V of 1898)
Section 396
As there are three options in respect of awarding of sentence in Section 396 of the Penal Code, it lies at the discretion of the Court to award an appropriate sentence to each of the accused, regard being had to his individual culpability and role in the commission of the offence, though dacoity is a conjoint offence. The measure of punishment in a given case must depend upon the atrocity of the crime; the conduct of the criminal and the defenceless and unprotected state of the victim. Imposition of appropriate punishment is the manner in which the Court responds to the society’s cry for justice against the criminals. Justice demands that the Court should impose punishment befitting the crime so that the Court reflects public abhorrence of the crime. The Court must not only keep in view the rights of the criminal, but also the rights of the victim of the crime and the society at large while considering imposition of appropriate punishment.  . . . (201)

Code of Criminal Procedure (V of 1898)
Section 396
It is axiomatic that in the criminal justice delivery system, sentencing is the cutting-edge of the judicial process. In sentencing any accused, aggravating factors cannot be ignored and similarly mitigating circumstances have also to be taken into consideration.               . . . (202)

Habibur Rahman @ Habib Vs. The State, 8 BLD (HCD) 210; Abul Hossain and others Vs. The State, 13 BLD (HCD) 311; Nurul Haque and another Vs. The State, 20 DLR (HCD) 780; 1986 (BLD) 436 (Ali Asgar and another Vs. The State) the State Vs. Punardhar Joydhar alias Kudu and Shefali, 31 DLR (HCD) 312; Hazrat Ali and another Vs. The State, 1990 BLD (HCD) 38; Bakul Chandra Sarkar Vs. The State, 45 DLR (HCD) 260, Bhuboni Sahu Vs. The King, 76 Indian Appeals, 147, Emran Ali @ Md. Emran & others Vs. The State, 37 DLR (HCD) 1; Amir Hossain Howlader & others Vs. The State, 37 DLR (AD) 139; Rezaul Karim (Md) Vs. The State, 55 DLR (HCD) 382; The State Vs. Abul Khair and others, 44 DLR (HCD) 284, The State Vs. Mir Hossain @ Mira and others, 56 DLR (HCD) 124; Joygun Bibi Vs. The State, 12 DLR (SC) 156; Khalil Mia (condemned-prisoner) Vs. The State, 4 BLC (AD) 223; Md. Rezaul Karim alias Rezaul Aalm Rikshawala Vs. The State, 23 BLD (HCD) 255; Md. Akbar Ali Vs. The State, 19 BLD (HCD) 268; Alaluddin alias Alauddin and others Vs. The State, 49 DLR (HCD) 66; Md. Luqman Vs. The State, 21 DLR (SC) 461, 19 BLD (HCD) 268; Kashmira Singh Vs. The State of Madhya Pradesh, AIR 1952 SC 474; Moqbul Hossain Vs. The State, 12 DLR SC 217; The State Vs. Md. Gaush Meah alias Rana and others, 10 BLC (HCD) 74; The State Vs. Moslem, 55 DLR (HCD) 116; Madan Gopal Kakkad Vs. Naval Dubey and another, 3 SCC (1992) 204; Emperor Vs. Nga Tha Hmwe and others, AIR 1935, Rangoon 504 and Madan Gopal Kakkad Vs. Naval Dubey and another, 3 SCC (1992) 204 (supra) ref.
 
Mr. Khandker Mahbub Hossain with
Mr. M. Masud Rana,
Mr. Md. Hadayet,
Mrs. Kamrun Nahar (Shima) and
Mrs. Nasrin Khandaker, Advocates
…For the condemned-appellant in Criminal Appeal No. 251 of 2013.

Mr. Yusuf Hossain Humayun with
Mr. Md. Saiful Islam Khandker, Advocates
...For the condemned-appellants in Criminal Appeal No. 273 of 2013.

Mr. Md. Aminur Rashid (Razu), Advocate appointed by the National Legal Aid Services Organization, Dhaka, Bangladesh.
...For the condemned-appellants in Jail Appeal Nos. 07 of 2013 and 09 of 2013.

Mr. Md. Khabir Uddin Bhuiyan, Advocate appointed by the National Legal Aid Services Organization, Dhaka, Bangladesh.
...For the condemned-appellants in Jail Appeal Nos. 08 of 2013 and 10 of 2013.

Mrs. Mahmuda Khatun, State Defence Advocate 
...For the absconding condemned-accused Md. Selim Chowdhury alias Selim Ahmed in Death Reference No. 02 of 2013.

Mr. Mahbubey Alam, Attorney-General with
Mr. Md. Khurshedul Alam, DAG,
Mrs. Mahmuda Parveen, AAG and
Mr. Md. Abdul Bari, AAG
...For the State in Criminal Appeal Nos. 251 of 2013 and 273 of 2013 and Jail Appeal Nos. 07 of 2013, 08 of 2013, 09 of 2013 and 10 of 2013 and Death Reference No. 02 of 2013.
 
Criminal Appeal No. 251 of 2013  with
Criminal Appeal No. 273 of 2013 with
Jail Appeal No. 07 of 2013 with
Jail Appeal No. 08 of 2013 with
Jail Appeal No. 09 of 2013 with
Jail Appeal No. 10 of 2013 and
Death Reference No. 02 of 2013


JUDGMENT
Moyeenul Islam Chowdhury, J:

The Criminal Appeal Nos. 251 of 2013 and 273 of 2013 and the Jail Appeal Nos. 07 of 2013, 08 of 2013, 09 of 2013 and 10 of 2013, at the instance of the condemned-prisoners, are directed against the judgment and order of conviction and sentence dated 30.12.2012 passed by the Judge of the Druto Bichar Tribunal No. 4, Dhaka in Druto Bichar Tribunal Case No. 18 of 2012 arising out of G. R. Case No. 156 of 2012 corresponding to Gulshan Police Station Case No. 15 dated 07.03.2012. By the impugned judgment and order, the learned Tribunal Judge convicted the accused-appellants and the co-accused Md. Selim Chowdhury under Section 396 of the Penal Code, 1860 and sentenced each of them thereunder to death. The learned Tribunal Judge also made a Reference to the High Court Division under Section 374 of the Code of Criminal Procedure for confirmation of the death sentence imposed upon them.

All the appeals and the Death Reference have been heard together and are disposed of by this consolidated judgment.

The prosecution version of the case, in short, is as follows:
One Mr. Khalaf Mohammed S. Al Ali, Head of Saudi Citizens’ Affairs, The Royal Embassy of Saudi Arabia, Dhaka, Bangladesh went for a nocturnal walk in the late hours of 05.03.2012 and while he was on the nocturnal walk at 01.00 A.M. on 06.03.2012 in the vicinity of his rented flat in Gulshan, the accused Saiful Islam alias Mamun, Md. Al Amin, Akbar Ali Lalu alias Roni, Md. Rafiqul Islam alias Khokon and Md. Selim Chowdhury alias Selim Ahmed came to the northern side of Road No. 120 which is on the southern side of House No. 19/B, Road No. 117, Gulshan Police Station, DMP, Dhaka by a car bearing registration no. Dhaka Metro-Ga-12-9688 and encircled the Saudi diplomat Khalaf. At one stage, the accused attempted to commit dacoity and to that end, some of them started grappling with Khalaf. Finding no valuables in the possession of Khalaf, the accused Saiful Islam fired a shot on Khalaf with a .22 calibre 8-chamber revolver bearing No. 1616819-ARMINIUS-Made in Germany. As a result of the revolver shot, Khalaf fell down on the drain-slab on the northern side of Road No. 120, Gulshan-2. Thereafter he was whisked away to the near-by United Hospital wherein he succumbed to his injury. Eventually the informant Sub-Inspector Md. Mosharraf Hossain of Gulshan Police Station lodged a First Information Report (FIR) therewith. In this connection, it may be noted that at the time of lodgment of the FIR, the names of the accused did not transpire. Anyway, during the investigation of the case, their names transpired and excepting Selim Chowdhury, all the remaining four accused were tracked down by the police and two of them, namely, Md. Al Amin and Akbar Ali Lalu made judicial confessions under Section 164 of the Code of Criminal Procedure making a clean breast of the whole incident.

The Investigating Officers of the case are the P. W. 31 Inspector Md. Nure Azam Miah, P. W. 32 Inspector Md. Azizul Haque and P. W. 33 Assistant Commissioner Md. Obaidul Haque. They investigated the case by visiting the place of occurrence. During the investigation of the case, a sketch-map of the place of occurrence along with a separate index was made, witnesses were examined and their statements were recorded under Section 161 of the Code of Criminal Procedure. A copy of the autopsy-report of the deceased Khalaf was procured. Having found a prima facie case, the last Investigating Officer Md. Obaidul Haque (P. W. 33) submitted charge-sheet no. 379 dated 19.09.2012 against all the accused including the absconding accused Md. Selim Chowdhury alias Selim Ahmed under Section 396 of the Penal Code.

At the commencement of the trial of the case, the learned Trial Judge charged all the accused-appellants and the co-accused Md. Selim Chowdhury under Section 396 of the Penal Code. The charge was read over and explained to the accused present in the dock; but they pleaded not guilty thereto and claimed to be tried as per law.

The defence version of the case, as it appears from the trend of cross-examination of the prosecution witnesses, is that the accused are innocent and have been falsely implicated in the case out of oblique motives and the victim Khalaf was a man of immoral character and his maid-servant was a call-girl and she along with others caused the death of Khalaf at the relevant time and the alleged confessional statements of the accused Md. Al Amin and Akbar Ali Lalu are the products of police torture, oppression and maltreatment.

After hearing both the prosecution and the defence and on an in-depth appraisal of the evidence and materials on record and having regard to the attending circumstances of the case, the learned Tribunal Judge came to the finding that the prosecution brought the charge home against the appellants and the co-accused Selim and accordingly, he convicted and sentenced them by the impugned judgment and order as aforesaid.

Being aggrieved at and dissatisfied with the impugned judgment and order, the convict-appellants have preferred the instant appeals. As already observed, the Tribunal below has also made a Statutory Reference to the High Court Division for confirmation of the death sentence imposed upon the appellants and the co-accused Selim.

The only point for determination in the appeals and the Death Reference is whether the impugned judgment and order dated 30.12.2012 is sustainable in law or not?

At the outset, Mr. Khandker Mahbub Hossain, learned Advocate appearing on behalf of the appellant Akbar Ali Lalu alias Roni in Criminal Appeal No. 251 of 2013, candidly submits that he does not dispute the time, place and manner of the occurrence and also the finding of conviction arrived at against his client Lalu, but the fact remains that the Tribunal below overlooked the individual culpability of Lalu in sentencing him along with the co-accused and in view of the role played by Lalu in the commission of the offence as manifested from his judicial confession dated 01.08.2012, he should have been sentenced to 10(ten) years’ rigorous imprisonment at the most. In this connection, Mr. Khandker Mahbub Hossain relies on the decisions in the cases of Geedo and others Vs. The State, 1986 P. Cr. L. J Karachi 2192 and Lal Singh Vs. Emperor, 40 Cr. L. J Allahabad 132.

Mr. Khandker Mahbub Hossain also submits that as per Section 396 of the Penal Code, three options in respect of awarding of sentence to the accused have been provided depending upon the degree of culpability of each individual accused, though indisputably ‘dacoity’ is a conjoint offence and the learned Tribunal Judge failed to exercise his discretion properly in sentencing the accused Lalu and that being so, the sentence recorded against the accused Lalu is liable to be reviewed by this Appellate Court.

Mr. Khandker Mahbub Hossain further submits that he only challenges the propriety and correctness of the sentence imposed upon the accused Lalu in view of his self-inculpatory confessional statement made under Section 164 of the Code of Criminal Procedure and having regard to the role played by the accused Lalu in the commission of the offence, the capital sentence awarded to him appears to the very harsh.

Mr. Yusuf Hossain Humayun, learned Advocate appearing on behalf of the condemned-appellants Saiful Islam alias Mamun, Md. Al Amin and Md. Rafiqul Islam alias Khokon in Criminal Appeal No. 273 of 2013, contends that admittedly the finger-prints on the revolver bearing no. 1616819 allegedly used by the accused Saiful in firing the fatal shot on the victim Khalaf were not examined by any expert and in this perspective, there is a room for doubt as to whether the accused Saiful fired the fatal shot on Khalaf resulting in his ultimate death at the United Hospital, Gulshan, Dhaka and this being the scenario, the accused Saiful should be awarded the benefit of doubt.

Mr. Yusuf Hossain Humayun further contends that the confession of the accused Md. Al Amin dated 30.07.2012 (Exhibit-11) is a product of police torture, oppression and maltreatment and that is why, he filed a petition on 02.12.2012 retracting the earlier confessional statement dated 30.07.2012, but the learned Tribunal Judge did not consider this dimension of the case resulting in a miscarriage of justice.

Mr. Yusuf Hossain Humayun also contends that the P. W. 31 Md. Nure Azam Miah (1st Investigating Officer) did not seize any wet earth from the place of occurrence nor did he seize any blood-stain therefrom and this being the position, it can not be said that the alleged occurrence took place on the drain-slab on the northern side of Road No. 120 which is on the southern side of House No. 19/B, Road No. 117, Gulshan Police Station , DMP, Dhaka and if the place of occurrence can not be pinpointed by that reason, his clients, namely, Saiful Islam, Al Amin and Khokon are entitled to an order of acquittal.

Mr. Yusuf Hossain Humayun next contends that there is hardly any credible evidence on record connecting the accused Khokon with the commission of the offence, though allegedly at his showing and identification, the private car bearing no. Dhaka Metro-Ga-12-9688 was recovered from Manikdi area of Dhaka Cantonment on 24.07.2012, but the Tribunal below caused a failure of justice by convicting and sentencing him by the impugned judgment.

Mr. Yusuf Hossain Humayun further contends that there does not appear to be any corroboration of the alleged confessional statement of the accused Al Amin made under Section 164 of the Code of Criminal Procedure and because of this lack of corroboration, Al Amin can not be fastened with any criminal liability in the commission of the offence and above all, his confession being involuntary in character ought to have been discarded by the Tribunal below.

Mr. Md. Khabir Uddin Bhuiyan, learned Advocate appearing on behalf of the appellant Saiful Islam alias Mamun in Jail Appeal No. 08 of 2013 and the appellant Akbar Ali Lalu alias Roni in Jail Appeal No. 10 of 2013, submits that it is an admitted fact that the finger-prints on the revolver with which the accused Saiful allegedly fired the fatal shot on the Saudi diplomat Khalaf were not examined by any expert and the non-examination of the finger-prints on the revolver renders the prosecution case topsy-turvy entitling the accused Saiful to an order of acquittal.

Mr. Md. Khabir Uddin Bhuiyan also submits that in the facts and circumstances of the case and having regard to the culpability of the accused Lalu in the commission of the offence as is apparent from his judicial confession dated 01.08.2012, his capital punishment under Section 396 of the Penal Code is shockingly severe.

Mr. Md. Aminur Rashid (Razu), learned Advocate appearing on behalf of the  appellant Md. Rafiqul Islam alias Khokon in Jail Appeal No. 07 of 2013 and the appellant Md. Al Amin in Jail Appeal No. 09 of 2013, argues that admittedly there is no eye-witness in this case and the accused Khokon is not a confessing accused and according to the judicial confessions of the co-accused Lalu and Al Amin, Khokon drove the car on the fateful night; but no other evidence is forthcoming on record against the accused Khokon  and this being the landscape, the accused Khokon should have been acquitted of the charge by the learned Tribunal Judge.

Mrs. Mahmuda Khatun, learned State Defence Advocate appearing on behalf of the absconding-accused Md. Selim Chowdhury alias Selim Ahmed, argues that it is true that the accused Selim is still on the run and an accused may be on the run for a variety of reasons including  his fear of police harassment and it seems that the co-accused Lalu and Al Amin have implicated the accused Selim in their respective judicial confessions and these circumstances per se are not sufficient for the conviction of Selim; but the learned Tribunal Judge failed to appreciate  the circumstances in their proper perspective and came to an erroneous finding that the accused Selim was very much involved in the offence resulting in the awarding of the death sentence to him.

Mrs. Mahmuda Khatun also argues that confessions of the co-accused Lalu and Al Amin can not be used against the absconding accused Selim as substantive evidence and the confessions were extracted from Lalu and Al Amin under coercion and physical torture and as the confessing accused (Lalu and Al Almin) were kept in police custody more than three days preceding their judicial confessions, the same are necessarily involuntary in character and as such the prosecution can not capitalize on the judicial confessions against the absconding accused Selim and in view of the facts and circumstances of the present case, Mrs. Mahmuda Khatun emphatically banks upon the decisions in the cases of Alaluddin alias Alauddin and others Vs. The State, 49 DLR (HCD) 66; Md. Rezaul Karim alias Rezaul Aalm Rikshawala Vs. The State, 23 BLD (HCD) 255 and Md. Akbar Ali Vs. The State, 19 BLD (HCD) 268.

In contrast, Mr. Md. Khurshedul Alam, learned Deputy Attorney-General appearing on behalf of the State-respondent and in support of the Death Reference, submits that the accused Lalu, Al Amin, Saiful and Khokon were shown arrested in this case on 24.07.2012 and the Investigating Officer concerned prayed for ten days’ remand, but the Court allowed them eight days’ remand and Al Amin and Lalu made their judicial confessions on 30.07.2012 and 01.08.2012 respectively and it transpires that the learned confession- recording Magistrate Mr. Shahriar Mahmud Adnan (P. W. 20) recorded their confessions by complying with all legal formalities and in such a situation, it can not be said that the confessions of the accused Al Amin and Lalu are involuntary.

Mr. Md. Khurshedul Alam further submits that it appears from the cross-examination of the P. W. 20 Shahriar Mahmud Adnan that no suggestion has been put to him to the effect that the judicial confession of Lalu was obtained from him under duress and probably for that reason, the learned Advocate Mr. Khandaker Mahbub Hossain does not challenge the voluntariness and truth of the judicial confession of the accused Lalu.
Mr. Md. Khurshedul Alam next submits that a revolver bearing no. 1616819 was recovered from the rented flat of Saiful at his instance in presence of the P. W. 23 Md. Atiqur Rahman Munshi (owner of the flat) and his son Md. Faisal Ahmed Munshi (P. W. 24) and the members of the raiding party, that is to say, P. W. 25 Md. Mosleh Uddin, P. W. 26 Md. Mahbubur Rahman Tarafdar, P. W. 27 Kazi Haniful Islam and P. W. 28 K. M. Robiul Islam and that revolver was previously looted away by Saiful and others at the time of commission of  dacoity in the house of one Md. Abul Hossain (P. W. 21) of Khilkhet, Dhaka and  this is why, Md. Abul Hossain initiated Khilkhet Police Station Case No. 16 dated 30.09.2011 under Sections 395/397 of the Penal Code and in that case Saiful and Khokon made judicial confessions under Section 164 of the Code of Criminal Procedure and in view of the Forensic Ballistic Report dated 18.03.2012 (Exhibit-16) and Forensic Ballistic Report dated 19.07.2012 (Exhibit-17), it is manifestly clear that the accused Saiful fired the fatal shot on Khalaf   at the material time and the learned Tribunal Judge rightly found him guilty along with others.

Mr. Md. Khurshedul Alam further submits that the place of occurrence has been pinpointed by the relevant evidence on record and the letter ‘A’ in the sketch-map as indicated by the index thereto and in this view of the matter, no doubt arises at to the place of occurrence.

Mr. Md. Khurshedul Alam next submits that it is in the evidence of the P. W. 33 Md. Obaidul Haque that at the showing of the accused Khokon, the car bearing no. Dhaka Metro-Ga-12-9688 was recovered from Manikdi area and thereafter it was seized as per seizure-list dated 24.07.2012 (Exhibit-10) and in his petition of Jail Appeal,  Khokon has  claimed that he is a driver by profession and he drives in the Cantonment Manikdi Bazar area and it is also apparent from the confessions of the accused Al Amin and Lalu that  the accused Khokon drove the car which was used in the commission of the dacoity  at the relevant time and against this backdrop, it is palpably clear that the accused Khokon was very much connected with the commission of the offence and considered from this point of view, the accused Khokon can not get off scot-free.

Mr. Md. Khurshedul Alam further submits that there is no gainsaying the fact that the revolver was recovered from the rented flat of the accused Saiful after about three months of the occurrence and no useful purpose would be served by examining the finger-prints on the revolver inasmuch as the accused Saiful might have used the revolver in the commission of other offences after the commission of the present one and taking the whole gamut of the facts and circumstances of the case into consideration, the prosecution did not take any step for examination of the finger-prints on the revolver; but on that account, the prosecution case can not be rendered doubtful in the perspective of the unimpeachable, unblemished and invincible evidence on record.

Mr. Md. Khurshedul Alam also submits that it is true that there are three options with regard to awarding of sentence to the accused in Section 396 of the Penal Code and since dacoity with murder as contemplated by Section 396 of the Penal Code is a grave offence, it can not be said that the Tribunal Judge exercised his discretion improperly in sentencing all the accused to death and as such no exception can be taken to the impugned judgment.
Mr. Md. Khurshedul Alam next submits that at the time of examination of the accused Lalu and Al Amin under Section 342 of the Code of Criminal Procedure, they did not complain of any police torture or oppression to the Tribunal Judge vis-à-vis their confessions; rather they remained conspicuously silent thereabout and this circumstance is indicative of the truth and voluntary character of their confessions.

In support of the above submissions, the learned Deputy Attorney-General Mr. Md. Khursedul Alam refers to the decisions in the cases of The State Vs. Md. Gaush Meah alias Rana and others, 10 BLC (HCD) 74; The State Vs. Abul Khair and 2 others, 44 DLR (HCD) 284; Khalil Mia (condemned-prisoner) Vs. The State, 4 BLC (AD) 223 and The State Vs. Moslem, 55 DLR (HCD) 116.

Mr. Mahbubey Alam, learned Attorney-General appearing on behalf of the State-respondent and in support of the Death Reference, submits that as dacoity with murder is a grave offence, all the accused have been rightly served by awarding capital punishment and this is why, the sentence of death imposed upon the convicts should be maintained by this Appellate Court.

Mr. Mahbubey Alam also submits that the absconding accused Selim lived with Saiful in his rented flat as per the evidence of the P. W. 23 Md. Atiqur Rahman Munshi and P. W. 24 Md. Faisal Ahmed Munshi and presumably they were hand in glove with each other and Selim was an accused in an earlier criminal case, namely, Pallabi Police Station Case No. 22(1)11 under Sections 395/397/412 of the Penal Code and the unexplained continuous abscondence of the accused Selim together with his implication in the commission of the offence in the confessions of the two co-accused, namely, Lalu and Al Amin conclusively go to show that Selim was very much concerned with the offence and the learned Tribunal Judge did not commit any illegality in convicting and sentencing Selim to death by the impugned judgment. With regard to awarding of capital sentence to all the accused including Selim, Mr. Mahbubey Alam relies upon the decision in the case of Emperor Vs. Nga Tha Hmwe and others, AIR 1935 Rangoon 504.

We have heard the submissions of the learned Advocates Mr. Khandker Mahbub Hossain, Mr. Yusuf Hossain Humayun, Mr. Md. Khabir Uddin Bhuiyan, Mr. Md. Aminur Rashid (Razu) and Mrs. Mahmuda Khatun and the counter-submissions of the learned Deputy Attorney-General Mr. Md. Khurshedul Alam and the learned Attorney-General Mr. Mahbubey Alam.

However, with a view to arriving at a correct decision, we are to advert to and scrutinize the relevant evidence and attending circumstances by way of juxtaposing both the prosecution and defence versions of the case.
At the trial, the prosecution has examined 32 (thirty-two) witnesses and tendered 1 (one) witness in all on its side. But the defence has examined none.

Anyway, the informant Md. Mosharraf Hossain has examined himself as P. W. 1 in this case. He deposes that while he was on patrol duty pursuant to Gulshan Police Station General Diary No. 452 dated 05.03.2012, the Duty Officer of the Police Station, namely, Sub-Inspector Robiul informed him between 01.05 A. M.  and 01.10 A.M. on 06.03.2012 over wireless that an unknown person had been shot at  on Road No. 117, Gulshan and on receipt of that message, he (P. W. 1) along with the accompanying force  rushed there and saw an unknown person with a bullet injury on his left chest on the drain-slab on Road No. 120 which is on the southern side of House No. 120/B, Road No. 117 and then and there, he brought the wounded person to the United Hospital  for treatment and while the wounded person was under treatment at the United Hospital, he succumbed to his injury at 05.15 A. M. on 06.03.2012.

The P. W. 1 Md. Mosharraf Hossain also deposes that at 09.30 A. M. on 06.03.2012, he returned to the place of occurrence with a photograph of the deceased and the driver of the vehicle of the deceased identified the photograph as that of a senior officer of the Saudi Embassy whose name was Md. Khalaf Ali and thereafter he (P. W. 1) informed the concerned officials of the Saudi Embassy of the occurrence and on coming back to the United Hospital, in presence of the officials of the Saudi Embassy and at their identification, he held an inquest on the deceased and found a bullet injury on the left side of his chest and  seized a pair of trousers, a vest, a pair of keds, a pair of spectacles and an underwear as per seizure-list (Exhibit-2).

The P. W. 1 Md. Mosharraf Hossain further deposes that the driver of the deceased told him that the deceased used to reside in a flat bearing No. A/4 of House No. 22/A,  Road No. 122, Gulshan and the security guard of that house intimated him that on 05.03.2012 at 11.00 P. M., the deceased went out from his flat and since, however, no officer or employee of the Saudi Embassy came forward to initiate any case, he (P. W. 1) himself lodged a First Information Report (FIR) (Exhibit-1) with Gulshan Police Station and  sent the dead body of Khalaf to the morgue of Dhaka Medical College Hospital for autopsy through Constable No. 7454 Md. Baseth.

In his cross-examination, the P. W. 1 Md. Mosharraf Hossain states that after one minute of the receipt of the wireless message, he rushed to the place of occurrence and the flat of the victim Khalaf is near the place of occurrence.

In his cross-examination, the P. W. 1 Md. Mosharraf Hossain denies a defence suggestion that he has fabricated the case falsely being influenced by some quarters.

The P. W. 2 is Abu Ansar. The sum and substance of his testimony is that on 07.03.2012, he was on duty as Duty Officer at Gulshan Police Station and at 13.00 hours on that day, on receipt of a written ejahar from the informant Md. Mosharraf Hossain, he registered Gulshan Police Station Case No. 15 dated 07.03.2012 under Sections 302/34 of the Penal Code by filling in the prescribed form of the First Information Report.

The P. W. 3 is Md. Abdul Baseth Miah. He testifies that on 06.03.2012, he was on duty at Gulshan Police Station and at 09.30 hours, he went to the United Hospital and at 14.30 hours on that day, he carried the dead body of Khalaf to the Dhaka Medical College Hospital for post-mortem examination and after the post-mortem examination, he handed over the dead body to the officials of the Saudi Embassy.

The P. W. 3 Md. Abdul Baseth Miah also testifies that the autopsy-holding doctor told him that there was a bullet lodged in the body of the deceased and the doctor handed over the bullet to him (P. W. 3)  under sealed cover after extraction  and he brought the same to the Police Station and handed it over to the Investigating Officer Nure Azam Miah at 09.15 hours on 07.03.2012 and in his presence, the Investigating Officer opened the packet containing the bullet, showed it to him (P. W. 3) and  seized it as per seizure-list (Exhibit-6).

In his cross-examination, the P. W. 3 Md. Abdul Baseth Miah denies the defence suggestions that the doctor concerned did not hand over the bullet to him or that he did not hand over the bullet to the Investigating Officer concerned or that the Investigating Officer concerned did not seize it as per seizure-list.

The P. W. 4 is Md. Abu Nur Shafiuzzaman. The long and the short of his deposition is that on 07.03.2012, he was on duty at Gulshan Police Station and while he was on duty, he came to the office chamber of the Investigating Officer Nure Azam Miah and then Constable Abdul Baseth handed over a sealed packet to the Investigating Officer and the Investigating Officer opened it, brought out a bullet therefrom, seized it as per seizure-list and he (P. W. 4) signed the seizure-list as a witness.

The P. W. 5 is Abu Sayeed. The gist of his evidence is that on 06.03.2012, he was on duty at the United Hospital and one Khalaf Mohammed S. Al Ali was admitted thereto at 01.15 A. M. and died there at 05.15 A. M. on that date and accordingly he (P. W. 5) issued a death report of Khalaf bearing passport no. S 025550 (Exhibit-7).

The P. W. 6 is Md. Ripon. He states in his evidence that while he was on duty as Ward Boy at the United Hospital after 01.00 A.M. on 06.03.2012, one patient was admitted to the hospital and he shifted the patient to a bed of Intensive Care Unit (ICU) and at 05.00 A. M., the patient died and subsequently the police came to the hospital and seized the wearing-apparels of the deceased, namely, one pair of trousers, a vest and an underwear and  his other articles, namely, a pair of keds and a pair of spectacles from a staffer of the hospital, that is to say, Solaiman Miah as per seizure-list (Exhibit-2).

In his cross-examination, the P. W. 6 Md. Ripon denies a defence suggestion that on 06.03.2012, no alamats were seized in his presence.

The P. W. 7 is Md. Maksudur Rahman. He gives out in his evidence that he has been a Ward Boy of the United Hospital and at 07.00 A.M. on 06.03.2012, he was on duty at the hospital and came to know that one patient had died who was a Saudi national and the police held an inquest on the dead body and seized the wearing-apparels and other articles of the patient from the Ward Boy Solaiman as per seizure-list (Exhibit-2) and he (P. W. 7) signed the same as a witness.

In his cross-examination, the P. W. 7 Md. Maksudur Rahman denies a defence suggestion that he has deposed falsely at the instance of the hospital authority.

The P. W. 8 is Md. Motiur Rahman, son of Abdul Malek Sheikh. He claims in his evidence that he is a Duty Manager of the United Hospital and at 08.00 A.M. on 06.03.2012, he came to the hospital and learnt that a patient had been admitted to the hospital on the previous night at 01.15 o’clock and died at 05.15 o’clock and at 09.30/10.00 A. M., he went to the ICU and saw some police personnel of Gulshan Police Station and the driver of the deceased there.

The P. W. 8 Md. Motiur Rahman also claims in his evidence that the police held an inquest on the deceased and he saw a hole beneath the left nipple and an abrasion beneath the knee of the deceased and he signed the inquest-report (Exhibit-3) as a witness.

In his cross-examination, the P. W. 8 Md. Motiur Rahman states that he saw the abrasion on the right knee of the deceased and he himself did not turn over the dead body for the purpose of inquest.

In his cross-examination, the P. W. 8 Md. Motiur Rahman denies a defence suggestion that he has deposed falsely at the instance of the authority.

The P. W. 9 is Md. Saiful Islam. He discloses in his evidence that at about 09.30/09.45 A. M. on 06.03.2012, he came to know from the driver Aminul that the Saudi Embassy official Khalaf had died on the night following 05.03.2012 and the police came to the House No. 22/A where the deceased Khalaf used to reside in its 5th storey and the police showed the photograph of Khalaf to Aminul and Aminul identified the photograph as that of his boss and thereafter the police brought Aminul to the United Hospital.

In his cross-examination, the P. W. 9 Md. Saiful Islam states that he is the caretaker of the building (House No. 22/A) and its owner is one S. M. Alam and he (P. W. 9) got the job of the caretaker through a security company.
The P. W. 10 is Md. Aminul Islam. He states in his evidence that he is a driver of Saudi Embassy and after joining the Embassy, he was assigned the job of the driver of the vehicle of Khalaf and in the morning of 05.03.2012, he took his boss Khalaf to Saudi Embassy and returned therefrom to the flat of Khalaf at 05.00 P. M. by his vehicle and parked it inside the building.

The P. W. 10 Md. Aminul Islam also states in his evidence that on 06.03.2012, he went to the house of his boss Khalaf as usual and made the vehicle ready after washing and cleaning and started waiting at the waiting-room for Khalaf and when Khalaf did not come down at 09.20 A. M., he (P. W. 10) went up and pressed the calling bell of the flat of Khalaf, but in vain and afterwards he (P. W. 10) came down and saw many police personnel in front of the gate of the building.

The P. W. 10 Md. Aminul Islam further states in his evidence that the police were showing a photograph for identification and he came forward and recognized the photograph as that of his boss Khalaf and the police told that Khalaf had already died from a bullet injury on the previous night at the United Hospital and he (P. W. 10) informed the Saudi Embassy of the incident and thereafter he went to the hospital and the police showed  a bandage in the lower chest of his boss and after untying the bandage, he saw a hole there and an abrasion on his right leg and subsequently he signed the inquest-report (Exhibit-3) as the identifier of the deceased Khalaf.

In his cross-examination, the P. W. 10 Md. Aminul Islam states that the police interrogated him both at Gulshan Police Station and at Saudi Embassy and also interrogated him over telephone.

In his cross-examination, the P. W. 10 Md. Aminul Islam also states that Khalaf was a bachelor and used to reside in his flat alone.

In his cross-examination, the P. W. 10 Md. Aminul Islam denies a defence suggestion that at the instance of some interested quarters and being gained over by them, he has deposed falsely.

The P. W. 11 is Md. Zulfikar. He deposes that he was on duty in the guard room of House No. 19/B, Road No. 117, Gulshan from 10.00 P. M. on 05.03.2012 to the morning of 06.03.2012 and at about 01.00 A. M., he heard a sound of firing and perceived that a white car had sped away past the house and at this, his colleague Kamrul blew a siren and he (P. W. 11) made a mobile phone call to the Police Station about the sound of firing and after 5/7 minutes, the police appeared on the scene and at a subsequent stage, on being questioned by the police, he told them  that there was firing and  a white car had sped away.

In his cross-examination, the P. W. 11 Md. Zulfikar states that he is a security guard of the house of one Shakhawat Hossain and he did not come out of the house immediately after hearing the sound of firing.

The P. W. 12 is Md. Helal Uddin. He discloses in his evidence that on hearing a sound of firing at 01.00 o’clock on the night following 05.03.2012, he drifted towards the gate of their house and saw that a vehicle had sped away from eastern direction to western direction and then a siren rang up from another house and thereafter the police came.

In his cross-examination, the P. W. 12 Md. Helal Uddin states that he knows the sound of firing.

The P. W. 13 is Kazi Robiul Haque. He deposes that while he was on duty as Sub-Inspector at Gulshan Police Station on the night following 05.03.2012, an unknown person told him over telephone immediately after 01.00 o’clock that some unknown persons had come by a private car, shot dead a man and left him on the road near House No. 19/B, Road No. 117, Gulshan and then and there he (P. W. 13) informed Sub-Inspector Mosharraf and Sub-Inspector Rashed Mobarak of the occurrence over wireless and requested them to rush to the place of occurrence quickly and he (P. W. 13) also apprised the Officer-in-Charge of the occurrence over his mobile phone and on account of the receipt of the telephonic message about the occurrence, a General Diary Entry  being no. 460 dated 06.03.2012 was recorded by Assistant Sub-Inspector Kabir.

The P. W. 13 Kazi Robiul Haque also deposes that on the following morning, he came to learn that the unknown man had died at the United Hospital and he was an official of Saudi Embassy whose name was Khalaf Mohammed S. Al Ali.

In his cross-examination, the P. W. 13 Kazi Robiul Haque denies a defence suggestion that he has deposed under the pressure of certain quarters.

The P. W. 14 is Md. Rezaul Karim. He claims in his evidence that he is a security guard of House No. 22/A and Khalaf used to reside in the 5th storey of that building and he used to go to office at 09.00 A. M. and return to his flat therefrom at 05.00 P. M. every day.

The P. W. 14 Md. Rezaul Karim further claims in his evidence that  at 11.00 A.M. on 05.03.2012, Khalaf went out for a walk from his flat in jogging apparels and he did not return to his flat on that night and on the following day at 09.00 A. M., his driver Aminul asked him as to whether his boss was in his flat; but he told Aminul that his boss had gone out for a walk on the previous night and he did not return till that time and at this, the driver went upstairs and started waiting  for his boss after he came downstairs and at about 09.45/10.00 A. M., the police came to the house and showed a photograph and then the driver and he (P. W. 14) saw the photograph and identified the same as that of Khalaf and the driver Aminul phoned the Embassy and some people from the Embassy came to the spot and the police told them that Khalaf had already died at the United Hospital and then the driver and the Embassy staff rushed  thereto.

In his cross-examination, the P. W. 14 Md. Rezaul Karim states that the staff of Saudi Embassy also recognized the photograph as that of Khalaf and Khalaf was a bachelor and he used to reside alone in the flat.
The P. W. 15 is Md. Abu Taleb. He deposes that he has been a security guard of Portugal Consulate at House No. 19/B since 2004 and on the night following 05.03.2012 at 01.00 o’clock, he heard a sound while he was at the pump-house of the building and then he came forward towards the gate, but he did not see anything and at the call of one  Anwar, he proceeded towards southern direction and inferred that a white vehicle had sped away from eastern side to  western side and the security guard Zulfikar made a phone call to the Police Station and after 6/7 minutes, the police came to the spot.

The P. W. 15 Md. Abu Taleb also deposes that a person was lying on the road near the boundary wall of the Consulate and Anwar helped the police in lifting that person into their vehicle and thereafter Anwar came inside the Consulate and told them (P. W. 15 and others) that perhaps the person had been shot at and at 10.00 A. M. on the following day, the police came with a photograph of that person who was a Saudi national named Khalaf as he (P. W. 15) learnt later.

In his cross-examination, the P. W. 15 Md. Abu Taleb denies a defence suggestion that he has deposed falsely at the instance of certain quarters.

The P. W. 16 is Dr. Md. Kamrul Hassan Sardar. He states in his evidence that on 06.03.2012, he was on duty as Assistant Professor in the Department of Forensic Medicine in Dhaka Medical College and on that day, at the identification of Constable No. 7454 Md. A. Baseth, he held an autopsy on the dead body of Mr. Khalaf Al Ali and found the following injuries thereon:

“(1)Bullet wound-(A) Entry wound- One bullet entry wound measuring ″ X ″ found on front of left chest which lies at 6th intercostal space, 7″ below suprasternal notch and 5″ left to midline. (B) Direction-directed obliquely, medially, downwards and to the right. During its course, it has perforated skin, subcutaneous tissue muscle through 6th intercostal space, piercing pleura, lower lobe of left lung, diaphragm, as dominal aorta and right kidney. One deformed bullet is recovered from right kidney and handed over to the escorting constable no. 7454 as alamat. Liquid and ante-mortem clotted blood was found in thoracic and abdominal cavity.
(2) One abrasion measuring 1″ X ″ on front of right upper leg which lies 1″ below right knee joint.”

The P. W. 16 Dr. Md. Kamrul Hassan Sardar also states in his evidence that in his opinion, the death of the victim Khalaf was due to haemorrhage and shock resulting from the bullet injury which was ante-mortem and homicidal in nature.

In his cross-examination, the P. W. 16 Dr. Md. Kamrul Hassan Sardar denies the defence suggestions that he did not extract the bullet from the deceased or that the deceased did not die from the bullet injury or that he has deposed falsely being influenced by certain quarters.

The P. W. 17 is Md. Shahidul Islam. He claims in his evidence that he works in a garage and one day one Tanvir Ahmed sent a car bearing no. Dhaka Metro-Ga-12-9688 to the garage for necessary repair and while he was at work, one A. Salam came to him and asked him as to whether the car would be sold out and he (P. W. 17) replied in  the affirmative and the price of the car was fixed at Tk. 3,00,000/- and A. Salam took away the car on payment of Tk. 2,50,000/- and the real owner of the car was one Mariyam Faisal and in the month of July, 2012, the Detective Branch (DB) police called him to go to DB office and on being asked by the DB personnel, he narrated the incident to them.

In his cross-examination, the P. W. 17 Md. Shahidul Islam states that he mediated in the matter of sale of the car belonging to Mariyam Faisal.

The P. W. 18 is Abul Hossain.  He discloses in his evidence that he deals in rent-a-car business at Manikdi and at about 11.00 P.M. on 24.07.2012, some Detective Branch (DB) personnel along with an accused got down from a micro-bus at Manikdi Ideal School and CNG Auto-rickshaw Stand and at the CNG Auto-rickshaw Stand, the accused identified a private car bearing no.  Dhaka Metro-Ga-12-9688 and DB police seized the car at the instance of the accused Khokon, son of Abdus Salam, as per seizure-list (Exhibit-10) and he (P. W. 18) signed the same as a witness.

In his cross-examination, the P. W. 18 Abul Hossain denies a defence suggestion that he has deposed falsely in order to save himself.

The P. W. 19 is Md. Motiur Rahman, son of late Moksed. The pith and marrow of his testimony is that at 11.00 P. M. on 24.07.2012, they (P. W. 19 and others) were having tea at Manikdi Ideal School and CNG Auto-rickshaw Stand and then some DB personnel came there by a white micro-bus and they along with the accused Rafiqul Islam Khokon got down therefrom and at the CNG Auto-rickshaw Stand, there was a white car bearing no. Dhaka Metro-Ga-12-9688 and the DB police took away necessary papers and the key of the car from Abdus Salam and seized the car as per seizure-list (Exhibit-10).

In his cross-examination, the P. W. 19 Md. Motiur Rahman denies a defence suggestion that he has deposed falsely with a view to saving himself.

The P. W. 20 is Shahriar Mahmud Adnan. He testifies that as Metropolitan Magistrate, Dhaka, he recorded the confessional statement of the accused Al Amin (Exhibit-11) in accordance with the provisions of Section 164 of the Code of Criminal Procedure and he put six and the accused Al Amin three signatures thereon on 30.07.2012.

The P. W. 20 Shahriar Mahmud Adnan also testifies that on 01.08.2012, he recorded the confessional statement of the accused Akbar Ali Lalu (Exhibit-12) as per Section 164 of the Code of Criminal Procedure and he put five and the accused Lalu two signatures thereon.

In his cross-examination, the P. W. 20 Shahriar Mahmud Adnan states: আসামী ব­ল­ছ যে, ১৭.০৫.২০১২ ইং তারি­খ তা­ক এ­রষ্ট ক­র এবং ০১.০৮.২০১২ ইং তারি­খ আমার নিকট উপসহাপন করা হয়z প্রায় ৩ মাস প­র

In his cross-examination, the P. W. 20 Shahriar Mahmud Adnan denies a defence suggestion that there were marks of injuries on the person of the accused Al Amin.

The P. W. 21 is Md. Abul Hossain. He discloses in his evidence that he is a businessman and on the night following 30th September, 2011 at about 03.30/04.00 o’clock, he and his wife were asleep,  but he woke up from sleep at a huge bang and saw that 5/6 masked persons had entered his house by breaking open its door and compelled him to lie down on bed by brandishing arms and knives and his hands were tied behind and a vest was thrust into his mouth and he was covered with a bed-sheet and the dacoits forbade him to speak out and continued the commission of dacoity for about 30/40 minutes and looted away a licensed .22 calibre revolver, cash money, ornaments etc. from his house and subsequently he lodged a case with the Police Station concerned.

The P. W. 21 Md. Abul Hossain also discloses in his evidence that after about 7/8 months, the Investigating Officer of the Detective Branch told him over telephone that his revolver had been recovered and requested him to go to DB office for verification and accordingly he went to DB office and identified the revolver bearing no. 1616819, Made in Germany as that of his own.

In his cross-examination, the P. W. 21 Md. Abul Hossain denies the defence suggestions that he is not the actual owner of the revolver or that he has deposed falsely at the instance of certain quarters.

The P. W. 22 is Md. Anwar Hossain. He gives out in his evidence that at the relevant time, he heard a  sound of firing while he was at Portugal Consulate and at one stage, he heard the sound of groaning and thereafter he proceeded towards the southern wall and saw that a person was lying by the side of  the drain which was close to the wall and there was a man and a white-like private car near the head of the lying person and that man boarded the  car and went away and then one security guard blew a siren.

The P. W. 22 Md. Anwar Hossain also gives out in his evidence that after 5/7 minutes, the police came to the spot and   he helped the police in lifting the lying person into their pick-up and the police took him away  and that person  had a pair of trousers, a pair of keds, a pair of spectacles  and a vest on and there was a small hole beneath his left nipple and in the morning at 09.00 o’clock, the police came back with a photograph and showed it to them (P. W. 22 and others )  and  it was identified that that person was an official of Saudi Embassy.

The P. W. 22 Md. Anwar Hossain next gives out in his evidence that at the call of DB personnel, he went to the DB office, saw a car there and that car exactly looked like the car of the place of occurrence.

In his cross-examination, the P. W. 22 Md. Anwar Hossain denies a defence suggestion that he has deposed falsely at the instance of certain quarters.

The P. W. 23 is Md. Atiqur Rahman Munshi. He deposes that on 1st May, 2012, he let out a unit (downstairs) of his building to Saiful Islam alias Mamun, his wife and her  maternal cousin Selim and subsequently at 01.30 A. M./ 02.00 A. M. on 04.06.2012,  some DB personnel came to his building and told him that they would search the rented flat of Saiful Islam and during search, they found an arms on a rack in his flat and the arms appeared to be .22 calibre black revolver and the DB personnel made a seizure-list (Exhibit-14) by seizing the same and they requested him (P. W. 23) and his son to be witnesses thereto and accordingly he signed it.

In his cross-examination, the P. W. 23 Md. Atiqur Rahman Munshi denies the defence suggestions that he did not let out the flat to the accused Saiful Islam and his wife or that he did not know them or that they did not reside in the flat.

In his cross-examination, the P. W. 23 Md. Atiqur Rahman Munshi states that there are two units in the ground floor and he resides in one unit and let out the other unit to Saiful.
In his cross-examination, the P. W. 23 Md. Atiqur Rahman Munshi also denies a defence suggestion that no revolver was recovered from the accused Saiful.

The P. W. 24 is Md. Faisal Ahmed Munshi. He testifies that the accused Saiful, his wife and her  maternal cousin Selim used to reside in their rented flat and  at about 02.00 A. M on 04.06.2012,  some DB personnel along with the accused Saiful came to their house  and they told that they would search the flat of Saiful and in response to the query of the DB personnel, Saiful confessed that he had a revolver in his flat and thereafter Saiful brought out the revolver from a rack in his flat and the DB personnel seized it as per seizure-list and he signed the same as a witness.

In his cross-examination, the P. W. 24 Md. Faisal Ahmed Munshi denies a defence suggestion that there is no maternal cousin of Saiful’s wife Selim by name.
The P. W. 25 is Md. Mosleh Uddin. He states in his evidence  that  while  he was in Detective Branch (DB), he interrogated the accused Akbar Ali Lalu  in connection with Bhasantek Police Station Case No. 28 dated 22.05.2012 and on the basis of the information given by the accused Lalu, he along with Police Inspector Md. Mahbubur Rahman Tarafdar, Sub-Inspector K. M. Robiul Islam and the accompanying force conducted a raid under the leadership of Senior Assistant Police Commissioner Obaidul Haque pursuant to DB Uttara G. D. Entry No. 93 dated 03.06.2012  and  at about 02.00 A. M. on 04.06.2012, they hunted down the accused Saiful and Al Amin from Gaoyair area and interrogated them and at one stage of interrogation, they told that previously they had looted away an arms from the house of the owner of Sheba Clinic and that arms had been kept in the flat of Saiful and on the basis of this information, he (P. W. 25) and the accompanying force raided the rented flat of Saiful and at 02.15 A. M. on 04.06.2012,  the accused Saiful brought out a revolver from a rack of his kitchen and he (P. W. 25) seized the revolver as per seizure-list in presence of witnesses and subsequently he lodged a First Information Report against the accused Saiful and others with Dakkhin Khan Police Station under Section 19A of the Arms Act.

In his cross-examination, the P. W. 25 Md. Mosleh Uddin states that he did not put any identification number on the revolver, but the revolver had its own number.
In his cross-examination, the P. W. 25 Md. Mosleh Uddin denies a defence suggestion that he has deposed falsely being influenced by some interested quarters.
The P. W. 26 is Md. Mahbubur Rahman Tarafdar. He discloses in his evidence that he along with the accompanying force conducted a raid in Gaoyair area and at 02.00 A.M. on 04.06.2012, they tracked down the accused Saiful and Al Amin at the showing of Akbar Ali Lalu and interrogated them and at one stage of interrogation, the accused Saiful confessed that he had a .22 calibre revolver in his flat.

The P. W. 26 Md. Mahbubur Rahman Tarafdar also discloses in his evidence that on the basis of his confession, he (P. W. 26) along with the accompanying force rushed to the rented house of Saiful and in presence of the owner of the flat and witnesses concerned, Saiful brought out .22 calibre revolver from a rack of his kitchen and Sub-Inspector Mosleh seized the revolver as per seizure-list and took signatures of witnesses thereon.

The P. W. 26 Md. Mahbubur Rahman Tarafdar further discloses in his evidence that on close examination, it appeared that the seized revolver was looted away in course of dacoity in connection with Khilkhet Police Station Case No. 16 dated 30.09.2011 under Sections 395/397 of the Penal Code.

In his cross-examination, the P. W. 26 Md. Mahbubur Rahman Tarafdar denies a defence suggestion that he has deposed falsely being influenced by certain quarters.
The P. W. 27 is Kazi Haniful Islam. He claims in his evidence that on 04.06.2012,  under the leadership of Assistant Commissioner Obaidul Haque, he along with Inspector Mahbubur Rahman, Sub-Inspector Mosleh, Sub-Inspector Robiul and the accompanying force conducted a raid taking the accused Lalu and arrested the accused Saiful and Al Amin from Gaoyair area under Dakkhin Khan Police Station and they interrogated the accused Saiful and Al Amin and at one stage of interrogation, the accused Saiful confessed that he along with his accomplices looted away a .22 calibre revolver from the house of the owner of Sheba Clinic in Khilkhet area previously  and that revolver was lying in his rented flat and on the basis of that confession, they (P. W. 27 and others) raided the rented flat of Saiful and he brought out a 8-chamber .22 calibre revolver being no. 1616819, Made in Germany, from a rack of the kitchen of the flat and thereafter it was seized as per seizure-list and the signatures of the witnesses were taken thereon.

The P. W. 27 Kazi Haniful Islam next claims in his evidence that on 04.06.2012, Sub-Inspector Mosleh Uddin initiated Dakkhin Khan Police Station Case No. 08 dated 04.06.2012 against the accused Saiful and others under Section 19A of the Arms Act and the investigation of that case was endorsed to him (P. W. 27) and he investigated the case and submitted charge-sheet on 25.06.2012.

The P. W. 27 Kazi Haniful Islam also claims in his evidence that his team in-charge was the Investigating Officer of the murder of the Saudi citizen Khalaf Al Ali and with the permission of the Court, he sent the seized revolver to the Criminal Investigation Department (CID) to examine whether it was used in the killing of Khalaf.

The P. W. 27 Kazi Haniful Islam further claims in his evidence that in his presence, Assistant Commissioner Md. Obaidul Haque seized four test-fired bullets as per seizure-list (Exhibit-15) and he signed the same as a witness.

In his cross-examination, the P. W. 27 Kazi Haniful Islam denies the defence suggestions that no arms were recovered from the rented flat of the accused Saiful or that the accused Saiful did not reside therein.

The P. W. 28 Sub-Inspector K. M. Robiul Islam is a tendered witness.

The P. W. 29 is Md. Sabdar Ali. He states in his evidence that while he was on duty as a Ballistic Expert in the Criminal Investigation Department (CID) on 08.03.2012, he received a plastic packet containing a fired bullet weighing 2.48 grams in connection with Gulshan Police Station Case No. 15 dated 07.03.2012 under Sections 302/34 of the Penal Code from Inspector Nure Azam for examination and opinion pursuant to the order of the learned Metropolitan Magistrate, Dhaka through Constable No. 18161 Masud Rana and after examination of the fired bullet, he rendered his opinion  as under:
আলামতটি .২২ ক্যালিবা­রর ফায়ার্ড বু­লট যাহা­ত Lands And Grooves এর দাগ রহিয়া­ছz যাহা একটি নিয়মিত (regular) .২২ ক্যালিবা­রর আ­গ্নয়াসত্র দ্বারা ফায়ার করা হইয়া­ছz

In his cross-examination, the P. W. 29 Md. Sabdar Ali denies the defence suggestions that this bullet is not the bullet of this case or that this bullet was picked up from a road and handed over to him for examination.
The P. W. 30 is Md. Jamal Uddin. He deposes that on 20.06.2012, he was on duty as a Ballistic Expert in Dhaka and on that day, the Investigating Officer of this case sent a 8-chamber .22 calibre revolver being no. 1616819-ARMINIUS-Made in Germany and a fired bullet weighing 2.48 grams to Ballistics Section and wanted to know whether the fired bullet was actually fired from the revolver being no. 1616819 and he (P. W. 30) was entrusted with that job.

The P. W. 30 Md. Jamal Uddin also deposes that at the time of examination, he found that the revolver was a 8-chamber revolver having .22 calibre bearing no. 1616819 and on examination of barrel, it was found that there was gun-shot residue and he took four .22 calibre bullets from the stock of the Ballistics Laboratory and he fired those four .22 calibre bullets with the revolver and marked those four test-fired bullets as T-1, T-2, T-3 and T-4 respectively.

The P. W. 30 Md. Jamal Uddin next deposes that on examination, he found that that was a .22 calibre fired bullet which contained the marks of Lands And Grooves and he marked that fired bullet as ‘E’ and thereafter he examined the alamat ‘E’ and test-fired bullets, namely, T-1, T-2, T-3 and T-4 through Large Comparison Microscope and ABIS (Automated Ballistics Identification System) by comparison and analyzed the matter.

The P. W. 30 Md. Jamal Uddin also deposes that পরীক্ষা­¿¹ অালামত ফায়ার্ড বু­লট ‘E’ এর দাগ সমূ­হর সা­থ টেস্ট ফায়ার্ড বু­লট T-1, T-2, T-3 and  T-4 এর দাগ সমূ­হর পরস্পর মিল পাওয়া যায় and from this, he came to the conclusion that the fired bullet marked-‘E’ was fired from the revolver bearing no. 1616819-ARMINIUS-Made in Germany and accordingly he sent a report (Exhibit-17) to the Investigating Officer concerned.

In his cross-examination, the P. W. 30 Md. Jamal Uddin denies the defence suggestions that the fired bullet is not the alamat of this case or that he did not properly examine the bullet or that he has deposed falsely.
The P. W. 31 is Md. Nure Azam Miah. He testifies that on 07.03.2012, he was on duty as Sub-Inspector at Gulshan Police Station and on that day, the Officer-in-Charge of the Police Station endorsed the case to him for investigation after its registration and having taken up investigation of the case, he visited the place of occurrence and made a sketch-map thereof along with a separate index.

The P. W. 31 Md. Nure Azam Miah also testifies that he seized a bullet as per seizure-list (Exhibit-6) which was extracted from the dead body of Khalaf during autopsy and he sent the seized bullet to the ballistic expert for examination and the wearing-apparels of the victim Khalaf to the Criminal Investigation Department (CID), Mohakhali for chemical examination.

The P. W. 31 Md. Nure Azam Miah further testifies that he perused the autopsy-report of Khalaf and the chemical examination report of his wearing-apparels, examined the informant and some witnesses and recorded the statements of seven witnesses under Section 161 of the Code of Criminal Procedure and on 15.03.2012, he handed over the case diary to the concerned authority for completion of the investigation of the case.

In his cross-examination, the P. W. 31 Md. Nure Azam Miah states that he did not find any blood-stain at the place of occurrence and there were wet earth and sand there; but he did not seize that earth or sand and he just observed the same and he did not find the outer shell of the fired bullet there.

In his cross-examination, the P. W. 31 Md. Nure Azam Miah denies the defence suggestions that the docket of the case was withdrawn from him because he did not investigate the case properly or that he did not visit the place of occurrence or that he did not examine the witnesses of the place of occurrence or that he did not make any attempt to seize the alamats of the case or that he performed his duty in a perfunctory manner being influenced by and at the instance of some quarters.

The P. W. 32 is Md. Azizul Haque. He states in his evidence that on 15.03.2012, he was on duty as Police Inspector in Detective Branch, DMP, Dhaka and on that day, he took over investigation of the case, perused the docket, visited the place of occurrence, examined four witnesses and recorded their statements under Section 161 of the Code of Criminal Procedure and deposited the alamats of the case with the Malkhana.

The P. W. 32 Md. Azizul Haque also states in his evidence that he sent the alamats of the case, namely, trousers, underwear, vest, keds etc. to the National Forensic DNA Profiling Laboratory (NFDPL), Dhaka for DNA test and he perused the report of the DNA test and  the opinions of the ballistic experts with reference to the seized bullet and by using Mobile Information Technology, he searched and procured various types of photographs from C. C. Televisions and on 13.06.2012, he handed over the docket of the case to the DB.

In his cross-examination, the P. W. 32 Md. Azizul Haque states that he procured the photographs from C. C. Televisions, but he did not seize them and he did not send the bullet which was extracted from the deceased Khalaf for DNA test along with his trousers, underwear etc. in that the bullet was not blood-stained.

In his cross-examination, the P. W. 32 Md. Azizul Haque denies the defence suggestions that he carried out the investigation of the case in a perfunctory manner or that he has deposed falsely.

The P. W. 33 is Md. Obaidul Haque. He deposes that he has been an Assistant Police Commissioner in the Dhaka Metropolitan Detective Branch since 2008 and as per the order of the higher authority dated 12.06.2012, he was entrusted with the task of investigation of Gulshan Police Station Case No. 15 dated 07.03.2012 and on 13.06.2012, he received the docket of the case from the previous Investigating Officer, namely, Mr. Md. Azizul Haque, perused the docket, visited the place of occurrence on 14.06.2012, consulted the informant and previous Investigating Officers of the case and found the narration of the place of occurrence and the sketch-map and the index thereto proper during his investigation of the case.

The P. W. 33 Md. Obaidul Haque further deposes that during investigation, he interrogated the owner of the seized revolver Mr. Md. Abul Hossain and examined his licence and became satisfied that the revolver belonged to him which had been looted away earlier.

The P. W. 33 Md. Obaidul Haque also deposes that on 20.06.2012, he sent the seized revolver and the fired bullet which was extracted  from the body of the deceased to the Ballistic Experts of the CID, Dhaka for verification as to whether the said bullet was fired from the revolver.

The P. W. 33 Md. Obaidul Haque further deposes that on 19.07.2012, he got the reports of the Ballistic Experts of the CID together with the seized revolver, fired bullet and four test-fired bullets, namely, T-1, T-2, T-3 and T-4 and it transpired from the opinions of the Ballistic Experts that the fired bullet was fired from the seized revolver.

The P. W. 33 Md. Obaidul Haque next deposes that on 24.07.2012, he took the accused Saiful Islam, Al Amin, Akbar Ali Lalu and Rafiqul Islam alias Khokon on remand and interrogated them and at the initial stage of interrogation, the accused Khokon told that the private car bearing no. Dhaka Metro-Ga-12-9688 which was used in the commission of the instant offence had been under the control of his father and on the basis of this information of the accused Khokon, he (P. W. 33) took the accused Khokon to Manikdi area under Dhaka Cantonment Police Station and at his showing,  the private car was recovered therefrom in presence of witnesses and he seized the keys, registration papers, tax token, insurance certificate etc. of the car as per seizure-list (Exhibit-10) and afterwards he brought the car along with those articles to the DB office and handed over the same to the Officer-in-Charge of DB Malkhana for safe-keeping vide DB P. R. No. 524/12 (north).

The P. W. 33 Md. Obaidul Haque further deposes that on 25.07.2012, he called the witness Anwar Hossain who saw the private car speeding away immediately after the occurrence and showed the car to him under electric light and he identified the private car as the car which was used for the commission of the offence at the relevant time.

The P. W. 33 Md. Obaidul Haque also deposes that the accused Al Amin wished to make a confession voluntarily in the Court and accordingly he was produced before the Court of the learned Chief Metropolitan Magistrate, Dhaka for recording his confession under Section 164 of the Code of Criminal Procedure on 30.07.2012 and the learned Metropolitan Magistrate Mr. Shahriar Mahmud Adnan recorded his confessional statement on that day.
The P. W. 33 Md. Obaidul Haque next deposes that on 01.08.2012, the accused Akbar Ali Lalu wished to make a judicial confession and accordingly he was produced before the Court of the learned Chief Metropolitan Magistrate, Dhaka and he made his judicial confession under Section 164 of the Code of Criminal Procedure on that day.

The P. W. 33 Md. Obaidul Haque also deposes that having found a prima facie case, he submitted charge-sheet No. 379 dated 19.09.2012 against the accused Saiful Islam alias Mamun, Md. Al Amin, Akbar Ali Lalu alias Roni, Md. Rafiqul Islam alias Khokon and Selim Chowdhury alias Selim Ahmed under Section 396 of the Penal Code, 1860.

In his cross-examination, the P. W. 33 Md. Obaidul Haque denies the defence suggestions that he compelled the accused Akbar Ali Lalu and Al Amin to make their confessions by resorting to various forms of torture or that Lalu did not make the confession voluntarily or that Lalu made the confession being tutored by him and in fear of death.

In his cross-examination, the P. W. 33 Md. Obaidul Haque also denies the defence suggestions that the maid-servant who was employed in the house of the deceased Khalaf was virtually a call- girl or that she used to respond to the calls of rich people.

In his cross-examination, the P. W. 33 Md. Obaidul Haque states that during investigation, he consulted with Saudi Embassy officials, but he did not cite them as witnesses in the charge-sheet.
In his cross-examination, the P. W. 33 Md. Obaidul Haque further denies a defence suggestion that the character of the deceased Khalaf was not good and because of disputes with his maid-servant and internal bickerings, Khalaf was killed by her cohorts.

In his cross-examination, the P. W. 33 Md. Obaidul Haque further states: বহু প­র উদ্ধার হওয়ায় আঙ্গু­লর ছাপ প্রমাণ হ­ব না জে­ন এক্সপা­র্ট দেয়া হয়নি

In his cross-examination, the P. W. 33 Md. Obaidul Haque further states that the seized car was not white, but it was olive- coloured and since it was seized during night-time, it looked like a light white car and he saw the car in sunlight.

Out of 33 (thirty-three) prosecution witnesses, the P. W. 1 Md. Mosharraf Hossain is the informant of the case. As the informant of the case, he has just set the criminal law in motion. Admittedly there is no eye-witness to the occurrence. That being so, the names of the accused-appellants and the absconding accused Selim have not found any place in the FIR. However, the confessional statements of the accused Al Amin and Lalu made under Section 164 of the Code of Criminal Procedure have formed a part of the prosecution version of the case. In such view of the matter, the truth and voluntariness or otherwise of their confessional statements are of paramount importance. Besides, the various alamats seized by the Investigating Officer concerned and produced before the Tribunal below during the trial of the case are to be considered along with the relevant prosecution evidence on record.

There are certain criteria for assessment of the judicial confession of an accused. In the case of Habibur Rahman @ Habib….Vs…The State reported in 8 BLD (HCD) 210, it has been observed in paragraph 15:
 
“15………………………………………….………………………………………………………………………………………….
Before a Court acts upon a confessional statement, it has to affirmatively satisfy that the statement is voluntary and true. In this regard, the judicial authorities always insist on the meticulous observance of all necessary formalities and precautions provided in Section 164 (3) of the Code of Criminal Procedure with minute particularity so as to ensure that the confession is absolutely free from the slightest tinge or taint of extraneous influence. ‘It is a settled principle of law’ as pointed out by a Division Bench of this Court in the case of Zaheda Bewa and another…Vs…The State reported in 1985 BLD 9 ‘that the requirement of adherence to the provisions of Section 164 (3) of the Code of Criminal Procedure is not a mere matter of form, but of substance. Section 164 (3) is a mandatory provision of law as has been settled by the Privy Council in the case of Nazir Ahmed…Vs…The King Emperor, AIR 1936 P.C 253’. Before recording a confession, a Magistrate is bound to make a real and substantial enquiry as to the voluntariness of the confession. In so doing, he must put questions to the accused with a view to finding out the real object of the confession, whether it is made out of repentance or for any other such good reason or whether it is the result of torture or tutoring by some body or whether it has been caused by any inducement, threat or promise. The questions put by the Magistrate and the answers given by the accused furnish sufficient data for coming to the conclusion whether the statement was voluntary or not.”
 
In the decision in the case of Abul Hossain and others Vs. The State reported in 13 BLD (HCD) 311, it has been held, inter alia, in paragraph 7 that Sub-Section (3) of Section 164 speaks of the manner as to how the confession of an accused is to be recorded by a Magistrate and this is a mandatory provision and failure to comply therewith shall make the confession invalid and unreliable. It has been further held therein that this provision of law together with the provisions of Section 364 of the Code of Criminal Procedure require to be strictly observed and followed to make the confession voluntary and true in the real sense to be fit for reliance for convicting an accused on his confession.

In the case of Nurul Haque and another Vs. The State reported in 20 DLR (HCD) 780, it has been spelt out:
“Before recording the confession, it must be explained to the accused that he is not bound to make a confession and if he makes a confession, it may be used as evidence against him. It is a mandatory provision of law. No Magistrate should record any confession unless, upon putting questions to the accused, he has reason to believe that the confession was made voluntarily. Any defect arising out of violation of any mandatory provision of law is not curable under Section 533 of the Code of Criminal Procedure.”

A reference may be made to the decision reported in 1986 (BLD) 436 (Ali Asgar and another Vs. The State). In the said decision at page 438, it has been held:
 
“Now let us consider the value of a retracted confession as against the maker. On consideration of evidence on record, if it is found that a confession is voluntary and true, conviction of the maker himself can solely be based upon the same, no matter whether it is retracted or not. In the case of the State…Vs…Minbun alias Gul Hassan reported in 16 DLR (Supreme Court) page 598, their Lordships of the Supreme Court held as follows:
‘As against the maker himself, his confession, judicial or extra-judicial, whether retracted, or not retracted, can in law validly form the sole basis of his conviction.’ So we are also of the opinion that a confession, if proved true and voluntary, can be the sole basis for conviction of the maker of the confession.”

In the case of the State Vs. Punardhar Joydhar alias Kudu and Shefali reported in 31 DLR (HCD) 312, it has been held that the accused first made a confessional statement under Section 164 of the Code of Criminal Procedure that he committed that murder, although subsequently he retracted his confessional statement before the Court and the confession being found voluntary and without any threat, coercion or inducement, conviction of the accused based on his confession, though subsequently retracted by him, is valid in law.

The principle that has been enunciated in the case of Hazrat Ali and another Vs. The State reported in 1990 BLD (HCD) 38 is that once a confession has been found to be true and voluntary, conviction can be based solely on the confession, even if it is retracted.

The ‘ratio decidendi’ of the case of Bakul Chandra Sarkar Vs. The State reported in 45 DLR (HCD) 260 is that if a confession recorded under Section 164 of the Code of Criminal Procedure is true and voluntary, the same alone is sufficient for convicting the confessing accused and retraction of confession is immaterial, once it is found to be true and voluntary.

The confession of a co-accused is a matter for consideration against another accused if tried jointly with him. By the way, Section 30 of the Evidence Act, 1872 may be referred to:
 
“30. When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other of such persons as well as against the person who makes such confession.”

This Section simply makes the confession of a co-accused a relevant fact. In other words, the confessional statement of a co-accused is admissible against other accused persons in the sense that it may be taken into consideration against them along with other evidence. But for this Section 30, the confessional statement of one accused will be inadmissible in evidence against another accused in view of Section 3 of the Evidence Act.

In the case of Bhuboni Sahu Vs. The King, 76 Indian Appeals, 147, the Privy Council has observed:

“But a confession of a co-accused is obviously ‘evidence’ of a very weak type. It does not indeed come within the definition of ‘evidence’ contained in Section 3 of the Evidence Act. It is not required to be given on oath, nor in the presence of the accused, and it can not be tested by cross-examination. Section 30, however, provides that the Court may take the confession into consideration and thereby, no doubt, makes it evidence on which the Court may act; but the Section does not say that the confession is to amount to proof. Clearly there must be other evidence. The confession is only one element in the consideration of the facts proved in the case; it can be put into the scale and weighed with the other evidence.”

In the decision in the case of Emran Ali @ Md. Emran & others Vs. The State reported in 37 DLR (HCD) 1, it has been held that the statement of a co-accused is not a piece of evidence, because it is not made on oath and also not subjected to cross-examination and the confessional statement of a co-accused can not be the basis of conviction of another accused.

In the decision in the case of Amir Hossain Howlader & others Vs. The State reported in 37 DLR (AD) 139, it has been opined that the statement of a co-accused does not fall within the definition of ‘evidence’ as it is not made on oath in presence of the person affected and its veracity is not tested by way of cross-examination.

In the decision in the case of Rezaul Karim (Md) Vs. The State reported in 55 DLR (HCD) 382, it has been observed that the confession of an accused is not a substantive piece of evidence against the co-accused and as such the confession alone without any substantive corroborative evidence can not form the basis of conviction of a co-accused.

In the decision in the case of The State Vs. Abul Khair and others reported in 44 DLR (HCD) 284, it has been held, inter alia, in paragraph 9 that it is clear from the terms of Section 30 of the Evidence Act that where more persons than one  are being tried jointly for the same offence, a confession made by any one of them affecting himself and any one of the co-accused can be taken into consideration by the Court not only against the maker of the confession, but also against the co-accused. Strictly speaking, it may not be a piece of evidence within the meaning of the term, but it lends assurance to the other evidence on record.

In the decision in the case of The State Vs. Mir Hossain @ Mira and others reported in 56 DLR (HCD) 124, it has been held in paragraph 34:

“34. Under Section 30 of the Evidence Act, confession of a co-accused can be taken into consideration and on the strength of that confession, another co-accused can be convicted provided the said confession is corroborated by any other evidence, either direct and circumstantial.”

In the decision in the case of Joygun Bibi Vs. The State reported in 12 DLR (SC) 156, it has been held, amongst others, in paragraph 9 that the retraction of the confession is wholly immaterial, once it is found that it is voluntary as well as true.

At this stage, let us address the confessional statements of the accused Md. Al Amin and Akbar Ali Lalu alias Roni one by one.

The confession of the accused Md. Al Amin dated 30.07.2012 (Exhibit-11) runs as follows:

আমি টঙ্গীবাজার এলাকায় মোবাইল এর দোকানে  কাজ করতামz আমি ইয়াবা ট্যাব­লট খাইz প্রায়  দেড়  দুই বৎসর আ­গ থে­ক সাইফুল ইসলাম, আকবর আলী @ লালু ভাই,  সেলিম @  সানি এবং রফিকুল ইসলাম খোকন সহ তা­দর কিছু বন্ধু বান্ধ­বর সা­থ আমার ইয়াবা খাই­ত গি­য় পরিচয় হয়z আমি তা­দর জন্য ইয়াবা যোগাড় ক­র দিতাম টঙ্গীবাজার  মুরগী  দোকানদার রিয়া­জর কাছ থে­কz তারা বিভিন্ন ডাকাতি ও ছিনতাই এর সা­থ জড়িত ছিল- এ কথা আমি জানিz গত বছ­রর শে­ষর দি­ক তারা খিল­ক্ষত এলাকায় ডাকাতি ক­র একটা রিভলবার নি­য় আ­সz আমা­র সাইফুল ভাই অস»টি দেখায়z খোক­নর একটা পুরাতন প্রাই­ভট কার আ­ছz সে তার বিভিন্ন বন্ধু  নি­য় আমার কা­ছ ইয়াবা খাই­ত আসতz গত চার মাস পূ­র্ব সন্ধ্যার পর তারা আমা­ক ইয়াবা যোগাড় ক­র রাখ­ত ব­লz অনুমান রাত ১০.০০ টার দি­ক খোক­নর গাড়ী­ত ক­র সাইফুল ভাই, লালু  ভাই, সেলিম ও খোকন কুড়িল বিশ্ব­রা­ডর পা­শ সাঈ­দর ভাঙ্গারীর দোকা­নর পিছ­ন ইয়াবা খে­ত আ­সz আমরা সবাই মি­ল এক সা­থ ব­স ইয়াবা খাই,  অনুমান  রাত সা­ড় এগারটার দি­ক আমি সহ সবাই খোক­নর গাড়ী­ত বের হইz আমি, সেলিম, লালু ভাই  গাড়ীর পিছ­নর সি­ট বসি এবং খোকন গাড়ী চালাচ্ছিল; সাইফুল ভাই তার পা­শ বসা ছিলz ঘুর­ত  ঘুর­ত  রাত ১.০০ টার দি­ক গুলশান এর ০১ নং রো­ড উঁচা-লম্বামতন এক বি­দশী লোক­ক আস­ত ­দখিz তার ব্যায়া­মর পোশাক পরা ছিলz তা­ক আস­ত দে­খ লালু ভাই ব­ল তা­ক ধর­ল  ডলার পাওয়া যাই­বz এরপর খোকন গাড়ীটি ঐ ­লাকটার পা­শ নি­য় গি­য় থামায় z তখন সাইফুল, লালু ভাই ও সেলিম গাড়ী থে­ক নে­ম লোকটি­ক ঘি­র ধ­রz আমি গাড়ী­তই বসা ছিলাম z আমি নামি নাই মাথা  ধর­ছ দে­খz খোকনও গাড়ী ষ্টার্ট অবসÛায় গাড়ী থে­ক নে­ম লোকটির কা­ছ যায়z হঠাৎ দেখি ধস¹াধসি¹ হ­চ্ছz ধস¹াধসি¹র এক পর্যা­য় সাইফুল ভাই গুলি ক­র লোকটা­কz আমি দেখি লোকটা মাটি­ত প­ড় যায়z সবাই খুব âুত গাড়ী­ত উ­ঠ প­ড়z খোকন âুত গাড়ী চালি­য় গুলশান-১ হ­য় কুড়িল বিশ্ব­রাড মো­ড় আমা­ক নামি­য় দি­য় তারা সবাই চ­ল যায়z যাওয়ার সময় সাইফুল  ভাই এই ঘটনা কাউ­ক না বলার জন্য ব­ল ­দয়z প­রর দিন শুনি যে, লোকটি সৌদি আর­বরz এরপর সাইফুল আমার কা­ছ আবার এ­স ইয়াবা ট্যাব­লট নি­য় যায়z  আমা­কও ৫/৬ টা দি­য় যায়z প­র পুলিশ আমা­ক এরেস্ট ক­রz

The confession of the accused Akbar Ali Lalu alias Roni dated 01.08.2012 (Exhibit-12) is in the following terms:

আমি বর্তমা­ন আমার ২য় স»ী­ক নিয়া জয়­দবপুর থানার বোর্ড বাজার থাকিz প্রায় দুই বছর পূ­র্ব থে­ক আমার সা­থ সাইফুল, আল-আমিন, সেলিম @ সানি এবং রফিকুল ইসলাম খোক­নর সা­থ পরিচয়z আমি এর পূ­র্ব  সাইফুল, সোহা­নর সা­থ মহাখালীর নৌ বাহিনীর বাসায় ডাকাতি করিz তা­দর সা­থ আমি নিয়মিত কুড়িল বিশ্ব­রা­ডর  সাঈ­দর  ভাঙ্গারীর  দোকা­নর পিছ­ন ব­স আড্ডা দিতাম এবং ইয়াবা খাইতামz আমি টুকটাক ইয়াবা বেচতামz ঘটনার দিন খোক­নর প্রাই­ভট কা­র ক­র যাই সন্ধ্যার পরz রাত ১১.০০ টা কি ১১.৩০ ঘটিকার সময় সেখা­ন আমি, সাইফুল, আল-আমিন, সেলিম এবং খোকন ব­স ইয়াবা  খাইz পূ­র্ব  খিল­ক্ষত সেবা ক্লিনি­কর বাসায় ডাকতি ক­র সাইফুল একটি অস» নি­য় আ­সz ঘটনার দিন অস»টি তার সা­থ ছিলz আমরা ইয়াবা খে­য় খোক­নর গাড়ী­ত ক­র বের হ­য় ঘুর­ত থাকিz ঘুর­ত ঘুর­ত গুলশান আবাসি­কর একটি রো­ড যাইz গাড়ী­ত আমরা ঠ্যাগ দেয়ার চি¿¹া করিz ঐ সময় রাত ১.০০ টা বা­জz একজন  বি­দশী লোক­ক দেখ­ত পাইz ডলার পাওয়া যাওয়ার কথা চি¿¹া ক­র আমরা গাড়ী থে­ক  নে­ম তা­ক ঘি­র ধরিz  সেলিম তার প­কট হাতা­ত চাই­ল লোকটি বাধা দেয় এবং  চিৎকার ও ধস¹াধসি¹ কর­ত থা­কz তখন সাইফুল গুলি ক­রz আমি গাড়ীর কা­ছ ছিলামz প­র âুত লোকটি মাটি­ত প­ড় গে­ল আমি গাড়ী­ত উ­ঠ যাইz সবাই âুত উ­ঠ প­র ষ্টার্ট দি­য় আমরা চ­ল যাইz আমা­ক খোকন টঙ্গী নামি­য় দি­য় চ­ল যায়z আমি লোকটি­ক কিছু করি নাই z যা ক­র­ছ সব সাইফুল, সেলিম এবং খোকন মি­ল ক­র­ছz তারা সব সময় ডাকাতি ও ছিনতাই ক­রz আমি ঐ দিন সা­থ গেছি এটাই দোষ হই­ছz

There is no denying the fact that the confessional statements of the accused Md. Al Amin and Akbar Ali Lalu have been recorded in the prescribed forms. A reference to the confessional statements clearly and unmist-akably shows that the learned Magistrate Mr. Shahriar Mahmud Adnan (P. W. 20) has recorded the same after substantially complying with all legal formalities. It seems that he has given all statutory warnings to the confessing accused before recording their confessions. Mr. Shahriar Mahmud Adnan, before recording the confessions, has explained to the confessing accused Md. Al Amin and Akbar Ali Lalu that they are not bound to make any confessions and if they do so, those may be used as evidence against them and thereafter he has become satisfied upon questioning them that they are making the confessions voluntarily.

It may be recalled that Mr. Khandker Mahbub Hossain does not dispute the voluntariness and truth of the confessional statement of the accused Akbar Ali Lalu dated 01.08.2012 (Exhibit-12). It has been stated earlier that Mr. Khandker Mahbub Hossain has challenged the propriety and correctness of the sentence of death imposed upon his client Lalu.

Be that as it may, it is the contention of the learned Advocate Mr. Yusuf Hossain Humayun that the confessional statement of the accused Md. Al Amin dated 30.07.2012 (Exhibit-11) is a product of police torture, oppression and maltreatment and as such he submitted a petition in the Tribunal below for retraction of his confession on 02.12.2012. But it does not transpire from the evidence of the P. W. 20 Shahriar Mahmud Adnan that he has found any marks of injuries on the accused Al Amin at the time of recording of his confession. Besides, the accused Al Amin has not complained of any police torture or intimidation to the P. W. 20. The P. W. 20 has recorded the reasons for believing the confessional statement of the accused Al Amin to be voluntary.

Of course, a suggestion has been put to the P. W. 20 Shahriar Mahmud Adnan in his cross-examination on behalf of the accused Al Amin that there were marks of injuries on his person, but that suggestion has been squarely denied by the P. W. 20. Again a suggestion has been put to the Investigating Officer Md. Obaidul Haque (P. W. 33) in his cross-examination that the confession of Al Amin was procured by torture, but that suggestion has been flatly denied by the P. W. 33.

 As a matter of fact, we do not find anything on record that the learned Magistrate Mr. Shahriar Mahmud Adnan (P. W. 20) has recorded the confessional statements of the accused Al Amin and Akbar Ali Lalu in contravention of the mandatory provisions of Sub-Section (3) of Section 164 of the Code of Criminal Procedure. Moreover, the confession-recording Magistrate, after recording the confessions of the accused Al Amin and Lalu, has appended certificates thereto that they have made the confessions voluntarily. On top of that, at the time of their examination under Section 342 of the Code of Criminal Procedure, neither the accused Al Amin nor the accused Lalu has made any allegation about perpetration of any torture upon them by the police before recording of their confessional statements by the P. W. 20 Shahriar Mahmud Adnan. It appears that the learned Deputy Attorney-General Mr. Md. Khurshedul Alam has rightly relied upon the decision in the case of Khalil Mia (condemned-prisoner Vs. The State reported in 4 BLC (AD) 223 in this regard. In that decision, our Appellate Division has held, inter alia, in paragraph 8 that the confession was specifically brought to the notice of the condemned-prisoner while examining him under Section 342 of the Code of Criminal Procedure; but he did not complain anything regarding the nature of his confession. Both the trial Court and the High Court Division, therefore, rightly believed the confession to be true and voluntary.

The record shows that the four accused, namely, Saiful, Al Amin, Lalu and Khokon were shown arrested in this case on 24.07.2012 and the Investigating Officer concerned prayed for ten days’ remand, but the Court of 1st instance allowed eight days’ police remand and ultimately the accused Al Amin and Lalu made judicial confessions to the P. W. 20 Mr. Shahriar Mahmud Adnan under Section 164 of the Code of Criminal Procedure. Had the police really perpetrated torture and oppression upon all the four accused, then the accused Saiful and Khokon would have made confessional statements. The non-making of any judicial confessions by the accused Saiful and Khokon following their police remand is undoubtedly a circumstance to be reckoned with. This circumstance also goes to show that the police did not torture the accused Al Amin and Lalu while on remand before recording of their confessions by the P. W. 20 Mr. Shahriar Mahmud Adnan.

In the decision in the case of Md. Shahidul Islam @ Shahid Vs. The State reported in 8 BLT (HCD) 150, it has been observed that an application for retraction of the confession was made at a belated stage, that is to say, after more than two months of making the confession and if the confession was obtained under duress, there was no reason on the part of the accused to take such a long time for retraction. We are in respectful agreement with this observation.

In the instant case, the confessing accused Al Amin admittedly took more than four months’ time to retract his confession by filing an application on 02.12.2012. Had the police actually obtained the confession from the accused Al Amin under duress, he would not have taken such a long time for retraction of his confession. This aspect of the case can not be lost sight of in any view of the matter. So the allegation of the perpetration of any torture on the accused Al Amin by the police before recording of his confessional statement does not inspire any confidence in us.

It transpires from the confessions of the accused Al Amin and Akbar Ali Lalu that each of them has given a blow-by-blow account of dacoity in the course of which the co-accused Saiful fired the revolver shot on the victim (Khalaf) at the place of occurrence in the early hours of 06.03.2012. Their accounts of the incident of dacoity, as we see them, are very vivid, graphic, pictorial and expansive. It is manifestly clear from their confessions that the victim was fired upon by the co-accused Saiful while committing dacoity by all the accused.

The confessions of the accused Al Amin and Lalu, according to us, stand corroborated by the evidence of the P. W. 16 Dr. Md. Kamrul Hassan Sardar and the autopsy-report. It is the opinion of the P. W. 16 Dr. Md. Kamrul Hassan Sardar that the death of the victim Khalaf was due to haemorrhage and shock resulting from the bullet injury which was ante-mortem and homicidal in nature. Furthermore, recovery of the revolver bearing no. 1616819 from the rented flat of the accused Saiful and the car bearing registration no. Dhaka Metro-Ga-12-9688 from the Cantonment Manikdi area, Dhaka at the showing and identification of the accused Khokon has supported the confessions too.

Let us now scrutinize the decisions referred to by Mrs. Mahmuda Khatun in the cases of Md. Rezaul Karim alias Rezaul Aalm Rikshawala Vs. The State, 23 BLD (HCD) 255; Md. Akbar Ali Vs. The State, 19 BLD (HCD) 268 and Alaluddin alias Alauddin and others Vs. The State, 49 DLR (HCD) 66.

In the decision reported in 23 BLD (HCD) 255, it has been held, inter alia, in paragraph 26 that the confessional statement of a co-accused can not be the basis of conviction of another co-accused and the confession of one co-accused can not be used for corroborating the confession of another co-accused, as both are tainted evidence. There is no dispute about this proposition of law. But in that decision, the learned Additional Sessions Judge solely relied upon the alleged confessional statements of the co-accused in convicting the accused-appellant under Sections 302/34 of the Penal Code and thereby committed an illegality. Taking a cue from this finding in the reported decision, Mrs. Mahmuda Khatun has urged that her client Selim can not be convicted on the basis of his implication in the commission of the offence in the confessional statements of the two co-accused, that is to say, Al Amin and Akbar Ali Lalu. We shall discuss the involvement or otherwise of her client Selim in the commission of the offence at a later stage.

In the decision reported in 19 BLD (HCD) 268 (supra) relied on by Mrs. Mahmuda Khatun, we find that in that decision, there is no independent evidence to corroborate the confessional statement of the accused and secondly the confessional statement appears to be exculpatory in nature and accordingly the conviction on the basis of the exculpatory confession of the accused was overturned by the High Court Division. The reference to this decision by Mrs. Mahmuda Khatun does not appear to be of any avail to her.

The last decision that Mrs. Mahmuda Khatun adverts to has been reported in 49 DLR (HCD) 66. On perusal of that decision, we find that the accused was kept in police custody for 3(three) days preceding his confession and the forwarding report mentioned injuries on his person and that is why, the confession was found to be involuntary. But coming back to the present case, we do not find that the forwarding reports of the accused Al Amin and Lalu mentioned any injuries on their person, albeit they were placed on eight days’ police remand. In the absence of any injuries on the person of the accused Al Amin and Lalu and in view of the unimpeachable, invincible and unblemished evidence of the P. W. 20 Shariar Mahmud Adnan, it can not be held that their confessions were involuntary in character.  Over and above, as already mentioned, Mr. Khandker Mahbub Hossain does not dispute the voluntariness and truth of the confessional statement of his client Akbar Ali Lalu. Against this backdrop, the reference to the decision reported in 49 DLR (HCD) 66 appears to be a shot in the dark.

From the foregoing discussions and regard being had to the facts and circumstances of the case, we are led to hold that the judicial confessions of the accused Al Amin and Lalu are voluntary as well as true.
It has already been stated that there is no eye-witness in this case. This case is essentially grounded upon circumstantial evidence as regards the involvement of the accused Saiful, Khokon and Selim in the commission of the offence. Incidentally we would like to observe that it is well-settled that when a case rests on circumstantial evidence, such evidence must satisfy three tests. In the first place, the circumstances from which an inference of guilt is sought to be drawn must be firmly established by unimpeachable evidence; secondly, the circumstances are of a determinative tendency unerringly pointing towards the guilt of the accused; and thirdly, the circumstances taken cumulatively are incapable of explanation of any reasonable hypothesis save and except that of the guilt sought to be proved against the accused. The circumstances should form a chain so complete that there is no escape from the probability that the crime was committed by the accused and no one else.

By the way, we would like to say that we are clearly conscious that a conviction on circumstantial evidence can not be based unless and until all the inferences to be drawn from the whole history of the case point so strongly to the commission of the crime by the accused that the defence version appears on the face of it impossible or highly improbable. We are also conscious of the principle stated in the case of Md. Luqman Vs. The State, 21 DLR (SC) 461 that a finding of guilt against the accused can not be based merely on the high probabilities that may be inferred from the evidence in a given case. Mere conjectures and probabilities can not take the place of proof. We are also not unmindful of the principle enunciated in the case of Alkas Mia and others Vs. The State, 25 DLR 398 that the Court of law has to  dispense justice in accordance with law and not according to the moral conviction of the Judge with regard to the occurrence.

At this juncture, let us turn to the professed role of the accused Saiful in the commission of the offence. The evidence on record unerringly shows that after apprehension of the accused Saiful in the early hours of 04.06.2012, he told the police party that he had a revolver in his rented flat at 132, Gaoyair Madrasha Road under Dakkhin Khan Police Station, DMP, Dhaka and on the basis of that information, the police party, namely, P. W. 25 Md. Mosleh Uddin, P. W. 26 Md. Mahbubur Rahman Tarafdar, P. W. 27 Kazi Haniful Islam and P. W. 28 K. M. Robiul Islam took the accused Saiful to his rented flat and in presence of the landlord Md. Atiqur Rahman Munshi (P. W. 23) and his son Md. Faisal Ahmed Munshi (P. W. 24), the accused Saiful himself brought out the revolver bearing no. 1616819 from a rack of his kitchen. It appears that the recovery of the revolver has been conclusively proved by the evidence of the P. W. 23 Md. Atiqur Rahman Munshi, P. W. 24 Md. Faisal Ahmed Munshi, P. W. 25 Md. Mosleh Uddin, P. W. 26 Md. Mahbubur Rahman Tarafdar and P. W. 27 Kazi Haniful Islam. Moreover, the P. W. 21 Md. Abul Hossain has identified the revolver as his licensed revolver which was looted away in the course of commission of dacoity from his Khilkhet house previously. A reference to Exhibit-13 indicates that the licence of the revolver is in the name of the P. W. 21.

Precisely speaking, it is the claim of the prosecution that the accused Saiful fired the fatal shot on the victim Khalaf with the revolver bearing no. 1616819. In this connection, the evidence of the P. W. 29 Md. Sabdar Ali and P. W. 30 Md. Jamal Uddin, two Forensic Ballistic Experts, seems to be of vital importance. We do not find any earthly reason on their part to depose falsely or to make any false statements in their respective Forensic Ballistic Reports. There is no evidence or material on record to indicate that they are ill-disposed towards the accused Saiful. The seizure of the four test-fired bullets, namely, T-1, T-2, T-3 and T-4 by the P. W. 33 Md. Obaidul Haque as per seizure-list dated 19.07.2012 (Exhibit-15) has been well proved by the evidence of the P. W. 27 Kazi Haniful Islam and P. W. 33 Md. Obaidul Haque. From a combined reading of the evidence of the P. W. 29 Md. Sabdar Ali and P. W. 30 Md. Jamal Uddin coupled with the Forensic Ballistic Report dated 18.03.2012 (Exhibit-16) and Forensic Ballistic Report dated 19.07.2012 (Exhibit-17), we find that the accused Saiful fired the fatal shot on the victim Khalaf from the revolver bearing no. 1616819.

What we are driving at boils down to this: the evidence of the P. W. 21 Md. Abul Hossain, P.W. 23 Md. Atiqur Rahman Munshi, P. W. 24 Md. Faisal Ahmed Munshi, P. W. 25 Md. Mosleh Uddin, P. W. 26 Md. Mahbubur Rahman Tarafdar, P. W. 27 Kazi Haniful Islam, P. W. 29 Md. Sabdar Ali, P. W. 30 Md. Jamal Uddin and P. W. 33 Md. Obaidul Haque  and the attending circumstances of the case are so intertwined and  interwoven that  a man of ordinary prudence will come to the conclusion that no one else, but the accused Saiful himself fired the fatal revolver shot on the victim Khalaf on the drain-slab on the northern side of Road No. 120 which is on the southern side of House No. 19/B, Road No. 117, Gulshan Police Station, DMP, Dhaka at the  time of commission of dacoity.

It transpires from the record that the accused Khokon is a driver by profession and he has also stated so in his petition of appeal. It is in the evidence of the P. W. 33 Md. Obaidul Haque that at the instance of the accused Khokon, the car bearing no. Dhaka Metro-Ga-12-9688 was recovered from Manikdi area and he seized the same as per seizure-list dated 24.07.2012 (Exhibit-10) in presence of the P. W. 18 Abul Hossain and P. W. 19 Md. Motiur Rahman. The recovery of the car at the showing and identification of the accused Khokon from the Cantonment Manikdi area, Dhaka, in our opinion, has been proved by the evidence of the P. Ws. 18, 19 and 33 beyond any shadow of doubt. The seizure-list dated 24.07.2012 (Exhibit-10), it goes without saying, is a corroboration of the substantive evidence adduced by all these three prosecution witnesses. What is more, on 25.07.2012, the P. W. 22 Md. Anwar Hossain identified the car at the DB office which he saw immediately after the occurrence while it was speeding away. The evidence of the P. W. 22 Md. Anwar Hossain to that effect can not be brushed aside at all.

In the case of Kashmira Singh Vs. The State of Madhya Pradesh reported in AIR 1952 SC 474, the Indian Supreme Court has spelt out:
 
“The confession of an accused person can only be used against a co-accused to lend assurance to other evidence against the co-accused. The proper way to approach a case of this kind is, first, to marshal the evidence against the co-accused excluding the confession altogether from consideration and see whether, if it is believed, a conviction could safely be based on it. If it is capable of belief independently of the confession, then it is not necessary to call the confession in aid. But cases may arise where the Judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction. In such an event, the Judge may call in aid the confession and use it to lend assurance to other evidence and thus fortify himself in believing that without the aid of the confession, he would not be prepared to accept.” 

In the case of Moqbul Hossain Vs. The State reported in 12 DLR SC 217, the Pakistan Supreme Court has held:

“The language of the section (Section 30 of the Evidence Act) is very guarded and lends no warrant to the inference that such a statement made by a co-accused could be treated as substantive evidence against the other person sufficient to sustain his conviction. It is well-settled that there ought to be other evidence, whether direct or circumstantial, linking such a person with the crime, before a confession made by a co-accused could be adverted to, in adjudging the guilt of that person.”

We have already found the judicial confessions of the co-accused Al Amin and Lalu voluntary and true. Those confessions obviously lend assurance to the overwhelm-ingly incriminating evidence on record against the accused Saiful and Khokon as detailed above. We call in aid the confessions of the co-accused Al Amin and Lalu only to fortify ourselves in our finding that the accused Saiful and Khokon were very much connected with the commission of dacoity in the course of which Khalaf was shot at by the accused Saiful. The incriminating circumstances appearing against the accused Saiful and Khokon, to be sure, are full, complete and self-contained. They are of a conclusive nature. We do not find any missing link in those circumstances. The circumstances taken cumulatively are incapable of explanation of any reasonable hypothesis save and except that of the guilt of the accused Saiful and Khokon. In such a posture of things, they can not eschew their penal liability. In a word, the culpability of the accused Saiful and Khokon vis-à-vis the occurrence has been brought home to us, apart from the involvement of the accused Al Amin and Lalu therein.

It is the contention of Mr. Yusuf Hossain Humayun and Mr. Md. Khabir Uddin Bhuiyan that admittedly the finger-prints on the revolver were not examined by any expert and in the absence of examination of the finger-prints on the revolver, the prosecution case is suspect entitling the accused Saiful to acquittal on the score of benefit of doubt. The evidence on record shows that the revolver was recovered from the rented flat of the accused Saiful long after three months of the occurrence. During this long interval, the revolver might have been used either by Saiful or by his cohorts at some points of time making the earlier finger-prints thereon blurred. By that reason, the Investigating Officer Md. Obaidul Haque (P. W. 33) did not think it proper to get the finger-prints on the revolver examined in this case. In such a situation, we hold that the prosecution case has not been affected on merit in the absence of examination of the finger-prints on the revolver bearing no. 1616819 which was used in the commission of the offence.

As to the argument of Mr. Yusuf Hossain Humayun that the P. W. 31 Md. Nure Azam Miah (1st Investigating Officer) did not seize any wet earth from the place of occurrence nor did he seize any blood-stain therefrom rendering the prosecution case doubtful, it is in the cross-examination of the P. W. 31 that he did not find any blood-stain at the place of occurrence at the time of his visit and although there were wet earth and sand there, he did not seize and just observed the  same. In the facts and circumstances of the case and in view of the evidence on record, the non-finding of any blood-stain at the place of occurrence and the non-seizure of any wet earth or sand therefrom, in our estimation, do not render the prosecution case doubtful. So we are not impressed by this contention of Mr. Yusuf Hossain Humayun.

A question may arise as to the colour of the car bearing registration no. Dhaka Metro-Ga-12-9688─ whether it is white or olive-coloured? In this context, the finding of the learned Tribunal Judge appears to be very well-reasoned which is as follows:

আসামী পক্ষ শুধু দাবী ক­র­ছ জব্দকৃত গাড়ীর রং জলপাই রং­য়রz বাস¹বতার নিরি­খ বি­শ্লষণ কর­ল প্রতীয়মান হয় যে, জলপাই রং­য়র গাড়ী রা­তর বেলায় সাদা রং­য়র ম­তা ব­লই প্রতীয়মান হয়z সাক্ষীরা জব্দকৃত গাড়ী­ক সম্পূর্ণ সাদা রং ব­ল নাইz তারা ব­ল­ছ সাদা রং­য়র ম­তা গাড়ীz সুতরাং জব্দকৃত গাড়ী ঘটনার সময় ব্যবহ্রত গাড়ী এ বিষ­য় কোন স­ন্দহ নাইz

The reason assigned in support of the above finding, to our mind, is realistic, pragmatic and very much in consonance with the relevant prosecution evidence on record. Besides, as already found, the car in question was recovered from the Cantonment Manikdi area at the showing of the accused Khokon and subsequently indentified by the P. W. 22 Md. Anwar Hossain at the DB Office, Minto Road, Dhaka. So we are completely at one with the learned Tribunal Judge on this point.

It is on record that the P. W. 1 Sub-Inspector Md. Mosharraf Hossain (informant) seized a pair of trousers, a pair of keds, a torn vest, a torn underwear etc. as per seizure-list dated 06.03.2012 (Exhibit-2). Needless to say, the seizure of those articles has been proved by the P. W. 1 Sub-Inspector Md. Mosharraf Hossain himself, P. W. 6 Md. Ripon and P. W. 7 Md. Maksudur Rahman. The seized wearing-apparels and keds of the deceased Khalaf were sent for chemical examination and the chemical examination report dated 12.03.2012 is self-explanatory being a proved document under Section 510 of the Code of Criminal Procedure. As per the chemical examination report dated 12.03.2012, the seized keds and wearing-apparels contained human blood. So there can not be any shred of doubt that the keds and wearing-apparels contained the blood of the Saudi diplomat Khalaf.

We have mentioned earlier that Mr. Khandker Mahbub Hossain does not dispute the time, place and manner of the occurrence; but Mr. Yusuf Hossain Humayun disputes the place and manner of the occurrence, though he does not dispute the time of the occurrence. Anyway, we have already found the place of the occurrence, that is to say, drain-slab on the northern side of Road No. 120 which is on the southern side of House No. 19/B, Road No. 117, Gulshan Police Station, DMP, Dhaka as testified to by the prosecution witnesses concerned. Over and above, the place of occurrence has been pinpointed by the letter ‘A’ in the sketch-map as indicated in the index thereto. Although Mr. Yusuf Hossain Humayun challenges the place and manner of the occurrence, yet he fails to cast any reasonable doubt thereon, regard being had to the evidence and materials on record.  Under the circumstances, the challenge as to the place and manner of the occurrence by Mr. Yusuf Hossain Humayun falls through.

We have already discussed the involvement of the accused Saiful, Al Amin, Lalu and Khokon in the commission of the offence. As to the absconding accused Selim, it seems that there are mainly two circumstances appearing against him-(1) his continuous unexplained abscondence since the commission of the offence and (2) his implication in the commission of the offence in the judicial confessions of the two co-accused, namely, Al Amin and Lalu.  In this connection, a million-dollar question arises: Are those two circumstances sufficient for the conviction of the accused Selim?

However, both the Deputy Attorney-General Mr. Md. Khursedul Alam and the Attorney-General Mr. Mahbubey Alam have submitted that in view of the evidence of the P. W. 23 Md. Atiqur Rahman Munshi and P. W. 24 Md. Faisal Ahmed Munshi, it is crystal clear that the accused Selim lived with the accused Saiful in his rented flat and the accused Selim happened to be a maternal cousin of the wife of the accused Saiful and it is on record that Saiful and others were accused in a number of cases which were initiated prior to the present case and since Selim and Saiful lived together in the rented flat and since earlier Selim and others were accused in a case, it may be presumed that Selim’s living together with Saiful in the self-same rented flat is an incriminating circumstance indicating Selim’s  involvement in the commission of the instant offence which ought to be taken into account along with his implication in the commission of the offence in the confessions of the co-accused  Al Amin and  Lalu and Selim’s continuous unexplained abscondence. In view of this submission of Mr. Md. Khurshedul Alam and Mr. Mahbubey Alam, a pertinent question crops up: Does Selim’s living together with Saiful in the self-same rented flat give rise to any presumption that Selim was involved in the commission of the instant offence? The answer is obviously in the negative, though Selim was an accused along with others in an earlier case, namely, Pallabi Police Station Case No. 22(1)11 under Sections 395/397/412 of the Penal Code.

It is true that immediately after the occurrence, the accused Selim absconded and has been on the run as of now. This long unexplained abscondence of the accused Selim is, no doubt, a relevant fact under Section 8 of the Evidence Act and favours the prosecution pointing a finger at his alleged guilt, though abscondence by itself is not conclusive of one’s guilt. This unexplained abscondence of the accused Selim, in our view, is a supporting circumstance which must be considered along with the substantive evidence on record, if any, forthcoming against the accused Selim. The implication of the accused Selim in the commission of the offence in the confessions of the two co-accused, namely, Al Amin and Lalu, it is well-settled, is not a piece of substantive evidence within the meaning of Section 3 of the Evidence Act. This implication of the accused Selim in the commission of the offence in the confessions of the two co-accused may lend support to the independent evidence on record, if any, connecting him with the commission of the offence. To sum up, apart from the abscondence of the accused Selim and his implication in the commission of the offence in the confessions of the co-accused Al Amin and Lalu, we do not find any independent substantive evidence on record linking the accused Selim with the commission of the offence. This being the panorama, we can not find the accused Selim guilty along with the co-accused Saiful, Al Amin, Lalu and Khokon.  In this context, the reference made by the learned Deputy Attorney-General Mr. Md. Khurshedul Alam to the decisions in the cases of The State Vs. Md. Gaush Meah alias Rana and others, 10 BLC (HCD) 74 and The State Vs. Moslem, 55 DLR (HCD) 116 has misfired. Having regard to the totality of the evidence and materials on record and in the facts and circumstances of the case, we are inclined to award the benefit of doubt to the accused Selim.

The defence version of the case that the victim Khalaf was a man of immoral character and his maid-servant was a call-girl and she along with others caused the death of Khalaf at the relevant time and the confessions of the accused Md. Al Amin and Akbar Ali Lalu are the products of police torture, oppression and maltreatment do not receive any support or indication from the evidence and materials on record. So we are of the opinion that the defence version is a blatant falsehood. It is like “A drowning man catches at a straw.”

It seems that the learned Advocate Mr. Khandker Mahbub Hossain has rightly pointed out that there are three options in Section 396 of the Penal Code in respect of awarding of sentence to the accused. However, we deem it worthwhile to quote Section 396 of the Penal Code which runs as under:

“396. If any one of five or more persons, who are conjointly committing dacoity, commits murder in so committing dacoity, every one of those persons shall be punished with death, or imprisonment for life, or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.”

As there are three options in respect of awarding of sentence in Section 396 of the Penal Code, it lies at the discretion of the Court to award an appropriate sentence to each of the accused, regard being had to his individual culpability and role in the commission of the offence, though dacoity is a conjoint offence. The measure of punishment in a given case must depend upon the atrocity of the crime; the conduct of the criminal and the defenceless and unprotected state of the victim. Imposition of appropriate punishment is the manner in which the Court responds to the society’s cry for justice against the criminals. Justice demands that the Court should impose punishment befitting the crime so that the Court reflects public abhorrence of the crime. The Court must not only keep in view the rights of the criminal, but also the rights of the victim of the crime and the society at large while considering imposition of appropriate punishment.

It is axiomatic that in the criminal justice delivery system, sentencing is the cutting-edge of the judicial process. In sentencing any accused, aggravating factors can not be ignored and similarly mitigating circumstances have also to be taken into consideration.

In the case of the State Vs. Rokeya Begum alias Rokaya Begum and another (condemned-prisoners) reported in 13 BLT (HCD) 377, it has been stated in paragraph 51:

“51. Sentencing discretion on the part of a Judge is the most difficult task to perform. It is, also, not possible to lay down any cut and dry formula for imposition of sentence, but the object of sentence should be to see that crime does not go unpunished and the victim of crime as, also, the society has the satisfaction that justice has been done. It will be a mockery of justice to permit the accused to escape the extreme penalty of law when faced with such evidence and cruel act perpetrated by the offenders. To give lesser punishment to the condemned prisoners who stand convicted in a shocking and revolting crime would render the Justicing System of the country suspect. Sympathy to impose inadequate sentence would do more harm to Justice System to undermine public confidence in the efficacy of law.”

In the decision in the case of Madan Gopal Kakkad Vs. Naval Dubey and another reported in 3 SCC (1992) 204, it has been observed in paragraph 58:

“58. We feel that Judges who bear the Sword of Justice should not hesitate to use that Sword with the utmost severity, to the full and to the end, if the gravity of the offence so demands.”

In the decision in the case of Geedo and others Vs. The State reported in 1986 P. Cr. L. J Karachi 2192 adverted to by Mr. Khandker Mahbub Hossain, it has been spelt out:
 
“…………………………………………….…………………............................................But the case of dacoity accompanied with murder should be viewed separately. Here no member of the band had a premeditated design to kill any particular person. The paramount intention of each member of the gang was to acquire property. The lust for booty and not the lust for blood was the motivating force behind the mind of each member which brought them to the scene of the crime. Individually and collectively they were keen to avoid any clash and would resort to force most reluctantly much against their will. This inhibition to cause any injury, simple or grave, would be shared by each of them whether his fingers are on the trigger of his gun or on the lock of the safe. The bodily injuries caused during such an encounter usually occur much to their distress and out of sheer necessity for accomplishing the object. The intruder causing death has no previous enmity with his target. More often than not such a misfortune occurs in an effort to break the cordon and ensure their escape. Can any discrimination be made between any one of them and can it be said that the quantum of retribution to each would depend on the part played by each? In my humble opinion, the legislative intent specified in Section 396, P.P.C., provides the answer.
………………………………………………………………………………………………
There is no doubt that in the case on hand all the five convicts who were armed to the teeth reached the scene of offence with intention to commit dacoity. They all shared the common intention to commit dacoity. None of them even Geedo who fired the fatal shot had any design or premeditated intention to cause death of Bhambho. But once it is shown that murder was committed by Geedo while all the five were “conjointly committing dacoity”, then all of them would be equally liable for the murder. Had it been a case of murder punishable under Section 302, P.P.C. then each one of them could not be made liable until his individual role was not determined in terms of Section 34. But Section 396 has a combined effect of Sections 302 and 34, P.P.C. The concept of immunity for those to whom no overt act is attributed is misconceived in the present situation. This is a case where the intention from the start to the end for committing dacoity is common. Their very presence during the commission of the offence would be deemed to be an overt act and enough to saddle them with the consequences prescribed in the Section.”

While referring to the other decision reported in 40 Cr. L. J Allahabad 132 (Lal Singh Vs. Emperor), Mr. Khandker Mahbub Hossain has laid much emphasis on its last paragraph which is in the following terms:

“There remains the question of sentence. It is true that a man was wounded in the dacoity and eventually died. It is also true that the accused carried a gun in this dacoity. But it is stated that there were several guns carried in this dacoity and none of the witnesses say that the accused was the man who fired the shot which had fatal effects. We do not consider that as a general rule a sentence of death should necessarily follow a conviction under Section 396, Indian Penal Code, and this Section differs from Section 302, Indian Penal Code in that respect. The rule is under Section 302 that a sentence of death should follow unless reasons are shown for giving a lesser sentence, no such rule applies to Section 396, Indian Penal Code. Accordingly we find no reason in this case why the sentence of death should be imposed. We, therefore, maintain the conviction of Lal Singh under Section 396, Indian Penal Code, and we reduce the sentence from a sentence of death to a sentence of transportation for life.”

Reverting to the case in hand, we find that out of all the accused, only the accused Saiful was armed with a revolver. At the time of commission of the offence, the victim Khalaf was defenceless and in jogging apparels. There is nothing on record to show that the accused were encircled by the local people at the material time and with a view to effecting their escape, the accused Saiful fired the fatal revolver shot on the victim Khalaf resulting in his eventual death at the United Hospital, Dhaka. In any case, the firing of the fatal revolver shot on Khalaf by the accused Saiful was not necessitated by the exigency of the situation and it was senseless indeed.
As to the case of Emperor Vs. Nga Tha Hmwe and others reported in AIR 1935 Rangoon 504 adverted to by the learned Attorney –General Mr. Mahbubey Alam, we find that  the facts and circumstances of that case are quite distinguishable from those of the instant case. So the aforesaid referred case is an exercise in futility.

According to the observation of the Indian Supreme Court in the case of Madan Gopal Kakkad Vs. Naval Dubey and another, 3 SCC (1992) 204 (supra), we feel that we should not hesitate to use the Sword of Justice with the utmost severity, to the full and to the end in so far as the accused Saiful is concerned. There goes an age-old adage- “Give the Devil his due”. So we are of the opinion that the ends of justice demand that the accused Saiful be awarded the extreme penalty of death. We see eye-to-eye with the learned Tribunal Judge on this question.

As regards the remaining three condemned-appellants, namely, Md. Al Amin, Akbar Ali Lalu alias Roni and Md. Rafiqul Islam alias Khokon, we have already found that they were involved in the commission of dacoity, though they did not inflict any injuries on the victim Khalaf. But in any event, they should be awarded deterrent punishment commensurate with their culpability and roles in the commission of the offence. We think, the ends of justice will be sufficiently met if those three accused, that is to say, Md. Al Amin, Akbar Ali Lalu and Khokon are sentenced to imprisonment for life.

In order to commit ‘dacoity’, there must be at least five persons as contemplated by Section 391 of the Penal Code. So naturally a question arises as to whether the four accused, namely, Saiful Islam, Md. Al Amin, Akbar Ali Lalu and Khokon can be convicted and sentenced under Section 396 of the Penal Code. On this question, there is an illuminating decision in the case of Wahed alias Abdul Wahed alias Sk. Abdul Wahed and others Vs. The State reported in 8 DLR (Dhaka) 50. In that decision, it has been held:

“Mr. Abdullah, lastly, argued that only four persons out of fifteen on trial have been convicted on a charge of dacoity and as such the conviction is not maintainable in law, as to constitute an offence of dacoity there must be at least five persons involved therein .……………..………………………………………………………………………………………………………………………………………………………………………………………………... …………………..
In the case before us as many as 15 persons were tried on a charge under Section 396 of the Pakistan Penal Code, that is, dacoity with murder. Out of these, 11 were acquitted of the charge for want of sufficient evidence. There is no finding in the judgment of the learned Additional Sessions Judge that only these four appellants took part in the dacoity. The evidence on record shows that the number of the persons was not 5 but much more than 5. Moreover, the ‘dacoity’ occurring in the charge, according to the provisions contained in Section 294 Cr. P.C. is to be taken to bear the same sense in which it has been defined in Section 391 of the Pakistan Penal Code. Further, the charge as it stood contains 15 names and accordingly no fault can be found therewith. The appellants knew very well that they had to meet a charge of dacoity with murder and the defence, as a matter of fact, was conducted on that line. We, accordingly, hold that no surprise was sprung on the appellants at any stage of the trial and no failure of justice has been occasioned on account of their conviction under Section 396 of the Pakistan Penal Code. In any view of the matter, this conviction can not be said to be wrong in law inasmuch as it does not infringe any mandatory provision of law.”

In the present case before us, as many as five accused including the absconding accused Md. Selim Chowdhury were charge-sheeted under Section 396 of the Penal Code. They also faced trial under that Section of the said Code. Defence was necessarily conducted on that line. It may be recalled that we have awarded the benefit of doubt to the accused Md. Selim Chowdhury in the absence of any independent substantive evidence on record connecting him with the commission of the offence. Following the ‘ratio decidendi’ of the decision reported in 8 DLR (Dhaka) 50, the conviction  recorded against the four accused, namely, Saiful Islam, Md. Al Amin, Akbar Ali Lalu  and Khokon under Section 396 of the Penal Code can not be found fault with.

From the aforementioned discussions and in the facts and circumstances of the case, we do not find any merit in Criminal Appeal Nos. 251 of 2013 and 273 of 2013 and Jail Appeal Nos. 07 of 2013, 08 of 2013, 09 of 2013 and 10 of 2013. As such, all those appeals are dismissed with the commutation of the death sentence of the appellants Md. Al Amin, Akbar Ali Lalu alias Roni and Md. Rafiqul Islam alias Khokon to imprisonment for life.  The death sentence awarded to the appellant Saiful Islam alias Mamun does not call for any interference from this Court. In the result, the Death Reference is accepted in part and the sentence of death imposed upon him (Saiful Islam alias Mamun) is maintained. The absconding accused Md. Selim Chowdhury alias Selim Ahmed is acquitted of the charge on the ground of benefit of doubt. Accordingly the impugned judgment and order stands modified.

Let the records of the Tribunal below along with a copy of this judgment be sent down immediately for information and necessary action.

Ed.