Humayun Kabir Chowdhury Vs. The State 2017 (2) LNJ 280

Case No: Criminal Appeal No. 1669 of 2005 with Criminal Appeal No. 1798 of 2005 with Criminal Appeal No. 1614 of 2005 with Criminal Appeal No. 1785 of 2005 with Criminal Revision No. 1105 of 2005 with Criminal Revision No. 855 of 2005.

Judge: M. Enayetur Rahim. J.

Court: High Court Division,

Advocate: Md. Rezaul Huq, Ms. Sakila Farzana, Mr. Mahbubey Alam,

Citation: 2017 (2) LNJ 280

Case Year: 2014

Appellant: Humayun Kabir Chowdhury

Respondent: The State

Subject: Criminal Law

Delivery Date: 2017-12-20

HIGH COURT DIVISION

(CRIMINAL APPELLATE JURISDICTION)

 

M. Enayetur Rahim, J

And

Md. Akram Hossain Chowdhury, J.

Judgment on

12.02.2014

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Humayun Kabir Chowdhury

. . . Appellant

-Vs-

The State

. . . Respondent

(In Criminal Appeal No. 1669 of 2005)

With

Abu Naser Chowdhury

. . .Appellant

-Vs-

The State

. . . Respondent

(In Criminal Appeal No. 1798 of 2005)

With

Md. Selim

. . . Appellant

-Vs-

The State

. . . Respondent

(In Criminal Appeal No. 1614 of 2005)

With

Shohel alias Abdul Malek Shohel

. . .Appellant

-Vs-

The State

. . . Respondent

(In Criminal Appeal No.1785 of 2005)

With

A.K.M Emtajul Islam

. . . Petitioner

-Vs-

Abu Naser Chowdhury and others

. . . Respondents

(In Criminal Revision No. 1105 of 2005)

With

A.K.M Emtajul Islam

. . . Petitioner

-Vs-

Saiful Islam alias Saiful @ Bilai Saiful and another

. . . Respondents

(In Criminal Revision No. 855 of 2005)

Penal Code (XLV of 1860)

Section 120A

Here we have to emphasis, ‘Conspiracy’, an inchoate offence, refers to an act of agreeing to commit a substantive crime to further plan and policy.    . . . (95)

Penal Code (I of 1860)

Section 120A

The criminal conspiracy doctrine only requires overlapping chains of agreement that link the physical perpetrator to the accused. However, the lack of a direct agreement between the physical perpetrator and other accused persons is no bar to applying the conspiracy doctrine as long as the chain of overlapping agreements connects them.                                                             ...(96)

Penal Code (XLV of 1860)

Section 120A

It is now well settled that it is not required to prove that each and every persons who is a party to the conspiracy must do some overt act towards the fulfillment of object of the conspiracy. The essential ingredient being an agreement between the conspirators to commit crime since from its very nature a conspiracy is hatched in secrecy direct evidence of a criminal conspiracy to commit a crime may not be available. The circumstantial evidence which is available from which an inference giving rise to the commission of offence may be legitimately drawn. . . . (99)

Penal Code (XLV of 1860)

Section 120A

Code of Criminal Procedure (V of 1898)

Sections 417A and 423

Learned Judge of the Druta Bichar Tribunal rightly and lawfully found guilty to accused Abu Naser Chowdhury and Humayun Kabir for committing Criminal Conspiracy in committing murder of the decease under section 120B/302 of the Penal Code. However, the learned Judge has committed an error in awarding lesser sentence to accused Abu Naser and Humayun Kabir; the learned judge awarded an inadequate sentence of five years against them having though there is a provision of capital punishment or imprisonment for life under section 120B of the Penal Code for the same offence. However, nothing has been elaborately discussed in the impugned judgment about to such minor punishment. In view of the evidence, facts and circumstances as remained in the case and the discussions made herein above, we are in a considered view that the said punishment awarded by the trial court should have to be altered and enhanced. . . . (103)

Evidence Act (I of 1872)

Section 8

Abscondence of an accused is not conclusive proof of his guilty and cannot be the sole basis of his conviction without corroborative evidence.                    . . . (108)

Evidence Act (I of 1872)

Sections 8 and 9

In the instant case accused Saiful was identified in TI parade by P.W-1, which was conducted by a Magistrate P.W-11. And after obtaining bail he was absconded and did not face the trial to defend himself. This circumstance furnished strong corroboration to the prosecution case that he is the culprit and it may lend weight to TI parade. Thus, the Tribunal most illegally acquitted accused Saiful alias Belai Saiful.          . . . (109)

Evidence Act (I of 1872)

Sections 9 and 157

No TI parade was held in respect of him. Identification in the dock by PW-3 in absence of any other corroborative evidence cannot be considered as reliable evidence. The learned Judge of the Druta Bichar Tribunal in finding his guilt in this particular case had considered his other criminal cases which cannot be appreciated. Thus, we are of the opinion that the Tribunal committed serious illegality in convicting the accused Sohel and he is liable to be acquitted.                                           ...(110)

Major Bazlul Huda Vs. State, 62 DLR (AD), 1; State of H.P. Vs. Krishan Lal Pardhan, (1987) 2 SCC, 17; State of Maharashtra Vs. Som Nath Thapa, (1996) 4 SCC, 259 and Yash Pal Mittal Vs. State of Panjub, (1977) 4 SCC, 540 ref.

Mr. Monsurul Hoque Chowdhury, Advocate, With

Mr. Mohammad Rezaul Hoque, Advocate

(In Crl. A. No. 1669 of 2005)

Mr. Yousuf Hossain Humayun, Advocate, With

Mr. Nurul Islam Sujan, Advocate,

Mr. J.K. Paul, Advocate,

Mr. Farid Uddin Khan, Advocate,

Mr. Sheikh Mohammad Ali, Advocate

and

Mr. Md. Abu Hanif, Advocate

(In Crl. A. No. 1798 of 2005)

Mr. Monsurul Hoque Chowdhury, Advocate, With

Mr. Mohammad Rezaul Haque, Advocate

(In Crl. A. No. 1614 of 2005)

----For the Appellant

Ms. Sakila Farzana, Advocate 

(In Crl. A. No. 1785 of 2005)

Mr. Khandaker Mahbub Hossain, Advocate, With

Mr. Abdur Razzak Khan, Advocate

Mr. A.S.M Abdul Mubin, Advocate

and

Mr. S.K. Mohammad Ali, Advocate

. . . . For the Petitioner

(In Crl.Rev.No.1105 of 2005)

Mr. Fazlul Hoque Khan Farid, Advocate with

Mr. S.K. Mohammad Ali, Advocate

(In Crl. Rev. No. 855 of 2005)

 ----For the Petitioner

Mr. Mahbubey Alam, Attorney General, With

Mr. Mosharaf Hossain Sarder, DAG,

Mr. Khandaker Diliruzzaman, DAG,

Mr. Gazi Md. Mamunur Rashid, AAG and

Mr. Md. Asaduzzaman, AAG

---- For the State

JUDGMENT

M. Enayetur Rahim, J:  All the above appeals and Rules have arisen out of the same judgment and order of conviction and sentence dated 07.04.2005 passed by the learned Sessions Judge and Divisional Druta Bichar Tribunal, Chittagong in Druta Bichar Case No.25 of 2004, arising out of Panchlaish Police Station Case No.8(4)2004 corresponding to G.R. No.236 of 2004 and those were heard together and disposed of by this common judgment.

2.            Criminal Appeal No.1669 of 2005 and Criminal Appeal No.1798 of 2005 have been filed by convict Humaun Kabir Chowdhury and Abu Naser Chowdhury respectively, who were convicted under section 120(B)/302 of the Penal Code and sentenced each of them to suffer rigorous imprisonment for 05(five) years and to pay a fine of Tk.50,000/- each; in default to suffer rigorous imprisonment for 2(two) years more.

3.            Criminal Appeal No.1614 of 2005 and Criminal Appeal No.1785 of 2005 has been filed by convict Md. Selim and convict Shohel alias Abdul Malek Sohel respectively who were convicted under section 302/34 of the Penal Code and sentenced to suffer imprisonment for life with a fine of Taka 50,000/- each; in default to suffer rigorous imprisonment for 05(five) years more.

4.            At the instance of the informant of the case a Rule vide Criminal Revision No.1105 of 2005 was issued calling upon the opposite parties (convict Humayun Kabir Chowdhury and Abu Naser Chowhury and the state) to show cause as to why the impugned judgment and order dated 07.04.2005 passed by the learned Judge (Sessions Judge) Divisional Druta Bichar Tribunal, Chittagong in Druta Bichar Case NO.25/04 arising out of Pachlaish Police Station Case No. 8(4)/04 corresponding to G.R. No. 236/04 though convicting them under Section 302/120B of the Penal Code but sentencing them inadequacy to suffer a rigorous imprisonment for 5(five) years each and to pay a fine of Tk.50,000/-; in default to suffer rigorous imprisonment of 2 years more should not be enhanced and why legal punishment shall not be imposed upon them and/or pass such other or further order and orders passed as to this Court may seem fit and proper. At the instance of the informant another Rule was also issued vide criminal Revision No.855 of 2005 calling upon the opposite parties to show cause as to why the judgment and order dated 7.04.2005 passed by the learned Judge, Druta Bhicar Tribunal, Chittagong in Druta Bichar Case No.25 of 2004 so far as it relates to acquittal of the accused opposite party No.1 (Saiful Islam alias Saiful @ Belai Saiful) should not be set aside and/or such other or further order/or orders passed as to this court may seem fit and proper.

5.            The present convict-appellants and opposite party no.1 in Criminal Revision No.855 of 2005 (here in after referred as accused) and two others were put on trial before the Divisional Druta Bichar Tribunal, Chittagong in Druta Bichar Tribunal Case No.25 of 2005 and charges were framed against them under Sections 120B/302/109/34 of the Penal Code to which all the accused persons pleaded not guilty and claimed to be tried.

6.            The prosecution case as stated by the informant P.W-1, in short, is that: on 11.04.2004 at about 11.00 A.M. he along with Commodore Golam Rabbani (Deceased), Managing Director of Karnaphuli Export Processing Zone (KEPZ), Civil Engineer Salam Majumder, Assistant Engineer Abul Kalam Azad, Deputy Manager Abul Kalam Azad, Sub-Assistant Engineer Abdullah Al Baki started for KEPZ site from their office at Chittagong EPZ by a vehicle of the company, which was being driven by Company’s driver Sadeque (PW-13) and while they had crossed Muradpur crossing and traveled about 200 yards to Bahaddarhat, suddenly a green colour private car intercepted their vehicle and 4/5 unknown armed persons, aged at about 25/30, having got down from the said car came to their vehicle and opened the door of their vehicle and took the key forcibly from the driver and thereafter they snatched the money bag of him, a bag containing official papers, two mobile phones of commodore Golam Rabbani. One of the accused having opened the door of their vehicle pushed Salauddin Mujumder towards the back and shot Commodore Golam Rabbani causing serious injury; at that time they were carrying the identity card of the company. The miscreants left the place with the said green colour car towards Mohammadpur uttering the words that they had finished the main officer of the company (­LC¢f­S­Xl fÐd¡e LjÑLaÑ¡ ®no L­l ¢c­u¢R). The glass of their micro bus was also broken due to gun shot. They taking the injured Golam Rabbani rushed to the Chittagong Medical College hospital. Eventually, he was taken to Dhaka Combined Military Hospital (CMH) by the Helicopter of the company. Ultimately, he succumbed to his injuries at Bangkok while he was under treatment there. The informant further alleged that the accused Abu Naser Chowdhury was once a Director of the KEPZ and accused Humayun Kabir was an officer under him. Golam Rabbani was threatened by accused Abu Naser Chowdhury and Humayun Kabir after his joining in the company. Golam Rabbani informed the said fact to him and Zia Hossain, the Advisor of the company and others. Accused Abu Naser and Humayun Kabir while in service in the company made conspiracy in various ways and they also filed cases against the KEPZ authority. Accused Abu Naser Chowdhury in a press conference told the journalists that in the KEPZ there would be two graves; one is for Kiha Ko-Sang, Chairman of the company and another is for him and that he would not tolerate any interference in KEPZ. Deceased Golam Rabbani made protest on behalf of the company against the said statement of accused Abu Naser and as a result accused Abu Naser and Humayun Kabir became annoyed to him. After their removal from the job of the company, payment of a huge amount of money of them was stopped due to Golam Rabbani detected their various corruption and illegal activities and as such accused Abu Naser and Humayun Kabir killed Golam Rabbani by hired persons.

7.            At the time of the trial the prosecution in all examined 26 witnesses to prove the case.

8.            The defence cross-examined the prosecution witnesses but did not adduce any defence witness.

9.            The defence case of respective accused persons are almost similar that they were innocent and have been implicated falsely in the instant case at the instance of the interested quarter.

10.        On conclusion of the trial the Druta Bichar Tribunal found guilty the accused Abu Naser Chowdhury and Humayan Kabir under Section 120B/302 of the Penal Code and sentenced each of them to suffer rigorous imprisonment for 05(five) years with a fine of Taka 50,000/-(fifty thousand) in default to suffer rigorous imprisonment for 02(two) years more.

11.        The Tribunal also found guilty the accused Md. Salim, Md. Hashem and Sohel under Section 302/34 of the Penal Code and sentenced each of them to suffer imprisonment for life and to pay a fine of Taka 50,000/-(fifty thousand) each; in default to suffer rigorous imprisonment for 05(five) years more.

12.        However, the Tribunal acquitted accused Saiful Islam alias Saiful alias Belai Saiful and Monsur Alam from the charges brought against them.

13.        Hence the Appeals and Rules.

14.        Mr. Munsurul Haque Chowdhury, the learned Advocate appearing with Mr. Mohammad Rezaul Haque the learned Advocate, for appellant Humaun Kabir Chowdhury submits that in the instant case the prosecution has miserably failed to bring an iota of evidence within the mischief of ‘Criminal Conspiracy’ as defined in section 120A of the Penal Code against the accused petitioner. And as such, the impugned judgment and order of conviction and sentence is prima-facie bad in law. He further submits that in the instant case the learned judge of the tribunal failed to appreciate the material discrepancies in the evidence of the witnesses on material point. The PW-1, 2 and 3 are the interested witnesses as they had enmity with the accused and their evidence were not supported by any independent witnesses; as such their evidence should be left out of consideration. Besides PW-4, 5, 6, 8, 9, 10 are the managed witness. He further submits that the material exhibit No.I was the material as created one and the same was created after the alleged occurrence to implicate the present accused in the case. In view the above, there is no scope to convict the appellant Humayun Kabir Chowdhury under section 120B of the Penal Code.

15.        Mr. Yousuf Hossain Humayun, the learned Advocate appearing with Mr. Nurul Islam Sujan, Mr. J.K. Paul and Md. Abu Hanif the learned Advocates, for appellant Abu Naser Chowdhury having adopted the submissions of Mr. Munsurul Haque Chowdhury further submits that there is no evidence of any agreement involving the present accused in the case that was may have to tantamount to committing an offence of criminal conspiracy within the meaning of section 120A of the Penal Code. In the instant case charge was framed against the accused persons in lump manner and there was not a slightest allegation or indication therein as to the criminal conspiracy and as such the accused has been irreparably prejudiced by the impugned judgment of conviction and sentence passed against him.

16.        Mr. Humayun, further submits that the prosecution case may have to fit under section 397 of the Penal Code and not under section 302 of the Penal Code and in any view of the matter no murder was committed on the date as given in the charge to which the appellant was subjected to at the trial and the case is unspeaking on the point also how and in which manner the appellant was a party to criminal conspiracy in the case.

17.        Mr. SK. M. Murshed, the learned Advocate appearing with Mr. Mohammad Rezaul Haque the learned Advocate, for convict Selim submits that TI parade was held in an irregular and improper manner and PW-11, the Magistrate, in his cross examination admitted that he did not write any memorandum regarding TI Parade. In view of such facts and circumstance of the present case the identification by PW-3 in TI Parade is doubtful and as such accused Selim is liable to be acquitted.

18.        Ms. Shakila Farzana, the leaned Advocate, appearing for convict Sohel @ Abdul Malek Sohel submits that PW-3 Abul Kalam Azad identified the accused Selim in dock for the first time and no TI parade was held against him and as such the conviction of accused Sohel on the basis of said identification is bad in law.

19.        In opposing the above submissions Mr. Mahbubey Alam the learned Attorney General appearing for the State submits that in the instant case the prosecution has been able to prove the charges brought against the convict persons beyond a reasonable doubt and the learned Judge of the tribunal rightly convicted the accused persons. He referring to the evidence of PW-1 to 8 submits that the evidence of said prosecution witnesses are most reliable, natural and credible and there is no scope to disbelieve and discard their evidence and as such all the appeals are liable to the dismissed.

20.        Mr. Khandaker Mahbub Hossain and Mr. Abdur Razzak Khan, the learned Advocates have appeared in support of the two Rules. Mr. Khan supporting the rules submits that under section 34 of the Penal Code participation in commission of the offence is necessary and under section 109 of the Penal code it is not at all necessary the presence of the accused at the time of commission of the offence under section 120A of the Penal Code and mere agreement is sufficient and conspiracy need not be proved by direct evidence like other offences. Criminal conspiracy can be proved by circumstantial evidence.

21.        Mr. Khan in support of such submission has referred to us the case of Major Bazlul Huda Vs. State, reported in 62 DLR(AD), page-1, wherein it has been held:-

“Privacy and secrecy are main characteristics of a conspiracy than of a loud discussion in an elevated place open to public views. It is not always possible to give direct evidence about the date, place and time of the formation of the conspiracy, about the persons that took part in its formation, about the objects which they set before themselves as the object of conspiracy and about the manner in which the object of conspiracy is to be carried out-all these are matters of inference that can be drawn from the facts of the case.. . . . In the most of the cases it is only the circumstantial evidence which is available from which an inference giving rise to the conclusion of an agreement between two or more persons to commit an offence may be legitimately drawn.”

22.        Mr. Khan further submits that the Druta Bichar Tribunal although found guilty to Humayun Kabir and Abu Naser Chowdhury under sections 120B/302 of the Penal Code but most illegally awarded lesser punishment. Since they are the party to a criminal conspiracy to commit an offence punishable with death or imprisonment for life they should be punished in the same manner as if he had abetted such offence. And as such, the rule is liable to be made absolute.

23.        Mr. Khan in support of the Rule issued in Criminal Revision No.855 of 2005 submits that the tribunal misread and misappreciate the evidence on record in as much as the law provides thereto and therefore most illegality acquitted accused Saiful Islam alias Saiful alias Bilai Saiful.

24.        Heard the learned Advocate for the respective parties, perused the evidence and other materials on record.

25.        Let us now discuss about the evidence adduced by the prosecution to ascertain wheather the Druta Bichar Tribunal is justified in passing the impugned judgment and order.

26.        PW.1 A.K.M. Mantazul Islam, the informant in his deposition reiterated the prosecution story. Moreover, he proved the First Information Report and his signature on it as exhibit-1 and 1/1.

27.        In cross-examination he denied the defence suggestions that out of enmity he implicated accused Naser and being a site engineer he was supposed to stay at the site. On 11.04.2004 there was no meeting in KEPZ and Golam Rabbani had no program to go there. He also denied the defence suggestion that the vehicle which was carried them was being used for foreign guests and VIP persons. He joined in the company in the month of June 2001. He had no knowledge wheather accused Abu Naser Chowdhury joined in the company on 07.08.1997 as General Manager but on 09.02.2003 he appointed as the Director. As a site engineer he used to work 8.00 AM to 5.00 PM, despite he used to work out of that period. He had no knowledge for how many years the land was given lease to KEPZ and whether the local people made protest against the 99 years lease granted in favour of the KEPZ. He had also no knowledge whether various local organizations made representations to the Hon’ble Prime Minister for cancellation of the said lease and the said news were published in the local news paper. He denied the defence suggestion that he misguided the authorities of KEPZ making false allegations against accused Naser and as a result the authority removed him from the company. He had no knowledge why the company removed accused Naser. He also denied various defence suggestions particularly that the accused Naser filed a case on 14.01.2004 in the Court of Chief Metropolitan Magistrate, Chittagong against him, Kiha Ko-Sang and others on the allegation that they had entered his office room illegally and, that misunderstanding was developed between Zia Hasan and Golam Rabbani and, that he implicated accused Naser out of enmity and; that Samsul Alam the former Managing Director of the company was inimical to Golam Rabbani. The miscreants snatched away his wrist watch, money and some official documents. He also denied the defence suggestions that manipulating the voice of accused Naser he had created the alleged CD in order to get his promotion and, that he implicated Naser as he filed two cases against him and, that he embellished the prosecution case.

28.        In cross-examination by accused Humayun Kabir he stated that he had knowledge about the conspiracy of Humayun Kabir and he informed the said fact to advisor Zia Hossain but he did not make any GD entry. Accused Humayun Kabir was subordinate to him. He had no knowledge whether accused Humayun Kabir filed any case against Golam Rabbani and in which date accused Humayun Kabir threatened Golam Rabbani. He also had no knowledge whether accused Humayun Kabir held any press conference. He denied the defence suggestion that accused Humayun Kabir did not make any conspiracy against Golam Rabbani.

29.        In cross-examination by accused Salim he stated that Golam Rabbani was admitted in the Hospital at about 11.45 AM and they informed about the incident to the police present at the emergency of the hospital. Police seized the alamats. He had no knowledge where the vehicle was taken after the occurrence. He denied the defence suggestion that Golam Rabbani was killed due to their inner feud.

30.        In cross-examination by accused Saiful he stated that he had no knowledge whether accused Saiful had been shown arrested in connection with this case. He denied the defence suggestion that he identified accused Saiful as he saw him in the Court prior to his identification and he identified him as per the instruction of the investigating officer.

31.        On recall by the prosecution PW-1 further deposed that in the news paper, the Daily Purbokon published on 11.02.2004, it was mentioned that in the press conference accused Humayun Kabir was present along with accused Naser. He proved the said news paper, marked as-X.

32.        In cross examination by the accused Naser he stated that in the said press conference no threaten was given to Golam Rabbani.

33.        In cross examination by the accused Humayun Kabir he stated that only the name of Humauyn Kabir was mentioned, he denied the defence suggestion that the present accused was not said Humayun Kabir.

34.        PW-2 Salauddin Mozumder deposed that on 11.04.2004 he along with the Managing Director of KEPZ Golam Rabbani, site engineer Emtajul Islam, Deputy Manager Abul Kalam Azad, Engineer Parvez, Sub-Assistant Engineer Jakir at about 10.30 started for KEPZ office from CEPZ by a vehicle of company. At about 11.00 AM when they crossed Muradpur crossing a green colour private car intercepted their vehicle and 5/6 miscreants armed with fire arms pointed their guns towards them. At that time they were carrying their identity card. The miscreants took their money bags, mobile phone of him and Golam Rabbani and some official papers. Out of fear they kept silent. One of the miscreants hit on his face by a fire arms and thereafter another miscreant shot Golam Rabbani; as a result he received injury on his neck and the bullet also hit the glass of their vehicle. One of the miscreants uttered that they finished the main man of KEPZ. Thereafter, the said miscreants fled away with their green colour car towards Mohammadpur. They taking injured Commodore Golam Rabbani rushed to Chittagong Medical College Hospital and thereafter, he was sent to Dhaka Combined Military Hospital. Eventually, for the better treatment he was sent to Bangkok where he was succumbed to his injury. On 07.12.2003 accused Abu Naser was removed from the Directorship of the company and Golam Rabbani joined as the Managing Director on 01.01.2004. Under the supervision of Commodore Golam Rabbani the function of the company was being run smoothly. After the removal of accused Naser Chowdhury accused Humayun Kabir was remained absent in the office and on January 2004 accused Humayun Kabir was also removed from the company. Accused Abu Naser and Humayun Kabir had deep relationship. From Zia Hossain he came to know that the said accused persons used to threat Golam Rabbani. After the occurrence, in the office of the informant, they came to know through a cassette that accused Naser was saying that Allah sent ‘Musa’ to give punishment to ‘Feraun’ and sent ‘Ibrahim’ to punish ‘Namrud’ and Abu Naser was sent to punish Kiha Ko Sang. In the KEPZ there would be two graves, one is for Kiha Ko Sang and another for Naser. The informant informed them that on 10.02.2004 accused Naser made the said statement in a press conference. In presence of him the investigating officer sized the said cassette and CD. He proved the seizer list exhibit-2, his signature on it exhibit 2/1 and the two CD as material exhibit No.1 (with objection). Commodore Golam Rabbani made protest against the statement made before the press conference and as a result accused Abu Naser Chowdhury and Humayun Kabir became angry to him. Accused Abu Naser and Humayun Kabir were aggrieved as they were removed from KEPZ. Commodore Golam Rabbani started investigation against them and as a result they killed Commodore Golam Rabbani.

35.        In cross-examination he stated that he was no more in the service of the KEPZ. He denied the various suggestions put by the defence including that the miscreants did not say that they killed the main officer of KEPZ and, that accused Naser detected his corruption and he was inimical to him. He had no knowledge regarding the case filed by accused Naser against the company. He asserted that he told investigating officer that accused Naser used to threat Commodore Golam Rabbani and he denied that he told the said fact as tutored by others. He denied the defence suggestions that did not hear the CD and the CD was created for the purpose of the case and he did not state before the Investigation Officer that the accused persons became angry as Commodore Golam Rabbani made protest against the press conference made by the accused Naser and Humayun Kabir. He proved the news paper exhibit-x. He replied in cross-examination the he had no knowledge whether the informant is a relative of Commodore Golam Rabbani. He denied the defence suggestion that he embellished the prosecution story.

36.        PW-3 Abul Kalam Azad deposed that he joined in KEPZ in the year 1995. On 11.04.2004 at about 10.00 AM he along with Commodore Rabbani, site Engineer Emtajul Islam, Engineer Salauddin Majumder, S.M Parvez, Abdullah Al Jakir started from EPZ office to KEPZ site by a vehicle of the company. At about 11.00 AM when they crossed Muradpur crossing suddenly a green colour private car intercepted their vehicle and 5/6 armed miscreants surrounded their vehicle and one of the miscreant snatched away the key of the vehicle and another miscreant took Tk. 7,300/- from him. They also took away mobile phones from Commodore Golam Rabbai and Salauddin and also the officials papers. At that time one of the armed miscreant hit Salauddin and he felt down on the seat and the said armed man also shot to Commodore Golam Rabbani. At that time they all were carrying identity card of the company. The miscreants hurriedly left the place of occurrence uttering that they finished the main officer of the company. They taking Golam Rabbani rushed to Chittagong Medical College Hospital. Thereafter, he was sent to Dhaka Combined Military Hospital. Commodore Rabbani succumbed to his injuries while he was under treatment in Bangkok. He heard from Zia Hossain and Emtajul Islam that accused Abu Naser and Humayun Kabir used to threat Commodore Golam Rabbani. Commodore Golam Rabbani told that he was a man from defence and as such he did not care about such threat. They heard a cassette presented by the informant Emtaj, where accused Abu Naser saying the journalists that in the KEPZ there would be two graves, one is for Kiha Ko Sang and another for him. He identified the accused Salim in test identification parade. Commodore Golam Rabbani made protest with regard to the press conference made by accused Naser; as a result accused Naser became angry to him and in continuation of that Commodore Rabbani was killed. He identified the accused Naser, Humayun, Sohel and Salim present in the dock.

37.        In cross-examination he stated that he is a Diploma Engineer and he joined in KEPZ in the year 1996. Kiha Ko Sang, a man of South Korea took lease of the land of KEPZ. It is a private company and the Government has no share. Accused Abu Naser Chowdhury joined in the company in the year 1979 and he was in service under accused Naser. At the time of the incident there was none other than the officials of the KEPZ in the vehicle. He denied the defence suggestion that he did not disclose to the I.O that at the time of the incident they were carrying their identity card and he heard from Emtiaj and Zia Hossain about the incident of threat made by the accused to Commodore Golam Rabbani. He denied the defence suggestions that accused Abu Naser was illegally dismissed by the company and he embellished his earlier statements made before the investigating officer.

38.        PW-4 Md. Salim, a construction supervisor served in KEPZ, deposed that he was in service on 23.04.2004 and when he was returning from his office he found accused Abu Naser Chowdhury and Humayun Kabir near the Bohodderhat intersection. Seeing him, they asked him about the affairs of KEPZ and then accused Humayun told him that he built up the KEPZ giving his labour and blood and he did not allow to run the same by any intruder. He also asked him to convey the said massage to Golam Rabbani that a necessary blood shade would be occurred. On 11.04.2004 when Golam Rabbani received gunshot he could remember the said utterance of the accused persons and he believed that accused Naser and Humayun committed the said offence.

39.        In cross-examination he stated that he joined in KEPZ on 17.07.2002. He used to meet accused Naser. After 27.03.2004 he did not meet Naser Chowdhury and he denied the defence suggestions that his office was closed on 27.03.2004 and he did not meet accused Naser and Humayun on that day. He reported verbally about the incident of 27.03.2004 to Mr. Emtiaj and Mr. Golam Rabbani. Golam Rabbani was not his relative.

40.        PW-5 Jalal Uddin, a block in charge of KEPZ, deposed that he has been serving on 01.02.2004 and while he was returning from his office towards his house he found a silver colour car in front of the main gate of KEPZ and he found accused Naser and Humayun Kabir inside the car. He offered Salam to them. Accused Naser Chowdhury asked him how the KEPZ was going on and he also said that how Rabbani being a man outside from Chittagong did his job sitting in his chair he would not tolerate. He also disclosed that they would be learned that he (Golam Rabbani) will be killed by them. He also asked him to give information about the officers of the KEPZ. After some days of the said incident he came to know that on 11.04.2004 Commodore Rabbani was received bullet injury. He also came to know that Sohel and Salim might be involved in the killing. Accused Abu Naser Chowdhury and Humayun killed Golam Rabbani by the hired men.

41.        In cross-examination he stated that he was from Chittagong but he had no knowledge where from the Golam Rabbani. In the year 2000 he joined in KEPZ as a block in charge. He made his statement before the police on the day of occurrence. He used to reside at the site. He did not disclose the said facts to his higher officer Khairul Hakim and site engineer Emtiaj. He heard that accused Abu Naser Chowdhury and Humayun Kabir killed Golam Rabbani by hired men. He denied the defence suggestion that he deposed falsely at the instance of Kiha Ko Sang and Zia Hossain. He also denied that he did not tell the I.O that the Salim was involved with the killing.

42.        PW-6 Naimul Haq Jihadi, a construction supervisor of KEPZ, deposed that he was being in service on 30.01.2004 he met Abu Naser Chowdhury and Humayun Kabir in Wouldland Poultry Farm, near the gate no.2 of Halishahar. Accused Naser asked him about the activities of KEPZ and he replied that it was going on smoothly. Then, he in a challenging voice said that he would see how Golam Rabbani would run the KEPZ. Thereafter on 11.04.2004 at about 12.00 at noon Golam Rabbani was shot by the miscreants. He presumed that accused Abu Naser Chowdhury and Humayun committed the said offence. Before 11.04.2004 he informed the said facts to Golam Rabbani at the KEPZ site. But he did not care of it and also advised him not to take any cognizance of it. From the informant he came to know that accused Abu Naser and Humayn Kaibr killed Golam Rabbani by hired miscreants including accused Salim and others.

43.        In cross-examination he denied the defence suggestion that the accused Hamuyan Kabir and Abu Naser did not go to Wouldland Park on 31.01.2004 and he did not meet them. He stated before the I.O that accused Naser and Humayun committed the offence. He denied the defence suggestion that he deposed falsely.

44.        PW-7 Salimul Hakim was tendered and the defence declined to cross-examine him.

45.        PW-8 Md. Alamgir, a construction supervisor of KEPZ, deposed that on 21.03.2004 after office hour he went to New Market area. At the 3rd floor of the New Market in front of a electronic shop he found accused Naser and Humayun Kabir. Accused Naser Chowdhury asked him how the KEPZ was going on. He replied that it was going on smoothly. Then accused Naser told that he had a lot of sacrifice in establishing the KEPZ and he would see how the KEPZ will run without him and for the KEPZ he went to jail hajat. He also disclosed that Golam Rabbani would die. This witness informed the said fact to Golam Rabbani at the site office. Then Golam Rabbani told him that he was a man from defence service and he did not care of it. On 11.04.2004 PW-8 came to know that Golam Rabbani was received bullet injury by the miscreants. He believed that accused Abu Naser Chowdhury and Humayun Kabir committed the offence. Later on he came to know that accused Sohel, Salim, Hashem and others attacked Golam Rabbani at Muradpur. He identified the accused persons present in the dock.

46.        In cross-examination he denied the suggestion that on 20.03.2004 he did not meet accused Abu Naser and Humayun at the New Market area and he embellished the prosecution story.

47.        PW-9 Abdur Rahman deposed that he was an employee of Chittagong KEPZ and accused Naser and Humayun Kabir were also the officers of the said company but they were removed from their service for corruption. On 01.01.2004 Golam Rabbani joined as the Managing Director of the said Company and as a result the said two removed officers became angry to him and they used to threat the Chairman and the Managing Director of the company. On 10.02.2004 the said accused hold a press conference and in the said conference they threatened the chairman of the company Kiha Ko Sang and the authority of the company. As per the direction of the authority he recorded the statements of accused Abu Naser Chowdhury made before the media men. On 11.04.2004 Golam Rabbani received bullet injury while he was going to the site. He believed that the said accused persons committed the above offence. Eventually, he heard accused Naser, Humayun, Sohel, Selim, Hashem and other accused persons committed the said offence.

48.        In cross-examination he stated that in KEPZ there were 10-12 Sub-Assistant Engineer (SAE). He had no knowledge about the qualification of accused Abu Naser Chowdhury and his educational qualification, but he was a director. He heard that accused Naser was removed from his service due to corruption but no one made any complain against accused Naser to him. He denied the defence suggestions that he did not go to the press conference held on 10.02.2004 and recorded any statement. He had no knowledge where informant Imtiaj was staying on 10.02.2004. He also denied that the alleged cassette was created for the purpose of the instant case and he deposed falsely. He also denied that accused Humayun Kabir was not present in the press conference and he did not make any statement before the press and he did not disclose the names of accused Hashem and Sohel before the investigating officer.

49.        PW-10 Monwarul Islam deposed that while he was serving as a Magistrate in Chittagong Metropolitan Court, he on 06.05.2004 and 27.05.2004 recorded the statement of witness Rafiq and Forkan under section 164 of the Code of Criminal Procedure. He proved the said statements as exhibit-3, 4 and 5 and his signatures on those as exhibit-3(1), 4(1), 5(1) and the signatures of the witnesses as 3(2), 4(2) and 5(2) respectively.

50.        In cross-examination by the accused Salim he disclosed that Rafique stated before him that an armed miscreant broke the glass of the Pazero Zeep by arms and witness Arman stated before him that 5/6 young persons having opened the door of the Zeep snatch away their money and mobile phones. Similar statement was made by witness Forkan before him. He denied the defence suggestion that he recorded the statements of the witnesses as per the direction of the investigating officer.

51.        On recall by the prosecution he further deposed that on 23.09.2004, 09.06.2004 and 15.05.2004 he recorded the statements of witness Nurul Absar, Mohammad Sadek and Monibuddin. He proved the said statements as exhibit-5(Ka), 5(Kha) and 5(Ga) and his signature’s thereon as exhibit-4(Ka)1/2.

52.        In cross-examination he stated that witness Forkan and Arman did not disclose the father’s name and addresses of the accused persons. Witness Sadek stated before him that the miscreants having opened the door of the vehicle asked them to keep silent; otherwise they would be finished. Witness Monibuddin disclosed before him that on 11.04.2004 he along with Imtajul Islam went to EPZ by a CNG.

53.        PW-11 Md. Shafiqur Rahman deposed that on 08.06.2004 while he was serving as a Magistrate in Chief Metropolitan Magistrate Court, Chittagong he as per the instruction of Chief Metropolitan Magistrate conducted a Test Identity (TI) Parade. And in the said TI parade witness Imtiaj amd Rafiq could identify accused Saiful Islam alias Belai Saiful and witness Azad could identify accused Salim. He proved the TIP sheet, exhibit-6 and his signature there on exhibit-6(1).

54.        In cross-examination this witness disclosed that he had entered inside the Chittagong jail at about 11.00 AM and waited in the room of the Jailor. The witnesses were outside of the main gate. Eventually, they entered inside the jail one after another and he having following the rules conducted the TI parade. He did not write any memorandum but he denied the defece suggestion that he gave an imaginary report. He had no knowledge whether the investigating officer took remand to accused Saiful on 7.04.2004, 05.05.2004 and 26.05.2004. He conducted the TI parade on 08.06.2004 pursuant to the order dated 29.05.2004. He had no knowledge about the application dated 29.05.2004 submitted by the accused Saiful.

55.        PW-12 Mamunur Rashid, a construction supervisor of KEPZ, deposed that he was present in the press conference along with witness Abdur Rahman.

56.        The defence declined to cross-examine the said witness.

57.        PW-13 Md. Sadek deposed that he was a driver of KEPZ and he on 11.04.2004 at about 10.00 AM being the driver of the vehicle Chattra-Metro Cha-510113 started for KEPZ with Commodore Golam Rabbani, Engineer Imtiaj, Engineer Abul Kamal Azad, Engineer Parvej and Engineer Zakir. In the way they purchased biscuits and cakes from a bakery at Lalkhan Bazar. When they crossed Muradpur crossing then a local bus came before his vehicle and he gave horn and at that time 5/6 young persons came to their vehicle and asked to handover money bags and mobiles and the miscreants took away money, mobile phones and the official documents and at one stage they opened gunshot and left the place by a green car. At the time of leaving the scene, the miscreants were telling that they killed the main officer of the KEPZ. They taking injured Commodore Golam Rabbni rushed to Chittagong Medical College Hospital. He made the said statement before the Magistrate as well as the investigating officer.

58.        In cross-examination by accused Abu Naser he could not memorize the date of his statement made before the Magistrate and he could also not remember whether he stated before the Magistrate that the miscreants told that they killed the main man of the KEPZ. The miscreants snatched the key of the vehicle. The miscreants did not take anything from him. He denied the defence suggestion that he deposed falsely.

59.        PW-14 Wahidul Islam Khan deposed that while he was serving as a Magistrate of Metropolitan Magistracy in Chittagong Court, he on 10.05.2004 recorded the statement of witness Md. Eskander Mirza. He proved the said statement as exhibit-7 and his signatures there on as exhibit-7(1)(2). On 05.06.2004 he also recorded the statement of witness Joynal under section 164 of the code of Criminal procedure. He proved the said statement as exhibit-8 and his signature there on as exhibit-8(1)(2) and the signature of the witness as exhibit-8(3)(4).

60.        In cross-examination he denied the defence suggestion that as per the instruction of others he recorded the said statements.

61.        PW-15 Abu Ahmmed, a seizure list witness, proved the seizure list exhibit-9 and his signature there on as exhibit-9(1). He also deposed that on 31.05.2004 in his presence Chattra Metro Gha 05-0083 vehicle was seized.

62.        In cross-examination he stated that one hour ahead of seizing the said vehicle Nobi Hossain brought the same for repairing of it. Nobi Hossain was from Lohagora.

63.        PW-16 Azad Ali another seizer list witness proved the seizer list and his signature there on as exhibit-9(2). He deposed that the Chattra Metro Gha 05-0083 vehicle was seized from Paragon Workshop.

64.        In cross-examination he stated that he had a grosary shop beside the Paragon Workshop and he put his signature on the seizer list as the police called him.

65.        PW-17 Salamullah deposed that he was serving as a guard of Noor Motor and a vehicle was kept in their garage for one year and ultimately it was sold out.

66.        In cross-examination he stated that before the occurrence the vehicle was in Noor Motors factory and the colour of the vehicle was black.

67.        PW-18 Md. Ismail was tendered by the prosecution and the defence declined to corss-examine him.

68.        PW-19 Dr. Ashikur Rahman, Assistant Surjon of Chittagong Medicale College Hospital, deposed that on 11.04.2004 at about 12.00 noon victim Golam Rabbani was brought to Chittagong Medical College Hospital and at that time he was in unconscious position and he could not able to record the blood pressure of Golam Rabbani. He was taken to operation theater. They found irregular penetrating wound on the right side of the neck. There was an entry wound and exit wound. He proved the medical certificate exhibit-10 and his signatures there on as exhibit-10(1)(2). He recommended to send the patient to Dhaka.

69.        PW-20 Dr. Tapan Kanti Das held the postmortem of the deceased Golam Rabbani as per the identification of his wife. He found the following injuries on the person of the victim:

“There was stich healing lenear wound 8 a.m. in length started from the middle point of the rt sterno clavicular line which extended posterolaterally 12’’ cm in length up to the posterior aspect of the root of the neck so far history of record gains to show that there was a gun short. Brain was very soft and liquitail cause of death history of record of CMH of Dhaka and the related Morbid findings revealed that the cause of death was due to gun short injuries effect of”.

70.        He proved the said report as exhibit-11 and his signature there on as exhibit-11(1).

71.        PW-21 SI Faruque was tendered by the prosecution and the defence declined to cross-examine him.

72.        PW-22 SI Mahbubul Alam deposed that having received the First Information Report he filled up the FIR Column. He proved the said FIR as exhibit-1 and his signature there on as exhibit-1(2).

73.        PW-23, SI Jafor Ali deposed that on 11.04.2004 he was entrusted with the investigation of the case and he visited the place of occurrence, prepared the sketch map, index and seizure list. He proved those and of his signatures thereon as exhibit-12, 13, 14, 12(A), 13(A), 14(A) respectively. On 31.05.2004 he prepared another seizure list exhibit-9. He recorded the statements of some of the witnesses under section 161 Code of the Criminal Procedure. Thereafter he handed over the case docket to another investigating officer as per the direction of the higher officer.

74.        In cross-examination he stated that he took over the investigation of the case on 11.04.2004 and continued till 22.04.2004. However, he prepared a seizure list on 31.05.2004 as per the instruction of the higher authority. He examined PW-3, PW-12, PW-13 on 15.04.2004. He also examined 09(nine) witnesses. He examined the informant on 11.04.2004. PW-3 told him that they were carrying the identity card of the company. Zia Hossain and informant Imtiaj did not tell to him that deceased Golam Rabbani told them that he did not care about any threat. PW-9 Abdur Rahman told him that he was present along with Mamunur Rashid in the press conference. PW-3 Abul Kalam Azad told him that Humayun Kabir used to threat deceased Golam Rabbani. PW-9 did not disclose the name of accused Sohel and Hashem.

75.        PW-24 Abidur Rahman Chowdhury deposed that he was an officer of Grameen Phone and as per the requirement of the investigating officer he supplied some information regarding some mobile calls. Investigating officer did not examine him. He proved the said call list as exhibit-15 and his signature there as exhibit-15(1). He also proved a letter containing the name and numbers of some of mobile phone holders as exhibit-17.

76.        In cross-examination he denied the suggestions that he had given an imaginary report mentioning some mobile numbers.

77.        PW-25 Mosharraf Hossain, Additional Police superintendent, RAB-2 submitted the report of further investigation on 30.09.2004. He was not cross examined by the defence.

78.        PW-26 Faruque Ahmed deposed that on 23.02.2004 while he was serving as Assistant Commissioner of Police in Panchlaish zone at Chittagong he was entrusted with the investigation of the case. He consulted the case record, visited the place of the occurrence, took steps for recording the statement of witnesses Rafique, Arman, Forkan, Joynal and Driver Sadek under section 164 of the Code of Criminal Procedure. He arrested the accused persons and hold TI parade. Accused Belai Saiful and Selim were identified by the witnesses in TI parade. At the time of the occurrence accused Hashem used mobile phone number 0171-021978 and the said mobile phone was also used at the time of the occurrence by accused Hashem. He after completion of the investigation submitted charge sheet against the accused persons.

79.        In cross-examination he stated that he visited CEPZ and KEPZ but he did not prepare any sketch map of those. The occurrence was took place at about 11.00 AM and FIR was lodged at 09.45 hours. He had no knowledge whether immediate after the occurrence any GD was lodged with the Police Station. He did not examine Keha Kosang the owner of the KEPZ. He did not examine the journalists present in the press conference. He did not seize any cassette but as per his instruction SI Jafor Ali seized the same. Accused Naser was removed from the service on 07.12.2003 and victim Golam Rabbani joined in the company on 01.01.2004 and the occurrence took place on the 11.04.2004. He did not examine the wife and other relatives of Golam Rabbani but he talked with the wife of deceased Golam Rabbani. PW-2 Salauddin Mozumder did not tell him that accused Naser threatened the Managing Director of the company and they became angry as Golam Rabbani made protest against the press conference. PW-3 did not tell him directly that Golam Rabbani was killed as he made protest regarding the press conference. PW-5, PW-6, PW-8 did not tell him that it was their belief that accused Naser Chowdhury and Humayun Kabir committed the offence. He did not enquire whether on 11.04.2004 there was any scheduled program of victim Golam Rabbani for visiting KEPZ. PW-3 Abul Kalam Azad stated before him that informant Imtiaj told him that accused Humayun Kabir threatened deceased Golam Rabbani but did not say that Golam Rabbani ignored those threat. Accused Salim was arrested on 24.05.2004 and he was taken on remand for 3(three) days. He could not say how many times he was taken to the Court before holding TI parade. He denied the defence suggestions that none of the witnesses disclosed the name of accused Salim, despite he submitted the charge sheet. PW-3 A.K Azad, PW-5 Salaudin, PW-6 Naimul and PW-8 Alamgir did not disclose to him that accused Abu Naser and Humayun Kabir attacked on Golam Rabbai by hired men. He visited the place of occurrence twice. He denied the defence suggestions that he having taken on remand the accused Saiful identified him to the witnesses. He also denied the suggestion that he hold the investigation in a perfunctory manner.

80.        These are the evidence of the witnesses available on the record.

81.        In the instant case accused Abu Naser Chowdhury and Humayun Kabir chowdhury have been convicted under section 120B/302 of the Penal Code.

82.        Let us now discuss whether the Druta Bichar Tribunal rightly found them guilty under section 120B/302 of the Penal Code.

83.        PW-1, the informant, in his deposition categorically stated to the effect:

""lî¡e£ p¡h Q¡L¥l£­a ®k¡Nc¡e Ll¡l fl a¡­L Bh¤ e¡­pl ®Q±d¤l£ J ýj¡u§e L¢hl ®V¢m­g¡­e M¤e J SM­jl ýjL£ ¢c­u¢Rmz lî¡e£ p¡h H OVe¡ Bj¡­L Hhw Bj¡­cl A¢g­pl HÉ¡Xi¡CS¡l ¢jx ¢Su¡ ®q¡­pe J AeÉ¡eÉ­cl Ah¢qa L­lez B¢j ¢jx lî¡e£­L ý¢nu¡l q­u Qm¡­gl¡ Ll­a h¢mz ¢a¢e hm­ae ®k ¢a¢e ¢X­g­¾pl ®m¡L, ®L¡e ¢LR¤­L f¡š¡ ­ce e¡z Bp¡j£ Bh¤ e¡­pl Hhw ýj¡u§e L¢hl Q¡L¥l£­a b¡L¡ L¡­m ¢h¢iæ pju ®L¡Çf¡e£l ¢hl¦­Ü osk¿» L­l¢Rm Hhw p¡wh¡¢cL p­Çjm­e ýjL£ ¢c­u¢R­mez a¡l¡ ®LB¢f­SX Hl ¢hl¦­Ü j¡jm¡ L­lz . . . . .z Bp¡j£ Bh¤ e¡­pl ®Q±d¤l£ pwh¡c p­Çjm­e h­m­Re ®k, ®LC¢f­S­X c¤CV¡ Lhl q­hz HLV¡ ¢Lq¡Lp¡w (®Qu¡ljÉ¡e) Hhw Afl¢V a¡l q­hz ¢a¢e ­L¡e AhÙÛ¡­a ®LC¢f­SX q­a ¢c­he e¡z ¢jx lî¡e£ J…¢ml fТah¡c ¢c­u¢R­me ®L¡Çf¡e£l fr q­az H­a Bp¡j£ Bh¤ e¡­pl Hhw ýj¡u¤e L¢hl r¥ì qez BL¢oÈL i¡­h a¡­cl Q¡L¥l£ k¡h¡l L¡l­e a¡­cl A­eL V¡L¡ fup¡ BV­L k¡uz ¢a¢e ®k c¤¢eÑ¢al j¡dÉ­j A¯hd Bu L­l¢R­me a¡ ¢jx lî¡e£ EvO¡Ve L­l­Re (Bf¢š pq)z Hph L¡l­e H c¤Se Bp¡j£ i¡s¡¢Vu¡ M¤¢e­cl ¢c­u lî¡e£ p¡­qh­L M¤e L¢l­u­Rez''

84.        And he also further testified that:

""p¿»¡p£l¡ ph¤S lw­ul N¡¢s­a L­l ®j¡x f¤­ll N¢ml ¢c­L Q­m k¡Ju¡l pju Jl¡ h­m ®LC¢f­S­Xl fÐd¡e LjÑLaÑ¡­L ®no L­l ¢c­u¢Rz''

85.        PW-2 Salauddin Mojumder having proved exhibit-2, a seizure list of a seizing cassette and 2 CDs and his signature thereto as 2(1); those materials as material exhibit-I series and he deposed to the effect:

""OVe¡ pwO¢Va qh¡l fl h¡c£ A¢g­p Bj¡­cl­L HL¢V A¢XJ LÉ¡­pV h¡¢S­u öe¡uz JC ®L­p­V e¡¢pl p¡h h­m­R Bõ¡q j¤p¡ Bx ®L f¡¢V­u­Re ®glBEe­L n¡­uÙ¹¡ Ll¡l SeÉz ejl¦­cl SeÉ f¡¢V­u­Re ChС¢qj Bx ®L f¡¢V­u ®cez Hhw Bh¤ e¡¢pl­L f¡¢V­u­Re ¢Lq¡Lp¡w­L n¡­uÙ¹¡ Ll¡l SeÉz ®LC¢f­SX Hl 2V¡ Lhl q­h HLV¡  ¢Lq¡Lp¡w­ul Afl¢V e¡¢p­llz HC hš²hÉ 10/2/04Cw pwh¡c p­Çjm­e fÐc¡e L­l­R j­jÑ Bj¡­L h­mz JC pwh¡c p­Çjm­e ýj¡u¤e L¢hl Ef¢ÙÛa ¢Rmz BC J  Bj¡l p¡j­e 1V¡ ®L­pV 2V¡ ¢p¢X Së L­lz HC ®pC Së a¡¢mL¡ fÐ-2 H­qa Bj¡l pC B­R fÐc-2(1) HC ®pC 3¢V LÉ¡­pV (2¢V ¢p¢X 1¢V A¢XJ) hÙ¹ fÐc-1 ¢p¢lS (CEb Ah­SLne) HC pwh¡c p­Çjm­el ¢hl¦­Ÿ Ljx ®N¡m¡j lî¡e£ p¡h fТah¡c ®ce H­a Bp¡j£l¡ r¥ë qu Bp¡j£ Bh¤ e¡­pl ®Q±x Hhw ýj¡u¤e L¢hl Q¡L¥l£Q¤Éa qJu¡u a¡l¡ ®LC¢f­SX Hl ¢hl¦­Ü r¥ë ¢Rmz Hhw ®N¡m¡j lî¡e£ p¡­hl Efl r¥ë q­u¢Rmz Bh¤ e¡­pl ®Q±x Q¡L¥l£ L¡m£e L¡SLjÑ pÇf­LÑ ®N¡m¡j lî¡e£ p¡h ac¿¹ L­le HC ph L¡l­e r¥ì q­u pñhax a¡l¡ H qaÉ¡L¡ä O¢V­u­Rz''

86.        PW-2 also deposed that:

""Hlfl p¿»¡p£­cl HLSe h­m ®LC¢f­SX Hl BpmV¡­L ®no L­l ¢c­u¢R L¡S q­u ®N­Rz'' 

87.        PW-3 Abul Kalam Azad deposed that:

""Bj¡­cl ph¡l Nm¡u ®L¡Çf¡e£l BC¢X L¡XÑ ¢Rmz ®N¡m¡j lî¡e£ p¡h lš²¡š² AhÙÛ¡u ¢p­V ®q­m f­sez p¿»¡p£l¡ â¦a ÙÛ¡e aÉ¡N L­lz Hhw hm­a b¡­L Bpm LjÑLaÑ¡­L ®no L­l ¢c­u¢Rz . . . . z OVe¡l f§­hÑ ®LC¢f­SX Hl p¡­hL f¢lQ¡mL Bh¤ e¡­pl Hhw a¡l pq­k¡N£ ýj¡u§e L¢hl Lj­X¡l ®N¡m¡j lî¡e£ p¡h­L ýjL£ ®cez HLb¡ Bj¡­cl Ef­cø¡ ¢Su¡ ®q¡­pe Hhw Cja¡S¤m Cpm¡j Bj¡­L h­m­Rz Bp¡j£ lî¡e£ p¡­qh ýjL£l ¢ho­u ¢S‘¡p¡ Ll­m ¢a¢e h­me ®k, ¢a¢e ¢X­g­¾pl ®m¡L a¡C ýjL£­L f¡š¡ ®ce e¡z h¡c£ Cj¢au¡S p¡­qh Bj¡­L HL¢V A¢XJ LÉ¡­pV h¡¢S­u öe¡ez Cq¡ ¢Rm p¡­hL f¢lQ¡mL Bh¤ e¡­p­ll p¡wh¡¢cL p­Çjme pwœ²¡¿¹z I LÉ¡­p­V ¢a¢e h­me ®k, ¢a¢e ®LC¢f­SX q­a ¢c­he e¡z fЭu¡S­e 2V¡ Lhl q­hz HLV¡ ¢Lq¡Lpw­ul Afl¢V a¡l ¢e­Slz'' 

88.        PW-4 Md. Selim a construction supervisor of KEPZ testified that:

""aMe ¢a¢e h­me ®k, h¡C­ll ®m¡L ®N¡m¡j lî¡e£ H­p ®LC¢f­SX f¢lQ¡me¡ Ll­h B¢j ýj¡u¤e Ha Lø L­l Ha lš² ¢c­u ®LC¢f­SX Llm¡j a¡­a¡ Bjl¡ ®j­e ¢eh e¡z ®a¡jl¡ ®N¡m¡j lî¡e£­L h­m ¢cJ a¡l J lš² Ts­hz HLb¡ h­m Q­m k¡uz 11/04/04Cw a¡¢l­M lî¡e£ p¡­qh …¢m ®M­m Bj¡l 27/03/2004Cw a¡¢l­Ml Lb¡ j­e f­sz Bj¡l j­e qu a¡l¡C (e¡¢pl J ýj¡u¤e) H L¡S L­l­Rz'' 

89.        In his cross-examination he stated that:

""27/03/04Cw a¡¢l­Ml OVe¡ pÇf­LÑ B¢j Cj¢au¡S p¡h­L ®j±¢MLi¡­h S¡¢e­u¢Rm¡j Hhw lî¡e£ p¡h­L S¡¢e­u¢Rm¡jz'' 

90.        PW-5 Jalal Uddin a block incharge of KEPZ deposed to the effect:

""Na 01/2/04Cw a¡¢lM B¢j A¢gp ®b­L ¢eS h¡s£­a ®gl¡l f­b ®LC¢f­SX Hl fÐd¡e ®NC­Vl p¡j­e ®f±R­m p¡j­el ¢cL ­b­L HLV¡ ¢pmi¡l L¡m¡­ll N¡¢s ®c¢Mz N¡¢s¢V Bj¡l p¡j­e H­m ®c¢M JC N¡¢s­a e¡¢pl p¡h Hhw ýj¡u¤e L¢hl­L hp¡ ®c¢Mz B¢j a¡q¡­cl­L p¡m¡j ®cCz e¡¢pl ­Q±d¤l£ Bj¡l Q¡L¥l£ ®Lje Q­m ¢S‘¡p¡ Ll­m h¢m i¡m Qm­Rz aMe e¡¢pl ®Q±d¤l£ Bj¡­L h­m Q–NË¡­jl h¡C­ll ®m¡L lî¡e£ Bj¡l ®Qu¡­l h­p ¢Li¡­h Q¡L¥l£ L­lz B¢j a¡ ®j­e ¢eh¡l j­a¡ euz ®a¡jl¡ ®cM­h Hhw öe­h a¡l jªa¥É Bj¡­cl q¡­aC q­hz ®a¡jl¡ öd¤ Bj¡­cl­L ®LC¢f­SX Hl Mhl¡ Mhl S¡¢e­u p¡q¡kÉ L¢lJz H OVe¡l ¢LR¤ ¢ce fl S¡e­a f¡¢l 11/4/2004Cw a¡¢lM lî¡e£ p¡­hl …¢m¢hÜ qh¡l OVe¡ ö¢ez ®p¢mj Hhw ®p¡­qm H M¤­el p¡­b S¢sa h­m S¡e­a f¡¢lz Bh¤ e¡­pl ®Q±d¤l£ Hhw ýj¡u§e L¢hl i¡s¡¢Vu¡ M¤e£ ¢c­u lî¡e£ p¡h­L qaÉ¡ L¢l­u­Rz'' 

91.        PW-6 Naimul Haque Zihadi testified to the effect that:

""Na 30/01/04Cw ®o¡mnql 2ew ®NCVÙÛ EXmÉ¡ä f¡­LÑ ®f¡m¢VÊ g¡jÑ LaѪL ®Q±d¤l£ Hhw fÐn¡p¢eL LjÑLaÑ¡ ýj¡u¤e L¢h­ll p¡­b ®cM¡ quz Bh¤ e¡¢pl p¡h Bj¡­L h­me ®Lje B­R¡z ¢a¢e ®LC¢f­SX Hl ®M¡S Mhl ®eez B¢j Ešl ®cC i¡m B¢R, i¡m Qm­Rz ¢a¢e Bj¡­L h­me ®a¡jl¡ ¢e¢ÕQa ®S­e l¡­M¡J B¢j Hhw ýj¡u¤e L¢hl ®hy­Q b¡L­a ®N¡m¡j lî¡e£ p¡h­L ®c­M ¢e­h¡ Hhw ¢Li¡­h ®LC¢f­SX Q­m a¡ ®c­M ¢e­h¡z Na 11/4/04Cw a¡¢lM Be¤j¡¢eL 12.00 V¡l pju ­LC¢f­SX Hl p¡C­V Bp¡l pju j¤l¡cf¤l e¡jL ÙÛ¡­e ®N¡m¡j lî¡e£ p¡­qh­L …¢m L­l­Rz aMe Bj¡l j­e q­m¡ ®k H qaÉ¡L¡ä¢V Bh¤ e¡­pl ®Q±d¤l£ Hhw ýj¡u¤e L¢hl O¢V­u­Rez 11/4/04 OVe¡l f§­hÑ B¢j Hph OVe¡ ®LC¢f­SX p¡C­V ®N¡m¡j lî¡e£ p¡h­L S¡¢e­u¢Rz ¢a¢e h­me ®k, ¢a¢e JCph f­l¡u¡ L­le e¡ Hhw ph Lb¡ Bj¡­cl­L L¡­e e¡ ¢c­a fl¡jnÑ ®cez'' 

92.        PW-8 Md. Alamgir testified that:

""Na 21/03/04Cw a¡¢lM ®l¡S l¢hh¡l 5V¡u A¢gp ­n­o B¢j Hhw AeÉ¡eÉ pqL¡l£ pq ®L¡Çf¡e£l N¡s£­k¡­N LeÑg¥m£ hÊ£­Sl Ešl f¡­nÑ k¡Cz JM¡e ®b­L ®VÇf¤­k¡­N ¢eE j¡­LÑ­Vl p¡j­e ®e­j ®q¡­Vm S¡j¡­m Q¡ e¡Ù¹¡ L­l ¢eEj¡­LÑ­Vl Q¡l am¡u j¡ml C­mƒÊ¢eL Hl ®c¡L¡­el p¡j­e k¡Cz JM¡­e ®LC¢f­SX Hl p¡­hL f¢lQ¡mL e¡¢pl p¡­qh Hhw p¡­hL H/J ýj¡u§e L¢hl Hl p¡­b a¡­cl ­cM¡ quz e¡¢pl ®Q±d¤l£ a¡­cl L¥nm ®eu Hhw ®LC¢f­SX ®Lje Qm­R ¢S‘¡p¡ Ll­m B¢j h¢m ®k, i¡m Qm­Rz aMe e¡¢pl h­m ®k, ®LC¢f­SX Hl SeÉ A­eL lš² ¢c­u¢Rz Bj¡­cl­L h¡c ¢c­u ®LC¢f­SX ¢Li¡­h qu Bjl¡ ®c­M ¢e­h¡z ®N¡m¡j lî¡e£l Lhl q­hz Bj¡l pqLjÑ£ B­e¡u¡l ®L E­Ÿ­nÉ L­l ýj¡u¤e L¢hl h­m B¢j ®LC¢f­SX Hl SeÉ ®Sm ®M­V¢R A­eL lš² Hhw nÐj ¢c­u¢Rz Bj¡­cl h¡c ¢c­u ®LC¢f­SX ¢Li¡­h Q­m ®c­M ¢ehz ®N¡m¡j lî¡e£l jªa¥É q­hz Hlfl Bjl¡ Bj¡­cl L¡­S Q­m k¡Cz B¢j JC ph ®N¡m¡j lî¡e£ p¡h­L h¢m p¡CV f¢lcnÑ­e Bj¡­L ¢a¢e h­me B¢j ¢X­g¾p Hl ®m¡Lz B¢j JCph f¡š¡ ®cC e¡z Na 11/4/04Cw a¡¢lM S¡e­a f¡¢l Hj/¢X p¡h j¤l¡cf¤­l c¤úª¢aL¡l£­cl à¡l¡ …¢m¢hÜ quz Avgvi wek^vm Avey bv‡mi †PŠayix Ges ûgvq~b Kwei G NUbv NwU‡q‡Q|'' 

93.        PW-9 Abdur Rahman deposed that:

""h¢eÑa Bp¡j£ 2 Se Q¡L¥l£Q¤Éa qJu¡u EÜaÑe LjÑLaÑ¡l fТa r¥ì quz a¡l¡ ®L¡Çf¡e£l ®Qu¡ljÉ¡e Hhw Hj¢X­L ýj¢L ¢c­a b¡­Lz  a¡l¡ 10/02/2004Cw a¡¢lM p¡wh¡¢cL p­Çjm­el B­u¡Se L­l ®LC¢f­SX Hl ®Qu¡ljÉ¡e ¢Lq¡Lp¡w Hhw LaѪf­rl ¢hl¦­Ü ýj¢L ¢c­u p¡wh¡¢cL p­Çjme L­lz B¢j LaѪf­rl ¢e­cÑ­n Bh¤ e¡­pl ®Q±d¤l£l hš²hÉ A¢XJ LÉ¡­p­V ®lLXÑ L¢l Hhw LaѪf­rl L¡­R ®lLXÑ…¢m Sj¡ ®cCz Na 11/4/04Cw a¡¢lM ®N¡m¡j lî¡e£ p¡h p¡C­V k¡h¡l f­b …¢m¢hÜ quz Bj¡l ¢hnÄ¡p I Bp¡j£l¡ H OVe¡ O¢V­u­Rz'' 

94.        In cross-examination PW-9 categorically denied the defence suggestions that he did not present in the press conference and record the statement of the accused Abu Naser and accused Humayun was not present in the press conference.

95.        PW-13 Mohammad Sadek who was driving the vehicle at the time of the incident deposed that: ""k¡h¡l f§­hÑ p¿»¡p£l¡ h­m ®LC¢f­S­Xl Bpm LjÑLaÑ¡ M¤e L¢lu¡¢Rz'' 

96.        If we carefully analyze the above assertions of prosecution witnesses it is cristal clear that accused Abu Naser Chowdhury and Humayun Kabir, who were removed from the service of KEPZ by the authority for alleged corruption and their activates against the KEPZ, hatched conspiracy against the management of KEPZ including its Chairman Kiha Ko Sang and Commodore Golam Rabbani who joined as the Managing Director of the company after their removal. And as a result of their conspiracy Commodore Golam Rabbani was killed by them with the help of hired criminals.

97.        It is true that the prosecution was failed to adduce any direct evidence that accused Abu Naser Chowdhury and Humayun Kabir hired the other accused persons in order to kill Commodore Golam Rabbani. But section 120B of the Penal Code provides the punishment for criminal conspiracy; which criminal conspiracy is defined in section 120A of the Penal Code which runs as follows:

“120A. Definition of Criminal conspiracy- when two or more persons agree to do, or (1) an illegal act, or

(2) An act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:

Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.

Explanation- it is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object.

The recognized definition of a criminal conspiracy is an agreement between two or more persons to engage in an unlawful act. ‘Conspiracy’ an inchoate offence, refers to an act of agreeing to commit a substantive crime to further plan and policy.”

98.        Here we have to emphasis, ‘Conspiracy’, an inchoate offence, refers to an act of agreeing to commit a substantive crime to further plan and policy.

99.        The criminal conspiracy doctrine only requires overlapping chains of agreement that link the physical perpetrator to the accused. However, the lack of a direct agreement between the physical perpetrator and other accused persons is no bar to applying the conspiracy doctrine as long as the chain of overlapping agreements connects them.

100.    The act of ‘agreement’ is to be inferred from act conduct of the accused-amid, prior or subsequent to the commission of the principal offence.

101.    In the case of Major Bazlul Huda vs. State [Popularly known as Bangabandhu murder case] his Lordships Justice S.K. Sinha [62 DLR (AD), page-1; para 173] has observed to the effect:

“An act or illegal omission must take place in pursuance of the conspiracy and in order to the doing of the thing conspired for; in the latter offence the mere agreement is enough, if the agreement is to commit an offence. In pursuance of the criminal conspiracy if the conspirators commit several offences, then all of them will be liable for the offences even if some of them had not actively participated in the commission of the offences. It is not required to prove that each and every person who is a party to the conspiracy must do some overt act towards the fulfillment of the object of conspiracy, the essential ingredient being an agreement between the conspirators to commit the crime since form its very nature a conspiracy is hatched in secrecy direct evidence of a criminal conspiracy to commit a crime is not available otherwise the whole purpose may frustrate in most cases only the circumstantial evidence which is available from which an inference giving rise to the commission of an offence of conspiracy may be legitimately drawn.” [Underline to emphasis]

102.    It is now well settled that it is not required to prove that each and every persons who is a party to the conspiracy must do some overt act towards the fulfillment of object of the conspiracy. The essential ingredient being an agreement between the conspirators to commit crime since from its very nature a conspiracy is hatched in secrecy direct evidence of a criminal conspiracy to commit a crime may not be available. The circumstantial evidence which is available from which an inference giving rise to the commission of offence may be legitimately drawn.

103.    In the case of State of H.P. vs. Krishan Lal Pardhan, reported in (1987) 2 SCC, page-17, it has been held that:

“In the opinion of Special Judge every one of the conspirators must have taken active part in commission of each and every one of the conspiratorial acts and only then the offence of conspiracy will be made out. Such a view is clearly wrong. The offence of criminal conspiracy consists in a meeting of minds of two or more persons or agreeing to do or causing to be done an illegal act or an act by illegal means, and the performance of an act in terms thereof. If pursuant to the criminal conspiracy the conspirators commit several offences, then all of them will be liable for the offences even if some of them had not actively participated in the commission of the offences.”

104.    In the case of State of Maharashtra vs. Som Nath Thapa, reported in (1996) 4 SCC, Page-259, it has been held that:

“To establish a charge of conspiracy knowledge about indulgence in either an illegal act or a legal act by illegal means is necessary. In some cases, intent of unlawful use being made of the goods or services in question may be inferred from the knowledge itself. This apart, the prosecution has not to establish that a particular unlawful use was intended, so long as the goods or service in question could not be put to any lawful use. Finally, when the ultimate offence consists of a chain of actions, it would not be necessary for the prosecution to establish, to bring home the charge of conspiracy, that each of the conspirators had the knowledge of what the collaborator would do, so long as it is known that the collaborator would put the goods or service to an unlawful use. . . . . . . .

Where in pursuance of the agreement the conspirators commit offences individually or adopt illegal means to do a legal act which has a nexus to the object of conspiracy, all of them will be liable for such offences even if some of them have not actively participated in the commission of those offences. [Underline to emphasis]

105.    In the case of Yash Pal Mittal vs. State of Panjub, reported in (1977) 4 SCC, page-540, it has been held that:

“9. The offence of criminal conspiracy under section 120-A is a distinct offence introduced for the first time in 1913 in Chapter V-A of the Penal Code. The very agreement, concert or league is the ingredient of the offence. It is not necessary that all the conspirators must know each and every detail of the conspiracy as long as they are co-participators in the main object of the conspiracy. There may be so many devices and techniques adopted to achieve the common goal of the conspiracy and there may be division of performances in the chain of actions with one object to achieve the real end of which every collaborator must be aware and in which each one of them must be interested. There must be unity of object or purpose but there may be plurality of means sometimes even unknown to one another, amongst the conspirators. In achieving the goal several offences may be committed by some of the conspirators even unknown to the others. The only relevant factor is that all means adopted and illegal acts done must be and purported to be in furtherance of the object of the conspiracy even though there may be sometimes misfire or overshooting by some of the conspirators. Even if some steps are restored to by one or two of the conspirators without the knowledge of the others it will not affect the culpability of those others when they are associated with the object of the conspiracy. The significance of criminal conspiracy under section 120-A is brought out pithily by this Court in Major E.G. Barsay Vs. State of Bombay thus:

‘The gist of the offence is an agreement to break the law. The parties to such an agreement will be guilty of criminal conspiracy, though the illegal act agreed to be done has not been done. So too, it is not an ingredient of the offence that all the parties should agree to do a single illegal act. It may comprise the commission of a number of acts. Under section 43 of the Indian Penal Code, an act would be illegal if it is an offence or if it is prohibited by law. Under the first charge the accused are charged with having conspired to do three categories of illegal acts, and the mere fact that all of them could not be convicted separately in respect of each of the offences has no relevancy in considering the question whether the offence of conspiracy has been committed. They are all guilty of the offence of conspiracy to do illegal acts, though for individual offences all of them may not be liable.’

106.    If we consider the above of proposition law coupled with the evidence on record and the facts and circumstances of the present case, we are of the view that the learned Judge of the Druta Bichar Tribunal rightly and lawfully found guilty to accused Abu Naser Chowdhury and Humayun Kabir for committing Criminal Conspiracy in committing murder of the decease under section 120B/302 of the Penal Code. However, the learned Judge has committed an error in awarding lesser sentence to accused Abu Naser and Humayun Kabir; the learned judge awarded an inadequate sentence of five years against them having though there is a provision of capital punishment or imprisonment for life under section 120B of the Penal Code for the same offence. However, nothing has been elaborately discussed in the impugned judgment about to such minor punishment. In view of the evidence, facts and circumstances as remained in the case and the discussions made herein above, we are in a considered view that the said punishment awarded by the trial court should have to be altered and enhanced.

107.    The learned Judge of the Druta Bichar Tribunal convicted accused Salim, Hashem and Sohel under section 302 of the Penal Code and acquitted accused Saiful Islam alias Saiful from the charges brought against him.

108.    Accused Salim was identified in TI parade by pw-3 Abul Kalam Azad. And PW-11 Magistrate Shafiqur Rahman categorically testified that he conducted the TI parade on 8.06.2004 and witness Abul Kalam Azad could identify accused Salim.

109.    From the evidence it further revels that accused Saiful Islam alias Belai Saiful was also identified by P.W-1 A.K.M Emtajul Islam in TI parade in presence of P.W-11 Shafiqur Rahman, the Magistrate who conducted the T.I. Parade despite he was acquitted by the Tribunal.

110.    The Tribunal in acquitting accused Saiful held that the other witnesses who accompanied the deceased at the time of occurrence with P.W.-1 could not identify accused Saiful in T.I Parade and accused Saiful raised objection by filing written objection against the order of IT Parade. Moreover, the Tribunal also held that the identification of Saiful was not proved beyond doubt.

111.    In the instant case accused Saiful in the midst of the trial having obtained bail from a Division Bench of this Court absconded and ultimately did not face the trial.

112.    It is true that abscondence of an accused is not conclusive proof of his guilty and cannot be the sole basis of his conviction without and corroborative evidence.

113.    However, in the instant case accused Saiful was identified in TI parade by P.W-1, which was conducted by a Magistrate P.W-11. And after obtaining bail he was absconded and did not face the trial to defend himself. This circumstance furnished strong corroboration to the prosecution case that he is the culprit and it may lend weight to TI parade. Thus, the Tribunal most illegally acquitted accused Saiful alias Belai Saiful.

114.    In the instant case we do not find any creadible evidence against convict Sohel alias Abdul Malek to convict him under section 302/34 of the Penal Code. No TI parade was held in respect of him. Identification in the dock by PW-3 in absence of any other corroborative evidence cannot be considered as reliable evidence. The learned Judge of the Druta Bichar Tribunal in finding his guilt in this particular case had considered his other criminal cases which cannot be appreciated. Thus, we are of the opinion that the Tribunal committed serious illegality in convicting the accused Sohel and he is liable to be acquitted.

115.    It is pertinent to mention here that convict Hasem has been acquitted in the meantime in Criminal Appeal No.1814 of 2005 by a Division Bench of this Court. Hearing of the said appeal alone is no doubt beyond the norms, partice and rule of this Court. The State also did not take any step against such unusual hearing of the said appeal and as well as the said judgment.

116.    Having discussed and considered as above Criminal Appeal Nos.1669 of 2005, 1798 of 2005, 1614 of 2005 are dismissed and both the Rules in Criminal Revision No.1105 and 855 of 2005 are made absolute. However, Criminal Appeal No.1785 of 2005 is allowed.  

117.    Resultantly the conviction of accused Humayun Kabir Chowhdury and Abu Naser Chowhury under section 120B/302 of the Penal Code is hereby affirmed but their sentences are enhanced to suffer imprisonment for life with a fine of Taka 50,000/- (Fifty thousand) instead of 05(five) years.

118.    Beside, conviction and sentence of accused Md. Salim passed by the Druta Bichar Tribunal, Chittagong is hereby affirmed.

119.    However, the judgment and order of acquittal, so for as it relates to accused Saiful Islam alias Bilai Saiful, is set aside. The Trial Court is directed to pass a fresh judgment in light of the observations made in the body of this judgment.

120.    The convicts Humayun Kabir, Abu Naser Chowdhury, Md. Salim who are on bail are directed to surrender before the trial Court within 08(Eight) weeks from the date of receipt of this judgment and order to serve out their respective sentence.

121.    Accused Sohel alias Abdul Malek Shohel is hereby acquitted from the charges brought against him and he is set at liberty at once, if not wanted in any other case.

122.    Accused Saiful Islam alias Saiful alias Bilai Saiful is also directed to surrender before the Trial Court within the period of 08(Eight) weeks from the date of receipt of this judgment and order. The trial Court is at liberty to consider his prayer for bail, if, he surrenders complying the Court’s order keeping in mind that earlier he was acquitted in the case.

123.    Send down the lower court records at once.

         Ed.

 



Criminal Appeal No. 1669 of 2005 with Criminal Appeal No. 1798 of 2005 with  Criminal Appeal No. 1614 of 2005 with  Criminal Appeal No. 1785 of 2005 with Criminal Revision No. 1105 of 2005 with  Criminal Revision No. 855 of 2005.