Jabed Ali @ kasai Jabed @ Mawra Jabed Vs. The State, 2 LNJ (2013) 399

Case No: Criminal Appeal No. 3368 of 2004

Judge: Md. Ruhul Quddus,

Court: High Court Division,,

Advocate: Mr. Md. Jashimuddin,,

Citation: 2 LNJ (2013) 399

Case Year: 2013

Appellant: Jabed Ali alias kasai Jabed

Respondent: The State

Delivery Date: 2011-02-24

HIGH COURT DIVISION
(CRIMINAL APPELLATE JURISDICTION)
 
Borhanuddin, J.
And
Md. Ruhul Quddus, J.

Judgment
24.2.2011
 
Jabed Ali alias Kasai Jabed alias Mawra Jabed
...Appellant
-Versus-
The State
...Respondent
 
 
Arms Act (XI of 1878)
Section 19A and 19(f)
Taking into consideration of the FIR and the seizure list as to the recovery of arms and the evidence of PW. 4 clearly show that the revolver and other articles were not recovered from the exclusive control and possession of the appellant. There is a departure in the testimony of PW. 4 from the version of the FIR which casts a shadow of doubt over the place and manner of recovery of arms and ammunitions. The seizure list witnesses No. 1 and 2 did not support the prosecution case when the other PWs. did not corroborate one another, the impugned judgment and order is set aside. . . . . (20, 24 and 25)
 
College in his office at first floor), when a police man asked him to come down to the room of occurrence in the ground floor. Accordingly he came downstairs and saw a revolver, one round of bullet, one bullet-shell and some other articles kept on a tool. In cross-examination, he stated that he did neither see the appellant, nor the recovery of arms. P.W.2 Abu Bakar, another employee of the college and seizure list witness corroborated the evidence of P.W.1 and stated in similar language that at the time of occurrence, he came down at the instance of a police man, entered into the room of occurrence and saw the arms in question. The police told him that they had recovered the said arms . . . .(7)

A close reading of the ejahar along with the seizure list as to the factum of recovery of arms and the evidence of P.W.4 clearly suggests that the revolver and other articles were not recovered from the control and possession of the appellant inasmuch as  according to the ejahar and seizure list, the recovery was made on showing of the appellant, but the deposition of the informant (P.W.4) by contrast, indicates that the revolver and other articles were seized from the exclusive possession of the appellant, without mentioning the nature of such exclusiveness of such possession. P.W.4 also did not mention the manner of recovery. This departure in his testimony from the version of ejahar, casts a shadow of doubt over the place and manner of recovery of the arms and amunitions. It further appears from the deposition of P.W. 6 that the revolver in question was found in front of the appellant. This is a third statement which constitutes a third case as none of the prosecution witnesses supports him on this point. P.W.7, the Investigating Officer and also a member of the raiding party is mysteriously silent over the place and manner of recovery. Thus, the depositions of the prosecution witnesses do not speak a uniform story of recovery of arms and ammunitions. The depositions are contradictory and do not corroborate each other. . . .(9)

In the result, the appeal is allowed. The impugned judgment and order dated 9.8.2004 passed by the Judge, Metropolitan Special Tribunal No.6, Dhaka in Metropolitan Special Tribunal Case No. 7972 of 1999 is hereby set aside. . .(14)
 
Code of Criminal Procedure (V of 1898)
Section 342
The learned Judge of the Special Tribunal did not bring the specific incriminating evidence into the notice of the appellant as required by section 342 of the Code of Criminal Procedure. Such omission on the part of the trial Court is fatal inasmuch as by now it is well settled that proper compliance with the provision of section 342 is mandatory and failing on the part of the Judge to bring the incriminating evidence to the notice of an accused, vitiates trial. . . . (10)
 
Syed Kawsar Ali Vs. Gahar Kazi and others, 1985 BCR (AD) 309 ref.
 
No one appears
. . .For the appellant
Mr. Md. Jashimuddin, A. A. G 
. . .For the respondent

Criminal Appeal No. 3368 of 2004
 
JUDGMENT
Md. Ruhul Quddus, J:
 
This appeal under section 30 of the Special Powers Act, 1974 is directed against judgment and order dated 9.8.2004 passed by Metropolitan Special Tribunal No.6, Dhaka in Metropolitan Special Tribunal Case No.7972 of 1999 convicting the appellant under section 19 A and 19 (f) of the Arms Act, 1878 and sentencing him under section 19A to suffer rigorous imprisonment for twenty years with a fine of Taka 5000/- in default to suffer rigorous imprisonment for six months more and further sentencing him under section 19 (f) to suffer rigorous imprisonment for seven years. The two sentences were made to run concurrently. 
 
Prosecution case, in short, is that the informant Md. Asaduzzaman Farazi, a Sub-Inspector of police, along with his forces, was on rescue duty on 6.4.1999, when he had received secret information that the appellant and his accomplices were repairing an illegal revolver sitting in the ground floor of City Law College. They had rushed to the place of occurrence and caught him red handed, while his accomplices fled away. The police, recovered a revolver with two round of bullets and some other articles on his own showing. On interrogation, the appellant admitted that he used to sell and repair illegal arms. Accordingly, the informant prepared a seizure list in presence of the witnesses, produced him to Kotwali police station along with the seized articles and lodged the ejahar, which gave rise to Kotwali Police Station Case No.10 dated 6.4.1999.
 
The police, after investigation submitted charge sheet on 21.5.1999 against the sole appellant under sections 19 (a) (f)/ 19 A of the Arms Act. The case, after being ready for trial, was sent to the Metropolitan Special Tribunal No.1, Dhaka, wherein it was numbered as Metropolitan Special Tribunal Case No.7972 of 1999. The learned Judge of Tribunal No.1 after taking cognizance of the offences against the appellant, transferred it to the Metropolitan Special Tribunal No.11, Dhaka, for trial. The learned Judge of Tribunal No.11 framed charge against him under the said sections of the Arms Act by his order dated 4.10.1999 and proceeded with trial. Thereafter the case was transferred once again to the Metropolitan Special Tribunal No.6, Dhaka, wherein the trial was finally concluded.
 
The prosecution, in order to prove its case, examined seven witnesses. Out of them P.Ws.1-2 are seizure list witnesses and are employees of the college. P.W.3 is a local witness. P.W.4 is the informant himself and P.Ws.5-6 are police personnel and members of the raiding party, while P.W.7 is the investigating officer.
 
After closing the prosecution, the appel-lant was examined under section 342 of the Code of Criminal Procedure, when he reitera-ted his innocence and declined to adduce evidence in defense. After conclusion of trial, the learned Judge of the Tribunal found him guilty of charges under sections 19A and 19 (f) of the Arms Act and accordingly pronounced the impugned judgment and order on 9.8.2004 convicting and sentencing him, as aforesaid. The appellant filed the instant appeal against the said judgment and order dated 9.8.2004 and subsequently obtained bail on 18.11.2009 from this Court. 
 
No one appears before us to press this appeal. In view of long pendency of the appeal, we take it up for disposal. The learned Assistant Attorney General, however, appears for the State and submits that the prosecution has proved its case beyond reasonable doubt, and as such the learned Judge of the Tribunal rightly passed the impugned judgment and order of conviction and sentence, which does not call for any interference.      
 
We have gone through the evidence and other materials on records. It appears that P.W.1 Ohid, an employee of the college and a seizure list witness, stated in his examination-in-chief that in the evening of 6.4.1999, he was on duty with his sir (indicating the Principal of City Law College in his office at first floor), when a police man asked him to come down to the room of occurrence in the ground floor. Accordingly he came downstairs and saw a revolver, one round of bullet, one bullet-shell and some other articles kept on a tool. In cross-examination, he stated that he did neither see the appellant, nor the recovery of arms. P.W.2 Abu Bakar, another employee of the college and seizure list witness corroborated the evidence of P.W.1 and stated in similar language that at the time of occurrence, he came down at the instance of a police man, entered into the room of occurrence and saw the arms in question. The police told him that they had recovered the said arms. The defense declined to cross-examine him. P.W.3 Sayed Hasan, a local witness and apparently independent, stated that on the date and time of occurrence he was passing through the front side of the college, when a police man told him that a person had been held inside the college. However, he did not know that person. At this stage, the prosecution declared him hostile. He denied the suggestion that he was not telling the truth. In cross-examination by the defense, he reiterated that he did not know the appellant and did not see any recovery.
 
P.W.4, the informant Md. Asaduzzaman Farazi (a Sub-Inspector of Police) stated that on 6.4.1999 at about 19.30 hours he entered into the western room at the ground floor of the college, recovered the revolver, two rounds of bullets and other articles from the possession of the appellant and arrested him on the spot. P.W.5 Md. Imam Uddin, a constable and member of the raiding party, stated that at the time of occurrence all other members of the team went inside keeping him posted at the main gate of the college. After 15/20 minutes the police personnel brought the appellant arrested with the revolver and other seized articles. P.W.6 Md. Tazul Huda, another constable and a member of the raiding party stated that sensing the presence of police, some of the miscreants fled away, while they secured in arresting the appellant and recovered the revolver and other articles, which were found in front of him, and he was engaged in repairing the revolver. P.W.7, the Investigating Officer stated amongst other that during investigation he visited the place of occurrence, examined the witnesses and prepared the sketch-map and index. In cross-examination he admitted that he did not get the revolver examined by any ballistic expert, and did not record statements of any of the students. He also admitted that the accused did not have any past criminal records.
 
A close reading of the ejahar along with the seizure list as to the factum of recovery of arms and the evidence of P.W.4 clearly suggests that the revolver and other articles were not recovered from the control and possession of the appellant inasmuch as  according to the ejahar and seizure list, the recovery was made on showing of the appellant, but the deposition of the informant (P.W.4) by contrast, indicates that the revolver and other articles were seized from the exclusive possession of the appellant, without mentioning the nature of such exclusiveness of such possession. P.W.4 also did not mention the manner of recovery. This departure in his testimony from the version of ejahar, casts a shadow of doubt over the place and manner of recovery of the arms and amunitions. It further appears from the deposition of P.W. 6 that the revolver in question was found in front of the appellant. This is a third statement which constitutes a third case as none of the prosecution witnesses supports him on this point. P.W.7, the Investigating Officer and also a member of the raiding party is mysteriously silent over the place and manner of recovery. Thus, the depositions of the prosecution witnesses do not speak a uniform story of recovery of arms and ammunitions. The depositions are contradictory and do not corroborate each other.
 
The learned Judge of the Special Tribunal did not bring the specific incriminating evidence into the notice of the appellant as required by section 342 of the Code of Criminal Procedure. Such omission on the part of the trial Court is fatal inasmuch as by now it is well settled that proper compliance with the provision of section 342 is mandatory and failing on the part of the Judge to bring the incriminating evidence to the notice of an accused, vitiates trial.
 
It appears from the impugned judgment that the learned Judge arrived at his findings upon misappreciation of evidence and held that the prosecution case has been proved by the evidence of P.Ws.1-2 inasmuch as P.Ws.1-2 did not support the prosecution case. His reliance on the evidence of P.Ws.1 and 2 is borne out by the following lines of his judgment: 

“ উক্ত সাক্ষী PW ১-২ এর সাক্ষ্য পর্যালোচনায় দেখা যা যে, ঘটনাসহলে পুলিশ যাওয়া, আসামীকে ধৃত করা ও আলামত ঊদ্বার করা প্রসংগে সমর্থন পাওয়া যায়। যদিও তাহাদের সাক্ষ্য জব্দ তালিকায় বর্ণিত আলামতের বিবরনের চাইতে কিছুটা কম বর্ণনা আসিয়াছে তথাপি জব্দ তালিকায় উল্লেখিত আলামতের সহিত অনেকটা মিল পরিলক্ষিত হয়। উপরোক্তর অবসহাদৃষ্টে দেখা যাইতেছে যে, অাসামী জাবেদ ওরফে কসাই জাবেদকে ঘটনাস্থলে উল্লখিত আলামত সহ  ধৃত করা হয় তাহা সার্বিক সাক্ষ্য বিচারে সুস্পষ্ট ভাবে প্রতিয়মান হয়।
 
It is needless to say that a person cannot be punished, unless he is found guilty beyond all reasonable doubt.  In our considered view, the facts, circumstances and evidence on records in the present case do not press home the charge framed against the appellant beyond reasonable doubt, and therefore, he is entitled to benefit of doubt.
 
For all the reasons stated above we find merit in the appeal. The impugned judgment and order of conviction and sentence, therefore, call for interference.
 
In the result, the appeal is allowed. The impugned judgment and order dated 9.8.2004 passed by the Judge, Metropolitan Special Tribunal No.6, Dhaka in Metropolitan Special Tribunal Case No. 7972 of 1999 is hereby set aside. The appellant Jabed Ali alias Kasai Jabed Ali alias Mowra Jabed, son of Anwar Ali is acquitted of the charges levelled against him and discharged from his bail bond.
       
Send down the lower Court records.
       
Ed.