Kazi Nasir Uddin Babul Vs. The State, 2 LNJ (2013) 121

Case No: Criminal Appeal No. 2871 of 2007

Judge: Syed Md. Ziaul Karim,

Court: High Court Division,,

Advocate: Mr. M.A. Mannan Mahon,,

Citation: 2 LNJ (2013) 121

Case Year: 2013

Appellant: Kazi Nasir Uddin Babul

Respondent: The State

Subject: Legal Evidence, Law of Evidence,

Delivery Date: 2012-09-04

HIGH COURT DIVISION
(CRIMINAL APPELLATE JURISDICTION)
 
Syed Md. Ziaul Karim,  J.
And
Ashish Ranjan Das, J.

Judgment
04.09.2012
  Kazi Nasir Uddin Babul
...Convict-Appellant.
Vs.
The State
...Respondents. 
 
 
Arms Act (XI of 1878)
Section 19A and 19 (f)
Code of Criminal Procedure (V of 1998)
Section 103
Evidence Act ( I of 1872)
Section 134
When the FIR named and seizure list witnesses do not support the prosecution story of recovery of arms, it is unsafe to base conviction on the evidence of police personnel. The evidence of police personnel regarding recovery of arms are contradictory when the evidence of seizure list witnesses like Pws. 4, 6 and 7 are consistent and corroborative. So, the prosecution case itself is vulnerable to the credibility. When the court has to act on the solitary evidence of a police witness it calls for corroboration as a rule of prudence. Mere suspicion no conviction can be given. It is a case of no legal evidence.
 
When the FIR named and seizure list witnesses who were the care-taker, security guard and secretary of the well-fare society of the P.O. do not support the prosecution story of recovery of arms or ammunitions from the possession of the accused, it is unsafe to base conviction on the evidence of police personnels interested in the prosecution case.…(35).
 
The evidence of Police personnels in respect of recovery of arms are not consistent and uniform, but it is contradictory with each other with all material particulars.
There is absolutely no reason to disbelieve the consistent and corroborative evidence of competent witness like PWs. 4, 6 and 7 having no reason whatsoever to depose falsely against the prosecution case. So, the prosecution case itself is vulnerable to the credibility. It is true that the prosecution relied upon the evidence of Police personnels and the seizure list witnesses and other local witnesses did not support the recovery of the arms and ammunitions from the possession of the accused. In such case where the evidence of the Police personnels form the only witness on which the Court has to act upon. It is absolutely necessary for the interest of justice that at least their statement must be in conformity with the probability and in a case like this the evidence of solitary witness calls for corroboration as a rule of prudence....(36)
 
There cannot be conviction for such offence on mere suspicion or presumption. The commission of offence must be proved. The presumption cannot take the place of positive evidence, (1970 P. Crl. L.J.-166).…(39)
 
It further appears to us that the instant case is absolutely a case of no legal evidence but the Court below without any legal evidence convicted the accused in moral view. Legal evidence in a criminal trial is the evidence of the incriminating facts and circumstances of involvement of the accused in the commission of offence inevitable pointing to their guilty as the perpetrators incompatible with the plea of their innocence. In view of the proved facts and circumstances of the present case which do not constitute any legal evidence moral conviction should not be substituted in place of the legal evidence.…(40).
 
Muzaffar Hossain Vs. Md. Humayun Kabir and other reported in 15 BLD (AD) page 245; Motaleb Vs. Md. Mostaque Ali and others reported in 19 BLD (AD) page 156; V.S. Achuthanda Vs. P.J. Francis and another reported in AIR 2001 SC page 837; Abdul Latif Bepari Vs. Md. Nurul Islam Howlader reported in 20 BLD (AD)  page 264; Ansaruddin Ahmed Vs. Senior Assistant Judge and Election Tribunal  reported in 14 BLD (AD) 77; Ram Sewak Yadav and others Vs. Hussain Kamal Kedwai  and others (AIR 1964 S.C.R. 239; Rajnarayon Vs. Indira Nehru Gandi  reported in AIR 1972 S.C. 1302; Suresh Prasad Yadav Vs. Jai Prakash Mishra and others reported in AIR 1975 S.C. 376; Dr. Mohiuddin Khan Alamgir Vs. Government of Bangladesh reported in 62 DLR (AD) 425, ref.
 
Mr. S.M. Shahjahan, Advocate, with
Mr. Md. Mohinur Rahman, Advocate,
---For the appellant.

Mr. M. A. Mannan Mohan, D.A.G. with
Mr. Md. Osman Goni, A.A.G. and
Mrs. Anowara Begum, A.A.G.
---For the respondent.

Criminal Appeal No. 2871 of 2007
 
JUDGMENT
Syed Md. Ziaul Karim, J:
 
By this appeal the appellant has challe-nged the legality and propriety of the judgment and order of conviction and sentence dated 20-06-2007 passed by learned Judge of Metropolitan Special Tribunal No. 3, Dhaka, in Metro. Special Tribunal case no. 354 of 2007 convicting the appellant under Sections 19A and 19(f) of the Arms Act and sentencing him to suffer rigorous imprisonment for ten years and seven years respectively with a direction to run both the sentences concurrently.
 
The prosecution case as projected in the first information report (briefly as FIR) and unfurled at trial are that on the basis of secret information regarding unauthorised arms, on 03-04-2007 at 23-30 hours S.I. Md. Roushan Ali (P.W. 3) accompanied by other police personnels launched a drive and laid in wait in “NAM Villa” of road no. 15, house no. 20+22, Gulshan-1(briefly as P.O.) to nab the suspected arms bearer. Later, at 23.40 hours they found one man carrying a black bag entered into the P.O. On suspicion they nabbed him who later identified him as Kazi Nasiruddin Babul. On interrogation and search they recovered one foreign revolver having 8″ length made of Japan, four round bullets, two pass-ports, one driving licence and some bank documents from him in presence of locals namely 1. Nur Mohammad (PW. 4), 2. Mosharraf Hossain, 3. Ahmmed Ali (PW. 6) and 4. C-Md. A. Razzak (PW-2), who could not provide any satisfactory explanation for keeping such arms and other documents. Then he seized those incriminating articles and prepared seizure list in presence of above locals. Afterwards he handed over him to Gulshan Police Station with those seized alamats. Then the prosecution was launched by lodging a FIR by S.I. Md. Roushan Ali (PW-3) as informant making arrestee as accused which was recorded as Gulshan P.S. Case no. 11(4) of 2007 corresponding to G.R. no. 364 of 2007.
 
The Police, after investigation submitted charge sheet under sections 19A and 19(f) of the Arms Act accusing the appellant as accused.
 
Eventually, the accused was called upon to answer the charge under Sections 19A and 19(f) of the Arms Act who pleaded not guilty and claimed to be tried.
 
In course of trial the prosecution in all examined eight witnesses.
 
After closure of the prosecution case, accused was again examined under Section 342 of the Code of Criminal Procedure( briefly as the Code), again he pleaded not guilty but led no evidence in defence, however he offered an explanation supporting his innocence and false implication.
 
The defence case as it appears from the trend of cross-examination of the prosecution witnesses are that of innocence and false implication; it was divulged in defence that he is well placed in the society and on 17-03-2007 at 11 p.m. some unknown persons identified them as law enforcer nabbed him from his residence i.e. P.O. and seized his pass-ports and some bank documents and kept him in their custody upto 03-04-2007 at 11 p.m. Later he was dropped at his residence at 11:30 p.m., by a black taxi cab from where he was again arrested showing the possession of arms and bank documents. 
 
After trial the learned Judge convicted the accused as aforesaid holding:
  1. The prosecution successfully proved the charge by corroborative evidence;
  2. The evidence of Police personnel are consistent and the same can be believed for awarding conviction of the accused for holding unauthorized arms. 
Feeling aggrieved by the aforesaid judgment and order of conviction and sentence the appellant preferred the instant appeal.
 
The learned Counsel appearing for the appellant seeks to impeach the impugned judgment and order of conviction and sentence on five fold arguments:
 
Firstly: It is the definite case of the prosecution that the alleged arms were recovered from a black bag but the same was not seized which casts a serious doubt upon the prosecution case.

In support of his contentions he refers the case of Muslimuddin and others Vs. The State 38 DLR(AD)-311 held:
Accused presumed to be innocent of the charge till guilt is established by legal evidence- No particular number of witnesses legally required to prove the offence.
The fundamental principle of a criminal trial is that the accused shall be presumed innocent and that he is not required to adduce evidence to prove his innocence, but the entire burden of proof of his guilt lies on the prosecution alone and till that time the presumption of innocence continues, whether the case is before the trial Court or at higher forums. Again, law does not require a particular number of witnesses to prove a case and conviction may be founded on the testimony of a solitary witness. But rule of prudence, if not rule of law, requires corroboration of such evidence.”
 
Secondly: In this particular case the Court below only relied upon the evidence of Police personnels but those evidence are contradictory with each other so the same cannot be relied.

In support of his contentions he refers the case of Md. Alauddin and others Vs. State 22 BLD- 256 held:
“If the testimony of a single witness is found to be entirely reliable, there is no legal impediment to convict, but it needs only to be seen whether the veracity of the witness is tainted at any stage of the trial. There is no rule or law to the effect that all the charge sheeted witnesses are to be produced before the court and examined.”

On the same point he refers the case of Md. Harisuddin Vs. The State 20 BLD-576 held:
In view of section 134 of the Evidence Act an accused may even be convicted on the sole evidence of a lone witness if his evidence is found to be unimpeachable and unshaken.”
 
Thirdly: The seizure list witnesses do not support the prosecution case of recovery of arms from the possession of the appellant so it is unsafe to convict the accused under the Provisions of the Arms Act.

In support of his contentions he refers the case of Iftekhar Hasan Choudhury (Md.) alias Riaz Vs. State- 47 DLR-451 held:
Mere knowledge of the accused that the arms or ammunition was lying at the spot pointed out by him, in the absence of any evidence or circumstances to show that he had exclusive possession over the spot or that none else had access to it, cannot make him liable for conviction.
When the First Information Report named and seizure list witnesses, who are the owners of shops and business concerns adjacent to the place of the occurrence, do not support the prosecution story of recovery of arms or ammunition from the possession of the accused, it is unsafe to base conviction on the evidence of police personnels interested in the prosecution case.”
 
Fourthly: It appears from the record that the appellant was under the Police custody since 17-03-2007 to 03-04-2007 and his explanation made in the statement recorded under section 342 of the Code indicates that he was under the custody of the law enforcer since 17-03-2007 upto 03-04-2007 at 11:00 p.m. so it was improbable to hold those alleged arms with him.
 
Fifthly: It is a case of no evidence rather the alleged arms were planted and thereby he was falsely implicated in this case.
 
He lastly submits that the judgment and order of conviction and sentence based on misreading and non conside-ration of the evidence on record and as such the same cannot be sustained in the eye of law.
 
The learned Deputy Attorney General appearing for the respondent opposes the appeal and submits that the appellant had the knowledge about the seized arms and he had the control and possession over it. He adds that the Police personnels categorically testified in respect of recovery of the arms from the exclusive control and possession of the appellant. So the learned Judge of the Court below considering the materials on record rightly convicted him which calls for no interference by this Court. In support of his contentions he refers the case of Abdul Razzak Talukder Vs. State 51 DLR-83 held:
“পুলিশ সাক্ষীর সাক্ষ্য বিচার বিশ্লেষণ করে যদি তা বিশ্বাস যোগ্য মনে করেন তবে সহানীয়। সাক্ষী অভিযোগকারী পক্ষের সমর্থনে সাক্ষ্য না দিলেও বা সাক্ষ্য দিলে তা সত্য না হলে পুলিশ সাক্ষীর সাক্ষ্যের উপর নির্ভর করে আসামীকে দোষী সাব্যসহ করতে আইনতঃ কোন বাধা নেই।
সহানীয় সাক্ষীদের হাবভাব ও আচরণ লক্ষ্য করে তাহাদের সাক্ষ্য বা পুলিশ সাক্ষীদের সাক্ষ্যের মধ্যে কোনটি সঠিক সে সম্পর্কে সতর্কতার সাথে বিচার বিশ্লেষণ করে সিদ্ধান্ত  গ্রহন করতে হবে। যদি সাক্ষ্য প্রমান বিচার বিশ্লেষণ করে দেখা যায় যে আসামীর সাথে শত্রুরতার কারণে বা আসামীর শত্রুপক্ষের দ্বারা ন্যায় অন্যায়ভাবে প্রভাবান্বিত হয়ে পুলিশ আসামীকে হয়রান  ও জব্দ করার জন্যে তার বির্রদ্ধে মিথ্যা মামলা সাজিয়েছে তখন বিচারক পুলিশ সাক্ষীর সাক্ষ্য অগ্রাহ্য করতে পারেন।

He further refers the case of Babul alias Pet Kata Babul and others Vs. The State 5 MLR-377 held:
    “Sections 19A and (f)–Offence of pos-session of arms without valid   document-
    Keeping dagger in possession is not an offence punishable under the Arms Act, 1878-
    Evidence of Police Personnel cannot always be discarded in the absence of corroborative evidence by public witness. The evidence of police witness and that of public witness on the same occurrence when forms part of the same transaction can well form the basis of conviction.”
 
In order to appreciate their submissions we have gone through the record and given our anxious consideration to their submissions.
 
Let us now weigh and sift the evidence on record as adduced by the prosecution to prove the charge.
P.W.1, S.I. Md. Abdul Based. He deposed that on 04-04-2007 at 1:30 a.m. he was in duty Officer at Gulshan P.S.; at that time S.I. Roushan Ali lodged the FIR and he recorded the same and filled up its form. He proved the same as Exhbt. 1 and his signature on it 1/1. He proved the FIR as Exhbt. 2 and his signature on it 2/1.
 
In cross-examination he stated that the occurrence took place on 03-04-2007 at 23:40 hours and he recorded it on 04-04-2007 at 1:30 hours. He denied the suggestion that being influenced by higher officer he recorded such FIR.
 
P.W.2 C-Md. Abdur Razzak. He was accmpanied with the informant. He deposed that on 03-04-2007 at 11:40 hours when accused Kazi Nasiruddin Babul was entering in his residence with a black bag then S.I. Roushan Ali challenged him and recovered one revolver with four round bullets, one driving licence along with some bank documents from the black bag. The accused failed to show its valid documents. He prepared seizure list. He identified the accused on dock.
 
In cross-examination he stated that the alamats were not produced in the Court. He denied the suggestion that no arms or ammunitions were recovered from the possession of the accused and on 17-03-2007 the accused was arrested; since 17-03-2007 to 03-04-2007 he was under the Police custody. He denied the suggestion that being influenced by the other higher officers he signed in the seizure list.
 
P.W. 3 S.I. Roushan Ali is the informant of the case. He deposed that on 03-04-2007 he was attached with Gulshan Police Station and on the basis of an information he rushed to the P.O. at 23:30 hours; he found that one man carrying a black bag was entering into the P.O. and after challenge and search he recovered one foreign revolver, four round bullets and two pass-ports and some bank documents from his bag.  He prepared seizure list( Exhbt. 3) and his signature on it( 3/1). He also identified the revolver (Mat. Exhbt. i), four round bullets (Mat. Exhbt. ii series). He identified the accused Kazi Nasiruddin Babul on dock.
 
In cross-examination he stated that in the seizure list he did not mention that the seized revolver and four round bullets were belonged to Kazi Nasiruddin. He denied the suggestion that he forged the signatures of seizure list witnesses and on 17-03-2007 the accused was hijacked by them. He further stated that he is not an ballistic expert and the black bag was possessed by the accused.
 
P.W. 4 Nur Ahmed, a seizure list  witness. He deposed that on 03-04-2007 he was care-taker of the P.O. He was asleep and another security guard Ali Ahmed called him, then he came out and found accused Babul, was sitting. Police asked him to sign in a blank paper and he signed. He proved his signature as (Exhbt. 3/2 ).
 
In cross-examination he stated that “আমি সাদা কাগজে প্রায় ঘুমন্ত অবস্থায় সহি দেই।”
 
P.W. 5 Md. Israil Hossain was the driver of the car of law enforcers. He deposed that on 03-04-2007 he was in duty with S.I. Roushan Ali, at night 12’0 clock S.I. Roushan Ali went  in ‘NAM Villa’ but he was sitting in the car, after sometime accused Nasiruddin was brought into the car and he was taken to the Police Station. He identified accused in dock. The defence declined to cross-examine him.
 
P.W. 6 Ahammed Ali, a seizure list witness. He deposed that on 03-04-2007 he was the security guard of ‘Nam Villa’. At night 12’0 clock police asked him to open the door and they sat in the dark. After 1/½ hour one black taxi cab reached. By which journalist Babul came. Then the Police cordoned the cab. Then the Police arrested him and asked him (P.W. 5) to sign in a blank paper. He proved the signature as (Exhbt. 3/3). The defence declined to cross-examine him.
 
P.W. 7 Md. Israil Hossain was the well-fare secretary of ‘NAM Villa’. He deposed that on 03-04-2007 he was asleep, on call he came out and found some Police personnels along with his care-taker and the police asked him whether Nasiruddin Babul was known to him. He answered in positive. He did not sign in the seizure list. He was declared hostile by the prosecution.
 
In cross-examination by the prosecution he denied that he signed in the seizure list after recovery of arms from accused Babul, and did not depose against accused as he had a good relation with him. The defence declined to cross-examine him. On query by the Court he stated that the accused was not his relation or his guardian.
 
P.W.8 S.I. Molla Afzal Hossain, was the investigating officer of the case. He deposed that  on 03-04-2007 he was attached with Gulshan P.S. The case was entrusted to him for investigation. He visited the place of occurrence; prepared sketch map and index( Exhbts. 4 and 5) and his signatures on it (Exhbts. 4/1 and 5/1). He recorded the statements of the witnesses under Section 161 of the Code. After investigation he submitted charge sheet accusing the accused.
 
In cross-examination he stated that on 04-04-2007 at 1:30 hours he received the case for investigation and on 06-04-2007 he went to the P.O. then on 15-04-2007 at 9:30 a.m. he again visited the P.O. but he did not find any witness. At the time of investigation accused and the alamats were handed over; he denied the suggestion that he never visited the P.O. and recorded the statement of the neighbouring witness. The alamats were not examined by ballistic expert. He also denied that the alamats which were shown in the court were not the alamats of the case and being influenced by the higher officer he submitted the charge sheet and deposing falsely.
 
These are all of the evidence on record adduced by the prosecution to prove the charge.
 
The prosecution case is that one foreign revolver along with four round bullets were recovered from the exclusive possession of the accused. Such facts were disowned by the defence. Its case was that he had no knowledge about the arms and the same were planted.
 
On going to the materials on record it transpires that the prosecution in all examined eight witnesses, of them P.W.1, 2,3 and 8 are the Police personnel, of whom P.W.1 recorded the case, P.W. 2 was accompanied with the informant at the time of recovery of arms, P.W. 3 is the informant and P.W. 8 was the I.O., P.W, 4, 6 and 7 were local seizure list witnesses, of whom P.W. 7 disowned the prosecution case and as such he was declared hostile. P.W. 5 was the driver of the Police personnels.
 
We should bear in mind, credibility of testimony oral and circumstantial, depends considerably on a judicial evaluation of the totality, not isolated scrutiny. When dealing with the serious question of guilt or innocence of persons charged with crime, the following principles should be taken into consideration.
  1. The onus of proving everything essential to the establishment of the charge against the accused lies on the prosecutor.
  2. The evidence must be such asto exclude to a moral certainty every reasonable doubt of the guilt of the accused.
  3. In matters of doubt it is safer to acquit than to condemn, for it is better that several guilty persons should escape than that one innocent person suffer.
  4. There must be clear and unequivocal proof of the corpus delicit.
  5. The hypothesis of delinquency should be consistent with all the facts proved. 
Inspite of the presumption of truth attached to oral evidence under oath if the Court is not satisfied, the evidence inspite of oath is of no avail.
 
We find from the evidence on record that the prosecution case absolutely rest upon the evidence of Police personnels particularly P.W. 3 who is the informant of the case and P.W.2 who accompanied with the informant. P.W. 3 S.I. Md. Roushan Ali stated that on the basis of a secret information he went to the P.O. with other police personnels wherein they found that one person carrying a black bag was entering into the P.O. Later, he nabbed that man and on search he found one foreign revolver with four rounds of bullets along with other bank documents and one driving licence etc. in the bag.
 
In cross-examination he categorically stated that he did not seize that black bag and those incriminating revolver and bullets were belonged to accused Kazi Nasiruddsin was not written in the seizure list. He although denied that signature of the seizure list, witnesses were forged. Moreso, this witness stated that the alleged arms were not examined by ballistic expert. P.W. 2 C-Abdur Razzak was examined to corroborate the evidence of P.W. 3. He stated that from a black bag the aforesaid arms were recovered and the accused could not show any valid documents but in cross-examination he stated that the alleged alamats were not produced in the court.  Moreso, the accused was in the custody of Police since 17-03-2007 to 03-04-2007. PWs. 4, 6 and 7 who were the care-taker, Security guard and well-fare secretary of the P.O. i.e. “NAM Villa” and seizure list witnesses. They did not support the prosecution case in respect of recovery of arms. Of them. PW-7 denied his signature in the seizure list and attention to such fact was drawn to PW-3, who however denied it. Therefore when the FIR named and seizure list witnesses who were the care-taker, security guard and secretary of the well-fare society of the P.O. do not support the prosecution story of recovery of arms or ammunitions from the possession of the accused, it is unsafe to base conviction on the evidence of police personnels interested in the prosecution case.
 
It is pertinent to point out that it is the definite case of prosecution that the alleged arms were recovered from a black bag carried by the appellant but the said black bag was neither seized nor any explanation was provided for non seizing of black bag, which cast a serious doubt upon the manner of recovery of the alleged arms from the accused. From the evidence of PW-2 we also find that the accused was under the Police custody since 17-03-2007 to 03-04-2007. The accused offer-ed an explanation in his statement made under section 342 of the Code to the effect that he was nabbed by the law enforcer on 17-03-2007 at 11:00 p.m. and he was under their custody upto 03-04-2007 at 11:00 p.m. then he was dropped in front of his residence i.e. P.O. by a black car at 11:30 p.m. P.W. 6 categorically stated that the accused reached at the P.O. by the black car. So the defence case provides corroboration by the prosecution witness. So in our view it was quite improbable that the accused being released at 11:30 p.m. possessed those arms at 11:40 p.m., which also cast a serious doubt upon the prosecution case. Moreso, the prosecution case itself is contrad-ictory inasmuchas informant (PW-3) narrated the case in one manner and PW-6 narrated the case in different manner. It also appears to us that the evidence of Police personnels in respect of recovery of arms are not consistent and uniform, but it is contradictory with each other with all material particulars. There is absolutely no reason to disbelieve the consi-stent and corroborative evidence of competent witness like PWs. 4, 6 and 7 having no reason whatsoever to depose falsely against the prosecution case. So, the prosecution case itself is vulnerable to the credibility. It is true that the prosecution relied upon the evidence of Police personnels and the seizure list witnesses and other local witnesses did not support the recov-ery of the arms and ammunitions from the possession of the accused. In such case where the evidence of the Police personnels form the only witness on which the Court has to act upon. It is absolutely necessary for the interest of justice that at least their statement must be in conformity with the probability and in a case like this the evidence of solitary witness calls for corroboration as a rule of prudence.
 
It is true that the conviction and sentence can be awarded reling on the evidence of Police personnels, but herein this case the evi-dence of Police personnels are not impeccable. The prosecution itself brought the seizure list, local, competent and independent witnesses to prove the charge. So as a rule of prudence both the evidences should be scrutinised and squarely considered together. If we consider only the evidence of Police personnels which favour the prosecution disowning the evidence of local competent witnesses which disfavour the prosecution case, will be against the principles of Criminal Jurisprudence.
 
Moreover, it is the definite case of the defence that there was an internal feud between the parties and when there is a background of enmity and the Police witnesses are not natural and independent witnesses and further natural and independent witnesses did not support the prosecution case in respect of recovery of arms, it is unsafe to rely on the evidence of Police witnesses to make a nexus between the accused and the crime. So we hold that there is no cogent, convincing and unimpeachable evide-nce on record to prove the complicity of the accused with the crime under the Arms Act. Prosecution utterly failed to bring home guilt to the accused beyond reasonable doubt.
 
It is true that crime like holding of arms is shocking in nature and also, revolting. The Crime is against Society and humanity, but the prosecution convicted the accused merely on suspicion that the accused committed such offence. There cannot be conviction for such offence on mere suspicion or presumption. The commission of offence must be proved. The presumption cannot take the place of positive evidence, (1970 P. Crl. L.J.-166).
 
It further appears to us that the instant case is absolutely a case of no legal evidence but the Court below without any legal evidence convicted the accused in moral view. Legal evidence in a criminal trial is the evidence of the incriminating facts and circumstances of involvement of the accused in the commission of offence inevitable pointing to their guilty as the perpetrators incompatible with the plea of their innocence. In view of the proved facts and circumstances of the present case which do not constitute any legal evidence moral conviction should not be substituted in place of the legal evidence.
 
The accused was convicted merely on suspicion without any legal evidence. To that end in view, law is now well settled that suspicion or doubt however strong it might be cannot take place of evidence or there be slightest doubt asto the involvement of the accused in the crime, he cannot be convicted. With this regard reliance are being placed in the cases of Abdul Haq and others  Vs. The State 14 BLT 485, Fazu alias Fazlur Rahman Vs. The State 1 BLC 558, Rekatfullah Vs. The State 13 DLR-750. It is further held in the case reported in AIR 1921(PC)69, that the decision of the Court must rest upon legal ground established by legal testimony from the prosec-ution.
 
Moreso in all respect, the convict is also entitled to benefit of doubt. In the case of Safder Ali Vs. Crown 5 DLR(FC) 107 held:
In a criminal case, it is the duty of the Court to review the entire evidence that has been produced by the prosecution and the defence. If, after an examination of the whole evidence, the Court is of the opinion that there is a reasonable possibility that the defence put forward by the accused might be true, it is clear that such a view reacts on the whole prosecution case. In these circumstances, the accused is entitled to benefit of doubt, not as a matter of grace, but as of right, because the prosecution has not proved its case beyond reasonable doubt”.
 
So, there is no cogent, convincing and unimpeachable evidence on record to prove the complicity of the accused with the crime of holding arms. Prosecution utterly failed to bring home guilt to the accused beyond reason-able doubt.
 
Moreover, the impugned judgment and order of conviction and sentence in its entirety is not well founded in the facts and circums-tances of the case. Therefore, the submissions advanced by the learned Deputy Attorney General are not the correct exposition of law. Therefore, we are unable to accept his submi-ssions. On the contrary submissions advanced by the learned Counsel for the defence prevails and appears to have a good deal of force.
 
In the light of discussions made above and the preponderant judicial views emerging out of the authorities refer to above, we are of the view that the impugned judgment and order of conviction and sentence suffers from legal infirmities which calls for interference by this Court. Thus the appeal having merit succeeds.
 
In the result:-
  1. The appeal is allowed. 
  2. The impugned Judgment and order of conviction and sentence dated 20-06-2007 passed by learned Judge of Metropolitan Special Tribunal no. 3, Dhaka, in Metro. Special Tribunal Case no. 354 of 2007 is hereby set aside and the accused– appellant Kazi Nasiruddin Babul is found not guilty and acquitted from the charge.
  3. The accused–appellant who is presently on bail is discharged from the bail bond.

The Office is directed to send down the records at once.
       
Ed.