Md. Tareque Aziz Vs. The State, 2 LNJ (2013) 458

Case No: Criminal Appeal No. 1221 of 2010

Judge: Zubayer Rahman Chowdhury,

Court: High Court Division,,

Advocate: Mr. Mohammad Nazrul Islam,Mr. Tapash Kumar Biswas,,

Citation: 2 LNJ (2013) 458

Case Year: 2013

Appellant: Md. Tareque Aziz

Respondent: The State

Delivery Date: 2011-01-17

HIGH COURT DIVISION
(CRIMINAL APPELLATE JURISDICTION)
 
Zubayer Rahman Chowdhury, J
And
Md. Ataur Rahman Khan, J.

Judgment
17.01.2011
 
Md. Tareque Aziz
..... Appellant
-Versus-
The State   
..... Respondent
 
 
Explosive Substances Act (VI of 1908)
Section 6
There is neither any evidence within the four corners of the prosecution case to indicate that the books and cassettes, which were alleged to have been recovered from the appellant, were জেহাদী” in nature nor is there any element to connect the appellant with the charge of abetment for the purpose of securing his conviction under section 6 of the Act. The learned Judge not only failed to evaluate the evidence on record, but also neglected to take note of the positive deposition made by the I/O of the case with regard to the books and cassettes in question. The judgment and order of conviction and sentence dated 29.03.2007, insofar as it relates to the appellant Md. Tareque Aziz, son of Md. Omor Ali Mollah, passed by the learned Judge of the Special Tribunal No. 4, Rajshahi was set aside. . . . (20.22 and 27)
 
Mr. Mohammad Nazrul Islam, Advocate
..... For the Appellant

Mr. Tapash Kumar Biswas, D.A. G. with
Mrs. Rahima Khatun, AAG and
Mr. Abdur Rokib, AAG
...... For the State

Criminal Appeal No. 1221 of 2010
 
JUDGMENT
Zubayer Rahman Chowdhury, J :
 
By the impugned judgment and order of conviction and sentence dated 29.03.2007, the learned Judge of the Special Tribunal No. 4, Rajshahi convicted and sentenced three persons namely, 1. Abul Kalam Md. Shafi Ullah @ Tarik, 2. Md. Tariqul Islam and 3. Md. Tareque Aziz in Special Tribunal Case No. 54 of 2006 under section 4(b)/6 of the Explosive Substances Act, 1908. Whilst the first two named persons were convicted under section 4(b)/6 of the Explosive Substances Act, 1908 (hereinafter referred to the Act) and sentenced thereunder to suffer rigorous imprisonment for 15 years, Tareque Aziz, the appellant before us, was convicted under section 6 of the Act and sentenced thereunder to suffer rigorous imprisonment for 10 years.

However, the instant appeal has been preferred by Tareque Aziz only against the order of conviction and sentence passed by the Special Tribunal No. 4, Rajshahi.

Mr. Mohammad Nazrul Islam, the learned Advocate appears on behalf of the appellant Tareque Aziz, while Mr. Tapash Kumar Biswas, DAG with Mrs. Rahima Khatun, AAG and Mr. Abdur Rokib, AAG appear for the State.

Mr. Nazrul Islam has placed the paper book before us. At the very outset, the learned Advocate submits that the allegation levelled against the appellant does not constitute an offence so as to bring the same within the ambit and scope of the Explosive Substances Act, 1908. The learned Advocate further submits that the allegation against the appellant relates to recovery of certain books and cassette which has been termed as “জেহাদী” by the prosecution, but there is no evidence to that effect. Mr. Islam has argued with considerable force and substance that the evidence that has been adduced by the prosecution with regard to the allegation against the appellant indicates otherwise.

Referring to the order dated 12.02.2006 whereby charge was framed by the learned Judge of the Tribunal, Mr. Islam submits that a reading of the same clearly indicates that the trial against the present appellant was vitiated from its very outset. Elaborating his submission, Mr. Islam submits that charge was framed against the three accused persons under section 4(b)/6 of the Act, although the specific charge against the present appellant related only to possession of “জেহাদী” books and cassettes. Therefore, according to Mr. Islam, by no stretch of imagination can the appellant be said to have committed any offence which would render him liable to be charged under section 4 of the Act. Mr. Islam contends that the appellant was convicted only under section 6 of the Act, which goes to show that the framing of charge as against this appellant was improper, which had vitiated the trial.

Referring to the deposition of PW 16, Md. Sirajul Islam, Sub-Inspector of Godagari Thana, Rajshahi,Mr. Islam submits that this witness, who was the Investigating Officer (briefly I/O) of the case, had categorically deposed that the books and cassettes in question were received by him from the Thana and the said publication was not declared to be illegal or prohibited at any point of time. PW 16 had further stated that “the books and cassettes were not explosive substances”. Putting considerable emphasis on the deposition of PW 16, Mr. Islam submits that it is palpably clear that the prosecution had failed to prove the allegations that were brought against this appellant. 

Mr. Islam next contends that even if it is accepted, but not conceded, that the books and cassettes in question were recovered from this appellant, yet, there is no evidence within the four corners of the prosecution case to indicate that they were “জেহাদী” in nature, as was claimed by the prosecution. Mr. Islam further submits that in the impugned judgment itself, there is no discussion by the learned Judge of the Tribunal with regard to any finding that the said cassettes and books were “জেহাদী” in nature.

Mr. Islam has also argued on a legal point which relates to the imposition of the conviction and sentence under section 6 of the Act. Elaborating his submission, Mr. Islam submits that section 6 of the Act provides for punishment of an abettor i.e., a person who aids or abates in the commission of any offence under the Act by providing or supplying money or materials in any manner whatsoever. Mr. Islam contends that in order to bring the offence within the ambit and scope of section 6 of the Act, it was incumbent upon the prosecution to establish that the books and cassettes, which was alleged to have been recovered from the appellant, were not only “জেহাদী” in nature, but in fact, had aided or abetted in the commission of any offence with which the other two persons namely, Abul Kalam Md. Shafi Ullah @ Tarik and Md. Tariqul Ialsm were charged and subsequently convicted.

Lastly, Mr. Islam submits that in view of the utter failure of the prosecution to bring home the charge against the appellant as well as the failure of the learned Judge to interpret and apply the law correctly, the order of conviction and sentence, so far as it relates to appellant Tareque Aziz, is liable to be set aside. Mr. Islam concludes his submission with a note of lamentation that an innocent person of 21 years had been put behind bars and forced to suffer incarceration for over five years without any justifiable reason.  
Mr. Tapash Kumar Biswas, the learned Deputy Attorney General submits that the present appellant is a member of the outlawed JMB and his complicity in the offence has been established by recovery of the books and cassettes from his possession. The learned Deputy Attorney General further submits that such recovery was made upon discloser made by the appellant himself and therefore, the trial Court was justified in convicting the appellant under section 6 of the Act and therefore, no interference is called for and the instant appeal is liable to be dismissed. However, the learned DAG was unable to show that the prosecution had adduced any evidence to establish that the books and cassettes were “জেহাদী” in nature or that there was any finding to that effect by the learned Judge of the Special Tribunal.

It is perhaps pertinent to refer to the relevant provision of law at the very outset of the discussion.
 
Section 4 of the Explosive Substances Act, 1908 reads as under :
 
“4. Punishment for attempt to cause explosion or for making or keeping explosive with intent to endanger life or property – Any person who [unlawfully or maliciously]-
(a)     does any act with intent to cause by an explosive substance, or conspires to cause by an explosive substance, an explosion in [Bangladesh] of a nature likely to endanger life or to cause serious [injury to person or property]; or
(b)     makes or has in his possession or under his control any explosive substance with intent by means thereof to endanger life, or cause serious [injury to person or property] in [Bangladesh], or to enable any other person by means thereof to endanger life or cause serious [injury to person or property] in [Bangladesh];
shall, whether any explosion does or does not take place and whether any injury to person or property has been actually caused or not, be punished with [imprisonment for  a term with may extend to twenty years, and shall not be less than three years] to which fine may be added.
 
Section 6 of the Act reads as under:

“6. Punishment of abettors- Any person who by the supply of or solicitation for money, the providing of premises, the supply of materials, or in any manner whatsoever, procures, counsels, aids, abets, or is accessory to, the commission of any offence under this Act shall be punished with the punishment provided for the offence.”
 
From a plain reading of section 6 of the Act, it is apparent that any person, who aids, abets or assists in the commission of an offence under the Act by providing money, premises or materials shall be liable to be punished under the Act. The use of the words “in any manner whatsoever” provides a very wide ambit and scope for the application of this particular section. However, in order to secure a conviction under this section, it has to be established that the person was an “abettor”.
 
In the instant appeal before us, the appellant was charged with possessing “জেহাদী” books and cassettes. It was, therefore, imperative for the prosecution to establish, through evidence, that the books and cassettes were not only “জেহাদী” in nature, but the appellant had abetted the other two co-accused, who were charged and convicted under section 4(b) the Act, with the books and cassettes in question.
 
Let us now refer to the deposition of PW 16, the Investigating Officer of the case. During the course of his cross-examination made on behalf of the appellant, PW 16 stated and we quote :

“আমার কাছে মামলা আসার ১০ দিন আগে থেকে সে জেল হাজতে ছিল। আমি বই ও ক্যাসেট থানা থেকে পাই ২৯-১২-০৫ তারিখ বই যে পাইয়াছি তা নিষিদ্ধ ঘোষিত নহে তথা ক্যাসেট ও নিষিদ্ধ নহে। তারিক আজিজ বিষয়ে প্রথমে মামলা হয় নাই। বই ও ক্যাসেট বিস্ফোরক âব্য নহে।” (Emphasis added.)
 
From the deposition of the I/O quoted above, it is palpably clear that the books and cassettes, which were alleged to have been recovered from the appellant, were not explosive substances. It further appears that PW 16 stated categorically that neither the books nor the cassettes, that were recovered from the appellant, were “নিষিদ্ধ”.
 
Merely because certain books and cassettes were recovered from a person alleged to be a member of JMB, it does not imply that such books and cassettes would be “জেহাদী” in nature. The impugned judgment is conspicuous by the absence of even any attempt, let alone any finding, to determine the true contents and nature of the books and cassettes in question so as to arrive at a conclusion that they were “জেহাদী” in nature. In the absence of any such finding, the learned Judge of the Tribunal clearly erred in holding that the books and cassettes were “জেহাদী” in nature and based on such erroneous finding, proceed to convict the appellant under section 6 of the Act and sentence him to suffer rigorous imprisonment for 10 (ten) years.
 
It is imperative for a Judge to administer and dispense justice in accordance with law and only in accordance with law. A Judge should neither be prosecution friendly nor should he be hostile to the prosecution. He must discharge his duties dispassionately without succumbing to official pressure or even public opinion. A Judge must not be swayed by the wave of public opinion. He must dispense justice not only on the basis of the materials which are before him, but also in accordance with the relevant provisions of law.
 
Sadly, in the instant case, both are lacking. There is neither any evidence within the four corners of the prosecution case to indicate that the books and cassettes, which were alleged to have been recovered from the appellant, were “জেহাদী” in nature nor is there any element to connect the appellant with the charge of abetment for the purpose of securing his conviction under section 6 of the Act.
 
It is not only unfortunate but regrettable too that without substantial and cogent evidence, the prosecution had implicated the appellant in the instant case. It is equally, if not more regrettable, that despite the absence of any cogent and reliable evidence to connect the appellant with the offence in question, the learned judge of the Tribunal, upon misreading of evidence and misinterpretation of law and last, but not least, through total non-application of mind, had sentenced the appellant to rigorous imprisonment for 10 years, out of which he has already served more than half the term.
 
We are constrained to observe that the learned Judge not only failed to evaluate the evidence on record, but also neglected to take note of the positive deposition made by the I/O of the case with regard to the books and cassettes in question. We are equally constrained to observe that the learned Judge failed to comprehend the ambit and scope of section 6 of the Act, which resulted in the imposition of a grossly unjust sentence on a 21 year old person.
 
We have taken note of the fact that till date, the appellant has never enjoyed the privilege of bail and has been in custody for a period of over five years now. 
 
Having regard to the facts and circumstances of the case and having considered the relevant provisions of law, we are inclined to hold that the learned Judge of the trial Court passed the impugned judgment and order of conviction and sentence, so far as it relates to appellant Md. Tareque Aziz, without any material evidence on record.
 
In that view of the matter, the impugned judgment and order of conviction and sentence, so far as it relates to appellant Md. Tareque Aziz, warrants interference from the Court and the same is liable to be set aside.
 
In the result, the appeal is allowed.   
 
The judgment and order of conviction and sentence dated 29.03.2007, so far as it relates to the appellant Md. Tareque Aziz, son of Md. Omor Ali Mollah, passed by the learned Judge of the Special Tribunal No. 4, Rajshahi in Special Tribunal Case No. 54 of 2006, arising out of Godagari Police Station Case No. 17 dated 18.12.2005, corresponding to G.R. No. 361 of 2005 under section 6 of the Explosive Substances Act, 1908 is hereby set aside.
 
Let the appellant Md. Tareque Aziz, son of Md. Omor Ali Mollah, be set at liberty forthwith, if not wanted in connection with any other case.
 
Before parting with the appeal, we would like to caution the concerned Judge, Mr. Abu Saleh Sheikh Mohammad Zahirul Haque, to be more diligent and judicious in the discharge of his duty.
 
Let a copy of the judgment be retained in the dossier of the concerned Judge.
 
Let a copy of the judgment be sent to the Director General, Judicial Administration Training Institute (JATI), Dhaka and the Registrar, Supreme Court of Bangladesh for necessary information. 
 
The office is directed to communicate the order and send down the lower Court records at once.
 
Ed.