Md. Zinnat Ali Vs. Md. Ruhul Quddus and others [4 LNJ AD (2015) 30]

Case No: Criminal petition for leave to appeal No. 13 of 2011

Judge: Muhammad Imman Ali,

Court: Appellate Division ,,

Advocate: Mahbubey Alam,Mr. Zainul Abedin,Mr. M.I. Farooqi,Mr. Munsurul Hoque Chowdhury,Mr. Qumrul Hoque Siddique,Mr. M. K. Rahman,Mr. A. M. Amin Uddin,,

Citation: 4 LNJ AD (2015) 30

Case Year: 2015

Appellant: Md. Zinnat Ali

Respondent: Md. Ruhul Quddus alias Ruhul Quddus Babu and others

Delivery Date: 2014-06-09

APPELLATE DIVISION
(CRIMINAL)
 
Nazmun Ara Sultana, J
Syed Mahmud Hossain, J.
Muhammad Imman Ali, J.
Judgment
9.6.2014
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Md. Zinnat Ali
. . .Petitioner
-Versus-
Md. Ruhul Quddus alias Ruhul Quddus Babu and others
. . . Respondents
 
 
Code of Criminal Procedure (V of 1898)
Section 494
The Public Prosecutor acts on the instruction of the government and has to justify the reasons for withdrawing the case to the satisfaction of the Court concerned. In the instant case the justification for the withdrawal is apparent from the application filed in Court by the learned Public Prosecutor. Although the learned trial Judge did not elaboratly discuss the reasons for allowing the withdrawal of the case, quite clearly that materials relating to the decision to withdraw the case were placed before him and considered by him. The further proceedings in the case would be an exercise in futility. Where the informant did not specify the manner and identity of the assailants vis à vis the injuries inflicted and when the other eye witnesses have been tendered by the prosecution, the possibility of corroborative evidence coming forth in the trial is non-existent. After 25 years from the date of occurrence the trial was started and deposition of prosecution witnesses were recorded on 11.03.2013. According to the FIR, apart from the informant, there were three other prosecution witnesses present in the room where the occurrence took place. Those three witnesses have been produced by the prosecution as PWs 2, 3 and 4. All three were tendered and cross-examination declined by the defence. There is no illegality or infirmity in the impugned judgement and order. And there is no reason to interfere with the impugned judgement and accordingly this criminal petition for leave to appeal is dismissed.     . . . (17 and 19)

Bakshu Mia Vs. Govt. of Bangladesh and others, 30 DLR (SC) 228; Prativa Rani Dey (Tirtha) Vs. Dr. Mohammad Yousuf, Chittagong. Medical College and others, 52 DLR (AD)8; Shah Obaidul Mannan and anothers Vs. State and another, 8 BLT (AD) 42; Sikander Ali Sikder Vs. State and others, 31 DLR (AD) 135; Abdul Wahab Talukder alias Mohd and others Vs. State and another, 30 DLR (SC) 278 ref.
 
For the Petitioner: Mr. Zainul Abedin, Advocate, Advocate-on-Record.
For the Respondent No. 10: Mr. Mahbubey Alam, Attorney General, instructed by Mr. B. Hossain Advocate-on-Record.
For the Respondent Nos. 5-7: Mr. M.I. Farooqi, Senior Advocate with Mr. Munsurul Hoque Chowdhury, Senior Advocate, instructed by Mrs. Mahmuda Parveen, Advocate-on-Record.
For the Respondent No. 4: Mr. Qumrul Hoque Siddique, Advocate, instructed by Mrs. Sufia Khatun, Advocate-on-Record.
For the Respondent No. 3: Mr. M. K. Rahman, Senior Advocate,  instructed by Mrs. Purabi Rani Sharma, Advocate-on-Record
For the Respondent No. 9: Mr. A. M. Amin Uddin, Advocate,  instructed by Mr. Syed Mahbubar Rahman, Advocate-on-Record
For the Respondent No. 1-2, 8& 11: Not represented

Criminal petition for leave to appeal No. 13 of  2011
 
JUDGMENT

Muhammad Imman Ali, J:

This criminal petition for leave to appeal is directed against the judgement and order dated 22.08.2010 passed by a Division Bench of the High Court Division in Criminal Revision No. 1017 of 2010 discharging the Rule ex parte. The petitioner had filed the criminal revision under section 435 read with section 439 of the Code of Criminal Procedure challenging the legality of order No. 15 dated 08.04.2010 passed by the learned Additional Sessions Judge, Rajshahi in Sessions Case No. 259 of 2002 allowing an application under section 494 of the Code of Criminal Procedure filed by the learned Public Prosecutor for withdrawal of the said sessions case in respect of accused respondents No. 1 – 9.

The facts of the case relevant for disposal of the instant criminal petition for leave to appeal are as follows:
          An incident took place at midnight following 17.11.1988 in the hall of residence, namely Latif Hall of Rajshahi University, where some students of the “Chhatra Sangram Parishad” attacked some other students of the “Islami Chattra Shibir”, injuring a number of them. One victim, namely Aslam Hossain, the President of Islami Chattra Shibir succumbed to his injuries. The informant, Md. Nayeb Ali, a student of the same university lodged the First Information Report (FIR) with Boalia Police Station, Rajshahi in the morning of 18.11.1988 at 9:55 A.M. thus giving rise to Boalia P.S. Case No. 14 dated 18.11.1988. It was alleged in the FIR that around 50 students, of whom 30 were named, armed with various weapons entered into Latif Hall chanting slogans ধর ধর শিবির ধর, ধরে ধরে জবাই কর”. The informant and the victim along with three others, namely Akhter Hossain, Harun-or-Rashid Mukul and Shafiqul Islam barricaded themselves in room No. 339. The accused persons broke open the door and upon entering, assaulted the victim and the three others, and left thinking that they were dead. They took the informant and locked him up in another place.

We find from the records that the case has a very chequered history. After investigation, police submitted charge sheet dated 15.02.1989 against 14 accused persons, including respondent No. 1, but recommended discharge of 16 accused persons, including respondent Nos. 2–9. The informant filed a Naraji petition on 16.02.1989. After further investigation, the second charge sheet dated 14.05.1989 was submitted excluding the 16 accused persons who had been recommended to be discharged in the first charge sheet. The informant lodged a further Naraji petition dated 19.06.1989. A judicial enquiry was held wherein deposition of six witnesses were recorded. In due course, by order dated 18.11.2002 the case was taken up for framing of charge against 34 accused persons. Some of the accused persons filed an application for discharge under section 265C of the Code of Criminal Procedure. After due hearing, 17 accused persons, including present respondents Munna Shaha, Ali Raihan,  Rabiul Alam Babu, Masud Parvez, Ahsan Kabir Badol, Ayub Ali and Firoz Ahmed were discharged. Charge was framed against 17 accused persons, including present respondents Md. Ruhul Quddus Babu and Abdul Karim Shikder. Thereafter, the informant challenged the order of discharge by filing Criminal Revision No. 367 of 2003 before the High Court Division whereupon Rule was issued 03.05.2003 and trial of the case was stayed. Subsequently, by judgement and order dated 02.07.2009, the Rule was made absolute and the order discharging the 16 accused persons was set aside. It appears from the order of the Additional Sessions Judge dated 28.03.2010 that an application was filed by the prosecution under section 494 of the Code of Criminal Procedure for withdrawal of the criminal case against respondent Nos. 1–9. The application was supported by a memo No. স্বম (আইন -১)/মামলা প্রত্যাহার-১/২০১০ (১২তম সভা)/ ১০৯৬ dated 10.03.2010 issued by the Legal Department of the Ministry of Home Affairs. The learned Public Prosecutor stated in his application that a false case had been brought against these respondents for political reasons in order to harass them and the same has been on-going for 22 years, and it is still at the stage of framing charge.

Upon consideration of the submission made by the learned Public Prosecutor and the learned advocate appearing on behalf of the respondents, the learned Additional Sessions Judge, Third Court, Rajshahi by his order dated 28.03.2010 allowed the application for withdrawal of the case against the respondents.

The father of the victim, petitioner herein, along with the informant, pro-forma respondent herein, filed Criminal Revision No. 1017 of 2010 before the High Court Division under section 439 read with section 435 of the Code of Criminal Procedure challenging the order allowing withdrawal of the case against the respondent Nos. 1–9, whereupon Rule was issued. When the matter was ultimately made ready for hearing and appeared in the cause list, the petitioner sought adjournment for two weeks, but only one day’s adjournment was granted. The petitioner then filed an application for that particular Bench not to hear the matter. The said application having been rejected, the Rule was heard ex parte and by the impugned judgement and order, it was discharged. The petitioner then filed the instant criminal petition for leave to appeal before this Division.

Before us, the petitioner was represented by Mr. Zainul Abedin, learned Advocate-on-Record, whilst the State, respondent No. 10 was represented by Mr. Mahbubey Alam, the learned Attorney General. His submissions were adopted by the learned Advocates appearing for respondent Nos. 3, 4, 5-7 and 9 who were represented respectively by Senior Advocate Mr. M.K. Rahman, Advocate Mr. Qamrul Hoque Siddique, Senior Advocate Mr. M.I. Farooqi and Advocate Mr. A.M. Amin Uddin. Respondent Nos. 1, 2, 8 and 11 were not represented.

Mr. Zainul Abedin submitted that The High Court Division discharged the Rule without considering that the sanction of the government for withdrawal of the case was a mechanical one and that in allowing the application for withdrawal the learned Additional Sessions Judge acted most perfunctorily and allowed the withdrawal without giving any reasons. In support of his submission, he referred to the decisions in the cases of Bakshu Mia Vs. Govt. of Bangladesh and others reported in 30 DLR (SC) 228, Prativa Rani Dey (Tirtha) vs Dr Mohammad Yousuf Chittagong Medical College and others reported in 52 DLR (AD)8 and Shah Obaidul Mannan and another –Versus- The State and another reported in 8 BLT (AD) 42. He submitted that the High Court Division has caused serious miscarriage of justice in affirming the order of withdrawal without considering the fact that the case involves the question of the murder of a student and furtherance of the cause of justice demands that the trial should be allowed to proceed against all the persons named in the FIR. Finally, he submitted that the informant was not given a proper opportunity to place the case before the High Court Division nor was it considered that the informant was not given notice of the decision to withdraw the case against the respondents and was not heard by the learned Additional Sessions Judge and thus caused miscarriage of justice.

The learned Attorney General submitted that the withdrawal of the case against the respondents was totally in accordance with the law. He referred to the circular of the government dated 22.02.2009 concerning the formation of a committee and its functions in respect of withdrawal of cases which were started at various times for political reasons for the purpose of harassment. He submitted that, the committee scrutinised the instant case along with numerous other cases, and it was decided that the case brought against the nine respondents was purely for the reason of their political affiliation. Accordingly the government decided, upon taking the opinion of the Public Prosecutor, to instruct withdrawal of the case. The learned Attorney General submitted that the whole process was done entirely in accordance with law and procedures laid down in the circular. He further pointed out that the decision of the government is clearly explained in the memo which was placed by the Public Prosecutor before the Court along with his application under section 494 of the Code of Criminal Procedure. He submitted that it is apparent from the memo of the Legal Department of the Ministry of Home Affairs that the committee set up under the circular dated 22nd of February 2009 was satisfied upon scrutiny of the case materials that the case was started due to political motivation and had been continuing for 22 years and was a cause of harassment for the accused persons. These reasons were incorporated in the application filed by the learned Public Prosecutor under section 494 of the Code of Criminal Procedure. The learned Attorney General submitted that, though the order discharging the respondents from the case is brief, it is apparent that the learned Judge considered the matters adverted to in the application filed by the learned Public Prosecutor, including the fact that the government had decided to withdraw the case against the respondents and that the case had been on-going for 22 years and it was still at the stage of framing of charge. In support of his submissions, the learned Attorney General cited the decision in the case of Sikandar Ali Sikdar Vs. State and others reported in 31 DLR (A.D.) 135 where it was observed that if the Magistrate is confronted with an order of the Government to show that the decision was taken at the highest level of administration he is not required to go further and sit on judgement on the decision of the Government. Their Lordships held that the decision at the Government level should not be taken lightly and there must be cogent facts and compelling reason before the Court inducing it to act otherwise. The learned Attorney General also referred to the decision in the case of Abdul Wahab Talukdar alias Mohd & ors Vs. State and another reported in 30 DLR (SC) 278 where their Lordships observed that the order of the Magistrate was without reason. But the question was whether there was material on record to sustain his order, in that the materials on record supply grounds for his according consent to withdraw.

The learned Attorney General placed before us the additional paper book dated 08.06.2014 and drew our attention to the latest developments of the case. He pointed out that three out of the four alleged eyewitnesses have been examined by the trial Court and none has implicated the accused persons. As a result the present position is that the remaining accused persons against whom the trial was proceeding, have been acquitted upon application by the learned Public Prosecutor under section 494 of the Code of Criminal Procedure. In passing the order of acquittal, the learned Judge noted that the case had been going on for 26 years and that the accused persons had been implicated in the case for political rivalry and harassment. It was also noted that six witnesses had been examined, but the allegation against the accused could not be proved and other important witnesses, including the Investigating Officer, did not appear to give evidence.

Finally, the learned Attorney General submitted that undeniably the respondents were members of a political students’ association and were falsely implicated by another political students’ association for political reasons, and hence the government righty decided to withdrow the case against the accused.

The learned Advocates appearing for the respondent Nos. 3, 4, 5-7 and 9 adopted the arguments placed before us by the learned Attorney General.

We have considered the submissions of the learned Advocate on Record appearing for the petitioner and the learned Attorney General appearing for the State, perused the impugned judgement as well as the evidence and materials on record.

It appears from the impugned judgement that although the petitioner in the criminal revision was absent at the time of hearing of the Rule, the points raised in the revisional petition were elaboratly dealt with by the High Court Division. Essentially, the matters raised before this Division have already been dealt with in extenso in the impugned judgement. The decisions of the Supreme Court and Appellate Division, which have been also cited before us, have been elaborately discussed by the High Court Division.

The learned Advocate on Record appearing on behalf of the petitioner submitted that the decision of the learned Judge of the trial Court was mechanical and accordingly should have been set aside in view of the decisions of our Supreme Court and Appellate Division cited by him.

The clear view of this Division is that in allowing the withdrawal of the case under section 494 of the Code of Criminal Procedure, the trial Court must assign reasons/grounds for such withdrawal upon consideration of materials before it; and the order of acquittal/discharge must not be mechanical. We have carefully perused the decision of the Supreme Court in the case of Bakshu Mia Vs. Govt. of Bangladesh and others reported in 30 DLR (SC) 228. Their Lordships held that in granting consent to withdraw, the Court must exercise a judicial discretion. However, their Lordships went on to observe that the Magistrate need not specify the grounds for granting consent if there is material on record to reveal the ground of withdrawal. Their Lordships specifically held that the Court giving consent to withdraw is not required to give reasons, though it is desirable to do so, but there must be sufficient ground for withdrawal and the Court must be satisfied on some materials on record about the cogency of the ground. In that particular case, the Special Public Prosecutor in his application for withdrawal conveyed the decision of the Government to withdraw the case. The Special Public Prosecutor filed the application on disclosing that fact, and on consideration of these facts and attending circumstances the Special Tribunal’s order was passed. Their Lordships observed that the material disclosed by the Special Prosecutor is the decision of the Government to withdraw. A decision at the high level of administration of the Government should prima facie be a sufficient ground for withdrawal unless of course it could be shown that the decision was mala fide done for collateral purpose.

From the facts and circumstances of the instant case, it appears to us that there was ample reason apparent in the application for withdrawal to justify the order passed by the learned Additional Sessions Judge allowing the withdrawal and discharging the respondents. It is also patent from the records that due process was followed by the government and the Public Prosecutor in arriving at the decision to withdraw the case against the respondents.

Section 494 of the Code of Criminal Procedure makes no mention of any activity on the part of the government with regard to withdrawal of any case, and in fact the function so far as withdrawal under the Code is concerned, lies entirely with the Public Prosecutor. However, it must be borne in mind that the Public Prosecutor acts on the instruction of the government and has to justify the reasons for withdrawing the case to the satisfaction of the Court concerned. In the instant case the justification for the withdrawal is apparent from the application filed in Court by the learned Public Prosecutor. Although the learned trial Judge did not elaboratly discuss the reasons for allowing the withdrawal of the case, quite clearly that materials relating to the decision to withdraw the case were placed before him and considered by him.

Moreover, we note from the additional paper book that subsequent developments indicate that the most important witnesses have already been examined in the case and they do not support the prosecution case against the respondents before us and other important witnesses are not forthcoming. We also note that the informant, who is allegedly an eye witness to the occurrence, did not specify which of the assailants assaulted the victims nor the manner in which and the weapons with which the victims were struck. Where the occurrence took place inside a room in the hall of residence and the blows were dealt in front of the very eyes of the informant, it would be expected that the details of the weapons used and the specificity of the blows dealt upon the victims would be more vividly described and the actual assailants of the deceased victim more clearly identified.

In the light of the above discussion, we are of the view that further proceedings in the case would be an exercise in futility. Where the informant did not specify the manner and identity of the assailants vis à vis the injuries inflicted and when the other eye witnesses have been tendered by the prosecution, the possibility of corroborative evidence coming forth in the trial is non-existent. After 25 years from the date of occurrence the trial was started and deposition of prosecution witnesses were recorded on 11.03.2013. According to the FIR, apart from the informant, there were three other prosecution witnesses present in the room where the occurrence took place. Those three witnesses have been produced by the prosecution as PWs 2, 3 and 4. All three were tendered and cross-examination declined by the defence. The learned Judge noted in his order dated 28.01.2014 that important witnesses were not coming forward in spite of witness warrants having been issued. He then proceeded to acquit the remaining accused upon an application filed by the Public Prosecutor under section 494 of the Code of Criminal Procedure for withdrawal of the case against the accused.

When eye witnesses do not support the prosecution case, it would be impractical and unwise to look to circumstantial evidence to secure conviction of the accused.
        
          The High Court Division having most elaborately discussed all the relevant points, discharged the Rule. We find no illegality or infirmity in the impugned judgement and order. We find no reason to interfere with the impugned judgement and accordingly this criminal petition for leave to appeal is dismissed.
 
Ed.

Reference: 4 LNJ AD (2015) 30