Saifuddin Murad Vs. The State 2017 (2) LNJ 1

Case No: Criminal Appeal No. 10074 of 2015

Judge: Md. Rais Uddin. J.

Court: High Court Division,

Advocate: Mr. Abul Kalam Mainuddin, Mr. Shaiful Bashar Bhandary,

Citation: 2017 (2) LNJ 1

Case Year: 2016

Appellant: Saifuddin Murad

Respondent: The State

Subject: Criminal Law

Delivery Date: 2017-08-14

HIGH COURT DIVISION

(CRIMINAL APPELLATE JURISDICTION)

 

Md. Rais Uddin, J.

Judgment on

08.11.2016

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Saifuddin Murad

.. Accused-Appellant

-Versus-

The State

... Respondent

Arms Act (XI of 1878)

Section 21

Bengal Arms Act Manual, 1924

Rule 74

Av‡Mœqv‡¯ªi jvB‡mÝ cÖ`vb, bevqb I e¨envi bxwZgvjv, 2016

bxwZ 29

From a combined reading of the above provisions of law, it is a clear proposition of law that the maximum amount of ammunition can be possessed during the year by the holder of a licence of Revolver and Pistol, 100 rounds bullets. The strict requirement of law is that onus lies on the prosecution to prove its case beyond all reasonable doubt. The learned Judge of the Special Tribunal failed to consider the above provisions of law that the accused-appellant is entitled to purchase 50 pieces of bullets at a time and keep in his custody maximum 100 pieces of bullets. In the instant case the prosecution has found 98 pieces of bullets in the possession of the accused-appellant which is not violation of provision of law under section 21 of the Arms Act, 1878 and as such the learned Judge of the Special Tribunal passed the impugned judgment and order of conviction is not sustainable in law.          . . . (29 and 30)

Mr. Abul Kalam Mainuddin, Advocate.

. . . For the accused-appellant.

Mr. Shafiul Bashar Bhandary, D.A.G with

Mr. Swapan Kumar Das, A.A.G.

. . . For the State.

JUDGMENT

Md. Rais Uddin, J. This appeal is directed against the judgment and order of conviction and sentence dated 18.11.2015 passed by the learned Metropolitan Special Tribunal No.6, Dhaka in Metropolitan Special Tribunal Case No. 300 of 2013 corresponding to G.R. Case No. 368 of 2013 arising out of Zatrabari Police Station Case No. 98 dated 28.04.2013  convicting the appellant under section 21of the Arms Act, 1878 and sentenced him to suffer  simple imprisonment for 1 (one) month with a fine of Tk. 100/- (one hundred) only in default to suffer simple imprisonment for 7(seven) days more.

2.            The prosecution case, in short, is that one Sub-Inspector of police, namely, Md. Aslam Ali lodged a written ejahar with Zatrabari Thana at 11.15 a.m. on 28.04.2013 alleging inter alia that the informant with the help of Sub-Inspector/21936 Md. Hafizur Rahman, Constable/8331 Monir, Constable/19508 Billal arrested accused Saifuddin Murad son of Yousuf Harun and recovered from him (1) 1(one) pistol written on the body as READ MANUAL BEFORE USE PATEMTED BERETTA USA CORP ACKK, MD (2) 04 Mazgin  written as CAL. 7.65 M.M/32 Auto MADE IN ITALY, (3) total 98 (ninety eight) round Pistol Bullets out of which 72 round .32 bore and 20 round 7.65 bore and (4) 1(one) M.T. Cartridge with spot of firing pin in back side (5) 1(one) license of Pistol with Star mark written as No. 41/19/2009 MD. SHAIFUDDIN MURAD. In course of duty period in Thana he got information through wireless that one person was lying at Second Floor of a Multistoried building of Ibrahim, at 22/2/B Golapbag under Zatrabari Police Station with bullete injury. On hearing that he went there at once and came to know that injured person were taken away towards emergency department of Dhaka Medical College and Hospital. He duly informed the incident to the higher authority and went there  at Dhaka Medical College Hospital Morgue and found dead body of Morshed Kamal, son of late Hazi Bulu Miah. At that time accused was present with the victim and on query the informant came to know that victim died by bullet injury in his abdomen through licensed pistol of the accused. That at one stage of interrogation accused informed that Pistol kept at Second Floor Multi storied building of Ibrahim, situated at 22/2/B Golapbag under Zatrabari Thana. Thereafter the said Pistol was recovered on 28.04.2013 at 9.30 a.m. from a table of the said office, and it appears from the License that only 50 bullets to be kept but the accused violating condition kept 98 round bullets with 4 Magzine in his custody. The accused failed to give satisfactory reply for keeping execess bullets and Magzine. Thereafter, a seizure list was prepared there at 10.10 a.m. on 28.04.2013 and took signature of the witnesses.  The accused violating term and condition of license illegally kept excess 48 round bullets and 4 Magzine and thus committed offence under section 21/23 of the Arms Act, 1878.

3.            After completion of investigation the police submitted the charge sheet against accused-appellant under section 21 and 23 of the Arms Act, 1878.

4.            The accused-appellant was put on trial before the Metropolitan Special Tribunal No.6, Dhaka to answer the charge against him under section 21 and 23 of the Arms Act, 1878 to which he pleaded not guilty and claimed to be tried.

5.            At the trial the prosecution has examined as many as 6(six) witnesses while the defence examined none but cross-examined all the prosecution witnesses.

6.            The defence case as it transpires from the trend of the cross-examination is that the accused-appellant was innocent and his license and bullets were in accordance with law and he was innocent.

7.            On conclusion of the trial the learned Judge of the Tribunal by the impugned judgment found the accused-appellant guilty of the offence under section 21 and 23 of the Arms Act, 1878 and sentenced him as stated above.

8.            Being aggrieved by and dissatisfied with the impugned judgment and order of conviction and sentence the accused-appellant preferred the instant appeal.

9.            Mr. Abul Kalam Mainuddin, the learned Advocate appearing for the accused-appellant has placed the memo of appeal, F.I.R., charge sheet, evidence on record and judgment of the court below and submits that the prosecution has failed to prove the charge against the accused-appellant by adducing any independent and neutral witness. He submits that the trial court failed to consider that the accused-appellant is entitled to keep 100 pieces of bullets as per provisions of section 24 of the Bangal Arms Act Manual 1924. He lastly submits that the accused-appellant did not violate any term and condition of his license and as such impugned judgment and order of conviction and sentence is not sustainable in law.

10.        Mr. Shafiul Bashar Bhandary, the learned Deputy Attorney General appearing for the State submits that the learned Judge of the trial court assessing the evidence and materials on record rightly found the accused-appellant guilty and sentenced him accordingly and therefore he prayed for dismissed the appeal.

11.        In view of the submissions made by the learned advocate for the appellant and the Deputy Attorney General for the State the point is to be decided in the appeal as to whether the learned Judge of the trial court convicted the accused-appellant in accordance with law.

12.        Now let us have a look to the nature of the evidence adduced by the prosecution.

13.        P.W.1 Md. Aslam Ali, sub-inspector of the police and informant of the case. This P.W. deposed to the effect as has been stated while narrating the case of prosecution. He proved the FIR marked as exhibit-1 and his signature therein marked as exhibit-1/1 seizure list marked as exhibit-2 and his signature therein marked as exhibit-2/1 and identified the accused in the dock.

14.        In cross-examination he stated that he lodged the FIR on 27.04.2013 and arrested the accused on the same date from Dhaka Medical College Hospital. He stated that he recovered the arms (¢limi¡l) with license and prepared seizure list. He stated that he was entitled to keep 50 bullets in his custody. He stated that he prepared seizure list on 28.04.2013 and he wrongly mentioned the date under his signature. He stated that he was investigating officer of the murder case. He denied the defence suggestion that the accused-appellant was entitled to keep bullets which was recovered form his possession and he lodged the FIR out of fÊ¢a¢qwp¡z

15.        P.W.2 Md. Hafizur Rahman, A.S.I. member of the raiding party. He stated that he was a member of the raiding party along with informant S.I. Aslam Ali.

16.        In cross-examination he stated that they recovered one Pistol, 04 Magzine, 98 pieces of bullets. He stated that the accused had license and he could not say whether the accused has violated the terms and conditions of his license. He stated that public were present at the time of preparing seizure list and he did not know their names and addresses. He denied the defence suggestion that he deposed as taught by the informant.

17.        P.W.3 Md. Firoz Alam, in his deposition stated that he did not know about the occurrence. He stated that police called him to put his signature on a paper while he went to the police station on 28.04.2013. He stated that he put a signature in a white paper and he had no knowledge about the goods which were recovered. He proved the paper where he put his signature marked as exhibit-3 and his signature marked as exhibit-3/1.

18.        In cross-examination he stated that he was a graduate and he put his signature sitting in Jatrabari Police Station.

19.        P.W.4 Constable Billal Hossain, stated that he was a member of the raiding party under S.I. Aslam Ali. He stated that there was a murder and recovered arms and who saw the accused in Dhaka Medical College Hospital he was present in the dock.

20.        In cross-examination he stated thatNa 27/7/2013 Cw OVe¡| gvgjvi  NUbv g‡b nq 28/04/2013| GKB NUbvq `ywU gvgjv nq|’’ He stated that he was not present at the time of recovery of seized goods and he did not make any statement to the investigating officer. He stated that he did not know whether the accused had license for his arms.

21.        P.W.5 Auboni Songkor Kor, officer-in-charge of Jattrabari Police Station and investigating officer of the case. During investigation he visited the place of occurrence, prepared sketch map along with index and recorded the statement of the witnesses under section 161 of the Code of Criminal Procedure. He stated that he seized one short gun license and 198 pieces of bullets from the house of the accused and prepared seizure list. He stated that being found prima-facie case submitted charge sheet under section 21 and 23 of the Arms Act. He proved the seizure list marked as exhibit-3 and his signature therein marked as exhibit-3/2, sketch map with index marked as exhibit-4 and his signature therein marked as exhibit-4/1.

22.        In cross-examination he stated that he got the charge for investigation on 28.04.2013 after lodged the FIR and accused was arrested in another case and he was shown arrested in this case. He stated that he went to the place of occurrence on 28.04.2013. He stated that A¡p¡j£l m¡C­p¾p °hd ¢Rmz l¡M¡ AÙ» J …¢mpj§q °hd ¢Rmz ®p…¢ml hÉhq¡l h¡ hÉhÙÛ¡fe¡ °hd ¢Rm e¡z a¡C A¢i­k¡Nfœ (Q¡SÑn£V) a¡ h­m¢Rz He denied the defence suggestion that the case was filed out of conspiracy and the accused did not commit any offence.  

23.        P.W.6 constable Tobibur Rahman, member of the raiding party who was tendered and the defence declined to cross examine him.

24.        On perusal of the evidence it appears that the informant along with his raiding party went to the house of the accused and recovered (1) 1(one) pistol written on the body as READ MANUAL BEFORE USE PATEMTED BERETTA USA CORP ACKK MD, (2) 04 Magzin  written as CAL. 7.65 M.M/32 Auto MADE IN ITALY, (3) total 98 (ninety eight) round Pistol Bullets out of which 72 round 32 bore and 20 round 7.65 bore and (4) 1(one) M.T. Cartridge with spot of firing pin in back side, (5) 1(one) license of Pistol with Star mark written as No. 41/19/2009 MD. SHAIFUDDIN MURAD. It appears that P.W.1 informant of the case, P.W.2, P.W.3 and P.W.4 member of the raiding party, P.W.5 investigating officer, P.W.6 also member of the raiding party but he was tendered.

25.        On perusal of the impugned judgment it appears that the accused-appellant was convicted for the offence to keep 98 pieces of bulltes stating thatAvmvgxi RãK…Z Gb.wc.we wc¯—jwUi jvB‡m›m ch©‡e¶‡b †`Lv hvq †h, Dnvi 4bs Kjv‡g jvB‡m›m MÖnxZv Z_v Avmvgx eQ‡i 50wUi †ewk ¸wj ivL‡Z AwaKvix bq g‡g© jvB‡m›m cÖ`vbKvix KZ„©c¶ jvB‡m‡›m c„ôv¼b K‡i‡Qb| Avmvgx 98 wU Z_v jvB‡m‡›mi kZ© f½ K‡i AwZwi³ 48 wU ¸wj Zvi †ndvR‡Z †i‡L‡Qb †`Lv hvq| Kv‡RB, wZwb 1878 mv‡ji A¯¿ AvB‡bi 21 aviv my®úófv‡e jsNb K‡i kvw¯—‡hvM¨ Aciva K‡i‡Qb|

26.        Now, certain provision of law of the Bangal Arms Act Manual 1924 and Av‡Mœqv‡¯¿i jvB‡m›m cÖ`vb, bevqb I e¨envi bxwZgvjv- 2016, are required to be referred for having a better view of the dispute in question:

         Rules 74: Scale of Ammunition allowed to Licensees. Particulars of the ammunition allowed should be endorsed by the licensing authority in the appropriate column of the license against each weapon. The maximum amount of ammunition which may be possessed by the holders of licences in Forms XVI, XVIII and XIX of the Indian Arms Rules, 1924, is as follows:

Description of arms for which ammunition is to be possessed.

Maximum quantity of ammunition to be possessed at one time by holders of licences in Forms XVI, XVIII and XIX

Maximum quantity of ammunition to be possessed during the year by holders of licences in Forms XVI, XVIII and XIX

1

2

3

Smooth bore muzzle-loading gun

No limit

No limit

 

Smooth-bore breech-loading gun

 

No limit

 

No limit

Rifle .22 bore

No limit

 

No limit

Rifle of other bores

50 rounds

200 rounds

Revolvers and pistols

50 rounds

100 rounds

27.        This removal of the limit does not apply to licenses in forms XVII and XX which are only for a specific quantity of ammunition of any kind as indicated in condition 2 of those licences.

28.        The District Magistrate may at his discretion allow any reasonable quantity in excess of the limit prescribed to a person who can prove that he needs more ammunition.

29t ‡Mvjvevi“` µq-weµq:

(K)         js e¨v‡ij (e›`yK/kUMvb/ivB‡dj) Ges kU© e¨v‡ij(wc¯—j/wifjevi) Av‡Mœqv‡¯¿i †¶‡Î cÖwZ ePi m‡ev©”P h_vµ‡g 100 wU ¸wj I 50 wU ¸wj µ‡qi AbygwZ †`Iqv hv‡e|

e¨vsK I Avw_©K cÖwZôvb e¨ZxZ Ab¨vb¨ cÖwZôv‡bi bv‡g Bmy¨K…Z cÖwZwU A‡¯¿i wecix‡Z evwl©K m‡ev©”P 50 wU ¸wj µq Kiv hv‡e|

29.        From a combined reading of the above provisions of law, I find a clear proposition of law that the maximum amount of ammunition can be possessed during the year by the holder of a licences of Revolver and Pistol, 100 rounds bullets.

30.        The strict requirement of law is that onus lies on the prosecution to prove its case beyond all reasonable doubt. The learned Judge of the Special Tribunal failed to consider the above provisions of law that the accused-appellant is entitled to purchase 50 pieces of bullets at a time and keep in his custody maximum 100 pieces of bullets. In the instant case the prosecution has found 98 pieces of bullets in the possession of the accused-appellant which is not violation of provision of law under section 21 of the Arms Act 1878 and as such the learned Judge of the Special Tribunal passed the impugned judgment and order of conviction is not sustainable in law.

31.        In view of the above, I find merit in the appeal.

32.        In the result, the appeal is allowed. The impugned judgment and order of conviction of sentence dated 18.11.2015 passed by the learned Metropolitan Special Tribunal No.6, Dhaka in Metropolitan Special Tribunal Case No. 300 of 2013 corresponding to G.R. Case No. 368 of 2013 arising out of Zatrabari Police Station Case No. 98 dated 28.04.2013 is hereby set aside. The accused-appellant namely Saifuddin Murad be set at liberty at once, if not wanted in connection with any other case. The sureties are discharged from their respective bail bonds.

Let the Lower Court Records along with a copy of this judgment be sent to the Court below at-once.

Ed.



Criminal Appeal No. 10074 of 2015