Sarwar Kamal Vs. The State, 1 LNJ (2012) 516

Case No: Criminal Revision No. 801 of 1997

Judge: M. Enayetur Rahim,

Court: High Court Division,,

Advocate: Mr. M.H. Sarder,Mr. Md. Tamizuddin,,

Citation: 1 LNJ (2012) 516

Case Year: 2012

Appellant: Sarwar Kamal

Respondent: The State

Subject: Commutation/Reduction of Sentence,

Delivery Date: 2012-04-25

HIGH COURT DIVISION
(Criminal Revisional Jurisdiction)

 
M. Enayetur Rahim, J. 
And
S. M. Zakir Hossian, J.

Judgment
25.04.2012
  Sarwar Kamal
...Petitioner
Vs.
The State
...Opposite Parties
 
Constitution of Bangladesh, 1972
Article 49
Code of Criminal Procedure (V of 1898)
Section 401(1)
It is contended on behalf of the petitioner that the Court may only enquire whether fraud has been committed in procuring the pardon or remission of sentence but in other case the Court has got no power to interfere or examine or touch the order passed by the President under Article 49 of the Constitution. Since the government failed to produce the relevant file and in the affidavit the State did not state any fact with regard to the same it is not possible for the Court to determine how and on which date and what manner the file was initiated by the Government, and whether the relevant file was at all placed before the President; even if, the file was placed before the President then what materials were posted for his consideration to give pardon and remit the sentence of the petitioner. Because of non production of the said file the Government have deprived this Court to answer properly all those questions. In view of the cited proposition of law, though those are not binding on us; but it has got persuasive value, the contention of the learned advocate of the petitioner that this Court has no power to examine or touch the order passed by the our President exercising the power under Article 49 of the Constitution cannot be accepted. The Court cannot fold its hand in despair and declare ‘judicial hands off’. So long as the question arises whether an authority under the Constitution has acted with the limit of its power or exceeded it or the power has been exercised without application of mind and mechanically or the order in question is a malafide one or the order has been passed on some extraneous consideration or how far the order is fair and reasonable it can certainly be examined and decided by this Court. Government have got no authority and jurisdiction to exercise the power under Article 49 of the Constitution but it can exercise power under Section 401(1) of the Code of Criminal Procedure to suspend or remit sentences of a convict in suitable cases. Government in exercising power under Article 49 of the Constitution exceeded its jurisdiction. ... (12, 14, 25 and 26)
 
Constitution of Bangladesh, 1972
Article 49
Code of Criminal Procedure (V of 1898)
Section 401 (1), 498 and 561A
From the order dated 12.04.1993 it is evident that in the said order nothing has been mentioned with regard to the Criminal appeal. In view of the above one feature is very clear that though the petitioner was granted bail on 28.08.1991 in the said appeal till disposal of the same but after disposal of the Criminal Appeal on 03.09.1992 his bail ipso facto stood cancelled and the High Court Division without allowing him any time, directed to surrender to the trial Court. In view of the above, the petitioner ought to have surrender-red to the trial Court without making any further delay but he did not surrender and as such he became a fugitive and the order of pardon was made on 12.04.1993 when he was fugitive. The petitioner without surrendering to Court concerned had pursued for remitting his sentence before the President and the Government and ultimately managed to obtain the said order. After disposal of the criminal appeal either the petitioner or his wife should have informed the authority concerned about the judgment and the direction of the High Court Division as the matter of pardon was under process. It is also an admitted fact that when the petitioner moved the application under Sections 561A read with 498 section of the Code of Criminal Procedure he was fugitive from justice and as such this Court is unable to give any relief to a fugitive to quashing or setting aside the orders dated 30.06.1997 and 31.08.1997 respectively passed by the learned Assistant Sessions Judge, Cox’s Bazar. It is well settled that all public power including constitutional power shall never be exercisable arbitrarily or malafide and ordinarily, guideline for fair and equal execution are guarantors of the valid play of power and when the mode of power of exercising a valid power is improper or unreasonable, there is an abuse of power. On perusal of the judgments of the trial Court and the appellate Court hardly, there is any scope to say that the trial was held against the petitioner to victimize him with political ill motive.

When the petitioner moved the application before this Court in its revisional jurisdiction he was a fugitive. It is true that the petitioner in the cause title of the application mentioned section 498 with section 561A of the Code of Criminal Procedure. Mentioning the section 498 of the Code of Criminal Procedure by itself did not change his status of fugitive. Section 498 of the Code of Criminal Procedure is not at all applicable in the facts and circumstances of the present case; rather it was an attempt of the petitioner to mislead the Court. The petitioner is directed to surrender before the court below within 6(six) weeks from the date of receipt of the judgment and order of this Court.  … (30, 31, 39, 40, 47, 58, and 62)
 
Maru Ram vs. Union of India, AIR 1980 (SC), 2147, Kehar Singh -Vs- Union of India AIR 1989(SC), 653 , Swaran Singh–Vs- State of U.P. and others (1998) SCC,75 , Shatapal and another –Vs- The State of Hariana, AIR 2000(SC), -1702, Chand –Vs- Crown, PLD 1956 (FC), 43, Gul Hassan –Vs- The State, 21 DLR (SC), 109, Anti-Corruption Commission –Vs- Mahmud Hossain and others, reported in 61 DLR (AD) page-17, Anti-Corruption Commission –Vs- ATM Nazimullah Chowdhury and others, reported in 62 DLR (AD), page-25, Anti-Corruption Commission –Vs- Dr. HBM Iqbal Alamgir and others reported in 15 BLC(AD) page-45 ref.
 
Mr. Md. Tamizuddin, Advocate with,
Mr. S.M. Zafar Sadeque, Advocate and
Mr. Mohammad Ali, Advocate
----For the Petitioner

Mr. M.H. Sarder, DAG with,
Mr. Gazi Md. Mamunur Rashid, AAG and
Mr. Md. Asaduzzaman, AAG
---- For the State

Criminal Revision No. 801 of 1997
 
JUDGMENT
M. Enayetur Rahim, J:

At the instance of the petitioner on an application under Section 561A read with section 498 of the Code of Criminal Procedure the instant Rule was issued on the following terms;

“Let a Rule be issued calling upon the opposite party to show cause as to why the First Court of Assistant Sessions Judge, Cox’s Bazar shall not be directed to give effect to the order of remission of sentence of the petitioner in ST No.25 of 1987 as passed by the President being Memo No.143-P-45/92(Kara-2) dated 12.04.1993 as communi-cated to the petitioner by Memo No.3-16/92 dated 08.06.1993 of the opposite-party and why the warrant of arrest and warrant of commitment as issued on 30.06.1997 against the petitioner shall not be recalled by setting aside the orders dated 30.06.1997 and 31.08.1997 passed in ST No.25 of 1987 and/ or  to as such other or further order or orders as to this Court may seem fit and proper.”

In the application under section 561A of the Code of Criminal Procedure the petitioner stated that the petitioner along with others (in total 15 persons were put on trial before the 1st Court of Assistant Sessions Judge Cox’s Bazar, (that was performing the function of Additional Sessions Judge at the relevant time) in Sessions Trial No.25 of 1987 arising out of Tekhnaf Police Station Case No.8(7)/81.

On conclusion of the trial the petitioner along with two others were found guilty under Sections 304/34 of the Penal Code and sentenced to suffer rigorous imprisonment for 10(ten) years with a fine of Tk.10,000/-(ten thousand), in default, to suffer rigorous imprisonment for further period of 2(two) years.

Being aggrieved by the said judgment and order of conviction and sentence the petitioner along with two others preferred Criminal Appeal No.611 of 1989 before the High Court Division. While the said appeal was pending the petitioner was enlarged on bail by an order dated 28.08.1991. Eventually, a Division Bench of the High Court Division after hearing the appeal by its judgment and order dated 22nd and 23rd September,1992 dismissed the same and affirmed the conviction under Sections 304/34 of the Penal Code; but modified the sentence from 10(ten) years to 8(eight) years.

The President of Bangladesh by order being No.143-P-45/92(Kara-2) dated 12.04.1993 was pleased to remit the sentence of the petitioner along with two others as passed by the 1st Court of Assistant Sessions Judge, Cox’s Bazar in Sessions Trial No.25 of 1987 on 08.06.1989 in exercising the power under Article 49 of the Constitution and section 401 of the Code of Criminal Procedure. The said order was communicated, among others, to the Deputy Commissioner Cox’s Bazar who then communicated the same to the Solicitor, Ministry of law, Justice and Parliamentary Affairs by his Memo No.3-16/92-435/1(3)/J:M: dated 08.06.1993; pursuant to the said order the other two convict who were in jail were released on receipt of the said order of the President. However, neither the Ministry of Law, Justice and Parliamentary Affairs nor the Deputy Commissioner, Cox’s Bazar ever communi-cated the said order of remission of sentence of the petitioner to the trial Court. Due to non-communication of the aforesaid order of remission of sentence of the petitioner by the President the learned Assistant Sessions Judge by its order dated 30.06.1997 had issued warrant of arrest and conviction warrant against the petitioner holding that he (petitioner) did not surrender after the disposal of the appeal to serve out the remaining sentence as held by the High Court Division. On coming to know about the said issuance of the warrant of arrest and warrant of commitment the petitioner on 18.08.1997 filed an application in the Court of Assistant Sessions Judge through his engaged Advocate for recalling the warrant of arrest and warrant of commitment in view of the order of remission of the sentence passed by the President submitting a copy of the same. The learned Assistant Sessions Judge, after hearing the said application and the respective parties by the order dated 31.08.1997 rejected the application holding that the Court rightly and lawfully issued the warrant of arrest as well as the conviction warrant as the petitioner did not surrender before the trial court complying the direction of the High Court Division and after issuance of the warrant of arrest the petitioner became fugitive from justice and after his surrender there might be a scope to give effect of the order of the Ministry of Home affairs as claimed by the petitioner.

Being aggrieved by the said orders and to give effect the order of remission of sentence the petitioner obtained the present Rule.

Mr. Md. Tamizuddin, the learned Advocate appearing on  behalf of the petitioner with Mr. S.M. Zafar Sadeque and Mr. Mohammad Ali, the learned Advocates, submits that since the President remitted the sentence of the accused petitioner in exercise the power as conferred in Article 49 of the Constitution of the People’s Republic of Bangladesh the learned Assistant Sessions Judge is liable under the law to give effect to the order of the President and in not doing so he committed serious illegality and exceeded its jurisdiction. Mr. Tamijuddin further submits that there is no legal justification for the petitioner to surrender before the Court in order to give effect the order of remission of sentence as observed by the learned Assistant Sessions Judge as he is not required to do so in view of the President’s order and as such the impugned orders are liable to be quashed and this Court in exercising power under Section 561A of the Code of Criminal Procedure may interfere with the impugned orders and to give effect to the order of the President dated 12.04.1993 remitting the sentence of the petitioner.

Mr. M. H. Sarder the learned Deputy Attorney General appearing with Mr. Gazi Md. Mamunur Rashid and Mr. Md. Asaduzz-aman, the learned Assistant Attorneys General, submits that the memo dated 12.04.1993 by which the sentence of the petitioner has been remitted was issued by the Ministry of Home Affairs and it was the decision of the President as well as the Government.

It is to be noted here that when the matter was taken up for hearing, on perusal of the Photostat copy of the order dated 12.04.1993, annexed with the application, some doubt was created in our mind about the same and to remove our said doubt we directed the Deputy Attorney General and the Assistant Attorney General present in the Court to produce the relevant file with regard to the remission given to the petitioner by the President, in exercising Power under Article 49 of the Constitution as well as under Section 401(1) of the Code of Criminal Procedure. Eventually, the learned Deputy Attorney General frankly expressed their inability in presenting the relevant file as the concerned Ministry failed to supply the file to the office of the Attorney General. In such facts and circumstances we directed the Secretary, Ministry of Home Affairs to produce the file and at one stage we had compelled to issue Suo-Motu Rule for contempt against the Secretary, Ministry of Home affairs. In that event, the learned Deputy Attorney General by filing an affidavit informed the Court that the relevant file had been misplaced. The concerned officers of the Ministry have been trying to trace out the said file. However, a photostat copy of the order of remission to the petitioner attested by the Assistant Inspector General of Prison and  authenticated by the Deputy Secretary Ministry of Home Affairs has been annexed with the affidavit.

The order of remission of the sentence of the petitioner dated 12.04.1993, annexure-A, to the application under Section 561A of the Code of Criminal Procedure runs as follows;    
 
আদেশ
   যেহেতু সাজাপ্রাপ্ত আসামী যথাক্রমে (১) সরোয়ার কামাল (২) মীর কাশেম ও (৩) দরবেশ আলী সর্ব সাং- নাইক্যংখালী, টেকনাফ থানা মামলা নং ৮(৭)৮১ ধারা ৩০৪/৩৪/১০৯/৩২৩/৩২৪ বিপিসি স্পেশাল ট্রাইবুনাল মামলা নং ২৫/৮৭ ধারা ৩০৪/৩৪ বিপিসিতে বিজ্ঞ বিচারাদালত সরোয়ার কামাল, মীর কাশেম ও দরবেশ আলীকে দোষী সাব্যস্ত করিয়া ৮-৬-৮৯ইং তারিখে প্রত্যেককে ১০ (দশ) বছর করিয়া কারাদন্ড এবং ১০,০০০/-(দশ হাজার) টাকা জরিমানা অনাদায়ে দুই বছরের কারাদন্ডে দন্ডিত করেন;
২। যেহেতু সরকার উল্লেখিত আসামী যথাক্ররমে সারোয়ার কামাল, মীর কাশেম ও দরবেশ আলীর সাজা মওকুফের সিদ্ধান্ত গ্রহন করিয়াছে;
৩। এখন যেহেতু বাংলাদেশ সংবিধানের ৪৯ নং অনুচ্ছেদ এবং ফৌজদারী কার্যবিধির ৪০১(১) ধারা ক্ষমতাবলে সরকার উল্লেখিত মামলার আসামী সারোয়ার কামাল, মীর কাশেম ও দরবেশ আলীর সাজা মওকুফ করিয়াছেন।
৪। এই আদেশ অনতিবিলম্বে কর্য্যকারী হইবে।
রাষ্ট্রপতির আদেশক্রমে
(দিলরুবা)
সিনিয়র সহকারী সচিব
 
নং ১৪৩/১(৬)/পি-৪৫/৯২ (কারা-২)   তারিখঃ 
অনুলিপি অবগতি ও প্রয়োজনীয় ব্যবস্থা গ্রহণের জন্য প্রেরন করা হইলঃ-
  1. সচিব, রাষ্ট্রপতির সচিবালয়, বংগভবন, ঢাকা
  2. সচিব, প্রধান মন্ত্রীর কার্য্যলয়, পুরাতন সংসদ ভবন, তেজগাঁও, ঢাকা
  3. মহা-পুলিশ পরিদর্শক, পুলিশ সদর দপ্তর, ঢাকা
  4. মহা- কারা পরিদর্শক, কারা অধিদপ্তর, ঢাকা
  5. জেলা প্রশাসক, কক্মবাজার এই প্রসংগে তাঁহার স্মারক নং ৩-১৬/৯৯-৯০৯৫/জেএম তারিখ ১৫-১২-৯১ইং এর বরাতে
  6. উপ-মহাকারা পরিদর্শক, চট্রগ্রাম বিভাগ, কেন্দ্রীয়া কারাগার, কুমিল্লা
(দিলরুবা)
সিনিয়র সহকারী সচিব
 
It appears from the above order that the case number has been mentioned as Special Tribunal Case No.25 of 1987. But fact remains that the petitioner was convicted in Special Trial Case No.25 of 1987. In the above order of remission of sentence the case number has not been mentioned correctly, which clearly shows non application of mind of the authority concerned. Further in the said memo it has been written as under:

---------------------------------------------------
২। যেহেতু সরকার উল্লেখিত আসামী যথাক্রমে সারোয়ার কামাল, মীর কাশেম ও দরবেশ আলীর সাজা মওকুফের সিদ্ধান্ত গ্রহন করিয়াছেন;
৩। এখন যেহেতু বাংলাদেশ সংবিধানের ৪৯ নং অনুচ্ছেদ এবং ফৌজদারী কার্যবিধির ৪০১(১) ধারা ক্ষমতাবলে সরকার উল্লেখিত মামলার আসামী ১। সরোয়ার কামাল, ২। মীর কাশেম ও দরবেশ আলীর সাজা মওকুফ করিয়াছেন;
(the under line has given by us)

The above language of the order also has raised a pertinent question in our mind how the Government had exercised the power under Article 49 of the Constitution, the power which must be exercised by the President as per the Rules of Business. Since the Government failed to produce the relevant file and in the affidavit the State (opposite party) did not state any fact with regard to the same it is not possible for us to determine how and on which date and what manner the file was initiated by the Government, and whether the relevant file was at all placed before the President; even if, the file was placed before the President then what materials were posted for his consideration to give pardon and remit the sentence of the petitioner. Because of non production of the said file the Government have deprived us to answer properly all those questions. This dark part of the process of remission of sentence is unlikely to see the light. But we are of the view that Government has got no authority and jurisdiction to exercise the power under Article 49 of the Constitution. Government can exercise power under Section 401(1) of the Code of Criminal Procedure to suspend or remit sentences of a convict. In the present Case the Government in exercising power under Article 49 of the Constitution, as it evident from the order dated 12.04.1993, exceeded its jurisdiction.

Similar question has been settled in the case of Maru Ram Vs. Union of India, reported in AIR 1980 (SC), page 2147. In the said Case it has been held;

“It is apparent that superficially viewed, the two powers, one constitu-teonal and the other statutory, are co-extensive. But two things may be similar but not the same. That is precisely the difference. We cannot agree that the power which is the creature of the Code can be equated with a high prerogative vested by the Constitution in the highest function-aries of the Union and the State. The source is different, the sub-stance is different, the strength is different, although the stream may be flowing along the same bed.”

Mr. Tamizuddin, the learned Advocate for the petitioner has tried to convince us that the Court may only inquire whether fraud has been committed in procuring the pardon or remission of sentence but in other case the Court has got no power to interfere or examine or touch the order passed by the President under Article 49 of the Constitution.

So far our knowledge goes neither the Appellate Division nor the High Court Division of our Supreme Court has decided the issue whether the court particularly the High Court Division in its appropriate jurisdiction has any power or authority to examine the exercise of power under Article 49 of the constitution by the President. But the Supreme Court of India in several cases has decided the power and jurisdiction of the Court in the above issue.

It is pertinent to mention here that Article 72 and Article 161 of the Constitution of India are similar to Article 49 of our Constitution. Article 72 and 161 of the Constitution of India have conferred power upon the President of India and the Governor of the States respectively to give pardon or remit sentence of a convict.

In the Case of Maru Ram –Vs- Union of Indian, reported in AIR(SC)1980, page-2147, it has also been held that;

“Considerations for exercise of power under Articles 72/ 161 may be myriad and their occasions protean and are left to the appropriate Government, but no consideration nor occasion can be wholly irrelevant, irrational, discriminatory or malafide. Only in these rare cases will Court examine the exercise.”

In the case of Kehar Singh -Vs- Union of India reported in AIR 1989(SC), page-653, it has been held that;

“Upon the consideration to which we had adverted, it appears to us clear that the question as to the area of President’s power under Art. 72 falls squarely within the judicial domain and can be examined by the Court.”

In the case of Swaran Singh–Vs- State of U.P. and others, reported in (1998) SCC, page-75, it has been held that;

“In view of the said aforesaid settled legal proposition, we can not accept the rigid contention of the learned counsel of the third respondent that this Court has no power to touch the order passed by the Governor under Article 161 of the Constitution. If such power was exercised arbitrary, malafide or in absolute disregard of the finer canons of the constitutionalism, the by product order can not get the approval of law and in such cases, the judicial hand must be stretched to it.”

In the above case Shri Doodh Nath, an MLA of the Uttar Pradesh Assembly, was convicted of the offence of murder and sentenced to imprisonment for life. But within a period of less than two years, he succeeded to come out from prison as the Governor of Uttar Pradesh granted remission of the remaining long period of his life sentence. That order of the Governor was challenged before the High Court of Allahabad by the son of the deceased, Swaran Singh. A Division Bench of High Court dismissed the petition on the premise that a decision of the Governor under Article 161 of the Constitution of India is not justiciable. Against the said order of the High Court, Swaran Shing moved before the Supreme Court. The Supreme Court of India ultimately quashed the order of remission of sentence of convict Shri Doodh Nath, an MLA of Uttar Pradesh, on the ground that Governor was not posted with material facts and thereby, he was apparently deprived of the opportunity to exercise the powers in a fair and just manner. And the Supreme Court of India held that; “the order now impugned fringes on arbitrariness.”
          And the Court also quashed the said order of remission of sentence. 

In the case of Shatapal and another –Vs- The State of Hariana, reported in AIR 2000(SC), page-1702, similar view has been reiterated. In the said case also the order granting pardon was set aside on the ground that Governor had not applied his mind to the material on record and has mechanically passed the order just to allow the prisoner to overcome the conviction and sentence passed by the Court.

In the above case the order of the Governor of State of Haryana granting pardon remitting the unexpired portion of the sentence on prisoner Shri Siriyans Kumar Jain, who belonged to ‘Bharotio Janata party’, in exercise of power conferred by Article 161 of the Constitution of India was challenged by one of family members of deceased Krishan Kumar who was murdered during a local Government election held in the year 1987. The trial court convicted Siriyans Kumar Jain and four others under Section 302 read with 149/120B of Indian Penal Code and sentenced each of them for imprisonment for life. On appeal the High court of Panjab and Haryana maintained the conviction of 2(two) persons but acquitted Siriyans Kumar Jain and two others from the charges brought against them. Against the said order of acquittal the State of Haryana preferred appeal before the Supreme Court of India. Ultimately, the Supreme Court of India set aside the order of the acquittal of accused Siriyans Kumar Jain and another and they were directed by the Supreme Court to surrender to custody in order to serve out the remaining part of their sentence. Convict Siriyans Kumar Jain instead of surrendering to serve the sentence, as directed by the Court, filed an application before the Governor invoking the provision of Article 161 of the Constitution of India. The concerned authority after taking opinion of the Legal Remembrance placed the file before the Chief Minister, who agreed with the opinion of the legal Remembrance that this is fit Case where discretion given under Article 161 of the Constitution be exercised and relief prayed for be granted. The Governor finally granted pardon on the basis of the advice of the Chief Minister.

In deciding the merit of the above appeal the Supreme Court of India categorically held that;

“There cannot be any dispute with the proposition of law that the power of granting pardon under Article 161 is very wide and do not contain any limitation as to the time on which and the occasion on which and the circumstances in which the said powers could be exercised. But the said power being a constitutional power conferred upon the Governor by the Constitution is amenable to judicial review on certain limited grounds. The Court, therefore, would be justified in interfering with an order passed by the Governor in exercise of power under Article 161 of the Constitution if the Governor is found to have exercised the power himself without being advised by the Government or if the Governor tran-sgresses the jurisdiction in exercising the same or it is established that the Governor has passed the order without application of mind or the order in question is a malafide one or the Governor has passed the order on some extraneous consideration.”

In the above mentioned Case the Supreme Court of India observed that certain vital facts concerning the prisoner were not placed before the Governor particularly the fact that the Supreme Court of India by its Judgment and order dated 10.12.1998 set aside the order of acquittal directing Seriyans Kumar Jain to surrender to custody in order to serve out the remaining part of his sentence and he did not comply with the said Court’s order and on 25.10.1999 when the order was passed he was not confined in jail and he only surrendered before the Court of Sessions, Hissar on 02.02.1999 and also was released on the very same day in view of the Governor order dated 25.01.1999. In the said Case the ultimate conclusion of the Court is as under:

“In the aforesaid premises, we have no hesitation to come to the conclu-sion that the order in question has been vitiated and the Governor has not been advised properly with all the materials and, therefore, we have no other option than to quash the said order dated 05.01.1999.” 

In view of the above proposition of law of this Sub continent, though those are not binding on us; but it has got persuasive value, we are unable to accept the submission of the learned advocate of the petitioner that this Court has no power to examine or touch the order passed by the our President exercising the power under Article 49 of the Constitution.

Thus, we are of the view that the Court can not fold its hand in despair and declare ‘judicial hands off’. So long as the question arises whether an authority under the Constitution has acted with the limit of its power or exceeded it or the power has been exercised without application of mind and mechanically or the order in question is a malafide one or the order has been passed on some extraneous consideration or how far the order is fair and reasonable it can certainly be examined and decided by the Court. The Court can not be debarred to examine the decision making process and the correctness of the decision itself.  
Bearing in mind the above proposition of law, let us now decide the fate of the present Rule.

At the outset, it is necessary to mention that we are conscious about the jurisdiction of this Bench that this Bench has no power to deal with the constitutional matter. But to decide the issue involved in the Rule particularly, the terms of the Rule, where the petitioner has sought direction to give effect the order of pardon remitting his sentence, we can not fold our hands off and shut our eyes from examining the order dated 12.04.1993 of the Ministry of Home Affair’s to remit the sentence of the petitioner.

Since the Government failed to produce the relevant file we called for the record of Criminal Appeal No.611 of 1989 from our record room. It appears from the said record that the judgment and order of the High Court Division dated 22nd and 23rd September, 1992 along with the lower Court was sent to the Court below on 19.12.1992. At the time of disposal of the appeal the appellant was directed to surrender before the trial Court to serve out his remaining sentence.

Mr. Tamizuddin, the learned Advocate of the petitioner submits that while the petitioner was inside the jail before granting bail by the High Court Division, the wife of the petitioner filed an application to the President for pardon and remission of the sentence of the petitioner and he was on bail when the order of remission of sentence was passed. In absence of the original file it is very difficult to determine when the application of the petitioner’s wife was filed before the competent authority and was placed to the concerned Ministry and before the President; what materials were placed or posted before the President or the Government in support of the prayer of pardon of the petitioner; whether any information as to the dismissal of the Criminal Appeal No.611 of 1989 and maintaining the conviction by the High Court Division with the copy of the judgment and order were at all placed before the President or the Government. But from the record before us it manifests that though at the time of disposal of the appeal the High Court Division directed the petitioner to surrender to the trial Court, the petitioner without complying the said order of the High Court Division had pursued for his pardon. We have already noticed that on 19.12.1992 the judgment and order along with lower Court record was sent to the court below and the order of pardon was passed on 12.04.1993. It is clear that in between the said period the petitioner was an absconder and fugitive from law and justice.  In the application for pardon addressed to the President, as evident from supplementary affidavit filed by the petitioner, a date has been mentioned as 13.06.1991 with regard to the preparation of the application; but there is no proof of it that on that particular date the application for pardon was filed by the wife of the petitioner to the competent authority in order to place it before the President. On perusal of the said application it appears to us that in the said application not a single word has been mentioned or stated about the pendency of Criminal Appeal No.611 of 1989 before the High Court Division. Even in the application dated 18.08.1997 filed before the Assistant Sessions Judge Cox’s Bazar by which the petitioner prayed for recalling the warrant of arrest also did not mention about the judgment and order of the High Court Division passed in Criminal Appeal No.611 of 1989 and as well as the direction given to him to surrender to serve out the remaining Sentence. From the order dated 12.04.1993 it is also evident that in the said order nothing has been mentioned with regard to the Criminal appeal. In view of the above one feature is very clear that though the petitioner was granted bail on 28.08.1991 in the said appeal till disposal of the same but after disposal of the Criminal Appeal on 03.09.1992 his bail ipso facto stood cancelled and the High Court Division without allowing him any time, directed to surrender to the trial Court. In view of the above, the petitioner ought to have surrendered to the trial Court without making any further delay but he did not surrender and as such he became a fugitive and the order of pardon was made on 12.04.1993 when he was fugitive. The petitioner without surrendering to Court concerned had pursued for remitting his sentence before the President and the Government and ultimately managed to obtain the said order.

Even if, we accept the statement of the petitioner as true that while he was inside the jail his wife made the application before the authority concerned; in that situation after disposal of the criminal appeal either the petitioner or his wife should have informed the authority concerned about the judgment and the direction of the High Court Division as the matter of pardon was under process.

In view of the above facts and circumstances it is a pertinent question when a person is fugitive from law and justice in that situation whether the President or the Government can give pardon or remit the sentence of a fugitive in exercising extraordinary power under Article 49 of the Constitution or under Section 401(1) of the Code of Criminal Procedure, as the case may be.

To decide the said issue it is relevant to discuss the proposition of law enunciated by our Appellate Division with regard to fugitive.

It is the consistent view of our Appellate Division that a man who seeks justice from the Court of law must come before the Court to agitate his grievance and must surrender first to the process of justice, otherwise he remains to be fugitive from justice and could not seek aid or assistance of the process of justice in order to claim right of audience against the process of the Court issued against him. In the cases of Chand –Vs- Crown, reported in PLD 1956 (FC), page-43, Gul Hassan –Vs- The State, reported in 21 DLR (SC), page-109, Anti-Corruption Commission –Vs- Mahmud Hossain and others, reported in 61 DLR (AD) page-17, Anti-Corruption Commission –Vs- ATM Nazimullah Chowdhury and others, reported in 62 DLR (AD), page-25, Anti-Corruption Commission –Vs- Dr. HBM Iqbal Alamgir and others reported in 15 BLC(AD) page-45, our Appellate Division has enunciated the above proposition of law. 

In the case of Anti-Corruption Commission –Vs- Dr. HBM Iqbal Alamgir and others, reported in 15 BLC (AD), page-44 it has been held that;

“It is well settled that when a person seeks remedy from a Court of law either in writ jurisdiction or criminal appellate, revisional or miscellaneous jurisdiction under Section 561A of the Code of Criminal Procedure he ought to submit to the due process of justice. Let it be made clear to him, if it is not already known that Court would not act in aid of an accused person who is a fugitive from law and justice”.

In the above case it has also been held that;

“Besides, the learned Advocates who move applications for the fugitives shall have to face the consequence of committing contempt of Court.”

The learned Assistant Sessions Judge by its order dated 30.06.1997 issued warrant of arrest as well as the conviction warrant against the petitioner when the Assistant Public Prosecution brought notice of the Court that in compliance of the order of the High Court Division passed in Criminal Appeal No. 611 of 1989 the petitioner did not surrender before the Court concerned to serve out his remaining sentence.

On coming to know about the said order the petitioner though his Advocate on 27.08.1997 filed an application to recall the above order dated 30.06.1997 and the Court refused to interfere with the said order of arrest and conviction warrant on the ground that the petitioner being a fugitive can not get justice from the Court unless he surrenders first. The above finding of the learned Assistant Sessions Judge is very consonant with the settled proposition of law that a fugitive from justice is not entitled to obtain a judicial order defying the process of the Court. Even the petitioner without surrendering to the process of Court moved the application under Section 561A read with Section 498 of the Code of Criminal Procedure before this Court and obtained the Rule and bail. We could not understand how the application of a fugitive was entertained; even before swearing the affidavit no permission was taken from the learned Judges of the concerned Bench. In such situation we can make only comment that the petitioner no doubt a fortunate person, who not only managed to obtain the order of pardon, remitting his sentence, but also succeeded to obtain Rule and bail without surrender, defying the process of Court.

Having considered the above settled proposition of law with regard to a fugitive, we are of the view that in passing the order dated 27.08.1997 refusing to recall the order dated 18.08.1997 the learned Assistant Sessions Judge did not commit any error or illegality. It is also an admitted fact that when the petitioner moved the application under Sections 561A read with 498 of the Code of Criminal Procedure he was fugitive from justice and as such we are unable to give any relief to a fugitive to quashing or setting aside the orders dated 30.06.1997 and 31.08.1997 respectively passed by the learned Assistant sessions Judge, Cox’s Bazar.

It is well settled that the Court can not direct the President how he is to exercise the power under Article 49 of the Constitution.  Similarly, the Court also can not direct the Government how they exercise the power under Section 401 of the Code of Criminal Procedure. But the action of the President or the Government, as the case may be, must be based on some rational, reasonable, fair and relevant principle which is non discriminatory and it must not be guided by any extraneous or irrelevant considerations. It is well settled that all public power including constitutional power shall never be exercisable arbitrarily or malafide and ordinarily, guideline for fair and equal execution are guarantors of the valid play of power and when the mode of power of exercising a valid power is improper or unreasonable, there is an abuse of power.

On perusal of the application filed by the wife of the petitioner as it has quoted in the supplementary affidavit it appears that she prayed pardon mainly on the ground that her husband (the petitioner) and his two political well wishers namely Mir Khashim Ali and Darbesh Ali were victimized for political reasons and their political opponent implicated them in the false Case.

The last paragraph of the said application is as under;

“এমতাবস্থায় রাজনৈতিক অন্যায় ষড়যন্ত্রর অহেতুক শিকার অধীনের স্বামী সারওয়ার কামাল ও তৎদুই রাজনৈতিক ও শুভানুধ্যয় ও শুভাকাংখী জনাব মীর কাশেম ও দরবেশ আলী মেম্বারের বিরুদ্ধে আনিত মিথ্যা অভিযোগের দায় হইতে উক্ত ব্যক্তিগণকে আদালত কর্তৃক প্রদত্ত দন্ড মার্জনা পূর্বক শহীদ জিয়ার আকাংখীত আদর্শ ও উদ্দেশ্যে দেশনেত্রী বেগম খালেদা জিয়ার নেতৃত্বে বাস্তবায়নসহ দুই মরন পথযাত্রী সম্ভ্রান্ত পরিবারকে রক্ষা করার পক্ষে প্রয়োজনীয় ব্যবস্থা গ্রহনের নিমিত্ত অধীনি আপনার সহূদয় করুনা প্রার্থী।”

On perusal of the record of Criminal Appeal No.611 of 1989 it appears to us that the occurrence took place with regard to a land dispute.

It was the prosecution Case that on the date and time of occurrence while Badiur Rahman, the informant, along with his brother Lokman Hakim, Tajur Muluk (the deceased) along with other relations were cultivating their lands in plot No.735,736 and 776 measuring 2.83 acres accused Sarwar Kamal along with 20(twenty) others armed with various deadly weapons like ‘longa’, ‘dao’, ‘lathi’, ‘iron rod’ and ‘khanta’ etc. attacked them with a view of dispossessing them from the said land; eventually, at the order of the convict Sarwar Kamal Convict Mir Kashem Ali hit, with a dao, on the head of the victim Tajur Muluk and there after convict Darbesh Ali also gave some more blows on him and victim Tajur Muluk became senseless with bleeding injuries. The victim Tajur Muluk was taken to the Dulhajare Hospital for treatment where he ultimately succumed to his injuries after 3(three) days.

On careful examination of the judgment of the High Court Division as well as the trial Court it appears that the defence never put any suggestion to the prosecution witnesses that the present petitioner had been implicated in the case for political victimization by his opponent political group.

We have already observed that we have been deprived to know what materials were placed before the President or the Government for its/their consideration to give pardon to the petitioner; but, from the application of the wife of the petitioner it is evident that the petitioner was convicted for political victimization and no relevant documents were annexed or submitted with the said application.

We do not find any nexus between the statements made in the application for pardon and the prosecution story, material evidence on record and the judgment of the trial Court. On perusal of the judgments of the trial Court and the appellate Court hardly, there is any scope to say that the trial was held against the petitioner to victimize him with political ill motive.

The learned Advocate of the petitioner as well as Deputy Attorney General failed to satisfy us by showing any important piece of document what materials were placed or posted to the President or the Government for its consideration, other than an application for pardon of the wife of the petitioner.

In this connection we are of the view that when a convict seeks pardon from the President or the Government he must supply the following materials with the application for pardon; namely-
  1. the First Information Report and Police Report;
  2. the evidence;
  3. judgment of the trial Court and appellate Court, if any;
  4. information whether during trial or appeal the convict was on bail or in custody or on absconsion;
  5. how long the convict is in custody after conviction and what actual  period of sentence he has served;
  6. whether the convict  is an accused or convicted in any other Case or Cases.
In addition to the above materials the authority concerned has to collect a report from Jail authority about the conduct and behavior, when the convict was in jail.

It is the proposition that a decision must be arrived at after taking into account all relevant considerations, eschewing all irrelevant considerations can not for a moment be doubted.

It the instant Case if, the President and the Government gave pardon to the petitioner only considering the statement made in the application for pardon, filed by his wife, without taking into consideration of other relevant materials, certainly the exercise of power under Article 49 of the Constitution or section 401(1) of the Code of Criminal Procedure has vitiated the order of pardon as the said order is a mechanical order and the product of favoritism, extraneous and malafide factors.

The petitioner also failed to show us that after disposal of the Criminal Appeal he had intimated about the judgment of the appellate Court to the President or the Government as well as the order of the High Court Division directing him to surrender before the trial Court to serve out his remaining sentence.

If, the said facts and materials were placed before the President and Government the decision of the President or the Government would have been otherwise. Because, it is presumed that the President and the concerned authorities of the Government are well conversant with the law that if a fugitive from law is given pardon knowing his status then the exercise of power under Article 49 of the Constitution or section 401(1) of the Code of Criminal Procedure certainly be arbitrary, malafide, unreasonable, irrational and improper and such exercise of power is against the principle of the rule of law and an abuse of the power. If the President or the Government given such indulgence to a fugitive, ignoring and avoiding the direction of the Court and allow the fugitive to approach him/them straight and give him pardon exercising extraordinary power, a day will come when the Criminal administration of justice certainly be collapsed. In view of the principle of rule of law the Court can not approve such exercise of power, in favour of a fugitive, which is absolutely malafide, arbitrary and unreasonable. Fairness, reasonableness and bonafide are the essence of the rule of law.

Further, the decisions of the Appellate Division are institutional decision and the decision is binding as a law. When the Appellate Division categorically and consistently held that a fugitive is not entitled to seek any kind of redress as against his grievance, if any, then the pardon given to a fugitive is absolutely disregard to the said law and the Supreme Court. It is desirable that all concerned including the President and the Government should respect the law declared by the Supreme Court and the Government functionaries are obliged to act in aid of the Supreme Court in view of the provisions of Article 112 of the constitution.   

Having considered the facts and circumstances of the present Case and the proposition of law we are of the view that the order dated 12.04.1993 remitting the sentence of the petition in exercising power under Article 49 of the constitution and section 401(1) of the Code f Criminal Procedure has vitiated on the following reasons:
  1. the petitioner was a fugitive from law when the order of pardon was made;
  2. the petitioner in procuring the order of pardon concealed the material facts; particularly, the pendency of the Criminal Appeal No.611 of 1989 before this High Court Division and the  judgment of the High Court Division passed in the said appeal maintaining the order of convic-tion and directing him to surrender to the Court below to serve out the remaining sentence.
  3. the petitioner without surrender-ing to the process of the Court, as per direction of the High Court Division succeeded to procure the order of pardon;
  4. the alleged order is a mechanical one and product of party favo-uritism, extraneous and malafide factors and also not fair, reason-able and rational; which is against the sprit of the rule of law; 
  5. the conduct of the petitioner does not show that he with clean hands moved before the President and the Government;
  6. it is not clear from the order that whether the President at all exercised the power conferred upon him under Article 49 of the Constitution, as in the said order it has been mentioned that the Government has taken the decision to remit the sentence of the petitioner and for this ambiguity and anomaly it reflects non application of mind of the concerned authorities of the Government.
Thus, we are not inclined to direct the First Court of Assistant Sessions Judge, Cox’s Bazar to give effect the order of Pardon dated 12.04.1993 remitting the sentence of the petitioner as per the terms of the first portion of the Rule.

On the other hand the trial court rightly issued the warrant of arrest as well as the conviction warrant on 30.06.1997 when the Judgment and order of the High Court Division passed in Criminal Appeal No. 611 of 1989 was brought to the notice of it and subsequently on 31.08.1997 rightly refused to interfere with his earlier order on the ground that the petitioner was a fugitive. In passing the order on 30.06.1997, the learned Assistant Sessions Judge before issuing the warrant of arrest held that; “অতএব, তাহার অনুকুলে প্রদত্ত জামিন বাতিল করা হইলz” This finding of the learned Assistant Sessions Judge is irrelevant and uncalled for. Because, after the disposal of the appeal in the High Court Division, the bail given to him ipso facto stood cancelled. When there was no bail, question of cancellation of bail does not arise at all. Apart from the above observation, the orders dated 30.06.1997 and 31.08.1997 respectively are based on sound principle of law and thus, we are not inclined to interfere or to quash the said orders. The learned Assistant Sessions Judge passed the said orders within its jurisdiction. Moreso, when the petitioner moved the application before this Court in its revisional jurisdiction he was a fugitive. It is true that the petitioner in the cause title of the application mentioned section 498 with section 561A of the Code of Criminal Procedure. Mentioning the section 498 of the Code of Criminal Procedure by itself did not change his status of fugitive. Section 498 of the Code of Criminal Procedure is not at all applicable in the facts and circumstances of the present case; rather it was an attempt of the petitioner to mislead the Court. Moreso, the petitioner was not advised properly. 

Further, in exercising power under Section 561A of the Code of Criminal Procedure we have no scope to direct the authority concerned to give effect of the alleged order of pardon, since it is an executive order, not an order passed in a pending proceeding. 

In view of the above, we are inclined to discharge the Rule. 

Accordingly, the Rule is discharged.

The petitioner is directed to surrender before the court below within 6(six) weeks from the date of receipt of the judgment and order of this Court.

However, the petitioner is at liberty to file fresh application for pardon, complying the observations made in this judgment, if so advised, and the President or the Government may reconsider the prayer of pardon of the petitioner in the light of the relevant materials in accordance with constitution and law. This judgment will not be a bar for such reconsideration.  

It appears from the order sheet annexed by the petitioner in the supplementary affidavit, annexure-C, that the trial Court sent the record to the High Court on 03.07.1989 by its order No.35. After disposal of the appeal the record was sent to the trial Court on 19.12.1992 but it appears from the said order sheet that the order of the High Court was not brought to the notice of the concerned judge and the record was sent to the record room behind the back of the learned judge.

It is absolutely misconduct on the part of the concerned officials who did not bring notice of the judgment of the High Court Division to the concerned trial Judge.

In view of the above, we direct the learned Assistant Sessions Judge, 1st Court, Cox’s Bazar to make an inquiry why after disposal of the appeal when the lower Court record was sent to the said Court with a copy of the judgment and order of the Criminal Appeal same was not placed before the presiding Judge and he is also directed to take departmental action against the concerned person/persons who is/are liable for such misconduct.

Considering the facts and circumstances of the instant case our conscience pricks to say few words to express our anxiety.

Sub-section (1) of section 401 of the Code of Criminal Procedure has empowered the Government to suspend or remit sentence, either whole or party of the punishment to which a convict has been sentenced; on the other hand sub-section (3) of the said section has empowered the Government to cancel the suspension or remission of sentence and to take the concerned person into custody, if at large, to undergo the unexpired portion of sentence; sub-section (2) of the section makes a provision that the Government may require the Presiding Judge of the Court before or by which the conviction was had or confirmed to state is opinion as to whether the application should be granted or refused.

Having regard to the fact that to exercise the above power by the Government there is no Rule or standard guideline. Thus, we are of the view that for fair, proper and boanafide exercise of the above power Government may frame Rule and guideline or even amend the Code, as has been done in one of our neighbouring countries. Possibly, this is the high time for the Government to think over the matter to avoid controversy, criticism and misuse of power.

Let a copy of this judgment and order be sent to the trial court as well as the Secretary to the President, Secretary Ministry of Home Affairs and Secretary Ministry of Law Justice and Parliamentary Affairs for their appraisal and future guidance.

      Ed.