Case No: Criminal Appeal No. 2747 of 2004
Court: High Court Division,
Advocate: Mr. Md. Khurshid Alam Khan, Advocate. ,
Citation: 2019(2) LNJ
Case Year: 2018
Appellant: Shafiqul Islam and others
Respondent: The State
Subject: Nari-o-Shishu Nirjatan Daman Ain
Delivery Date: 2019-12-04
HIGH COURT DIVISION
(criminal appellate jurisdiction)
Nozrul Islam Chowdhury, J
Md. Ataur Rahman Khan, J.
Shafiqul Islam and others
. . .Accused-Appellants
. . .Respondent
Nari-o-Shishu Nirjatan Daman Ain, 2000 (Act VIII of 2000)
Sections 7 and 30
The appellants who are appellant Nos. 2 and 3, during pendency of the appeal before this Court, they were enlarged on bail vide order dated 02.04.2006 of course for a limited period of 6 (six) months, consequently they were released from the jail. It was of course, incumbent upon the learned Counsel for the appellants to get the said order of bail extended from time to time, this was not done by the learned Counsel, may be a fault on the part of the learned Counsel. Now the question arises as to whether such a default on the part of learned counsel, can be attributed to the appellants without any notice upon them to that effect, with a view to bring them within the mischief of the term “fugitive from law” ? more particularly when we have already noticed that they have sufficiently complied with the command of the court by remaining inside the jail while filing this appeal. Therefore, we find it profitable to quote from the judgment of the Appellate Division, as we have already referred to above and reported in 40 DLR (AD) 281. “It would be less than chartable” to attribute to the appellants that they were ‘fugitive from Law”. Under these circumstances as stated above, and the position of law discussed, we find that we can safely dispose of the appeal by the appellant Nos. 2 and 3 as well as on merit and in doing so we can proceed accordingly. In the result this appeal is dismissed in respect of appellant No. 1 while the same is allowed in respect of appellant Nos. 2 and 3. . . .(48, 49 and 50)
Siraj Mal and others Vs. The State of Himachal Pardesh, AIR 1981(SC) 361; Bhagwat Prakash Vs. The State of Allahabad, AIR 1956 (All) 22; Bharwada Bhogiubhai Hirjibhai Vs. The State of Gujrat, AIR 1983 (SC) 753; Rameshwar Vs. State of Rajasthan, (1952 3 SCR 377; AIR 1952 SC 54; Saidur Rahman alias Chan Miah and others Vs. The State, 40 DLR (AD) 281; Awal Khan and another Vs. The State, PLD 1957 (WP) (Pesh) 75 and Parasuram Patel and another Vs. State of Orissa, (1994) 4 SCC 664 ref.
Mr. Md. Khurshid Alam Khan, Advocate.
. . . For the Appellants
Ms. Sarker Tahmeena Begum with
Mr. Md. Abdul Khaleque, A.A.Gs,
. . . For the State
Nozrul Islam Chowdhury, J. This appeal brought by three convicts challenging the judgment and order of their conviction and sentence dated June 13, 2004 passed by the Nari-O-Shishu Nirjatan Daman Tribunal, Sherpur in Nari-O-Shishu Nirjatan Tribunal Case No. 115/2001, convicting appellant No. 1, Shafiqul Islam under sections 7 and 9(1) of Nari-O-Shishu Nirjatan Daman Ain, 2000 sentencing him thereunder to suffer imprisonment for life on each count and a fine of Taka 20,000/- in default to suffer R.I. for one year more with a direction to run both the sentences concurrently. While appellant Nos. 2 and 3 Sekandar Ali and Billal have been convicted under section 7 read with section 30 of the said Ain, sentencing each of them thereunder to suffer rigorous imprisonment for 14 (fourteen) years with fine of Tk. 10,000/- (ten thousand) in default to suffer rigorous imprisonment for 6(six) months more.
2. Factum matrix involved in the case, in short, is that one Sabina Yesmin @ Putul, a daughter of Abdul Jabbar aged about 13 years and a student of class VIII reading in a local school had been sleeping with her cousin sister Parvin at her father’s house in a separate room on the night following 20.5.2001. At about 12 mid night Putul went out of the house with said Parvin (younger to Patul) to attend the call of nature and while both of them had been returning back to their school and on returning back. Therefore Shafiqul was warned for such teasing which enraged him and on the night following 20.05.2001 at about 12 mid night when Putul went out of her hut with her cousin Parvain (younger to Patul) to attend the call of nature and when she was returning back to her hut along with her cousin Parvin at that stage Shafiqul with the help of 7 others forcibly kidnapped Putul and had taken her to an unknown destination. Hearing now raised by Putul and Parvin other witnesses came around the scene, some of whom had seen the miscreants lifting away Putul. Thereafter a G.D. Entry was made with Jhenaigati Police Station. But the Police failed to trace her out. The complaint also disclosed that the attempt for compromise had also failed and G.D Entry lodged by him earlier does not disclose the correct picture as narrated by him before the police.
3. Upon receipt of the petition of complaint the learned Tribunal sent the same to the Officer-in-charge of Jhenaigati police Station to proceed with the same in accordance with law upon ascertainment of the age of the victim Putul. Thereafter on the basis thereof Jhenaighati P.S. Case No. 2 dated 26.6.2001 was registered under section 7/30 of Nari-O-Shishu Nirjatan Daman Ain, 2000.
4. Police after investigation submitted charge sheet against Shafiqul Islam alone under sections 7/9(1) of the said Ain of 2000 while final report in favour of other two appellants namely appellant No. 2 and 3 in G.R. Case No. 364 of 2001.
5. Upon receipt of the said police report the learned Tribunal, however, took cognizance of the offence issuing process against all the three appellants of whom appellant Nos. 2 and 3 were eventually charged under section 7/30 of the said Ain of 2000 and appellant No. 1 was charged under sections 7/9(1) of the said Ain.
6. The charges were read over to the appellants to which they pleaded not guilty and claimed to be tried.
7. Upon framing of the charges as aforesaid, the prosecution examined 12 witnesses in support of their case while the defence adduced none.
8. The defence is a plea of innocence and further defence is that Putul being the daughter of Abdal Jabbar at whose house Shafiqul used to serve as a domestic help and she being and adult, fell in love with Shafiqul. Therefore she left her parents house on her own and got herself married with Shafiqul. But subsequently she having been influenced by her parents, changed her position. As such there was neither any offence of kidnapping nor of rape.
9. Mr. Kh. Md. Khurshid Alam, learned Advocate appearing for the appellants submits that in the instant case the prosecution miserably failed to bring home the charge against the appellants both under section 7 and 9 of the Nari-O-Shishu Nirjatan Daman Ain, 2000, beyond reasonable doubt as such the conviction and sentence against the appellants under the aforesaid provisions of law are not sustainable as such the impugned judgment is liable to be set aside.
10. The learned Advocate for the appellants submits further that from a plain reading of the impugned judgment it is evident that the Tribunal itself upon consideration of the evidence on record, had found it possible on the part of the victim Patul to be a consenting party both in the offence of rape and kidnapping. Yet in view of his misconception with respect to the requirements of law at the relevant time, for the purpose of an offence of rape, the Tribunal committed illegality in awarding sentence upon the appellant No. 1 under section 9(1) of the said Ain as also under section 7 read with section 30 of the said Ain.
11. Elaborating his submission the learned Advocate for the appellants has pointed out further that the occurrence in the instant case took place on 20.5.2001 and that sub-section 1 of Section 9 of the said Ain was amended vide Act No. XXX of 2003 replacing the expression Ò14 erm‡iiÓ by expression Ò16 erm‡iiÓ. He has also pointed out that at the relevant time, an offence under section 9(1) the law requires the age of the victim girl to be of 14 (fourteen) years only and not of 16 (sixteen) years. Though it has been so amended in the year 2003 and the accused persons has to be tried to the offence as was available at the time of commission of offence and not by the law as amended subsequently.
12. The learned Advocate for the appellant has also pointed out that out of three appellants, appellant Nos. 2 and 3 ought to have been acquitted by the learned Tribunal in view of conspicuous absence of any legal evidence to prove the charges against them and a contrary view is not sustainable both under the facts as well as law. Elaborating his submission the learned Advocate has pointed out that immediately after recovery of the victim girl she made a statement before the Magistrate which was duly recorded under Section 22 of the Ain, wherefrom it transpires that the victim did not disclose a single implicating the appellant Nos. 2 and 3.
13. Pointing out the deposition of P.W. 12 the learned Advocate for the appellants submits further that the complicity of Appellant Nos. 2 and 3 as disclosed by P.Ws. 3,4,5,6 and 9 suffers from material contradictions.
14. Mr. Md. Abdul Khaleque, learned Assistant Attorney General appearing on behalf of the State submits that in the instant case the appellant No. 1 has been found guilty both under Sections 9(1) and 7 of the Nari-O-Shishu Nirjatan Daman Ain, 2000, and for the offence under Section 9(1) the evidence of P.W. 2 the victim herself is sufficient to warrant such conviction even without any corroboration thereof. In support of his contention the learned Assistant Attorney General has relied on the case of Siraj Mal and others –Vs- The State reported in 45 DLR 688, the case of Harpal Singh and another –Vs- The State of Himachal Pardesh reported in AIR 1981 (SC) 361, Bhagwat Prakash –Vs- The State of Allahabad reported in AIR 1956 (All) 22 and the case of Bharwada Bhogiubhai Hirijibhai -Vs- The State of Gujrat reported in AIR 1983 (SC) 753 with special emphasis on paragraphs 7 and 9 thereof. The learned Asstt. Attorney General submits further that for the offence under section 7 of the said Ain the deposition of P.Ws. 2,3,4,5 and 6 are sufficient to bring home the charge against all the appellants. Therefore, the impugned judgment and order of conviction and sentence does not call for any interference by this Court.
15. In view of the submissions made by the learned Advocate from both sides and in view of the deposition of the witnesses available on record it appears to us that in the instant case so far the offence of rape is concerned, the victim girl herself is the only witness and the doctor’s certificate that has been produced by the prosecution without examining the doctor himself is of no avail to the prosecution. Although the same has been taken into consideration presumably under section 23 of the said Ain. In this connection it may be pointed out that immediately after recovery of the victim girl she was brought before the Magistrate where her statement under section 22 of the Ain was recorded where she has categorically disclosed about the act of rape perpetrated upon her by Appellant No. 1 and the said statement has been fully corroborated by her while deposing before the Court as P.W. 2. Therefore, we have no hesitation to rely on the principle of law enunciated in the case of Siraj Mal -Vs- The State where it has been held by a Division Bench of this Court as under:-
“ It is true that in a case of sexual offence, if the victim is a woman of full age then of course without independent corroboration of her evidence, the prosecution case should not be believed, as because of her full age she may be a willing or consenting party to the game, but when the victim girl is a minor, her evidence if otherwise found to be truthful and reliable may be sufficient for conviction of the accused even without any independent corroboration.”
16. From a reading of the said case reported in AIR 1956 (All) 22 we find that it has been held in that case as under:-
“Cases of rape, involving bad reputation on the family of the victim herself, frequently are not brought to Court, and if brought, are with the greatest reluctance, and therefore, if a girl does come forward and alleges that she has been raped her evidence should carry more weight than the evidence of an ordinary witness.”
17. The next case relied on by the learned Assistant Attorney General is the case of Bharwada Bhoginbhai Hirjibhai –Vs- The State of Gujarat reported in AIR 1983 (SC) 753 wherefrom we find that the Indian Supreme Court has enunciated the principle of corroboration to the testimony of prosecutrix with the following words as under:-
“It is now time to tackle the pivotal issue as regards the need for insisting on corroboration to the testimony of the prosecutrix in sex offences. This Court, in Rameshwar V. State of Rajasthan, (1952) 3 SCR 377 at p-386: (AIR 1952 SC 54 at p-57) has declared that corroboration is not the sine qua non for a conviction in a rape case. The utterance of the Court in Rameshwar may be replayed, across the time-gap of three decades which have whistled past, in the inimitable voice of Vivian Bose, J, who spoke for the Court-
The Rule, which according to the cases has hardened into one of law, is not that a conviction but that the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of the Judge, ... ... ... ... ... ... ... ... ... ... ... .... .... ....
The only rule of law is that this rule of prudence must be present to the mind of the Judge or the Jury as the case may be and be understood and appreciated by him or them. There is no rule of practice that there must, in every case, be corroboration before a conviction can be allowed to stand.”
18. In the Case before us out of the 12 (twelve) prosecution witness the father of the victim Putul namely, Abdul Jabbar deposed as P.W. 1 who deposed before the Court that on the night following 20.05.2001 at about 12 mid night his daughter Sabina Yesmin @ Putul aged about 13 years went out of her house with her cousin sister Parvin to attend the call of nature; while returning back Shafiqul with the aid of other accused persons forcibly kidnapped Putul; hearing alarm raised by Putul and Parvin other witnesses came around the scene but P. W. 1 was not at home. So he returned back at home on the next morning hearing the news on 21.05.2001; there was an attempt of compromise to recover the girl but it was in vain. Subsequently on 23.05.2001 an entry in the General Diary with Jhenaigati was registered. Yet the police could not trace her out. Therefore Abdul Jabbar the P.W. 1 lodged a petition of complaint with Nari-O-Shisu Nirjatan Daman Tribunal on 30.05.2001 marked as Exhibit-1; the victim Putul was kept confined and was shifted 37 times at different places and she was ravished by accused Shafiqul by force and had also forced her to put her signature in a Kabinnama.
19. In his cross-examination P.W. 1 has admitted that accused Shafiqul worked at his house as a house hold servant. He denied the suggestion that Shafiqul had to leave the job as Putul was in love with him or that Putul compelled him marry her.
20. P.W. 2 Sabina Yeasmin @ Putul, the victim girl deposed to the effect that on the night following 20.05.2001 at about 12 mid night she along with her cousin Parvin went out of the house to attend call of nature when accused Shafiqul and his men kidanpped her by force pointing arms, she was lifted to the house of Billal where she was detained and shafiqul committed rape; next morning she was shifted to the house of accused Bakkar where also she was violated against her will by force and on the following night she was taken to Mirganj and where she was kept confined for 10/12 days. Thereafter she was taken to Char Sherpur by night. In the manner as aforesaid she was shifted from one place to another by accused Shafiqul, but all the times in all the places she was violated against her will by Shafiqul rather forcibly; the victim was confined at the house of Shamser Munshi wherefrom the police could recover her. Subsequently, she was taken to the Magistrate who recorded her statement and later on she was taken to Sherpur Sadar Hospital for medical examination and ultimately she was handed over to her father’s custody; this witness P.W. 2 admitted her signature on the statement recorded under section 22 of the said Ain. She also deposed that her signature was obtained by force in the Kabin Nama. In her cross-examination P.W. 2 admitted that accused Shafiqul was serving as house servant for about a year last. She also disclosed that Shafiqul kept her confined for long 37 days at different places and had raped her on 10 to 12 occasions. She denied the suggestion that out of love and affection she had voluntarily left her parent’s house with Shafiqul and she herself compelled him to marry her. Victim Putul however, denied all the defence suggestion.
21. Halima Khatun, the mother of victim Putul deposed as P.W. 3 to the effect that on the fateful night at about 12 mid night her daughter Putul along with Parvin had gone out of the house to attend their call of nature where accused Shafiqul along others forcibly kidnapped her daughter Putul. Hearing alarm raised by Putul and Parvin she along with other witnesses rushed to the scene of occurrence and had recognized the accused persons with the help of torch light, but could not proceed as the miscreants were carrying weapons. Thereafter for the last 37 days Putul could not be traced out but ultimately police could recover the girl and on returning back home Putul disclosed the acts of rape committed by accused Shafiqul upon her keeping confined at different places.
22. P.W. 3 also reiterated that Putul was a student of class VIII reading in the local school at the relevant time. She also admitted that her husband came back home on the next morning and she disclosed everything about the occurrence to her husband; P.W. 3 also denies the suggestion from the defence that Putul herself compelled Shafique to marry her.
23. P.W. 4, Abdul Gafur, a brother of the informant deposed to the effect that on the date and time of occurrence when Putul and her cousin Parvin went out of their house to attend the call of nature accused Shafiqul and his men forcibly kidnapped Putul and hearing row raised by Parvin and Putul his son Hashmat rushed to the spot with the torch-Light and she also followed Hashmat and could recognise Shafique, Billal, Sekendar and 7/8 persons lifting Putul to an unknown destination. This P.W. 4 also disclosed that he heard the full details about the occurrence from victim Putul about commission of rape by Shafiqul upon her. This witness also disclosed that Hashmat could not follow Shafique or any accused persons as they were carrying weapons.
24. This witness also deposed that P.W.-7 Nurul Islam, P.W. 5 Hashmat and P.W. 10 Salam also recognised the accused persons while fleeing away with the victim. P.W. 4 also denied the defence suggestions to the effect that Putul volunteered to go with Shafique out of love and affection. He also deposed that the letter allegedly written, out of love, by Putul might have been created for the defence case.
25. Md. Hashmat Ali son of Adbul Gafur deposed as P.W. 5 who fully corroborated the assertions made by his father P.W.4 in his deposition in chief and in cross-examination he admitted about the recording of G.D Entry and the petition of complaint lodged by Abdul Jabbar. This witness in answering the question deposed further that he could not follow the accused persons while fleeing as Sakander gave him threat.
26. Parvin a little cousin of the victim girl Putul deposed as P.W. 6. She claimed herself to be a student of Class IV at the relevant time. She in her-deposition fully corroborated the assertions made by the victim herself as to what had happened at 12 mid night on the night following 20.5.2001. She also deposed, upon hearing row raised by her, her father (P.W.4) her brother (P.W.5) her uncle P.W.7 rushed to the place of occurrence with torch light and they also could recognize the accused persons (noting the demeanor the trial Court commented about her intelligence and confidence). This witness also denied the defence suggestion.
27. P.W. 7 Nurul Islam was simply tendered for cross-examination.
28. P.W.8, Abdul Awal deposed that both the parties were known to him as he was Imam of the local Mosque. He also deposed that on the next morning of the fateful night he having gone to the house of the informant, found Abu Bakkar, a member of the union parishad and some other local elites gathered there, where Putul’s father (P.W.1) disclosed that accused Shafique, Sekandar and Bellal had kidnapped her minor girl on the previous night. Thereafter all of them went to the house of Shafique where an altercation took place between them with the father of Shafique and father of Shafique informed them that he would not return back the girl. Thereafter the elites advised Abdul Jabbar to take legal measure. The witness denied the suggestion that the informant was his relation. He also denied the suggestion that he was deposing falsely.
29. Tara Mistry disposed in the case as P.W. 9 who disclosed that hearing hue and owy he had rushed to the house of the information where his wife being available disclosed that Shafique, Sekandar, Billal, Bakkar etc. had kidnapped Putul. This witness claims that he like others also took part in searching the girl out. But it was in vain. In cross-examination he stated that he was not related any of the parties and on reaching the scene of occurrence he found commotion ensued there.
30. Moulvi Farid Ahmed, the marriage register of Gosaipur as P.W. 11 deposed that on that day at night some 7/8 persons brought Putul wearing veil for solemnizing marriage between the girl and accused Shafiqul. In cross-examination he admitted that he did not know the age of the girl nor he could see or perceive her age as she was wearing veil. Yet he did not inform the girl’s father although P.W. 11 claims him to be his friend.
31. P.W. 12 Md. Sakhaul Hossain a Sub-Inspector of Police deposed as an Investigating Officer in this case who in his deposition claimed that upon investigation and upon recording the statement of the victim under Section 22 through the Magistrate as also upon examination of the victim by the doctor he could detect complicity of accused Shafiqul Islam alone in the case. Accordingly, submitted charge sheet on 16.10.2001. In his cross-examination this witness admitted that on 23.5.2001 the same informant registered G.D. Entry No. 776 without mentioning the name of any accused. But in the subsequent petition of complaint lodged on 30.5.2001 he disclosed the names of the accused persons. This witness also admitted that during investigation the other witness did not disclose the involvement of other accused persons except Shafiqul.
32. These are the factual aspect disclosed by the aforesaid witnesses in short.
33. Turning to the case before us we have already noticed that the victim girl was kidnapped and there after kept confined for long about 37 days and in the meantime a show of marriage was also played and immediately after her recover she disclosed before the Magistrate that she was ravished in course of her confinement, by the appellant No. 1 and such statement finds full support from her deposition before the Court. Therefore we can fully rely on the testimony of P.W.2 with respect to the offence of rape perpetrated on her by Appellant No. 1.
34. Turning to the other part of the case, allegation of participation of the appellant Nos. 2 and 3 namely, Sekandar Ali and Billal we find that P.W. 2 the star witness in this case and the victim herself while making a statement before the Magistrate immediately after her recovery recorded under section 22 of the Ain, she did implicate Appellant Nos. 2 and 3 as a participant in the act of kidnapping or abduction. This statement under Section 22 of the Ain made by P.W. 2 does not support her deposition before the Court implicating appellant Nos. 2 and 3. Similarly P.Ws. 3, 4, 5 and 6 though disclosed the complicity of appellant Nos. 2 and 3 before the Court yet they did not produce the means of recognition of the accused persons to the investigating officer as they claimed in their deposition and the investigating officer also did not seize any of the means of recognition by which these witnesses namely, P.Ws. 3, 4, 5 and 6 claimed to have recognized the accused persons. More over P.W. 4 Abdul Gafur and P.W. 5 Hashmat Ali did not disclose the act of their recognition of appellant Nos. 2 and 3 before the investigating officer who recorded their statements under section 161 of the Code of Criminal Procedure. While P.W. 12 Sakil Hossain deposing as the Investigating Officer of this case admitted in his cross-examination as under:-
Ò Avmvgx kwdKzj Qvov Ab¨ Avmvgx‡`i mshyw³ m¤ú‡K© mvÿxiv wbw`©ó fv‡e e‡j bvB|Ó
35. From the circumstances as disclosed above, we are of the opinion that the complicity of the appellant Nos. 2 and 3 in the offence of ÒAcniYÓ remains a hazy one. Therefore, the prosecution could not prove the charge of ÒAcniYÓ against them beyond reasonable doubt. Therefore, in our opinion these two appellants are entitled to get the benefit of doubt in this case.
36. The learned Assistant Attorney General has lastly Pointed out that appellant Nos. 1 and 2 obtained bail from this court for six months on 02.04.2006 but they did not get the said order of bail extended any further, therefore, they are, at the moment fugitive from Justice, as such they are not entitled to any relief.
37. The learned Advocate for the appellant finds it difficult to refute such submission on behalf of the state.
38. So we find that this appeal is liable to be dismissed as a whole. Hence, this appeal fails and the impugned Judgment and order of conviction and sentence are hereby affirmed.
39. Note:-Before putting our signatures in this judgment we thought it proper to re-hear the appeal, accordingly the same was placed in the list for re-hearing on 08.05.08 followed by the concluding part of the judgment. Therefore, the concluding part delivered on 08.05.08 must be treated as part of the judgment in Criminal Appeal No. 2747 of 2004
Mr. Khandaker Khurshid Alam
. . .For the appellant.
Mr. Mohammad Ali Akand, D.A.G.
. . . For the State
40. This appeal was taken up for hearing on 10.02.08, 13.02.08 and 14.02.08 and judgment was delivered on February 19, 2008 and by an elaborate judgment, on merit, this Court found that the appeal in respect of the appellant No. 1 was liable to be dismissed while the appeal in respect of the appellant Nos. 2 and 3 was otherwise, in that this Court had found that the appellant Nos. 2 and 3 were entitled to the benefit of doubt therefore they were entitled to be acquitted, despite such a position at the end of the day it was brought to our notice that the appellant Nos. 2 and 3 namely, Sekandar Ali and Billal having obtained bail on 02.04.06, during pendency of the appeal, for a limited period of 6(six) months, did not get their limited bail extended any further, therefore, it was pointed out before us that the appellant Nos. 2 and 3 were fugitive from law as such they were not entitled to any relief by way of an appeal.
41. Having approved such contention we rather felt constrained to dismiss the appeal in respect of appellant Nos. 2 and 3 as well but before putting our signatures on the judgment we felt it necessary to reconsider the position of law and eventually Mr. Saiful Bashor Bhandari the learned Advocate pointed out a decision before us hoping it to be helpful for the ultimate verdict, therefore we wanted Mr. Bhandari to cite the decision, putting the appeal in the list for rehearing on 08.05.08 accordingly he referred to the decision in the case of Saidur Rahman alias Chan Miah and others Vs. The State reported in 40 DLR (AD) 281. We have ourselves gone through the judgment delivered by their lordships of the Appellate Division wherefrom we find that the appeal by the appellants in that case was summarily dismissed in course of admission thereof by the High Court Division holding that the appellants were fugitive from law under the circumstances as under:- the appellants having been convicted under Section 147 of the Penal Code were sentenced to suffer 2 years rigorous imprisonment with a fine of Tk. 1000/00 each they obtained bail from the learned Sessions Judge, who conducted the trial in the case and the appeal was preferred with the said order of bail granted by the Sessions Judge, but in course of admission of the appeal the High Court Division found that the Sessions Judge was not competent to grant bail under Section 426 of the Code of Criminal Procedure if the sentence is more than one year, as such, the order of bail as granted by the Sessions Judge was not sustainable in law therefore the appellants were found to be fugitive from law by the High Court Division accordingly their appeal was dismissed summarily.
42. As against the dismissal order of the appeal by the High Court Division the appellants preferred Criminal Petition for Leave to Appeal before the Appellate Division where leave was granted and finally the appeal was disposed of by their lordships holding inter alia to the effect that it is true that the Sessions Judge was not competent to grant such bail under Section 426 of the Code of Criminal Procedure since the sentence was in excess of one year. The order was therefore, illegal but the fact remains that the appellants submitted themselves to the sentence passed and obtained an interim order of bail in their favour albeit wrongly. In the facts of the case it will be less than charitable to attribute to the appellants that they were “fugitive from law”. There was nothing in their conduct to show that they were running away from the jurisdiction of the court or avoiding its process.”
43. Having gone through the judgment we felt it proper to bring the appeal in the list for re-hearing. Accordingly, we have brought it to-day in the list and allowed the learned Advocate for the appellants including Mr. Mohammad Ali Akand, the learned Deputy Attorney General to appear before this Court. The learned Deputy Attorney General has also made his submissions in this case on this particular point Specifically.
44. Having appeared before this Court the learned Deputy Attorney General has pointed out the provisions of Sections 419, 422 and 423 of the Code of Criminal Procedure in support of his contention that in an appeal specially under section 410 of the Code of Criminal Procedure the law does not require the presence of the appellant or appellants themselves before this Court rather the mandate of law as available under the aforesaid provisions are that the appellants can safely be represented by their counsel or counsels.
45. Mr. Mohammad Ali Akand, the learned Deputy Attorney General has also referred the case of Awal Khan and another Vs. The State reported in PLD 1957 (WP) (Pesh) 75 in support of his contention that after filing of the appeal, even if the accused appellant escaped from jail then his appeal has to be disposed of on merit, having gone through the said judgment we find that two convicts had gone for appeal to the High Court of Peshawar and both the appellants preferred one appeal through their counsel but during pendency of the appeal it transpired that one of the appellants bearing the name Muhammad Anwar escaped from jail and had remained in abscondence till hearing of the appeal and at such stage a question arose whether his appeal should also be heard and decided on merit in his absence and having considered the position of law as available under Sections 421, 422 and 423 Code of Criminal Procedure, the High Court of Peshawar had held that his appeal should also be disposed of on merit.
46. The learned Deputy Attorney General appears to have waded though this subject and has also been able to find out two other cases from the Indian jurisdiction on the same line of them the one is the case of Parasuram Patel and another Vs. State of Orissa reported in (1994) 4 SCC 664 whereby the India Supreme Court has laid down the principle that the appeal is to be disposed of on merit it can not be dismissed for default even in the absence of the appellant or their counsels.
47. We have referred to the position of law with respect the term: “Fugitive from law”,
48. In his connection the factum matrix involved in this case has to be referred once again, such as the appellants who are appellant Nos. 2 and 3, during pendency of the appeal before this Court, they were enlarged on bail vide order dated 02.04.2006 of course for a limited period of 6 (six) months, consequently they were released from the jail. It was of course, incumbent upon the learned Counsel for the appellants to get the said order of bail extended from time to time, this was not done by the learned Counsel, may be a fault on the part of the learned Counsel. Now the question arises as to whether such a default on the part of learned counsel, can be attributed to the appellants without any notice upon them to that effect, with a view to bring them within the mischief of the term “fugitive from law” ? more particularly when we have already noticed that they have sufficiently complied with the command of the court by remaining inside the jail while filing this appeal. Therefore, we find it profitable to quote from the judgment of the Appellate Division, as we have already referred to above and reported in 40 DLR (AD) 281. “It would be less than chartable” to attribute to the appellants that they were ‘fugitive from Law”.
49. Under these circumstances as stated above, and the position of law discussed, we find that we can safely dispose of the appeal by the appellant Nos. 2 and 3 as well as on merit and in doing so we can proceed accordingly.
50. In the result this appeal is dismissed in respect of appellant No. 1 while the same is allowed in respect of appellant Nos. 2 and 3.
51. The impugned judgment and order of conviction and sentence dated June, 13, 2004 passed by the Nari-O-Shishu Nirjatan Daman Tribunal, Sherpur in Nari-O-Shishu Nirjatan Daman Tribunal Case No. 115 of 2001 is hereby affirmed, so far as it relates to the appellant No. 1 Shafiqul Islam son of Kamal Uddin alias Kamal while the same Judgment and order of conviction and sentence, so far it relates to appellant Nos. 2 and 3 namely (2) Sekandar Ali son of late Abdul and (3) Billal son of late Abdul Khaleque are hereby set aside.
52. Accordingly, the appellant Nos. 2 and 3 are acquitted as such discharged from their respective bail bonds.
53. Send down the lower court’s records along with a copy of this judgment to the Nari-O-Shishu Nirjatan Daman Tribunal, Sherpur for compliance.
Criminal Appeal No. 2747 of 2004