Shafiul Azam Dafader and others Vs. The State [4 LNJ AD (2015) 230]

Case No: Criminal Appeal Nos. 25, 26, 27, 30, 31, 32, 33 and 35 of 2012 AND Jail Petition No. 20 of 2012

Judge: Nazmun Ara Sultana,

Court: Appellate Division ,,

Advocate: Mrs. Sufia Khatun,Mohammad Ali,Mr. Abdul Motin Khashru,Mr. Md. Sarwar Ahmed,Mr. Mansurul Haque Chowdhury,Mr. Khondaker Diliruzzaman,,

Citation: 4 LNJ AD (2015) 230

Case Year: 2015

Appellant: Shafiul Azam Dafader and others

Respondent: The State

Subject: FIR, Partisan Witnesses, Commutation of Sentence,

Delivery Date: 2015-04-07


APPELLATE DIVISION
(CRIMINAL)
 
Surendra Kumar Sinha, CJ.
Nazmun Ara Sultana, J
Syed Mahmud Hossain, J
Hasan Foez Siddique, J.
 
Judgment on
07.04.2015
  Shafiul Azam Dafader
. . . Appellant
(In Crl. A. No.25 of 2012)
Md. Ayub Ali Chairman and another . . . Appellants
(In Crl. A. No.26 of 2012)
Farooque Gazi . . . Appellant
(In Crl. A. No.27 of 2012)
Showkat Ali Mollah
. . . Appellant
(In Crl. A. No.30 of 2012)
Hashem . . . Appellant
(In Crl. A. No.31 of 2012)
Mannan Shah . . . Appellant
(In Crl. A. No.32 of 2012)
Jaynal Mukter @ Jaynul Abedin
. . . Appellant
(In Crl. A. No.33 of 2012)
A. Salam @ Ketu Salam @ Kata . . . Appellant
(In Crl. A. No.35 of 2012)
 
Md. Ayub Ali Chairman
. . . Petitioner
(In Jail. P. No.20 of 2012)
=Versus=
The State . . . Respondents
(In all the appeals)
 
Code of Criminal Procedure (V of 1898)
Section 154

Mere delay in lodging the FIR should not be a ground for disbelieving the prosecution case if that delay occurred for any reasonable cause. Considering the facts and circumstances of a particular case the court is to decide whether the delay in lodging the F.I.R. is fatal and whether this delay in lodging the F.I.R. makes the prosecution case doubtfull. Considering all these facts and circumstances both the trial court and the High Court Division found that the delay of 5 days in lodging the F.I.R. was not  fatal to create any doubt about the truth of the prosecution case. Considering the facts and circumstances we also find that in this case the delay in lodging the F.I.R. cannot be a ground for disbelieving the truth of the prosecution case. . . . (80 and 81)

Code of Criminal Procedure (V of 1898)
Section 154

There is no bar in filing a second F.I.R. if the first information about any occurrence given to the police station is vague and indefinite and does not disclose the actual offence committed in that occurrence. In the present case the GDE which was made in the concerned police station at the time when the occurrence was still going on does not disclose the offences committed in that occurrence and hence the subsequent F.I.R. stating the offences committed in that occurrence in details is the actual F.I.R. and there is no legal bar in accepting this F.I.R. in the stated facts and circumstances. . . .(82)

Code of Criminal Procedure (V of 1898)
Section 161

The delay in examining the witnesses under section 161 of the Code of Criminal Procedure by the investigating officer can be any reason for discarding their evidence before court. …(82)

Code of Criminal Procedure (V of 1898)
Section 154
Evidence Act (I of 1872)
Section 134

There is no law requiring examination of all the F.I.R. named and charge sheeted witnesses before court. Rather it is well established by judicial pronouncements that conviction of accused can safely be based on the evidence of one witness only if his evidence is full, complete and selfcontained and believable. The prosecution is not bound at all to examine all the witnesses mentioned in the F.I.R. or in the charge sheet. . . .(84)

Code of Criminal Procedure (V of 1898)
Section 154
Evidence Act (I of 1872)
Section 157

In this case the informant, who lodged the F.I.R. was not the eye-witness to the occurrence. Hearing from others she lodged the F.I.R. So it was very natural that in the F.I.R. all the details of the occurrence could not be stated properly and correctly. The evidence of P.Ws.2 to 8-the eye-witnesses to the occurrence are consistent. In the circumstances the discripancy between the F.I.R. story and the evidence of these eye witnesses cannot be any reason for disbelieving the evidence of these eye-witnesses in this particular case. . . . (85).

Evidence Act (I of 1872)
Sections 3, 5 and 8

It is true that the evidence of the interested and partisan witnesses must be scrutinized and considered cautiously before it is accepted. But the evidence of the interested and partisan witnesses should not be discarded for the reason only that they are partisan and interested witnesses if their credibility is not shaken by the defence. ...(86)

Evidence Act (I of 1872)
Section 3

The evidence of partisan witnesses need not always be discarded only for the reason of their relationship, when their evidence are found to be reliable that can be basis for convicting the accused. . . . (86)

Code of Criminal Procedure (V of 1898)
Section 376

The learned Advocate for the condemned prisoner has made submissions to the effect also that this accused-appellant Aiyub Ali has been detaining in the condemned cell for long 10 years with mental agony of death and now this Division, for the ends of justice, may show some mercy to him and may commute his sentence of death to a sentence of life imprisonment. But considering the very offence of cruel murders of as many as 3 persons committed by this accused-appellant Aiyub Ali we do not think that he can be shown any mercy at all.          . . . (94)
 
For the Appellant: Mr. Abdul Motin Khashru, Senior Advocate instructed by Mrs. Sufia Khatun, Advocate-on-Record.
For the Appellant: Mrs. Sufia Khatun, Advocate-on-Record.
For the Appellant: Mr. Mohammad Ali, Advocate-on-Record.
For the Appellant: Mr. Md. Sarwar Ahmed, Advocate instructed by Mr. Mohammad Ali, Advocate-on-Record.
For the Appellant: Mr. Mansurul Haque Chowdhury, Senior Advocate instructed by Mr. Mohammad Ali and Mrs. Sufia Khatun, Advocates-on-Record.
For the Petitioner: Not  represented.
For the Respondents: Mr. Khondaker Diliruzzaman, Deputy Attorney General instructed by Mrs. Madhumaloti Chowdhury Barua, Mr. Syed Mahbubar Rahman and Mr. Md. Shamsul Alam, Advocates-on-Record.
For the Respondent: Not  represented.

Criminal Appeal Nos. 25, 26, 27, 30, 31, 32, 33 and 35 of 2012 AND  Jail Petition No.  20 of 2012
 
JUDGMENT
Nazmun Ara Sultana, J.
 
All these 8 criminal appeals and the jail petition have arisen out of the judgment and order passed by the High Court Division on 17.01.2012 and 18.01.2012 disposing of several criminal appeals, jail appeals and criminal miscellaneous cases together filed against the judgment and order dated 12.07.2005 passed in Druto Bichar Tribunal Case No.6 of 2004 of Druto Bichar Tribunal No.1, Dhaka.

The prosecution case, in short, is that on 07.07.2001 at about 8.00 A.M. the deceased Monwar Ali, formar  chairman  of  Bagra  Union and former president of Bagra Union B.N.P. and present vice president of Sreenagar  Thana  B.N.P.  along with  his  brothers Md.  Anwar  Ali and Badsha and  nephew  Salauddin  started  for  Bagra  Bazar  for  attending  a  meeting  of  B.N.P. there.  They were going through Al-Amin Madrashah road for their convenience. By the side of that road the house, of accused Aiyub Ali, sitting chairman of Bagra Union was situated. While Monawar Ali along with his brothers and nephew were going through that road, all on a sudden, the accused persons, namely, Aiyub Ali chairman, Nazir, Mizan and Badshah, sons of late Swarup Ali, Sabuj Ali, Kuti Chan, Mahfuz, Mintoo, Abdul Mannan Shah, Faruq Gazi, Salam, Mithu, Alek member, son of late Hossain, Selim, Billal, Ripon, Piyar Ali, Jasim, Muluk, Alek, son of unknown, Shafiul Azam, Syed Chowdhury, Ayesha Khatun, wife of Abu Jaher, Rubel, Maram Ali, Abdur Rob Bepari @ Roba, Keru Fakir member, Adalat Sikder, Jainal Talukder, Aynal, Haroon, Salam Sikder, Shamsuddin, Aminur Rahman, Jewel, Abdul Mannan @ Mobile Mannan, Kuddus Bepari, Akram Ali Bepari, Rouf, Faran Sheikh, Titan Khan, Hossain member, Malek Bepari, Shah Alam Bepari, Muktar Hossain, Sekander, Ummat Ali, Mahfuz, son of Salam Sikder, Amin, Israfil Bepari, Abbas, Hashem, son of Hasen Gazi, Faraj Ali, Motaleb Fakir, Ketu Salam @ Kota Salam, Abdul Gazi and many unknown persons being armed with weapons like gun, ‘ramdao’, ‘chapati’, iron rod, chinese axe etc. attacked them. Though the deceased Monwar Ali and his associates were carrying two licensed guns and one pistol they along with Hashem, being chased, ran towards the house of Srijon Bepari and entered into that house and started shouting “save, save”. Hearing their alarm, the neighbouring people gathered there. In the meantime, the accused Aiyub Ali and the aforesaid accused persons started shouting saying that Monwar Ali chairman whould be killed. The accused Aiyub Ali chairman started firing targeting the house of Srijan Bepari. He and the aforesaid accused persons fired targeting the public also so that they could not come forward. Being frightened the public went away far. Deceased Manwar Ali and his associates requested Srijan Bepari to give them shelter in his house. Haji Srijan Bepari, being kind enough, gave them shelter in his two storied wooden house and for that the accused persons started looting that house. Finding no other way the deceased Monwar Ali started blank firing from his brother’s licensed gun and pistol and instructed his relatives over mobile phone to inform the police station. In the meantime, accused Kuti Chand, Nizam, Nazim, Sabuj Ali, Hashem and Alauddin broke open the door of that house of Srijan Bepari and entered into that house and tried to drag away Badsha. Hashem, who also took shelter in that house along with Monwar Ali and his assocaites, was trying to drag Badsha into the house. The accused Faruq Gazi then shot Hashem with a gun and as a result Hashem died. The other accused persons from out side the house fired many shots one of which hit Badsha causing bleeding injury. At that time Alauddin from the accused’s group, who entered into that house to drag out the victims, also received a bullet injury and died.

That the reason for carrying guns and pistol by the deceased Monwar Ali and his brothers is that the accused Aiyub Ali chairman and his family members are their enemy. 26/27 years back the accused Aiyub Ali and his brothers took away the father of the deceased Monwar Ali from a tea-stall of Bagrabazar and cut his body into pieces and threw the pieces into the river Padma. The pieces of the body could not be found. Since thereafter, they were threatening the deceased Monwar Ali and his family members also and for this reason they used to carry their licensed guns and pistol while they had to go to Bagrabazar. That the accused A. Rob @ Roba, son of late Rashid Bepari informed the accused Aiyub Ali about the deceased Monwar Ali’s going to Bagrabazar on 07.07.2001. Roba is the terrorist of the accused Aiyub Ali’s group who was in the jail several times for his terrorist activities. Being informed by Roba the accused Aiyub Ali took preparation about which the deceased Monwar Ali was ignorant. 

While the above stated occurrence was going on Sreenagar Thana police went to the place of occurrence at about 1.00 P.M. and sent message to different police stations. The Deputy Commissioner and the police super of Munshiganj and the T.N.O. from Sreenagar went to the place of occurrence from 2.00 P.M. to 5.00 P.M. The District Magistrate, the police super and the O.C., Sreenagar P.S. could not bring the accused persons under control. The deceased Monwar Ali and his companions were in confinement at the 1st floor of Srijon Bepari’s wooden house from 9.00 A.M. At about 6.00 P.M. the District Magistrate and the Police Administration announced through a hand mike addressing Monwar Ali to come throwing down their weapons and to surrender. They also announced assuring them that if they surrendered to them they would save them. Hearing this, the deceased Monwar Ali along with others came down from the 1st floor of the said house. The police then arrested them out of suspicion and handcuffed them. Forthwith, the accused Aiyub Ali and the other accused persons snatched the deceased Monwar Ali and his companions away from the police custody. The accused Aiyub Ali then dealt a sharp weapon blow on the back of the head of deceased Monwar Ali in presence of police. At the same time, the other accused persons, namely, Nazir, Mizan, Nizam, Badsha, Sabuj, Kuti Chan, Mahfuz, Mintoo gave indiscriminate blows with sharp cutting weapons on the different parts of the body of the deceased Monwar Ali. The accused Abdul Mannan Shah, son of Malek Shah, Faruq Gazi, Salam, Mintoo, Alek member, son of Hossain, Selim, Billal, Ripon, Piyar Ali, Jasim, Muluk, Alek, son of unknown, Safiul Azam, Syed Chowdhury, Ayesha Khatun, wife of Abu Taher started dealing blows on the body of the deceased Monwar Ali with sharp cutting weapons. The accused Jainal son of late Beshai Talukder, Aynal son of Joynal Talukder, Haroon, Salam Sikder, Samsuddin, Sekander, Ummet Ali, Mahfuz son of Salam Sikder, Rubel, Keru Fakir member dealt stick and iron rod blows to the brothers of the deceased Monwar Ali. The accused Aminur Rahman, Jewel, Abdul Mannan started dealing blows on the body of Salauddin, the nephew of the deceased Monwar Ali with sharp cutting weapons. The accused Kamal, Abbas, Hashim, Kuddus Bepari, Akram Ali Bepari, Rouf, Fazal, Sheikh, Titan Khan, Hasen member, Malek Bepari, Sahah Alam Bepari started firing all around so that no body come forward to rescue them. The accused Mukter Hossain Bepari, Motaleb Gazi, Idris, Faraj Ali, Motaleb Fakir, Hari Das, Ketu Salam @ Kota Salam, Abdul Awal Gazi, Gaffar assisted the other accused persons. At that time, due to indiscriminate firing of accused persons, one passerby, namely, Ismail Gazi an old man, received a bullet injury on his dead and died. The deceased Monwar Ali and Badsha, due to the aforesaid blows, died at the place of occurrence. Thereafter, police took the dead bodies of Monwar Ali, Badsha, Hashem, Alauddin and Ismail Gazi to the police station by police van. As Anwar Ali and Salauddin-the elder brother and the nephew of the deceased Monwar Ali were alive they were sent to the hospital.

At about 7.00 P.M. on the date of occurrence the informant-the wife of deceased Monwar Ali heard about the death of her husband from the witnesses and lost sense. At about 2.00/2.30 P.M. the dead bodies of the deceased Monwar Ali and Badsha were sent to the hospital for autopsy. After completion of autopsy their bodies were brought to the residence of the informant and at that time also the informant lost her sense once again. Injured Md. Anwar Ali and Salauddin were in hospital and other relatives were living abroad. The cause of delay in lodging the First Information Report was that the informant lost balance of her mind because of the death of her husband.
On 12.07.2001 Meherun Nessa-the wife of deceased Manwar Ali lodged the First Information Report with Sreenagar Police Station on the basis of which Sreenagar P.S. Case No.10(07)2001 and corresponding G.R. No.179 of 2001 were started. The police took up investigation of the case and after completion of investigation, finding prima facie case, submitted charge sheet No.64 dated 30.11.2003 against 108 accused persons under sections 148/149/332/353/326/ 307/302/109 along with some other sections of the Penal Code. The case was ultimately sent to the Druto Bichar Tribunal No.1, Dhaka for trial. In this tribunal the case was registered as Druto Bichar Tribunal Case No.6 of 2004. Charges under sections 148/149/332/353/ 326/307 /302/ 109 of the Penal Code were framed against the accused persons. The charge so framed were read over and explained to the accused persons who faced trial. The present accused persons pleaded not guilty and claimed to be tried. The other accused persons being absconding, the charge could not be read over and explained to them.

The prosecution examined 23 witnesses to prove its case while the defence examined none.

The present accused persons, namely, Nannoo Sikder, Hossain member @ Sheikh Ali Hossain, Shamsuddin Bepari, Badsha, Morom Ali, Tition Khan, Md. Shafiul Azam @ Shafiullah, Md. Mannan Shah, Hashem, Md. Mahfuzur Rahman, Mithu, A. Salam @ Ketu Salam, Ayesha Begum and Md. Aiyub Ali chairman were examined under section 342 of the Code of Criminal Procedure and this time also they pleaded innocence.

On consideration of the evidence adduced by the prosecution and the facts and circumstances the learned trial Judge, by his judgment and order dated 12.07.2005 convicted the accused Aiyub Ali, Salam @ Ketu Salam, Mannan Shah and Faruq Gazi (absconding) under sections 302/149 of the Penal Code for killing Hashem and sentenced them to death.

The learned trial Judge convicted the accused Kuti Chand (absconding), Sabuj Ali (absconding), Nazir (absconding) and Nizam (absconding) also under sections 302/149 of the Penal Code for killing Hashem and sentenced them to imprisonment for life and to pay a fine of Tk.50,000/-(fifty thousand) each, in default, to suffer rigorous imprisonment for 1(one) year more.

The learned trial Judge convicted the accused Aiyub Ali, Kuti Chand (absconding), Sabuj Ali (absconding), Nazir (absconding), Nizam (absconding), Mahfuz son of Aiyub Ali, Ripon (absconding), Mannan Shah, Shafiul Azam Dafader, Hashem, Faruq Gazi (absconding), Abdul Mannan @ Mobile Mannan (absconding), Javed Ali (absconding) and Mizan (absconding) under sections 302/109 of the Penal Code for killing Monwar Ali and Badsha and sentenced all of them to death.

The learned trial Judge convicted the accused Salam Sikder (absconding), Mahfuz, son of Salam Sikder (absconding), Mintoo (absconding), Shawkat Ali Molla (absconding), Jainal Mokter @ Jainal Abedin, son of Adbur Rahman (absconding), Badsha, Mithu, A. Rob @ Roba and Ayesha Begum also under sections 302/109 of the Penal Code for killing Monwar Ali and Badsha and sentenced them to imprisonment for life and to pay a fine of Tk.50,000/- (fifty thousand) each, in default, to suffer rigorous imprisonment for 1(one) year more.

The learned trial Judge convicted the accused Salam Sikder (absconding), Mahfuz, son of Salam Sikder (absconding), Mintoo (absconding), Shawkat Ali Molla (absconding), Jainal Mokter @ Jainal Abedin, son of Adbur Rahman (absconding), Badsha, Mithu and A. Rob @ Roba under sections 307/109 of the Penal Code for making attempt to kill victims Anwar Ali and Salauddin and sentenced each of them to imprisonment for life and to pay a fine of Tk.50,000/- (fifty thousand) each, in default, to suffer rigorous imprisonment for 1(one) year more.

The learned trial Judge convicted the accused Shamsuddin (absconding), Alek (absconding), Syed Chowdhury (absconding), Ratan Chaktabarty (absconding), Rafique Sikder (absconding), Masood, son of Sheikh Shahjahan (absconding), Piyar Ali (absconding), Jasim (absconding), Titon Khan, Morom Ali, Nannoo Shikder and Hossain member under sections 148 of the Penal Code and sentenced each of them to suffer 2(two) years rigorous imprisonment and to pay a fine of Tk.2,000/- (two thousand) each, in default, to suffer rigorous imprisonment for 3(three) months more.

The learned trial Judge acquitted the other accused persons finding that the allegations made against them were not proved beyond reasonable doubt.

On a reference made by the learned Judge, Druto Bichar Tribunal No.1, Dhaka to the High Court Division for confirmation of death sentences imposed on the accused persons as aforesaid the Death Reference No.110 of 2005 was registered.

Against the judgment and order of conviction and sentence passed by the trial court as aforesaid the convicted-accused persons, namely, Shafiul Azam Dafader, Mannan Shah and Abdus Salam @ Ketu Salam preferred Criminal Appeal No.3451 of 2005, the convicted-accused Md. Aiyub Ali chairman, Mahfuzur Rahman @ Mahfuz son of Aiyub Ali, Badsha, A. Rob Bepari @ Roba, Ayesha Begum @ Ayesha Khatun, Shamsuddin, Titon Khan @ Titan Khan and Morom Ali preferred Criminal Appeal No.3581 of 2005, the convicted-accused Nannoo Sikder and Rafique Sikder preferred Criminal Appeal No.3157 of 2005, the convicted-accused Md. Hashem preferred Criminal Appeal No.3354 of 2005, the convicted-accused Hossain member @ Sheikh Ali preferred Criminal Appeal No.3558 of 2005, the convicted-accused Mithu preferred Criminal Appeal No.3413 of 2005, the convicted-accused A. Salam @ Ketu Salam preferred Jail Appeal No.762 of 2005, the convicted-accused Shafiul Azam preferred Jail Appeal No.763 of 2005, the convicted-accused Hashem preferred Jail Appeal No.764 of 2005, the convicted-accused Md. Mahfuzur Rahman preferred Jail Appeal No.765 of 2005, the convicted-accused Md. Mannan Shah preferred Jail Appeal No.766 of 2005, the convicted-accused Aiyub Ali chairman preferred Jail Appeal No.767 of 2005, the convicted-accused Faruq Gazi preferred Jail Appeal No.92 of 2006, the convicted-accused Md. Jainal Mokter @ Jainal Abedin filed Criminal Miscellaneous Case No.12454 of 2008 under section 561A of the Code of Criminal Procedure, the convicted-accused Faruq Gazi filed Criminal Miscellaneous Case No.7729 of 2006 under section 561A of the Code of Criminal Procedure and the convicted-accused Shawkat Ali Molla filed Criminal Miscellaneous Case No.32472 of 2011 under section 561A of the Code of Criminal Procedure.

A Division Bench of the High Court Division heard the above mentioned death reference along with all the above stated criminal appeals, jail appeals and criminal miscellaneous cases and by the impugned judgment and order dated 17.01.2012 and 18.01.2012 disposed of the death reference and all those criminal appeals, jail appeals and the criminal miscellaneous cases together. 

The High Court Division accepted the death reference in part. The High Court Division confirmed the death sentence awarded to the condemned prisoners Aiyub Ali chairman, Kuti Chand, Nazir Ali and Nizam under sections 302/109 of the Penal Code for killing deceased Monwar Ali.

The High Court Division commutted the death sentence awarded to accused Ripon (absconding), Hashem, Abdul Mannan @ Mobile Mannan (absconding), Mannan Shah, Faruq Gazi, Sabuj Ali (absconding), Shafiul Azam Dafader, Mahfuz, son of Aiyub Ali, Mizan (absconding) and Javed (absconding) under sections 302/109 of the Penal Code to a sentence of imprisonment for life with fine of Tk.10,000/- (ten thousand), in default, to suffer rigorous imprisonment for another 6(six) months for killing Monwar Ali.

The High Court Division upheld the sentence of imprisonment for life imposed on the accused Jainal Mokter @ Jainal Abedin and Shawkat Ali Mollah under sections 302/109 of the Penal Code for killing deceased Monwar Ali.
The High Court Division acquitted the accused Salam Sikder, Mahfuz, son of Salam Sikder, Mintoo, Badsha, Mithu, A. Rob Bepari @ Roba and Ayesha Begum from the charge under sections 302/109 of the Penal Code for killing deceased Manwar Ali.

The High Court Division confirmed the conviction of accused Aiyub Ali, Faruq Gazi, Nizam (absconding), Nazir (absconding), Kuti Chand (absconding), Sabuj Ali (absconding), Mannan Shah and Ketu Salam under sections 302/149 of the Penal Code for killing deceased Hashem Kazi but upheld the death sentence of accused Faruq Gazi only and commuted the death sentence of accused Aiyub Ali, Salam @ Ketu Salam and Mannan Shah to imprisonment for life and to pay a fine of Tk.10,000/- (ten thousand) each, in default, to suffer rigorous imprisonment for another 3(three) months. The High Court Division affirmed the sentence of life imprisonment awarded to the accused Kuti Chand (absconding), Sabuj Ali (absconding), Nazir (absconding) and Nizam (absconding) for killing Hashem Kazi.

The High Court Division commuted the death sentence awarded to accused Aiyub Ali, Sabuj Ali (absconding), Mahfuz, son of Aiyub Ali, Ripon (absconding), Shafiul Azam Dafader, Javed Ali (absconding), Faruq Gazi, Mannan Shah and Ketu Salam (absconding) under sections 302/109 of the Penal Code for killing Badsha to a sentence of imprisonment for life with fine of Tk.10,000/-(ten thousand), in default, to suffer rigorous imprisonment for 3(three) months.

The High Court Division set aside the sentence of imprisonment for life imposed on accused Salam Sikder (absconding), Mahfuj, son of Salam Sikder (absconding), Mintoo (absconding), Shawkat Ali Mollah, Jainal Mokter @ Jainal Abedin, son of Abdur Rahman, Badsha, Mithu, A. Rob Bepari @ Roba and Ayesha Begum under sections 302/109 of the Penal Code for killing Badsha and acquitted them from this charge.

The High Court Division found accused Mafiz @ Mahfuz, son of Salam Sikder, Ripon, Hashem, Sabuj Ali, Mobile Mannan (absconding) and Shafiul Azam Dafader guilty under sections 307/109 of the Penal code for making attempt to commit murder of Md. Anwar Ali and Salauddin and sentenced them to suffer rigorous imprisonment for 7(seven) years and to pay a fine of Tk.10,000/- (ten thousand) each, in default, to suffer rigorous imprisonment for another 6(six) months.

The High Court Division set aside the conviction and sentence  under sections 307/109 of the Penal Code imposed on the accused Salam Sikder (absconding), Mintoo, Shawkat Ali Mollah, Jainal Mokter @ Jainal Abedin, Badsha, Mithu, A. Rob Bepari @ Roba for making attempt to commit murder of Md. Anwar Ali and Salauddin and acquitted them from the said charge.

The High Court Division confirmed the conviction and sentence under section 148 of the Penal Code awarded to the accused Piyar Ali (absconding) and Jasim (absconding) but set aside the conviction and sentence under section 148 of the Penal Code awarded to accused Shamsuddin (absconding), Alek (absconding), Syed Chowdhury (absconding), Ratan Chakrabarty (absconding), Rafique Shikder (absconding), Masood, son of Sheikh Shahajahan (absconding), Tition Khan, Morom Ali, Nannu Sikder and Hossain member and acquitted them from the said charge. 

The High Court Division thus allowed Criminal Appeal No.3581 of 2005 filed by condemned prisoner Md. Aiyub Ali chairman and the convicted-accused Mahfuzur Rahman @ Mahfuz, Badsha, A. Rob Bepari @ Roba, Ayesha Begum @ Ayesha Khatun, Shamsuddin, Titon Kha @ Titan Khan and Moram Ali in part.

The High Court Division dismissed Criminal Appeal No.3541 of 2005 filed by the accused Shafiul Azam Dafader, Mannan Shah and Abdus Salam @ Ketu Salam.
The High Court Division allowed Criminal Appeal No.3157 of 2005 filed by the accused Nannoo Sikder and Rafiq Sikder.
The High Court Division dismissed Criminal Appeal No.3354 of 2005 preferred by convicted-accused Md. Hashem.
The High Court Division allowed Criminal Appeal No.3558 of 2005 filed by the convicted-accused Hossain member.
The High Court Division allowed Criminal Appeal No.3413 of 2005 filed by the convicted-accused Mithu.
The Jail Appeal Nos.762 of 2005, 763 of 2005 and 764 of 2005 preferred by convicted-accused A. Salam @ Ketu Salam, Shafiul Azam @ Shafiullah and Hashem were thus dismissed.
The Jail Appeal No.765 of 2005 filed by convicted-accused Md. Mahfuzur Rahman, son of Aiyub Ali was dismissed.
The Jail Appeal Nos.766 of 2005, 767 of 2005 and 92 of 2006 preferred by convicted-accused Mannan Shah, condemned-prisoner Md. Aiyub Ali chairman and condemned-prisoner Faruq Gazi were dismissed.

The rule in Criminal Miscellaneous Case Nos.12454 of 2008, 7729 of 2006 and 32472 of 2010 filed by the convicted-accused persons Md. Jainal Abedin Mokter @ Jainal Abedin, Faruq Gazi and Shawkat Ali Mollah were discharged.

Being aggrieved by this judgment and order of the High Court division the convicted-accused Shafiul Azam Dafader has preferred the above mentioned Criminal Appeal No.25 of 2012, the condemned-prisoner Md. Aiyub Ali chairman and convicted-accused Md. Mahfuzur Rahman, son of Aiyub Ali have preferred Criminal Appeal No.26 of 2013, the condemned-prisoner Faruq Gazi has preferred Criminal Appeal No.27 of 2012, the convicted-accused Showkat Ali Mollah has preferred Criminal Appeal No.30 of 2012, the convicted-accused Hashem has preferred Criminal Appeal No.31 of 2012, the convicted-accused Mannan Shah has preferred Criminal Appeal No.32 of 2012, the convicted-accused Jaynal Mukter @ Jaynul Abedin preferred Criminal Appeal No.33 of 2012, the convicted-accused A. Salam @ Ketu Salam @ Kota Salam has preferred Criminal Appeal No.35 of 2012. The condemned-prisoner Aiyub Ali has filed Jail Petition No.20 of 2012 also against his conviction and sentence.

At the time of hearing of appeals it has been reported that the accused-appellant Jaynal Mukter @ Jaynul Abedin has died in the meantime. So the Criminal Appeal No.33 of 2012 preferred by this accused Jaynal Mukter @ Jaynul Abedin stands abated.

All the other 7 criminal appeals and jail petition have been heard together and are being disposed of by this single judgment.

Mr. Abdul Motin Khashru, the learned Advocate has appeared before us for the accused-appellant Showkat Ali Mollah of Criminal Appeal No.30 of 2012, accused-appellant Mannan Shah of Criminal Appeal No.32 of 2012 and accused-appellant Hashem of Criminal Appeal No.31 of 2012. Mr. Mansural Haque Chowdhury, the learned Advocate has appeared for the condemned-prisoner-appellant Faruq Gazi of Criminal Appeal No.27 of 2012 and accused-appellant A. Salam @ Ketu Salam of Criminal Appeal No.35 of 2012. Mr. Md. Sarwar Ahmed, the learned Advocate has appeared for the condemned-prisoner-appellant Md. Aiyub Ali chairman and the accused-appellant Md. Mahfuzur Rahman @ Mahfuz S/O Aiyub Ali of Criminal Appeal No.26 of 2012. Mr. Mohammad Ali, the learned Advocate-on-Record has appeared for the accused-appellant Shafiul Azam Dafader of Criminal Appeal No.25 of 2012.  
 
Mr. Khandaker Diliruzzaman, the learned Deputy Attorney General has appeared for the State-respondent in all the criminal appeals.
We have heard the learned Advocates for the accused-appellants and also the learned Deputy Attorney General for the State-respondents at length.

Mr. Md. Sarwar Ahmed, the learned Advocate appearing for the accused-appellant Md. Aiyub Ali and Mahfooz s/o Aiyub Ali has made argument to the effect that the accused Aiyub Ali and his son accused Mahfooz have been entangled in this case falsely out of enmity and grudge, that in this case it has been sufficiently proved from the evidence adduced by the prosecution that there was long standing enmity in between this accused-appellant Aiyub Ali and his family members and the deceased Monwar Ali and his family members on different issues including political issue. The learned Advocate has argued that all the alleged eye witnesses to the alleged occurrence, who have deposed before the court as P.Ws.2 to 8 and also the informant, being close relatives and partymen of deceased Monwar Ali, have deposed before court implicating these accused-appellants falsely out of grudge. The learned Advocate has argued that the trial court and also the High Court Division did not consider this aspect at all and consequently they have committed wrong and injustice in finding these accused-appellants guilty relying on the evidence of these interested and partisan witnesses only. The learned Advocate has argued also that the evidence which these witnesses have given before the court are also contradictory on material points and that on this count also the evidence of these prosecution witnesses are not reliable at all. The learned Advocate for the accused-appellants has made argument to the effect also that in the FIR as many as 28 persons have been named as eye witnesses but out of these 28 eye witnesses only 4 witnesses, namely, P.Ws.2, 3, 4 and 7 have been examined by the prosecution before court but no explanation whatsoever, has been given from the side of the prosecution for withholding the other FIR named eye witnesses. The learned Advocate has argued that the withholding of so many FIR named eye witnesses by the prosecution also reasonably creates doubt about the prosecution case. The learned Advocate has pointed out also that there are material discrepancies in between the FIR and the evidence of the witnesses before court and has argued that these discrepancies between the FIR story and the evidence adduced before court very reasonably makes the prosecution case false. The learned Advocate has submitted that the evidence adduced before the court deviating from the FIR story should be taken into consideration with much caution as there remains scope for making subsequent embellishment of the prosecution case and has argued that in this present case the subsequent embellishment and departure from the FIR story has been overlooked by both the trial court and the appellate court causing failure of justice. The learned Advocate has made argument to the effect also that some of the own witnesses of the prosecution though have deposed before court to the effect that the men of Aiyub Ali attacked the deceased/victims but these witnesses did not say at all that the accused Aiyub Ali himself was present in the place of occurrence or took any part in that occurrence. The learned Advocate has contended that these evidence of the own witnesses of the prosecution rather proves that accused Aiyub Ali himself was not at all involved in the alleged occurrence, but he has been entangled in this case by the informant side out of enmity and grudge only. The learned Advocate has contended also that the evidence of these prosecution witnesses, namely, P.Ws.9, 10, 11 and 15 rather proves that the accused-appellant Aiyub Ali had no involvement in this alleged occurrence. Mr. Md. Sarwar Ahmed, the learned advocate for the accused-appellants has made argument to the effect also that though some of the prosecution witnesses have deposed to the effect that this accused Aiyub Ali dealt a chapati blow on the back side of the head of the deceased Monwar Ali, but this evidence is doubtful inasmuch as some other prosecution witnesses have deposed to the effect that accused Aiyub Ali had a gun in his hand. The learned Advocate has contended that these contradictory evidence of the own witnesses of the prosecution has made the charge against this accused-appellant doubtful and in the circumstances this accused-appellant is entitled to be acquitted from this charge. The learned Advocate for the accused-appellant Aiyub Ali and Mahfooz son of Aiyub Ali has argued also that the other charges brought against these accused-appellants for killing deceased Badsh and Hashem Kazi have not been proved at all. The learned Advocate has pointed out that though the prosecution case is that at the time of occurrence the accused persons killed Hashem Kazi also by firing shot, but this prosecution case has been proved false by the postmortem examination repot of dead body of Hashem which shows that there was no gun shot injury at all on the dead body of Hashem. The learned Advocate has argued that though these accused appellants have been convicted for killing deceased Badsha also but there is no evidence at all to prove that these accused-appellants took any part in killing Badsha.

Mr. Md. Sarwar Ahmed, the learned Advocate has made argument to the effect also that in this case the own evidence of the prosecution itself has rather proved that the deceaseds and victims of this case were miscreants and they came to the place of occurrence with fire arms like guns and pistol with an intention to commit crime and they also committed murder of Alauddin son of accused Ayesha and at this the local people, being agitated, assaulted them and consequently some of them died, but long 5 days after this occurrence the informant, being influenced by some enemies of the accused persons, lodged the FIR making a false story. The learned Advocate has argued that the evidence of the prosecution witnesses to the effect that the high officials of Administration and police asked the deceased and other victims by hand mike to surrender and to deposit their arms supports this case that the deceased and the victims actually came there to commit some crmies and they were assaulted and killed by the agitated mob. The learned Advocate has pointed out that in the inquest reports also of the dead bodies, the deceaseds were mentioned as miscreants. Mr. Md. Sarwar Ahmed has argued also that in this case the alleged eye witness P.W.2 Alhaj Sirajuddin Bepari was not examined by the investigating officer and the rest alleged eye witnesses were examined by the investigating officer after a long laps of time and in the circumstances the evidence of these alleged eye witnesses should be left out of consideration as per settled principle of law.
Mr. Md. Sarwar Ahmed, the learned Advocate has made argument to the effect also that according to the own case of the prosecution, Alauddin, son of accused Ayesha Begum, was killed inside the house of Srijon Bepari where deceased Monwar Ali and his companions were staying with arms, that this deceased Alauddin is the full brother of accused Nazir, Mizan, Nizam and Badsha and these accused-persons having seen the dead body of their brother, being highly shocked and gravely provocated, participated in the free fight arose between the parties and that these facts prove that the occurrence took place without any premeditation and it occured as a result of sudden grave provocation. The learned Advocate has contended that in the circums-tances the conviction under section 302 of the Penal Code may be altered to one under section 304, part-II of the Penal Code. The learned Advocate has made submissions to the effect also that the accused-appellant Aiyub Ali has been detaining in the condemned cell and has been suffering from mental agony of death for about 10 years and considering these fact as extenuating circumstances this court may now commute his sentence of death to imprisonment for life.

Mr. Abdul Motin Khashru, the learned Advocate appearing for the appellants Mannan Shah, Shawkat Ali and Hashem has made arguments to the effect that the charges framed against these 3 appellants have not been proved beyond all reasonable doubt, that the evidence which the prosecution has adduced before court to prove the charges against these accused-appellants could not prove at all these accused-appellants guilty of the said charges. The learned Advocate has argued that though the prosecution has examined some alleged eye witnesses before court but the evidence of these alleged witnesses, namely, P.Ws.2 to 8 are contradictory to each other and as such these evidence could not prove the charges against these accused-appellants at all. The learned Advocate has pointed out that according to the case of the prosecution as many as 15 persons dealt blows on victim Monwar Ali with sharp cutting weapons like ‘chan’, ‘dao’, axe and ‘chapati’ at a time but in the postmortem examination report of the dead body of victim Monwar Ali there is no incised wound on the body of the victim and that this fact also tells in favour of falsehood of the prosecution case. Mr. Abdul Motin Khashru has made submissiont to the effect also that admittedly dead body of Alauddin son of accused Ayesha and full brother of accused Nazir, Nizam, Mizan and Badsha was brought out of the house where victim Monwar Ali and his associates were staying with fire arms and that seeing the dead body of Alauddin his near and dear ones, being highly shocked and provocated, might have attacked the victims and in the circumstances this case comes within the ambit of section 304, part-II of the Penal Code and not under section 302 of the Penal Code. The learned Advocate has made argument to the effect also that the High Court Division found that the charges framed against some other convicted persons were not proved beyond reasonable doubt and, therefore, acquitted those accused persons, that the accused-appellants Mannan Shah, Shawkat Ali and Hashem also stand on the same footing with those accused-persons who have been acquitted by the appellate court and as such these accused persons also are entitled to get benefit of doubt and entitled to be acquitted.

Mr. Mansurul Haque Chowdhury, the learned Advocate appearing for the accused-appellant Faruq Gazi and A. Salam @ Ketu Salam @ Kota Salam has made argument to the effect that the charge framed against these 2 accused-appellants have not been proved beyond all reasonable doubt. The learned Advocate has pointed out that the allegations against these 2 accused- appellants is that they murdered Hashem and Badsha by gun shot, but the postmortem examination report of the dead bodies of Hashem and Badsha proved that there was at all no gun shot injury on those bodies. The learned Advocate has contended that this very fact make the allegations against these 2 accused-appellants false. Mr. Mansurul Haque Chowdhury has submitted also to the effect that the evidence of the alleged eye witnesses to the occrrence are contradictory and these evidence could not prove the charges framed against these 2 accused-appellants beyond all reasonable doubt. The learned Advocate has argued to the effect also that the own evidence of the prosecution has rather proved that the deceased and the victims went to the palce of occurrence with fire arms for commiting some crime and at that time the local people, being agitated, attacked them and ultimaely the agitated mob assaulted them causing death of some of them, but 5 days after that occurrence the informant, being ill advised by some inmical persons of the accused side, lodged the FIR making false allegations against the accused persons; that in this case it has not been proved by any cogent evidence that these appellants Faruq Gazi and A. Salam @ Ketu Salam took any part in the alleged occurrence and in the circumstances these 2 appellants are entilted to get benefit of doubt. The learned Advocate has argued also that though these 2 accused appellants have been convicted under sections 302/109 of the Penal Code, but there is no iota of evidence in this case to prove that these 2 accused-appellants in any way abetted the offence of murder.

Mr. Mohammad Ali, the learned Advocate-on-Record for the accused-appelant Shafiul Azam Dafader has made submissions similar to those made by the learned Advocates for other accused-appellants as stated above. The learned Advocate-on-Record also has made argument to the effect that the evidence adduced by the prosecution could not prove the charge against the accused-appellant Shafiul Azam Dafader inasmuch as the alleged eye-witnesses-whom the prosecution has examined in this case-are all interested and partisan witnesses and their evidence also are contradictory to each other.

Mr. Khondaker Diliruzzaman, the learned Deptuy Attorney General appearing on behalf of the State respondents in all the criminal appeals has advanced argument to the effect that it is a brutal murder case, that in this occurrence as many as 5 persons were murdered and 2 others were critically injured in broad day light in presence of thousands of people including high officials of Administration and police; that in this sensasional case the proseuction adduced sufficient evidence to prove the charges framed against the accused persons and the trial court and also the High Court Division examined, sifted  and considered these evidence minutely and propertly and found these accused-appellants guilty rightly. The learned Deput Attorney General has argued that in this case so many eye witnesses to the occurrence have been examined by the prosecution all of whom have deposed supporting the prosecution case and that there is no cogent ground for discarding the evidence of these eye witnesses to the occurence; that both the trial court and the High Court Divison, considering all aspects, have accepted the evidence of these witnesses as reliable and that from the side of the accused-appellants nothing materal could be shown/detected to make these findings and decision of the trial court and the High Court Division not sustainable. Referring to the relevant portion of the evidence of the prosecution witnesses the learned Deputy Attorney General has argued that these evidence of the prosecution witnesses have sufficiently proved the charges brought against these accused-appellants and as scuh they cannot get acquittal as prayed for in these appeals. Refuting the argument advanced by the learned Advocates for the accused-appellants the learned Deputy Attorney General has made submissions to the effect also that in this case the delay of 5 days in lodging FIR is not fatal at all inasmuch as there were cogent reasons for not being able to lodge the FIR earlier and that the High Court Division has dealt with this point raised from the side of the accused persons and concluded correctly that the delay in lodging the FIR in the instant case, did not make the prosecution case doubtful at all. The learned Deputy Attorney General has argued also that in this case as many as 8 eye witnesses have been examined by the prosecution all of whom have deposed supporting the prosecution case and besides, some other witnesses also have deposed in this case lending support to the prosecution case and that in the circumstances the non-examination of some other FIR named or charge sheeted witnesses does not make the prosecution case weak or doubtful at all. The learned Deputy Attorney General has made argument to the effect also that the relationship of the prosecution witnesses wtih the informant side does not make their evidence unbelievable if their evidence is otherwise trustworthy and that in this case the evidence of these prosecution witnesses are trustworthy and a such cannot be disbelieved and discarded only for the reason that they are related to the informant side. The learned Deputy Attorny General has argued to the effect also that in this case it has been proved sufficiently that there was long standing enmity in between the accused Aiyub Ali-the present chairman of the Bagra Union and the deceased Monwar Ali-the former chairman of the same Union and in the circumstances the evidence of the prosecution witnesses to the effect that out of that enmity and grudge the accused persons, at the behest of accused Aiyub Ali-chairman, committed this occurrence-cannot be disbelieved.  

For considering the arguments advanced by the learned Advocates for the accused-appellants and the learned Deputy Attorney General for the State-respondents we require to narrate the relevant portion of the evidence of the prosecution witnesses here. It has already been mentioned above that in this case the prosecution has examined 23 witnesses before court in order to prove its case.

The P.W.1 is the informant Meherunnessa. Admittedly, this witness is not an eye witness to the occurrence. Hearing about the occurrence from others she lodged the F.I.R. So we do not find the evidence of this P.W.1 important to be discussed in this judgment.

The P.W.2-Alhaj Sirajuddin Bepari @ Srijan Bepri is an eye witness to the occurrence. This witness has deposed to the effect that on the date of occurrence,  on 07.07.2001 at 8.00 A.M. to 9.00 A.M. he was sitting in his house. At that time Monwar Ali, Anwar Ali, Badsha, Hashem and Salauddin came to him and requested him to save them. On query, he learnt that the accused Aiyub Ali was chasing them to kill. Salauddin forthwith closed the door. He (the witness) looked through the window and saw that the accused Aiyub Ali himself and his associates encircled the north and western side of his house and they were pelting stones targeting his house. Subsequently, the accused Kuti Chand, Nizam, Nazim, Sabuj Ali, Hashem and Alauddin broke open the door and entered into his house and made attempt to drag away Badsha. Hashem, who also took shelter in his house was trying to drag Badsha into the house. The accused Faruq Gazi then shot Hashem with a gun and as a result, Hashem fell down on the bags containing paddy. That the other accused persons from out side the house fired many shots. The accused Mannan Shah was firing with a cut rifle. The accused Ketu Salam was firing with a gun targeting his house. He saw that the deceased Badsha was bleeding. Monwar Ali told that Badsha was injured. They took Badsha to the 1st floor. Subsequently, he saw Alauddin to fall down. After taking Badsha to the 1st floor the deceased Monwar Ali closed the door of the stair case at 11.30 A.M. to 12 O’clock noon. Subsequently, he (P.W.2) went out of his house and went to the house of his cousin and saw that firing was going on. That Monwar Ali and others also were firing. He heard that the accused Aiyub Ali also opened fire. Thereafter, he heard that the deceased Monwar Ali was being asked to surrender. In the evening police brought down Monwar Ali, Badsha, Anwar Ali and Salauddin under handcuff. When they were brought in front of a bamboo clump the accused Aiyub Ali dealt sharp cutting weapon blow under his head and asked his associates why they still kept alive those persons. He asked his associates to deal sharp cutting weapon blows to Monwar Ali and others. Subsequently, the other accused persons, namely, Kuti Chand, Mizan, Nizam dealt sharp cutting blows to Monwar Ali and also beat him up. The accused Kuti Chan had a wooden ‘rowa‘, ‘(dasa)’ in his hand, the accused Nazir had an iron pipe of tube well. The accused Badsha had a ‘dao’ in his hand. The accused Mizan had a ‘dao’ in his right hand and a rod in his left hand. The accused Sabuj Ali had a rod and a ‘dao’ in his hand, accused Salam Sikder had a ‘Ram dao’, the accused Hashem had big ‘chhan’, accused Ripon had a ’chinese axe’, accused Awal Gazi had a ‘dao’ in his hand, accused Mobile Mannan had a sharp cutting ’dao’ in his hand, accused Mahfuz had a big chinese axe, accused Babul had a big ‘dao’, accused Shafiul Azam Dafader had a big ‘dao’ in his hand, accused Seraj had a big ‘chhan’, and accused Javed had a ‘chapati’ in his hand. Accused Mannan Shah opened fire with a rifle. Accused Hashem dealt blow on the chest of Monwar Ali with a big wooden ‘dasa’. The other accused persons dealt ‘dao’ blows to Monwar Ali, Anwar Ali and Badsha and also dealt kick blows. Accused Ayesha Begum dealt blows on the head of the deceased Monwar Ali with a brick. Monwar Ali fell down to the ground. The accused persons plundered away materials from his house and set his house on fire. On the following day he filed a case against the accused persons. This witness has identified the accused persons Aiyub Ali, Ketu Salam, Babul, Shafiul Azam Dafader, Mannan Shah, Ayesha Begum, Mahfuz and Titon Khan on dock. This P.W.2 was cross-examined at length on behalf of the accused persons, but nothing material came out from his cross-examination to make his evidence false. This witness has denied the defence suggestion that accused Aiyub Ali could not walk without help of stick.

The P.W.3 Md. Salauddin-one of the injured witnesses has deposed to the effect that the occurrence took place on 07.07.2001. On that day, at about 8.00 A.M. after breakfast, he along with deceased Monwar Ali Chairman, Anwar Ali and Badsha came out of their house and started for Bagra Bazar. When they reached near the house of Tota Sikder they heard the sound of the utterance ‘catch them’. They looked back and saw the accused Aiyub Ali, Nizam, Mizan, Kuti Chand, Sabuj Ali, Nazim, Badsha, Mannan Shah, Alauddin, Ketu Salam, Mobile Mannan, Mintoo, Shawkat Ali, Mahfuz, Hashem, Shafiullah, Salam Skider and others comming running towards them. Finding no other way they entered into the house of Srijan Bepari and he locked the latch of the door. Breaking the latch, the accused Alauddin, Hashem, Nizam, Kuti Chand, Nazir entered into the house and made attempt to drag away Badsha from the house. Deceased Hashem obstructed the accused persons and tried to save Badsha. Accused Faruq Gazi shot the deceased hashem and as a result, the deceased Hashem fell down on the bags of paddy. Thereafter the accused persons made attempt to drag out Badsha. At that moment the accused Mannan Shah and Ketu Salam opened fire with gun and rifle through the window at which Badsha raised alarm and he then saw that Badsha was bleeding. They then took Badsha to the 1st floor and closed the door. Thereafter, the accused persons fired indiscriminately. Monwar Ali and Anwar Ali opened blank fire. This situation continued till 12 O’clock noon. Deceased Monwar Ali informed his relatives through mobile phone to send massage to the police station for rescuing them. Thereafter some police came to the place of occurrence but could not control the accused persons. The police asked them to surrender assuring them that they would help them and escort them safely to their houses. That the accused persons at that time also fired indiscriminately and also hurled bricks and stones. Thereafter police along with officers from different police station came to the place of occurrence and at the assurance of police they handed over their licensed arms to police at 4.30. P.M. Subsequently they came down from the 1st floor and the police then handcuffed them. That police handcuffed him and deceased Monwar Ali together and Badsha and Anwar Ali together. In the meantime Hashem died. The police took them near the bamboo clump under handcuff. At that time accused Aiyub Ali saying ‘finish them’ dealt chapati blow at the back side of the head of deceased Monwar Ali. Accused Kuti chand dealt ‘wooden dasa’ blow on the head of Monwar Ali and as a result Monwar Ali fell down to the ground. Accused Nazir kept dealing tube well iron pipe blows to the deceased Monwar Ali. The accused Mizan dealt blow on the head and on the chest of Monwar Ali chairman with a ‘Monai’ of husking pedal (the part of husking pedal that goes into the hole). Accused Javed dealt stick blows to Monwar Ali Chairman. Accused Mahfuz kept dealing chines axe blows to Monwar Ali. Accused Ripon dealt chinse axe blow to Monwar Ali. Accused Hashem kept dealing ‘chhan‘ blow to Monwar Ali. Accused Sabuj Ali dealt ‘chhan‘ blow. Accused Mobile Mannan dealt chhan blow. Accused Shawkat Ali Mollah dealt sharp cutting weapon blow. Accused Shafiullah Dafader dealt chhan blow. That the accused persons kept dealing blows to the deceased Monwar Ali chairman indiscriminately. Accused Ayesha Khatun dealt brick blow on the head of Monwar Ali Chairman. Said accused persons also dealt him sharp cutting weapons and stick blows. Accused Mannan Shah, Faruq Gazi and others jumped on Anwar Ali and Badsha.That he was lying pretending to be dead. At about dusk police took him to Sreenagar Police Station in a van where he regained sense completely. At 12 O’clock at night he along with Anwar Ali was taken to Dhaka Medical Collage Hospital. Subsequently he heard that chairman Monwar Ali, Badsha and Hashem had died. This P.W.3 has deposed to the effect also that there was enmity in betweent the accused persons and his maternal uncle Monwar Ali from before. This witness has identified the accused persons present on dock. This P.W.3 was cross-examined at length on behalf of the accused persons, but nothing material came out from his cross-examination to make his evidence false or unbelievable.    

The P.W.4 Md. Anwar Ali-the other injured witness has depsoed to the effect that on 07.07.2001 at about 8.00 A.M. he along with the deceased Monwar Ali, his cousin Badsha and nephwe Salauddin started for Bagra Bazar with their licensed gun. On the way they took Hashem with them. When they reached near the house of Tota Sikder they heard the sound ”catch and shoot”. Looking back they saw that the accused Aiyub Ali, Mahfuz, Kuti Chand, Sabuz Ali, Nizam, Nazir, Mizan, Alauddin, Mannam Shah, Mobile Mannan, Faruk Gazi, Ketu Salam, Hashem, Javed, Joynal, Mokter, Shawkat Ali Molla, Mithu and Ripon were chasing them. Having found no other way they entered into the house of Srijan Bepari. The accused persons were 40/50 in number. They heard sound of shooting and pelting stones out side. They also heard somebody telling to bring them out by breaking latch of the door and immediately thereafter the accused Alauddin, Hashem, Nizam, Nazir, Kuti Chand, Sabuj Ali and Mahfuz entered into the house by breaking the door and apprehended his cousin Badsha and wanted to take Badsha out of house and they tried to keep Badsha in side. In that situation accused Faruq Gazi opened fire which hit Hashem and Hashem fell down upon the bags of paddy. The accused Mannan Shah opened fire with a cut-rifle. Accused Ketu Salam fired with a gun in his hand which hit Badsha and blood came out from his body. He along with Salauddin and Monwar Ali then took Badsha to the 1st floor of the house of Srijan Bepari and closed the door of the room. At that time Hashem died. That Monwar Ali then fired two blank gun shots to frighten the terrorist, but the accused persons kept firing. Monwar Ali then informed his relatives and police station by mobile phone and long after, police stared coming. The police asked Monwar Ali to deposit their guns and rifles saying that they would escort them to their residence safely. Ultimately Monwar Ali deposited two guns, one pistol and cartridges to the police. They dropped the arms and ammunitions down from the 1st floor. Thereafter, the accused persons set the house on fire. The police told them to come down and soon after they came down, 5/6 police personnel then handcuffed them. The police personnel handcuffed him and Badsha together and Monwar Ali and Salauddin together. Thereafter, the police personnel took them near a bamboo clump. At that time accused Aiyub Ali gave command to kill them and he himself dealt chapati blow on the back side of the head of Monwar Ali. Accused Kuti Chand dealt wooden ‘dasa’ blow on the head of Monwar Ali and as a result Monwar Ali fell down to the ground. Accused Nazir kept dealing tube well iron pipe blow on the head and the chest of Monwar Ali. Accused Nizam sat on the chest of Monwar Ali and kept dealing ‘Monai’ blow on the chest and throat of Monwar Ali. Accused Ripon kept dealing ‘chinese axe’ blows. Accused Hashem kept dealing ‘chhan‘ blows to Monwar Ali. Accused Javed dealt stick blows to Monwar Ali. Accused Mannan Shah kept dealing ‘chhan‘ blows to Monwar Ali. Accused Faruq Gazi kept dealing ‘chhan‘ blows to Monwar Ali. Accused Sabuj Ali kept dealing ‘dao‘ blows to Monwar Ali. Accused Jainal Moktar kept dealing chhan blows to Monwar Ali. Accused Mobile Mannan kept dealing ‘chhan‘ blows. Accused Shafiul Azam dealt chhan blows to Monwar Ali. Accused Mahfuz dealt axe blow to the deceased Monwar Ali. Accused Ayesha Khatoon deal brick blows on the head of Monwar Ali. Accused Salam Sikder kept dealing ‘chhan‘ blows to Monwar Ali. The other accused persons kept them encircling. The said accused persons dealt blows to Salauddin. Accused Aiyub Ali Chairman then gave order to kill the main pioneers saying not to kill Salauddin. Then accused Faruq Gazi and Mannan Shah jumped upon Badsha and dealt him sharp cutting weapon blows. The other accused persons also dealt sharp cutting weapon blows to Badsha. The said accused persons dealt blows on his head and whole body. That keeping his hand on a brick the accused Kuti Chand damaged three fingers of his hands by dealing brick blows. By pressing his nose the accused Hashem tested as to whether he was alive or not. He then lost his sense and regained his sense in Dhaka Medical College Hospital. That Monwar Ali, Badsha and Hashem died and he along with Salauddin survived. From the cross-examination of this witness also nothing material came out to make the evidence of this witness false.

The P.W.5 Saidur Rahman Pintoo deposed to the effect that on 07.07.2001 at about 8.00/8.30 A.M. he was having his breakfast in his house. He heard that turmoil was taking place in the house of Tota Sikder. Having received the news he went to the house of Tota Sikder and saw that accused Aiyub Ali along with 30/40 persons drew out the eyes of a boy and were beating another boy. At about 9.00/9.30 A.M. a boy gave information to Aiyub Ali Chairman to the effect that the deceased Monwar Ali Chairman along with his brothers were going along the road. Accused Aiyub Ali Chairman then ordered those 30/40 persons to catch them. That 5/7 persons amongst the said 30/40 persons had arms in their hands. Accused Aiyub Ali chairman had a gun in his hand. Accused Aiyub Ali Chairman along with the aforesaid persons chased Monwar Ali chairman and his brothers and they (witness and others) followed them from behind. They saw that the said persons encircled the house of Srijan Bapari. He heard that Monwar Ali Chairman and others took shelter in the house of Sirajuddin Bepari (Srijan Bepari). He saw arms, ‘chapati’, stick and ‘chhan’ etc. in the hands of the accused Mannan Shah, Faruq and Salam. The accused-persons Mizan, Ketu Chand, Badsha, Ripon, Alauddin and Sabuj Ali also were with them. The said persons made attempt to enter into the house by breaking the door. At one stage the accused Kuddus, Alauddin, Nazir, Ketu Chand and Sabuj Ali entered into the house by breaking the door. He heard the sound of screaming from inside the house. The accused Ripon, Mannan Shah, Faruq and Salam opened fire through the window of the house from out side at about 11.00/11.30 A. M. At that time fire was opened from inside that house also. Stones were pelted from out side the house. At about 12.30-1.00 P.M. police came. Sensing the presence of police those who had illegal arms escaped. Sometimes after that more police came. About 150/175 police personnel came to the place of occurrence. At about 4.00-4.30 P.M. addressing Monwar Ali police announced that there were sufficient numbers of police personnel to give security to him and asked him to give his arms and ammunitions to police. At that time he saw the accused Aiyub Ali Chairman to make discussion with some police officers. After announcement was made for more than once, two guns, other arms like pistol and cartridges were dropped from the first floor of the house. One S.I. of police with 5/6 constable then  entered into the first floor of Serajuddin Bepari and  within 5/7 minutes police handcuffed Monwar Ali, his nephew Salauddin, Anwar Ali and Badsha and brought them out of the house. Police took Monwar Ali, Anwar Ali, Salauddin and Badsha to the bamboo clump situated to the northern side of the house of Sirajuddin Bepari where Aiyub Ali Chairman along with 15/20 parsons were standing. He (witness) was standing at a distance of 4/5 yards from that place. That Aiyub Ali gave order to those 15/20 persons to kill Monwar Ali and others.  Aiyub Ali Chairman himself then dealt chapati blow on the back of the head of Monwar Ali. The accused Ketu Chand dealt wooden ‘dasa’ blow on the head of Monwar Ali Chairman. Accused Nazir dealt steel tube well pipe blow on the head of Monwar Ali. As a result Monwar Ali fell down to the ground. Thereafter, the accused Nazir dealt indiscriminate blows on the different parts of the body of Monwar Ali. Accused Nizam dealt blows to Monwar Ali Chairman and Salauddin with the frontal part of a husking pedal. Then accused Aiyub Ali Chairman gave commend to kill Badsha and Anwar Ali leaving Salauddin. Accused Mahfuz and Ripon had ‘chinese axe’ in their hands. They dealt chinese axe blows to Monwar Ali and Badsha. Accused Shafiul Azam dealt ‘chhan’ blows to Monwar Ali and Badsha. Accused Salam Sikder and his son Mahfuz Sikder dealt ‘chhan’ and stick blows respectively to Monwar Ali. Accused Javed dealt stick blows to Anwar Ali and Badsha. Accused Hashem, Ruble, Muluk dealt ‘chhan’ and stick blows to Monwar Ali. Accused Ayesha Khatoon dealt brick blow on the mouth and the body of Monwar Ali. Accused Mobile Mannan dealt sharp cutting weapon blows to Badsha. Accused Jainal Talukder, Alek and Shawkat Ali set the house of Seraj Bepari on fire. The death of Monwar Ali was confirmed. That seeing the aforesaid brutal activities of the accused persons the police constables present at the place of occurrence revolted and opened fire. As a result, an old person Ismail Gazi by name was hit on his head and died. Two dead bodies were brought out of house of Sirajuddin Bepari. At that time they knew that Monwar Ali, Salauddin, Badsha and Anwar Ali had died. Police took 7 dead bodies to Sreenagar Police Station by a van. Subsequently, at night he (witness) came to know that Anwar Ali and Salauddin did not die and that rest had died. This witness has further deposed to the effect that with his own eyes he saw said barbaric and ruthless killing, that this type of killing should be stopped. This witness identified the accused persons present on dock. This witness was cross-examined at length on behalf of the accused persons but nothing material came out from his cross-examination to make his evidence unbelieveable.

The P.W.6 Md. Shahabuddin Khan is the Headmaster of Bagra Swarup Chandra Pilot High School. He was also the chairman of Bagra Union for two terms from 1984 to 1991. This witness has deposed to the effect that since after the liberation war innumerable occurrences of murder took place under the leadership of the accused Aiyub Ali. That the instant occurrence of murder was the continuation of the said incidents. That on 07.07.2001, Saturday, at 8.30 A.M. he started for Bagra Bazar and school from his house. On the way he came across the accused Aiyub Ali and his companion 50/60 armed persons near the house of Tota Sikder. He saw 5/6 of them had fire arms in their hands and the rest had sharp cutting weapons. He saw that eyes of Kalam of Chhatrabhog village was extracted and that Dulal was being beaten. At that time he saw Kader Sikder the son of Tota Sikder to be beaten. At one stage of this occurrence he saw ex-chairman Monwar Ali of Bagra Union, Anwar Ali, Hashem Bepari, Salauddin and Badsha going to the market along the road. One of the accused persons then informed the accused Aiyub Ali that Monwar Ali, Anwar Ali and others were going through that road. Then the accused Aiyub Ali gave command to catch them. Forthwith, the associates of the accused Aiyub Ali chased those persons. Monwar Ali and Anwar Ali took shelter in the house of Seraj Bepri running. Forthwith, the accused Aiyub Ali, Mahfuz, Mintoo, Sabuj Ali, Kuti Chand, Alauddin, Nazim, Mizan, Badsha, Ayesha Begum, Shafiul Azam, Babul Munshi, Syed Chowdhury, Salam @ Ketu Salam, Faruq Gazi, Mobile Mannan Salam Sikder, Mahfuz, Alam Bepari, Shamsuddin Bepari, Mannan Shah, Titon Khan, Rob, Ratan Thakur, Rafiq Sikder, Nannoo Sikder and many others sorrounded the house of Seraj Bepari running and kept pelting stones and shooting. At one stage of the occurrence the accused Aiyub Ali gave order to bring them out breaking the door. Accused Alauddin, Nizam, Mizan, Badsha, Sabuj Ali, Kuti Chand then entered into that house breaking the door and he (witness) then heard sound of screaming inside the house. Aiyub Ali then gave command to finish them by opening fire. Then accused Mannan Shah opened fire through the window with a cut riffle. Accused Ketu Salam and Faruq Gazi opened fire with guns. During the occureence at 1.00 P.M. police came to the place of occurrence. After coming to the place of occurrence, instead of resisting the accused persons, police personnel kept making consultation with the accused Aiyub Ali. Then from inside the house also fire was opened. Subsequently, many police came to the place of occurrence from different places. Till 4.00/4.30 P.M. police came to the place of occurrence. The associates of the accused Aiyub Ali, who had fire arms in their hands fled away and came back once again to the place of occurrence with sharp cutting weapons. At about 4.00/4.30 P.M. the high officials of police came to the place of occurrence and asked Monwar Ali with a mike to come down assuring them that accused Aiyub Ali would do nothing to them and that they would reach them to their house safely. After these words were uttered 2/3 times, Monwar Ali dropped two rifles, one pistol and one packet of bullet. Monwar Ali, Anwar Ali, Badsha and Salauddin came down. Forthwith, 5/6 police personnel entered into the house. Police handcuffed Anwar Ali and Badsha together and Monwar Ali and Salauddin together and brought them out. Soon after that Shawkat Ali, Alek Member and some others set the house of Siraj Bepari on fire. Thereafter while Monwar Ali and others were brought near the bamboo clump of Siraj Bepari, accused Aiyub Ali gave order to snatch them away from police and to kill them and he (accused Aiyub Ali) forthwith dealt ‘chapati‘ blow on the back side of the head of Monwar Ali. Accused Kuti Chand dealt wooden ‘dasa’ blow on the head and on the chest of Monwar Ali. Accused Nazir dealt blow with iron pipe of tube well on the head, chest and mouth of Monwar Ali. As a result Monwar Ali fell down to the ground. Accused Nizam kept dealing blows on the chest and on the head of Monwar Ali with a ‘Monai’ of husking pedal. Accused Shafiul Azam dealt indiscriminate blows to Monwar Ali. Accused Mahfuz and Ripon kept dealing ‘chinese axe’ blows to Monwar Ali. That these accused persons assaulted Salauddin also. Accused Aiyub Ali gave command to kill Anwar Ali and Badsha first and to leave Salauddin. Thereafter the accused persons jumped upon Anwar Ali and Badsha and kept assaulting them and dealing sharp cutting weapon blows on them. That the police did not resist the accused persons. By dealing sharp cutting weapon blows the accused persons ensured the death of Monwar Ali, Anwar Ali, Salauddin and Badsha. At that time some members of the police became excited and objecting the act of the accused persons opened fire and as a result, a passerby Ismail Gazi by name died at the cross fire. Subsequently police brought out the dead bodies of Alauddin and Hashem Bepari from the house of Seraj Bepari. Police took away 7 dead bodies by a van. At night he got information to the effect that Salauddin and Anwar Ali had survived. This witness identified the accused persons present on dock. From the cross-examination of this witness also nothing material came out to make any doubt about the truth of his evidence.

The P.W.7 Abul Kalam Azad (Kalam Morol) has deposed to the effect that the occurrence took place on 07.07.2001. On that day he woke up at about 8.30 A.M. and heard hue and cry in the house of Tota Sikder which was situated near his house. He went to that house and saw that accused Aiyub Ali chairman was standing there with a gun in his hand along with 30/40 other persons. Most of those persons were known to him. Some of them had sharp cutting weapons in their hands and some had fire arms. Aiyub Ali along with 30/40 persons were beating up the son of Tota Sikder. They extracted the eyes of a person. Sometimes after that Monwar Ali Chairman was going to the market. He was accompanied by Anwar Ali, Salauddin, Badsha and others. They were going to the Bagra Bazar. Aiyub Ali chairman gave order to catch them. Monwar Ali and others then took shelter in the house of Siraj Bepari. The companions of the accused Aiyub Ali chairman surrounded that house and kept pelting stones and firing. The accused Nizam, Mizan, Kuti Chand, Alauddin, Nazir, Sabuz Ali, Mahfuz, Salam Sikder, Shafiul Azam, Babul, Kuddus and many others kept pelting stones and firing. Sometimes after that the accused Aiyub Ali Chairman gave command to bring out Monwar Ali chairman from the house breaking the door. Thereafter accused Alauddin, Kuti Chand, Sabuj Ali, Mahfuz, Majibar and others entered into the house breaking the door. He (witness) then heard the sound of screaming from inside the house. Accused Salam, Mannan Shah and others opened fire through the window of that house. Sometimes after that when police came to the place of occurrence those who had arms and were opening fire, went into the house of Siraj Bepari keeping their arms elsewhere. In the meantime many police personnel came to the place of occurrence. At about 4.00/4.30 P.M. high officials of police asked Monwar Ali with a hand mike to deposit the arms assuring them that they would reach them safely to their house. Sometimes after that Monwar Ali chairman dropped two guns, a pistol and a packet of cartridages from the first floor of the house of Siraj Bepari. Thereafter, 8/10 police personnel entered into the house and handcuffed Monwar Ali and Salauddin together and Anwar Ali and Badsha together and brought them out of the house of Siraj Bepari and took them to the bamboo clump situated to the north of the house of Siraj Bepari. Then at the command of the accused Aiyub Ali the house of Siraj Bepri was set on fire. Accused Aiyub Ali chairman then asked why they did not as yet finish them and saying that the accused Aiyub Ali dealt ‘chapati‘ blow on the back of the head of the deceased Monwar Ali. Then accused Nazir, Nizam, Mizan, Kuti Chand, Sabuj Ali, Mahfuz, Salam Sikder, Babul, Shafiul Alam and Kuddus dealt sharp cutting weapon blows to the deceased Monwar Ali, Anwar Ali, Badsha and Salauddin. At the last moment the accused Ayesha Begum dealt brick blows on the head of Monwar Ali chairman. At that time police opened fire. The present terrorists also opened fire. At one stage of said firing Ismail Gazi, who was standing beside the field, was hit by bullet and he died. Police brought out two dead bodies from the house of Srijan Bepari. Police took away 7 dead bodies including those of Monwar Ali, Salauddin, Anwar Ali, Badsha, Ismail Gazi by a transport to the police station. On the following morning he heard that Anwar Ali and Salauddin survived. This witness also identified the accused persons present on dock. From the cross-examination of this P.W.7 also nothing material came out to make his evidence unbelievable.

The P.W.8 Md. Shahin Bhuiyan has deposed to the effect that he had a workshop at Bagra Bazar. The occurrence took place on 07.07.2001. On that day at about 8.30 A.M. he started for Bagra Bazar from his house. After he reached near the house of Tota sikder he saw 50/60 persons. He saw fire arms in the hand of the accused Aiyub Ali and sharp cutting weapons in the hands of 5/6 other persons accompanying him. He saw that the eyes of a person were extracted and other 2 persons including one Kader Sikder were being assaulted. Sometimes after that he saw the deceased Monwar Ali, Badsha, Hashem Bepari, Anwar Ali and Salauddin and others to go towards the market. Somebody was telling the accused Aiyub Ali chairman that Monwar Ali chairman, Badsha and others were going to the market. Then the accused Aiyub Ali gave order to catch them. Deceased Monwar Ali, Badsha and others then went to the house of Siraj Bepari running. Accused Aiyub Ali and others were chasing them. Accused Aiyub Ali and others encircled the house of Siraj Bepari and kept pelting stones and firing into the house of Seraj Bepari. Accused Mizanoor, Alauddin, Kuti Chand, Nazir, Nizam, Badsha, Hashem and Masud surrounded the house of Srijan Bepari. Accused Piyar Ali and Jashim and others also surrounded the house of Siraj Bepari. Accused Aiyub Ali gave command to bring out Monwar Ali and others by breaking the door. Then the accused Alauddin, Nizam, Ripon, Kuti Chand, Sabuj Ali, Masud, Piyar Ali, Jashim and others entered into the house breaking the door. Scuffle took place between the deceased Monwar Ali and others and the said accused persons. Subsequently the accused persons opened fire into the house through the window. At one stage of firing he heard sound of crying from inside the house. Monwar Ali, Badsha and others thereafter went to the first floor of the house of Siraj Bepari. The associates of Aiyub Ali chairman fired into the house from out side. From inside the house Monwar Ali chairman and others also opened fire. At about 12.30-1.00 P.M. police came to the place of occurrence. He saw the accused Aiyub Ali to talk with the police personnel. During the occurrence more police personnel came and assembled at the place of occurrence. At about 4.30 P.M. a police officer asked Monwar Ali and others with a hand mike to come down and to deposit their arms assuring them that they would reach them safely to their house. The associates of Aiyub Ali chairman and the police personnel kept surrounding the house of Siraj Bepari. The deceased Monwar Ali dropped down two guns, one pistol and some cartridges from the first floor. 7/8 police personnel then entered into the house and brought Monwar Ali and others down. After entering into the house, the police personnel handcuffed Monwar Ali and Salauddin together and Anwar Ali and Badsha together and brought them near the bamboo clump. Soon after Monwar Ali and others were handcuffed and brought out of the house, the accused Piyar Ali, Jashim, Shawkat Ali Molla, Momin, Alek and others set the house of Srijan Bepari on fire. Thereafter, the accused Aiyub Ali gave command to kill Monwar Ali and others by snatching them away from police and saying this, the accused Aiyub Ali dealt chapati blow on the back side of the head of the deceased Monwar Ali. Accused Kuti Chand kept dealing indiscriminate blows to Monwar Ali on his head and chest with a wooden ‘dasa’. The accused Nazir dealt iron pipe of tube well blow on the head and on the chest of Monwar Ali. As a result, Monwar Ali fell down to the ground. Then the accused Nizam dealt blows on the head and on the chest of the deceased Monwar Ali with a ‘Monai’ of husking pedal. Accused Mahfuz and Ripon kept dealing ‘chinese axe’ blows to Monwar Ali. Accused Sabuj Ali kept dealing ‘dao’ blows to Monwar Ali. Accused Ayesha Begum dealt brick blows on the head and on the chest of Monwar Ali. Accused Shafiul Azam and Syed Chowkider dealt ‘chheni’ blows to Monwar Ali. Said accused persons kept assaulting Salauddin also. Accused Aiyub Ali then gave command to finish Badsha first. Then accused Mobile Mannan jumped upon Badsha and kept dealing indiscriminate sharp cutting weapon blows to him. At one stage of this occurrence, the accused persons dealt blows to Anwar Ali also. Being infuriated at the sight of the occurrence, police personnel opened fire targeting the companions of the accused Aiyub Ali. At that time a person, namely, Ismail Gazi died. Subsequently, police took away 7 dead bodies by a police van to Sreenagar Police Station. Subsequently he heard that 5 persons had died and that Salauddin and Anwar Ali had survived. This witness also identified the accused present on dock. This P.W.8 also has been cross-examined on behalf of the accused persons but nothing could be brought out by cross-examining him to make his evidence false or unbelievable.

The P.W.9 Md. Korban Ali is a police constable. At the time of occurrence he was attached to Sreenagar police Station. The material part of evidence of this witness is that on the date of occurrence he along with other constables under the leadership of A.S.I. Rafiq went to the place of occurrence. At that time he saw the ex-chairman Monwar Ali with his other companions to stay in the 1st floor of a house which was besieged by the people from all sides and he came to know that the people who besieged that house were the associates to Accused Aiyub Ali. That the associates of accused Aiyub Ali kept throwing stones targeting that house. That the high officials of police asked Monwar Ali chairman and his associates to come down and surrender saying that they would give them shelter and then Monwar Ali dropped two guns, one revolver and some cartridges and subsequently they came out of that house and the police handcuffed them. At that time the associates of Aiyub Ali set the first floor of that house on fire. That they took Monwar Ali Chairman and others near the bamboo clump and at that time the associates of Aiyub Ali attacked them and dealt sharp cutting weapon blows to Monwar Ali chairman and four others. At that time the officer-in-charge of Sreenagar Police Station got injured. Monwar Ali chairman and his four other associates fell down on the ground in bleeding condition. At that time another person also died having received gun shot. They took 7 dead bodies to Sreenagar Upazilla Hospital where the doctors declared that two of them did not die.

The P.W.10 Md. Amir Morol is another police constable who also was attached to Sreenagar Police Station at the time of occurrence. This witness also has deposed to the effect that he along with S.I. Iqbal Bahar Chowdhury went to the plaice of occurrence and saw there many people around the house of Nikari. That on asking of S.I. Iqbal Bahar Chowdhury those people told that 4/5 terrorist took shelter in the first floor of Nikari Bari. That S.I. Iqbal Bahar Chowdhury told that two persons had died inside the house and the dead bodies were lying there. That S.I. Iqbal Bahar Chowdhury informed the S.P. of the occurrence through wireless. Then S.P., D.C., T.N.O. and O.C. went to the place of occurrence. The police officer asked the people staying in the first floor of the house to surrender and then those people dropped their arms. At that time the associates of the accused Aiyub Ali set the house on fire. The people staying in the first floor of that house came down and the S.I. and constable handcuffed them. Soon after they reached the bamboo clump the associates of Aiyub Ali assaulted them and opened fire. As a result, officer-in-charge, Sreenagar Police Station and constable Lal Mia got injured. The people of the accused Aiyub Ali came and snatched away Monwar Ali, Anwar Ali and Badsha and killed them. He (witness) took the injured officer-in-charge and the constable to the hospital.

The P.W. 11 Lal Mia, another police constable of Sreenagar Police Station has deposed to the effect that receiving the information of the occurrence he went to the place of occurrence by a microbus with officer-in-charge of Sreenagar Police Station. That at that time S.I. Iqbal Bahar informed the officer-in-charge that in the ‘Nikari Bari‘ Monwar Ali chairman and his some companions were staying and the associates of the accused Aiyub Ali chairman kept the house under siege. With the wireless of S.I. Iqbal the officer-in-charge sought help of armed forces. Long after that, police force came to the place of occurrence from Munshiganj police line. Subsequently, the high officials of police came to the place of occurrence. The police officer, with a hand mike, asked the people taking shelter at ‘Nikari Bari‘ to come down and to hand over their arms. Those people then dropped their arms down. In the meantime the house in which they were staying was set on fire. The high officials went into the hosue and brought those people under handcuff. At that time 100/150 people came to the place of occurrence and one of them gave command to the others to kill the officer-in-charge. They assaulted the officer-in-charge. The people taking shelter in the house were taken near the bamboo clump under handcuff. To protect the officer-in-charge he went there. At that time he was hit on the back side of his right leg with a bamboo stick. That the name of the person who dealt stick blow to him was some Shah. Receiving stick blow he fell down to the ground and he opened blank fire. That the associates of the accused Aiyub Ali kept assaulting the persons who were brought out from the house under handcuff. He received bullet injury on his left leg. He was admitted to Sreenagar Health complex and subsequently he was taken to Razarbag Police Line Hospital.

The P.W.12 Dr. Jatindra Chandra Mondol held  postmortem examination on the dead bodies of Monwar Ali, Badsha, Hashem Kazi and also an unknown person  and prepared the postmortem examination report which, as per his identification, have been marked as exhibit. The postmortem examination report of the dead body of the deceased Monwar Ali has been marked as exhibit-3, the postmortem examination report of the dead body of the deceased Badsha Mia has been marked as exhibit-4 and the postmortem examination report of the dead body of deceased Hashem Kazi has been marked as exhibit-5 and the postmortem examination report of the dead body of an unknown person has been marked as exhibit-2 as per identification of this doctor witness-the P.W.12.

The P.W.13 constable Md. Shahjahan is a formal witness-who took the dead bodies of the deceaseds to morgue.

The P.W.14 constable Md. Mifta Uddin deposed to the effect that he along with another constable and two Anser under the leadership of S.I. Iqbal Bahar went to the place of occurrence and saw there many people with spear and arms in their hands to scream; on query they came to know that the miscreants took shelter in the house of Siraj Bepari with arms. They also came to know that Monwar Ali and others took shelter in the house of Siraj Bepari. They also came to know that those people came to kill Aiyub Ali chairman. He saw gun shots being fired from the first floor of the house of Siraj Bepari. S.I. Iqbal Bahar informed S.P. of the occurrence. At 4.00 P.M. the miscreants were asked to surrender whereon they dropped their arms. Subquently he heard that before dust the unruly mob set the house on fire and thereafter the miscreants came down and then the mob assaulted and killed them. That he saw 7 dead bodies. They brought the dead bodies to the police. Two victims were alive. In the evening the D.C. came and wanted to see the dead body of the terrorist Badsha and as per instruction of the D.C. the dead body of the terrorist Badsha was shown to the people. That he took the dead body of deceased Hashem to the hospital for postmortem examination.

The prosecution declared this P.W.14 constable Md. Mifta Uddin hostile. The prosecution put a suggestion to this witness to the effect that being gained over by the accused Aiyub Ali chairman he deposed falsely stating that the mob caused happening of this occurrence. This witness however has denied this suggestion of the prosecution.

The P.W.15 Awlad Hossain Razu deposed to the effect that on 07.07.2001 at about 12 O’clock he came to know that accused Aiyub Ali and his associates assaulted Monwar Ali chairman, Anwar Ali and others who then took shelter in the house of Siraj Bepari. He then went to the place of occurrence and saw the accused Aiyub Ali chairman and his associates encircling the house of Siraj Bepari. The accused Aiyub Ali had a sharp ‘chapati’ in his hand. Accused Shawkat Ali Mollah had a sharp ‘chhan’ in his hand and many others had fire arms. That from inside the house also fire was opened. From before 4.00 P.M. police came to the place of occurrence. A police officer with a hand mike asked Monwar Ali and his companions to drop their arms assuring that they would reach Monwar Ali and others to their home. Responding to that call of police, two guns, a small arms and a packet were dropped. The police then entered into the house. When Monwar Ali and others came out of the house police handcuffed them and took them near bamboo clump. At that time the companions of the accused Aiyub Ali snatched away Monwar Ali, Anwar Ali and Badsha from the custody of police. Subsequently he saw the dead bodies. This witness has identified accused Aiyub Ali Chairman on dock.

The P.W. 16 Abdul Malek Talukder, an Inspector, Health and Family Planning, deposed to the effect that on 07.07.2001 at 9.30 A.M. he went to Uttar Kamar Gaon village to inspect the works of his staff and while he was working in the field at 11.00 A.M. he heard that scuffle and firing was going on and saw also many people to go towards Bagra village. He also then went there and saw many people at the house of Siraj Bepari. That the people were telling that Monwar Ali chairman and his companions were staying in the house of Siraj Bepari. He heard the sound of firing. In the evening he came to learn that murders took place and the dead bodies were taken to Sreenagar Police Station. He went to Sreenagar Police Station and saw the dead bodies of Monwar Ali chairman, Badsha, Alauddin, Hashem Kazi and another. S.I. Iqbal Bahar of Sreenagar Police Station asked him to put his signature in the inquest reports and he put his signature in the inquest reports. As per identification of this witness those inquest reports have been marked exhibits.

The P.W.17 Md. Belayet Hossain, inspector of police was the officer-in-charge of Sreenagar Police Station on 12.07.2002. This witness has deposed to the effect that on that day, on the basis of the computer-typed FIR of the informant, he started the case and entrusted the charge of the investigation of the case with S.I., D.M.P. Belayet Hossain. This witness has proved FIR form which has been marked as exhibit-11.

The P.W.18 Md. Akter Hossain is a photo journalist who deposed to the effect that on the date of occurrence he was attached to ‘Ajker Kagoj’ as a photo journalist and on that day, being informed about the occurrence he along with one Sumon went to the place of occurrence at about 3.00 P.M. and took some photographs of the occurrence some of which were published in the daily newspaper on the next day. That on 12.01.2002 he gave 30/31 photographs to the CID officer which were seized under a seizure list. As per identification of this witness 31 pieces of photographs were marked as material exhibit-1 series.

The P.W.19 Md. Sakhawat Hossain, S.I. of police is a formal witness who put his signature in the seizure list-the exhibit-12 as an witness. This witness stated that by this seizure list inspector of police Md. Nasir Uddin Paik seized volume No.11 of 2001 of G.D. Entry, wireless message No.393 dated 07.07.2001 and gun license of the year 2002 of Sreenagar Police Station and subsequently those seized articles were given in his jimma as per jimmanama-the exhibit-13.

The P.W.20 A.S.I. Md. Abu Taher, another formal witness who put his signature in the seizure list-exhibit-12 and also in the jimmanama-the exhibit-13 as witness.

The P.W.21 Ahmed Ali is another formal witness who deposed to the effect that on 12.01.2002 he along with witness Pintoo went to the office of CID and saw there journalist Akhter Hossain from whom 31 pieces of photographs were seized under a seizure list-the exhibit-14 and he put his signature in that exhibit-14 as witness. This witness has identified also those seized 31 pieces of photographs before court.

The P.W.22 A.S.I. Mozaffar Hossain another formal witness has proved the G.D. Entry No.194 of Sreenagar Police Station stating to the effect that on 07.07.2001 he was attached to Sreenagar Police Station as an A.S.I. and on that date at 11.00/11.15 A.M. a retired police constable Abdul Aziz and Jainal Mokter of Bagra came to the police station by a bay taxi and informed him that exchange of firing was going on between the parties of the ex-chairman and present chairman at Bagra and he then informed charge officer S.I. Iqbal Bahar of the matter whereon he made G.D. Entry No.194 of Sreenagar Police Station at 11.55 A.M. and started for the place of occurrence with police force. As per identification of this witness the G.D. Entry No.194 dated 07.07.2001 has been marked as exhibit-15.

The P.W.23 S.I. of police Md. Nasir Uddin Paik is the investigating officer of this case. This witness has deposed to the effect that on 30.10.2001 he was attached to C.I.D. Bangladesh, Dhaka as an Inspector. On that date as per instruction of the police head quarter and CID head quarter he took up the charge of investigation of this case from the previous Investigating Officer S.I. D.M. Belayet Hossain. The material part of the evidence of this investigating officer is that during investigation he perused the diary of the previous investigating officer and   visited the place of occurrence, examined the witnesses including the informant and recorded their statements as per section 161 of the Code of Criminal Procedure, seized alamats as per seizure list and after completion of investigation, as prima facie case was made out against 108 accused persons including accused Aiyub Ali and some officials, namely, S.I. Iqbal Bahar Khan, S.I. D.M. Belayet Hossain, S.I. Rafiqul Alam, A.S.P. Md. Nazam Uddin Chowdhury, Additional S.P. A.K.M. Shahjahan, S.P. Omul Bhuson Barua, the then T.N.O. K.M. Kabir Ahmed, 1st Class Magistrate Reazul Karim, A.C. Land Abu Momtaz Uddin, Senior Assistant Commissioner Md. Shafiqur Rahman and the then D.C. Most. Kamrun Nessa Khanam he submitted the memorandum of evidence on 04.06.2003 for submission of charge sheet. He submitted required papers to get sanction to proceed against the public servants. He arrested the accused persons. In the meantime, as he was transferred, he handedover the docket and alamats of the case as per the instruction of his higher authority to the subsequent investigation officer inspector Amirul Islam on 15.10.2003. This witness has been cross-examined at length on behalf of the accused persons.
These are the evidence which the prosecution has adduced in this case to prove the charges framed against the accused persons. In this judgment we are to consider only whether the evidence adduced in this case justify the conviction and sentences imposed on the accused-appellants before us.

Before scanning the evidence of the prosecution witnesses we require to address some legal points raised on behalf of the accused-appellants.

It has been argued from the side of the accused-appellants that in this case the F.I.R. was lodged long 5 days after the alleged occurence and this long delay in lodging the F.I.R. has reasonabley made the prosecution case doubtfull. The learned Advocates for the accused-appellants have made submissions to the effect that there are series of decisions where it was held that a belated F.I.R. always carrys the chance of fabrication and that the delay in lodging the FIR without explaining suffcient cause renders the prosecution case doubtfull.

It is true that the delay in lodging the FIR  raises suspicion about the truth of the prosecution case, but there may be various reasons for causing delay in lodging the F.I.R. Without considering the reasons of delay in lodging the F.I.R. the courts should not doubt the truth of the prosecution case only for the fact that there was delay in lodging the F.I.R. Mere delay in lodging the FIR should not be a ground for disbelieving the prosecution case if that delay occurred for any reasonable cause. Considering the facts and circumstances of a particular case the court is to decide whether the delay in lodging the F.I.R. is fatal and whether this delay in lodging the F.I.R. makes the prosecution case doubtfull.

In the present case the delay in lodging the F.I.R. has been explained in the very F.I.R. The facts and circumstances which have come out from the evidence of the prosecution witnesses also have explained the delay in lodging the FIR. It has been proved in this case that the husband and another near relative of the informant were murdered and 2 others of her near relatives were critically injured in the occurrence of this case and both those injureds were in hospital under treatment for a long time. The informant has stated also both in the F.I.R. and in evidence before court that after this occurrence she, being highly shocked, got senseless and was not in a position to lodge the F.I.R. It was also stated that her other near relatives also were abroad at that time. Considering all these facts and circumstances both the trial court and the High Court Division found that the delay of 5 days in lodging the F.I.R. was not  fatal to create any doubt about the truth of the prosecution case. Considering the facts and circumstances we also find that in this case the delay in lodging the F.I.R. cannot be a ground for disbelieving the truth of the prosecution case.

It has also been argued from the side of the accused-appellants that the F.I.R. which was lodged 5 days after the occurrence cannot be treated as FIR inasmuch as before lodging of the F.I.R. there was a G.D. entry about this occurrence in the concerned police station and in the circumstances that G.D. entry, being the first information about the occurrence, should be treated as FIR and the subsequent F.I.R. lodged by the informant should be treated as a statement under section 161 of the Code of Criminal Procedure. It appears that the High Court Division has addressed this legal point also adequately and given the right decision. The High Court Division rightly pointed out that the G.D. entry which was lodged in the concerned thana about this occurrence was vague and indefinite and no offence was disclosed in the said G.D. entry and in the circumstances the said G.D. entry could not be treated as an F.I.R. There is no bar in filing a second F.I.R. if the first information about any occurrence given to the police station is vague and indefinite and does not disclose the actual offence committed in that occurence. In the present case the GDE which was made in the concerned police station at the time when the occurrence was still going on does not disclose the offences committed in that occurrence and hence the subsequent F.I.R. stating the offences committed in that occurrence in details is the actual F.I.R. and there is no legal bar in accepting this F.I.R. in the stated facts and circumstances.

The learned Advocates for the accused-appellants have argued also to the effect that in this case the prosecution witnesses were examined by the investigating police officer long several months after the occurrence and this long delay in examining the prosecution witnesses also makes the evidence of these  witnesses before court suspicious. But this argument also of the learned Advocates for the accused-appellants is not acceptable in the present facts and circumstances of the case. In this case the P.Ws.2 to 8 are all eye witnesses to the occurrence and two of them were critically injured in the said occurrence. All these P.Ws. have deposed before court narrating the occurrence in details. Some other police constables also have deposed corrobrating these public witnesses and all these prosecution witnesses have been cross-examined at length on behalf of the accused persons, but by cross-examining these witnesses at length their evidence could not be shaken or made unbelievable. In the circusmtances the delayed examination of these prosecution witnesses by the investigating police officer cannot be a reason for disbelieving these witnesses. In the present case it has also come before court that the investigating officer of this case was changed and several other cases also were started over the same occurrence and the police investigated those cases also. In the circumstances the delay committed by the investigating police officer in examining the witnesses of this case cannot be a reason for disbelieving the prosecution witnesses who have deposed before the court on oath in details and have faced the lengthy cross-examination by the learned Counsel of the accused persons. In the stated facts and circumstances we do not find that the delay in examining the witnesses under section 161 of the Code of Criminal Procedure by the investigating officer can be any reason for discarding their evidence before court.

It has also been argued from the side of the accused-appellants that many F.I.R. named and charge sheeted witnesses have not been examined in this case and this fact also makes the prosecution case weak. But we do not accpet this argument also of the learned Counsel for the accused-appellants. There is no law requiring examination of all the F.I.R. named and charge sheeted witnesses before court. Rather it is well established by judicial pronouncements that conviction of accused can safely be based on the evidence of one witness only if his evidence is full, complete and selfcontained and believable. The prosecution is not bound at all to examine all the witnesses mentioned in the F.I.R. or in the charge sheet. In the present case 7 eye witnesses namely, the P.Ws.2 to 8 have deposed before court supporting the prosecution case and if the evidence of these witnesses can be believed as true the non-examination of other FIR named or charge sheeted witnesses is not fatal at all.

The learned Advocates for the accused-appellants have made submissions to the effect also that in this case there are discripancies in between the F.I.R. and the evidence given by the prosecution witnesses before court and that these discrepancies between the FIR and the evidence of the prosecution witnesses makes the prosecution case unbelievable. But we are unable to accept this contention also of the learned Advocates for the accused-appellants. In this case the inforamnt, who lodged the F.I.R. was not the eye- witness to the occurence. Hearing from others she lodged the F.I.R. So it was very natural that in the F.I.R. all the details of the occurrence could not be stated properly and correctly. The evidence of P.Ws.2 to 8-the eye-witnesses to the occurrence are consistent. In the circumstances the discripancy between the F.I.R. story and the evidence of these eye witnesses cannot be any reason for disbelieving the eivdence of these eye-witnesses in this particular case.

The learned Advocates for the accused-appellants have made argument to the effect also that all the alleged eye-witnesses to the occurrence being interested, related and partisan, their evidence cannot be relied upon. It is true that the evidence of the interested and partisan witnesses must be scrutinized and considered cautiously before it is accepted. But the evidence of the interested and partisan witnesses should not be discarded for the reason only that they are partisan and interested witnesses if their credibility is not shaken by the defence. In the present case the P.Ws.2 to 8 though have been blamed to be interested and partisan witnesses by the defence but by cross-examining these witnesses at length the defence could not shake their varacity or make their evidence false or unbelievable. It is now settled by the decisions of the apex courts that the evidence of partisan witnesses need not always be discarded only for the reason of their relationship, when their evidence are found to be reliable that can be basis for convicting the accused. So the argument that the P.Ws.2 to 8 being interested witnesses their evidence cannot be relied on-is not acceptable.

The learned Advocates for the accused-appellants have made arguments to the effect also that there are contradictions and discrepancies among the evidence of the prosecution witnesses and these contradictory and discrepent evidence of the prosecution witnesses make these witnesses untrustworthy and make the prosectuion case also false.

But considering the facts and circums-tances of the present case we do not accept this argument also of the learned Advocates. In the present case the number of accused is more than hundred. Hundreds of people were present in the place of occurrence and wintessed this occurance. In the circumstances it was difficult to pinpoint specifically the role played by each and every accused. So it is most natural that there may occur some discrepencies in the evidence of the prosecution witnesses as to the role played by the accused persons in this occurrence. While sifting the evidence of the prosecution witnesses the courts are to take into consideration the discrepencies also in their evidence, but for making some discrepent statements only their whole evidence should not be discarded and they also should not be treated as untrustworthy.

Now we shall sift the evidence of the prosecution witnesses narrated above.

From the evidence of the prosecution witnesses it appears that in this case there are sufficinet evidence to prove the active involvemnet of the accused-appellant Aiyub Ali in the murder of Monwar Ali, Badsha and Hashem. All the prosecution witnesse 2 to 8-the eye witnesses to the occurrence-have deposed before court to the effect that this accused Aiyub Ali ordered the other accused persons firstly to catch Monwar Ali and his other associates while they were going to Bagra Bazar along the road by the side of the house of accused Aiyub Ali and as per this order the other accused persons and also accused Aiyub Ali himself chased Monwar Ali and his associates and made them confined in the house of Seraj Bepari and kept them confined there for a long period and during that period some of the accused persons entered into that house by breaking open the door and murdered Hashem and subsequently, in the evening, after arrival of police, when Monwar Ali, Badsha, Anwar Ali and Salauddin came out of that house on the asking of police and were handcuffed by police and brought near the bamboo clump the accused Aiyub Ali gave order to other accused persons to kill them and he himself also dealt a ‘chapati’ blow on the back of head of Monwar Ali and then other accused persons started dealing blows on Monwar Ali and Badsha with different weapons. These evidence of the prosecution witnesses could not be shaken by cross-examining the witnesses at length. Some of the police witnesses also, who came to the place of occurrence, namely, P.Ws.9 and 10 have supported the prosecution case by deposing to the effect that Monwar Ali and his other associates were kept confined in the house of Siraj Bepari and subsequently when, on the asking of the police, Monwar Ali and his associates came out of that house the associates of accused Aiyub Ali snatched away them from police and killed them. These evidence of the police constables has strongly supported the prosecution case that accused Aiyub Ali was the gang leader and he ordered his other accomplices to kill Monwar Ali, Badsha and Hashem. From the side of the accused persons though question has been raised as to the credibility of P.Ws.2 to 8 but considering the facts and circumstances of the case we do not find the evidence of these witnesses unbelievable or false. Admittedly the occurrence of murder of Monwar Ali, Badsha and Hashem took place in broad daylight in presence of hundreds of people. However these eye-witnesses to the occurence, the P.Ws.2-8, have been cross-examined at length by the learned Advocates for the accused persons, but their veracity could not be shaken by the lengthy cross-examination. So, we do not accept the contention of the learned Advocates for the accused-appellants that these P.Ws.2-8 are not trustworthy for the reason only that they are interested and partisan witnesses. It has been contended from the side of the accused persons that deceased Monwar Ali and his associates, being armed with fire arms, went to the place of occurrence to commit any crime and at that time the agitated public confined them in the house of Seraj Bepari and ultimately those mob murdered them. But considering the evidence adduced before court we do not find this defence contention acceptable at all. It should be mentioned here that before us arguments have been made from the side of the accused persons to the effect that deceased Monwar Ali and others murdered Alauddin, the son of accused Ayesha and brother of accused Mizan, Nizam, Nazir and Badsha and at this the accused persons, being highly shocked and provocated, might have committed this occurence and in the circumstances this case does not come within the ambit of section 302 of the Penal Code, rather it comes within the ambit of section 304, part-II of the Penal code. This very defence argument, rather, supports the prosecution case that the accused Aiyub Ali and his other associates killed Monwar Ali, Badsha and Hashem. Even, if it is believed that deceased Monwar Ali and his associates went to the place of occurrence to commit some crime and they were miscreants, but that does not absolve the accused Aiyub Ali and his other associates from the charge of murder of Monwar Ali and his associates. The evidence adduced by the prosecution has proved sufficiently that accused Aiyub Ali along with his associates snathched away the deceased Monwar Ali and Badsha and victims Anwar Ali and Salauddin from the hands of police when they were handcuffed and accused Aiyub Ali then gave order to other accused persons to kill them and he (accused Aiyub Ali) himself dealt a ‘chapati’ blow on the vital part of body of deceased Monwar Ali. The execuse that deceased Monwar Ali and his associates were miscreants cannot be accepted as a ground for absolving the accused Aiyub Ali and other accused persons from the charge of murder. The brutal murder of 3 persons and also assaulting of two other persons mercilessly with the intention to kill them in braod daylight in presence of high officials of Administration and police cannot be taken leniently under any circumstances.

It was argued that some of the prosecution witnesses have deposed to the effect that accused Aiyub Ali had a gun in his hand and in the circumstances the evidence that accused Aiyub Ali dealt a ‘chapati’ blow on the back of head of Monwar Ali is not believable at all. But we do not accept this argument also. It cannot be accepted that a person who has a gun in one of his hands cannot hit any person with any other kind of arms. It might be that accused Aiyub Ali, at that very moment, took that ‘chapati’ from any other accused person and hit Monwar Ali with that ‘chapati’. Where there are sufficient evidence to prove that accused Aiyub Ali dealt a ‘chapati‘ blow on the back of head of Monwar Ali and where the postmortem examination report of the dead body of deceased Monwar Ali supports these evidence we cannot disbelieve these evidence only for the reason that some of the witnesses deposed that the accused Aiyub Ali was carrying a gun at the time of occurrence.

Though there is no specific evidence to prove that accused Aiyub Ali himself dealt any blow on deceased Badsha and Hashem, there are ample evidence to prove that accused Aiyub Ali along with other accused persons chased Monwar Ali and others and made them confined in a house and then murdered Hashem in that house and subsequently as per order of accused Aiyub Ali, the other accused persons murdered Badsha. So in the circumstances accused Aiyub Ali was rightly convicted and sentenced under sections 302/109 of the Penal code for killing Badsha and under sections 302/149 of the Penal Code for killing Hashem.

From the side of the accused-appellant Aiyub Ali arguments have been made to the effect also that in this case the evidence of the prosecution itself have proved that the accused persons, being highly shocked and provocated by the murder of Alauddin, committed this occurrence and in the circumstances this case will not come within the abmit of section 302 of the Penal code, rather it will come within the ambit of section 304 part-II of the Penal Code. But considering the evidence on record we are unable to accept this argument also. The evidence adduced in this case has proved sufficiently that accused Aiyub Ali along with his associates chased Monwar Ali and his associates while they were going along the road by the side of the house of accused Aiyub Ali and made them confined in the hosue of P.W.2 Srijon Bepari and during that period, at one stage, they entered into that house by breaking open the door and tried to drag out them and at that time Alauddin was murdered. So, in these facts, circumstances, the plea of accused-appellants that being highly shocked and provocated they killed Monwar Ali and others and as such these killings do not fall within the purview of sction 302 of the Penal code, rather these fall within the purview of section 304 part-II of the Penal Code-is not acceptable at all even if it is believed that Alauddin was killed by Monwar Ali and his associates.

Mr. Sarwar Ahmed-the learned Advocate for the condemned prisoner Aiyub Ali has made submissions to the effect also that this accused-appellant Aiyub Ali has been detaining in the condemned cell for long 10 years with mental agony of death and now this Division, for the ends of justice, may show some mercy to him and may commute his sentence of death to a sentence of life imprisonment. But considering the very offence of cruel murders of as many as 3 persons committed by this accused-appellant Aiyub Ali we do not think that he can be shown any mercy at all.

However, considering the facts, circumstances and evidence on record we find that both the trial court and the High Court Division rightly convicted this accused appelalnt Aiyub Ali under sections 302/1`09 of the Penal code for killing Monwar Ali and Badsha and under sections 302/149 of the Penal Code for killing Hashem. The High Court Division has upheld the sentence of death of accused Aiyub Ali awarded by the trial court for killing Monwar Ali only and awarded him 2 separate sentences of life imprisonment for killing Badsha and Hashem. We find no reason to interfere with the judgment and order of the High Court Division so far as it relates to the accused-appellant Aiyub Ali.

Accused Md. Mahfuzur Rahman @ Mahfuz son of Aiyub Ali has been convicted for killing Monwar Ali and Badsha and has been awarded 2 separate sentences of life imprisonmnet with fine for each of the killings with a direction that both the sentences will run concurrently. From the above narrated evidence of the proseuction witnesses it appears that all the P.Ws.2 to 8-the eye witnesses to the occurrence-have deposed stating the active involvement of this accused-appelalnt Md. Mahfuzur Rahman @ Mahfuz son of Aiyub Ali in the murder of Monwar Ali and Badsha. These evience prove that this accused-appelant Mahfuz son of Aiyub Ali was carrying a chinese axe during the whole occurrence and while Monwar Ali, Badsha and others  were brought out of the house of Srijon Bepari by police and were handcuffed this accused Mahfuz son of Aiyub Ali also along with other accused persons started assulting them.

The P.W.3 Salauddin, an injured witness, has deposed specifically that this accused-appelalnt Mahfuz dealt chinese axe blows to Monwar Ali. The P.W.4 Md. Anwar Ali-another injured witness also has specifically deposed that this accused-appelalnt Mahfuz dealt chinese axe blows to deceased Monwar Ali. This witness deposed to the effect also that the accused persons who assulted Monwar Ali dealt sharp cutting weapon blows on Badsha also. The P.W.5 Saifur Rahman Pintoo-another eye-witness to the occurrence also has specifically deposed to the effect that accused-appellant Mahfuz had chinese axe in his hand and he dealt chinese axe blows to both Monwar Ali and Badsha. The P.W.6 Md. Shahabuddin Khan, the Headmaster of Bagra Swarup Chandra Pilot High School, also has deposed to the effect that this accused-appellant Mahfuz kept dealing chinese axe blows to Monwar Ali. The P.W.7 Abul Kalam Azad-another eye witness to the occurrence also has deposed to the effect tha this accused Mahfuz dealt sharp cutting weapon blows on deceased Monwar Ali and also on Badsha, Anwar Ali and Salauddin. The P.W.8 Md. Shahin, another eye-witness also has deposed to the effect that this accused appelalnt Mahfuz kept dealing chinese axe blows on Monwar Ali. Considering these evidence of the prosecition witnesses we find that the trial court and the High Court Division rightly found this accused appellant Mahfuz son of Aiyub Ali guilty of killing of Monwar Ali and Badsha and therefore rightly convicted him under section 302 of the Penal Code. The High Court Division, however, has commuted the sentence of death awarded by the trial court to this accused-appelalnt Mahfuz to imprisonment for life as already mentioned above. We find no reason to intefere with the findings and decision of the High Court Division as regrds this accused-appellant Mahfuz son of Aiyub Ali also.

In the cicumstances the Criminal Appeal No.26 of 20012 filed by the condemned prisoner Md. Aiyub Ali chairman and his son accused-appellant Md. Mahfuzur Rahman @ Mahfuz is liable to be dismissed.

Accused Faruq Gazi was awarded death sentence by the trial court for killing Monwar Ali, Hashem and Badsha. The High Court Division has commuted the death sentence of this accused-appellant Faruq Gazi to imprisonment for life for killing Monwar Ali and Badsha but upheld his death sentence awarded for killing Hashem. It has been pointed out before us that though according to the prosecution witnesses this accused-appellant Faruq Gazi killed Hashem by firing a gun shot but the postmortem examination report of Hashem does not show at all that there was any bullet injury on the dead body of Hashem. The learned Advocate for the accused-appellant Faruq Gazi has contended that the postmortem examination report of deceased Hashem makes the allegation of killing Hashem against this accused-appelant Faruq Gazi false. The learned Depty Attorney General has made submissions to the effect that, in fact, the postmortem examination report, which bears the name of deceased Hashem, actually was not of the dead body of Hashem but the other postmortem examination report of an “unknown person” was actually of Hashem and this postmortem examination report shows that there were bullet injuries on that dead body. But this argument of the learned Deputy Attorney General cannot be accepted at this stage. There is no cogent evidence or materials before us to prove that the postmortem examination report which bears the name of Hashem actually was not of Hashem, rather the postmortem examination report  of an “unknown person” actually was of Hashem. There is no evidence before us to the effect that an unknown person also was killed in that occurrence by assaulting with weapons other than fire arms. One Ismail Gazi was killed in that occurrence, but admittedly he was killed by gun shot. So, we cannot accept the contention of the prosecution that the postmortem examination report of Hashem was not actually of Hashem, but that was of an unknown person. In the circumstances we accept the defence contention that the postmortem examination report of the dead body of Hashem does not suppoprt the prosecution case that this accused appellant Faruq Gazi murdered Hashem by gun shot. However, this accused-appellant Faruq Gazi has been found guilty for killing of Monwar Ali and Badsha also and it appers that there are sufficient evidence on record to prove that this accused-appelalnt Faruq Gazi took active part in killing Monwar Ali and Badsha. The P.W.3 and P.W.4-the two injured witnesses have deposed to the effect that on the order of accused Aiyub Ali this accused- appellant Faruq Gazi along with others dealt sharp cutting weapon blows to both Monwar Ali and Badsha. The other eye witnesses also have deposed to the effect that the other accused persons assulted Monwar Ali and Badsha with sharp cutting weapons. Considering the postmortem examination report of deceased Hashem we though do not find this accused- appellant Faruq Gazi guilty of the offence of commtting murder of Hashem but considering the other evidence stated above we find that both the trial court and the High Court Division rightly found this accused-appellant Faruq Gazi guilty of the offence of committing murder of Monwar Ali and Badsha. We, therefore, affirm the conviction and sentences of life imprisonment of this accused-appellant Faruq Gazi for committing murder of Monwar Ali and Badsha.

Criminal Appeal No.27 of 2012 filed by the accused-appellant Faqur Gaiz, therefore, deserves to be allowed in part.
Accused-appellant Hashem has been convicted under sections 302/109 of the Penal Code and sentenced to imprisonment for life for killing Monwar Ali. This accused-appellant has been further convicted under sections 307/109 of the Penal Code and sentenced to rigorous imprisonmnet for 7 years for making attempt to commit murder of Anwar Ali and Salauddin. There is a direction that both the sentences will run concurrently.

From the above narrated evidence of the prosecution witnesses it appears that there are sufficient evidence to prove both the charges against this accused-appellant Hashem. The P.W.2-Alhaj Sirajuddin Bepari @ Srijan Bepari has deposed to the efect that this accused-appellant Hashem along with other accused persons entered into his house by breaking door and tried to drage out Badsha. This witness has deposed further that this accused-appellant Hashem had a big ‘chhan’ in his hand and he dealt blows on the chest of Monwar Ali. The P.W.3-Md. Salauddin, one of the injured witnesses, has deposed to the effect that this accused Hashem along with other accused persons chased them and when they took shelter in the hosue of Srijan Bepari this accused Hashem along with others entered into that hosue by breaking door and tried to drage out Badsha. This P.W.3 futher deposed that this accused Hashem delat ‘chhan’ blows on deceased Monwar Ali. This P.W.3 has deposed also to the effect that that the accused persons who assaulted Monwar Ali assaulted him also with sharp cutting weapons and stick. The P.W.4 Anwar Ali, another injured witness, also has deposed to the effect that this accused-appellant Hashem along with others chased them and while they took shelter in the house of Srijan Bepari this accused-appellant Hashem along with some others entered into that house by breaking door and tried to drage out Badsha. The P.W.4 has stated also that this accused-appellant Hashem dealt ‘chhan’ blows on Monwar Ali. This witness stated further that the accused persons who assaulted Monwar Ali dealt blows on Salauddin and on him also. The P.W.5, another eye witness of the occurrence, also has deposed that this accused-appellant Hashem dealt ‘chhan’ blows on Monwar Ali.

Considering the above stated evidence adduced by the prosecution we find that both the trial court and the High Court Division rightly found this accused-appellant Hashem guilty under section 302 of the Penal Code and rightly convicted and sentenced him to imprisonment for life for killing Monwar Ali and also rightly convicted him furhter under section 307 of the Penal Code and sentenced him to 7 years rigorous imprisonemnt for making attempt to commit murder of Anwar Ali and Salauddin. We find no reason to intefere with these findins and decision of the courts below.

The Criminal Appeal No.31 of 2012 filed by this accused-appellant Hashem is, therefore, liable to be dismissed.
Accused-appellant Shafiul Azam Dafader has been convicted under sections 302/109 of the Penal Code  for killing Monwar Ali and Badsha and has been awarded two separate sentences of life imprisonmnet for both the killings and has been further convicted under sections 307/109 of the Penal Code and sentenced to rigorous imprisonmnet for 7 years for making attempt to commit murder of Anwar Ali and Salauddin. There is a direction that all the 3 sentences will run concurrently.

On scrutiny of the above narrated evidence it appears that all the 7 eye witnesses to the occurrence, namely, the P.W.2 to P.W.8 have deposed stating the active involvement of the accused-appellant Shafiul Azam Dafader in the alleged occurrence. The P.W.2 has deposed that at the time of occurrence this accused-appellant Shafiul Azam Dafader had a big ‘dao’ in his hand. The P.W.3 has deposed to the effect that this accused-appellant Shafiul Azam Dafader along with other accused persons chased them. The P.W.4 has deposed to the effect that this accused-appellant Shafiul Azam Dafader dealt ‘chhan’ blows on Monwar Ali. The P.W.5 also has deposed that this accused-appellant Shafiul Azam Dafader dealt ‘chhan’ blows on Monwar Ali and Badsha. The P.W.6 has deposed that this accused-appellant Shafiul Azam Dafader dealt indiscriminate blows on Monwar Ali, Badsha and Salauddin. The P.W.7 also has deposed to the effect that this accused-appellant Shafiul Azam Dafader dealt sharp cutting weapon blows on Monwar Ali, Badsha and also Anwar Ali and Salauddin. The P.W.8 has deposed that this accused-appellant Shafiul Azam Dafader dealt ‘chhan’ blows on Monwar Ali.

Considering the above stated evidence adduced by the prosecution witnesses we find that the trial court and the High Court Division rightly convicted and sentenced this accused-appellant Shafiul Azam Dafader for killing Monwar Ali and Badsha and also for making attempt to commit murder of Anwar Ali and Salauddin.

The Criminal Appeal No.25 of 2012 filed by this accused-appellant Shafiul Azam Dafader is, therefore, liable to be dismissed.   
Accused-appellant Showkat Ali has been convicted under sections 302/109 of the Penal Code for killing Monwar Ali.
This accused-appellant Showkat Ali has not been named in the FIR.
The P.W.2-Alhaj Sirajuddin Bepari @ Srijan Bepari-an eye witness to the occurrence also did not name this accused-appellant Showkat Ali.
The P.W.3 has deposed to the effect that this accused-appellant Showkat Ali dealt sharp cutting weapon blows on Monwar Ali.
The P.W.4 has deposed only that this accused-appellant Showkat Ali along with other accused persons chased them while they were going by the side of the house of accused Aiyub Ali.
The P.Ws.5, 6 and 8 have deposed only to the effect that this this accused-appellant Showkat Ali along with other accused persons set the house of Srijan Bepari on fire.
The P.W.7 did not say anything implicating this accused-appellant Showkat Ali in the alleged occurence.
So it appears that save and except P.W.3 only none of the other prosecution witnesses has stated anything in support of the charge of murder of Monwar Ali brought against this accused-appellant Showkat Ali. It has already been pointed out above that in the FIR also this accused-appellant Showkat Ali has not been named.
Considering the evidence on record we find that the High Court Division was not justified at all in maintaining the conviction and sentence of this accused-appellant Showkat Ali. In view of the evidence on record our considered opinion is that this accused-appellant Showkat Ali is entilted to get benefit of boubt and, therefore, to be acquitted of the charge under sections 302/109 of the Penal Code.
The Criminal Appeal No.30 of 2012 filed by this accused-appellant Showkat Ali Mollah, therefore, deserves to be allowed.   
Accused-appellant Mannan Shah has been awarded 3 separate sentences of life imprisonment for killing Monwar Ali, Hashem and Badsha with a direction that all the 3 sentences will run concurrently.

We have scrutinized the evidence adduced by the prosecution as regards this accused-appellant Mannan Shah. It appears that the P.W.2 has deposed only to the effect that this accused-appellant Mannan Shah fired with a cut rifle from out side of his house while the deceased and others took shelter in that house. The P.W.3 has deposed to the effect that this accused-appellant Mannan Shah along with other accused persons chased them and while they took shelter in the house of Srijan Bepari this accused-appellant Mannan Shah fired with a gun through the window of that hosue. This P.W.3 has deposed fruther that this accused-appellant Mannan Shah jumped on Monwar Ali and Badsha. The P.W.4 has deposed to the effect that this accused-appellant Mannan Shah chased them and fired with a cut rifle. This witness has deposed also that this accused-appellant Mannan Shaha dealt ‘chhan’ blows on Monwar Ali and jumped upon Badsha and dealt sharp cutting weapon blows on him. The P.W.5 has deposed to the effect only that this accused-appellant Mannan Shah opened fire through the window of the hosue of Srijan Bepari while the deceaseds took shelter in that house. The P.Ws.6 and 7 also have deposed to the effect that this accused-appellant Mannan Shah fired through the window of the house of Srijan Bepari while the deceased and others took shelter there. The P.W.8 did not name this accused-appellant Mannan Shah.

So it appears that out of 7 eye witnesses the P.Ws.3 and 4 only have deposed in support of the charges brought against this accused-appellant Mannan Shah. The P.W.3 has deposed that this accused-appellant Mannan Shah jumped on Anwar Ali and Badsha and P.W.4 has deposed that this accused-appellant Mannan Shah dealt ‘chhan’ blows on Monwar Ali and jumped upon Badsha and dealt sharp cutting weapon blows on him. The P.W.3 did not say that this accused-appellant Mannan Shah dealt ‘chhan’ blows on Monwar Ali. Other P.Ws. though have deposed to the effect that this accused-appellant Mannan Shah fired through the window of the house of Srijan Bepari, but none of the witnesses has stated anything to the effect that the shot fired by the accused-appellant Mannan Shah hit anybody. It has been pointed out above that the postmortem examination report of the dead body of deceased Hashem does not show that there was any bullet injury on that dead body. So it appears that there is practically no evidence to prove that this accused-appellant Mannan Shah had any involvement in the murder of Hashem. As regards the charge of killing Mownar Ali brought against this accused-appellant Mannan Shah the only evidence is of P.W.4-who deposed to the effect that this accused-appellant Mannan Shah dealt ‘chhan’ blows on Monwar Ali. But none of the other prosecution witnesses, even the P.W.3 also  deposed to the effect that this accused-appellant Mannan Shah took part in the murder of Monwar Ali by dealing ‘chhan’ blows on him. In the circumstances our considered opinion is that the charge of killing Monwar Ali brought against this accused-appellant Mannan Shah also has not been proved beyond all reasonable doubet and in the circumstances this accused-appellant Mannan Shah is entilted to get benefit of boubt and be acquitted from this charge also.

As regards the charge of killing Badsha brought against this accused-appellant Mannan Shah it appears that out of 7 eye witnesses the P.W.3 has deposed only to the effect that this accused-appellant Mannan Shah jumped on Anwar Ali and Badsha. This witness did not say that this accused-appellant Mannan Shah dealt any blow with any weapon on deceased Badsha. The P.W.4 only has deposed to the effect that this accused-appellant Mannan Shah dealt sharp cutting weapon blows on Badsha. Out of 7 eye witnesses of the occurrence the P.W.4 only has deposed to the effect that this accused-appellant Mannan Shah dealt sharp cutting weapon blows on Badsha. The other eye witnesses of the occurrence did not corroborate the evidnece of the P.W.4 that this accused-appellant Mannan Shah dealt sharp cutting weapon blows on Badsha. Considering the evidence of P.Ws.2 to 8 we find that the proseuction could not prove the charge of killing Badsha also against this accused-appellant Mannan Shah beyond all reasonable doubt.

In the circumstances we find that this accused-appellant Mannan Shah is entilted to be acquitted from all the 3 charges of killing of Monwar Ali, Hashem and Badsha.
The Criminal Appeal No.32 of 2012 filed by this accused-appellant Mannan Shah, therefore, deserves to be allowed.   
Accused-appellant A. Salam @ Ketu Salam has been convicted for killing Hashem and Badsha and has been awarded 2 separate sentences of life imprisonment for both the killings with a direction that both the sentences will run concurrently.

From the baove narrated evidence of the prosecution witnesses it appears that as regards this accused-appellant A. Salam @ Ketu Salam-the P.W.2 has deposed only to the effect that this accused-appellant A. Salam @ Ketu Salam fired with a gun from out side targating his house while the deceaseds and others took shelter in that house. The P.W.3 has deposed to the effect that this accused-appellant A. Salam @ Ketu Salam chased them and opened fire with rifle through the witndow of the house where they took shelter. The P.W.4 has deposed to the effect that this accused-appellant A. Salam @ Ketu Salam along with others chased them and also fired with a gun through the window of the house where they took shelter and that gun shot hit Badsha. The P.W.5 has deposed to the effect only that this accused-appellant A. Salam @ Ketu Salam opened fire through the window of the hosue where the deceaseds took shetler. The P.W.6 has deposed to the effect that this accused-appellant A. Salam @ Ketu Salam along with other accused persons chased the victims and surrounded the house of Srijan Bepari where the victims took shelter and opened fire with a gun from out side of that house. This P.W.6 deposed also that this accused-appellant A. Salam @ Ketu Salam assaulted Badsha and Salauddin also. The P.W.7 deposed to the effect only that this accused-appellant A. Salam @ Ketu Salam opened fire through the window of the house where the victims took shelter. The P.W.8 did not utter the name of this accused-appellant A. Salam @ Ketu Salam.

So, it apperars that the P.W.4 only has deposed to the effect that the gun shot fired by this accused-appellant A. Salam @ Ketu Salam hit Badsha. But the postmortem examination report of the dead body of deceased Badsha does not show that there was any bullet injury on that dead body. The P.W.6 only though has deposed to the effect that this accused-appellant A. Salam @ Ketu Salam assaulted Badsha but no other prosecution witnesses have corrobo-rrated this statement of P.W.6. In view of the above stated evidence adduced by the prosecution our considered opinion is that none of the charges of killing Hashem and Badsha brought against this accused-appellant A. Salam @ Ketu Salam has been proved beyond all reasonable doubt and as such this accused-appellant A. Salam @ Ketu Salam is entilted to get benefit of doubt and, therefore, to be acquitted of both charges.
The Criminal Appeal No.35 of 2012 filed by this accused-appellant A. Salam @ Ketu Salam, therefore, deserves to be allowed.

Accordingly it is ordered that the Criminal Appeal No.25 of 2012 be dismissed. The conviction and sentences imposed on this accused-appellant Shafiul Azam Dafader by the impugned judgment and order be hereby affirmed.
The Criminal Appeal No.26 of 2012 is dismissed. The conviction and sentences including the death sentence awarded against the accused-appellant Aiyub Ali be upheld and affirmed. The conviction and sentence of the other accused-appellant Mahfuz son of Aiyub Ali also be upheld.

The Criminal Appeal No.27 of 2012 is allowed in part. The conviction and sentences of life imprisonemnet with fine of the accused-appellant Faruq Gazi under sections 302/109 of the Penal Code for killing of Monwar Ali and Badsha be upheld. However, his conviction and sentence of death for killing of Hashem be set aside. He be acquitted of the charge under section 302/149 of the Penal Code for killing of Hashem.

This convicted accused-appellant Faruq Gazi is to be shifted from condemned cell to normal cell.

The Criminal Appeal No.30 of 2012 be allowed. The impunged judgment and order so far as it relates to the accused-appellant Showkat Ali Mollah be set aside and he be acquitted of the charge under sections 302/109 of the Penal Code for killing of Monwar Ali. The accused-appellant Showkat Ali Mollah be set at liberty at once if not wanted in connection with any other case.

The Criminal Appeal No.31 of 2012 be dismissed. The conviction and sentences imposed on this accused-appellant Hashem by the impugned judgment and order be upheld.

The Criminal Appeal No.32 of 2012 be allowed. The impunged judgment and order so far as it relates to the accused-appellant Mannan Shah be hereby set aside and he be acquitted of all the charges under sections 302/109 and 302/149 of the Penal Code. The accused-appellant Mannan Shah be set at liberty at once if not wanted in connection with any other case.

The criminal Appeal No.33 of 2012 has abated as already mentioned above.

The Criminal Appeal No.35 of 2012 be allowed. The impunged judgment and order so far as it relates to the accused-appellant A. Salam @ Ketu Salam be set aside and he be acquitted of the charges under sections 302/109 and 302/149 of the Penal Code. The accused-appellant A. Salam @ Ketu Salam be set at liberty at once if not wanted in connection with any other case.

Jail Petition No.20 of 2012 filed by the condemned prisoner Aiyub Ali be dismissed.

Ed.