The State Vs. Ashraf Ali and others, 1 LNJ (2012) 371

Case No: Death Reference No. 96 of 2005

Judge: M. Enayeture Rahim,

Court: High Court Division,,

Citation: 1 LNJ (2012) 371

Case Year: 2012

Appellant: The State

Respondent: Ashraf Ali and others

Subject: Confessional Statement, Law of Evidence,

Delivery Date: 2009-11-12

HIGH COURT DIVISION
(Criminal Appellate Jurisdiction)
 
Mashuque Hosain Ahmed, J.
And
M. Enayetur Rahim, J.
 
Judgment
12.11.2009.
  The State
VS
Ashraf Ali and others
Ashraf Ali and others
....Appellants
Vs.
The State
....Respondents
Md. Asad @ Kamal @ Ashraf @ Raja Ashraf
....Appellant
Vs.
The State
....Respondent
Md. Ashraf Ali
....Appellants
Vs.
The State
....Respondent
 
Code of Criminal Procedure (V of 1898)
Sections 164 & 364
Evidence Act (I of 1872)
Section 24
After going through the cross-examination of PW.17 and PW.20, who are confessional statement recording Magistrate and I.O. respectively, a reasonable suspicion could give rise in the mind of a prudent man that condemned prisoner Ashraf Ali might have been tortured when he was under police remand for 3 days and after such  remand several injuries were found on his body which made the confessional statement untrue and not voluntary and it is unsafe to base conviction only on such a confessional statement which is doubtful and questionable. More so, the recording Magistrate did not fill up the column Nos. 8, 9 and 10 of the form for which it is difficult to hold that the confessional statement made under sections 164, Cr.P.C. is a voluntary and same was recorded in compliance with the mandatory provision of law....(57, 59, 61 and 66)
 
Code of Criminal Procedure (V of 1898)
Sections 161 and 164
Evidence Act (I of 1872)
Section 30
From the evidence of PWS. 4,7,8 and 12 it manifests that the witnesses made contradictory statements regarding the presence of witnesses in whose presence the alleged extra-judicial confession was made and they also contradict one another . The delay in making such statement under section 161, Cr.P.C. render their evidence shaky and the chace of embellishment cannot be ruled out. Learned judge acted illegality in relying on such extra-judicial confession of the condemned prisoner without having any independent corroborative evidence. Confession of an accused cannot be treated as substantive evidence against another co-accused but it can only be used to lend assurance to other evidence. There was absolutely no legal and trustworthy evidence against any of the non confessing accused persons and thus the conviction of the non-confessing accused persons relying on such confessional statement of co-accused is illegal and cannot be sustainable in law. The absconsion of accused Saiful Islam and Abdul Jalil cannot be treated as corroborative evidence of judicial and extra-judicial confession of condemned prisoner Ashraf Ali in the absence of any other direct evidence.... (70, 72, 75 & 77)
 
Code of Criminal Procedure (V of 1898)
Sections 339B(1) 
In the notification Police Station case number had been mentioned as Nator Police Station but the present case is Naldanga Police Station Case No.3 dated 05.04.2003. Thus, this notification can not be said a proper and legal notification and subsequent proceeding is illegal and it vitiates the trial, so far the absconding accused persons are concerned....(78)
 
Code of Criminal Procedure (V of 1898)
Sections 342
The learned Tribunal is not justified in ignoring the statements of the said accused persons recorded under section 342 of the Code of Criminal Procedure and by such non-consideration the merit of the case had been materially affected. …(79)

Shibu Pada Acharjee – Vs- State, 56 DLR(HC), Page-285; State –Vs- Moslem, 55 DLR, Page-116; Salauddin –Vs- the State, 32 DLR, Page-227; State –Vs- Md. Abdus Samad Azad alias Samad and another case, 9 BLC; Lutfun Nahar Begum –Vs- State, 27 DLR(AD); Babor Ali Molla and others –Vs- State, 44 DLR(AD); Mofazzal Hossain Mollah and others –Vs- State, 45 DLR(AD); Ustar Ali –Vs- State, 3 BLC(AD); Mrs. Jobaida Rashid –Vs- the State,1997 B.L.D; Amir Hossain Hawlader –Vs- the State,1984 BLD(AD); Salauddin –Vs- State, 32 DLR(HC); Abul Hossain and others –Vs- The State,13 BLD; Sarwan Singh Rattan Singh –Vs- State of Punjab, P.L.D 1957(SC)555; Mrs. Jobaida Rashid –Vs- State,17 B.L.D; Mst. Saida Begum –Vs- The State, P.L.D 1958(Lahore) ref.
 
Mr. F.R.M. Nazmul Hasan D.A.G. with
Mr. Md. Moniruzzaman A.A.G,
Mr. S.M. Asad Ullah Tarique, A.A.G. and
Mrs. Nur Jahan Mukta. A.A.G
....For the state.
Mr. Reaz Uddin Khan
....For the Appellant
(In Crl. Appeal No. 3243 of 2005)
Mr. Hafizur Rahman Khan, State Defence Lawyer.
....For absconding convict

Death Reference No. 96 of 2005 with
Criminal Appeal No. 3243 of 2005 with
Jail Appeal Nos. 768, 769 and 770 of 2005.
 
Judgment
M. Enayetur Rahim, J:

        This reference under section 374 of the Code of Criminal Procedure has been made by the learned Judge, Druta Bichar Tribunal, Rajshahi for confirmation of sentence of death imposed upon accused Ashraf Ali son of  late Abesh Ali, Ataur Rahman son of late Idris Ali @ Idi Fakir, Ashraf alias Raja son of late Ahad Ali, পালক পিতাঃ Rajab Ali, Saiful Islam alias Ripon, son of A. Jabber, A. Jalil alias Shimul, son of late Kapir Mondal on their conviction for the offence punishable under section 302/34 of the Penal Code passed on 05.07.2005 in Druta Bichar Tribunal Case No.16 of 2005 arising out of G.R. No. 170 of 2003 corresponding to Naldanga (Nator) Police Station Case No.03 dated 05.04.2003. Condemned-Prisoner Ashraf Ali, Ataur Rahman and Ashraf alias Raja have also preferred Criminal Appeal No.3243 of 2005 and Jail Appeal Nos.770 of 2005, 769 of 2005 and 768 of 2005 respectively. All the cases are taken together to dispose of by this common judgment. 
 
2.     Prosecution case, in short, is that P.W. 1 Md. Abdul Malek Miah, Officer in Charge of Naldanga Police Station, Nator himself on 05.04.2003 lodged a First Information Report stating, inter alia, that on 05.04.2003 at 2.35 hours he received a wireless message that a dead body was laying beside the railway line at Madhnagar. Receiving the said information he made a G.D being No.136 dated 05.04.2003 and he along with his companion forces reached to the place of occurrence at about 3.50 hours and found the dead body of Majedur Rahman Mridha alias Maju beside the rail line, 500 yards away from Madhnagar rail station. Matenur Rahman, younger brother of Majedur Rahman Mridha alias Maju, identified the dead body and found Majedur Rahman in slaughtered condition, caused by sharp cutting weapons. The informant in presence of witnesses A. Jabber, Lutfar Rahman, Soleman, Belal, Lutfar Rahman, A. Kuddus prepared the inquest report. From witnesses Moulana Mohammad Ali Dewan, Al-haj Azizur Rahman Mridha, A. Jabber Mridha, Akter Hossain, Akkas Ali and Matenur Rahman, the informant came to know that deceased Majedur Rahman along with Azizur Rahman Mridha, A. Jabber Mridha and Akter Hossain were returning back from ‘Islami Jalasha’ at about 1.00 A. M on 05.04.2003 and when they reached 30 yards away from the west side of the rail line, they saw that three unknown persons were sitting in a position as if they were making water and they asked them who they were and one of them suddenly dealt a blow on the head of Majedur Rahman by sharp cutting weapon and instantly he felt down on the paddy field on the  southern side of the road and thereafter other persons, who were waiting besides the road, came forward and participated in slaughtering Majedur Rahman Mridha alias Maju with sharp cutting weapon. The miscreants pointed arms to Azizur Rahman and Akter Hossain and asked them to keep silent and eventually the said Azizur and Akter Hossain managed to escape from the place of occurrence. At that time, the accused-persons went on raising slogans in the name of Purbabangla Communist Party and fled away. Akter Hossain and Azizur Rahman informed the said fact to the village people and the villagers came forward to the place of occurrence. One Shahidul Islam Bachchu informed about the occurrence to the Officer-in-Charge of the Police Station.
 
3.     On the basis of the said First Information Report, Naldanga Police Station Case No.3 dated 05.04.2003 under section 302/34 corresponding to G.R.No.170 of 2003 was started.
 
4.     P.W 19 S I Abdul Hai started the initial investigation but ultimately P.W 20 Dina Bandhu Das had completed the same and submitted the charge sheet being No.64, dated 24.09.2003 under sections 120-B/302/34 of the Penal Code against 9(nine) persons. In the instant case although charge sheet was submitted against nine persons but 4 (four) accused persons of them have filed two separate Criminal Revision before this Court and obtained rule and order of stay and eventually the present convicts were put on trial before the learned Judge, Druta Bichar Tribunal, Rajshahi and the learned Judge of the Tribunal by his order dated 03.04.2005 framed charges against 5(five) persons including the condemned prisoners under section 302/34 of the Penal Code to which the accused persons, who were on dock pleaded not guilty and prayed for trial. 
 
5.     At the time of the trial, the prosecution examined as many as twenty (20) witnesses out of twenty nine (29) charge sheeted witnesses to prove it’s case. Defence cross-examined them but did not adduce any witness or evidence.
 
6.     From the trend of cross-examination the case of the defence in short, is that, they have been implicated in this case falsely. They were not in any way connected with the alleged murder and the alleged extra judicial and judicial confession of accused Ashraf Ali is not a true and voluntarily one, rather the same was obtained by torture.
 
7.     After closing of the evidence, the accused persons present in the dock were examined under section 342 of the Code of Criminal Procedure and they again claimed their innocence and made their respective statement.
 
8.     The learned Druta Bichar Tribunal after considering the evidence and materials on record by it’s judgment and order dated 05.07.2005 found accused (1) Ashraf Ali, (2) Ataur Rahman, (3) Ashraf alias Raja, (4) Saiful Islam alias Ripon and (5) A. Jalil alias Shimul guilty under section 302/34 of the Penal Code and sentencing them to death.
 
9.     It is to be mentioned here that convict-Saiful Islam and A. Jalil alias Simul were all along absconding during trial and they were defended by the state defence lawyer and still they are absconding and also in this Court they have been defended by the State defence lawyer.
 
10.    Mr. F.R.M. Nazmul Hasan, learned Deputy Attorney General with Mr. Md. Moniruzzaman, A.A.G, Mr. S. M. Asad Ullah Tarique, A.A.G and Mrs. Noor Jahan Mukta A.A.G appeared in support of the reference. Learned Deputy Attorney General submits that the reference may be accepted as the prosecution successfully has proved it’s case beyond all reasonable doubt. The extra judicial and judicial confession of accused-Ashraf Ali is rightly found true and voluntarily by the trial Court and P.W. 17 Md. Nazmul Haque, the Magistrate, who recorded the confessional statement of accused-Ashraf Ali under section 164 of the Code of Criminal Procedure, proved the statement as true and voluntary and there is no scope to disbelieve P.W 17. He further submits that judicial confessional statement, made by Ashraf Ali, is corroborated by his extra judicial confession and P.Ws. 4, 7, 8, 12 and 16 in their deposition categorically stated about the substantiality of the extra judicial confession made by Ashraf Ali. He further submits that the absconsion of accused-Saiful Islam and A. Jalil is an incrementing circumstance and corroborative evidence of confessional statement of accused-Ashraf Ali. He also contends that minor discrepancies or variance in adducing the evidence will not make the prosecution case doubtful and discrepancy has to be distinguished from contradiction. In support of his said contention he cited the case of Shibu Pada Acharjee – Vs- State reported in 56 DLR(HC), Page-285.
 
11.    He also refers the case of State –Vs- Moslem reported in 55 DLR, Page-116, where it has been held that conviction can be based on judicial confession if it is established that it is true and voluntary and is substantiated by other evidence, whether direct or circumstantial and materials on record.
 
12.    Learned Deputy Attorney General also submits that non filling of some columns or partly filling of columns 8, 9 and 10 of the prescribed form does not render the confession in admissible and in support of his said submission he refers the case of Salauddin –Vs- the State reported in 32 DLR, Page-227and regarding extra judicial confession he also refers the case of State –Vs- Md. Abdus Samad Azad alias Samad and another case reported in 9 BLC, Page-39.
 
13.    Mr. Reaz Uddin Khan appeared for the appellants in Criminal Appeal No.3243 of 2005. Mr. Khan assailing the impugned judgment and order of conviction and sentence submits that in the instance case there is no eye witness though P.W 2, P.W 5 and P.W 9 were accompanying the deceased at the time of occurrence and they failed to identify the accused-persons. He submits that judicial and extra judicial confession of condemned-prisoner Ashraf Ali can not be said true and voluntarily and same is the act of torture by the police. In support of his said submission he refers the deposition of P.W 17, Md. Nazmul Haque, the Magistrate, who recorded the statement under section 164 of the Code of Criminal Procedure, and submits that from the cross-examination of said P.W 17, it would be evident that while accused-Ashraf Ali was on police remand he was seriously tortured and several marks of injury were found on his body. His further contention is that the conviction of condemned prisoner Ataur Rahman and Ashraf Ali can not be sustained as there are no corroborative evidence of alleged confessional statement of co-accused-Ashraf Ali and confession of an accused can not be treated as substantive price of evidence against another accused person and in support of his said contention he refers the case of Lutfun Nahar Begum –Vs- State reported in 27 DLR(AD), Page-53, the case of Babor Ali Molla and others –Vs- State, reported in 44 DLR(AD), Page-10, the case of Mofazzal Hossain Mollah and others –Vs- State, reported in 45 DLR(AD), Page-175, the case of Ustar Ali –Vs- State, reported in 3 BLC(AD), Page-53.
 
14.    Mr. Reza Uddin Khan, also submits that provision of sub-section (3) of section 164 of the Code of Criminal Procedure is mandatory one and non filling of some column by the Magistrate is clear violation of the said law and failure to comply with the provision of law makes the confession of no value and any defect of it is not curable under section 537 of the Code of Criminal Procedure. In this connection he also refers the case of Mrs. Jobaida Rashid –Vs- the State, reported in 1997 B.L.D, Page-352.
 
15.    Mr. Hafizur Rahman Khan, the State defence lawyer adopted the argument made by the learned Advocate Mr. Reza Uddin Khan and further submits that the Druta Bichar Tribunal acted illegally in convicting the accused-Saiful Islam and A. Jalil relying upon the confessional statement of accused-Ashraf Ali and the learned Tribunal also erred in law in holding that the circumstance of absconsion is a corroborative evidence of confessional statement and in this connection he refers the case of Amir Hossain Hawlader –Vs- the State reported in 1984 BLD(AD), Page-193 where Appellate Division held that mere abscondence is not corroboration. He also refers the cases cited by learned Advocate Mr. Reza Uddin Khan.
 
16.    Now let us scan the evidence on record to ascertain whether the learned Tribunal rightly awarded the conviction and sentence.
 
17.    P.W 1 Md. Abdul Malek Miah, the Officer-in-Charge of Naldanga Police Station in his deposition reiterated the statement made in the First Information Report and he proved the same and identified his signature on it as exhibits-1, 1/1, 1/2, 1/3.
 
18.    In his cross-examination he stated that he prepared the inquest report through S.I Abdul Hai. Wife and younger brother of the deceased did not lodge the First Information Report as their mental conditions were not found sound. He asked about the occurrence to the witnesses named in the First Information Report and prepared inquest report but the witnesses did not mention any name of suspected accused persons. In the First Information Report there was no name of any suspected accused-person.
 
19.    P.W 2 Md. Akter Hossain Mridha in his deposition stated that on 04.04.2003 at 1 O’clock at night he along with deceased Majedur Rahman Maju, Mohammad Ali Dewan, Aziz Mridha, Jabber Mridha were returning home after ending of ‘Islami Jalsha’. Majedur Rahman was the chief guest of said ‘Jalsha’ and when they came 20-30 yards from the Mosque, they saw that two persons facing western side and two persons facing eastern side were sitting in a position as if they were making water. Then they asked them about their identity. In reply to that they said that they were in the “Shava” and Maju told them that he did not see them in “Shava” and thereafter he along with deceased Maju and others again started to walk and after sometimes he heard a sound like ‘W¡p' and when he looked back two persons came to him and asked him to remain silent, otherwise he would be killed but he managed to escape from the place of occurrence and went to the village and raised hue and cry and when the village people came forward, he asked them to go towards the rail line. He saw the slaughtered body of deceased Maju and he did not mention any name to the police.
 
20.    P.W 3 Most. Ferdosi Begum, wife of the deceased in her deposition narrated the First Information Report story and further stated that she heard the name of the accused persons from the villagers and she failed to disclose the name of the accused persons definitely. In cross she stated that P.W 2, Md. Akter Hossain and other witnesses who were accompanying her husband, disclosed the name of the accused persons and at the time of occurrence he was at Natore town and hearing the news she came to her home and saw the dead body in the morning.
 
21.    P.W-4 Md. Matinur Rahman alias Matu Mridha, the younger brother of the deceased, in his deposition stated that while he was in the house at the time of occurrence, one of his neighbour Fajila shouted ‘ও বাবা মাজুকে মেরে ফেলল’ and hearing the same he came out from the house and he went to the place of occurrence and found the dead body of Majidur Rahman on the road. He could not realize who killed his brother. Sometimes after the aforesaid occurrence, again in night some persons were focusing light from the side of ‘Halatir Bill’ towards their village while the village people, after the occurrence of the previous occurrence on 05.04.2003, had arranged for petrol duty (¢hV f¡q¡l¡) for there security and the village people apprehended accused-Asharaf Ali with a torch light and took him at the college field and where Ashraf disclosed and admitted that he was a party to the killing of Maju and Ripon was with him, who dealt a rod blow on the head of Maju and Ataur Rahman had slaughtered Maju by sharp cutting weapon. Shimul was also with him. Hasanuzzaman, Majibur Rahman Mridha, Momtaz and Wares had made a plan to kill the deceased Maju and for that purpose Ataur Rahman took Tk.1,00,000/- from Hasanuzzaman, Mozibur Rahman, Momtaz 4 (four) days before the occurrence and after 12 days of the said killing they also took Tk.1,00,000/- from Hasanuzzaman. This witness identified accused-Ashraf Ali on the dock. In cross-examination he stated that on reaching at the place of occurrence he found the dead body of his brother and he heard about the incident from Azizur Rahman Mridha, Akter Hossain and Mawlana Mohammad Ali. He was not available around when Ashraf was apprehended. He got the news from reading the news paper and Daroga about the confessional statement of Ashraf and he also heard from Ashraf directly about the said killing. He said that he might have given the statement on 30.05.2003 to the police and he could not remember when Ashraf made confessional statement. Ashraf made confession at Madh Nagar College and at that time Azizur Rahman, Akter Hossain, and Mohammad Ali Dewan were not present there, but Sabed Ali and Madhu was there. After half an hour police came to the college filed. He denied the suggestion that accused-Ashraf did not make any extra judicial confession before them. 
 
22.    P.W 5 Mawlana Mohammad Ali Dewan in his deposition made statement in the line of the First Information Report and he further stated that sometimes after the killing, Ashraf Ali was apprehended from ‘Halatir Bill’ and Ashraf Ali voluntarily confessed about his participation in the killing and disclosed that Ataur Rahman, Shimul, Raja and Ripon were with him in committing the offence and he took Tk.2,00,000/- to commit the killing and they had a contract with Hasanuzzaman and he took advance money of Tk.1,00,000/-. This witness also stated that he did not hear the same directly from the mouth of accused.
 
23.    In cross-examination he stated that they failed to identify the accused persons though he was with the deceased at the relevant time. He made statement before the police on 30.05.2003 and in his statement he did not disclose the name of accused-Ashraf and Ataur Rahman and he came to know that Ashraf was apprehended from ‘Halatir Bill’ from the news papers and village people.
 
24.    P.W 6 Md. Afaz Uddin in his deposition stated that on the following day of the alleged occurrence he found the dead body of Maju in the place of occurrence. As a hearsay witness he also stated that when Ashraf was apprehended, he confessed that out of the Tk.2,00,000/- Ripon, Shimul, Raja and Ataur shared the same and committed the offence and Ashraf took money from Hasanuzzaman. Mazibur Rahman was the founder of Madh Nagar Degree College and subsequently he was ousted from the college for misappropriation of money. Subsequently Majedur Rahman established a girls school at Madh Nagar and Mozibur Rahman Mridha tried to resist to establish the same. Mazibur Rahman also established a Technical & Business Management College at Madh Nagar and deceased Majedur Rahman opposed it and ultimately affiliation of said college was cancelled. Regarding the election of Union Parishad there was enmity between deceased and Hasanuzzaman and because of that enmity said Hasanuzzaman made conspiracy and had killed Majedur Rahman by the accused-persons. When Ashraf was apprehended then he made confession before the public and the Magistrate as well. He was not present while accused-Ashraf made his confession before the public.
 
25.    In cross-examination he admitted that he made statement before the police voluntarily, but in his statement before the Court, he said what he had not said before the police.    
 
26.    P.W 7 Md. Azizul Haque (Madhu) in his deposition stated that on 06.06.2003 at night. He was on ‘বিট ডিউটি’ and they saw the focus of a torch light from ‘Halatir Bill’ and they thought that the dacoits were preparing to commit dacoit in the village and they called the village people and forwarded towards the light of torch. Suddenly, they saw that one person was trying to hide himself under the drain of paddy field. They apprehended him, who disclosed his name as Ashraf and he told them not to bit him and thereafter Ashraf was taken to Madh Nagar college field and there Ashraf confessed that he was involved with the killing of Maju Mridha. Ashraf also disclosed that Hasanuzzaman gave Tk.20,000/- to Ataur and from that amount Ataur give him Tk.5,000/- and at the time of committing murder Raja, Ataur, Shimul and Ripon were along with him. Raja dealt a rod blow on the head of Maju and Ataur had slaughtered Moju.
 
27.    In cross-examination he stated that he could not remember whether he made the statement before the police prior or after the statement of accused Ashraf before the Magistrate. He along with 15/20 others apprehended Ashraf and thereafter Ashraf was taken to the college field. Matinur Rahman was there but principle, Azizur Rahman, Abdul Jabber and Ferdosi Begum were not there. He told the said fact to Daroga but did not say anything to the villagers.
 
28.    P.W 8 Md. Sabed Ali in his deposition stated that he, Madhu and Siddique apprehended accused-Ashraf from ‘Halatir Bill’ and thereafter Ashraf was taken to Eidgoan field and thereafter college field and he disclosed before the members of public that they had killed Maju Mridha and Ataur Rahman had slaughtered him. Shimul was with them. Ashraf also told that Hasan and Mamtaz gave Tk.2,00,000/- to them. He received Tk.1,00,000/- prior to the occurrence and after 12 days of the occurrence he received Tk.10,000/-. Thereafter Ashraf was handed over to police. This witness identified accused-Ashraf on dock and also identified the material exhibits-I, II that is the blood stain cloth, sandal and the seizer list and his signature thereon as exhibits-3, 3/1.
 
29.    In cross-examination he stated that when the police prepared the seizer list he was asked by the police but he did not mention the name of any accused person. After the arrest of Ashraf he again made statement before the Daroga. When acused-Ashraf made confession Azizur Rahman, Abdul Jabber Mridha, Mawlana Mohammad Ali Dewan and Principle Afzal Uddin and wife of the deceased were present there.
 
30.    P.W 9 Md. Lutfar Rahman Mridha in his deposition reiterated the First Information Report story.
 
31.    He identified the inquest report and his signature on it as exhibits-4, 4/1.
 
32.    In cross-examination he stated that before the police he stated that Majedur Rahman and 5 persons were coming from ‘Jalsha’ towards the Mosque.
 
33.    P.W 10 Md. Belal Hossain in his deposition identified the inquest report and his signature on it as exhibit-4/2. Defence declined to cross him.
 
34.    P.W 11 Sree Santosh Pramanik alias Sree Santosh Kumar is a hearsay witness and he also identified his signature on inquest report as exhibit-4/3.
 
35.    In cross he denied the suggestion that Ashraf did not make any extra judicial confession.
 
36.    P.W 12 Md. Siddique in his deposition stated that he, Sabed, Modhu and others apprehended Ashraf from ‘Halatir Bill’ and they took Ashraf to college field where Ashraf confessed that he along with Ataur, Ripon, Raja and Shimul killed Maju the also disclosed that for this murder he took Taka 2,00,000/-from Hassan.
 
37.    In cross-examination he stated that he made statement before the police after 2 (two) months of arrest of accused-Ashraf. Daroga took Ashraf from collage field and at that time Akter, Azizur, Matinur, Mohammad Ali, Afaz Uddin, Solaiman, Belal Hossain, Sabed Ali, Madhu and Piyal were there.
 
38.    P.W 13 Md. Habibur Rahman is the Police Constable, who took the dead body to morgue.
 
39.    P.W 14 Md. Asadul Haque Dewan in his deposition stated that on the date of occurrence he being A.S.I was working in Naldanga Police Station and as per the instruction of officer in charge he along with S.I. Abdul High went to the plance of occurrence and found the dead body. Defence did not cross-examine the said witness.
 
40.    P.W 15 Md. Akkas Ali was one of the witness of inquest report. In his deposition he stated that after 2 (two) months of the alleged occurrence Ashraf was apprehended from ‘Halatir Bill’ and Ashraf confessed that he along with Ataur, Ripon, Raja, Shimul killed Maju Mridha. He was examined by the police and he told the police that Ashraf had confessed that he took Tk.2,00,000/- from Muzibar Mridha, Hassan, Momtaz and Wares.
 
41.    In cross-examination he failed to say the date when Ashraf was taken to the college field and at that time Siddique and Matinur were there. He also could not say whether Azizur Rahman was there; Jabbar Mridha and Mawlana Mohammad Ali were not there. He made statement before the police after the arrest of Ashraf and he could not say whether he made any statement on 07.08.2003. He denied all the suggestion given by the defence.
 
42.    P.W 16 Md. Yar Ali in his deposition, he reiterated the deposition made by P.W. 15 and in cross-examination he stated that he is a active member of B.N.P and deceased Maju was the president of B.N.P Union unit. He failed to say the date when Ashraf was apprehended and he made statement after 7/8 days of the arrest of Ashraf. He denied all the suggestions given by the defence.
 
43.    P.W 17 Md. Nazmul Haque, Magistrate, 1st Class who recorded the confessional statement of accused-Ashraf, under section 164 of the Code of Criminal Procedure in his deposition stated that after observing all the formalities as per law and rule, he recorded the statement of accused-Ashraf under section 164 of the Code of Criminal Procedure. He gave him enough time for reflection and he told him that he was a Magistrate, not a police man and he would not hand him over to the police and thereafter the accused-Ashraf voluntarily made his statement under section 164 of the Code of Criminal Procedure. He identified the said recorded statement as exhibit-5 and his signatures thereon as exhibits-5/1, 5/2, 5/3, 5/4. He also stated that accused-Ashraf put his thump impression on it.
 
44.    In his cross-examination he stated to the following effect:
 
“প্রয়োজনে কেউ অসুস্থ হলে তার চিকিৎসার আদেশ মানবিক কারনে দিয়ে থাকি। পুলিশ প্রেফতার করেছিল আসামীকে কত তারিখে  অড়দনক্ষঢ়তভশ করিনি। পুলিশের ইয়ড়ঢ়ষধঁ-তে কত সময় ছিল বলতে পারিনা। ইং ১১/০৬/২০০৩ তারিখে ১২|০০ টায় আমার কাছে আসামীকে উপস্থাপন করেন। আমি ৩.১০ এর পর জবানবন্দি লিপিবদ্ধ শুরু করি। লেখা কটার সময় শুরু করি উল্লেখ নেই। ইং ৮/৬/২০০৩ তারিখের আদেশে ৩ দিনের ছনলতশধ মঞ্জুর হয়েছিল। আসামী অসুস্থ ছিল এরুপ কিছু বা তাকে চিকিৎসা দেয়া প্রয়োজন এরুপ কিছু নেই। ঐ আদেশে তার শরীরে কোন জখম পেয়েছি উল্লেখ নেই। ইং ১১/৬/২০০৩ তারিখের আদেশ আমার লেখা। তদন্তকারী অফিসার আসামীকে রিমান্ড শেষে কোর্টে হাজির করে তার জবানবন্দি ফৌঃ কাঃ বিঃ ১৬৪ ধারা মোতাবেক রেকর্ড করার আবেদন করেছেন। আসামীর পা সহ শরীরের অন্যান্য স্থানে জখমের চিহ্ন আছে। আসামীর চিকিৎসা পত্র পাওয়া গেল। আসামীর দোষ স্বীকারোক্তী লিপিবদ্ধ করা হল। তাকে জেল হাজতে প্রেরন করা হোক। আসামী আশরাফ জনগন কর্তৃক ধৃত হওয়ার সময় জখম হয়েছিল মর্মে জানিয়েছেন। তার চিকিৎসার ব্যবস্থা করার জন্য কারাগার কর্তৃপক্ষ ব্যবস্থা গ্রহন করবেন।”    

He further stated to the effect:
“এই জবানবন্দি স্বেচ্ছা প্রনোদিত ও সঠিক ছিল এই মর্মে আমি সার্টিফিকেট দিয়েছি এই ভাষায় উল্লেখ নেই। আসামী লেখাপড়া জানে কিনা জিজ্ঞেস করিনি। সত্য নয় যে, আসামীকে মারধোর করার জন্য সই দেয়ার কোন ক্ষমতা বা সেজন্য অপরের টিপ নিয়েছি। এই টিপ আমার পিয়ন সনাক্ত করেছে। আমি আসামীর ভাষাতে জবানবন্দি লিখেছি------ আপনি দোষ স্বীকার না করলে পুনরায় পুলিশের কাছে দেয়া হবে না প্রশ্নে উল্লেখ নেই।”
 
45.    This witness denied the suggestion of the defence that he did not record the statement properly and applying judicial mind.
 
46.    P.W 18 Doctor Abdul Kalam Azad, the Residential Medical Officer, held the post mortem and he found the following injuries:

1.   Incised injury over frontal head 04"X01"X bony injury.
2.   Incised injury over anterior aspect of right shoulder 04"X01"X Joint deep.
3.   Incised injury over vertex 04"X01"X Scalp.
4.   Incised injury over occipital region 03"X01"X Scalp.
5.   Incised injury over vertex 02"X01"X Scalp.
6.   One cut throat injury over anterior Lateral aspect of neck 05"X01"X injury of neck, vessels and respiratory tract.
7.   Multiple small incised injuries over left face and anterior chest wall.

Opinion:- Death in my opinion was due to hemorrhage and shock as a result of cut throat injury(No-6) Which was ante mortem & homicidal in nature.
 
47.    In cross-examination he stated that he did not mention in his report the age of injuries and time of death. He did not mention the nature of injuries and about the type of weapon as was used. He denied the suggestion that if the deceased would be given treatment immediately he might not have been died. He denied the suggestion that he gave vague report.
 
48.    P.W 19 S. I Abdul Hai, the 1st investigating officer in his deposition stated that he found the dead body 30 yards away from the western side of the rail way line and the relatives of the deceased identified the dead body. He prepared the inquest report and identified his own signature thereon as exhibit-4/5. He also seized alamats namely blood stain cloth, blood stain grass and sandal and identified the seizure list as exhibit-3/2. He took the photo graphs of the dead body and the place of occurrence which were marked as exhibit-8 and 9 respectively and he also identified the alamats namely blood stain cloth, grass, sandal, ‘chadar’, trouser and panjabi as material exhibits-I, II, III, IV, V and VI. He prepared sketch map and index which were marked as exhibits-10 and 11. He arrested 9 persons out of suspicion. He recorded the statement of some of the witnesses under section 161 of the Code of Criminal Procedure.
 
49.    In cross-examination he stated that deceased Majedur Rahman was the cousin (M¡m¡a i¡C) of State Minister Dulu and Maju was the President of Union Unit of B.N.P and he did not know whether the witnesses belong to any political party. He did not seize any ‘leaflet’ of Purba Bangla Communist Party and he denied the suggestion that he, with malafide motive, refrained from seizing leaflets from the place of occurrence. He asked number of people but none mentioned the name of any accused person and he also admitted that the name of the said persons was not mentioned in the case diary. He arrested two members of the Purba Bangla Communist Party namely Ohi and Jahi and ultimately final report was given in favour of them. He denied the various suggestions given by the defence. On recall he stated that in the photographs there was no signature and he denied the suggestion that with malafide motive he made the photograph as part of the C.D and he also denied the suggestion that he investigated the case under the influence of the Minister. 
 
50.    P.W 20 Din Bandhu Dash the 2nd I.O, who ultimately submitted the charge sheet in his deposition stated that the accused-Ashraf had confessed his guilt before him and thereafter he sent him before the Magistrate to record his statement. After investigation he submitted the charge sheet against 9 persons under section 120(kha)/302/34 of the Penal Code. In cross-examination he stated that on 20.09.2003 he was given charge to investigate the case and up to 11.06.2003 he took statement under section 161 of the Code of Criminal Procedure of 7(seven) witnesses. Afaz Uddin, Anisur Rahman, Akter Hossain did not mention any name of accused persons. Ashraf Ali was apprehended by the villagers on 06.06.2003 and he was handed over to him on 07.06.2003 at 15.10 hours and S.I. Zahangir Alam and A.S.I Md. Asadul Haque took Ashraf Ali to him. He also stated that he did not record any statement of any witness between the days 07.06.2003 and 11.06.2003 and he recorded the statement of the witness after the statement of Ashraf. He further stated to the following effect:

“সাক্ষী মতিনুরের জবানবন্দি ৩০/৫/২০০৩ তারিখে ১৬১ করেছি। সে বলেনি যে, ঘটনার কিছুদিন পর হালতির বিলে লাইট মারছিল। গ্রামের লোক আতংকিত হয় যে, গ্রামে মনে হয় ডাকাত পড়েছে বা গ্রামবাসী বিট পাহারার লোকদের সাথে করে নেমে আশরাফকে ধরে কলেজ মাঠে নিয়ে আসে --------------------- সাক্ষী অাজিজুল হক মধুর জবানবন্দি ১৩/৬/২০০৩ তারিখে নিয়েছি। সে আমাকে বলেনি যে, বিট পাহারার ব্যবস্থা করি। তবে গ্রামে ঈয়ঢ়ঁ এর ব্যবস্থা করি বলেছে। রাতে পাহারা চলছিল বলেনি। তবে রাতে ঈয়ঢ়ঁ ছিল বলেছে। সে বলেনি যে, ছহালতির বিলে টর্চের আলো গ্রামরে দিকে মারছে ----------সে বলেনি যে, হঠাৎ দেখি ১ জন লোক ড্রেনের মধ্যে লুকাচ্ছে। তখন তাকে ধরি বলেনি --------- সাক্ষী সবেদ আলীকে ১৩/৬/২০০৩ তারিখে ১৬১ করেছি। সে বলেনি যে, "হালতির বিলে' টর্চ মারতে থাকে ------- হালতির বিলে আশরাফকে ধরি উল্লেখ নেই ------- সাক্ষী সিদ্দিকের জবানবন্দী ইং ২০/৭/২০০৩ তারিখে ১৬১ করেছি। আসামী আশরাফের স্বীকারোক্তীর প্রায় ১ মাস পর এই সাক্ষীর জবানবন্দী রেকর্ড করি। সে বলেনি যে, ঘটনার পরে রাতে বিট দিচ্ছিলাম বা "বিল' থেকে লাইট মারছিল ---------- সে বলেনি মধু, সে, সবেদ সহ নিয়ে আসামী আশরাফকে ধরে --------- সে বলেনি যে, আমাকে মেরনা  স্বীকার করবো সে বলেনি যে, সে আতাউর, রিপন, শিমুল, রাজা টাকার বিনিময়ে খুন করেছি ---- ইং ৮/৭/২০০৩ তারিখে সাক্ষী আক্কাছ আলীর জবানবন্দি ১৬১ করি। সে হত্যাকারী সম্পর্কে কিছু বলেনি। সাক্ষী ইয়ার আলী আশরাফের স্বীকারোক্তী ও আসামীর সরাসরি হত্যাকান্ডের কথা বলেনি। -------- অভিযোগপত্রে আসামীকে হালতির বিলে ধরা হয় ও জনগনের কাছে স্বীকার করে উল্লেখ নেই।”  
 
51.    He denied the defence suggestion that accused Ashraf Ali was seriously tortured when he was taken to police remand and to save himself he disclosed that the villagers had bitten accused Ashraf. He also denied the suggestion that because of the influence of the Minister he compelled to submit the charge sheet against the accused persons.
 
52.    After closing the evidence, the accused persons, who were present before the Tribunal were examined under section 342 of the Code of Criminal Procedure and accused Ashraf Ali in his statement under section 342 stated to the effect:

----------------------------------|  
প্রশ্নঃ আপনার আর কিছু বলার আছে কি?
“উত্তরঃ- হ্যাঁ। ডাকাতি হচ্ছিল। একজন মেম্বর আমাকে বলে তোমার বিট ডিউটি করতে হবে। তার পর অামাকে বিট থেকে ডেকে গ্রামের লোকজন মারে। অামাকে কলেজ মাঠে ধরে নিয়ে আসে। এটা মাজু মৃধা মারা যাওয়ার প্রায় ৩ মাস পর। আমাকে মাঠে এনে মারধোর করে বাশের সাথে ঝুলাই। আমি অজ্ঞান অবস্থায় কথা বলেছি। এর পর গাড়িতে নিয়ে যায় পুলিশ এসে। এর পর থানায় নিয়ে যায়। ------- আমাকে দুদিন পর কোর্টে নিয়ে যায় ও ৩ দিনের রিমান্ডে নিয়ে আসে। ম্যাজিষ্ট্রেটকে বলি বিট থেকে ধরে কলেজ মাঠে মারে ও রিমান্ডে নিয়ে মারে। নাটোর ------ এনে মারে। ম্যাজিষ্ট্রেটকে বলি অত্যাচার করে। আমি ম্যাজিষ্ট্রেটের কাছে কি বলেছি না বলেছি বলতে পারবো না।”
 
53.    Accused-Ataur at the time of the examination under section 342 also stated to the effect:

------------------------------------।
প্রশ্নঃ আপনার আর কিছু বলার আছে কি?
“উত্তরঃ- হ্যাঁ। হেলাল দারজিতের সাথে অামার পারিবারিক গোলমাল আছে। তারা আ.গ.ঙ এর নেতাদের লাগায়। আমি মার্ডার সম্পর্কে কিছু জানি না। হেলাল আমাকে বলেছিল তোকে দেখে নিব। তার পর এই মামলায় আমার বির্রদ্ধে চার্জশীট দেয়। হেলাল বলে জেলের ভাত খা।"
 
54.    We have heard the learned Advocates of the respective parties, perused the impugned judgment and scrutinized the evidence and other materials on record.
 
55.    In the instance case, there is no eye witness of the alleged murder although P.W 2, P.W 5 and P.W 9 were accompanying the deceased Majidur alias Maju. They could not identify the accused persons neither at the time of the occurrence nor after the occurrence. The learned Druta Bichar Tribunal in fact awarded the conviction relying upon the Judicial and extra Judicial confession of condemned prisoner Ashraf Ali and the learned Tribunal found that the confessional statement of accused-Ashraf Ali made before the Magistrate was true and voluntarily, as the same was recorded by the P.W 17 Md. Nazmul Haque, Magistrate 1st Class with due compliance of law. 
 
56.    Now let us consider whether the statement under section 164 of the Code of Criminal Procedure made by condemned prisoner Ashraf Ali is true and voluntary one.
 
57.    From the cross-examination of P.W 17, the Magistrate, who recorded the statements under section 164 of the Code of Criminal Procedure, of condemned prisoner Ashraf Ali, it is manifested that when Ashraf Ali was produced on 11.06.2003 before him by the police after remand, several marks of injury were found on his body, although he stated that said injuries were caused on his person when he was apprehended by the villagers. This explanation of P.W 17 is not acceptable to us. When accused-Ashraf was first produced before him on 08.06.2003 in the order sheet he did not mention anything about such injury/ injuries and P.Ws 4, 7, 8, 12 and 16, who stated about the extra judicial confession made by the accused-Ashraf Ali, neither in their deposition nor in cross-examination they stated like that when accused-Ashraf Ali was apprehended by the villagers the unruly villagers assaulted accused-Ashraf Ali, but they deposed clearly and consistently that Ashraf Ali was taken by the police from college filed. 
 
58.    P.W 20, the investigating officer in his cross-examination admitted that accused-Ashraf Ali was placed before him on 07.06.2003 at 15.10 by S.I. Zahangir Alam and A.S.I Asadul Haque. Said police officers were not produced before the Court and examined by the prosecution as P.Ws, which also creates doubt about the manner of very arrest of the condemned prisoner Ashraf Ali. If we carefully scrutinize the cross-examination of the P.W 17 and P.W 20, a reasonable suspicion would give rise in the mind of a prudent man that accused-Ashraf Ali might have been tortured, when he was under police remand. The confessional statement was allegedly made after 3 days of police remand and after remand when accused-Ashraf Ali was produced before the Magistrate, several marks of injury were found on his body and in such attending facts and circumstances of the case, the truth and voluntariness of the confessional statement, exhibit-5 becomes highly questionable and doubtful and it would not be safe and legal to convict a person relying upon only a such doubtful and questionable confessional statement and sentence him to death by awarding capital punishment.
 
59.    Moreover, it appears from exhibit-5, the confessional statement, that the recording Magistr-ate did not fill up the column Nos. 8, 9 and 10 of the form. Column No.8 of the form reads as follows:

“8. Brief statement of Magistrate’s reason for believing that the statement was voluntarily, made.
[Note.- Any complaints of ill-treatment of injuries noticed on the accused or referred to by the accused should appear under paragraphs 6 and 7 but should be specifically noticed here and the action taken by the Magistrate thereon should be mentioned. When the confession is recorded otherwise than in the Court building and during Court hours the Magistrate’s reasons are likewise to be recorded here.]”
And column 10 of the form reads as follows:
“10. The accused is forwarded to ………………..at.”
 
60.    Regarding the non filling of the said columns of the form, the learned Deputy Attorney General referred the case of Salauddin –Vs- State, reported in 32 DLR(HC) Page-227 and submits that it is a mere irregularity and failure to comply with requirement of column 8, 9 and 10 of the form at best it will mean violation or non-compliance of same circulars and same is curable under section 357 of the Code of Criminal Procedure. On the other hand the learned Advocate of the defence submits that the mandatory provision of law as contemplated in section 164(3) of the Code of Criminal Procedure has been violated in not filling the said columns under the requirement of law and in support of his confession he referred to the case of Abul Hossain and others –Vs- The State, reported in 13 BLD, Page- 311wherein it has been held that:
“This sub-section speaks of the manner as to how a confession of an accused is to be recorded by a Magistrate and this is a mandatory provision and failure to comply with it shall make the confession invalid and unreliable. This provision of law along with provisions of section 364 of the Code of Criminal Procedure requires to be strictly observed and followed to make the confession voluntary and true in the real sense to be fit for reliance for convicting an accused on his confession.”
 
61.    Column 8 of the form bears important significant. A Magistrate after recording statement under section 164 of the Code of Criminal Procedure should have given a certificate that it appears to him that the confession made by the accused is true and voluntary and in a case where mark of several injuries were found on the body of the accused person, he should have satisfied himself that the statement was true and voluntary and it was not the result/ act of any torture and he ought to have given a certificate in his own hand in column 8 of the form as to the truth and voluntariness of such statements and in not giving such certificate, in this particular case, also creates a doubt that the learned Magistrate might have recorded the confessional statement in a casual manner and mechanical way without making necessary endeavour to ascertain the truth and voluntariness of the statement. Column 10 is found blank, which is not desirable and it shows the non application of mind of the recording Magistrate. Omission to fill up column 10 of the Form creates a presumption that accused was under the threat of being sent back to the police remand instead of sending him in jail hajat. P.W 17, the recording Magistrate in his cross-examination admitted to the effect:

"আপনি দোষ স্বীকার না করলে পুনরায় পুলিশের কাছে দেয়া হবেনা  প্রশ্নে উল্লেখ নেই।''
 
62.    In such facts and circumstances is very difficult for us to hold that statement under section 164 of the Code of Criminal Procedure is voluntary one and same was recorded complying the mandatory provision of law.
 
63.    In this connection we may refer the case of Sarwan Singh Rattan Singh –Vs- State of Punjab, reported in P.L.D 1957(SC)555, where it has been observed as follows:

“The act of recording confession under Section 164 Criminal P.C. is a very solemn act and, in discharging his duties under Section 164, the Magistrate must take care to see that the requirements of sub-section (3) of Section 164 are fully satisfied. It would, of course, be necessary in every case to put the questions prescribed by the High Court circulars but the questions intended to be put under Sub-section(3) of Section 164 should not be allowed to become a matter of mere mechanical inquiry. No element of casualness should be allowed to creep in and the Magistrate should be fully satisfied that the confessional statement which the accused wants to make is in fact and in substance voluntary. The whole object of putting questions to an accused person who offers to confess is to obtain an assurance of the fact that the confession is not caused by any inducement, threat or promise having reference to the charge against the accused person as mentioned in section 24 Evidence Act.”
 
64.    In case of Mrs. Jobaida Rashid –Vs- State, reported in 17 B.L.D, Page-352 their Lordships held:

“Columns 3, 4 and 8 of the prescribed form for recording confessions have not been filled up by the Magistrate. Therefore this piece of paper (confessional statement of the petitioner) is highly doubtful having no credibility and as such unworthy of consideration by any Court.”
 
65.    In the case of Mst. Saida Begum –Vs- The State, reported in P.L.D 1958(Lahore) Page,559, wherein it has been observed as follows:

“Beside putting the set questions the Magistrate is required to make a real endeavor to find out the voluntary nature of confession, it is a solemn duty which should be performed with great care and caution, and not mechanically.”
 
66.    Having discussed as above and considered the above reported cases together with the cross-examination of P.W.17, the recording Magistrate and P.W 20, the investigating officer and the statement of accused-Ashraf Ali before the Court at the time of examination under section 342 of the Code of Criminal Procedure, we are of the view that the exhibit-5, the confessional statement is not true and voluntary one and the Magistrate recorded it mechanically and failed to perform his solemn duty.
 
67.    Now let us consider how far the extrajudicial confession of condemned prisoner Ashraf would be taken to consideration as evidence in the facts and circumstances of the present case.
 
68.    P.W 4 Md. Matinur Rahman, in his cross-examination stated to the effect:

“তবে ঘটনার দেড় মাস ২ মাস পার হতে পারে। মাধনগর ডিগ্রী কলেজে সে স্বীকার করেছিল। তখন আজিজুর রহমান, আকতার হোসেন, মোহাম্মদ আলী দেওয়ান ছিলনা।”

And P.W 7 Md. Azizul Haque alias Madhu in his cross-examination stated to the effect:
“আমরা যারা বিটে ছিলাম তাদের নাম বলতে পারি। আসামীকে কলেজ মাঠে নিয়ে আসি। তখন প্রন্সিপাল, আজিজুর রহমান মৃধা ছিলনা। আঃ জîার, ফেরদৌসী বেগম ছিলনা। মাতেনুর রহমান ছিলেন। মওলানা মোহাম্মদ আলী ছিলেন কিনা জানি না। ------- আমাকে দারোগা জিজ্ঞেস করলে তাকে বলেছি। এর পূর্বে আসামী স্বীকার করেছে আমি কাউকে বলিনি। আমি গ্রামের লোককে বলিনি।''

And P.W 8 Md. Sabed Ali, in his cross-examination stated to the effect:
“মাঠে আসামী আশরাফকে ধরার পর আমাদের কাছে স্বীকার করে। আসামী ধরা পরার পর দারোগা পরবর্তীতে জবানবন্দি নেয়। তখন আসামী আশরাফ স্বীকার করে তখন আজিজুর রহমান আঃ জîার মৃধা ছিল। তারা ঘটনা শুনেছে। তখন মৃতের সত্রী ছিল। মওলানা মোহাম্মদ আলী দেওয়ান ছিল। প্রিন্সিপাল আফাজ উদ্দিন ছিল। তারাও শোনে আমিও শুনি।”
 
69.    P.W 12 Md. Siddique in his cross-examination stated to the effect:

"দারোগা এসে কলেজ মাঠ থেকে আশরাফকে দিয়ে যায়। তখন  আক্তার, আজিজুর, মাতিনুর, মহাম্মদ আলী, আফাজ উদ্দিন, সোলায়মান, বেলাল হোসেন ছিল। সবেদ আলী ছিল। মধু ছিল।''
 
70.    From the said evidence, it manifests that the witnesses made contradictory statements regarding the presence of witnesses, in whose presence the alleged extrajudicial confession was made.
 
71.    Further P.W 12 Md. Siddique admitted in his cross-examination that he was examined by the police after 2 months of the arrest of accused-Ashraf Ali. P.W 20, the Investigating Office in his cross-examination admitted to the effect:

"আমি ৭/৬/২০০৩ তারিখ থেকে ১১/৬/২০০৩ তারিখ সময়ের মধ্যে যারা আসামী আশরাফকে ধরেছিল ও আশরাফ তাদের সামনে স্বীকার করেছিল তাদের ১৬১ ঐ সময়ের মধ্যে করিনিz ১১/০৬/২০০৩ তারিখ আসামী আশরাফ আলীর ম্যাজিষ্ট্রেটের কাছে জবানবন্দি দেয়ার পর সাক্ষীদের ১৬১ করেছি।''
 
72.    This delay in recording the statement under section 161 of the Code of Criminal Procedure of witnesses particularly P.W 4, 7, 8 and 12, who stated about the extrajudicial confessional of Accused-Ashraf Ali, renders their evidence shaky and chance of embellishment can not be ruled out. It also appears to us that P.W 4, 7, 8, 12 and 16 narrated the extra judicial confession of the Ashraf Ali in different way and the said witnesses contradict each other. In view of the above discussion, we are of the opinion that the learned Judge of Druta Bichar Tribnal acted illegally relying upon the alleged extra judicial confession of accused- Ashraf Ali which was not corroborated by any other legal evidence.
 
73.    We have already found exhibit-5, the confessional statement of accused-Ashraf Ali is not true and voluntarily and not free from doubt and thus the questionable extrajudicial confession of Ashraf Ali can not be said a corroborative evidence of the same and as such the conviction of accused-Ashraf Ali relying upon those is unwarranted in law.
 
74.    As we have already discarded the judicial and extrajudicial confession of accused-Ashraf Ali as legal evidence, the conviction of other accused namely Ataur Rahman, Ashraf alias Raja Saiful Islam alias Ripon and A. Jail alias Simul relying on the same can not be sustained. Further it is well settle principle of law that confession of an accused can not be treated as substantive evidence against another accused but that it can only be used to lend assurance to other evidence. In this connection we can rely upon the case of Lutfun Nahar Begum –Vs- The State, reported in 27 DLR(AD), Page 29, Babor Ali Molla and other –Vs- State, reported in 44 DLR(AD), Page 10 and the case of Ustar Ali -Vs-State, reported in 3 BLC(AD), Page 53 respectively.
 
75.    In the instant case we found that there was absolutely no legal and trust worthy evidence against any of the non-confessing accused persons and total absence of such legal and trust worthy evidence against them, the confession of their co-accused persons could not be collect in aid to lend assurance to non-existent evidence on which conviction could be passed and thus, the conviction of accused-Ataur Rahman, Ashraf @ Raja, Saiful Islam @ Ripon and A Jalil @ Simul relying upon the confessional statements of co-accused Ashraf Ali is illegal and same can not be sustainable in law.
 
76.    In the case of Amir Hossain Hawlader –Vs- The State, reported in 1984 BLD(AD), Page 193, it has been observed as follows:

“In the case of Gul Hassan and another V. The State, PLD 1969 SC 89, the absconsion of an accused was considered to be a corroborating evidence against him, but in that case there was no confessional statement of any co-accused in support of which absconsion of another accused was held to be a corroborating evidence. In that case, one Karim Khan was shot dead by one of the accused within the sight of three witnesses who gave direct evidence that one of the accused had fired a double barrel gun and another accused a pistol after which they absconded. In that case the absconsion was considered to be corroboration to the direct evidence of the eye-witnesses connecting the accused with the murder. Reference to this case has no bearing with the question raised in the instant case. In the case of Md. Bashir V.l The State, Supreme Court Monthly Report (1970) Voll. III, 351, the assailant shot the victim with a pistol, pursued him when the latter ran and again fired two shots and then absconded; he was arrested from a distant place and his absconsion was held to be corroboration of the direct evidence of four witnesses who claimed to have seen him firing upon the deceased victim. In the case of Md. Rafiq V. The State, PLD (1974) SC 65 the assailant killed his victim by firing a pistol thrice, absconded and was arrested after a year from a distant place; his absconsion was considered to be a corroboration to the direct evidence of three witnesses who claimed to have seen him firing the pistol shots. I fail to understand why these cases have been cited by the learned Deputy Attorney General seeking corroboration in this case of the confessional statement of Sattar Mir so as to implicate thereby these appellants who absconded but against whom there is no evidence except the co-accused Sattar’s confession. No decision could be cited by the learned Deputy Attorney General showing that the absconsion of an accused has been held to be corroboration to the confessional statement of another accused so as to base thereon conviction of the absconding accused.”
 
77.        In view of the said observation of our Appellate Division we are of the opinion that in the attending facts and circumstance of the instant case the absconsion of accused-Saiful Islam and Abdul Jalil can not be treated as corroborative evidence of judicial and extrajudicial confession of accused-Ashraf Ali, in absence of any other direct evidence.
 
78.        The learned State defence lawyer submits that notification as per provision of section 339B(1) of Code of Criminal Procedure published in Daily Ajker Kagoj News Paper is defective one as the police station case number had wrongly mentioned in the notification. We have perused the notification published in the newspaper and found that in the notification Police Station case number had been mentioned as Nator Police Station but the present case is Naldanga Police Station Case No.3 dated 05.04.2003. Thus, this notification can not be said a proper and legal notification and subsequent proceeding is illegal and it vitiates the trial, so far the absconding accused persons are concerned.  
 
79.        In the instant case convict Ashraf Ali and Ataur Rahman at the time of examination under section 342 of the Code of Criminal Procedure made statement in support of their innocence and also as to their respective confessional statement, but the learned Druta Bichar Tribunal did not at all take notice of those and did not consider the same with reference to the evidence on record. The learned Tribunal is not justified in ignoring the statements of the said accused persons recorded under section 342 of the Code of Criminal Procedure and by such non-consideration the merit of the case had been materially affected.
 
80.        In view of our above discussion we hold without any hesitation that the learned Druta Bichar Tribunal erred in law in passing the impugned judgment and order of conviction and sentence and we are inclined to interfere which the same.
 
81.        Accordingly, the Death Reference No.96 of 2005 is hereby rejected. Criminal Appeal No.3243 of 2005 and Jail Appeal No.768 of 2005, 769 of 2005 and 770 of 2005 are allowed. The impugned judgment and order dated 05.07.2005 passed by the learned Judge, Druta Bichar Tribunal; Rajshahi in Druta Bichar Tribunal Case No.16 of 2005 is hereby set aside. All the convicts are acquitted from the charge brought against them and the condemned prisoners are set at liberty at once, if not wanted in connection with any other case.               
 
82.        The learned State defence lawyer submits that the conviction warrant issued by the Trial Court against the absconding accused-Saiful Islam alias Ripon  son of A. Jabber, and A. Jalil alias Shimul son of late Kapir Mondal, may be withdrawn. On submission of the learned State defence lawyer, the trial Court is directed to re-call the conviction warrant issued earlier against the above named absconding accused-Saiful Islam alias Ripon and Abdul Jalil alias Shimul.

Send down the lower Court record at once.

Ed.