Case No: Death Reference No. 164 of 2005
Judge: Md. Shamsul Huda,
Court: High Court Division,,
Advocate: Mr. Abdul Baset Majumdar,,
Citation: 1 LNJ (2012) 315
Case Year: 2012
Appellant: The State
Respondent: Md. Abdur Rouf Dewan @ Robu
Delivery Date: 2011-01-27
(Criminal Appellate Jurisdiction)
|Md. Shamsul Huda, J.
Md. Abu Bakar Siddiuqe, J.
. . .Appellant
Md. Abdur Rouf Dewan @ Robu
...Condemner Prisoner and others Respondents.
It is well settled that enmity cuts both the ways i.e. there is chance of commission of offence by the accused persons and similarly there is chance of false implication in any criminal case. ......(16)
Code of Criminal Procedure (V of 1898)
Sections 154 and 161
Neither the delay of 15/16 days has been explained in the FIR nor in the deposition of PW.1 when the informant herself is a police official and before lodging the FIR she went to the concerned police station and met with the Investigating Officer for several times and none prevented her from lodging the FIR. The delay in lodging the FIR gives opportunity to the prosecution for making embellishment and false implication. Before lodging of the FIR the police started investigation on the; basis of a G.D entry and such FIR is not an FIR which can at best be treated as statement of witness under Section 161 of the Code....(35)
Evidence Act (I of 1872)
Last seen – The PWs. 2 and 4 have disclosed in their evidence that they have seen the deceased with the accused persons, that is, Rouf Dewan and Hakim Dewan were standing with a Motorcycle by the side of the Balia Baid Road and such evidence does not create any credence as it is not their case that the accused persons have followed him with Microbus and abducted him....(36)
Code of Criminal Procedure (V of 1898)
Sections 164 and 364
In the statement of Ansar Ali neither he implicated himself in the commission of offence nor an abettor when the learned Magistrate clearly stated that Ansar Ali declined to make a confession under section 164; CrP.C and it is not understood how the I.O or the prosecution treated him as accused and how was he implicated in the charge sheet as accused and how the Magistrate considered him as witness. Under such circumstance, it was the duty of the Magistrate to send him to custody without recording his statement as a witness. The Magistrate exceeded his jurisdiction and played the role of the police officer in recording the statement for which he was not instructed . The statement of Ansar Ali is not admissible in evidence as it is difficult to ascertain as to whether it was recorded treating him as an accused or a witness. The learned judge acted illegality basing his judgment on the so called statement of Ansar Ali treating it as confession of an accused. ....(39 to 43)
Code of Criminal Procedure (V of 1898)
The delayed examination of witnesses by the Investigating Officer afforded an opportunity of concoction and it makes testimony of the witness unreliable. The chart shows that the prosecution witnesses were examined at a belated stage without any explanation and as a result their testimony became untrustworthy and unreliable. Therefore, no conviction can be recorded relying on their testimonies and thus from the above facts this case can safely be considered as a case of no evidence. ....(45 to 49)
Abdul Latif alias Budu vs. The State, 44 DLR-492; Akhtar Hossain alias Babul Akhtar Vs. State, 44 D.L.R. 83; State Vs. Paran Chandra Baroi, 2 BCR-292,16 DLR 161; Golam Mohammad Khan Vs. King Emperor, reported in 54 CWN, 464 (PC); Kazi Mahbubuddin Ahamed Vs. the State, 25 BCR (HC) 216 ref.
Mr. Munsurul Huqe Chowdhury and
Mr. Fazlul Haq Khan Farid, Advocates
Mr. K.M. Zahid Sarwar, DA.G with
Mr. Md. Zakir Hossain Ripon, A.A..G. and
Mr. Monzu Naznin (Rosy), A.A.G.
Death Reference No. 164 of 2005 with Criminal Appeal No. 4887 of 2005, Criminal Appeal No. 4909 of 2005, Criminal Appeal No. 4999 of 2005 and Jail Appeal No. 1274 of 2005.
1. This reference under Section 374 of the Code of Criminal Procedure, 1898 has been made by the learned Judge, Druta Bichar Tribunal No. 1, Dhaka in respect of condemned prisoner Md. Abdur Rouf Dewyan @ Robu Vide স্মারক নম্বর:- দ্রুত: বি: ট্রা: ১./ ফৌ: - ১৯২ তারিখ ১০-১১-০৫ইং for confirmation of the death sentence passed by him in Druta Bichar Tribunal Case No. 8 of 2005 arising out of Savar Police Station Case No. 48(2)99 corresponding to G.R. No. 168 of 1999 convicting all the accused appellants under Section 302/34 of the Penal Code and sentencing appellant No. 1 to suffer death by hanging and sentencing each of the rest appellants to suffer rigorous imprisonment for life and also to pay a fine of tk. 50,000/- each in default to suffer rigorous imprisonment for 2 years more and also convicting the appellants under Section 201 of the Penal Code and sentenced them to suffer rigorous imprisonment for 7 years and to pay a fine of Tk. 10,000/- each in default to suffer rigorous imprisonment for a period of one year more. On the other hand Jail Appeal No. 1274 of 2005 having been preferred by the condemned prisoner and regular Criminal Appeal No. 4909of 2005 has been preferred by the condemned prisoner along with Appellant Nos. 2) Md. Samsul Alam Samsu and 3) Abdul Hakim Dewyan and Criminal Appeal No. 4887 of 2005 has been preferred by appellant Md. Ansar Ali and Criminal Appeal No. 4999 of 2005 has been preferred by appellant Md. Zakirul Islam alias Jewel against the judgment and order of conviction and sentence dated 20.10.2005.
2. Criminal Appeal No. 4887 of 2005, Criminal Appeal No. 4909 of 2005, Criminal Appeal No. 4999 of 2005 have been filed by all the appellants and Jail Appeal No. 1274 of 2005 has been preferred by the condemned prisoner, which were taken together and heard along with the death reference.
3. The prosecution case, in short, as gathered from the record that one Most. Noor Jahan Begum, Head Mohrar, D.C. (North Police) Office, Dhaka lodged a first information report on 17.2.1999 at about 12.50 hours alleging inter alia that on 2.2.1999 her husband Late Nayem Uddin, Office Assistant. Police Head Quarter, D.M.P, Dhaka went to his native village after taking part in the Monajat of the Bishwa Estama. His native home is situated at village Barachalia under Kaliakoir Police station. District- Gazipur. On 2.2.1999 he started from his home towards his office in the morning, but he did not return home till 3.2.1999 as a result she sent her son to her native village in search of her husband and on that day at about 1.30 hours her son and one sister-in-law and one Sanowar Hossain informed her over telephone that he husband went on 2.2.1999 at 7 a.m. by a Motor cycle towards his working place. On getting this information she started searching her husband. At about 16 hours she got an information from DMP that the dead body of her husband is lying in the morgue of Dhaka Medical College Hospital. The dead body of her husband was sent by Savar Police Station to Dhaka Medical College Hospital and on search from Savar Police Station she came to know that her husband was killed and with an intention to conceal his dead body somebody have thrown the dead body at the side of Burirtake Kabirpur kancha road. She suspected that co-villager Abdur Rouf Dewan, Hakim Dewan, Samsu Dewan all sons of Sobhan Dcwan and Abdul Quddus, all of village- Barachala might have killed her husband as they had long standing enmity with her husband. In the last year there was uproar in between them over a Fishery Firm and enmity has been increased and as a result of which those persons might have killed her husband.
4. After recording the First Information Report on 17.02.1999 police investigated the case and submitted charge sheet No. 50 dated 23.2.2003 implicating Md. Abdur Rouf Dewan @ Robu, Md. Samsul Alam @ Samsul, Abdul Hakim Dewyan, Ansar Ali and Md. Zakirul Islam alias Jewel but excluded Md. A. Sobhan. Aynal Kha, Zakir Hossain and A. Quddus from the change sheet.
5. After observing all legal formalities at first the case was transmitted to the learned Additional Sessions Judge, Dhaka, who framed charge against the aforesaid accused persons under Section 302/201/34 of the Penal Code. Thereafter it was transferred to the Druto Bichar Tribunal No. 1, Dhaka for trial.
6. It may be mentioned here that before lodging the F.I.R. one U.D. case being No. 6 dated 2.2.1999 was started on the information of S.I. Md. Kamru-zzaman.
7. Mr. K.M. Zahid Sarwar, learned Deputy Attorney General while placing the reference before us he thoroughly read over the F.I.R., charge sheet, charge, evidence on record and the impugned judgment and submits that although in this case there is no eye witness of murder, but there is strong circumstantial evidence that the deceased while coming to Dhaka by a Motor Cycle he was seen by Md. Abdul Ali and he saw the deceased standing on the road of Balia Bayed with Rouf Dewan and Hakim Dewan and P.W. 4 Abdur Rahim saw the deceased going towards Dhaka by a Motor Cycle and he saw a Microbus wherein he could identify one Shamsu Dewan inside the Microbus and subsequently during investigation one accused Ansar Ali named a confessional statement. stating that on the fateful day some persons brought, the deceased in a Microbus and pushed him into Sultana Decorator wherein he is a Caretaker, and they shut down the shutter of the Decorator shop and he heard sound of fighting inside the Sultana Decorator while he was standing outside the said shop and after some time one of those persons, who was standing outside opened the shutter and Ansar Ali helped him to open the shutter and they carried the person by Microbus and subsequently the dead body was recovered.
8. In Postmortem report it appears that the deceased was killed by throat ling. Ansar Ali could identify Abdur Rouf Dewan. The learned Deputy Attorney General strenuously submits that in this type of case sometimes the independent witness do not come forward to depose against the accused persons with whom deceased had long standing enmity and as a result the witness who are related to deceased have deposed in this case and for the reason of relationship their testimony cannot be disbelieved. The circumstances which has been proved by the prosecution witnesses, the case is well proved and the learned Judge of the Tribunal rightly convicted the accused persons.
9. Mr. Abdul Baset Majumder, Mr. Minsurul Huq Chowdhury and Mr. Fazlul Haq Khan Farid appeared for the appellants in different appeals.
10. Mr. Fazlul Haq Khan Farid, learned Advocate argued on behalf of the appellants except Ansar Ali. Md. Ruhul Amin Bhuiyan, the learned Advocate advanced his argument on behalf of appellant Md. Zakirul Islam alias Jewel. Their main argument is that total allegations against all the accused persons is nothing but a cock and bull story. Learned Advocate Mr. Farid at first drawn our attention to the F.I.R. and submits that the alleged occurrence took place on 2.2.1999 and the F.J.R. was lodged on 17.2.1999. The informant herself is a responsible official of the police department and at the same time the deceased was also an official of police department and there is no earthly reason for causing delay in lodging the F.J.R. which was lodged after such a long time. In this connection the learned Advocate has drawn our attention to the evidence of the first investigating officer and submits that the P.W. 1 admitted that before lodging of the F.I.R. the informant several times met the investigating officer and he conducted investigation on the basis of a G.D. Entry, but nobody prevented her to lodge the F.I.R. at an earliest possible time. The cause of delay is not at all explained in the F.I.R.
11. In this regard reference may be made to 44 DLR-492, Abdul Latif alias Budu vs. The State:
Held: "The court has always viewed First Information Report with grave suspicion when there had been unexplained delay in lodging it. It can be presumed that the delay was caused for manipulation of the prosecution story."
12. Further, admittedly the so called F.I.R was lodged during investigation having been conducted by the police with reference to Saver P.S.G.D.E No. 89 dated 02.02.1999 and as such the F.I.R. which has been exhibited in the court is not admissible in evidence in as much as the same is nothing but a statement of witness being recorded under section 161 of the Code of Criminal Procedure.
13. In this regard reference may be made to 44 D.L.R. 83, the case of Akhtar Hossain alias Babul Akhtar Vs. State-
Further reference may be made to the case of the State Vs. Paran Chandra Baroi. Reported in 2 BCR-292:
Held: "It is now well settled that the first Information Report recorded after commencement of investigation is a statement of a person before the police and is inadmissible in evidence. Therefore, there is no First Information Report in the present case, the same being inadmissible.”
14. In view of the aforesaid reported decisions we hold that in this case the so-called belated F.I.R. is inadmissible in evidence and since the earlier G.D.E. has not been produced before the trial court the case has no leg to stand.
15. Learned Advocates for the defence strenuously argued that the several investigating officers investigated the case one after another and lastly the C.I.D falsely implicated the convict accused persons being influenced by the informant as she herself and her deceased husband were officials of police department and one of their relation was high ranking police officer at the relevant period.
16. As regards previous enmity of deceased with the F.I.R. named accused persons, particularly the appellants has not been proved at all and if for argument sake it is admitted that there was enmity in between them but h
17. On the other hand the learned Judge of the Tribunal without applying his judicial mind convicted the accused persons and he has passed death sentence in respect of condemned prisoner in a case which is practically a case of no evidence and as such they humbly prayed to reject the reference and to allow the appeals.
18. Now let us discuss the evidence on record.
19. P.W. 1 corroborated her F.I.R. story and proved the same which was marked as exhibit- 1. She did not give any explanation as to cause of delay in lodging the F.I.R. before the court in her deposition. In cross examination she stated that the dead body of her husband was buried on 4.2.1999 at his village home where she met with her brother -in-law Abdur Rahim but she was not told by Abdur Rahim that he saw the deceased before his death. She further stated that she went to Thana after 3 days of burial of her husband but she lodged the F.I.R. on 19.2.1999 (although F.I.R. was lodged on 17.2.1999) as appeared from the case record. She denied the suggestion that the convict accused appellants are not involved with the commission of murder of her husband. In fact she could not prove the occurrence of murder of her husband.
20. P.W. 2 Md. Abdul Ali stated in his examination in-chief that on 2.2.1999 at about 8.00/ 8.30 a.m. he saw Abdur Rouf Dewan, Hakim Dewan and deceased were standing with a Motor Cycle at Baliya Bayed road situated on the way to Vawal to Mirzapur and also he found one white Microbus at the right side, wherein 5-7 persons were sitting. Near the aforesaid place there was a decorator shop namely, Sultana Decorator. On the next day he heard that Nayemuddin was missing. He deposed before the police and Magistrate. He proved the statement made before the Magistrate which was marked as Exhibit-2. In his cross examination he admitted that the deceased is the cousin of his wife Hanufa Begum. He further stated in cross examination that there is bus stand at Vowal Mirzapur road, a High School and a big Bazar are situated therein where good numbers of people used to assemble. His house is situated on the other side of Turag River at a considerable distance from Vowal Bazar and he used lo maintain his family by catching fish and selling the same. He further stated that, “সুলতানা ডেকোরেটর এক একটি ছাপড়া। ছাপড়াটির চতুর্দিকে খোলামেলা। সেকানে একটি দোকান রয়েছে। খালি জায়ার একটি বড় বিক্র ফিল্ড রয়েছে। সুলতানা ডেকোরেটরের পূর্ব দিক দিয়েও এবং পশ্চিম দিক দিয়ে আবু সাইদ সড়ক দিয়েও ব্রীক ফিল্ডে যাওয়া যায়। ব্রিক ফিল্ডে হাজার হাজার শ্রমিক কাজ করে। রাসত্মাটির পূর্বে যেয়ে উত্তর দিকে একটু দূরে ব্রীক ফিল্ড রয়েছে। ব্রীক ফিল্ড ও সুলতানা ডেকোরেটরের মাঝকানে আরো বাড়ী রয়েছে, উক্ত বাড়ীর মালিকগণের নাম আমার জানা নাই।” He further stated that he never entered into the Sultana Decorator and he could not tell whether the said decorator shop was open or not on the date of occurrence. When he deposed before police he was accompanied by the informant to the Thana. He attended the Janaja of deceased, when he met with the informant and Sanowar Master and the mother of Nayem Uddin and other relations of Nayem Uddin. But he did not disclose the above fact to them. In cross-examination he stated that “আমি যা ঘটনাস্থলে দেখেছি সে কথা জানাযার দিন কাউকে বলা আমার বাধা ছিলনা। আমি বলি নাই। জানাযার দিন ৫/৬ জন পুলিশ ছিল। জানাযায় যারা এসেছিল পুলিশ তাদের কাউকে সেদিন ভয় দেখায় নাই। এলাকার লোকজন পুলিশের সাথে কথাবার্তা বলেছে।” He further re-affirmed that he did not tell the aforesaid story to anybody, although he met with many relations of deceased Nayem Uddin. He did not inform the matter to the Member, Dafadar who attended the Janaja of Nayem Uddin. He made statement to the police after burial of deceased and there are serious material contradictions in between deposition made in the court and his statement before the police.
21. P.W. 3 Md. Sanowar Hossain, the full brother of the deceased. He corroborated the P.W. 1 on ma material points as regards previous enmity over the administration of locality and fisheries. He stated in his examination-in-chief that on 2.2.1999 about 7.00/7.30 a.m. deceased Nayem Uddin went away from his house by a Motor cycle, but he did not go to his working place or his residential place at Dhaka and on getting information he started searching for Nayem Uddin in different hospital and lastly he came to know that the dead body of his brother was lying in the morgue of Dhaka Medical College Hospital. Subsequently he come to know that the deceased was killed inside the Sultana decorator and one of the employee of the Sultana Decorator was arrested who made confessional statement under Section 164 of the Code of Criminal Procedure and admitted the occurrence. One Microbus was following his brother while he was coming by a Motor Cycle. The Motor Cycle belonged to him. In cross examination he staled that Mozammel Hoq is a High ranking police official, who is his uncle. He admitted that he never visited Sultana Decorator. He deposed before the police that after 1.5 months of the occurrence and when he was deposing before the police witness Abdur Rahim. Shahab Uddin, the informant and A. Ali were present. He stated that he told the police that his brother might have been killed by the aforesaid accused persons. He made contradictory statement to the police as regards seeing and hearing that the deceased was killed inside Sultana Decorator or nobody followed by the Microbus while he was going to Dhaka or he did not tell the investigating officer that his brother was found in front of Sultana Decoration or accused Abdul Hakim Dewan, Shamsu Dewan and Rouf Dewan were talking wilh Nayeem Uddin.
22. P.W. 4 Abdur Rahim is the brother-in-law of deceased stated in his examination in chief that on 2.2.1999 at about 7.30/ 7.00 a.m. he came to Mirzapur Bazar in connection with his own wood business and while he was going to his father-in-law's house he heard that deceased came out from his house by a Motor cycle and while he reached at Bus stand he found that the deceased was going by Motor Cycle and on his way back to Bazar he found a Microbus, wherein he found Shamsu Dewan inside the Microbus. He suspected that the person who were in Microbus might have killed his brother-in-law and brought his dead body at Kabirpur under Savar Police station as there had been enmity in between the accused persons and the deceased. He also told in cross examination that his paternal uncle-in-law Mozammel is high official in the police department. In cross examination he denied the suggestion that witness Abdul Ali was accused in a arson case. He stated that Abdul Ali did not tell him anything. He also did not ask Ali anything. He denied the suggestion that he did not tell the I/O that he saw Shamsu Dewan. Practically this witness did not prove any occurrence of murder or did not directly implicate anybody in this case.
23. P.W. 5 Md. Hanif Hossain and P.W. 6 Shagor Ali brought new story which are not at all connected with the case of alleged murder of the deceased. They have told that after lapse of 2 years when they were going by the side of some accused persons they told that they have killed Nayeem Uddin and which may happen in the fate of this witness. But the learned lawyer who conducted the defence case has cross examined them unnecessarily, violating the norms of cross examination. The evidences of these two P.Ws. will not help the prosecution in any way, even if it is taken in its entirety in favour of the prosecution.
24. P.W. 7 Md. Anowar Hossain, who saw the dead body and police took his signature on a paper stating that they were bringing the dead body and also put his signature on the inquest report, so he is a formal witness. He was also cross examined by the learned Advocate of the defence unnecessarily.
25. P-W. 8 Syed Lokman Ahmed, learned Magistrate, who recorded the statement of some witnesses. He recorded the statement of Ansar Ali. He stated in his examination in-chief that Ansar Ali was sent to him on 4.4.1999 who declined to make any confession but he stated that he could give some information as regards the occurrence and thus lie recorded his statement as a witness, which has been marked as Exhibit-5. In cross examination he stated that the learned Magistrate Mr. Bonomali Bhowmik directed for recording the statement of four witnesses and learned Magistrate Mr. Bonomali Bhowmik also directed for recording the statement of accused Ansar Ali on 4.4.1999, but as Ansar Ali declined to make any confession. Later he recorded his statement on a plain paper not as an accused.
26. P.W. 9 Dr. Md. Belayet Hossain is the Doctor, who held autopsy on the dead body of the deceased. He gave opinion that the death in my opinion was due to asphyxia resulting from strangulation, by ligature in neck which was ante mortem and homicidal in nature. The postmortem report was marked as Exhibit-8.
27. P.W. 10 Selina Akter, who was the Metropo-litan Magistrate. Dhaka at the relevant time, lie recorded the statement of wetness Md. Mayeen Uddin. It appears from the case record that Mayeen Uddin was not examined as witness and as such the evidence No P.W. 10 has no evidentiary value in the eye of law.
P.W. 11 S.M. Kamruzzaman. He stated in his examination-in-chief that on 2.2.1999 he prepared inquest report of dead body with reference to Savar P.S. G.D. No. 89 dated 2.2.1999. The informant identified the dead body in the Dhaka Medical College Hospital.He examined the witnesses and recorded their statements under Section 161 of the Code of Criminal Procedure and he arrested accused Abdur Rouf Dewan and Shamsul Alam Dewan on 19.2.1999 and forwarded them to the Magistrate for recording their statement under Section 164 of the Code of Criminal Proealure.He arrested accused Ansar Ali and forwarded to the learned Magistrat for recording his statement under Section 164 of the Code of Criminal Procedure. In cross examination he stated that before lodging the F.I.R. on 17.2.1999 no written information was received by the Saver Police Station. He came to learn that both the deceased Nayeem Uddin and his wife, the informant were employees of police department. In the column of accused of F.I.R. form there is no name of the accused and Kabirpur Burirtek has been mentioned as place of occurrence. He candidly admitted in cross examination that nothing was mentioned in the F.I.R. as regards delay in lodging of the F.I.R. and it is also admitted that there is no mention of the names of any witness in the F.I.R. In the inquest report there were names of as many as 5 witnesses but none of them were examined either by him or in the court. He further admitted in his cross examination that on 17.2.1999 he was appointed as investigating officer of this case and before that he was investigating the case on the basis of G.D. E. No. 89 dated 2.2.1999. He admitted in his cross examination that since 2.2.1999 to 17.2.1999 i.e. before lodging of the F.I.R. several times he met with the wife of the deceased, the informant and he also met with the children’s of the deceased before lodging the F.I.R. After recording F.I.R. he did not examine any witness, although he visited the place of occurrence i.e. Burirtek 5 times, but nobody's statement was recorded albeit he met with Chairman, Dafadar, school teachers and many other inhabitants of nearby place of occurrence and as per his sketch map there are many institutions in an around the so-called place of occurrence i.e. Burirtek of Kabirpur. He categorically admitted that he did not see the wearing apparels, spectacles, shoes of the deceased and he never prepared any seizure list either at the place of occurrence or in the medical college hospital during his investigation. He visited the house of the deceased several times, but he did not record any statement of any witness which he has admitted in his cross examination. He went to Vowal - Mirzapur but he admitted in his cross examination that, ‘‘আমার তদমত্মকালে ভাওয়াল মির্জাপুর বাসষ্ট্যান্ড এবং ভাওয়াল মির্জাপুর থেকে বাহাদুরপুর হয়ে শাষ্টার বাড়ী যাবার সড়ক পথের কাইজালুন স্কুল, জয়নাল বাজার, বালিয়াবাইদ ব্রীজ, সুলতানা ডেকোরেটর সহ কোন স্থানের মানচিত্র ও সূচী প্রস্ত্তত করি নাই।
আমার তদমত্মকালে সুলতানা ডেকোরেটর নামীয় স্থানে বা লোকালে আমি যাই নাই। সুলতানা ডেকোরেটর কোথায় আমার তদমেত্ম আমি পাই নাই।
আমার তদমত্মকালে জয়দেবপুর চৌরাসত্মা হয়ে মাষ্টার বাড়ী দিয়ে ছুকে বাহাদুরপুর দিয়ে ভাওয়াল মির্জাপুর বাজার পর্যমত্ম গিয়েছি কিনা স্মরন নাই। ’’
28. He further stated that on 3.3.1999 at about 18.25 hours he arrested Ansar Ali from in front of decorator shop of Mazahar of Bahadurpur and after seeing them he did not try to flee away to escape from arrest. He arrested Ansar Ali within jurisdiction of Joydebpur police station but he admitted that he did not make any G.D.E with Joydebpur Police station. He did not record any statement of Ansar Ali under Section 161 of the Code of Criminal Procedure. He denied the suggestion that Ansar Ali was tortured in the police station. He admitted in his cross examination that he did not get any number of Microbus or did not trace any Microbus. He candidly admitted in his cross examination that, ‘‘আমি যে সাক্ষীদের জবানবন্দী রেকর্ড করি তারা কেউই বলেন নাই যে, আসামী রব দেওয়ান, শামসু দেওয়ান, জাকির মিঞা, জুয়েল ও অন্যান্যরা শ্বাষরম্নদ্ধ করে বাদিনীর স্বামী নিহত নাঈম ঊদ্দিনকে সুলতানা ডেকোরেটরে হত্যা করে। উল্লেখিত কেউই জবানবন্দী প্রদানকালে আমার কাছে বলেন নাই যে, বাদিনীর স্বামীর লাশ কবিরপুরের বুড়ির টেকের কাচা রাসত্মার পার্শ্বে আসামীরা নিয়ে ফেলে রাখে।
নিহত নাঈম উদ্দিন বা তার ভাই সানোয়ার হোসেনের কোন মটর সাইকেলের কাগজপত্র জব্দ করি নাই।
মোকদ্দমা রুজুর পূর্বে বাদিনী সাভার থানায় মোকদ্দমা রম্নজু করতে যায়, কিন্তু সাভার থানা কোন মামলা নেয় নাই, এই বিসয়ে আমার জানা নেই। ১৭-২-১৯৯৯ ইং তারিখের পূর্বে বাদিনী তার স্বামীর মৃত্যু সংক্রান্ত মোকদ্দমা রুজু করতে সাভার যায় কিনা আমার জানা নেই। আমার জানা নেই যে, তিনি মোকদ্দমা রম্নজু করতে গিয়েছিলেন কিন্তু সাভার থানা কর্তৃপক্ষ মোকদ্দমা নেয় নাই।’’
29. PW. 12 Md. Safaruzzaman, Assistant Superin-tendent of Police, C.I.D. lastly took up the investigation on 24.02.2001. He perused the case diary and visited the place of occurrence. As per him he located 2 places of occurrence, one is Decorator shop of Bahadurpur where the deceased was killed and another is the place where the dead body of deceased was left by the miscreants and seized alamats including the necessary papers of motor cycle. During his investigation he came to know that there was enmity in between the deceased and accused persons and submitted charge sheet. He added only one witness namely Mayeen Uddin, who was not examined in this case.
30. P.W. 13 Abu Hena Md. Yusuf, Inspector, CID Dhaka took up the investigation on 20.5.1999 and he prepared sketch map and its index and examined witnesses and recorded their statements and visited the place of occurrence as per the statement of Ansar Ali. In cross examination he stated that nothing is mentioned in the statement of Ansar Ali that murder was committed or anybody murdered the deceased. He did not prepare any sketch map of the place of where Nayeem Uddin was taken. He further admitted in cross examination that, ‘‘আসামীগন ও নিহত নাঈম উদ্দিনের মধ্যে কোন বিরোধ ছিল তৎ কোন দলিল ও কাগজ পত্র আমি জব্দ করি নাই।’’ He denied the defence suggestion that Ansar Ali was taken on remand although the court directed him to interrogate Ansar Ali with caution. But he made physical torture on Ansar Ali, as a result the learned Magistrate asked him to show cause by his order dated 3.6.1999.
31. On the other hand defence examined one Md. Akbar Ali as defence witness, who tried to say that Abdur Rouf Dewan went to his village for seeking vote as he was a candidate for guardian representative in the School Managing Committee Election. He was cross examined by the prosecution.
32. These are the evidences of both the sides in this case.
33. We have perused the F.I.R. charge sheet, impugned judgment and the sketch map, seizure list and the statement of Ansar Ali recorded under Section 164 of the Code of Criminal Procedure.
34. At first we propose to discuss about the delay in lodging of the F.I.R. The cause of delay in lodging the F.I.R. is not at all explained in the F.I.R. or in the deposition of P.W. 1. Here it may be noted that the informant herself is a police official and married lady and it has already been pointed out that before lodging of the F.I.R. She went to the concerned police station several times and met the investigating officer for several times and admittedly none prevented her to lodge the F.I.R., but alter lapse of about 1 5/ 16 days he lodged the F.I.R. suspecting some persons without making any specific complain or allegation against them. Rather a vague allegation has been made that there was enmity in between the deceased and the accused persons which cannot be treated as a authentic ground for causing such inordinate delay in lodging the F.I.R. It is well settled that in various decisions of our Apex Court that delay in lodging the F.I.R. gives opportunity to the prosecution for making embellishment and false implications. Further the P.W. 11, the investigating officer admitted in cross examination that before lodging of the F.I.R. he carried on investigation on the basis of a G.D. Entry. It is also settled that if any KI.R. is made in course of investigation that F.I.R. is not an F.J.R. at all which can at best be treated as statement of witness under Section 161 of the Code of Criminal Procedure and it is not admissible in evidence.
35. Further in this case as per the learned Deputy Attorney General there is no eye witness of the occurrence and it is solely based on circumstantial evidence. The learned Deputy Attorney General referred a decision reported in 16 DLR, 161 regarding last seen. We have perused the aforesaid reported case and found it difficult to accept the submission that the deceased was last seen with the accused persons by witness Nos. 2 and 4. The fact of the reported case and the fact of the present case are quite distinguishable and further the circumstances which the aforesaid two witnesses disclosed in their evidence in this ease do not create any credence that they have seen the deceased with accused persons at about 8.00 am to 8.30 a.m that is accused Rouf Dewan, Hakim Dewan and deceased Naymuddin were standing with a Motorcycle by the side of the Balia Baid Road inasmuch as P.W. 2 staled that he has seen a Microbus which was standing at their right side with 5/7 persons, but nobody could give the number of Microbus or as per P. W. 4 the place is densely populated and there is Bus stand and a big Bazar nearby the place from where he saw his brother-in-law to go away alone by a Motor Cycle which is at a considerable distance from the place he claimed to have seen his brother-in-law and it is not a case that the accused persons have followed him with Microbus and abducted him, so the aforesaid reported case will not help the prosecution at all.
36. The learned Judge of the trial court mainly relied on so-called confessional statement of accused Ansar Ali as basis of conviction.
37. We have perused the statement of Ansar Ali which was marked as Ext. 5. We propose to reproduce his statement for ready reference which is as follows:-
আনছার আলী এর ফৌজদারী কার্যবিধি ১৬৪ ধারা মতে জবানবন্দীঃ
আমার নামঃ আনছার আলী, পিতাঃ লাল শরীফ ঢালী, গ্রাম-চান্টা, থানা-নড়িয়া, জেলা-শরিয়তপুর, বর্তমানে বাহাদুর পুর, থানাঃ জয়দেবপুর, জেলাঃ গাজিপুর, বয়সঃ ৫০।
আমি বাহাদুরপুর গ্রামে মোজহারম্নল হকের জায়গায় থাকি এবং ডেকোরেটরের দোকান চালাই। মালিকই ডেকোরেটর দিয়েছে সেটার আয় দিয়ে জীবন ধারন করি। মাস দুই এক আগের ঘটনা দিন অনুঃ ১০.০০ টার দিকে ৫/৬ জন মানুষ ভর্তি সাদা মাইক্রোবাস আমার ডেকোরেটরের দোকনের সামনে এসে দাড়ায়। তাদের মধ্যে কয়েকজন কিভাবে ঢুকে বলে শাটারটি ফেলে দে। আমি ভয়ে শাটার ফেলে দেই এবং বাহিরে দাড়াইয়া থাকি। ভিতরে ঢুকে একজনকে মারধর করে। আমি চিৎকার শুনি। ১৫/২০ মিঃ তারা ছিল, তারা আবার চিৎকার দিয়ে শাটার খুলতে বলে। বাহিরে তাদের আরেকজন ছিল সে তখন শাটার খোলে দেয় আমি সাহায্য করি। একজন লোককে তারা ধরাধরি করে মাইক্রোতে উঠায় বেং গাড়ী চালাইয়া চলে যায়। আমি আঃ রউফকে চিনি। অন্য কাউকে চিনি না। দোনে ঘটনার কয়েকদিন আগে আরছে এই সুবাদে চিনি। তারপর তারা সবাই চলে যায়। ভয়ে আমি কাউকে ঘটনা বলিনি। এই আমার বক্তব্য।
38. In the aforesaid statement Ansar Ali neither implicated himself in the commission of crime nor he implicated himself as abettor of the offence nor he stated that the deceased was killed inside the so-called decorator. Further it has been clearly stated by the learned Magistrate that Ansar Ali declined to make a confession under Section 164 of the Code of Criminal Procedure although he was forwarded for doing so, but he agreed to give some information about the occurrence and his statement was recorded on a white paper like other witnesses who made statement before him on the same date. It is curious to us that how the investigating officer or the prosecution treated this Ansar Ali as accused and how implicated him in the charge sheet, as accused and why the Magistrate considered him as witness? On the other hand the learned Magistrate also forgotten that he was asked to record his statement as an accused by another Magistrate, but he declined to make any confessional statement. It was the duty of the Magistrate to send him to custody without recording his statement as a witness. He has ex-ceded his own jurisdiction and he has played the part of the police officer in recording the statement for which he was not instructed. In this regard the learned Judge of Tribunal referred to a decision of the case of Golam Mohammad Khan Vs. King Emperor, reported in 54 CWN, 464 (PC). But just going through the head note, the learned Judge arrived at a decision that the aforesaid decision is applicable in this case, forgett-ing that in the body of the judgment it has been held that if the statement recorded following section 164 and 364 of the Code of Criminal Procedure then only the same is admissible in evidence and as such this so-called statement of Ansar Ali is not admissible in evidence inasmuch as it is difficult to ascertain as to whether it was recorded treating him as an accused or a witness and as such is not admissible in eviden-ce, as suggested in the aforesaid case.
39. He has referred another decision which is related to Civil Case and thus it has no manner of application in the present case.
40. The aforesaid act is not expected from a responsible Judge of Druto Bichar Tribunal. He has wrongly amalgamated the terms of admission and confession. Where the question is unsettled, whether the statement of Ansar Ali was recorded as a witness or an accused, even then the learned Judge based his judgment on the so-called statement of Ansar Ali treating it as confession of an accused.
41. We are constrained to hold that the learned Judge having power to inflict even death sentence upon a person should have sound knowledge in law.
42. It may be mentioned here that it has been well settled by the Apex Courts of this Sub-Continent that an accused can not be convicted on the sole basis of a confession made by co-accused unless it has got corroboration from independent source. In this ease the so-called statement of Ansar Ali is not confession at all, rather it is a statement of witness as admitted by recording Magistrate but he was shown in the column of accused as a result the convict accused persons did not get any scope to cross-examine him.
43. We have given our anxious thought over the- whole prosecution case, but we are surprised to note that the police personnel’s have conducted a perfunctory investigation and submitted a belated charge sheet under Section 302/201/34 of the Penal Code and the learned Judge of the Druto Bichar Tribunal conducted the trial and arrived at a decision to inflict death sentence to one of the accused persons without proper appreciation of evidence on record in its true perspective.
44. Belated examination of witness: The delayed examination of witnesses by the Investigating officer afforded an opportunity of concoction and it makes testimony of the witness unreliable .
45. In this connection reference may be made to the case of the Sate Vs. Paran Chandro Baroi: Reported in 2 B.C.R. -292: Relevant Para-12-14: Where it has been held:
'In this connection the power given to the Police officer under Section 175(1) of the Code of Criminal Procedure cannot be over looked. No reason has been given by the prosecution for the delayed examination of these two witnesses. They were examined by the I.O. after 4 days of the occurrence. The delay in examining them has not been explained. The delay in examining P.Ws. 4 and 5 in the circumstance of the case appears to be unjustified. In the facts and circumstances of the case I am of the opinion that it would not be safe to rely or the testimony of P.Ws. 4 and 5.
46. Further reference may be made to 25 BCR (HC)—216: Kazi Mahbubuddin Ahamed Vs. the State.
47. On perusal of the ease Diary it appears that the Investigating Officers examined the witnesses on the dates mentioned against their names:
Osman Gani " " on 15.3.1999
Abdur Rob " " ------ 29.7.1999
Moksed Ali " "—-29.7.1999
Md. Mainuddin " "—12.9.2002
Sunwar Hossain " "-—29.12.2001
SagorHossain " "— 11.8.2002
Anwar Hossain “ “ — 8.10.2002
MunnuMia " " —8.9.2002
48. The above chart shows that the prosecution witnesses were examined at a belated stage without any explanation and as result their testimony became untrustworthy and unreliable. Therefore, no conviction can be recorded relying on their testimonies and thus from the above facts this case can safely be considered as a case of evidence.
49. We off and on hear through Media that police by exercising their prudence and after facing long trouble used to catch the criminals, but they used to get bail, even acquittal from this court and the general people of this country has been loosing their confidence upon the judiciary believing the aforesaid statements, specially made by the police department. But considering the present case we arc surprised to note that one of the police personnel was murdered and another police personnel is the informant in this case and at the same time a High Ranking Police Officer is a relation of the deceased and a perfunctory investigation was conducted consum-ing long time and changing Investigating Officers one after another, involved the accused persons without having any materials in the whole case records, but arranged to get the accused person convicted and one of them was sentenced to death. It is really shocking to us that the police officers who diverted the case by fabricating the facts for facilitating awarding of conviction towards the so-called enemies of a police officials are kept above law!
50. We also find that charge does not contain any essential materials to give proper notice to the accused persons as to what offence they have committed and thus it has caused prejudice to them.
51. We have given our anxious thought over the whole matters and hold that if we allow the reference and allow the execution of the death penalty, it will be treated as a "judicial murder". So we are not inclined to commit such murder sitting on the high altar of judiciary.
52. In the result, the reference is rejected and the criminal appeals including the jail appeal are allowed.
53. Let an advance order be sent to the concerned court and the concerned jail authority to release the condemned prisoner forthwith, if not wanted in connection with any other case. Other convict appellants be discharged from their bail bond.
54. Send down lower courts record forthwith.
Let a copy of this judgment be forwarded to the Inspector General of Police with an expectation that he will look into the matter so that general people do not suffer, as those have been done in the present case, making favor to a police family.