The State Vs. Md. Rafique and another, 1 LNJ (2012) 474

Case No: Death Reference No. 128 of 2004

Judge: Zubayer Rahman Chowdhury,

Court: High Court Division,,

Advocate: Mr. Md. Habibullah Chowdhury,Mr. Hassan Foez Siddique,Mrs. Israt Jahan,,

Citation: 1 LNJ (2012) 474

Case Year: 2012

Appellant: The State

Respondent: Md. Rafique and another

Delivery Date: 2008-03-27

HIGH COURT DIVISION
(Criminal Appellate Jurisdiction)
 
Mohammad Anwarul Haque, J. 
And
Zubayer Rahman Chowdhury, J.

Judgment
27.03.2008
  The State
Vs.
Md. Rafique and another
...Condemned-Prisoners
Md. Idris Mia
...Appellant
Vs.
The State
...Respondent
 

Nari-o-Shishu Nirjatan (Bishesh Bidhan) Ain ( XVIII of 1995)
Sections 8 and 12
The ingredients or elements necessary for invoking sections 8 and 12 of the Ain of 1995 are missing in the instant case. There is no evidence on record to show that the victims were transferred to the custody of some other persons nor any documents like passport, airline ticket were recovered showing that there was any intention to send the victim to Pakistan, as alleged by the victims themselves. The statement of the victims made under section 164 of the code of Criminal Procedure, reveal that they are not abducted by the accused persons; rather they went away on their own volition. There is no evidence whatsoever to indicate that they were “bought” or “sold” or “exported” or “imported” or “transferred” for any such illegal or immoral act, as contemplated in section 8 of the Ain of 1995. The preconditions for application of the aforesaid two sections were not fulfilled in the instant case and as such the order of conviction and sentence appears to be without any legal basis.
 
Even if the statements made by the victims are taken to be true and correct in their entirety, the only role played by appellant Idris Mia was that of taking the victims from one place to another. In the absence of any evidence to show that the fundamental requirements of section 8 and section 12 were fulfilled the conviction and sentence of Md. Idris Mia is not sustainable. The impugned order of conv-iction and sentence of death of the absconding condemned prisoners is not sustainable in law and consequently, the instant death reference is rejected. ...(44, 45,62 and 65)
 
No one
---For the appellant
Mr. Md. Habibullah Chowdhury
---State Defence Advocate

Mr. Hassan Foiz Siddique, Additional Attorney General with
Mr. Md. Shamsul Haque, D.A.G. and
Mrs. Israt Jahan, A.A.G
---For the state

Death Reference No. 128 of 2004 with Criminal Appeal No. 3520 of 2004
 
Judgment
Zubayer Rahman Chowdhury, J:
 
Condemned prisoners Md. Rafique and Most. Shahida Khanun, husband and wife and both absconding, were tried in Nari-O-Shishu Case No. 26 of 1999 under sections 8 and 12 of the Nari-O-Shishu Nirjatan (Bishesh Bidhan) Ain, 1995 and sentenced thereunder to death by the learned Judge, Nari-O-Shishu Nirjatan Daman Tribunal No. 2, Chandpur who has submitted Death Reference No. 128 of 2004 under section 374 of the Code of Criminal Procedure for confirmation of the sentence of death imposed upon both the absconding condemned prisoners.
 
Criminal Appeal No. 3520 of 2004 is at the instance of Md. Idris Mia, who was tried along with condemned prisoners in the aforesaid case and convicted thereunder and sentenced to imprisonment for life.
 
Briefly stated, the relevant facts are as under:
      On 29.01.99, an FIR was lodged by one Md. Mostafa Kamal alleging, inter alia, that his wife Marzina Begum and his 4 year old son Jony were rescued along with Shahid Mia, Md. Kamal Hossain and Nazma Begum from the house of one Hamid Ali in village Paragaon under Kachua Police Station in Chandpur District. The informant’s wife had left home 10 days earlier following an altercation with him and went to Chittagong to her aunt’s house, but finding no one there, she returned home. On her way back, she met condemned prisoner Rafique who enticed her to go with him on the assurance of being sent to Pakistan with a job. Rafique also obtained her thumb impression on some blank papers in order to secure her divorce from the informant. During the next 10 days, she was kept in confinement at different places. The informant came to know that his wife, along with some others, were being detained in the said house of Hamid Ali at Paragaon village whereupon, being accompa-nied by the local Chowkider Md. Abdul Hakim (PW 2), Md. Momtaz Uddin (PW 6), Rakhal Chandra Shil (PW 5) and other local elites, he went to the said house of Hamid Ali and rescued his wife along with three other persons from there. However, on getting scent of their arrival, condemned prisoner Rafiq, Hashem and 2/3 other unknown persons made good their escape, while one Shahid Mia was arrested, who made a confessional statement under section 164 of the Code of Criminal Procedure before the Magistrate, 1st Class, Chandpur. Appellant Md. Idris Mia was subsequently apprehended by the police.
 
The learned Judge of the Nari-O-Shishu Nirjatan Daman Bishesh Adalat No. 1, Chandpur framed charge against four accused persons, namely, Md. Shahid Mia, Md. Rafique, Most. Shahida Khatun and Md. Idris Mia under sections 8/12 of the Nari-O-Shishu Nirjatan (Bishesh Bidhan) Ain, 1995 (briefly the Ain, 1995) in presence of Md. Shahid Mia and Md. Idris Mia, since the other two accused persons remained in abscondence. The charge was read over to the accused persons present in the dock to which they pleaded not guilty and claimed to be tried. However, the absconding accused persons remained unrepresented, although on the following day, a State Defence lawyer was appointed to defend them.
 
At the trial, the prosecution examined 15 witnesses in support of their case, while the defence examined none.  On conclusion of recording of evidence, the incriminating part of the evidence adduced by the prosecution at the trial and the confessional statement of accused Shahid Mia was brought to the notice of the persons facing the trial to which they pleaded their innocence and claimed to be tried. Upon consideration of the material evidence on record, the learned Judge of the Nari-O-Shishu Nirjatan Daman Tribunal No. 2, Chandpur acquitted  Md. Shahid, but sentenced both the condemned prisoners and the appellant Md. Idris Mia in the manner noted above.
 
Mr. Md. Shamsul Haque, the learned Deputy Attorney General appearing in support of the Reference has placed the FIR, the deposition of the witnesses and the impugned judgment. The learned Deputy Attorney General (briefly, the learned DAG) submits that the impugned judgment and order of conviction and sentence has been rightly passed and calls for no interference in view of the recovery of the victims from the custody of the condemned prisoners.
 
On the other hand, Mr. Md. Habibullah Chowdhury, the learned Advocate appearing as State Defence lawyer for both the absconding condemned prisoners, has challenged the impugned judgment on two grounds ; technical and substantive. As to the technical ground, the learned Advocate submits that although the charge was framed on 17.08.99 by the learned Judge of the Special Tribunal, on that date, the condemned prisoners remained unrepresented in Court. On the following day after framing of charge, a State Defence lawyer was appointed for the condemned prisoners and in such view of the matter, the framing of the charge, vis-a-vis the condemned prisoners, was improper and invalid in the eye of law. On the substantive ground, the learned Advocate submits that although the conviction of the accused persons was secured under sections 8 and 12 of the Ain, 1995, the basic elements or requirements of the aforesaid two sections are missing in the instant case and on such ground, the impugned judgment and order of conviction and sentence is liable to be set aside.
 
In order to appreciate the submissions advanced at the Bar, we are called upon to review the evidence on record.
 
PW 1, the informant, is the former husband of the victim Marzina (PW 13). He narrated the incident as disclosed in the FIR and further stated that on reaching the village haat, he found condemned prisoner Rafique and another person in a restaurant and upon seeing him, they fled from there, but their accomplice Shahid Mia was apprehended by the public. Subsequently, the victims were recovered from the house of said Hamid Ali, but condemned prisoner Rafique, his wife Shahida Khatun and Md. Idris Mia managed to escape.
 
In his cross-examination, he stated that two criminal cases were pending against him. He further stated that he was acquainted with Idris Mia who was present at the hotel along with Shahid, Rafique and some other persons. He denied that accused Shahid was implecated in this case due to previous enmity and also denied that the accused persons did not commit any offence.
 
PW 2 Abdul Hakim, the village policeman, stated that he accompanied Rakhal Chowkider, Momtaj and others and recovered the victims from Paragaon village. In his cross-examination, he stated that he did not see any accused persons when the victims were rescued.
 
PW 3 Abul Hossain is a journalist as well as a teacher of Nurpur Laboratory High School. He deposed that on 29.01.99, while he was at Rahimpur bazaar, he found three persons including two women being detained by the public, who identified themselves as Morzina, Nazma and Kamal. He further deposed that upon query from the aforesaid persons, he came to learn that Rafique and his associates were attempting to send them to Pakistan on the pretext of providing them with jobs there, but the victims were rescued from village Paragaon from the house of one Abdul Hamid, the father-in-law of condemned-prisoner Rafique.
 
In his cross-examination, he stated that he did not go to Paragaon and that he did not see the victims being rescued, but found them near the bus-stand surrounded by the public.
 
PW 4 Helal Uddin runs a medicine store in Rahimanagor Bazar. On 29.01.99 at about 5:30 p.m., he saw a crowd near the bus-stand and heard that some traffickers had been detained. He saw appellant Shahid, who was a baby-taxi driver, along with two other women. The victims were sent to the Thana and the police questioned him during investigation.
 
In his cross-examination, he stated that he did not go to Hamid Ali’s house at Paragaon village and also stated that Shahid was not detained from that village.
 
PW 5 Rakhal Chandra Shil is the village policeman of No. 10 Kachua Union Parishad. On 29.01.99, he found many persons at the bazaar and the local elites called him there and handed over the accused persons to him while Chowkider Abdul Halim and some other persons went to Hamid Ali’s house and rescued the victims. He took the accused-persons as well as the victims to the Thana and handed them over to the police.
 
In his cross-examination, he stated that he did not give any statement to the I/O. He identified Malek at the dock.
 
PW 6 Momtaj Uddin is another village policeman in Ward No. 10. On the day in question, he heard that some traffickers had been detained at Hamid Ali’s house and Hakim Chowkider and the informant rescued Morzina, Nazma Akter, Kamal Hossain and others from the said house and they were  subsequently handed over to the police.
 
In his cross-examination, he stated that he did not find the others except appellant Shahid present there.
 
PW 7 Abul Kashem is a Member of the Rahimanagor Bazar Committee. He deposed that on 29.01.99 at about 6:30 p.m. upon hearing hue and cry near the bus-stand, he went there along with others and the informant (PW 1) informed them that his wife and child and two other women were being detained in the house of Abdul Hamid for the purpose of trafficking. Upon hearing this, PW 7 along with Rakhal Chowkider, Hakim Chowkider and Shajahan Member and others went to the said place and rescued the victims and handed them over to the Chowkider. The informant’s wife Marzina informed them that appellant Shahid Miah and some others brought them there on the assurance of providing well-paid jobs in Pakistan.
 
In his cross-examination, he stated that he did not find any accused person at Rafique’s in-law’s house since they had already fled from the scene. He further stated that the informant disclosed the name of appellant Shahid Miah, but denied that the informant was known to him from before.
 
PW 8 Md. Safiullah was tendered by the prosecution. In his cross-examination, he stated that he heard that appellant Idris was innocent.
 
PW 9 Kong Kham Neel Moni Singh was working as the Magistrate, 1st Class, Chandpur. He recorded the statements of victim Nazma Akter and Morzina Begum and identified the same as Exhibit 2 and his signature thereon as Exhibits 2/1 and 2/2. He also recorded the statement of the informant.
 
In his cross-examination, he denied that the victims made their respective statements at the dictation of the police.
 
On being re-called, PW 9 deposed that he recorded the statement of victim Kamal under section 164 of the Code of Criminal Procedure and identified the same as Exhibit 7 and his signature thereon as Exhibit 7/2.
 
In his cross-examination, he stated that he recorded the statements as stated by the victims themselves.
 
PW 10 Miah Md. Shahid was the Officer-In-Charge of Kachua Thana at the relevant time and upon receiving the written ejhar from PW 1, he initiated the P.S. case. He stated that SI Abbas Ali was entrusted with the investigation of the case.
 
PW 11 Md. Jahangir Alam, Magistrate, 1st Class, Sylhet Sadar recorded the confessional statement of Md. Shahid under section 164 of the Code of Criminal Procedure. He complied with all the legal formalities and allowed three hours time to the accused person for reflection. He identified the same as Exhibit 4.
 
In his cross-examination, he stated that appellant Shahid made an exculpatory confessional statement.
 
PW 12 Sikder Akkas Ali was the S/I of Kachua Thana at the relevant time and he was entrusted with the investigation of the case. He visited the place of occurrence, prepared sketch map with index and recorded the statement of the victims and appellant Shahid under section 161 of the Code of Criminal Procedure and filed charge sheet against the accused persons. He identified the accused persons present at the dock. In his cross-examination, he denied that he did not conduct the investigation properly and also denied that the accused persons were not involved with the alleged offence.
 
PW 13 Morzina is one of the victim. She deposed that she was initially married to the informant, but their marriage ended in divorce and subsequently she married one Abdur Rashid. She stated that at the relevant time when she was still married to the informant, she left their rented house following a quarrel with him and went to her sister’s house at Chittagong. As she did not find her sister, she returned to Chandpur. As she did not find her husband at home, she went to the landlord’s house. He offered to send her abroad and introduced her to Idris and Raifque. Idris took her to his house and kept her there and both Rafiq and Idris brought some papers and asked her to put her LTI on those papers for the purpose of going abroad. However, after obtaining her LTI on the blank-papers, she was told that her divorce had taken place. Thereafter, Idris took her to another house along with her son from where they were brought to Paragon in a baby-taxi which was driven by appellant Shahid. She further stated that they were scheduled to be sent abroad on 29.01.99, but they were rescued on that date at about 5:00 in the evening by her husband (the informant) and although Idris and Shahid were apprehended, Rafique and his wife managed to escape. She further stated that the accused persons were planning to send her abroad along with her child in the name of providing a well-paid job.
 
In her cross-examination, she stated that she married Abdur Rashid about two years back. She further stated that she was first taken by Idris to his house and from there to Rafique’s in-laws house at Rahimanagor, where she was kept for five days before being rescued by the informant.
 
PW 14 Nazma Akter is also a victim. She stated that she used to reside in Comilla along with her parents and Rafique and his wife used to stay in the neighbouring house. Rafique’s wife Shahida proposed to send her abroad (Pakistan) in exchange of Tk. 2,000/- and some ornaments. Accordingly, she paid Tk. 2,000/- and also gave a pair of ear-rings to Rafique and his wife and she was brought to Rahimanagor from where she was subsequently rescued. She further stated that during her confinement, she became scared and requested Shahida to refund the money, but Shahida refused to do so. She further stated that Rafique and his wife Shahida were engaged in the business of trafficking women.
 
In her cross-examination, she stated that she did not know any one else other than Rafique and his wife, whom she knew for about 10/12 years. She categorically stated that it was Raifque’s wife who had enticed her to leave home.
 
PW 15 Md. Kamal Hossain, another victim, stated that condemned-prisoner Rafique convinced his (victim’s) father to send him to Pakistan for Tk. 7,000/-. On 25.01.99, Rafique brought him to Shahidpur village in Baghmara from where he was taken to Rahimanagor to Rafique’s in-law’s house where he saw Nazma and her child. He further stated that if he was not rescued by the informant on that day, he would have been sent to Pakistan.
 
During cross-examination, he stated that Rafique took him to his in-law’s house. He denied that Rafiq and his wife were innocent.
 
We may now refer to the confessional statement of accused Md. Shahid (since acquitted) made before the Magistrate, 1st Class, Chandpur, which reads as under :

“আমার নাম মোঃ শহীদ, পিতা- আনু মিয়া। আমি লাকসাম থানার বেতিয়া পাড়া গ্রামে বাস করি। আমি একজন বেবী ট্যাক্সি ড্রাইভার। গত শুক্রবার ভোর ৬ টায় আমি বেবি নিয়া আমার বাড়ী থেকে বের হই। তখন থেকে জুমার নামাজের আজান দেয়ার সময় পর্যন্ত লাকসাম- বাগমারা এলাকায় গাড়ী চালাই। আমি গাড়ীটি বাগমারা জামে মসজিদের সামনে গাড়ী রাখিয়া জুমআর নামজ পড়িতে যাই। আমি নামাজ পড়িয়া গাড়ীর কাছে যাইয়া দেখি রফিক, মাইনুল আর ইদ্রিস এই ৩ জনে একটি আনুঃ ৫ বছরের বাচ্চাসহ একজন মহিলাকে সাথে করে দাড়াইয়া আছে। আমি নামাজ পড়ে গাড়ীর কাছে গেলে রফিক আমাকে জিজ্ঞাসা করে, “তুমি রহিমা নগর যাইতে পারবানি”? ২ ঘন্টার মধ্যে পৌছাইয়া দিতে পারলে ২ হাজার টাকা দেব।” অামার সাথে রফিক, মাইনুল ও ইদ্রিসের পূর্ব থেকে পরিচয় ছিল। ওদের কথায় রাজি হই। ওরা যে বিদেশে লোক পাঠায় তা আমি জানতাম। ওরা বিদেশে মানুষকে চাকুরী দেয় তা জানতাম। এর মধ্যে তারা অন্যায় করতো- এইটা জানতাম না। ওরা নিজেদের মধ্যে আলাপ করে বেবীতে উঠে। মাইনুল পিছনে হোন্ডায় আসে। তাদের কথায় আমি যা বুঝতে পারলাম তা হইল রহিমানগরে ও তাদের আরো কয়েকজন লোক আছে। এদের সাথে তাদেরকেও তারা বিদেশে পাঠাইয়া দিবে। আমি- আনুমানিক বেলা ৪ টায় রহিমানগরে তাদেরকে নিয়া পৌছাই। আমি রহিমানগর বাজারের উত্তর দিকে মেইন রোডের উপর দাড়াইয়া আছি। তারা গাড়ী থেকে নামিয়াছে। আমি তাদেরকে বললাম, “ভাড়া দেন।” রফিক বললো, “তুমি বাজারে বসে চা খাও- আমি আসতেছি এখনই। এই বলিয়া সে চলিয়া গেল। তখন আমি রহিমানগর বাজারে আসি। আনুমানিক আধা ঘন্টা পর রফিক ও মাইনুল বাজারে ফিরে আসে। এর কিছুক্ষণ আগে একজন (ছেড়া) (এখন আমি জানি তার নাম মোস্তফা কামাল এবং সে (মহিলা) যাকে আমি বেবিতে লাকসাম থেকে আনি তার স্বামী) আমাকে জিজ্ঞাসা করে, “তুমি কোথা থেকে আসিয়াছ? আমি বললাম, লাকসামের বাগমারা থেকে আসিয়াছি সে বলে “তোমার গাড়ীতে একজন বাচ্চা ছেলেসহ কোন মহিলা আসিয়াছে কিনা? ” আমি বললাম “আমার গাড়ীতে বাচ্চাসহ একজন মহিলা একজন পুরুষের সাথে আসিয়াছে।” তখন ঐ মানুষটি আমাকে গ্রাম পুলিশ দিয়া ধরায়। আমি তাদেরকে বললাম “আমি প্যাছেঞ্জার নিয়া আসিয়াছে। আমার কি দোষ? এরপর তারা আমাকে থানায় পাঠাইয়া দিয়াছে। আমি কান্নাকাটি করি কিন্তু রহিমানগরের আমাকে চিনে না। আর ঐ মহিলার স্বামী মোস্তফা আমাকে নারী পাচারের লোক বলায় বাজারের লোকেরাও আমার পক্ষে কথা বলে না। আসামীরা অন্যায় কাজ করিতেছে” এই কথা জানতে পারলে আমি তাদেরকে গাড়ীতে উঠাইতাম না। আসামী মইনুল ও রফিক হাই-ফাই চলে। আমার ধারনা ছিল তারা বিদেশে মানুষ পাঠাইয়া এত টাকা পায়। তারা মানুষের উপকার করে- এই টাই জানতাম। তবে ঐদিন এই ঘটনার পরথেকে আমি জানতে পারলাম যে তারা নারী পাচার করে। তাদের কঠোর শাস্তি হওয়া দরকার। আমার একটি বাচ্চাসহ আমার পরিবার অত্যন্ত কষ্টে সময় কাটাইতেছে। এই আমার বক্তব্য।"
 
The learned Judge of the Nari-O-Shishu Nirjatan Daman Tribunal No. 2, Chandpur acquitted  Md. Shahid, but sentenced both the condemned prisoners and the appellant Md. Idris Mia in the manner noted above.
 
 
For proper understanding and appreciation of the relevant law, we may now refer to section 8 and section 12 of the Ain, 1995.
Section 8 reads as under :

“৮। নারী পাচার ইত্যাদির শাস্তি- (১) কোন ব্যক্তি যদি বেশ্যাবৃত্তি বা অবৈধ সহবাস বা বে-আইনী ও নীতিবিগর্হিত কাজে নিয়োজিত করার উদ্দেশ্যে কোন নারী আমদানী, রপ্তানী, ক্রয় বা বিক্রয় করেন বা ভাড়ায় বা অন্য কোনভাবে হস্তান্তর করেন, তাহা হইলে উক্ত ব্যক্তি যাবজ্জীবন কারাদন্ডে দন্ডনীয় হইবেন এবং ইহার অতিরিক্ত অর্থদন্ডে দন্ডনীয় হইতে পারেন।
(২) কোন ব্যক্তি যদি বেশ্যাবৃত্তি বা অবৈধ সহবাস বা বে-আইনী ও নীতিবিগর্হিত কাজে নিয়োজিত করার উদ্দেশ্যে কোন নারী আমদানী বা রপ্তানী ভাড়ায় বা অন্য কোনভাবে হস্তান্তর করার জন্য কোন নারীকে তাহার দখলে, জিম্মায় বা হেফাজতে রাখেন, তাহা হইলে উক্ত ব্যক্তি ১৪ বৎসরের সশ্রম কারাদন্ডে দন্ডনীয় হইবেন, এবং ইহার অতিরিক্ত অর্থদন্ডেও দন্ডনীয় হইতে পারেন।”
 
Section 12 of the Ain, 1995 states as follows :

“যদি কোন ব্যক্তি বে-আইনীভাবে শিশু আমদানী, রপ্তানী বা বিক্রয় করেন, বা যদি আমদানী, রপ্তানী বা বিক্রয়ের উদ্দেশ্যে কোন শিশুকে কোন ব্যক্তি নিজ হেফাজতে রাখেন বা উক্ত উদ্দেশ্যে কোন শিশুকে কোন ব্যক্তির নিকট পাওয়া যায়, তাহা হইলে উক্ত ব্যক্তি মৃত্যুদন্ডে অথবা যাবজ্জীবন কারাদন্ডে দন্ডনীয় হইবেন।”
 
From a plain reading of the aforesaid two sections, it appears that section 8 (1) relates to “আমাদানী, রপ্তানী, এ্রয় বা বিএ্রয়” or the transfer by way of hire or otherwise of any woman for the purpose of prostitution or unlawful intercourse or engaging her in illegal and immoral activities. Section 8 (2) contemplates the situation where any woman is kept under the control or custody of any person for any of the above mentioned purposes.
 
It is apparent that section 8 relates only to women and not children. However, when the offence involves children, section 12 will come into play in determining the quantum of punishment.
 
The learned Deputy Attorney General has referred to a decision, reported in 59 DLR 314, where a Division Bench of this Court had an occasion to decide a criminal appeal involving sections 8 and 12 of the Ain, 1995. However, this aspect was not addressed by the Court in that decision. The learned Deputy Attorney General submits that despite his best efforts, he could not lay his hands on any other decision in respect of sections 8 and 12 of the Ain, 1995.
 
The ingredients or elements necessary for invoking sections 8 and 12 are missing in the instant case. There is no evidence on record to show that the victims were transferred to the custody of some other persons nor any documents like Passport, airline ticket etc were recovered to show that there was any intention to send the victims to Pakistan, as alleged by the victims themselves. The  statement of the victims, made under section 164 of the Code of Criminal Procedure, reveal that they were not abducted by the accused persons; rather, they went away on their own volition.
 
As per the statement of the victims, they paid some money and gave ornaments to the accused persons for sending them abroad, who subsequently refused to return back the same, but assured the victims of providing them with jobs. But there is no evidence whatsoever to indicate that they were “bought” or “sold” or “exported” or “imported” or “transferred” for any  such illegal or immoral act, as contemplated in section 8 of the Ain, 1995. We fail to understand how, in the face of such statement from the victims themselves, the learned Judge of the Tribunal could find the accused persons guilty under sections 8 and 12 of the Ain, 1995 when, apparently, the preconditions for application of the aforesaid two sections were not fulfilled in the instant case. In the absence of such evidence, the order of conviction and sentence appears to be without any legal basis.
 
It is to be noted that there is a substantive or fundamental difference between section 8 and section 12 with regard to imposition of punishment. While section 8 provides for a maximum punishment of imprisonment for life, section 12 stands for capital punishment.
 
We have noticed, albeit with some astonishment, that the learned Judge, on a clear misconception of law and gross misreading of evidence, awarded capital punishment to the condemned prisoners finding them guilty under section 8, although the prescribed maximum punishment under that section is imprisonment for life. Furthermore, as noted earlier, section 8 deals with women (নারী), while section 12 deals with children (শিশু). It appears that the learned Judge, being totally oblivious of the definition of  “নারী” and “শিশু” as provided in section 2(ঘ) and 2(ছ) of the Ain, 1995, proceeded to try the case without splitting up the respective charges involving woman and children and passed the impugned order of conviction and sentence of death under section 8 and section 12, when section 8 has no such provision. This, in our view, is enough to make the conviction of the condemned prisoners unsustainable.
 
The operative word used in section 8 of the Ain, 1995 is    “হস্তান্তর”. While section 8 (1) deals with actual “হস্তান্তর” or “transfer”, section 8(2) contemplates the situation where the victim is kept in the control or custody of the accused person for the purpose of “হস্তান্তর” or “transfer”. But nowhere within the four corners of the FIR or the statements of the victims do we find any evidence that there was any “হস্তান্তর” or “transfer” of the victims. All the victims were in the company of condemned prisoner   Rafique and his wife Shaheda and appellant Idris from the moment they left their respective homes till their recovery from Rafique’s in-laws house. They were not handed over to any third person and therefore, there was no “হস্তান্তর” or “transfer”, for the purpose of export or import or sale or purchase, as contemplated in section 8 and consequently, there is hardly any scope for application of the aforesaid section in the instant case.
 
Similarly, section 12 of the Ain, 1995 deals with the situation where there is, in the words of the section “illegal import, export or sale of a child” or keeping in custody of a child by a person for the purpose of “import, export or sale”. Once again, we do not find any evidence on record to indicate that there was any “export, import or sale” of the victims.
 
When the essential ingredients required for invoking sections 8 and 12 are wanting in the instant case, the order of conviction and sentence based on the aforesaid two sections would obviously become unsustainable.
 
We now turn to the other, yet, more significant aspect of the case. The terms “রপ্তানী”, “আমদানী”, employed in sections 8 and 12 of the Ain, 1995 appears to us, prima-facie, to be misconstrued. The words “export” and “import” generally relate to commercial transaction of commodities or goods which is either sent to another country or brought in from another country, primarily for the purpose of trade and commerce and they signify a very important aspect of trade and commerce in today’s commercial world.  Both the process of export and import usually involves several Government agencies and departments, not to mention commercial Banks.
 
It is, perhaps, pertinent at this stage to refer to the meaning of some of the relevant terms central to the issue before us.
The Chambers Dictionary defines the terms export and import as under :
“export – the act of exporting ; something which is exported ; a commodity which is or may be sent from one country to another as a business transaction”.
“import – to bring in from an outside source ; to bring in from abroad”.
 
In Black’s Law Dictionary (Sixth Edition), the terms export and import have been defined as under :
“Export, n. Products manufactured in one country, and then shipped and sold in another. A thing or commodity exported. More commonly used in the plural.”
“Import. A product manufactured in a foreign country, and then shipped to and sold in this country.”
 
The Law Lexicon provides the following definition :
“EXPORT.  …………………..
to send out from one country to another ; to send goods and merchandise from one country to another ; to send or carry out of the state, for the purpose of sale, trade, or disposition.
‘Import means bringing or entry of any goods into the Octrori limits of Board from any place outside such limits.”
 
According to The Concise Oxford Dictionary, the term “commodity” means :

“Commodity, n. Useful thing ; article of trade (staple c.); of trade.”
 
In Chambers 21st Century Dictionary, the terms “goods” and “commodity” have been defined as follows :

“Commodity. Noun (commodities) something that is bought and sold, especially a manufactured product raw material.
Goods. Plural noun 1 articles for sale; merchandise”.
 
From the definitions quoted above, it is evident that the terms ‘goods’ and ‘commodities’ do not, by any strech of imagination, include “human beings”, more particularly “woman” and/or “child”.
 
We find, much to our surprise and dismay, that section 8 contemplates the “আমদানী বা রপ্তানী” of নারী, while section 12  contemplates “বে-আইনীভাবে শিশু আমদানী, রপ্তানী…….”. The process of export and import generally involves goods or commodities. However, the export or import of “নারী” and “শিশু”, as contemplated in the aforesaid two sections, is not only unheard of, but novel too in the field of legislation, which is neither desirable, nor acceptable. We are not aware of any civil society in today’s world that allows or provides for, and that too by legislation, the export or import of “woman” and “child”.  The very terms “আমদানী” and “রপ্তানী” are legal terms and the prefix of the word “বে-আইনীভাবে” before the terms “আমদানী” or “রপ্তানী” cannot render the aforesaid two terms “illegal”.
 
Mr. Hassan Foiz Siddique, the learned Additional Attorney General appeared at our instance to address us on these issues. Having gone through the provisions of both sections 8 and 12 of the Ain, 1995, he frankly conceded that the terms “আমদানী” and “রপ্তানী” are quiet inappropriate in the context of the spirit and intent in which the law was promulgated by the Legislators. The learned  Additional Attorney General submits that the primary objective of the Ain, 1995 was to prevent the trafficking (পাচার) of women and children which was assuming an alarming proportion during the relevant period. However, the learned Additional Attorney General concedes that the words used in the section are neither appropriate nor satisfactory.
 
In our view, the tenor and sprit of the legislation is quiet clear, as has been rightly canvassed by the learned Additional Attorney General. However, the choice of words used in sections 8 and 12 of the Ain, 1995 is far from satisfactory ; rather, they are inappropriate and out of context, to say the least.
 
We are constrained to observe with regard to the Ain, 1995 that the concerned officials, who were entrusted with the task of drafting this particular law, have not only demonstrated an utter lack of common sense, but were also callous and inept, to say the least.
 
The observation made by us hereinabove is intended for the information and guidance of all concerned, particularly the officials of the Ministry of Law, Justice and Parliamentary Affairs who are entrusted with the task of drafting laws and ordinance so as to ensure that repetitions of such nature do not occur in future.
 
The logical inference from the above discourse is that the impugned order of conviction and sentence of death of the absconding condemned-prisoners is not sustainable in law and consequently, the instant Death Reference is liable to be rejected.
 
This bring us now to Criminal Appeal No. 3520 of 2004, which is at the instance of Md. Idris Mia. Although one Farida Yeasmin, a learned Advocate of this Court, filed  power, she did not turn up when the matter was taken up for hearing. Be that as it may, we propose to dispose of the criminal appeal on merit.
 
It appears that the learned Judge of the Court below found the complicity of appellant Idris Mia in the alleged offence for taking victim Marzina from her house to another house in the village and from there to condemned prisoner’s Rafique’s father-in-law’s house. However, the aforesaid evidence is not enough to bring the offence within the ambit and scope of sections 8 and 12 of the Ain, 1995. Even if the statements made by the victims are taken to be true and correct in their entirety, the only role played by appellant Idris Mia was that of taking the victims from one place to another. In the absence of any evidence to show that the fundamental requirements of section 8 and section 12 were fulfilled, the conviction and sentence of Md. Idris Mia under the aforesaid two sections is not sustainable. In such view of the matter, there is considerable merit in the appeal.
 
Having regard to the foregoing discussion, we are of the view that the impugned judgment and order of conviction and sentence passed by the learned Judge, Nari-O-Shishu Nirjatan Daman Tribunal No. 2, Chandpur in Nari-O-Shishu Case No. 26 of 1999 under sections 8 and 12 of the Nari-O-Shishu Nirjatan (Bishesh Bidhan) Ain, 1995 warrants interference from this Court.
 
Resultantly, Criminal Appeal No. 3520 of 2004 is allowed. The order of conviction and sentence of imprisonment for life passed in respect of Md. Idris Mia is hereby set aside.
 
Let Md. Idris Mia, son of late Joynal Abedin, be set at liberty if not wanted in connection with any other case.
 
Death Reference No. 128 of 2004 stands rejected. The orders of conviction and sentence of death passed in respect of Md. Rafique (absconding), son of Korban Ali and Most. Shahida Khatun (absconding), wife of Md. Rafique is hereby set aside.
 
The warrant of arrest of Md. Rafique and Most. Shahida Khatun be recalled at once.
 
Let a copy of this judgment be sent to the Secretary, Ministry of Law, Justice and Parliamentary Affairs for information and guidance.
 
        Let a copy of the judgment along with the lower Court’s records be sent down for information and necessary action.
 
        Ed.