The State Vs. Mohammad Ali and others, 3 LNJ (2014) 522

Case No: DEATH REFERENCE NO. 108 OF 2006

Judge: A. N. M. Bashir Ullah,

Court: High Court Division,,

Citation: 3 LNJ (2014) 522

Case Year: 2014

Appellant: The State

Respondent: Mohammad Ali and others

Subject: Legal Evidence, FIR, Commutation of Sentence,

Delivery Date: 2012-04-19

 
HIGH COURT DIVISION
(Criminal Appellate Jurisdiction)
 
Syed Md. Ziaul Karim, J.
            And
A. N. M. Bashir Ullah, J.


Judgment on
16.04.2012,
17.04.2012,
18.04.2012
and
19.04.2012.
 
  The State
-Vs-
1. Mohammad Ali, 2. Jewel alias Zahidul Haque, 3. Tipu
4. Akter Hossain alias Akter son of Alimuddin 5. Md. Badsha Miah
6. Sahin
...Condemned Prisoners.
(In Death Reference No. 108 of 2008)
With
Jewel alias Zahidul Haque
. . . Appellant.
-Vs-
The State . . . Respondent
(In Criminal Appeal No. 6669 of 2007(Jail Appeal No. 936 of 2007))
With
Abul Bashar alias Badsha
. . . Appellant
-Vs-
The State . . .Respondent
(Criminal Appeal No. 5422 of 2006 (Jail Appeal No. 1049 of 2006))
With
1. Akter Hossain alias Akter
2. Abdur Rab alias Rouf
3. Md. Aslam Bhuiyan
. . . Appellants
-Vs-
The State . . .Respondent
(Criminal Appeal No. 5323 of 2006 (Jail Appeal No. 1048 of 2006))
Akter Hossain SDU
. . .Appellant
-Vs-
The State . . .Respondent
(Criminal Appeal No. 5137 of 2006)
1. Syed Hossain
2. Ayiub Hossain
3. Mukul alias Mokbul Hossain
. . . Appellants
-Vs-
The State . . . Respondent.
 (Criminal Appeal No. 5316 of 2006)
Shahin . . . Appellant
-Vs-
The State . . . Respondent.
(Jail Appeal No. 110 of 2007)
1. Kamal alias Md. Kamal Hossain
2. Jahirul Islam alias Md. Jahirul Islam,
. . . Petitioners
-Vs-
The State . . . Opposite party.
(Criminal Miscellaneous Case No. 5789 of 2008)
Jalil Miah . . . Petitioner
-Vs-
The State . . . Opposite party
(Criminal Miscellaneous Case No. 4472 of 2008)
 
 
Code of Criminal Procedure (V of 1898)
Section 154
An FIR is recorded in accordance with the provision of section 154 of the Code, as such naturally before treating an information as FIR, it is to be seen whether it fulfills the requirements of section 154 of the Code. In view of language used in this section, any vague or indefinite or incomplete information, even if it relates to a cognizable offence, cannot be an information to be treated as an FIR. It cannot be a universal dogma that the information in respect of commission of a cognizable offence first in point of time to the Police Station is always must be an FIR and if it is taken as a matter of fact it will be risky and suicidal for the administration of criminal justice. Thus we find that the FIR lodged by PW 1, the father of deceased knowing the fact from the witnesses who were present in the scene of the occurrence was rightly treated as FIR by the Court below. . . .(67 and 70)

Code of Criminal Procedure (V of 1898)
Section 154
When any father losses his only beloved son like the deceased, it is very much natural and probable that he will be shocked and perplexed as it could be. So, it cannot be the top most priority of filing an FIR than that of the burial function of the deceased by a father. Moreso, immediate after occurrence PW 1 became also sick for the shock which he received due to the murder of his only son. So, in this particular case though the FIR was lodged after almost 22 hours but that cannot be considered as an inordinate delay in the above facts and circumstances of the case it cannot be considered that delay was caused intentionally in order to concoct the prosecution case. . . .(73)

Evidence Act (I ov 1872)
Section 3
Mere relationship of the witnesses with the deceased or informant cannot be the only ground to discard the  evidence of such witnesses if they are not found biased in deposing the Court. In this particular case the ocular witness PW 2 is not a relation of the deceased though he is a man of informant’s camp for the same politics of BNP and though PWs 3 and 8 are the cousins of the deceased, but in the facts and circumstances of the case it led us to hold that they are the most natural, probable and competent witnesses of the occurrence as the situation, the time of occurrence and the place of occurrence provides their presence in the place of occurrence and there appears no biasness, emotion and falsity in their evidence. . . . (84)

Evidence Act (I of 1872)
Section 8
The 4 witnesses were cross-examined by the defence extensively as to the means of recognition. But their evidences has not been shaken away in any way rather the evidence of PWs 2,3,8 and 13 as to the means of recognition is very much consistent and corroborative with one another. So, considering the consistent and credible evidence of P.Ws. 2,3,8 and 13 that they had seen the accused in the light of electricity available in the place of occurrence cannot be thrown away. . . . (93)

Penal Code (XLV of 1860)
Section 34
The reason for making more than one accused guilty under the provisions of section 34 of the Penal Code as the very presence of co-accused gives encouragement, support and protection to the person actually committing an act. It may so happen that without the support of the co-accused who did nothing other than standing on the scene with the master mind offender, he would not be able to hit the victim without the support of the co-accused. In this particular case it was not possible on the part of accused Mohammad Ali alone to cause a pistol shot on the ear of deceased Shafiq without the support, encouragement and protection of his other accomplice co-accused that is why all the accused persons who remaining present in the scene of occurrence had given support, encouragement and protection to the principal accused in committing the crime of murder of Shafiq is held liable under section 34 of the Penal Code. . . . (100)

Code of Criminal Procedure (V of 1898)
Section 376
As condemned prisoners Jewel alias Jahirul Haque, Akter Hossain son of Alimuddin, Abul Bashar alias Badsha and Shahin have been languishing in the condemned cell for a quite long time with a mental agony of death by hanging along with their tender age appears to us as extenuating circumstances to commute their sentence from death to imprisonment for life. But the said extenuating circumstances is not available to those of the convicts Mohammad Ali and Tipu who are still fugitive from the justice. . . . (105)

Muslemuddin and others Vs. The state, 38 DLR (AD) 311; Bachchu Sarder and others Vs. The State, 11 BLT (AD) 53; Majibur Rahman Vs. State, 39 DLR 437; Abu Taher Chowdhury Vs. State, 42 DLR (AD) 253; Samad Sikder Vs. State, 50 DLR (AD) 24; Yogeshwar Gope Vs. State, 58 DLR (AD) 73; Abdul Hye Sikder Vs. State, 43 DLR (AD) 95=12 BLD (AD) 180; Abdul Quddus Vs. State, 43 DLR 234; State Vs. Monjur, 15 BLD 193; The State Vs. Abul Khair, 44 DLR 284; Nazimuddin and others Vs. State, 36 DLR 22; Rasool Box Vs. State, 22 DLR (SC) 297 ref.

Mr. M. A. Mannan Mohan, Deputy Attorney General with
Mr. Md. Osman Gani Khan, Assistant Attorney General
. . . For the State.

Mr. Md. Abdul Aziz Miah Mintu, Advocate, State defence lawyer
. . . For the condemned prisoners Mohammad Ali and Tipu.
(In Death Reference No. 108 of 2006)

Mr. A.S.M. Rahmat Ullah, Advocate,
. . .For the appellant.

Mr. Bahar Uddin-Al-Razi, Advocate
. . For the appellant in jail appeal.
(In Criminal Appeal No. 6669 of 2007 (Jail Appeal No. 936 of 2007))

Mr. Syed Mizanur Rahman, Advocate,
. . .For the appellant.

Mrs. Hasna Begum, Advocate,
. . .For the appellant in jail appeal.
(In Criminal Appeal No. 5422 of 2006 (Jail Appeal No. 1049 of 2006))

Mr. Fazlul Haque Khan Farid, Advocate,
. . . For the appellants.

Mrs. Hasna Begum, Advocate,
. . .For the appellant Akter Hossain alias Akter in jail appeal.
(In Criminal Appeal No. 5323 of 2006 (Jail Appeal No. 1048 of 2006))

No one appears,
. . For the appellant.
(In Criminal Appeal No. 5137 of 2006)

Mr. Sk. Rezaul Islam with
Mr. Md. Abdur Razzaq, Advocates,
. . .For the appellants.
(In Criminal Appeal No. 5316 of 2006)

Mrs. Hasna Begum,
. . .For the appellant in jail appeal
(In Jail Appeal No. 110 of 2007)

Mr. Sk. Rezaul Islam, Advocate,
. . .For the petitioners.
(In Criminal Miscellaneous Case No. 5789 of 2008)

Mr. Zafor Sadeque, Advocate,
. . . For the petitioner.
(In Criminal Miscellaneous Case No. 4472 of 2007)

Death  Reference No. 108 of 2006
Criminal Appeal No. 6669 of 2007 (Jail Appeal No. 936 of 2007) with Criminal Appeal No. 5422 of 2006 (Jail Appeal No. 1049 of 2006) with Criminal Appeal No. 5323 of 2006 (Jail Appeal No. 1048 of 2006) Criminal Appeal No. 5137 of 2006 with Criminal Appeal No. 5316 of 2006 with  Jail Appeal No. 110 of 2007 with Criminal Miscellaneous Case No. 5789 of 2008 with Criminal Miscellaneous Case No. 4472 of 2007.
 
JUDGMENT
A. N. M. Bashir Ullah, J:
 
This Death Reference, under section 374 of the Code of Criminal Procedure (in short, the Code) has been submitted by the learned Judge, Druta Bichar Tribunal-1, Dhaka for confirmation of sentence of death awarded by him upon the condemned prisoners 1). Mohammad Ali, 2). Jewel alias Jahidul Haque, 3). Tipu, 4). Shaheen, 5). Abul Bashar alias Badsha and 6). Akter Hossain alias Akter convicting them under sections 302/34 of the Penal Code by the judgment and order dated 22.10.2006 passed in Druta Bichar Case no. 11 of 2006. The death reference and Criminal Appeal being nos. 6669 of 2007, 5422 of 2006, 5323 of 2006, 5137 of 2006, 5316 of 2006, Jail Appeals being nos. 936 of 2007, 1049 of 2006, 1048 of 2006 and 110 of 2007 and Criminal Miscellaneous Case nos. 5789 of 2008 and 4472 of 2007 have been hard together and they are being disposed of by this common judgment.

The prosecution case, as projected in the First Information Report (in short, the FIR) and also unfurled at trial, in short, is that deceased Md. Shafiqul Islam, a young man of 26 year was the Vice President of Rupganj Thana Chatrodal and at the same time a businessman who on 08.11.2005 at 6 P.M. to attend an informal meeting of Chatrodal had gone to Vulta under Rupganj Police Station along with Kamal and Monir Hossain by his private car being no. Dhaka Metro-Ma-00-0354 and at 6.30 PM he having been at Vulta had parked his car in front of Babul confectionary at the northern side of Vulta round square at Dhaka-Sylhet high way. He had attended the meeting at Chatrodal office at Awal market of Vulta leaving his accompanying members Kamal and Monir Hossain at Babul confectionary. He after performing his job of meeting at 9.30 P.M. coming to the right side of his car when he took an attempt to enter into the car accused Mohammad Ali, Md. Jewel, Tipu, Akter Hossain, Badsha Miah, Shaheen, A. Rouf, Mobarak Hossain, Kamal, Syed Hossain, Ayiub Hossain, Md. Aslam Bhuiyan, Jalil Miah and Jahirul Islam along with unknown 3/4 miscreants had encircled him along with his car. Accused Mohammad Ali shot pistol on the right ear of deceased Md. Shafiqul Islam who sustaining the said pistol shot fell down on the earth. Monir and Kamal tried to come to the deceased but for incriminate gun shot of accused Jewel, Tipu, Akter Hossain, Badsaha Miah and Shaheen could not reach to him. Witness Ripon, Mahbub, Kaiyum and Badsha also tried to come to the deceased from the baby taxi stand adjacent to the round square but the accused also resisted them on gun shot. One Jahangir tried to nab accused Mohammad Ali but the said Mohammad Ali had threatened him of fire. Accused Mohammad Ali, Jewel, Tipu, Akter Hossain, Badsha Miah and Shaheen riding on a yellow coloured taxi cab from in front of Gausia market had left the place of occurrence for Narshingdhi. The other accused also had left the place of occurrence towards south direction. Witnesses Monir, Kamal, Jahangir and others had shifted critical Shafiqul to Vulta General Hospital where the Doctor declared him dead. Mofizuddin Bhuiyan, the father of the deceased being informed of the occurrence having been at Vulta Genereral Hospital found the dead body of his son. The witnesses told the occurrence to him and on the following day the dead body of deceased Md. Shafiqul Islam was buried and thereafter informant Mofizuddin Bhuiyan lodged the FIR with Rupganj Police Station through his cousin Mohammad Ali and accordingly Rupganj Police Station Case no. 9 dated 09.11.2005 corresponding to G.R. Case no. 516 of 3005 were started.

The case was investigated by PW 37 Police Sub-Inspector Md. Habibur Rahman who at the initial stage of the investigation prepared inquest report on the cadaver of deceased and sent the dead body to the morgue for post mortem examination, seized the alamats of the case, examined the witnesses and recorded their statements and after completion of the investigation submitted police report under sections 302/34 of the Penal Code recommending the trial of 19 accused named in the police report. After submitting the police report the case record was sent to the Sessions Judge, Narayanganj for trial where the case was registered as Session Case no. 370 of 2006 where the accused were invited to answer the charges under sections 302/34 of the Penal Code to which accused Aslam Bhuiyan, Abul Bashar alias Badsha, Syed Hossain, Akter Hossain alias Akter, Abdur Rab alias Rouf, Ayiub Hossain, Akter Hossain alias SDU, Nur Mohammad alias Nura and Mukul alias Mokbul Hossain pleaded their not guilty claimed to be tried. On the date of framing charge accused Mohammad Ali, Jewel alias Jahidul Haq, Tipu, Shaheen, Mobarak Hossain, Kamal, Jalil Miah, Jahirul Islam, Jahangir and Abdul Hye were fugitive from justice as such their answer on the charge could not be recorded but to defend the absconding accused, state defense lawyer was appointed accordingly.

After examining the PW 1 by the Sessions Judge, Narayanganj the case was transferred in the Druta Bichar Tribunal no.1, Dhaka where the case was registered as Druta Bichar Tribunal Case no. 11 of 2006 on 19-06-2006. At trial the prosecution examined 37 witnesses in all but the defence examined none. After completion of the oral evidence accused Akter Hossain alias Akter son of Alim Uddin, Abul Bashar alias Badsha, Abdur Rab alias Rouf, Syed Hossain, Ayiub Hossain, Md. Aslam Bhuiyan, Akter Hossain alias SDU and Mukul alias Mokbul Hossain were examined under section 342 of the Code of Criminal Procedure when they repeated their innocence and disclosed their unwillingness to adduce any defence witness. The rest 11 accused remained fugitive from justice on the date of examination under section 342 of the Code. The Tribunal considering the evidence and other materials on record found accused 1).Mohammad Ali, 2). Jewel alias Jahidul Haque, 3). Tipu, 4). Shaheen, 5). Abul Bashar alias Badsha, and 6). Akter Hossain alias Akter son of Alim Uddin guilty under sections 302/34 of the Penal Code and awarded the sentence of death upon them. The Tribunal also found guilty accused Syed Hossain, Abdur Rab alias Rouf, Ayiub Hossain, Aslam Bhuiyan, Akter Hossain alia SDU, Mukul alias Mokbul Hossain, Mobarak Hossain, Kamal, Jalil Miah, Jahirul Islam and Jahangir under sections 302/34 of the Penal Code and sentenced them to suffer imprisonment for life with a fine of Taka 50,000 each in default to suffer imprisonment for 1 year more. The Tribunal also made the reference under section 374 of the Code for confirmation of sentence of death awarded upon 6 (six) condemned prisoners as aforesaid.

Convict Jewel alias Jahidul Haque being aggrieved by and dissatisfied with the judgment and order of conviction of sentence preferred Criminal Appeal no. 6669 of 2007 and Jail Appeal no. 936 of 2007, convict appellant Abul Bashar alias Badsha preferred Criminal Appeal no.  5422 of 2006 and Jail Appeal No. 1049 of 2006, convicts appellants Akter Hossain alias Akter son of Alim Uddin, Abdur Rab alias Rouf and Aslam Bhuiyan jointly preferred Criminal Appeal no. 5323 of 2006 and Jail Appeal no. 1048 of 2006, Akter Hosssain alias SDU son of Ramiz Uddin preferred Criminal Appeal 5137 of 2006, Syed Hossain, Ayiub Hossain and Mukul alias Mokbul Hossain jointly preferred Criminal Appeal no. 5316 of 2006. Shaheen preferred Jail Appeal no. 110 of 2007, convicts Kamal and Jahirul Islam preferred Criminal Miscellaneous Case no. 5789 of 2008 and convict Jalil Miah preferred Criminal Miscellaneous Case no. 4472 of 2007 under section 561A of the Code to scrap of the judgment and order of conviction and sentence. Since the death reference, the criminal appeals, the jail appeals and criminal miscellaneous cases arose out of the same judgment and the order of conviction and sentence all the proceedings have been heard together and are being disposed of by this common judgment.

Mr. M. A. Mannan Mohan, the learned Deputy Attorney General appearing with Mr. Md. Osman Gani Khan, the learned Assistant Attorney General for the State having taken us through the judgment and order of conviction and sentence under the reference, the FIR, the evidence on record and the other materials on record makes his submission supporting the reference and opposing the appeals and criminal miscellaneous cases. He submits that a very shocking and gruesome murder of deceased Md. Shafiqul Islam was taken place on 08.11.2005 at 9.30 P.M. in front of Sunny confectionary (known also as Babul confectionary) at Vulta under Rupganj police station, Narayanganj when he was entering into his car by the convicts of this case and the occurrence of murder has been witnessed by the ocular witnesses namely PWs 2,3,8 and 9. The other witnesses namely PWs 10 and 12 also found some of the accused to leave the place of occurrence after causing murder of the deceased. He categorically submits that PWs 2,3,8 and 9 found accused Mohammad Ali to fire a pistol shot on the right ear of the deceased causing his instant death and the rest accused also had participated in the murder of Md. Shafiqul Islam with Mohammad Ali. They had raided the deceased as well as the car of the deceased so that the deceased cannot escape from the place of occurrence and thus they had actively participated in the murder of deceased Md. Shafiqul Islam jointly in furtherance of their common intention of all. He also submits that though the convicts and the deceased belonged to same political identity but there was a hitch between them. The convicts under the leadership of Mohammad Ali were engaged in the nefarious activities of the locality but the deceased tried to resist them but failed and the deceased also did not give blow to the illegal activities of the accused which made them furious. Before 3/4 days of occurrence, an illegal motor cycle used by accused Mohammad Ali was seized by the police. Accused Mohammad Ali and his followers held deceased Md. Shafiqul Islam responsible for the said seizing and took the decision to murder him and ultimately they had executed their plan murdering the deceased in the place of occurrence and after causing murder of the deceased they fled away successfully. But the eye witnesses found them in the light of the electricity available in the place of occurrence and the Tribunal being convinced of the univocal and cogent evidence of the eye witnesses and other materials on record found the accused guilty rightly under sections 302 and 34 of the Penal Code and awarded death sentence upon 6 (six) accused and imprisonment for life upon the rest 11 accused. The conviction and sentence of the accused are based on legal and nitid evidence of the witness. So, the judgment of order of conviction and sentence do not call for any interference from this Court and with these words he canvases for the acceptance of the reference, dismissal of the appeals and discharging of the Rules of the miscellaneous cases filed by the convicts.

On the other hand Mr. Md. Abdul Aziz Miah the learned Advocate appearing for the condemned prisoners Mohammad Ali and Tipu opposes the reference submitting that both the accused and the deceased belonged to same political identity. The accused did not murder the deceased as alleged by the prosecution case and though the prosecution examined 37 witnesses in this case and out of these 37 witnesses PWs 2,3,8 and 9 deposed as ocular witnesses but in fact they did not witness the occurrence. The evidence of PWs 2,3,8 and 9 are not also credible. PW 2 Md. Jahangir had no any business at Vulta at the relevant time. He is known as common witness of the locality whose presence has been introduced in this case in order to strengthen the prosecution story and as such he is a chance witness of this case. He also submits that though PWs 3 and 8 appears to be accompanying member of deceased and though it was claimed that at the relevant time they were at Sunny confectionary but for two reasons they did not witness the occurrence. It is in the evidence of PW 13, the proprietor of Sunny confectionary that when they had heard the sound of firing they lied on the floor, so there was no scope on the part of PWs 3 and 8 to witness the occurrence of firing and the other gesture and posture of the rest accused and secondly there was no sufficient light in the place of occurrence. So, in the absence of any acceptable means of recognition, the evidence of PWs 3 and 8 regarding the identification of the accused is not compatible with the facts and circumstances of the case. He also submits that PW 9 is a political friend of the deceased who had no occasion to witness the occurrence. He had deposed for his friend only. But the Tribunal without considering this aspect of the case wrongly found the condemned prisoners Mohammad Ali and Tipu guilty under section 302/34 of the Penal Code and awarded the death sentence. So, the death sentence of condemned prisoners Mohammad Ali Tipu is liable to be set aside.

Mrs. Hasna Begum, the learned Advocate appearing for the condemned prisoners Abul Bashar alias Badsha, Akter Hossain alias Akter, Abdur Rab alias Rouf, Aslam Bhuiyan and Shaheen in Jail Appeals being nos. 1049 of 2006, 1048 of 2006 and 110 of 2007 opposes the death reference and supporting the jail appeals filed by those five condemned prisoners reiterated the argument advanced by the stated defence lawyer Mr. Abdul Aziz Miah. She also submits that though the Tribunal awarded death sentence upon those 3 accused and imprisonment for life upon rest of 2 accused but there was no legal and unblemished evidence on record to find them guilty. She categorically submits that though there was a long list of witnesses in the case but as per prosecution case PWs 2,3,8 and 9 are the only eye witnesses in this case. But their evidence is not believable and credible at all. PW 2 is a chance, partisan and a common witness of the criminal cases of that locality. She also submits that there was no sufficient light to identify the accused, so, PWs 3 and 8 were not in a position to witness the assailant and other accused. So the Tribunal very erroneously relied on the incredible evidence of PWs 2,3,8 and 9 and thereby came to a wrong conclusion finding the condemned prisoners and others guilty under sections 302/34 of the Penal Code. Thus she conjures to reject the reference and to allow the jail appeals filed by those 5 convicts.

Mr. Md. Baharuddin-Al-Razi, the learned Advocate appearing for the condemned prisoner Jewel reiterating the arguments advanced by the learned Advocate Md. Abdul Aziz Miah and Mrs. Hasna Begum submits that the conviction and sentence of condemned prisoner Jewel is based mainly on the evidence of so-called eye witnesses of PW 2,3,8 and 9. But PW 2 is a chance witness in any view of the matter. PWs 3 and 4 though claimed to have been in the Sunny confectionary at the relevant time but in view of their own evidence they did not get any chance to witness the occurrence as well as the assailant and the other accused and PW 9 was also a partisan witness of the prosecution. Thus he conjures to acquit Jewel from the charge levelled against him.

Mr. Syed Mizanur Rahman, the learned Advocate appearing for the condemned prisoner Abul Bashar alias Badsha in Criminal Appeal no. 5422 of 2006 submits that deceased Md. Shafiqul Islam might have been murdered on the date of occurrence at Vulta but accused Abul Bashar alias Badsha is not involved with the occurrence of this case. He categorically submits that the prosecution had knitted the prosecution story leaving the facts of the case. PW 2 is a common witness of the locality and he is not a man of clean image and he was convicted in a criminal case and he has become an expert witness to face the lawyers in the Court. As such, he was examined in this case as an important witness. He also submits that the there was a police out post adjacent to the said place of occurrence at Vulta but none of the member of police was informed about the occurrence and the presence of police in the scene of the occurrence is almost nil though there appears the presence of many witnesses which is very unusual and unbelievable. He submits that PWs 3 and 8 cannot be trusted at all as they are the close relations of the deceased. The prosecution could not prove the means of recognition of this case by any cogent and reliable evidence thereby arrived at a wrong decision finding accused Abul Bashar alias Badsha guilty. He also submits that though there appears a recovery of mobile set by witness Kaiyum allegedly belonged to accused Abul Bashar alias Badsha but the fact of recovery did not find place in the FIR. So the recovery of mobile set is nothing but a myth which has been introduced to include the accused with the case. He further submits that though PW 9 claimed to have seen the occurrence as eye witness but at the time of occurrence he was near the baby taxi stand at Vulta which is far away from the place of occurrence. So he had no occasion to witness any accused of this case. But the trial Tribunal wrongly relied on the evidence of PW 9 also. He further submits that the fire arms allegedly used in the occurrence of this case was allegedly recovered at the instance of this accused and though the said arms was examined by the ballistic expert but there is nothing in the said report to connect the said fire arms with the occurrence of this case. Some pillets were also recovered from the place of occurrence and from the dead body of the deceased but there is no any such proof that the pillets correspond the fire arms. So, there was no scope to say that said recovered arms was used in the murder of the deceased. Thus the learned Advocate prays for rejection of the reference and to allow the criminal appeal filed by this condemned prisoner.

Mr. Md. Fazlul Haque Khan Farid, the learned Advocate appearing for condemned prisoner Akter Hossain son of Alim Uddin, convicts Abdur Rob alias Rouf and Aslam Bhuiyan in Criminal Appeal no. 5323 of 2006 submits that the investigation of this case was started on the basis of a GD entry but during the investigation and trial, the FIR lodged by PW 1 was treated as FIR. He adds that when an investigation is started upon a GD entry that DG entry is the FIR and the subsequent FIR lodged by PW 1 is nothing but a statement under section 161 of the Code. But this principle of law has been seriously ignored. He also submits that the FIR was lodged after 22.15 hours of the occurrence with an intention to include the accused who were not in the scene at all. Prosecution could not examine a single independent and disinterested witness in this case. He categorically submits that PWs 2,3,8 and 9 claimed to have seen the occurrence from a close vision but none of them are independent and disinterested witness. So, it is natural and probable that they will give obliging evidence in the Court favouring the prosecution but these realities have not been appreciated by the trial Tribunal. If the evidence of PWs 2,3,8 and 9 are left out from consideration there appears no evidence against any of the accused of this case.  PW 13,  the Proprietor of Sunny alias Babul confectionary is a competent as well as independent and disinterested witness and at the time of occurrence he was present in his confectionary. He simply deposed that he heard the sound of firing but he did not witness the occurrence and if it is so, the PWs 3 and 8 who were in his shop also did not witness the occurrence but the total prosecution case is based on the evidence of PWs 3 and 8. The trial Tribunal relying on the evidence of PWs 3 and 8 found the accused guilty and awarded highest sentence to them. Thus he conjures to reject the reference and to allow the criminal appeal filed by these 3 appellants.

Mr. Sheikh Mohammad Rezaul Islam, the learned Advocate appearing for the convict appellants Ayiub Hossain, Syed Hossain and Mukul alias Mokbul Hossain in Criminal Appeal no. 5316 of 2006 and also for convict petitioner Kamal and Zahirul Islam in Criminal Miscellaneous Case no. 5789 of 2008 opposing the judgment submits that the informant lodged the FIR after almost 22 hours of the occurrence implicating the accused with the case but the prosecution could not prove the charge relying on the cogent and unblemished evidence of the prosecution witnesses. The prosecution as well as the trial Tribunal relied much upon the evidence of PWs 2,3,8 and 9 but none of them were present in the place of occurrence. The presence of PW 2 Md. Jahangir in the place of occurrence did not justify from his own evidence. He also submits that Mukul alias Mokbul is not FIR named accused, had he been in the place of occurrence, his name would have been in the FIR. The so called eyewitnesses PWs 2 and 3 did not tell the name of accused Mukul alias Mokbul. He further submits that there was no sufficient light to witness the occurrence and the prosecution could not prove the means of recognition in this case. PWs 11 and 26 were not named in the charge sheet as witnesses but the prosecution examined them, so their evidence is not admissible and believable in this case. Thus he prays for the acquittal of convict appellants Ayiub Hossain, Syed Hossain and Mukul alias Mokbul while he prays for quashing the judgment and the order of conviction and sentence as against accused Kamal and Zahirul Islam.

Mr. Md. Zafor Sadeque, the learned Advocate appearing for the convict petitioner Jalil Miah in Criminal Miscellaneous Case no. 4472 of 2007 reiterating the arguments as advanced by the learned Advocates for others adds that the petitioner Jalil Miah could not face the trial and after pronouncement of the judgment he was arrested, as such, he could not prefer appeal within time, thus he preferred a criminal miscellaneous case under section 561A of the Code to quash the judgment against him. He submits that the trial Tribunal though convicted and sentenced him relying on the evidence of PW 2,3,8 and 9 but they are not independent and disinterested witnesses rather they are the partisan and relations of the deceased, as such, the trial Tribunal should have not relied on their evidence in convicting the petitioner.

Mr. Md. Abdul Razzak, the learned Advocate appearing for the convict appellant Ayiub Hossain in Criminal Appeal no. 5316 of 2006 reiterating the arguments advanced by the other lawyers submits that the so called eyewitness PW 2 did not tell the name of accused Ayiub Hossain. PW 8 another eye witness testified that there was not light in the post where the car was parked, so the recognition of the accused is doubtful. PW 9 another eye witness though told the name of this accused before the Tribunal but at the time of statement under section 164 of the Code did not tell his name. He adds that presence of PWs 3 and 8 in the place of occurrence is doubtful. He prayed for acquittal of accused Ayiub Hossain from the charge levelled against him.

Now, in order to appreciate the arguments advanced by the prosecution and the learned Advocates for the convict appellants and the petitioners let the evidence adduced by the prosecution in this case be scrutinized and analyzed.

PW 1 Mofizuddin Bhuiyan alias Mofiz Member, the informant as well as the father of deceased is not an eyewitness of the occurrence. He stated that on 08.11.2005 when he was at Murapara bazaar, Kamal over cell phone informed him that Md. Shafiqul Islam being injured by gun shot has been admitted at Vulta general hospital, he having been there found the dead body of his son, he found Kamal, Monir, Ripon, Jahangir, Mahbub, Badsha, Kaiyum and others in the hospital, Monir and Kamal told him that at 9.30 PM accused Mohammad Ali fired pistol shot on the right ear of the deceased in front of Babul confectionary, they also told him that when Shafiq was entering into his private car accused Mohammad Ali, Jewel, Tipu, Badsha, Akter, Shaheen, Ayiub, Rouf, Aslam, Syed, Kamal, Zahirul, Jalil and 3/4 unknown miscreants had raided him and his private car, thereafter Mohammad Ali caused the pistol shot on the right ear of the deceased and the accused persons firing the blank gun shot had left the place of occurrence, they also told him that they had identified the accused in the light of the electricity. He further stated that after post mortem examination deceased was buried in his family graveyard, thereafter, he had sent the FIR to the police station through his relation Mofiz member. He proved the FIR and his signature in it, marked exhibits 1 and 1/1. He also stated that for the previous enmity the accused had murdered his son. In cross-examination of the defence he stated that the FIR was written on his dictation, the police station is half a mile away from his residence, there is a police outpost at Vulta which is 300 yards away from the Vulta general hospital, he became senseless hearing the news of the occurrence. He further stated that he is the President of Murapara Union BNP and very much active in the politics of BNP, before the occurrence of this case police seized a motor cycle used by Mohammad Ali at the instance of his deceased son, Akter Hossain is the son of local Awamileague leader, accused Badsha Mia did not belong to Juboleague rather he was a member of BNP but for his nefarious activities he has been expelled from the BNP. He denied the defence suggestion that for the inner contradiction of BNP politics his son has been murdered by his opponent group.

PW 2 Md. Jahangir stated that on 08.11.2005 he had gone in the house of his daughter at Sonargaon, at 9.30 PM he was purchasing some fruits from a shop situated at the southern site of Sunny alias Babul confectionary, he found a black taxi 5-7 yards away from his location belonged to Mofiz Member and driven by his son Shafique, he also found Shafiq to come towards the driving seat of the car when accused Mohammad Ali, Jewel, Tipu, Akter, Shaheen, Badsha had raided him and accused Rab, Kamal, Syed, Jahirul, Jalil and more 3/4 unknown miscreants also coming from the western side encircled the car of Shafiq, Shafiq was found anxious of the presence of the accused and while he took an attempt to enter into his car accused Mohammad Ali fired gun shot on his right ear thereafter accused Mohammad Ali and his accompanying members ran away towards east direction, he tried to nab Mohammad Ali but his accompanying members fired blank shot indiscriminately, the another group of accused who had encircled the car also fired blank shot, accused Mohammad Ali and his accompanying members riding on a yellow taxi cab had left the place of occurrence for Narsingdi, the another group of the accused who were in the eastern side of the place of occurrence had gone towards the south direction, he found on unsuccessful attempt of witnesses Kamal and Monir to rescue the deceased, he also came forward to rescue Shafiq and at the same time witnesses Mahbub, Ripon, Kaiyum and others had come there and Shafiq was shifted to Vulta general hospital where the Doctor declared him dead, Kamal informed the occurrence to the father of Shafiq. He further stated that there was sufficient electric light in the place of occurrence and they had identified the accused in the light of that electricity, a mobile set was found in the place of occurrence which was seized. He adds that he deposed before the Magistrate. He proved his such statement and his signature in it marked, exhibits 2 and 2/1. He identified accused Akter Hossain SDU, Rab, Badsha and Syed Hossain in the dock. In cross-examination of the defence he stated that he had gone in the house of his daughter at 11 AM of the same day. He took some sweets but no fruits for his daughter. He had left the house of his daughter immediately after magrib prayer and came to Vulta riding on a rickshaw, he had a transaction with a man at Vulta turning point as such he went to Vulta and he realized Taka 2,000/- from him, some of the shops were closed on the date of occurrence, his house is within 3 miles from Vulta turning point. He denied the defence suggestion that Mofiz member is his business partner, both he and Mofiz member are connected with the BNP politics, he was an accused of Rupganj Police Station Case no.  81(4)06, he was convicted and sentenced to suffer imprisonment for life in the Suresh murder case in 1972 but he has been acquitted from the High Court, he heard it that Shafiq had brought his wife at the time of marriage by helicopter, there is a police outpost at Gousia market, Shafiq had sustained gun shot injury when he was out of his car. He denied the defence suggestion that he did not witness the occurrence and he is a chance witness and he has deposed and given an obliging statement in the Court.

PW 3 Md Monir Hossain stated that on 08.11.2005 at 6 PM he and Kamal had gone to Vulta with Shafiq by his car, Shafiq parking his car in front of Sunny confectionary had gone to Chatrodal office at 2nd floor of Hazi Awal market leaving them into the said confectionary and accordingly they were roaming there centering the said confectionary, one Alam of Mongal Khan village coming to them wanted to know the whereabouts of Shafiq and he being informed the location of Shafiq had gone to chatrodal office, at about 9.30 PM when they were taking biscuit at Sunny confectionary, Shafiq had come near his car then accused Mohammad Ali, Jewel, Tipu, Badsha, Shaheen and Akter coming to the place of occurrence took their position and at the same time accused Kamal, Syed, Jalil, Jahirul, Mobarak, Rouf, Ayiub, Aslam and more 3/4 others coming from the side of baby taxi stand had encircled the car of Shafiq who were armed with arms and while Shafiq took an attempt to enter into his car accused Mohammad Ali fired pistol shot on his right ear dropping him down on the earth, he and Kamal tried to reach Shafiq but accused Jewel, Tipu, Badsha, Shaheen and Akter fired gun shot indiscriminately and ultimately they sat down, Mohammad Ali and his accomplice had left the place of occurrence towards east direction, witness Jahangir who was in front of a fruit shop tried to nab Mohammad Ali but failed, Mohammad Ali riding on a Narsingdi bound yellow taxi cab had left the place of occurrence, other accused also left the place of occurrence towards south direction. He, Kamal, Jahangir, Mahbub, Kaiyum and Ripon had shifted the victim to Vulta general hospital where the Doctor declared him dead. Kamal informed the occurrence to the father of the deceased who coming to the hospital without any late heard the occurrence from them. The car was parked 6-7 yards away from the Sunny confectionary and they had found the accused in the light of the electricity. PW 3 identified accused Rouf, Syed, Akter, Badsha, Akter Hossain SDU, Aslam, Nura, Mukul, Ayuib in the dock of the trial Tribunal. In cross-examination he stated that Mofiz member is his uncle he did not attend the meeting and he cannot say the name of the participants of the said meeting, Vulta is 5-6 kilometers away from the house of Shafiq, Shafiq was busy in the said meeting for about 3 hours when they were roaming around the car and the Sunny confectionary, the baby taxi stand is 25-30 yards away from the place of occurrence. He further stated that he did not get any chance to go to Shafiq as before his arrival near the car, the firing of pistol shot was taken place. He denied the defence suggestion that he had deposed falsely.

PW 4 Md. Mofizul Islam stated that on 08.11.2005 at 10 PM he had gone to Kanchan ferry ghat to cross the river when he found accused Mohammad Ali, Badsha, Shahin, Jewel, Tipu and Akter to get down from a taxi cab and they had crossed the river by a boat, on the following day he heard it that the said accused had murdered Shafiq and left the place of occurrence by a yellow taxi cab, he participated in the janaja prayer of the deceased, he informed the said occurrence to his known person at janaja prayer. In cross-examination he stated that he had served in the Bangladesh Army as soldier for 15 years. He denied the further defence suggestion that he was dismissed from Army. He denied the defence suggestion that he had intimacy with Mofiz member and Bachhu and at their instance has deposed falsely.

PW 5 Md. Milon Miah stated that he has a shop at Goucia market, Vulta; on 08.11.2005 at 7.30 PM 5/6 persons including the accused Badsha and Mohammad Ali had come at Vulta by a yellow taxi cab from Dhaka, at 10/10.30 PM when he was at his dwelling hut came to know that Shafiq had sustained gun shot injury, he coming to the Vulta general hospital came to know that accused Badsha and Mohammad Ali firing gun shot on the deceased had left the place of occurrence by a taxi cab. He informed the said occurrence to the informant after 4/5 days of the occurrence. In cross-examination he stated that the informant is known to him.

PW 6 Md. Awal Bhuiyan stated that he is a trader of chicken, on 08.11.2005 he had gone to Vulta and he found a Narsingdi bound yellow taxi cab at Vulta and found a handsome man moving around the said taxi cab with anxiety, at 10 PM of the night he heard that the son of Mofizul Islam have been murdered at Goucia market, Vulta, he having been at Vulta general hospital found the dead body of Shafiq, he informed the occurrence of yellow taxi cab to the informant. In cross-examination he stated that Satter Bhuiyan is his uncle who has a shop of shoe at Vulta. He denied the defence suggestion that he at the instance of Mofiz member had deposed falsely against the accused.

PW 7 Md. Shakawat Hossain Kamal stated that he is an employee of Allied Jute Mills at Baniadi, Rupganj, on 08.11.2005 at 8 PM he had gone to Vulta bus stand from Dhaka when he found accused Syed, Kamal, Jahirul Aslam, Ayuib, Rouf, SDU and Mokbul to gossip in front of a mosque and at 9.45 PM when he was at Allied Jute Mills came to know that Shafiq had sustained gun shot injury, he having been at Vulta general hospital found the dead body of Shafiq and heard the occurrence from witnesses Monir, Kamal and Jahangir. He informed the informant in the hospital which he had found prior to the occurrence. In cross-examination he stated that Mofiz member is his Khalu, the head office of Allied Jute Mills is at Dhaka. He heard the occurrence of gun shot on Shafiq from Monir. He denied the defence suggestion that he did not go to Vulta general hospital and he had deposed falsely being influenced by the informant.

PW 8 Md. Kamal Hossain stated that on 08.11.2005 at 6 PM he and Monir Hossain had gone to Vulta with Shafiq by his car, Shafiq parking the car in front of Sunny confectionary had gone to attend a meeting of chatradal requesting them to wait in front of said confectionary, they were roaming around the car centering the confectionary and in the meantime Alam coming to them wanted to know the whereabouts of Shafiq and he (Alam) was informed that Shafiq is at the office of Chartrdal, at 9.30 PM when they were taking refreshment in the said confectionary Shafiq coming to his car took an attempt to enter into the car from the right side of the car when accused Mohammad Ali, Jewel, Tipu, Badsaha, Akter and Shahin coming there had raided Shafiq and at the same time also accused Rouf, Mobarak, Ayuib, Aslam, Kamal, Syed, Jalil and Jahirul along with 3/4 others coming from the baby taxi stand encircled the car of Shafiq. He adds that Mohammad Ali fired pistol shot on the right ear of the deceased at which he and Monir took an attempt to go to the deceased but accused Jewel, Tipu, Badsha, Akter, Sahin, Rouf, Mobarak and Jahiru threatened them of dire consequences and they also fired blank shot, one Jahangir tried to nab the accused but failed, accused Mohammad Ali and his accompanying members riding on a yellow taxi cab had left the place of occurrence towards Narsingdi, he, Monir and Jahangir with the help of Jubadal leaders Ripon and chatradal leader Mahbub, Kaiyum and Badsha had shifted Shafiq at Vulta general hospital where the Doctor declared him dead, he informed the informant of the occurrence who having been at Vulta general hospital found the dead body of the deceased, they had identified the accused in the light of the electricity, witness Kaiyum got a mobile set in the place of occurrence, he identified accused Rouf, Akter, Akter Hossain SDU, Ayuib, Aslam, Nura, Syed, Badsha and Mukul in the dock. In cross-examination of the defence he stated that he is a business man of broken articles, informant is his uncle and he has studied up to class eight, he had a joint business of scrap with Monir but he is not connected with the politics of Chatradal, Vulta is 5-6 kilometers from the house of deceased Shafique, they had reached at Vulta at 6.30 PM, he did not go to the office of Chatradal with Shafiq, he cannot say why Alam was searching Shafiq through them, he and Monir are not the body guards of Shafiq but they used to accompany Shafiq from time to time, he cannot say whether there was light on the road at the time of occurrence, but he found a light in one post. He denied the defence suggestion that there was no light at Vulta turning point at the time of occurrence. He denied the further defence suggestion that he being the relation of the informant has given bias and false evidence against the accused.

PW 9 Ashraful Islam Ripon stated that he is the General Secretary of Rupganj thana Jubodal, on 08.11.2005 at 6.30 PM there was an informal meeting of Rupganj Chatradal regarding the Students Union Election of Murapara College and in the said meeting he, the students leader Mahbub, Kaiyum, deceased Shafiq, Ruhul, Lokman, Ramizuddin, Sobhan and others were present, the meeting was over at 9.20 PM thereafter they started their journey for their destination, Shafiq had gone in front of his car and when he was near the Vulta baby taxi stand heard the sound of firing while he found accused Kamal, Syed, Jahir, Jalil, Ayuib, Rouf, Mobarak and 3/4 others to leave the place of occurrence towards south direction and also found Shafiq lying beside his car, Monir, Kamal and Jahangir took vigorous attempt to shift Shafiq to hospital but failed and thereafter he along with Mahbub, Kaiyum, Badsha had shifted Shafiq to Vulta general hospital and on their way to hospital Kaiyum got a mobile set on the road which was given to the Investigating Officer. He adds that Kamal told them that accused Mohammad Ali fired pistol shot on deceased accompanied by accused Jewel, Akter, Badsha, Shahin and Tipu, Mohammad Ali had left the place of occurrence by a Narsingi bound yellow taxi cab. He further stated that he deposed before the Magistrate under section 164 of the Code. In cross-examination of the defnence he stated that he was not involved with the politics of BNP. The meeting was held under the banner of chatradal, the meeting was informal and there were 9-10 students and Jubadal leaders. He adds that in the meeting Tariqul Islam Tareq was selected for the post of VP at Murapara College Students Union election. He heard the sound of firing more than 1 (one) and he became thundered hearing the sound of gun shot. He had reached to deceased Shafiq within 20-25 seconds of causing gun shot on him. He denied the defence suggestions that he did not witness the accused to leave the place of occurrence and he being a partisan man deposed falsely in this case.

PW 10 Abdul Quiyum stated that he is the General Secretary of Rupganj Thana Chartrodal, on 08.11.2005 at 6.30 PM an informal meeting of Chatradal was held at chartrdal office at Awal market, Vulta, in respect of Murapara Degree College Students Union Election, in the said meeting among others deceased Shafiq was also present, after closing of the meeting at 9.20 PM Shafiq had gone to his car in front of Sunny confectionary, he, Mahbub, Ripon and Badsha had gone to baby stand in the western side of Vulta round square and when they were awaiting for rickshaw heard the sound of firing, they found accused Kamal, Syed, Mobarak, Rouf along with 8/10 miscreants to go towards Dhaka, they hurriedly having been in the place of occurrence found Shafiq lying on the earth with gun shot injury, Monir, Kamal and Jahangir with their help had shifted Shafiq to a local hospital where the Doctor declared him dead, Monir, Kamal and Jahangir told him that accused Mohammad Ali fired gun shot on the head of the deceased. He further stated that on the way to Vulta Hospital he found a mobile set on the road, he had deposited the mobile set to the police. He adds that he had deposed to the Magistrate under section 164 of the Code of Criminal Procedure. He proved the statement and his signature, marked exhibits 4 and 4/1, there was light in the place of occurrence and he found the accused in the said light. In cross-examination of the defence he stated at the time of occurrence he was a student, they took the decision that Tareq will contest for the post of V.P, the meeting continued for 3 hours, he had no conversation with Kamal, Monir and Jahangir before or after the meeting. He denied the defence suggestion that since he and the informant belonged to same politics he is a partisan witness in this case.

PW 11 Md. Jahirul Islam stated that he is a business man of sanitary goods at Murapara Namer bazaar, on 5.11.2005 at 12.30 PM while he was doing his day to day job in his shop accused Badsha, Jewel, Tipu, Kamal, Akter, Sahin, Mobarak and Jahirul sitting in front of his shop on the pillar were showing serious reaction for a motor cycle, Badsha was telling that for the intervention of Shafiq they could not do anything, so Shafiq will not be spared more. He adds that for the fear of accused he did not inform the said occurrence to anybody else but after the murder of Shafiq on 08.11.2005 he had told the same to the informant after two days of the occurrence. He further stated that he had deposed before the Magistrate under section 164 of the Code, he proved the statements and his signature on it, marked exhibits 5 and 5/1. In cross-examination of the defence he denied the defence suggestion that he has running his business on the land of the informant, there was none save and except he in his shop when the accused were hatching the plan to murder the deceased. He denied the defence suggestion that he has deposed falsely against the accused.

PW 12 Mahbubur Rahman alias Mahbub stated that he is the General Secretary of Rupganj Thana Chatrodl, on 08.11.2005 at 6.30 PM an informal meeting of Chatrodal was held in respect of Murapara Students Union Election and in the said meeting they had selected Tareq as V.P candidate and after closing of the meeting at 9.20 PM Shafiq had gone near his car in front of Sunny confectionary, he, Ripon, Quiyum and Badsha were awaiting for rickshaw at baby stand to go to their respective house, at that time he heard the sound of random firing and he looking back found accused Rouf, Mobarak, Kamal, SDU, Syed Hossain, Jalil, Jahir, Ayuib Hossain to leave the place of occurrence towards south direction, they also rushed to Shafiq where they found Shafiq lying on the earth with bullet injury, Kamal, Monir and Jahangir with the help of them had shifted Shafiq to Vulta general hospital and on their way to the hospital Quiyum got a mobile set on the road which was handed over to Police Sub-Inspector Mr. Habib, witness Kamal told him that accused Mohammad Ali with the aid of accused Jewel, Tipu, Badsha, Akter and Shahin firing gun shot on the right ear of the deceased had murdered Shafiq. He further stated that he had deposed before the Magistrate under section 164 of the Code. He proved his such statement and his signature on it, marked exhibits 6 and 6/1. He had identified accused Badsha, Akter, SDU, Rouf, Ayuib and Syed. In cross-examination he stated that he is a business man of textile and the informant is a business man of cement at Murapara bazar. He had convened the meeting through telephonic message, most of the fruits shops save and except 2/3 were closed, they could not resist the accused as they were armed with fire arms, he was awaiting for rickshaw which is 50 yards away from the place of occurrence. He denied the defence suggestion that he did not find anything and he had deposed falsely favouring the prosecution.

PW 13 Md. Ashraful Islam Babul, the proprietor of Sunny confectionary at Vulta stated that his confectionary is also known as Babul confectionary, the occurrence took place after 3 days of Eid on the 8th day of the month, 2005 but he cannot remember the name of the month,  on the date of occurrence at the evening Shafiq coming in front of his shop with his two accompanying members had parked his car beside a light post having no light in it but the another post was decorated with light, there were also light of the sign board of the shops, Shafiq had gone in the office of Chatradal at 2nd floor of Awal Market leaving his two accompanying members, who took biscuit and water in his shop from time to time, after 9'O clock of the night the said two accompanying members of Shafiq were taking biscuit in his shop when he became thundered hearing the sound of blast of cracker, there upon he and others sat down, he heard the sound like “­j­l ®g­m¢R-®j­l ®g­m¢Rz” he further stated that the names of the accompanying members of Shafiq are Kamal and Monir, Shafiq was shifted to Vulta general hospital where he heard it that Mohammad Ali and his men had murdered Shafiq. In cross-examination of the defence he stated that the uncle of deceased Shafiq is his school friend who is dead now, he has been running the confectionary business for the last one year four months, he has no any helping staff in his shop, no police came in the place of occurrence or in his shop from Rupganj Police Station or Vulta police outpost, he cannot remember whether he had given statements to the police after 4 months of the occurrence. He did not state to the police that Shafiq had come in front of his shop with his two accompanying members. He further stated that he stated before the Investigating Officer that after 9'O clock of the night when the two accompanying members of Shafiq were taking biscuit and tea in his confectionary he heard the unusual sound. He denied the defence suggestion that he at the request of the informant had deposed falsely against the accused favouring the prosecution.

PW 14 Monir Hossain stated that he has a fruit shop in front of the Meer Market at Vulta, on 08.11.2005 at 9.30 PM 3 customers had come in his shop when he heard the frightful sound repeatedly and he also found the deceased lying beside the door of his car, one of his customer raised his voice to nab the accused, the local Chartodal leader Ripon, Kaiyum, Badsha, Sobhan and others had shifted Shafiq to Vulta general hospital where he was declared dead. In cross-examination he stated that there are some other shops like him beside his shop. He denied the defence suggestion that he did not hear the sound of anything and he did not find anything.

PW 15 Md. Manik Mia stated that on 08.11.2005 he had gone to Vulta market to purchase a sharee for his wife and in the evening he found Kamal and Monir at Vulta who told him that they will go to their house with Shafiq, at 8.30'O clock of the night he found accused Mohammad Ali, Jewel, Tipu, Shahin, Akter and Badsha in front of Vulta Goucia market. Thereafter, he came back to his house but at 10'O clock of the night he heard it that Shafiq has been murdered in the hands of accused Mohammad Ali. He having been at Vulta general hospital found the dead body of Shafiq. In cross-examination of the defence he stated that he cannot say how many shop of sharee are there at Vulta market. He had no any conversation with the accused though they were known to him. He denied the defence suggestion that he has deposed tutored evidence in the Tribunal.

PW 16 Md. Abul Hossain stated that accused Badsha is his neighbour, on 04.11.2005 at 2.15 AM police seized a motorcycle from the house of accused Syed and inconsequence of that occurrence accused Badsha, Syed, Mokbul, Kamal, Jalil and Jahirul had blamed Shafiq who used to maintain a group, they were giving out that they will vanish Shafiq, accused Mohammad Ali is the god father of accused SDU, Rouf, Shahin, Mobarak, Aslam, Ayuib and Akter, on 08.11.2005 at 9.30 PM a mobile set was found in the place of occurrence used by accused Badsha bearing SIM no. 0188017309, he identified accused Badsha in the Tribunal. In cross-examination he stated that the motorcycle which was seized belonged to Mohammad Ali but the same was used by accused Badsha, the motorcycle had no any number and the same was running on the basis of “on test” for the last two years, his father has a tea stall in front of the house of informant Mofiz member. He denied the defence suggestion that since he has some dispute over the boundary with accused Badsha he has deposed falsely against the accused.

PW 17 Md. Alam stated that on 08.11.2005 he was going to goalkanda bus stand and at 7.00/7.30 PM when he had reached at village Para gao, Nabi Hossain, a member of Mohammad Ali group informed him that Mohammad Ali along with 5-6 others have been awaiting at Murapara to finish Shafiqul, Nabi Hossain also requested him to intimate the said message to Shafiqul, Nabi Hossain also ifnormed him that Shafiqul in the relevant time has been at Vulta, He having been at Vulta Chatrodal office had intimated the said message to Shafiqul. Shafiqul assured him that he will not use that road but at 9.30 PM of the night he heard it that Shafiqul had sustained gun shot injury. In cross-examination he stated that he cannot say whether he was an accused in the Khaleq and Tareq murder case, Nabi Hossain is neither his friend nor his relative, he did not inform the police about the conspiracy of the accused. Shafiq is neither his relation nor a political friend. He denied the defence suggestion that since he had worked with informant his name was included in the list of the witnesses to have some favour for the prosecution.

PW 18 Md. Moslem Miah stated that on 10.11.2005 at 9.30 AM Police Officer Mr. Habib seized a part of bullet withdrawn from the dead body of Shafiq and a blood stained trouser of Shafiq under a seizure list in his presence. He proved the seizure list and his signature in it, marked exhibits 7 and 7/1. He identified the blood stained trouser marked, material exhibit-1 and the part of bullet material exhibit-II. In cross-examination of the defence he stated that the informant Mofiz member is his elder brother, police showed the alamats which was seized in their presence.

PW 19 Noor Mohammad stated that he is a staff of a shop of tins at Aziz market, Vulta, on 08.11.2005 at 7.00 PM accused Jahangir took his mobile set from him and at 10'O clock of the night he had returned back the set through Al-Amin, on the following morning at 8.00 AM Jahangir coming to him requested to stop the mobile set, on his query Jahangir informed him that he had informed accused Badsha about the presence of Shafiq on 08.11.2005 at Vulta through the said set, the same request was also made by the father of accused Jahangir. He further stated that police examined him and he deposed before the Magistrate. He proved his statements and his signature in it, marked exhibits 8 and 8/1. In cross-examination of the defence he stated that on the basis of the information given by the police he has come to the Court to depose, accused Jahangir is a businessman of cloth, he cannot say the relationship between Jahangir and Badsha. He denied the defence suggestion that he has deposed falsely to favour the prosecution.

PW 20 Md. Kamal Hossain stated that he is the proprietor of Al-Amin Enterprise at Aziz market, Vulta. He has been using two mobile sets. The number of his cell phone is 0171189473 and 0172907280. Noor Mohammad alias Nura had taken the second SIM one month ago of Ramadan of 2005 and returned back after 15/16 days of the Eid-Ul-Fitre, on 02.01.2006 police called him through the said SIM when he told the police that second SIM was used by Noor Mohammad alias Nura for some days and he has deposed to that effect to the Magistrate. His statement before the Magistrate has been marked, exhibit 9 and his signature on it, exhibit 9/1. In cross-examination he stated that he cannot say whether he has papers of the said phone set which was purchased by his sister-in-law.

PW 21 Md. Monjoor Hossain stated that he is the General Secretary of Murapara Union Jubodal, accused Mohammad Ali was the President of the said committee, Mohammad Ali used to use 3 mobile sets, the numbers are 0171576560, 018261190 and 0173508024, he became fugitive after the murder of Shafiq and he was sacked from the post of Union Jubodal President. In cross-examination he stated that before the occurrence of this case he had kith and kin with accused Mohammad Ali.

PW 22 Dr. Md. Shajahan Mia stated that on 09.11.2005 on the identification of police constable Md. Abdul Hye he held the post mortem examination on the dead body of Md. Shafiqul Islam at Narayanganj morgue and found the following injuries:
1.   One bullet injury (wound on entrance) situated on the right ear where laceration  present.
2.   One swelling situated on the Lt. tempero occipital area where dissection done and one bullet found.
3.   An abrasion situated on the Rt. renal area.

On deep dissection tissues in an around the injured parts were conjested and extravasated with blood clot which were resist in washing. Bones of Rt. temporal, Lt. temporal and part of occipital bones were fractured. Lungs were congested. Hurt was full of blood.

In his opinion death was due to shock and hemorrhage resulting from gun shot injuries, which were antemortem and homicidal in nature.

He proved the post mortem report and his signature in it, marked exhibits 10 and 10/1. In cross-examination he denied the defence suggestion that lacerated wound is not consistent with the bullet injury. He also adds that it is not necessary that each and every bullet injuries must be a punctured wound, he found the marks of injury both in the right and left side of the skull, he got two gun shot injuries on the dead body of deceased Shafiqul Islam and both the injuries were caused by a single bullet shot. He denied the defence suggestion that he being influenced by the interest quarters had submitted his report.
PW 23 Dil Afroza, Magistrate 1st class, Narayanganj stated that on 24.01.2006 she recorded the statements of witnesses Noor Mohammad and Kamal Hossain under section 164 of the Code. He proved the statements marked exhibits 8 an 9 respectively. She further stated that on 26.02.2005 she recorded the statement of witnesses Ashraful Haque Ripon, Abdul Quiyum and Mahbubur Rahman she proved the statements of those 3 witnesses marked as exhibits 3,4 and 6 respectively. In cross-examination of the defences she stated that on 24.01.2006 she was a cognizance Magistrate.

PW 24 Md. Masumur Rahman, Magistrate 1st class, stated that on 26.12.2005 he recorded the statements of witness Abul Bashar, he proved the same marked exhibit 13. He further stated that he also recorded the statements of witness Jahangir on 26.12.2005, marked exhibit 2. He further stated that he also recorded the statement of witnesses Jabi Noor and Aki Noor on 02.03.2006, marked exhibits 14 and 15 respectively. In cross-examination he stated that there is no information in the statement as to when they were produced before him for recording their statements. He denied the defence suggestion that he being influenced by the prosecution had recorded the statement of those witnesses.

PW 25 Md. Rafiqul Islam, Magistrate 1st Class, stated that on 08.03.2005 he recorded the statements of witnesses Sultan Mia and Ayesha Khatun marked exhibits 16 and 17. In cross-examination he stated that the LTI of Ayesha Khatun was taken but there is no name as to who had taken the same, the cognizance Magistrate sent the record to him for recording the statement of the witnesses.

PW 26 Most. Akhinoor, a house wife, stated that her name was available in a mobile set recovered from the place of occurrence of this case, Police had inquired her as to why her name was found in the said mobile set, she informed the police that she had gone in the house of her sister at Baniadi to pass some days, Badsha a neighbour of her sister got her number set in his mobile and Badsha also gave his number to her which is 0188017309. She identified accused Badsha in the dock. In cross-examination she stated that she did not visit the place of occurrence, she cannot say from where the mobile set in question was recovered, accused Badsha is not her relation and she did never talk with Badsha, accused Badsha belonged to Rupganj while she belonged to Siddirganj, her house is 10-12 miles away from the house of accused Badsha.

PW 27 Jabi Noor stated that accused Badsha and Jahirul are her neighbours, last year after one day of the Eid-Ul-Fitre her younger sister had come in their house at Baniadi, her sister had gone to the house of Badsha and Jahirul with her mother-in-law where her sister exchanged the mobile numbers with Badsha, police examined her on the above facts. In cross-examination she stated that after her marriage she used to spent maximum time in the house of her father, but she had gone in the house of her husband after one day of the Eid-Ul-Fitre of last year. She did not go in the house of Badsha with her sister. She denied the defence suggestion that she is the tenant of the informant as such she has given some obliging evidence in the Tribunal.

PW 28 Abdul Matin stated that on 08.11.2005 he came to know that Shafiq has been murdered, on the next day he found accused Abdul Hye and Jahangir and thereafter they were never found in the locality. In cross-examination he stated that he being influenced by the prosecution has deposed falsely having no basis of his evidence.

PW 29 Md. Zaman Mia stated that he is a business man at Vulta, accused Jahangir and his father are his neighbours, Shafiq was murdered on 08.11.2005 and from then accused Jahangir and his father were untraced in the locality. In cross-examination he stated that he had stated the same fact to the police officer.

PW 30 Most. Fouzia Akter, the mother of deceased Shafiq stated that Shafiq had completed his education from University, he was a meritorious boy having amiable character, after completion of his education he was involved with politics, he told her that accused Mohammad Ali, Jewel, Tipu, Akter, Badsha, Syed, Kamal, Jahirul and SDU had threatened him of dire consequences, the accused were terrorist in the locality, the local people insisted her husband and son to raise their voice against the nefarious activities of the accused, Police seized a motorcycle before 4-5 days of the occurrence driven by accused Mohammad Ali, accused Mohammad Ali, Badsha and Sohel had doubted deceased Shafiq that at their instance police seized the motorcycle and ultimately to take revenge of the said fact they had murdered his son. In cross-examination she stated that no one had threatened her over cell phone, Shafiq told her that accused had threatened him. She denied the defence suggestion that accused Mohammad Ali and Badsha did not threaten her son. She also denied the further defence suggestion that she has deposed falsely to strengthen the prosecution case.

PW 31 Mrs. Shahnaz, wife of deceased Shafiqul Islam stated that Shafiqul had married her 2 years 6 months ago of the date of occurrence, her husband told her that Mohammad Ali did not like him as he had raised his voice against the misdeed of accused Mohammad Ali, her husband also told her that accused Jewel, Badsha and others will not spare him. She further stated that before 4/5 days of the occurrence police seized a motorcycle which was used by Mohammad Ali, accused Mohammad Ali and Badsha blamed her husband that police seized the same at his instance and ultimately the accused had murdered her husband at Vulta. In cross-examinations she denied the defence suggestion that she had been staying in the house of her father prior 4-5 months of the date of occurrence. Her husband used to look after the business of her father-in-law and also used to spend some times for politics of BNP. She denied the defence suggestion that she has deposed falsely at the instance of her father-in-law.

PW 32 Alhaj Md. Hasan Ali stated that on 08.11.2005 at 10.15 PM Ripon, General Secretary of Rupganj Thana Chatrodal informed him over cell phone that Mohammad Ali and his accomplice had murdered Shafiq, he found his dead body at Vulta general hospital, he found witnesses Ripon, Mahbub, Jahangir and others there, Jahangir informed him that accused Mohammad Ali murdered the deceased firing gun shot along with his accomplice, Jewel, Tipu, Akter, Sahin, Mobarak, Rouf, Kamal, Badsha, Syed, Jalal, Jahirul, SDU and Aslam, he knows Mohammad Ali who was the President of Murapara Union Jubodal. He further stated that he is the Senior Vice President of Rupganj BNP and also a Secretariate Member of Narayanganj District BNP, he had relations with accused Mohammad Ali for the cause of politics, Mohammad Ali used to use the mobile set being nos. 0171576560, 0173508024 and 0189261190. The Investigating Officer had collected the mobile nos. of Mohammad Ali from him. In cross-examination of the defence he stated that at present he is a business man but he was the Vice President of Dhaka Bank. He denied the defence suggestion that he had lost his job for corruption. He further stated that he had retired from service 2 years 2 months ago, Ripon is not his relative but he is very much close to him for the cause of politics, his son was the accused of Tara murder case but he has been discharged from the case, accused Mohammad Ali was convicted and sentenced to suffer impriso-nment for life in Khaled murder case, the mobile nos. of Mohammad Ali were saved in his set. He denied the defence suggestion that he had boundary dispute with accused Aslam Bhuiyan. He further denied the defence suggestion that Jahangir did not state anything to him but he has deposed fasely referring the name of accused Jahangir.
PW 33 Police Constable Md. Abdul Hye stated that on  09.11.2005 he was posted at Vulta Police Outpost, at 2'O clock of the night Police Sub Inspector Habibur Rahman prepared inquest report on the corpse of Shafiq and sent the deed body under a chalan to Narayanganj morgue through him. He proved the chalan and his signature in it, marked exhibits 11 and 11/2, a portion of bullet was found in the head of deceased and he deposited the same to the Police Station along with a blood stained pant of the deceased, Police seized the same. In cross-examination of the defence he stated that Police Sub Inspector Saidul Islam was in the charge of Vulta Police Outpost, the dead body of deceased Shafiq was sent to the morgue for post mortem examination vide GD no. 370 dated 08.11.2005, he had no knowledge whether any case was filed at the time of taking the dead body from hospital, Babul confectionary is 400/500 hands away from Vulta Police Outpost.

PW 34 Md. Ehsan Uddin Chowdhury stated that on 08.11.2005 he was Officer-in-Charge in the detective branch of police at Narayanganj district, he being informed of the occurrence through wireless message from district control room had moved to the place of occurrence and he having been there found that by that time the dead body had been shifted from the hospital, the local people found a mobile set near the place of occurrence having its SIM number 0188017309, he took the names and numbers from the said set, he proved the sheet of the numbers marked as exhibit -X. In cross-examination of the defence he stated that he could not say who had given the recovered mobile set to him, he was not the supervising officer of the investigation of the case but as an officer of district detective branch he can look after on any case, he had intraction with the Investigating Officer from time to time, the Investigating Officer recorded his statement on 21.01.2006. He denied the defence suggestion that he has given some tutored evidence in the Court.

PW 35 Md. Mahfuzur Rahman, at present Assistant Sub Inspector of Police stated that on 09.11.2005 he as Sub-Inspector of Police recorded Rupganj Police Station Case no. 9 dated 09.11.2005 under sections 302/34 of the Penal Code on the basis of an FIR lodged by the informant. He proved the FIR column and his signature in it, marked as exhibit 18 and 18/1. In cross-examination he stated that the place of occurrence is 8 kilometers away to the east direction from Rupganj Police Station. He received the FIR from Mohammad Ali Member, a cousin of the informant, the informant did not come to the police station with the FIR.

PW 36 Haji Mohammad Robiul Sikder stated that on 22.02.2006 at 2.30/3.00 PM of the night he was sleeping in his residence, police coming to his residence and presenting 3 accused namely Akter, SDU and Rouf enquired him whether he knows them or not, the police also asked to hear the statements of the accused, accused SDU told the gathering that after the murder of Shafiq an arms had been kept in the house of the accused Mohammad Ali and accused SDU brought the arms from the earth near the safety tank of Mohammad Ali and the said arms was seized under a seizure list. He proved the photo copy of the seizure list, marked exhibit 19 and his signature in it marked as exhibit 19/1. In cross-examination of the defence he stated that he was the accused in the Misir Ali murder case, he has deposed in the arms case pending at Narayangnj against the accused SDU, Rouf and Akter. He denied the defence suggestion that he was arrested with an arms at Clean Heart operation. He is not involved with Awamileague. He denied the defence suggestion that since Mohammad Ali belonged to Awamileague he has deposed falsely against him.

PW 37 and the last witness Police Sub Inspector Md. Habibur Rahman, the Investigating Officer of this case stated that on 08.11.2005 he was posted at Rupganj Police Station, on that day by a radio message he was informed that Shafiqul Islam has been murdered accordingly he having been at Vulta general hospital prepared inquest report on he cadaver of Shafiqul Islam, he proved the inquest report and his signature in it, marked exhibits 12 and 12/2. He further stated that he sent the dead body to the morgue through a chalan for post mortem examination, seized a black coloured private car being no. Dhaka Metro-Ma 00-0354, 3 empty bullets, one Nokia mobile set being no. 0188017309, another mobile set being no. 0173530108, 4 blood stained bricks bat under a seizure list. He proved the seizure list and his signature in it, marked exhibits 20 and 20/1. He further stated that the car was given in the jimma of Anwar Hossain. He identified the mobile set being no. 0188017309 material exhibit-IV, another mobile set belonged to deceased Shafiqul Islam being no. 0173530108 material exhibit no.V, 3 empty bullets jointly material exhibit-VI, 4 blood stained bricks bat materials exhibit –VII. He further stated that after recording the case on the basis of the FIR lodged by the informant the case was endorsed to him for investigation and at the time of investigation he visited the place of occurrence, prepared the sketch map along with index, seized the wearing pant of deceased and the frontal portion of a bullet under a seizure list, he proved the seizure list and his signature in it, marked exhibits 7 and 7/2. He proved the sketch map and index, marked exhibits 22 and 23. He adds that he recorded the statements of witnesses under section 161 of the Code and produced some of he witnesses before the Magistrate for recording their statements under section 164 of the Code, sent mobile no. 0188017309 for examination through D.B Inspector Ehsan Uddin, examined the saved numbers of mobile SIM no. 0188017309 and collected the mobile number of witness Aki Noor and talking her became sure that the mobile set recovered from the place of occurrence being no. 0188017309 belonged to accused Badsha, arrested accused Badsha and recovered a revolver and 4 rounds bullets on his showing. He further stated that on the basis of the admission of accused Akter Hossain SDU, Akter Hossain alias Akter and Abdur Rouf recovered the revolver used in causing the murder of Shafiq and two empty bullets. He proved the photo copy of seizure list, marked exhibit 19 and his signature in it exhibit 19/2, the recovered revolver was sent to the ballistic expert for opinion, the report has been marked as exhibit Y. He further stated that before the occurrence of this case Police Sub Inspector Tariqul Islam seized a numberless motorcycle causing rise of enmity between deceased Shafiq and accused. He further stated that in his investigation he found the involvement of accused Mohammad Ali, Jewel, Tipu, Shahin, Mobarak Hossain, Kamal, Jalil Mia, Jahirul Islam, Jahangir, Abdul Hye, Abul Bashar alias Badsha, Syed Hossain, Akter Hossain, Abdur Rab alias Rouf, Ayiub Hossain, Aslam Bhuiyan, Akter Hossain alias SDU, Noor Mohammad alias Nura and Mokbul Hossain alias Mukul with the occurrence of murder of deceased Shafiqul Islam and accordingly he submitted police report under section 302/34 of the Code recommending the trial of those accused.

In cross-examination he stated that before entrustment of the investigation he had performed some primary work in this case, there was a police outpost at Gousia market and a Sub-Inspector of Police was in charge of that police outpost, he was informed with a reference of a G.D entry that Shafiq had sustained gun shot injury, he did not seize any blood stained earth from the parking place but he seized 4 blood stained bricks bat from there, he found a perforated injury on the right ear of the deceased, there is nothing in the inquest report as to who had caused the shot, the mobile no. 0188017309 was recovered from the place of occurrence which was given to him and he seized the same, he tried to find out as to who is the owner of the said set from Aktel company but the company could not furnish any information to that effect, later on he tried to detect as to who is the owner of the said set, he did not find any wearing cloths on the person of the deceased save and except the blood stained pant. He further stated that after lodging the FIR he had visited the place of occurrence, prepared the sketch map and index, the mark ‘Ka-1’ is the place of occurrence which is a vacant place having semi pucca floor, the marks ‘Jha’ to ‘Tha’ are the fruits shop, he did not mention the names of the shop keepers neither in the map nor in the index, but it is available in the CD, the distance between ‘Ka-1’ and ‘Fa’ (Gousia market) is about 300 yards, mark ‘Ha’ is the yellow taxi cab, he came to know about the location of the yellow taxi cab from the witnesses, he did not mark any light post in the sketch map. He further stated that he visited the place of occurrence before filing of the case, he recorded the statements of Monir and Jahangir on 09.11.2005 and Kamal on 10.11.2005, witness Jahangir was produced before the Magistrate for recording his statement, he did not seize the papers of seized car but he was sure that the said car belonged to deceased Shafiq. He adds that the doctor recovered the parts of bullet from the body of the deceased which was given to him and he seized the same under a seizure list, D.B Officer Ehsan was not the supervising officer of this case, he cannot say whether seized bullets belonged to same pistol or not, witnesses Monir and Kamal are the cousins of the deceased. He denied the defence suggestion that Jahangir is a professional witness. He denied the defence suggestion that no motorcycle belonged to Mohammad Ali was seized ever rather the same plot has been created for the purpose of this case. He further stated that Vulta turning point is a populous area of the locality, he did not examine the constables of Vulta Police Outpost, the police of that outpost was not in the mobile duty at the time of occurrence, later on they were suspended, he arrested Alauddin, the President of Murapara Union Awamileague suspiciously, Alauddin is the father of accused Akter and father-in-law of accused Rouf.

He adds that he examined witness Jahangir on 09.11.2005 who did not state to him that immediately after occurrence he had informed the occurrence to the informant. PW 13 Md. Ashraful Islam Babul did not state to him that Shafiq had parked the car in front of his shop and also did not state that his accompanying members had taken snacks from his shop from time to time, he also did not state that the said two accompanying members of Shafiq had been roaming around the place of occurrence. PW 17 Alam did not state to him that on the date of occurrence he met with Kamal and Monir at Vulta and came to know from them that Shafiq was in the meeting of Chatrodal office and Alam also did not state to him that Shafiq told him that he will go to the house of his aunt. He denied the defence suggestion that he invented PW 26 as witness in this case to implicate Badsha with the occurrence of this case and also to serve the same purpose he invented PW 27 also, he did not ascertain the ownership of the yellow taxi cab. He denied the further defence suggestion that he in order to strengthen the prosecution case introduced the story of yellow taxi cab and mobile set. He denied the defence suggestion that the deceased was murdered by some unknown assailants but with an ill motive he has implicated the accused falsely in this case. He further stated that the FIR was lodged after 21.30 hours. He denied the defence suggestion that he did not investigate the case properly and has submitted a perfunctory charge sheet against the accused in this case.

These are the evidences that have been given by the prosecution in this case. From the evidence discussed above it appears that the prosecution examined 37 witnesses in all out of which PW 22 is a doctor, PWs 23 and 34 are Magistrates, PWs 33,34,35 and 37 are the police personnel and the rest 30 are the local witnesses.

The death of deceased Md. Shafiqul Islam on 08.11.2005 at around 9.30 PM at Vulta under Rupganj Police Station is not at all disputed in this case. The common defence case of the condemned prisoners as well as the convict appellants is that deceased Shafiqul Islam might have been murdered by some unknown assailants on 08.11.2005 at Vulta. After the death of Shafiqul Islam post mortem examination on his cadaver was held by PW 22 Dr. Md. Shahjahan Miah who found one bullet injury on the right ear where laceration was found and he also found another swelling on the left tempro occipital area where a bullet was found. In the opinion of the doctor death of the deceased was caused due to shock and hemorrhage resulting from the gun shot injury which was antemortem and homicidal in nature. PW 22 was crossed examined extensively by the defence but his such evidence has not been squeezed or discredited in any way. In cross-examination the only point raised that an injury caused by bullet must be a punctured injury but PW 22 in his reply stated that it is not a common feature that bullet injury always must be a punctured injury rather it may be a lacerated injury even. Thus we find nothing wrong in the medical evidence for which we can discard this evidence. Moreso as we have noticed it earlier that the death of the deceased for the gun shot injury which he had received on the date of occurrence is not disputed at all. Thus from the medical evidence on record we find that deceased Shafiqul Islam was done to death for the gun shot injury which he had received at the time of occurrence.

From the hearing of this reference, appeals and petitions if we encapsulate the arguments and submissions of the learned Advocates appearing for the condemned prisoners as well as for the appellants and the petitioners we find that they by their common submissions seek to impeach the impugned judgment and order of conviction and sentence mainly on seventh fold arguments.

Firstly, the investigation of this case was started immediately after the death of the deceased by PW 37 on the basis of a G.D entry. So, the subsequent FIR should have been considered as statement of the witness and the G.D entry which was recorded on 08.11.2005 should have been considered as FIR, but the trial Tribunal failed to appreciate this fact and legal position of the case.

Secondly, the trial Tribunal relying on the evidence of so-called eye witnesses of PWs 2,3 and 8 found the accused guilty but PW 2 is a professional as well as chance witness who had no occasion to be present in the place of occurrence at the relevant time and PWs 3 and 8 are the close relations of the deceased as well as the informant. So, it is very usual and probable that they would depose favouring the prosecution under any circumstances. So, the trial Tribunal should have not relied on the evidence of PWs 2, 3 and 8. PWs 9, 10 and 12 though allegedly inferred the occurrence of shooting and though they allegedly found some of the accused to run away from the place of occurrence and though the Tribunal had relied on their such evidences but the Tribunal failed to appreciate that PWs 9, 10 and 12 are seriously involved with the politics of BNP and the deceased and as his father, the informant Mofizuddin member are also activist of BNP. So, it is very natural and probable that PWs 9, 10 and 12 will favour the prosecution.

Thirdly, the recovery of mobile set from the place of occurrence and the subsequent evidence in respect of said mobile set that the set belonged to Badsha are not believable at all. The FIR was lodged after 22 hours of the occurrence but the story of the said recovery did not find place in the FIR. So, the Tribunal should have disbelieved the story of recovery of the mobile set.

Fourthly, deceased Shafiqul Islam and his father were the leaders and activists of BNP while the accused belonged to Awamileague as such the informant had implicated the accused with the occurrence of this case to address their political rivalry.

Fifthly, the  alleged meeting and sitting by some of the accused in the shop of PW 11 to hatch the plan of murder of Shafique and the witnessing of some of the accused by PW 7 at Vulta immediate before the occurrence is nothing but a myth and the same has been introduced in order to strengthen the prosecution case.

Sixthly, there was no light in the place of occurrence, so the recognition of the accused by the witness in the night of occurrence is not believable and in the absence of means of recognition conviction and sentence is not maintainable.

Seventhly and lastly, if it is conceded for a moment that condemned prisoner Mohammad Ali fired the gun sot on the ear of deceased Shafiq causing his death in that case also for the mere presence of other accused in the place of occurrence was not sufficient to find them guilty under sections 302/34 of the Penal code as they did not participate in the occurrence of murder of the deceased and they had no any intention to kill the deceased. So, the conviction and sentence of co-accused other than Mohammad Ali is bad and illegal in the eye of law.

Now, let us scan and explore the evidence on record and the legal aspect thereto to find out the justification of the above arguments.

The learned Advocate for the appellants referring the decision of the case of Muslemuddin and others-Vs-The state, 38 DLR(AD) 311 argued that from the evidence of PW 37 it transpires that the investigation was started on the basis is of G.D no. 370 dated 08.11.2005. So, the said G.D should have been treated as FIR and subsequent to that G.D, any information to the police station should have been considered as statement under section 161 of the Code. It is fact that in the reported case it was held that any information at the earliest opportunity to the Police Station in respect of commission of cognizable offence is the FIR within the meaning of section 154 of the Code and all other subsequent information will come within the provision of section 161 of the Code. With all regards to the reported case we find that in the reported case, the information was given to the Police Station in respect of commission of murder of that particular case by somebody else, but the case in our hands goes to show that the G.D was recorded on the basis of a radio message and no body else informed the police station about the commission of murder of Shafiqul Islam. So, it is difficult to find similarity between the reported case and the case in our hands in respect of recording of the G.D entry. Moreso, an FIR is recorded in accordance with the provision of section 154 of the Code, as such naturally before treating an information as FIR, it is to be seen whether it fulfills the requirements of section 154 of the Code. In view of language used in this section, any vague or indefinite or incomplete information, even if it relates to a cognizable offence, cannot be an information to be treated as an FIR. In the case of Bachchu Sarder and others-Vs-The State reported in 11 BLT (AD) 53 the same argument was placed before the Appellate Division. From the case of 11 BLT we find that PW 2 who was a widow of one of the victim deposed that during the incident when the accused persons were assaulting her husband she had rushed to the Police Station and informed the Inspector and thereupon a G.D entry was recorded. PW 1 who was the mother of the victim deposed that soon after the incident she had rushed to the local Police Station and on the way she found the police officer coming towards the place of occurrence and on that spot, the Officer-in-Charge recorded the FIR on her statement. The Sessions Judge as well as the High Court Division noticed the aforesaid circumstances in which the G.D was made and the FIR was recorded. Leave was sought on the ground that the trial Court acted illegally in not considering the G.D as FIR. But the Appellate Division turned down the plea of the petitioner. Thus we find from the decision of 11 BLT (AD) 53 that any information or a G.D entry which is the first in point of time may not necessarily be treated as FIR.

In the reported case of Moni Mohan Ghose-Vs- The King Emperor 35 CWN 623 the Court considered the third information as FIR in view of the facts and circumstances of that case, in that case, the first FIR was found to be vague and the police found the second information as not true and the third information for the first time indicated the commission of cognizable offence, as such the third information was treated as FIR. So, vague and indefinite information even if it relates to a cognizable offence cannot be treated as FIR. In the instant case the G.D was recorded mainly hearing the news of death of Shafiqul Islam over a radio message. The information was not complete and full in respect of the commission of the murder of the deceased. So, such a superficial G.D entry can not be treated as FIR.

Moreso, if an information which is first in point of time is always considered as FIR, the consequence may frustrate the purpose of real justice. Sometimes it happens that those who actually commit the offence, to save themselves lodge misleading information narrating a concocted story. In this connection the case reported in 6 MLR (AD) 170 may be cited here. In this case it was found that the accused persons mislead the father of the victim stating that his daughter committed suicide by taking poison and accordingly the father lodged the FIR stating that his daughter died by taking poison. On the basis of this FIR when the Investigating Officer started investigation, found marks of injury on the dead body and sent the dead body for autopsy and after receiving the postmortem report second FIR was lodged by the police. In these circumstances, it was held that the second FIR was not barred and the second FIR was neither treated as a statement under section 161 of the Code nor it was considered inadmissible under section 162 of the Code.

In this connection, the case of State-Vs- Zillul Bari and others reported in 57 DLR(AD) 129 may also be cited here. In this case, one Chapa was found dead in her bed room. The accused who are inmates and close relations of Chapa lodged FIR stating that Chapa was murdered by some unknown miscreants by an iron rod from outside the window in order to take away her ornaments. Police started investigation and found that  the FIR story was not true and found evidence that some inmates of those of the house had murdered Chapa. The police lodged another FIR and on the basis of this FIR, charge sheet was submitted and trial was held.
 
So, we find that it cannot be a universal dogma that the information in respect of commission of a cognizable offence first in point of time to the Police Station is always must be an FIR and if it is taken as a matter of fact it will be risky and suicidal for the administration of criminal justice. Thus we find that the FIR lodged by PW 1, the father of deceased knowing the fact from the witnesses who were present in the scene of the occurrence was rightly treated as FIR by the Court below.

The learned counsel for the appellants argued in respect of credibility of the evidence of PWs 2,3 and 8 that PW 2 Jahangir is a professional, common as well as chance witness while PWs 3 and 8 are the close relations of the victim as well as the informant. So, the Tribunal should have not relied on their evidence. It is fact that PWs 2, 3 and 8 are the star witnesses of this case as the occurrence of murder of deceased Shafiqul Islam was witnessed by these 3 witnesses from a close vision. It was canvassed seriously before us  that PW 2 was accused in many criminal cases and as such he has become a very sharp and cunning witness and to take the advantage of his such skill knowledge of legal arena, the prosecution has introduced his presence in the scene of the occurrence with a plan to examine him as an eye witness. It is also submitted before us that he is a common witness of the cases of that locality. But we find that the defence could not bring a scrap of paper to show that he had deposed in any case as canvassed by them. So, their such submission that PW 2 is a common and chance witness of the case of that locality has no merit to stand. It is fact that PW 2 was the accused of a criminal case and he was also convicted in that case but subsequently he has been acquitted from that case. But that cannot be a ground to discard the evidence of a witness if otherwise his evidence is found to be true and genuine.

Admittedly, PWs 3 and 8 are the cousins of the deceased Shafiqul Islam. It is in the FIR that Shafiqul Islam had gone at Vulta along with these 2 witnesses and when he had attended in the meeting at Awal market PWs 3 and 8 were roaming in front of Sunny confectionary centering the said confectionary. The FIR was lodged after almost 22 hours of the occurrence. The defence also assails the lodging of the FIR with such a delay alleging that the FIR was lodged after 22 hours intentionally so that a concocted and got up story can be built up through the FIR. The FIR itself has an explanation as to the delay in lodging the same. In the FIR it has been adverted that since some time has been killed to complete the burial function of the deceased, the delay took place in lodging the FIR. It is in the evidence of PW 1 that the burial function of his son was completed after the Asar prayer and the FIR was lodged at 7.45 PM on the following day on 09.11.2005. The learned counsel for the defence referred the case of Shamsul Haque-Vs-The State reported in 6 BCR 65 wherein it was observed that the FIR was lodged after 10 hours which could have been lodged within the 3-4 hours at the best. But PW 1 in his cross-examination stated in the following manner:
"ঘটনার কথা শুনিয়া অজ্ঞান হইয়া যাইz অজ্ঞান হওয়ার কথা আমি এজাহা­র লিখি নাই. আমি কাদ­ত কাদ­ত অজ্ঞান হইয়া পড়ি"

By the occurrence of this case PW 1 had lost his only son who happened to be an educated and at the same time a business man and he was involved with the local politics of BNP. From the whole record we find no aspersion or bad remarks on the character of the deceased. So, when any father losses his only beloved son like the deceased, it is very much natural and probable that he will be shocked and perplexed as it could be. So, it cannot be the top most priority of filing an FIR than that of the burial function of the deceased by a father. Moreso, immediate after occurrence PW 1 became also sick for the shock which he received due to the murder of his only son. So, in this particular case though the FIR was lodged after almost 22 hours but that cannot be considered as an inordinate delay in the above facts and circumstances of the case and it cannot be considered that delay was taken intentionally in order to concoct the prosecution case. In such a natural, probable and unblemished FIR, the presence and the role of PWs 2,3 and 8 has been manifested clearly and their presence in the scene of the occurrence have been supported by the other witnesses. PWs 9, 10 and 12 though were involved with the politics of BNP but were not any nearest relations or close to the deceased, they testified that immediately after occurrence they found witness Janangir, Kamal and Monir in the place of occurrence who were trying to shift the victim to the hospital. PW 13, the proprietor of Babul alias Sunny Confectionary had confirmed the presence of PWs 3 and 8 at the time of occurrence. The defence did not hesitate to characterize PW 13 as a disinterested and independent witness. So, his evidence in respect of presence of PWs 3 and 8 in the place of occurrence is very much significant in this case.

PWs 9, 10 and 12 appears to be most natural and probable witnesses in this case. They were in the meeting of chatradal with the deceased and after closing of the meeting while they were waiting in the baby stand, a nearby spot of the place of occurrence for going to their own destination heard the sound of firing and coming to the place of occurrence found blood stained Shafiqul and witnesses Monir, Kama and Jahangir. PWs 9, 10 and 12 were cross examined extensively by the defence but their evidences has not been squeezed and discredited in any way. We find no minimum reason for which we can discard the evidence of these 3 witnesses in respect of witnessing Jahangir, Monir and Kamal in the place of occurrence immediately after occurrence.

Moreso, PW 32 Alhaj Md. Hasan Ali testified that he being informed of the occurrence at 10.15 PM of the night of occurrence over telephonic call by Ripon having been at Vulta general hospital found witness Jahangir from whom he heard the whole occurrence. PW 32 appears to be an aged man of 60 years who is a retired Vice President of Dhaka Bank though involved with the politics of BNP but at the same time he is not relation of the deceased. In this case it is to be noticed here that the materials on record show that the deceased was involved with the politics of BNP, but at the same time accused Mohammad Ali and his other most of the accomplice were also involved with the BNP politics. So, it is not expected that PWs 9,10,12 and 32 for the cause of politics only will depose favouring the prosecution. Since the deceased and most of the accused were involved with the same politics, so there should not be any aspersion and blame on their evidence that for the cause of politics they had deposed falsely favouring the prosecution. So, from the evidence on record we find that the presence of witnesses PW 2 Jahangir, PW 3 Monir and PW 8 Kamal in the place of occurrence at the time of occurrence has been proved by the cogent, reliable and credible evidence of other witnesses.

It is fact that the evidence of relative and partisan witnesses are to be scrutinized and considered carefully. But the witnesses are related with the deceased or the informant that should not be the only criteria to reject their evidence out rightly. In the case of 1981 BLD (AD) 200 it was held by the Appellate Division that relationship of the witness with the informant or the victim by itself cannot be a ground for rejecting his testimony unless it is shown that the witness was biased and restored to false hood. So, it can safely be said that the relationship of the witnesses with the deceased or informant should not to be the only criteria for rejection of their evidences unless there appears any biasness and falsity in their testimony rather we are to consider whether they gave any false and emotional evidence in the Court.

In the case of Majibur Rahman Vs. State 39 DLR 437, it was held that a close relative, who is a very natural witness cannot be branded as interested witness. The word "interested" postulates that witness must have some direct interest in having the accused somehow or otherwise convicted for some animus or for other reasons. Interested witness is not necessarily false witness though in fact that witness has personal interest in the matter. Evidence of such witness should be scrutinized on its merit, before investigating whether he is an interested one and such scrutiny of evidence is required as rule of prudence and not as rule of law (para 6 of the judgment).

In the case of Abu Taher Chowdhury Vs. State 42 DLR (AD) 253, the Appellate Division held in the following ways:

“It is settled law that a conviction may be based only on the sole testimony of a single witness, if believed, and mere interestedness is no ground to reject the testimony of a witness, if otherwise the testimony is free from doubt".  

The gist of the decision of the above referred case is that if the testimony of an interested witness is free from doubt that can be considered as sufficient to find the accused guilty.

In the case of Samad Sikder Vs. State 50 DLR (AD) 24, the Appellate Division observed in the following ways:-

“The learned Judges ought not to have rejected the evidence of these two witnesses merely on the ground that they were not disinterested witnesses when their examination-in-chief could not be shaken in cross-examination by the defence”.

In the case of Yogeshwar Gope Vs. State 58 DLR (AD) 73, it was held by the Appellate Division that only because of relationship their evidence cannot be thrown away unless the evidence is found to be  untrue or tainted with motive.

In the case of Abdul Hye Sikder Vs. State, 43 DLR (AD) 95=12 BLD (AD) 180, it is held in the following ways:

"The conviction of the appellants can safely be based on the solitary evidence of the eye witness, PW1.............His evidence is full, complete and self contained. It may not have received corroboration from other witnesses, but it stands fully corroborated by the circumstances of the case and the medical evidence on record. If this evidence is believed, and it has been rightly believed by both the Trial Court and the High Court Division, its fullness and completeness are enough to justify the conviction" (para 13 and 15 of the judgment).  

In the case of Abdul Quddus Vs. State, 43 DLR 234 the Appellate Division held in the following ways:-

"We have indicated earlier that she (PW2) is the most natural, probable and competent witness in the present case as she was reading in the same room with her deceased sister Dilara and saw the entire occurrence. She has given details of the entire occurrence and even in her cross-examination the defence could not show any material discrepancy for which her ocular testimony should be disbelieved. She having deposed the entire incident from the beginning to the end it is very difficult for us to discard her evidence only on the ground that she was an interested witness and was a minor girl aged about 16 years. Even the law provides that a child witness can be relied if he/she is capable of understanding and replying the questions intelligently" (para 14 of the judgment).     

The preponderant views emerged from the above reported cases are that mere relationship of the witnesses with the deceased or informant cannot be the only ground to discard the  evidence of such witnesses if they are not found biased in deposing the Court. In this particular case as we have noticed it earlier that the ocular witness PW 2 is not a relation of the deceased though he is a man of informant’s camp for the same politics of BNP and though PWs 3 and 8 are the cousins of the deceased, but in the facts and circumstances of the case it led us to hold that they are the most natural, probable and competent witnesses of the occurrence as the situation, the time of occurrence and the place of occurrence provides their presence in the place of occurrence and there appears no biasness, emotion and falsity in their evidence.

So, we find that mere relationship of the witnesses with the deceased either for the cause of politics or blood relationship is not the only ground to discard their evidence, if their evidence appears to be true and corroborated by the other witnesses in the record and that can be considered as sufficient and cogent to find the accused guilty.

PWs 2, 3 and 8 from a close vision found accused Mohammad Ali to cause gun shot on the right ear of deceased and also found his other accomplice to raid the deceased and his car so that the deceased cannot be escaped in any way from the hands of Mohammad Ali. The evidence of these 3 eyewitnesses cannot be disbelieved and discarded on any ground.

The learned counsel for the appellants submit that the recovery of a mobile set by PW 10 Abdul Quiyum from the place of occurrence immediately after occurrence has been introduced by the prosecution to include accused Badsha with the occurrence of this case, but there appears no cogent and reliable evidence on record to show that the mobile set belonged to accused Badsha. PW 10 testified that when he was going to Vulta general hospital from the place of occurrence he found a mobile set on earth. The mobile set has been seized by PW 37 under a seizure list, exhibit-20 having its SIM no. 0188017309. PW 26 Mrs. Akhi Noor was examined in this case to prove that the SIM no. 0188017309 belonged to Badsaha. PW 26 testified that she had gone to the house of her sister at Baniadi village where she had a occasion of intraction with one Jahir and accused Badsaha and at one stage they had exchanged their mobile numbers but in our consideration the exchange of mobile numbers between Aki Noor, a young women of 22 years with Badsha is improbable and unbelievable in the social context of our country and save and except this evidence of PW 26 we find no other materials on record to connect the said mobile set and number with accused Badsha.

The learned counsel for the appellants also argued that deceased Shafiqul Islam and his father PW 1 were seriously involved  with  the  politics of BNP while the accused belonged to Awamileague, so due to political rivalry the accused were implicated in this case without any basis. But the materials on record did not support the contention of the learned counsel of the appellants. PW 1 testified that he is an activist of BNP and at present he is the president of Murapara union BNP, he also stated that accused Akter Hossain is the son of an Awamileague worker and accused Badsha Mia was a BNP worker but for his nefarious activities he has been expelled from the party, accused Ayiub Hossain is a member of Jatiotabadi Jubodal, accused Syed Hossaina and his father are involved with the politics of BNP, PW 21 himself is the Secretary of Murapara Union Jubodal testified that accused Mohammad Ali was the President of Murapara Union Jubodal and after the murder of Shafiqul Islam he was expelled from his such position. So, we find that save and except accused Akter, son of Alimuddin most of the accused including accused Mohammad Ali under whose leadership the occurrence of murder took place were involved with the politics of BNP. However, from the above discussion also from the materials on record we find that there is nothing in the record to show that for the political rivalry the accused were implicated in this case.       
The learned counsel for the appellants argued that the episode of the meeting by the accused in the shop of PW 11 and also witnessing of the accused prior to the occurrence at Vulta by PW  7  and also witnessing to cross  the  Kanchon  ferry by PW 4 immediately after occurrence is highly improbable and a cock and bull story which have been invented in order to strengthen the prosecution case. PW 11 Md. Jahirul Islam testified that on 05.11.2005 at 12.30 PM accused Badsha, Jewel, Tipu, Kamal, Akter, Shahin, Mokter and Jahirul had been discussing that for the resistance of Shafiq they could not do anything as such at any cost Shafiq should be finished but he did not disclose this fact to anybody else for fear of the accused. The evidence of PW 11 appears to be very  much appetizing that some of the accused had been at a meeting in his shop in his presence where they had taken a decision to murder the deceased. But this type of meeting and sitting regarding the commission of a heinous crime in presence of a witness who did not belong to them is highly improbable and unbelievable.

PW 7 Md. Shakawat Hossain Kamal testified that on 08.11.2005 at 8.00 PM of the night when he came at Vulta bus stand found accused Syed Kamal, Jahirul Islam, Ayuib, Rouf, SDU and Mokbul to gossip among themselves and in the same night at 9.45 PM he came to know about the murder of the deceased and he having been at Vulta general hospital found the dead body of Shafiq. He also categorically stated that he stated this occurrence to PW 1. From the materials on record we find that this particular prosecution story that PW 7 found the accused near the place of occurrence immediately before the occurrence did not find place in the FIR. So, we are unable to accept the evidence of PW 7 that he had witnessed some of the accused immediately before occurrence as the FIR was lodged after a reasonable time of the occurrence and PW 1 being a sensible man who is involved with the politics as well as a successful businessman must not leave such an important fact at the time of lodging FIR.

PW 4 Md. Mofizul Islam testified that on 08.11.2005 at 10.00 PM he found accused Mohammad Ali, Badsha, Shahin, Jewel, Tipu to get down from a yellow taxi cab to cross the Kanchon ferry ghat. By this evidence of PW 4 the prosecution tried to draw a conclusion that after committing the murder of the deceased those 6 accused had left the place of occurrence by a yellow taxi cab and they had crossed the Kanchan ferry ghat. There appears no corroboration to the testimony of PW 4 that he had witnessed those accused to cross the Kanchan ferry ghat. So, we are unable to rely on the evidence of PW 4 that he had witnessed some of the accused at Kanchan ferry gnat.

As to the means of recognition the learned counsels for the appellants contend that the prosecution could not prove the means of recognition in this case. They categorically submits that the occurrence took place at 9.30 PM and the car of deceased was parked under a pillar where admittedly there was no light of electricity, so it was not possible on the part of the eye witnesses to witness the accused. In the case of State-Vs-Monjur 15 BLD 193 it was held that means of recognition is important in criminal case when the incident took place in the night. PW 2, an eye witness of the occurrence stated in his evidence in the following ways:
 
“ঘটনাসহ­ল বিদ্যুৎ ছিল পর্যাপ্ত, আমরা আসামী­দর­ক চিন­ত পে­রছি”
PW 3 another eye witness stated in following ways:
“সানি কন­ফকশনারী থে­ক ঘটনাসহল গাড়ীর দূরত্ব ছিল ৬/৭ গজ. ঘটনাসহ­ল ­বৈদ্যুতিক আ­লা ছিল. তিনটি  সাইন বোর্ড ছিল. বৈদ্যুতিক আ­লা­ত আসামী­দর চিন­ত পে­রছি”
PW 8 another eye witnesses stated that –
বৈদ্যুতিক আ­লা­ত আসামী­দর চিন­ত পারি, তৎম­র্ম সমস¹ ঘটনা বাদী নিহত শফি­কর পিতা­ক জানাই.
In cross-examination he stated in the following ways:
“ঘটনার সময় রাস্তায় লাইট ছিল কিনা জানা ­নই. ত­ব একটি খাম্পার লাইট ছিল. সত্য নয় যে, ঘটনার সময় ভুলতা মো­ড় কোন বাতি ছিল না”
PW 13 Md. Ashraful Islam Babul, the proprietor of Sunny confectionary stated in the following ways:
“গাড়িটি একটি পিলা­রর পা­শ রাখে. বৈদ্যুতিক পিলার সেটি. এই পিলারটি­ত লাইট ছিল না. অন্য পিলা­র লাইট ছিল. দোকা­নর সাইন বো­র্ডর আ­লা ছিল উক্ত সহা­ন.”

The above noted 4 witnesses were also cross-examined by the defence extensively as to the means of recognition. But their evidences has not been shaken away in any way rather the evidence of PWs 2,3,8 and 13 as to the means of recognitioin is very much consistent and corroborative with each other. So, considering the consistent and credible evidence of P.Ws. 2,3,8 and 13 that they had seen the accused in the light of electricity available in the place of occurrence cannot be thrown away.

The Tribunal mainly relying on the evidence of PWs 2, 3 and 8 found the condemned prisoners and other appellants guilty under section 302/34 of the Penal Code. It was argued by the learned counsel of the appellants that if it is conceded for a moment that deceased Shafiqul Islam met his death for the gun shot injury caused by Mohammad Ali in that case also the other accused who were allegedly found present in the place of occurrence having no active participation in the act of the murder of the deceased should have not been found guilty under sections 302/34 of the Penal Code.

Now, from the arguments of the learned counsels for the appellants it appears that the main question which is involved on this point is whether condemned prisoners other than Mohammad Ali and the other appellants had shared their common intention of causing murder of the deceased Shafiq with accused Mohammad Ali. In this regard the learned Deputy Attorney General referred the case of The State-Vs-Abul Khair 44 DLR 284 where it has been held that common intention of several persons is to be inferred from their conduct, manner and doing of the act and the attending circumstances of the case.

From the consistent and unequivocal evidence of PWs 2,3 and 8 we find that accused Mohammad Ali, Jewel alias Jahirul Haque, Tipu, Akter Hossain son of Alimuddin and Badsha Mia and Shahin forming a group had come in the place of occurrence from the eastern side of Vulta and they encircled the deceased while accused A. Rob alias Rouf, Mobarak Hossain, Kamal, Syed Hossai, Ayuib Hossain and Aslam Bhuiya, Md. Jalil Miah and Jahirul Islam forming another group had come in the place of occurrence from the western part of Vulta who had encircled the private car of deceased Shafiqul Islam and when Shafiq was trying to enter into the car Mohammad Ali fired the gun shot on the right ear of the deceased. It is not the prosecution case that those accomplice of Mohammad Ali were present in the place of occurrence accidentally or for any other reason they had gone there forming two groups at the same time. The very arrival of those accused in the place of occurrence at the same time when Shafiq had arrived beside his car is the gorgeous prove that all the accused had a common intention of causing murder of the deceased. Those accused had no any other business in the place of occurrence other than the sharing of the intention of murder of the deceased with accused Mohammad Ali. So, their such presence with accused Mohammad Ali in the spot has established that they had the common intention to cause the murder of Shafiqul Islam. The presence of other accused with Mohammad Ali in the spot encircling the deceased and his private car in that particular time is nothing but sharing the common intention with accused Mohammad Ali in causing the murder of deceased. They had no any job at the relevant time without ensuring the murder of the deceased. The deceased and his car were encircled by the other accused in such a manner so that the deceased cannot be escaped from the men circle in any way planted by the accused. The very guarding of the deceased by the other accused is the conclusive prove that they had a common intention to cause the murder of deceased.

In the case of Nazimuddin and others-Vs-State 36 DLR 22 it has been held:

"It is the essence of section 34 PC that the accused persons must be physically present at the place and at the time of commission of crime and the incriminating acts and circumstances must be necessary to lead the inference of common intention to commit the crime."

In the case of Rasool Box-Vs-State 22 DLR(SC) 297 it has been held by H Rahman J as his Lordship then was, that:

"There is no doubt that to bring a case within the ambit of section 34 of the Penal Code it is necessary that some overt act or acts must be established to lead to the inference that the participators in a crime acted in pre-concert or under a pre-arranged plan but this does not mean that every participant in the crime must be shown, to have committed the same kind of act. It is sufficient to show that they joined together in the commission of a particular act, for then they must all be deemed to have intended the natural and inevitable consequence of that act even if some of them did nothing but merely helped by their presence the commission of the act."

Thus it is not necessary to show that any overt act must have been done by a particular accused but section 34 of the Penal Code is attracted if it is established that the criminal act has been done by all or any one of the accused persons in furtherance of a common intention. Common intention does not mean similar intention of several persons. Common intention may as well be inferred from the evidence or facts and circumstances of the case.

Thus the preponderant views emerged from the above noted decision is that the reason for making more than one accused guilty under the provisions of section 34 of the Penal Code as the very presence of co-accused gives encouragement, support and protection to the person actually committing an act. It may so happen that without the support of the co-accused who did nothing other than standing on the scene with the master mind offender, he would not be able to hit the victim without the support of the co-accused. In this particular case it was not possible on the part of accused Mohammad Ali alone to cause a pistol shot on the ear of deceased Shafiq without the support, encouragement and protection of his other accomplice co-accused that is why all the accused persons who remaining present in the scene of occurrence had given support, encouragement and protection to the principal accused in committing the crime of murder of Shafiq is held liable under section 34 of the Penal Code.

PWs. 2,3 and 8 are the eye witnesses of the occurrence who very consistently stated that at the time of occurrence Mohammad Ali, Jewel alias Jahirul Haque, Tipu, Akter Hossain son of Alim Uddin, Md. Badsha Mia and Shahin coming from the eastern side of Vulta had encircled the deceased and Mohammad Ali fired pistol shot on the deceased causing him to death, they also stated that they found those accused to leave the place of occurrence immediately after occurrence. The evidence of these three ocular witnesses has not been shaken away in any way. The unequivocal and unblemished evidence of PWs 2,3, and8 has proved beyond all reasonable doubt that those 6 accused coming from the eastern side of Vulta had participated in the murder of deceased. In the same way PWs 2,3 and 8 stated that accused A. Rab alias Rouf, Kamal Miah, Syed Hossain, Jalil Miah and Jahirul Islam coming from the western side of Vulta into the place of occurrence had encircled the car of the deceased and participated in the commission of murder of the deceased. PWs 3 and 8 sated that accused Mobarak Hossain, Ayiub Hossain and Md. Aslam Bhuiyan coming from the western side had participated in the commission of murder of deceased. PW 2 though in his evidence did not state the names of above 3 accused namely Mobarak Hossain, Ayiub Hossain and Md. Aslam Bhuiyan but it is very much probable and natural that all the witnesses of a case may not see all the accused of an occurrence. Their such evidence had not been shaken away in any way though defence left no stone untouched to discredit them and their evidence. So, the trial Tribunal relying on their nitid, cogent and unshaken evidence rightly found convict Ayiub Hossain and Md. Aslam Bhuiyan guilty under sections 302/34 of the Code. Mobarak Hossain is not appellant before us, so we are refrained from making any comment as to the fugitive accused Mobarak Hossain. Though PW 2 did not tell the names of accused Ayiub Hossain and Aslam Bhuiyan but the rest 2 eye witnesses confirmed their presence with the other accused in the commission of murder of the deceased. So, the trial Tribunal rightly found them guilty relying on the evidence of PWs 3 and 8.

So far the convict appellants Akter Hossain alias SDU and Mukul alias Mokbul Hossain is concerned it appears that PW 8 the only eye witness who had found these two accused in the company of the other accused at the time of committing murder. The FIR was lodged by PW 1 hearing the occurrence from PWs 2, 3 and 8. It is in the evidence that all the accused and the eye witnesses belonged to the same area and they were known to each other before the occurrence of this case. Had the accused Akter Hossain alias SDU and Mukul alias Mokbul Hossain been witnessed by PW 8 at the time of occurrence that would have been revealed in the FIR. But we find that they are not FIR named accused. As such, there creates a doubt as to their presence in the place of occurrence and accordingly accused Akter Hossain alias SDU and Mukul alias Mokbul Hossain are entitled to get the benefit of doubt.

Accused Jalil Mia, Kamal alias Md. Kamal Hossain and Jahirul Islam alias Md. Jahirul Islam sought to quash the judgment and order of conviction and sentence invoking section 561A of the Code. But as we have found that from the evidence of PWs 2,3 and 8 the charge under sections 302/34 has been proved against them. In the case of Abdul Kader Chowdhury-Vs-The State, 28 DLR(AD) 38 it was held that where there is either no legal evidence adduced in support of the case or the evidence adduced clearly or manifestly fails to prove the charge, quashing of the  proceeding would be justified. The evidence of PWs 2,3 and 8 appears to be very much legal against the petitioners and by their cogent evidence charge has been proved against the petitioners. So, we find nothing illegal in the judgment and order of conviction and sentence in respect of these 3 petitioners also. So, Rule issued against the petitioners under section 561A of the Code are liable to be discharged.

Having regards to the above discussions and the materials on record we find that the prosecution was successful in proving the charge under sections 302/34 of the penal Code as against convicts Mohammad Ali, Jewel alias Jahirul Haque, Tipu, Akter Hossain son of Alim Uddin, Abul Bashar alias Badsha, Shahin, and convict appellants Abdur Rab alias Rouf, Kamal Miah, Syed Hossain, Ayuib Hossain, Md. Aslam Bhuiyan, Jalil Miah and Jahirul Islam.

As condemned prisoners Jewel alias Jahirul Haque, Akter Hossain son of Alimuddin, Abul Bashar alias Badsha and Shahin have been languishing in the condemned cell for a quite long time with a mental agony of death by hanging along with their tender age appears to us as extenuating circumstances to commute their sentence from death to imprisonment for life. But the said extenuating circumstances is not available to those of the convicts Mohammad Ali and Tipu who are still fugitive from the justice.

In the result, the death reference so far as it relates to the convicts Mohammad Ali and Tipu are accepted. The judgment and the order of conviction and sentence dated 22.10.2006 so far as it relates to the convicts Mohammad Ali and Tipu are hereby confirmed and upheld. Their death sentence will be executed in terms of the judgment and also in accordance with the law whenever they will be available in the jail.

The reference so far as it relates to condemned prisoners Jewel alias Jahirul Haque, Akter Hossain, Abul Bashar alias Badsha and Shahin are rejected. But their conviction under section 302/34 is maintained with the modification of sentence of death. Their sentence of death is commuted to imprisonment for life with a fine of Taka 10,000/- each in default to suffer imprisonment for 1 (one) month more. The Criminal Appeal no. 6669 of 2007 and Jail Appeal no. 936 of 2007 filed by condemned prisoner Jewel alias Zahirul Haque, Criminal Appeal no. 5323 of 2006 and Jail Appeal no. 1048 of 2006 preferred by condemned prisoner Akter Hossain son of Alim Uddin, Criminal Appeal 5422 of 2006 and Jail Appeal no. 1049 of 2006 filed by condemned prisoner Abul Bashar alias Badsha and Jail Appeal No. 110 of 2007 preferred by condemned prisoner Shahin is allowed in part accordingly.

The conviction and sentence of the convict appellants Abdur Rab alias Rouf, Kamal alias Md. Kamal Hossain, Syed Hossain, Ayuib Hossain and Aslam Bhuiyan, Jalil Miah and Jahirul Islam passed in Dhaka Druto Bichar Tribunal Case no. 11 of 2006 on 22.10.2006 is hereby upheld and confirmed.

The Criminal Appeal no. 5323 of 2006 and Jail Appeal no. 1048 of 2006 preferred by convict appellants Abdur Rab alias Rouf and Aslam Bhuiyan is dismissed.

Criminal Appeal no. 5316 of 2006 so far as it relates to convict appellants Syed Hossain and Ayuib Hossain is dismissed and so far as it relates to appellant Mukul alias Mokbul Hossain is allowed and he is acquitted of the charge levelled against him.

The Rule issued in Criminal Miscellaneous Case No. 5789 of 2008 filed under section 561A of the Code by convict petitioners Kamal alias Md. Kamal Hossain and Jahirul Islam are discharged.

The Rule issued in Criminal Miscellaneous Case no. 4472 of 2007 filed under section 561A of the Code by convict petitioner Jalil Miah is also discharged.

The Criminal Appeal no. 5137 of 2006 preferred by convict appellant Akter Hossain alias SDU is allowed and he is acquitted of the charge levelled against him.

Convict appellants Akter Hossain alias SDU and Mukul alias Mokbul Hossain be discharged from their respective bail bonds.

Since convict appellants Abdur Rab alias Rouf, Kamal Hossain, Ayuib Hossain, Md. Aslam Bhuiyan, Jalil Miah, Jahirul Islam are in bail now they are directed to surrender their bail bonds to the trial Tribunal within 1 (one) month from the date of receipt of this judgment and order by the Tribunal failing which the Tribunal will proceed to secure their arrest and to commit them into custody in accordance with law to serve out the remaining part of the sentence.

Let a copy of this judgment and order be communicated to the concerned Tribunal at once for necessary action along with the lower Courts record.

Ed.