(Criminal Appellate Jurisdiction)
ANM Bashir Ullah J
Mustafa Zaman Islam J
Kamal Kha ……………..
………Convict-Appellant
vs
State……….. Respondent
Judgment
June 25th, 2018
Arms Act (XI of 1878)
Sections 19A & (f)
The tribunal in order to convict the appellants distorted the evidence of PWs 1-5 in his own way although they did not give any evidence regarding the recovery of arms on the showing of accused Kamal Kha. The tribunal should have been more, realistic, easy and comfortable to discuss the evidence as it is in the record but we do not know the reasons as to why he explained the evidence in his own way with some imagination which is not at all consistent with the testimony of PWs…………… (25)
AKM Faiz, Advocate-For the Appellant.
Md Aminul Islam DAG with Fatema Rashid AAG-For the Stale Respondent.
Judgment
ANM Bashir Ullah J : This criminal appeal, under Section 30 of the Special Powers Act, 1974 (in short, the Act) is directed against the judgment and order of conviction and sentence dated 31-1-1991 passed by Additional Sessions Judge, 1st Court and Special Tribunal No. 2, Brahmanbaria convicting the appellant under Sections 19(a) and (f) of the Arms Act sentencing him to suffer rigorous imprisonment for 10 years in Special Tribunal Case No. 45 of 1990.
2. The facts relevant for disposal of the appeal, in short is that Police Inspector Md Iqbal, Officer in Charge of Nabinagar Police Station of district Brahmanbaria lodged the First Information Report (in short, the FIR) on 13-11-1989 with Nabinagar Police Station against the present appellant Kamal Kha alleging inter-alia that accused was arrested by the Police of the Sarail Police Station on 6-11-1989 thereafter he was shown arrested in connection of the Nabinagar Police Station Case No. 9 dated 22-8-1989 and on a remand of 5 days in the said case he was interrogated by the Police when accused Kamal Kha admitted that he has been possessing a cuta rifle (KvUv ivB‡dj) and 11 round bullets which he had kept in a ditch attached to the house of Samsu Kha of his own village at Jalsuka and accordingly the informant on 13-11-1989 at 12-00 o’clock had gone to the Jalsuka village in order to recover the said arms and they having been on the bank of the said ditch on the showing of accused Kamal Kha recovered’ a cuta rifle and 11 round bullets from the said ditch. The accused could not show any paper of the said recovered arms and bullets which were seized under a seizure list in presence of witnesses Basu Mia, Nur Ahmad Kha and Harun Mia.
3. On the basis of the above noted FIR Nabinagar PS case No. 5 dated 13-11-89 corresponding to Brahmanbaria GR Case No. 123 of 1989 were started. The case was investigated initially by Police Inspector Md Iqbal, the informant of this case and later on Police Sub-Inspector Shahjahan Kamal who on completion of the investigation submitted report recommending the trial of the accused Kamal Kha under Section 19(a) and (f) of the Arms Act.
4. The learned Magistrate on receipt of the Police report transmitted the case record in the Special Tribunal and Sessions Judge, Brahmanbaria for trial where the case was registered as Special Tribunal Case No. 45 of 1990 and eventually the case was transferred in the Court of the Special Tribunal No.2 and Additional Sessions Judge, 1st Court, Brahmimbaria where charge under Sections 19(a) and (f) of the Arms Act were framed against the accused on 24-3-1990. The charges were read over and explained to the accused to which pleaded not guilty and claimed to be tried.
5. The prosecution, in order to prove the charge examined as many as 6 witnesses and on completion of the recording of the evidence, the accused was examined under Section 342 of the Code of Criminal Procedure when he repeated his innocence and made a statement which was recorded by the trial Tribunal.
6. The trial Tribunal on consideration of the evidence and other materials on record found the appellant guilty under Sections 19(a) and (f) of the Arms Act and sentenced him accordingly as mentioned hereinbefore. The appellant being aggrieved by and dissatisfied with the said judgment of the trial Tribunal preferred this appeal in this Court and after admission of the appeal the appellant was enlarged on bail on 13-3-1991 for a period of 6 (six) months later which was extended on 28-8-1991 for 3 (three) months but thereafter it was never extended.
7. Mr AKM Faiz, the learned Advocate appearing for the appellant supporting the appeal and assailing the judgment passed by the trial Tribunal submits that Police arrested the accused on 6-11-1989 thereafter when he was in the Police custody the present arms case was filed against him showing a recovery at his instance but, in fact, no such arms were recovered at the instance of this appellant and the prosecution in order to prove the charge examined as many as 6 witnesses out of which PWs 1,2,3,4 and 5 are the members of the recovery party at the same time they are the Police personnel but they did not support the prosecution case in any manner but the Tribunal without considering the evidence on record and without appreciating the evidence very arbitrarily found the appellant guilty.
8. The learned Advocate also submits that this a case where no evidence was led by the prosecution in order to prove the recovery of arms from the appellant but the trial Tribunal without applying his judicial mind distorted the evidence given by the prosecution witnesses in the judgment that the prosecution witnesses supported the prosecution case which is not at all consistent with the materials on record.
9. The learned Advocate also submits that this a case of nil evidence but even then the Tribunal found the appellant guilty, so the judgment and order of conviction and sentence are liable to be set aside.
10. Mr Md Aminul Islam, the learned Deputy Attorney General along, with Mrs. Fatema Rashid the learned Assistant Attorney General appearing for the state respondent No.1 supporting the judgment of the trial Tribunal and opposing the submissions of learned Advocate for the appellant made so far contends that the arms were recovered on the showing of the appellant and from the evidence on record it will be revealed that in his presence the arms and ammunition were recovered and the trial Tribunal on the right assessment of evidence and other materials on record rightly found the appellant guilty, so the judgment and order of conviction and sentence did not call for any interference from this Court, so the appeal is liable to be dismissed with cost.
11. We have considered the above submissions of the learned Advocates of both the parties with profound attention and have gone through the materials on record particularly the FIR, order of framing charge evidence recorded by the trial Tribunal, the examination of the accused under Section 342 of the Code of Criminal Procedure and finally the judgment passed by the trial Tribunal.
12. Now in order to appreciate the arguments of the learned Advocates of both the parties let us have a look into the evidence on record.
13. PW 1 Police Constable Abdul Mannan, a member of the recovery party testified that on 13-11-1989 he under the leadership of the then Officer in Charge Md Iqbal had gone at Jalsuka village and they recovered 1 cuta rifle and 11 round bullets from a ditch and at the time of recovery Kamal was there (accused).
14. In cross examination of the defence PW 1 also stated that when arms were recovered Kamal was not present with them and he categorically stated that he could not say whether the arms were recovered at the instance of accused Kamal or not.
15. PW 2 Police Constable Mahbub Ali is another member of the recovery party stated that they recovered 1cuta rifle and 11 round bullets from a ditch of Jalsuka Village on 13-11-1989 a local people brought the said arms from the ditch and the Officer in Charge prepared the seizure list of the said goods.
16. In cross examination of the defence he stated that arms were not recovered from the possession and control of accused Kamal.
17. PW 3 Police Sub-Inspector Shahidullah another member of the recovery party stated that on 13-11-1989 they recovered one cuta rifle and 11 round bullets from a ditch and the same were seized under a seizure list.
18. In cross examination he stated that Kamal was not with them at the time of recovery.
19. PW 4 Police Constable Mir Harun-or-Rashid testified that on 13-11-1989 he under the leadership the then Officer in Charge had gone at Jalsuka village and they recovered 1 cuta rifle and 11 round bullets from a ditch.
20. In cross examination he stated that he cannot say who recovered the arms.
21. PW 5 Police Constable Mafiz Mia is the another member of the recovery party also stated that he had gone at Jalsuka village on 13-11-1989 under the leadership of the then Officer in Charge and they recovered 1 cuta rifle and 11 round bullets from a ditch. There is no significant of cross examination of PW 5.
22. PW 6 Md Shahjahan Kamal testified that on 14-12-1989 he was posted at Nabinagor Police Station and since the 1st IO Police Inspector Md Iqbal had been transferred to elsewhere the case was endorsed to him for investigation and on completion of investigation he submitted Police report recommending the trial of the accused.
23. These are the evidences that have been given by the prosecution in this case. From the evidence discussed above it appears that PWs 1-5 are the members of the recovery party while PW 6 is the Investigating officer of this case. The prosecution could not examine the seizure list witnesses. However, from the evidence discussed above it appears that all the prosecution witnesses namely PWs 1-5 almost in a chorus voice stated that on 13-11-1989 they have recovered 1 cuta rifle and 11 round bullets from a ditch at Jalsuka village under the leadership of the then Officer in Charge, Police Inspector Md Iqbal but there is no evidence in their testimony that the arms in question were recovered at the instance of accused Kamal Kha or on his showing.
24. The initial prosecution case was that after the arrest of the accused Kamal Kha when he was in Police remand he disclosed to the Police that he has possessing some arms and bullets and on his showing arms and bullets were recovered from a ditch attached to house of one Samsu Kha. Though prosecution examined 5 members of the recovery party who are the at the same time Police personnel also did not give any incriminatory evidence regarding the recovery of arms from the possession, knowledge or control of accused Kamal Kha. In fact, there appears no evidence regarding the recovery of arms from the possessions of the Kamal Kha although the evidence is very much consistence regarding the recovery of arms from a ditch only.
25. However, on going through judgment passed by the trial Tribunal we have been totally befogged to see the observation that the witnesses supported the prosecution case of recovery from the possession of accused Kamal Kha although we failed to discover a single word in the testimony of the 5 witnesses namely PWs 1-5 regarding the recovery of arms from the possession of accused Kamal Kha. We are very much sorry to say that the trial Tribunal in order to convict the appellants distorted the evidence of PWs 1-5 in his own way although they did not give any evidence regarding the recovery of arms on the showing of accused Kamal Kha. The trial Tribunal should have been more, realistic, easy and comfortable to discuss the evidence as it is in the record but we do not know the reasons as to why he explained the evidence in his own way with some imagination which is not at all consistent with the testimony of PWs 1-5. In fact, this a case of nil evidence regarding the recovery of arms from the possession of the appellant, so we find it difficult to maintain the conviction and sentence of the appellant.
26. In the result, the appeal is allowed. The judgment and order of conviction dated 31-1-1991 passed by Additional Sessions Judge, 1st Court and Special Tribunal No.2, Brahmanbaria and in Special Tribunal Case No. 45 of 1990 is hereby set aside. The convict appellant Kamal Kha be acquitted of the charge levelled against him in this case.
