Gulam Rabbani :
The Appellate Division of the Supreme Court observed in a full verdict that determination of appropriate measures of punishment is judicial, and not executive functions. The court will enunciate the relevant facts to be considered and weight to be given to them having regard to the situation of the case.
It also observed that the legislature cannot make relevant circumstances irrelevant and deprive the court of its legitimate jurisdiction to exercise its discretion in appropriate cases.
A provision of law which deprives the court of using its beneficent discretion in a matter of life and death, without regard to the circumstances in which the offence was committed and, therefore without regard to the gravity of the offence cannot but be regarded as harsh, unfair and oppressive, also observed the apex court.
A six-member bench of the Appellate Division headed by Chief Justice Syed Mahmud Hossain delivered the verdict after hearing a criminal appeal petition.
The short verdict was given on June 22 in 2021, while the full text of the verdict was released on the Supreme Court website on Thursday.
The criminal petition was submitted by one Anowar Hossain of Chakaria upazila under Cox’s Bazar district against a High Court verdict delivered on November 2 in 2002 upholding a trial court death penalty given to him on charge of killing after committing rape to his sister in law, Hasina Begum, 14.
Upon hearing the appeal petition the Appellate Division commuted the death penalty of Anowar Hossain to life imprisonment.
The apex court also mentioned that the appeal is dismissed and the sentence of the appellant is commuted to imprisonment for life and to pay a fine of Tk 5000, in default, to suffer imprisonment for 15 days more.
The appellant shall get the benefit of section 35(A) of the Code of Criminal Procedure, 1898, that says the term any convict has served in jail during trial proceedings will be deducted from the total tenure of his/her imprisonment.
The apex court also said, “In general terms, it may be stated that the length of period spent by a convict in the condemned cell is not necessarily a ground for commutation of the sentence of death. However, where the period spent in the condemned cell is not due to any fault of the convict and where the period spent there is inordinately long, it may be considered as an extenuating ground sufficient for commutation of sentence of death.”
In view of the decision cited above and the decision of “Bangladesh Legal Aid and Services Trust (BLAST) and others vs. Bangladesh”, represented by the Secretary, Ministry of Home Affairs, Dhaka and others as well as the circumstances of this case, we are of the view that justice would be sufficiently met if the sentence of death of the appellant be commuted to one of imprisonment for life, the court added.
