State Vs Amjad Ali (2020) 72 DLR 113

Fact:

On 3rd September 2005 MA sufian (BW 31) joint district judge,1st coirt laksmipur while was hearing cases in court, a young man hurled a bomb aiming him buy the bomb missed the target and hit the table on the rostrum and exploded with a bang scattering splinters all round injuring many people including the presiding judge MA sufian, Delwar Hossain Patwari, idris ali and two others and damaging the furniture of the court room. One Mozibul Haque who sustained grievous injuries succumbed to the injuries on the way to hospital. The man who hurled the bomb came out of the court room and tried to escape but the police personnel and the people chased him and caught hold of him in front of the building of laksmipur district bar association. On being apprehended,he disclosed his name as masumur rahman. He was a member of the suicide squad of the millitant outfit jamiyatul mujahedin Bangladesh. He was assigned with the mission of killing the judge as a part of their blue print to establish Islamic rules in Bangladesh. While the accused masum was fleeing away from the court room,another bomb exploded on the verandah of the court in order to facilitate his escape out of the clutches of the people and police personnel.

Issue:

(1) Whether a criminal offence occurse as like a homicide, some necessary elements may need and which are these?

(2) whoever either prior to orbat the time of commission of an ant,does anything in order to facilitate the commission of that act or thereby facilitate the commission thereof?

Decision :

The court finds that Amjad Ali Md. Hossain Babu was found guilty by the special tribunal and Sessions Judge for abetment of the offense. However, the Sessions Judge is not justified in awarding death sentences for both charges. The sentencing rules require that abettors should not be equated with principal offenders, and the sentence should be converted to one under sections 3/6 of the Explosive Substances Act and section 25D of the Special Powers Act. The sentence is also given to Hossain under sections 302/109 of the Penal Code, which means imprisonment for the entire remaining period of the convicted person's natural life.

Justification:

1. According to Sections 302/120B, fail to understand why the investigating officer or the public prosecutor did not frame charge under sections 302/120B of the Penal Code. On analysis of the evidence on record we find all elements of criminal conspiracy are present in this case and if a proper charge of criminal conspiracy was framed in this case, and the evidence in support of such is led, this accused-person could have been treated as a principal offender.

2. Acclrding to, Penal Code (XLV of 1860) Section 120B, if two or more persons pursued by their acts the same object often by the same means, one performing one part of the act and the other another part of the act, so as to complete it with a view to the attaining of the object which they are pursued, this would be sufficient to constitute a conspiracy.

3. Of investigation-We therefore advice the police head quarter to train the police officers on the question detection of crimes in respect of highly of technical case, the collection of legal evidence and the admissibility of evidence by an officer before he is assigned to investigate such type of cases otherwise from all the sensational cases the shrewd accused-persons will get the benefit of doubt because of fault of investigation.

4. It is now established that in the absence of direct evidence an accused-person may be convicted on circumstantial evidence and to act on circumstantial evidence the court is to consider circumstances are cogently established and must be definite and they should be of whether those definite tendency pointing towards the guilt.

5. According to Evidence Act (I of 1872) Sections 8, It empowers the police officer to hold further investigation in respect of any offence after submission of a report under sub-section (1) if such investigation the police officer obtains further evidence, he shall forward to the Magistrate further report regarding such evidence. The report shall be made in accordance with the one submitted under sub-section (1)(3A). In this sub-section also it does not refer to the name of any accused, if any, in such further investigation. If the police officer finds complicity of further materials, any accused-person in such investigation, he can submit such report to the Magistrate.

6. According to Penal Code (XLV of 1860) Section 57 -Imprisonment for life within the meaning of section 57 of the Penal Code means imprisonment for the whole of the remaining period of the convicted person's natural life.

7. The learned Magistrate upon receipt of the supplementary charge-sheet sent the case record to the Special Tribunal for trial. So the first criteria is satisfied and in the supplementary charge-sheet the investigation officer who is a sub-inspector of police having found prima facie case recommended for prosecution of Mohammad Hossain for trial with Masum. Therefore, all the requirements provided in section 27 have been complied with. The High Court Division erred, therefore, in holding that the trial was vitiated for not taking cognizance of the offence. The above view taken by the High Court Division is based on non-application of judicial mind, and therefore, on this ground an accused-person cannot be acquitted of the charge.

Written by---
Abul Hasnat Nanno
Department of Land Management and Law
Jagannath University, Dhaka