In the Supreme Court of Bangladesh High Court Division

(Criminal Revisional Jurisdiction)

Present:

Mr. Justice Md. Khairul Alam

Criminal Revision No. 1076 of 2005

In the matter of:

Md. Nurul Islam

.......... -Petitioner. -Versus-

The State

.......... -Opposite party. None appears

..... For the petitioner. Mr. S.M. Emamul Musfiqur, A.A.G

…………… For the state

Heard On: 11.11.2024 & Judgment on: 20.11.2024

Md. Khairul Alam, J:

This  rule  was  issued  calling  upon  the  Deputy Commissioner, Gazipur to show cause as to why the judgment and order dated 28.02.2005 passed by the learned Additional Sessions Judge, 1st  Court, Gazipur in Criminal  Appeal  No. 24 of 1991 dismissing  the appeal  and thereby affirming  the  judgment and order of conviction and sentence dated 30.05.1991 passed by the learned  Magistrate,  1st  Class,  Kapashia,  Gazipur  in  Criminal Miscellaneous Case No. 03 of 1991 arising out of T.R. No. 25 of 1991  convicting  to  the  petitioner  under  section  26(1A)  of  the

Forest Act,  1927 and thereby  sentencing him  to suffer simple imprisonment for 06 (six) months and also to pay a fine of Taka 5,000/- in default to suffer simple imprisonment for 1 (one) month and 15 days more should not be set aside and or pass such other or further order or orders as to this Court deem fit and proper.

The prosecution story, in short, is that on 05.10.1990 at about 6.00 a.m., Abdul Kader Bhuyan, Forest Officer, Gosinga Bit, Gazipur along with other employees of the forest division went to the village Tarun under the mauza Tarun and found that the  accused  Rafiqul  Islam,  Chand  Mia,  Shofiqul  Islam,  Nurul Islam and Monir Hossain had been chopping wood on plot No. 33. The informant party tried to detain the said accused, but they managed to  escape.  The informant  party  seized 2 maunds of Gozari tree and also received 3 maunds of firewood from the place of occurrence. On investigation, the informant party found that on the previous night, those trees had been cut from plots Nos. 1 and 4 of Tarun Mauza and plot No. 4 of Pakiar Mauza, hence the case.

The learned Magistrate framed charge against the petitioner and 3 others under section 26(1A) of the Forest Act, 1927 and discharged co-accused Siful Islam as he was then minor.

During the trial, the prosecution examined as many as 3 witnesses to prove the charge, and the defence cross-examined the prosecution witnesses. After the prosecution witness, the accused were  examined  under  section  342  of  the  Code  of  Criminal Procedure to  which  they  again pleaded not  guilty  but  did not adduce any defense witness.

After the consolation of the trial learned Magistrate by the judgment and order of conviction of sentence dated 30.05.1999 found the petitioner and others guilty under section 26(1A) of the Forest Act, 1927, and sentenced them as aforesaid.

Against  the  said  judgment  and  order  of  conviction  and sentence  the  present  petitioner  and  others  preferred  Criminal Appeal  No.  24  of  1991  before  the  Court  of  learned  Sessions Judge,  Gazipur  which  was  heard  by  the  learned  Additional Sessions  Judge,  1st  Court  Gazipur.  The  learned  Additional Sessions Judge, 1st Court, Gazipur after hearing the said appeal by the judgment and order dated 28.02.2005 dismissed the appeal and thereby  affirmed  the  judgment  and  order  of  conviction  and sentence passed by the trial court.

Being  aggrieved  thereby  the  convict  petitioner  preferred this criminal revision and obtained the Rule.

No one appears in support of the Rule.

Mr. S.M. Emamul Musfiqur, the learned Assistant Attorney General appearing for the state supports the impugned judgment and order and submits that the petitioner and others had removed timber from the reserved forest, hence the courts below rightly found the petitioner guilty under section 26(1A) of the Forest Act, 1927 and thereby rightly awarded the sentence.

The  point to be  adjudicated  in this Rule is whether the judgment  and  order  of  conviction  and  sentence  against  the petitioner is maintainable or not.

P.W.  1,  Abdul  Kader  Bhuyan,  Forester  of  Gosinga  Bit, Gazipur in his examination-in-chief stated that on 05.10.1990 at about  06.00  a.m.,  he  along  with  others  went  to  the  place  of occurence and found the accused persons chopping wood. They tried  to  detain  the  accused  but  they  managed  to  escape.  He recovered  2  maunds  of  Gazari  timbers  and  also  recovered  3 maunds of firewood from the place of occurrence and recorded the same. He exhibited the report as exhibit No.1 and the seizure list as exhibit No. 2.

P.W-2 Md. Kalu Mollah, in his examination-in-chief, stated that on 05.10.1990 he went to the place of occurrence with the Gosinga Bit Officer and heard the sound of cutting trees. They tried  to  detain  the  persons  who  were  cutting  trees,  but  they managed  to  escape.  They  recovered  timber  from  the  place  of occurrence.

P.W. 3, Nasir Uddin in his examination-in-chief stated that on 05.10.1990, at about 06.00 a.m., he along with the Bit Officer went to inspection and found that accused Chand Miah, Rofiqul, Nurul Islam, Momin, and Shofiqul were chopping wood. They tried to detain the accused but they managed to escape.

These are the witnesses adduced by the prosecution. All the said  witnesses  were  the  employees  of  the  forest  department. Amongst the said witnesses though P.W. 1 and 3 mentioned the name of the petitoner, but P.W. 2 did not mention any name. From the said evidence it appears that none was arrested from the place of occurrence. The witnesses were the employees of the forest department, but they did not disclose how they recognized the accused.  Even,  the  accused  were  not  identified  on  the  dock. Hence, a serious doubt was cast regarding the recognition of the accused. The place on which the accused persons were found to chop the wood, was private land. On a careful perusal of the prosecution  witnesses,  I  do  not  find  any  evidence  that  the petitioner removed any timber from the reserved forest; chopping wood on private land does not come within the mischief of section 26(1A) of the Forest Act, 1927. Moreover, P.W. 2 and 3 were the subordinate officers of P.W. 1 who were interested in the result of the  case.  The  prosecution  failed  to  adduce  any  impartial, independent, and natural witness from the place of occurrence to prove  the  case.  The  courts  below  without  considering  these aspects of the case, passed the impugned judgment and order of conviction and sentence which is required to interfer.

Hence, I find merit in the Rule.

Accordantly, the Rule is made absolute.

The judgment and order dated 28.02.2005 passed by the learned Additional Sessions Judge, 1st Court, Gazipur in Criminal Appeal  No.  24  of  1991affirming  the  judgment  and  order  of conviction and sentence dated 30.05.1991 passed by the learned Magistrate,  1st  Class,  Kapashia,  Gazipur  in  Criminal Miscellaneous Case No. 03 of 1991 arising out of T.R. No. 25 of 1991 is hereby set aside.

The  petitioner  is  acquitted  from  the  charge  and  he  is released from the bail bond.

Send down the lower court’s record and communicate the order at once.

Kashem/B.O