IN THE SUPREME COURT OF BANGLADESH

APPELLATE DIVISION

PRESENT:

Mr. Justice Md. Tafazzul Islam

Mr. Justice Md. Abdul Aziz

Mr. Justice B. K. Das

Mr. Justice Md. Muzammel Hossain Mr. Justice S. K. Sinha

CRIMINAL APPEAL NOS. 55 - 59  OF 2007 WITH

JAIL APPEAL No. 02 of 2007 WITH         

CRIMINAL MISCELLANEOUS PETITION NO.08 OF 2001 WITH        CRIMINAL REVIEW PETITION No. 03 of 2000.

Major Md. Bazlul Huda (Artillery)           ...       Appellant (In Crl. Appeal No.55/07,     

Crl.M.P.08/01 and Crl.R.P. No.03/00).

Lieutenant Colonel Syed Faruque Rahman        ... Appellant

(In Crl. Appeal No.56/07)

Lieutenant Colonel Sultan Shahrior

Rashid Khan (Retd)       .... Appellant

(In Crl. Appeal No.57/07)

Lieutenant Colonel (Retd). Mohiuddin

Ahmed (2nd Artillery)   ..... Appellant

(In Crl. Appeal No.58/07)

Major (Retd). A.K.M. Mohiuddin Ahmed             ... Appellant

(In Crl. Appeal No.59/07 and

Jail Appeal No.02/07) -Versus-

The State  ....  Respondent (In all the cases)

For the Appellant

(In Crl.A.No.55/07)  

For the Appellant In Crl.A.No.56/07

For the Appellant

(In Crl.A. No.57/07)  

:                     Mr.Abdullah-Al-Mamun, Advocate, instructed by Mr. Md. Nurul Islam Bhuiyan, Advocate-on-Record.

:                     Mr.Khan Saifur Rahman, Senior Advocate, instructed by Mr. Nurul Islam Bhuiyan, Advocate-on-Record.

:                     Mr. Abdur Razzaque Khan, Senior Advocate, instructed by Mr. Md. Nawab Ali, Advocate-on-Record.

For the Appellant (In Crl. A.No.58/07)

For the Appellant (In Crl.A. 59/07)

:                     Mr. Khan Saifur Rahman, Senior Advocate instructed by Mr. Md. Nawab Ali, Advocate-on- Record.

:                     Mr. Abdullah-Al-Mamun, Advocate,

instructed by Mr. Md. Nawab Ali, Advocate-on- Record.

For the Appellant                    : (In Jail A.No.02/07)

For the Petitioner                    : (In Crl. M.P.No.08/01)

For the Petitioner                    : (In Crll. Rev.P.No.03/00)

For the Respondent                : (In all the cases)

Mr. Khan Saifur Rahman, Senior Advocate (with Mr. Abdullah- Al-Mamun, Advocate) instructed by Mr. Nurul Islam Bhuiyan, Advocate-on-Record.

Mr. Abdullah-Al-Mamun, Advocate, instructed by Mr. Nurul Islam Bhuiyan, Advocate-on-Record.

Mr. Abdullah-Al-Mamun, Advocate, instructed by Mr. Nurul Islam Bhuiyan, Advocate-on-Record.

Mr. Mahbubey Alam, Attorney General,

Mr. A.K.M. Zahirul Hoque, Addl.A.G.

Mr. A.S.M. Abdul Mobin, D.A.G.

Mr. Md. Motaher Hossain Sazu, D.A.G.

Ms. Mahfuza Begum, A.A.G.

Mr. Sarder Md. Rashed Jahangir, A.A.G.

Mr. Md. Ekramul Hoque, A.A.G.

Mr. A.B.M. Altaf Hossain, A.A.G.

Mr. Khandaker Diliruzzaman, A.A.G.

Ms. Fazilatunnassa Bappy, A.A.G.(Above Addl. A.G, D.A.G. and A.A.Generals with him) instructed by Mrs. Sufia Khatun, Advocate-on-Record.

Mr. Anisul Huq, Advocate, (Govt.Chief Prosecutor)

Mr. Mosharrap Hossain Kajol,

Mr. Abdul Matin Khasru, Advocate,

Mr. Nurul Islam Sujon, Advocate,

Mr. Sheikh Fazle Noor Taposh, 

Mrs. Toufiqa Karim,

Mr. Momtaj Uddin Mehedi,

Mr. Anamul Kabir Emon,

Mr. Imtiaz uddin Asif, (Govt. Prosecutors with him).

Mr. Ajmalul Hossain Q.C. Senior Advocate (Govt. Prosecutor).

Mr. Tawfique Nawaz, Senior Advocate,

(Govt. Prosecutor).

Mr. Mohammad mohsen Rashid, Advocate

(Govt. Prosecutor with him).

Mr. A.F.M. Mesbahuddin, Senior Advocate (Govt. Prosecutor).

Mr. Yousuf Hossain Humayun (Govt. Prosecutor). Mr. Md. Abu Zafor Siddique, (Govt. Prosecutor). Mr. Zahangir Hossain Selim, (Govt.Prosecutor). Mr. S.M.Rezul Karim, (Govt. Prosecutor).

Mr. Rabiul Alam Badu, (Govt.Prosecutor).  

Date of hearing:  :  05.10.2009, 06.10.2009, 07.10.2009, 08.10.2009, 11.10.2009, 12.10.2009,

13.10.2009, 14.10.2009, 15.10.2009, 18.10.2009, 19.10.2009, 20.10.2009, 21.10.2009, 22.10.2009, 25.10.2009, 26.10.2009, 27.10.2009, 28.10.2009, 29.10.2009, 01.11.2009, 02.11.2009,

03.11.2009, 04.11.2009, 05.11.2009, 08.11.2009, 09.11.2009, 10.11.2009, 11.11.2009, 12.11.2009.

Date of Judgment  :  19th November, 2009.

SHORT ORDER

For reasons to be recorded later on in details, we hereby make the following

orders:

The appellants Major Md. Bazlul Huda, Lt. Col. Syed Farooque Rahman, Lt. Col. Sultan  Shahriar  Rashid  khan,  Lt.  Col.  Mohiuddin  (Artillery)  and  Major  A.K.M. Mohiuddin Ahmed (Lncer) filed 5(five) leave petitions against the judgment and order dated 30th April, 2001 passed by the High Court Division in Death Reference No.30 of 1998 and Criminal Appeal Nos. 30 of 1998, 2604 of 1998, 2613 of 1998 and 2616 of 1998 and also the order dated 14th Deember, 2000 of the first and second learned Judges of the Division Bench of the High Court Division in the above matters.

Leave was granted to consider thefollowing points:

a)     Because the learned Judges of the Divisin Bench have delivered and signed two separate dissenting opinions, the third learned Judge has committed a fundamental error of law in not considering the reference in its entirety i.e, in respect of all the convicts and considering the cases of six convicts only.

b)    Because  there  is  inordinate  delay  of  21  years  in  lodging  the  F.I.R.;  this unreasonable  delay  speaks  of  ill  intention  and  design  on  the  part  of  the prosecution to falsely implicate the appellants by introducing a concocted story- the High Court Division, in the premises, erred in law in maintaining the capital sentence without properly cosidering this aspect of the matter.

c)     Because the evidence on record disclose a case of mutiny leading to the murder of the then President and his family members and thus the said killing not being a case of murder simplicitor, the trial of the appellants by a normal criminal court has vitiated the trial.

d)    Because the evidence on record do not disclose a case of a criminal conspiracy to commit murder but disclose a case of conspiracy to commit mutiny to change the then Mujib Government, hence the conviction and sentence are illegal.

e)     Because the prosecution having failed to prove the charge under section 302/34 of the Penal Code against the appellants on proper evaluation and sifting of evidence on record, there has been a serious miscarriage of justice.

On opinion on the above points is as under:

a)                 Sections 378 and 429 of the Code of Criminal Procedure contemplate that it is for the thired learned Judge to decide on what points he shall hear arguments, if any, and, that postulates that he is completely free in resolving the difference as he thinks fit, and therefore, the third learned Judge was competent to decide the case of six convicts of whom the learned judges were equally divided in their opinion and thus the third learned Judge was in agreement with the decision of the learned Judges of the Division Bench in respect of 9(nine) convicts of whom there was no difference of opinion.

b)                 The learned Sessions Judge as well as the learned Judges of the High Court Division have believed the explanation given by the prosecution regarding the delay in lodging the First Information Report on assessment of the evidence on record; this finding being a concurrent finding of fact, in our view, does not call for any interference.

c)                 An offence of murder has been included in section 59(2) of the Army Acat, 1952 triable under the Army Act subject to the condition that if the offender commits the said offence while in ‘active service’, but as the appellants were not in ‘active service’ within the meaning of section 8(1) of the Army Act, their trial by an ordinary criminal Court is not barred by the provisions of the Army Act, and secondly, even if it is assumed that it is a ‘civil offence’ within the meaning of Section 8(2) of the Army Act, there is no legal bar for trial of such offence in view of section 94 of the said Act.

d)                 There is no legal evience norecord to come to the conclusion that the murder of Bangabandhu Sheikh Mujibur Rahman and other members of his family including the three security personnel was committed as a consequence of mutiny, we are of the view that it is not a case of criminal conspiracy to commit mutiny, rather it is a criminal conspiracy to commit the murder of Bangabandhu Sheikh Mujibur Rahman and other members of his family.

e)                 The learned Judges of the High Court Division having believed that the prosecution has been able to porve beyond reasonable doubt the charge of murder against the appellants and other convicts by adducing reliable evidence, and the appellants having failed to make out a case that the High Court Division has caused a grave substantial injustice or a miscarriage of justice in accepting the death reference so far as it relates to the appellants without proper evaluation and sifting of evidence, we find no cogent ground to interfere with the impugned judgment and order of the High Court Division.

f)                  The appellants having failed to make out a case of extenuating circumstance to commute their sentence of death, we are not inclined to interfere with the sentence of death awarded to the appellants by the learned Sessions Judge and maintained by the High Court Division.

In the premises, Criminal Appeal Nos. 55-59 of 2007 with Jail Appeal No. 2 of 2007 with Criminal Misc. Petition No.8 of 2001 with Criminal Review Petition No.3 of 2000 are hereby dismissed.

The order of stay passed by this Court is hereby vacated.

This short order shall form part of the judgment.

MD. TAFAZZUL ISLAM, J:   The above appeals, by leave, have been preferred by the appellants (1) Major (Retd) Md. Bazlul Huda (2) Lt. Col. (Dismissed) Syed Faruque Rahman (3) Lt. Col. (Retd) Sultan Shaharior Rahid Khan (4) Lt. Col.

(Retd) Mohiuddin Ahmed (Artillery) (5) Major (Retd.) A.K.M. Mohiuddin Ahmed (Lancer), hereinafter referred to as Bazlul Huda, Farooque Rahman, Sultan Shahriar, Mohiuddin (Artillery) and Mohiuddin (Lancer), against the judgment and order of conviction and sentence dated 30.04.2001 passed by the High Court Division in Death Reference No.30 of 1998 along with Criminal Appeal Nos. 2604, 2613, 2616 and 2617 of 1998 confirming the sentence of death awarded to the above appellants by the learned Session Judge on 08.11.1998 in Sessions Case No. 319 of 1997 under sections 302/34 and 120B of the Penal Code.

The prosecution case, as stated by the informant, P.W.1, in his deposition is that he was the Personal Assistant of the then President of Bangladesh Sheikh Mujibur Rahman, hereinafter referred to as the President, and was on duty from 8 P.M. on 14th August, 1975 at the residence of the President at Road No.32, Dhanmondi. He spent his night there. At about 4-30- 5 A.M, in the early hours of 15th, he was awakened by one Abdul Matin, telephone mechanic, who informed him that the President is on the telephone line and after he took the receiver the President told him to get in touch with the police control room immediately as some armed men attacked the house of Serniabat, his brother-in-law; while he was trying to connect the police control room, the President came down to his room and by that time although he could connect Ganabhaban but there was response from there; suddenly a barrage of gun shots showered on their office; since there were intermittent firing of gunshots the President himself lied down on the floor and also pushed the informant down; when the firing stopped, the President on his way to upstairs enquired about the firing from the army and police sentries present nearby; in the meantime, Sheikh Kamal came down; at that time 3/4 Khaki and black dressed army personnel entered the house and appellant Bazlul Huda shot at Sheikh Kamal who then fell down and the informant then told the assailants that he is Sheikh Kamal, son of Sheikh Mujib, and upon hearing this Bazlul Huda again brush fired at Sheikh Kamal and he died; the bullets also wounded the informant and also the P.W.50, the DSP in charge of Police House Guard; while P.W.50 and he were trying to escape Major Bazlul Huda got hold of him by grabbing his hairs and then they were put in line in front of the main

gate; one Special Branch Officer who was standing on the line with them was shot down; thereafter some of the assailants went upstairs shooting through the way; the informant heard intermittent gun shot sounds and the cries of the women from upstairs; Sheikh Naser, the brother of the President, was brought down from upatair and was shot dead in the bathroom attached to their office; Rama alias Abdur Rahman, P.W.2, and Sheikh Russel, the youngest son of the President were also brought down and Sheikh Russel, who was with the informant, wanted to return to his mothers whereupon one of the army personlel snatched Sheikh Russel from the informant and took him upstairs on the pretext of taking him to his mother; thereafter the informant again heard gun shot sounds. After that Bazlul Huda went to the gate and on the query from Faruque Rahman told him that “all are finished”. The informant then realized that the President along with his family members and other inmates of the house were brutally murdered. At that time tanks were moving on the road in front of the house containing black dressed army personnel. At about 8 in the morning the dead body of Col. Jamil was brought there. The informant also saw Major Dalim in Khaki dress in the house talking to the army personnel. On the morning of 15th August, 1975, the President, Begum Mujib, Sheikh Kamal, Sheikh Jamal, Sheikh Russel, Sultana Kamal, Rozy Jamal, Sheikh Naser and one police officer of the Special Branch, were brutally murdered in the above house. The informant saw Faruque Rahman, Major Dalim, Major Nur and Bazlul Huda in the house of the President at the time of occurrence and also after the occurrence. The informant tried to lodge an information with the then Lalbag Police Station immediately after the incident but the same was not accepted by the police. Then out of fear for his own life he did not lodge any FIR until now. At long last, 2.10.1996, be lodged the FIR with the Dhanmondi Police Station in respect of the occurrence which happened on 15th August, 1975.

The police then took up the investigation, visited the place of occurrence, prepared sketch map with index thereof, seized alamats, examined the witnesses and recorded their statements under Section 161 of the Code of Criminal Procedure, produced some of the apprehended accuseds who asked for producing them before the competent Magistrate for recording their confessional statement under section 164 of the Code of Criminal Procedure and finally submitted charge sheet against the 20 accuseds including the present appellants under sections 302/ 120B/ 324/ 307/201/380/149/34/109 of the Penal Code.

Among the 19 accused persons who faced trial, 14 were absonding. The learned Judges of the High Court Division found that the warrents of their arrests were duly issued and when they could not be apprehended by the police inspite of their efforts, their properties both movable and immovable were attached in accordance with the provisions of the Code and thus the requirements of Sections 87 and 88 of the Code of Criminal Procedure were satisfied and since the said accuseds remained fugitives from law, necessary notices were duly published in the newspaper, as required under Section 339B of the Code. Records also show that all possible and practicable steps were taken to bring the fugitives before the Court.

The learned Sessions Judge by his Order No. 15 dated 7.4.1997 framed the following charges against the accused persons.

First charge: The accused persons in collusion with Late Khondker Moshtaq Ahmed. Late Mahbubul Huq Chashi, Risalder Syed Sarowar Hossain and Captain M. Mostafa Hossain, in order to satisfy their personal grievance to fulfil joint interest, to attain personal aggrandisement and ambition with illegal motive, they met and conspired/together on different dates since March, 1975, at different places, namely, at the residence of Lt. Co!. Khondker Abdur Rashid at his residence at the Dhaka Cantonment, BARD at Comilla, Shalna at Gazipur, the village residence of Khondker Moshtaq Ahmed at Daspara within P.S. and Daudkandi and at his residence at 54, Aga Mosi Lane, at Ramna Park, at the residence of Lt. Colonel Sultan Shahriar Rashid Khan at the Cantonment and in other places in order to murder Banga Bandhu Sheikh Mujibur Rahman, the then President of Bangladesh, his relations and his famiily members. In order to achieve their such objective, they assembled at BaIUl'ghat within Cantonmcnt Police Station on the night following 14th August, 1975 and in fulfilment of such conspiracy, the accused persons killed 11 persons on the morning of 15th August including the then President Sheikh Mujibur Rahman and his family members. As such, they committed an offence under Section 120B of the Penal Code.

Second Charge: In pursuance of the said premeditore conspiracy and in furtherance of their common intention, (to carry out the object of the said criminal conspiracy) the accused persons mentioned in the first charge in collusion with late Khondker Moshtaq Ahmed, late Mahbubul Alam Chashi, Risaldar Syed Sarwar Hossain and Captain M. Moshtaq Ahmed in order to vindicate their own personal vendetta and joint interest and ambitions in fulfilment of their conspiratorial scheme, armed with deadly weapons, such as, tanks, cannons, machine guns, stcn guns, rifles attacked (the residence of Bangabandhu Sheikh Mujibur Rahman, the then President of Bangladesh at 677, Dhanmondi Residential Area. Road No. 32 and murdered Bangabandhu Sheikh Mujibur Rahman. His wife Begum Fazilatunnessa, sons Sheikh Kamal, Sheikh Jamal, Sheikh Rassel. daughters-in-law, Sultana Kamal, Roji Jamal and brother Sheikh Naser. Besidcs, they also killed SiddiquI' Rahman, A.S.l.. Police. Shamsul Haque. Scpoy of the army and Col. Jamil, Military Secretary to the President and thereby committed an offence punishable under Section 302/34 of the Penal Code.

The learned Trial Court Judge also framed another charge under Section 201 of the Penal Code for wilfully causing disappearance of the evidence.

Appellants Farooque Rahman, Sultan Shahriar and Mohiuddin (Artillery), who were present in the trial Court pleaded not guilty to the charges and prayed to be tried. They were defended by the learned Advocates of their own choice while the rest 14 absconding accused persons were defended by the learned Advocates appointed by the State.

Prosecution examined 61 witnesses out of whom some were tendered by the prosecution and not cross-examined by the defence. The defence did not adduce any evidence. Aafter close of the prosecution witnesses the three appellants on dock were examined under Section 342 of the Code of Criminal Procedure to which they repeated their innocence. The defence case as could be gathered from the trend of cross examination is total denial and that the appellants are innocent and the occurrence did not take place in the manner as alleged inasmuch as the occurrence is the result of successful mutiny by some Army personnel.

The trial Court, thereafter, in consideration of the evidence on record as well as facts and circumstances of the case by judgment and order dated 08.11.1998, acquitted four of the accused persons, namely, 1. Taheruddin Thakur, 2. Hon. Captain A. Wahab Joarder, 3. Dafader Marfat Ali Shah (absconding), 4. L.D. Md. Abul Hashem Mridha (absconding), and convicted the rest I5 (fifteen) accused persons under Section 302/34 of the Penal Code and also under Section 120B of the Penal Code and all 15 convicts including the appellants were sentenced to death under Section 302/34 of the Penal Code and no separate sentence under Section, 120B of the Penal Code was imposed upon them. The aforesaid 15 accuseds including the appellants were not found guilty under Section 201 of the Penal Code and were acquitted on that charge.

Being aggrieved by the impugned order of conviction and sentence, appellant Faruque Rahman preferred Criminal Appeal No. 2616 of 1998, appellant Sultan Shahriar preferrcd Criminal Appeal No. 2604 of 1998 and the appellant Mohiuddin (Artillery) preferred Criminal Appeal No. 1617 of 1998. Appellant Bazlul Huda, who althrough remained absconding during the whole period of trial, was brought back from Bangkok to Dhaka on the date of the pronouncement of judgment of the trial Court i.e 8.11.1998 in persuance of an extradition proceedings against him in Bangkok and he then filed a regular appeal against his conviction and sentence being Criminal Appeal No. 2613 of 1998 before the High Court Division.

Then the Death Reference and all above 4 (four) Appeals were heard together by a bench of the High Court Division consisting of two Judges, out of whom Md. Ruhul Amin J. the presiding Judge found the present appellants along with 4 others guilty for the offence charged and maintained the conviction and sentence under Sections 302/34 and 120B of the Penal Code passed by the trial Court in Sessions Case No.319 of 1997 and accepted the Death Reference so far it related to four of the present appellants and 4 others with a modification of the mode of execution of sentence of death and thereby accepted the Death Reference in part and dismissed the conviction and sentence so far it related to 5 accuseds including appellant Mohiuddin (Artillery) under Sections 302/34 and 120B of the Penal Code and accordingly, the Death Reference so far it relates to them was not accepted.

Mr. Khairul Huq J. the other companion Judge of the Bench however found all the 15 accuseds including the appellants guilty for the offence charged and thereby affirmed the judgment and sentence so passed by the trial Court and accepted the Death Reference.

Since the judgment in the Death Reference No.30 of 1998 and the connected appeals was split one the above referene and the concerned appeals, as per provision of Sections 378 and 429 of the Code of Criminal Procedure, were placed before the learned Chief Justice for necessary order and the learned Chief Justice appointed Mohammad Fazlul Karim, J as third Judge to dispose of the Death Reference and the connected appeals.

The third learned judge then under the provision of sections 378 and 429 of the Code of Criminal Procedure took up the hearing of the above death reference and the appeals in respect of to only 6 accuseds including the appellant Mohiuddin (Artillery) in respect of whom also the learned judges of the Division Bench differed in their opinion.

The third learned Judge, after hearing, on consideration of the facts and circumstances of the case and materials available on record, took the view that the prosecution has failed to prove the case as against accuseds Major Ahmed Shariful Hossain alias Shariful Islam, Captain Md. Kismat Hashem and Captain Nazmul Hossain Ansar and having found them as not guilty for the offence charged acquitted them therefrom. The third learned Judge, however, found appellant Mohiuddin (Artillery), accused Captain Abdul Mazed and Risalder Moslemuddin alias Moslehuddin guilty for the offence charged under Sections 120B/302 and 34 of the Penal Code and maintained their sentence of death under Sections 302/34 of the Penal Code agreeing with A.B.M. Khairul Haque, J and accordingly accepted the Death Reference so for it related to them and dismissed Criminal Appeal No.2617 of 1998 filed by the accused Lt. Col. (Retd) Mohiuddin Ahmed (Artillery) and the conviction and sentence of accuseds Captain Md. Kismat Hashem, Major Ahmed Shariful Hossain alias Shariful Islam passed by the learned Sessions Judge, Dhaka in Sessions Case No. 319 of 1997 was set aside by the third learned Judge holding them not guilty agreeing with the view taken by Md. Ruhul Amin, J and accordingly the Death Reference so far as it related to Captain Md. Kishmat Hashem, Captain Nazmul Hossain Ansar and Major Ahmed Shariful Hossain alias Shariful Islam was rejected.

Mohiuddin (Lancer) was tried and convicted in absentia due to his absconsion outside the country and subsequently he was arrested from U.S.A. and brought back in the country in July 2007 and was sent to jail and he then filed Jail Petition No.9 of 2007 and subsequently filed an application for condonation of delay stating that he had no knowledge of the case and the judgment of conviction and sentence. This was opposed by the State by filing an affidavit. On hearing both the sides the delay being condoned he filed Criminal Petition for Leave to Appeal No.343 of 2007 which was heard analogously with Criminal Petition for Leave to Appeal Nos. 95, 96, 97 and 98 of 2001.

All the above mentioned petitions for leave to appeal having raised the same question of law and fact were disposed of by one leave granting order granting leave as follows:

“(a)  the learned Judges of the Division Bench of the High Court Division dealing with the Death Reference and the connected criminal appeals delivered two separate and parallel judgments and signed their invididual judgment. These two separate judgments signed separately cannot be taken to be the judgment of the High Court Division. This shows that the learned Judges gave dissenting judgments and this became palpable from the order dated 14.12.2000 passed by the learned Judges stating that the judgment given by them in the Death Reference No.30 of 1998 was a split one. Accordingly the matter was referred by the learned Judges to the learned Chief Justice for necessary order. Thereafter the learned Chief Justice by order dated 15.1.2001 appointed Mr. Justice Mohammad Fazlul Karim as the third judge to dispose of the Death Reference as a whole meaning the case of 15 convicts. In this background of the matter, it is strongly contended by the learned counsels that the Death Reference case in its entirety was referred to the third judge for disposal. Hence the learned third judge having considered the case of only 6(six) convicts committed an error of law occasioning failure of justice.

(b)              the occurrence took place in the early morning on 15.8.1975. But the informant P.W.1 A.F.M. Mohitul Islam was all along in Dhaka after the occurrence and he joined as a receptionist in the Bangabhaban on 3rd September, 1975 after the occurrence and continued in service till he filed the F.I.R. on 2.10.1996 after a long lapse of more than 21 years. This unreasonable delay in lodging the F.I.R. speaks of ill intention and a design on the part of the prosecution to falsely implicate the convict petitioners in the occurrence on the basis of concocted and manipulated evidence to the prejudice of the convict petitioners. The courts below including the High Court Division erred in failing to consider this aspect while adjudging the involvement of the convict petitioners in the occurrence and also in convicting and awarding capital sentence to them.

(c)               although the evidence and materials on record go to show that it was a case of mutiny leading to the murder of the then President Sheikh Mujibur Rahman and his family members and not a case of murder simplicitor but the convicts including the convict petitions were tried and conv icted by a normal criminal court as a case of murder simplicitor. Hence the trial was vitiated.

(d)              the evidence and materials on record will only show that there was no case of criminal conspiracy for murder but a case of criminal conspiracy to commit mutiny to change the then Mujib Government. Hence the conviction and sentence of the convict petitioners are liable to be set aside.

(e)               charge of murder against the convict petitioners under section 302 read with section 34 of the Penal Code has not been proved on the basis of proper evaluation and sifting of evidence on record and thus there has been a miscarriage of justice.”

As it appears at the trial, the prosecution tried to establish its case against the appellants and other accuseds on the basis of the evidence of the P.Ws, confessional statement of appellants Faruque Rahman, Sultan Shahriar and Mohiuddin (Artillery), extra judicial confesson proved by P.Ws. 15 and 8, electronic evidence, and also circumstantial evidence relating to conspiracy and on the other hand the appellants and other accuseds tried to show that they were innocent, the confessional statements of the above three appellants were not voluntary and the President and his family members were killed as a consequence of a successful revolt of the army against the then Government.

Regarding the ground that the third learned judge should have heard the entire reference, i.e the cases of all the fifteen convicts instead of six convicts only, the common submissions of the learned counsels for the appellants are that since the learned judges of the High Court Division delivered dissenting openions, the third learned judge aught to have heard the entire death reference but he heard the reference only in respect of six accuseds and so the present reference as well as the appeals should be sent back on remand to the third learned judge for hearing of the death reference and the appeals afresh.

Mr. Khan Saifur Rahman, the learned counsel for appellants Faruque Rahman and Mohiuddin (Artillery), further submitted that the learned Chief Justice referred to the third learned judge the entire death reference not the peacemeal reference for his disposal and so the third learned judge should have heard the entire reference; the judgment impugned is not a judgment in the eye of law as the learned judges expressed their opinion seperately and signed their opinion in violation of the provisions of section 377 of the Code of Criminal Procedure; since the learned judges of the High Court Division heard death reference as well as the appeals both sections 378 and 429 of the Code of Criminal Procedure are applicable and so opinion of third learned judge shall be the conclusive opinion and judgment and the order shall follow on that basis which was not done in the present appeals; the opinion of the third judge is also in no way a concurrent openion in respect of the the appellants Faruque Rahman, Sultan Shahriar and Mohiuddin(Artillery) specially when the first learned judge disbelieved their confessional statements while the second learned judge believed those.

Mr. Razzaq Khan, the learned counsel for the appellant Sultan Shahriar further submitted that in the present appeals there is no confirmation of sentence in the eye of law since there is no consencious confirmation of the sentence by the High Court Division; the opinion of the learned judges of the High Court Division in the present case can not also be regarded as “judgment” and as held in the case of Md. Shafi vs. The Crown 6 DLR (WP) 104 (FB) and the case of Abdur Razik v. The State 16 DLR (WP) 73 in case of difference of opinion while confirming the sentence, the opinion of the third judge will prevail; the learned judges of the High Court Division also did not consider the principles as laid down in the case of Hethubha v. State of Gujrat AIR 1970 SC 1266, Union of India v Ananti Padmanabiah (1971) SCC (Crl) 533, Sajjan Singh v. State of U- P (1999 SCC 315 (Cri) 44 and Mahim Mandal v. State (1963) 15 DLR 615 and committed error in upholding the conviction and sentence.

Mr. Abdullah-Al-Mamun, the learned counsel representing Major Md. Bazlul Huda and Major A.K.M. Mohiuddin Ahmed (Lancer) adopted the submissions made by Khan Saifur Rahman and Abdur Razzak Khan.

Mr. Anisul Huq, the learned counsel (chief prosecutor) appearing for State, submitted that the third learned judge is perfectly justified in hearing the case of six convicts only in respect of whom the learned judges of the High Court Division were equally divided in their opeinion; section 377 of the Code of the Criminal Procedure merely reletes to the procedure for confirmation in respect of reference made under section 374 of the Code; the words “as he thinks fit” and the words “the judgment an order shall follow such opinion” used in sections 378 and 429 of the Code are significant and a close reading of the above expressions show that a wide discretion has been given to the third judge by the legislature to decide the case either in respect of whom there is no difference of opinion or in respect of whom there is difference of opinion, and the judgment and order shall follow such openion; in the present appeals the third learned judge, exercising his discretion, passed order dated 6.2.2001 holding that “the case of above 9 condemned prisoners over whom the learned Judges not being divided in opinion are not contemplated to be heard both under the provisions of sections 378 and 429 of the Code of Criminal Procedure. But only the case of accused Abdul Mazed over whom there is difference as regard the conviction under the two separate sections of the Penal Code and the cases of those five other condemned prisoners over which the learned judges are equally divided in opinion ...........”. and accordingly the third learned judge duly disposed of the reference and the appeals by confirming the sentence of nine convicts including the appellants which is in confirmity with the requirements as provided in sections 378 and 429 of the Code of Criminal Procedure.

In support of the above submissions Mr. Huq referred to the cases of Babu v. State of U.P. (AIR 1965 SC 467), Union of India v. Ananti Padmanabiah AIR 1971 SC 1836 Tanviven Pankajkumar Divctia v. State of Gujrat Case (1997) 1 SCC 156=AIR 1997 S.C. 2193, Sharat Chandra Mirta v. Emperor ILR 38 Cal 202, Ahmed Sher V. Emperor, AIR 1931 Lah 513, Subedor Singh v Emperor AIR 1943 Allahabad 272, Nemai Mandal v State of West Bengal AIR 1966 Cal 194, State of UP v. Dan Singh (1997) 3 SCC 747, Granda Venkata v The Corporation of Calcutta (22 CWN 745), State v Abul Khair 44 DLR 284.

While endorsing the said submissions, the learned Attorney General and Mr. Ajmalul Hossain Q.C added some points and cited some decisions. Mr. Ajmalul Hossain contends that there is fundamental difference in sections 378 and 429 of the Code of Criminal Procedure inasmuch as, while in section 378 the expression “a bench of Judges” has been used in Section 429 the expression “the Judges composing the court of Appeal” has been used and again in section 429 the expressions “of the same Court” have not been used as used the other section. The learned counsel further added that a reference is required to be heard by at least two Judges and the expression “bench of Judges” used in section 378 means the sentence should have to be confirmed and signed by at least two Judges for the execution and a close reading of sections 374-378 would infer that the question of opinion of the third Judge arise when there is difference of opinion of a bench of Judges and in a case where there was no difference of opinion in respect of a particular accused or accuseds the third Judge was left with no business to deal with his case and his opinion.

The provisions of sections 374, 376,377, 378 and 429 ofthe Code of Criminal Procedure are reproduced below: 

“374. Sentence of death to be submitted by Court- When the Court of Session passes sentence of death, the proceeding shall be submitted to the [High Court Division] and the sentence shall not be executed unless it is confirmed by the [High Court Division].

376. Power of High Court Division to confirm sentence or annul conviction. In any case submitted under section 374, the High Court Division –

(a)     may confirm the sentence, or pass any other sentence warranted by law, or

(b)     may annul conviction, and convict the accused of any offence of which the Sessions Court might have convicted him, or order a new trial on the same or an amended charge, or

(c)     may acquit the accused person:

Provided that no order of confirmation shall be made under this section until the period allowed for preferring an appeal has expired, or, if an appeal is presented within such period, until such appeal is disposed of. “377. In every case so submitted, the confirmation of the sentence, or any new sentence or order passed by the High Court Division shall, when such Court consists of two or more Judges, be made, passed and signed by at least two of them.”

“378. When any such case is heard before a bench of Judges and such Judges are equally divided in opinion, the case, with their  opinions thereon, shall be laid before another Judge, and such Judge, after such hearing as he thinks fit shall deliver his opinion, and the judgment or other shall follow such opinion.”

“429. When the Judges composing the Court of Appeal are equally divided in opinion, the case, with their opinions thereon shall be laid before another Judge of the same Court, and such Judge after such hearing (if any) as he thinks fit, shall deliver his opinion, and the judgment or order shall follow such opinion.”

The above provisions show that whenever a sentence of death is passed by a Court of Sessions the proceedings of the case shall be submitted to the High Court Division for the confirmation of sentence under section 374 of the Code. In dealing with a proceeding under section 374 the High Court Division itself acts on its appellate side power irrespective of whether the accused sentenced to death preferred an appeal or not and accordingly the High Court Division is bound to consider the evidence and then arrive at an independent conclusion as to the guilt or innocence of the accused. The power of the High Court Division to confirm the sentence is provided in Section 376 of the Code. A duty is imposed upon the High Court Division to satisfy itself that the conviction of the accused is justified on the evidence and that the sentence of death in the circumstances of the case is appropriate one. 

It also appears that though Section 378 is included in chapter XXVII of the Code of Criminal Procedure under the heading “OF THE SUBMISSION OF SENTENCES FOR CONFIRMATION” and section 429 is included in chapter XXXI under the heading “OF APPEALS” but the language used in both the sections is almost identical. The expressions “as he thinks fit” used in both the sections postulates that the third Judge is completely free in resolving the difference as he thinks fit and accordingly if he decides that there is no need to hear the arguments in respect of any accused of whom the Judges are not divided in their opinion, he may decline to do so. It also appears that the use of the words “equally divided” in both the sections means the judges differ in their opinions, in respect of complicity of an accused or on the charge framed against him or on any particular point but in a case where the judges concur with each other in respect of a particular accused and in respect of the offence charged, it can not be said that Judges are equally divided in respect of the accused charged with.

On construction of Sections 378 and 429 views taken by different High Courts are that what is laid before another Judge is the “case” and secondly, the judgment or order shall follow the opinion given by such Judge and the opinion of the third judge will be regarded as the final judgement.

In the case of Sarat Chandra Mitra V. Emperor ILR 38 Cal 202, it was observed:- “I am not now concerned with the question of the trial of two petitioners with regards to one of whom the Judges composing the Court of Appeal may be agreed in their opinion, while as regards the others the Judges may be equally divided in opinion. In such a contingency it is quite possible to maintain the view that, upon

a reasonable interpretation of the term “case” , what has to be laid before another Judge is the case of the prisoner as to whom the Judges are equally divided in opinion. I am now concerned only with the contingency in which the Judges of the Court of Appeal are already divided in opinion upon the question of the guilt of one accused person, though upon certain aspects of the case they may be agreed in their view. In such a contingency, what is laid before another Judge, is, not the point or points upon which the Judges are equally divided in opinion, but the “case”. These obviously mean that, so far as the particular accused is concerned, the whole case is laid before the third Judge, and it is his duty to consider all the points involved, before he delivers his opinion upon the case.”  As it appears in the case of Ahmed Sher V. Emperor AIR 1931(Lah) 513, Subeder

Singh V. Emperor, AIR 1943 All 272, Nemai Mandal and others v. State of West Bengal, AIR 1966 Cal 194 the above views have been followed.

In the case of Mohim Mandal v. State, 15 DLR 615 it was however observed that the expression “difference of opinion” as used in the Sections 378 and 429 of the Code may be either as regards the guilt or innocence of the accused or as to the proper sentence to be passed. In either of these cases the sections require the reference to be made to another Judge. The Judge before whom the case is laid for his opinion is entitled to pass any order he thinks proper including an order directing retrial of the accused. While confirming the sentence one Judge may not accept a piece of evidence but accept the conviction and sentence in respect of an accused person but that does not mean that there is difference of opinion as regards conviction and sentence.

In the case of Babu V State of (Supra), the true purport and power of the third judge came up for consideration before a five member Constitutional Bench of the Supreme Court of India. In that case the Division Bench differed in their opinions in respect of the conviction of three accused persons and delivered two separate judgments. Before the Supreme Court the competency of the appeal was raised. It was observed as follows:

“The Section (S.429) contemplates that it is for the third judge to decide on what points he shall hear the arguments, if any, and that postulates that he is completely free in resolving the difference as he thinks fit. In our judgment, it was sufficient for Takru, J, to have said on the question of the First Information Report that he did not consider it necessary to decide the point but it was necessary, he was in agreement with all that Mathur, J. had said. There was, therefore, a proper decision by Takru, J, and the certificate could not be based upon the omission to discuss the First Information Report and the doubts about it.”  

In the case of Hethubha (Supra) the Supreme Court of India observed as follows:

“This Court in Babu V. State of Uttar Pradesh, (1965) 2 SCR 771= (AIR 1965 SC 1467) held that it was for the third learned Judge to decide on what points the arguments would be heard and therefore he was free to resolve the differences as he thought fit. Mehta,J., here dealt with the whole case. Section 429 of the Criminal Procedure Code states “that when the Judges comprising the Court of Appeal are equally divided in opinion, the case with their opinion thereon, shall be laid before another Judge of the same Court and such Judge, after such hearing, if any, as he thinks fit, shall deliver his opinion, and the Judgment and order shall follow such opinion”. Two things are noticeable; first, that the case shall be laid before another Judge, and, secondly, the Judgment and order will follow the opinion of the third learned Judge. It is, therefore, manifest that the third learned Judge can or will deal with the whole case.”

In the case of Ananti Padmanabiah (supra) as it appears the Division Bench of the High Court of Assam and Nagaland unanimously rejected the first two contentions but were divided in their opinions on the points as to whether the Magistrate applied his mind to allow the investigating agency to investigate the cases and whether sanction under section 196A was necessary. The matter was then laid before a third Judge. The third Judge held that the Magistrate acted without jurisdiction in allowing the investigating agency to investigate into the matter and accordingly he quashed the proceedings. The question in dispute was whether a new point as to the competency of the Magistrate at Delhi to sanction investigation could have been raised before the third Judge since the said point had not been raised before the Division Bench. A.N.Ray,J of the Supreme Court approved the views taken in Hethubha Case (supra) wherein it was observed that “the third learned Judge could deal with the whole case” and that there is no dispute in the statement of law and it is in the discretion of the third judged to deal with the case and in deciding the case if any point is found necessary, he can decide the said point as well.

However in India, after amendment in the 1973 section 429 was substituted by section 392 which reads as follows:

“392. Procedure where Judges of court of appeal are equally divided- When an appeal under this Chapter is heard by a High Court before a Bench of Judges and they are divided in opinion, the appeal, with their opinions, shall be laid before another Judge of that Court, and that Judge, after such hearing as he thinks fit, shall deliver his opinion, and the judgment or order shall follow that opinion;

Provided that if one of the Judges constituting the Bench, or where the appeal is laid before another Judge under this section, that Judge, so requires , the appeal shall be reheard and decided by a larger Bench of Judges.”

It appears that the addition of a proviso as above authorises one of the Judges constituting the Division Bench or the third Judge of a High Court of India, if so desires, can refer the appeal to a larger Bench for rehearing and decision by such Bench of Judges. The legislature has resolved the controversy by addition of the proviso which in my view in order to remove the doubt about the conflicting views of the Supreme Court of India. Under the present position, if the Division Bench requires, it may refer the appeal for rehearing by a larger Bench of Judges if there is difference of opinion on any point or points. Similarly the third Judge has been given the similar discretionary power to refer the appeal to a larger Bench if he does not agree with the opinion of the Division Bench on any of the points involved in the appeal decided by them.

In Tanviben Pankaj Kumar Divetia V. State of Gujrat (supra) it was observed:

“The plain reading of Section 392(our S.429) clearly indicates that it is for the third Judge to decide on what points he shall hear arguments, if any, and it necessarily postulates that the third Judge is free to decide the appeal by resolving the difference in the manner, he thinks proper.”

In State of U.P.V Dan Singh, (1997) 3 S.C.C.747 however two member Bench of the Supreme Court without considering the previous decisions observed as follows:

“When the appeal as a whole is heard by the third Judge, he not only has an option of delivering his opinion but, under the proviso to Section 392 of the Code of Criminal Procedure he may require the appeal to be reheard and decided by a large Bench of Judges. This was an option which, under the provision, was also open for any one of the two Judges, namely, B.N.Katju and Rajeshwar Singh, J.J. to exercise, but they chose not to do so. What is clearly evident is that the appeal is finally disposed of by the judgment and order which follows the opinion of the third Judge. This

being so special leave petition could only have been filed after the appeal was disposed of by the High Court vide its final order dated 19.5.1988. Even though the said order purports to be related only to ten out of thirty- two accused the said order has to be read along with the earlier order of 15.4.1987 and, in law, the effect would be that the order dated 19.5.1988 will be regarded as the final order whereby the appeal of the State was partly allowed, with only two of the thirty-two accused being convicted under Section 325 read with Section 34 IPC, while all the other accused were acquitted.”

In Sajjan Singh (1999) S.C.C. (Cri) 44), also a Division Bench of the Supreme Court ignoring the views taken in Babu’s Case, AIR 1965 SC 1467, and Hetubha Case, AIR 1970 SC 1266 did not approve the opinion taken by the third Judge and observed as follows: 

“Statement of law is now quite explicit. It is the third Judge whose opinion matters; against the judgment that follows there from that an appeal lies to this Court by way of special leave petition under Article 136 of the Constitution or under Article 134 of the Constitution or under Section 379 of the Code. The third Judge is, therefore, required to examine whole of the case independently and it cannot be said that he is bound by that part of the two opinions of the two Judges comprising the Division Bench where there is no difference. As a matter of fact the third Judge is not bound by any such opinion of the Division Bench. He is not hearing the matter as if he is sitting in a three Judge Bench where the opinion of majority would prevail. We are thus of the opinion that Prasad,J was not right in his approach and his hands were not tied as far as the three appellants, namely, Gajraj Singh, Meharban Singh and Baboo Singh before him were concerned in respect of whom both Judges of the Division Bench opined that they were guilty and their conviction and sentences were to be upheld.”

However in Sajjan Singh’s case despite the above observations, the Court did not interfere with the opinion of the third Judge on the reasonings that “Since we have heard the matter in respect of all the three appellants at length we do not think it is desirable now at this stage to remand the matter when only some of the appellants could be said to have been prejudiced because of the approach adopted by Prasad,J” .The Supreme Court thereupon heard the appeal on merit and dismissed the appeal.

In the case of the State Vs. Abdul Khair and others (supra) out of 3 accuseds, one committed the murder and two others were standing with the motorbikes and convicted under section 302/34 P.C. But in a split judgment on appeal, one learned judge acquitted two others. The third judge on an appeal under section 429 of the Code only heard the case of two others leaving the case of the condemned accused who committed the murder.

Similar view find support in the case of Nemai Mondal and others Vs. State of West Bengal AIR 1966 Call 194 where it was held that “The case with the differing opinion is placed before the third judge. It is the duty of the third judge to decide the case and not merely the points on which two judges have differed.

In the case Bhagat Ram Vs. State of Rajstan AIR 1972 (SC) 1502 the appeal filed by the State against the acquittal of two accuseds B and R of offences under sections 120B, 218, 347, 389 Penal Code is dismissed but there being difference of opinion between the judges of the Division Bench as regards the correctness of the order of acquittal of B in respect of offence under section 161 Penal Code and section 5(1)(a) Prevention of Corruption Act and then the matter was referred to a third Judge under section 429 Cr.P.C. and the Supreme Court of India, in view of above position observed that it is not open to the third judge to reopen the matter of acquittal of B in respect of offences under section 120B, 218, 347 for which an express order had been made by the Division Bench upholding the order of acquittal of the trial judge and that since the whole case had not been referred under section 429 Cr. P.C. the third judge could go only into the point of difference and arrive at his conclusion.

As it appears in the case of Muhammad Shafi Vs. Crown, 6 DLR(WP)104(FB) as referred by the appellants, the learned Judges agreed with the contention that “the third Judge was exercising the authority of a Bench of Judges and that, therefore, he should consider for the purposes of Section 12 of the Sind Courts Act not as a single Judge, but as a Bench”. I am of the view that the above case has no manner of application in this case.

In the case of Abdur Raziq Vs. The State 16 DLR (WP) 73 it was observed that “there is nowhere laid down in Sections 378 and 429 of the Criminal Procedure Code, that the third Judge should follow or may follow the opinion of the Judge who has given his opinion favouring the accused.” But however if this proposition is accepted, then there would have been no necessity in using the expressions “such Judge, after such hearing as he thinks fit, shall deliver his opinion, and the judgment or order shall follow such opinion” in Section 378 of the Code.

As it appears the views taken taken by five member constitution bench of the Indian Supreme Court in Babu’s case (AIR 1965 S.C.1467), holds the field on the point and the said decision has been followed in later cases as well and this is no cogent ground to depart from those views as they are based on correct construction of the provisions of law. 

Further even if it is assumed that the third learned Judge ought to have heard the reference in respect of all the convicts, as we have heard the appeals of the appellants at length on merit as was done in Sajjan Singh’s case (supra), the appellants could not be said to have been prejudiced. 

Regarding the submission made in respect of “judgment” it appears that in view of the difference of opinion as regards conviction of 6 accused persons the Division Bench by order dated 14th December, 2000 passed the following order:

“Death Reference accepted in part, Crl.A. 2604 of 1998, 2613 of 1998, and 2616 of 1998 are dismissed. Crl.A. 2617 of 1998 is allowed by Mr. Justice Md. Ruhul Amin by judgment in separate sheets.

B.O.

Death Reference accepted in part, Crl.A. 2604 of 1998, 2613 of 1998, 2616 of 1998 and 2617 of 1998 are dismissed by Mr. Justice A.B.M.Khairul Haque vide judgment in separate sheets.”

                                                                               B.O.

“14.12.2000. As the judgment in Death Reference No. 30 of 1998 is split one, let the matter, as per provision of Section 378 of the Code of Criminal

Procedure be placed before the learned Chief Justice for necessary orders. Md. Ruhul Amin

A.B.M.Khairul Haque,J.J.

Thereafter the appellants filed applications before the third learned judge praying for hearing the death reference in respect of all the condemned prisoners for ends of justice and the third learned Judge, after hearing heard the learned counsel at length, by order dated 6th February, 2001 rejected the application on the following reasons:

“In view of the discussion above and equally divided opinion of the learned Judges of the Division Bench, I am of the opinion that the cases of above 9 condemned prisoners over whom the learned Judges not being divided in opinion are not contemplated to be heard both under the provisions of Sections 378 and 429 Cr.P.C. But only the case of accused Abdul Majed over whom there is difference as regards the conviction under the two separate sections of Penal Code and the cases of those 5 other condemned prisoners over which the learned Judges are equally divided in opinion i.e. convicted by one learned Judge and acquitted by another learned Judge are before this Court for an opinion. Upon delivery of the opinion by this Court, the judgment and order shall follow such opinion in order to dispose of the entire death reference.”

As it appears the appellants did not take any exception to the aforesaid order of the third learned Judge and the learned counsels on their behalf then argued the appeals and the death reference. Then the third learned Judge, after hearing, gave openion as follows:

“In view of the discussions, reasons and findings above in the body of this judgment, in my opinion, accused Lt. Col. Mohiuddin Ahmed (Artillery), Captain Abdul Mazed and Risalder Noslemuddin @ Muslehuddin were rightly convicted under section 120B and 302/34 P.C. and sentenced to death under section 302/34 Penal Code by the learned Sessions Judge, Dhaka and agreeing with my learned brother A.B.M. Khairul Hoque, J the Death Reference so far as it relates to Lt.Co. Mohiuddin Ahmed (Artillery), Cap. Abdul Mazed and Risalder Moslemuddin @ Moslehuddin is accepted and the Criminal Appeal No.2617 of 1998 filed by accused Lt. Col. Mohiuddin Ahmed (Artillery) is dismissed but the conviction and sentence of accused Cap. Md. Kismat hashem, Capt. Nazmul Hossain Ansar and Major Ahmed Shariful Hossain @ Shariful Islam passed by the learned Session Judge, Dhaka in Sessions case No.319/97 are liable to be set aside and the same are accordingly set aside and accordingly, agreeing with my brother Md. Ruhul Amin J, the Death Reference so far as it relates to Capt. Md. Kismat Hashem, Cap. Nazmul Hossain Ansar and Major Ahmed Shariful Hossain @ Shariful Islam is rejected.”

Then followed the judgment and order dated 30th April, 2001 of the High Court Division maintaining the conviction and sentence in respect of three condemned prisoners including the appellant Mohiuddin Ahmed (Artillary) and accepting their death reference and disposing the death reference which is as follows:

“In the result, Death Reference No.30 of 1998 so far as it relates to Lt. Col. Syed Farook Rahman, Lt. Col. Sultan Shariar Rashid Khan, Lt. Col. Khandker Abdur Rashid, Major Md. Bazlul Huda, Lt. Col. Shariful Hoque Dalim, B.U. Lt. Col. A.M. Rashed Chowdhury, Lt. Col. A.K.M. Mohiuddin (Lancer), Lt. Col. S.H.B.M. Nur Chowdhury, Lt.Col. Md. Aziz Pasha, Lt.Col. Mohiuddin Ahmed (Artillery), Risalder Moslemuddin @ Moslehuddin and Capt. Abdul Mazed is accepted confirming the Death sentence and assordingly, Criminal Appeal No.2616 of 1998 filed by accused Lt. Col. Syed Farook Rahman, Criminal Appeal No.2604 of 1998 filed by accused Lt. Col. Sultan Shariar Rashid Khan, Criminal Appeal No. 2613 of 1998 filed by accused Major Md. Bazlul Huda and Criminal Appeal No.2617 of 1998 filed by Lt. Col. Mohiuddin Ahmed (Artillery) are dismissed but Death Reference No.30 of 1998 so far it relates to accused Capt. Md. Kismat hashem, Major Ahmed Shariful Hossain @ Shariful Islam and Capt. Nazmul Hossain Ansar is rejected and the conviction and the sentence of these accused are accordingly set aside and thereby acquitting them of the charges levelled against them in this case.” 

I am of the view that the above judgment and order of the third learned Judge is absolutely in accordance with the provision of sections 378 and 429 of the Code.

Regarding the second ground i.e delay, the learned counsels for the appellants submitted that there is inordinate delay in lodging the FIR and this unreasonable delay of 21 years enabled the prosecution to introduce concocted story for implicating the appellants and other accuseds falsely by collecting manipulated evidence which caused prejudice to the appellants and further even if it is assumed that this delay has been caused due to the promulgation of the Indemnity Ordinance, 1975 but there is no explanation for about three months from 26.6.1996, i.e the date after Awami League came to power.

Mr.Anisul Huq, and the learned Attorney General on the other hand, submitted that the prosecution not only had explained the reasons but also demonstrated cogent evidence to substantiate the cause for delay in lodging the FIR and the inability of the informant to lodge the FIR after the occurrence due to the fact that the successive Governments expressly as well as impliedly prevented the institution of the case against the appellants and other accused persons by promulgating Indemnity Ordinance 1975 and protected the appellants and other accuseds persons as would be evident from the fact that after the incidents the appellants and other accuseds not only remained under the shelter of the then governments but also held influential and powerful positions and Major Rashid contested the general election in 1996 who along with Farooque Rahman floated a political party under the name “Freedom Party” and Farooque Rahman also contested the election in 1980, and Bazlul Huda was the Secretary of the “Freedom Party” and further after General Ziaur Rahman came to power he rewarded most of the accused persons involved in the killing of the President and his family by appointing them in foreign missions even they openly declared themselves as killers of the then President and his family and that this being an exceptional case in which then successive Governments sheltered and protected the accused persons including the appellants, the informant was apprehensive of his life by taking risk of filing any case till the Bangladesh Awami League came into power in the year 1996. In support of the above submissions the learned counsels for the state referred the cases of State V. Fazal, 39 DLR(AD) 166, Md. Shamsuddin @ Lalu and others Vs. State , 40 DLR(AD)69, Tara Singh and others V. State of Punjab 1991 Supp(1) SCC 536, Jamna and others V. State of U.P. 1994 Supp(1) SCC 185 and State of H.P. V. Shreekanthia Shekari (2004) 8 SCC 153.

As it appears the learned Judges of the High Court Division believed the explanation for delay and observed that the prosecution has been able to explain the delay by assigning cogent reason.

The first learned Judge observed:

“In the present case delay in lodging the FIR has sufficiently been

explained and in view of the matter the contention that FIR has been

lodged after lapse of several years change of manipulation and false

implication can all together to be not ruled out merits no consideration.” The second learned Judge observed:

“In this case from the evidence of P.W.44 and other witnesses, the most accused persons used to stay in Banga Bhaban since 15th August, 1975 and

in the name of an unwritten command council used to govern the country till they were made to leave on the 4th November, 1975. Still though they

were not without influence. The accused Major Syed Farooque Rahman tried to force a mutiny at Savar and Bogra Cantonments and the accused Major Khondker Abdur Rashid tried unsuccessfully to take over the command of 2nd Field Artillery Regiment in 1976. Again in 1980 they made another attempt to over through the Government but still no Government took any punitive action against any of them; rather they were all given their arrear salaries. The accused Major Syed Faruque Rahman even contested the Presidential election in 1986 (P.W.44). So the apprehension of the informant about his life and limb can not be said to be unreasonable. Under such circumstances, the delay in lodging the FIR can not vitiate the trial, after all it is always for the prosecution to prove its case on evidence, as such, and the contention of the learned counsel on behalf of the appellants about the delay in lodging the FIR has got no substance.”

The thire learned judge also believed the explanation of delay.

The learned judges also cited many decisions of this sub-cotinent in support of their reasonings.

It is true delay in lodging the FIR some times result to embellishment by creature of afterthoughts. But the consistent views of the Superior Courts are that mere delay in lodging a case is not a ground for disbelieving a prosecution case, for there are various circumstances in which lodging any case as to the commission of offence may be delayed.

However as observed in the case of Shreekantthia (supra) the delay in lodging the first information report puts the Court on guard to search for and consider if any explanation has been offered for the delay. Once it is offered, the court is to only see whether it is satisfactory or not. In case the prosecution fails to explain the delay satisfactorily and there is possibility of embellishment or exaggeration in the prosecution version on account of such delay then this possibility becomes a relevant factor. On the other hand, satisfactory explanation of the delay is enough to reject the plea of false implication or vulnerability of the prosecution case.

In the present case the informant in the FIR has implicated only 14 accused persons in the F.I.R and out of them he made specific allegation of overt act only against Bazlul Huda and identified three other accused persons and implicated rest of the accused persons from the informations collected from other sources. If the informant had ill motive to implicate and/or embellish facts against the appellants and other accused persons, he could have vividly mentioned in the FIR the role played by each accused persons, but he did not resort to that path and this shows that this FIR is the true version what the informant has seen at the place of occurrence and whatever evidence that have been collected against the appellants and other accused persons about their complicity by the investigating agency were in the course of the investigation of the case.

Further, as it appears, after the incident Khondker Mostaque Ahmed userped the power and proclaimed Martial Law on 20th August, 1975 and assumed the office of the President of Bangladesh with retrospective effect from 15th August, 1975 and then he promulgated the Indemnity Ordinance, 1975 on 26th September, 1975 putting restriction

on taking of any legal or other proceedings against persons in respect of certain acts, things, committed by those persons in connection with, or in preparation or execution of any plan for, or necessary steps towards the change of the Government of Bangladesh.

As it appears whether or not an F.I.R could have been lodged even after the promulgation of the said Ordinance was a matter of interpretation of law and further the above Ordinance has also made psychological impact.

Further, as Lt. Col. Shafayat Jamil (P.W.44) stated in his deposition, the appellant Farooque Rahman and condemned convict Major Rashid always stayed in the Bangabhaban and their accomplice officers stayed in the Radio Station and used to maintain contact among them by constituting an unwritten Revolutionary Command Council and ruled the country under the leadership of Khondker Mostaque Ahmed and that it was not possible for taking legal action against the killers of 15th August as the killers were being given protection by the Governments in power after the incident till 1996.

Admittedly, the then President and all other members of his family found in the house were brutally killed. Had the Government in power had not supported the above killing, it was the bounden duty of the Governments in power to institute a case for ascertaining the cause for the death and bring the killers to justice but in this particular case the process of law has not  been allowed to take its own course, rather by

promulgating Indemnity Ordinance 1975 the Government in power wanted to protect the accuseds including the appellants and further though some of them were initially removed army officers, they were also absorved in the Foreign Ministry and were appointed in the Foreign Missions.

Further as the law stands, if no case was instituted against the killers of the elected President of the country by anyone on behalf of the victims, the Governments “according to law” was under obligations to institute a case specially when an elected President was brutally killed along with his family and further the appellants along with other accuseds not only committed an offence of murder, they also committed atrocities against humanity by killing a child and three innocent women. Further the above offence of murder being a cognizable offence, if no FIR was lodged on behalf of the victims for such an offence, the officer-in-charge of the Dhanmondi Police Station was under an obligation to hold investigation into the offence without an order of a Magistrate and to submit his report under section 173 of the Code.

The learned Attorney General and Mr. Azmalul Hossain expressing their concern about the mode of dispensation of justice by the then Governments in power submitted that the justice delivery system has failed in all respects during the relevant time which can not be exonerated and this failure of the justice delivery system has colossal and catastrophic affect in the country which should not be allowed to recur for the interest of the country. This, according Mr. Hossain, is a part of the history that can not be erased- the entire administration from the top to the bottom failed to perform their responsibilities which will be termed as a scandalous chapter in our history and this sort of practice should be stopped forever and it should not be allowed to repeat again.

The above submissions have substance as justice is related to law and justice differs from benevolence, generosity, gratitude, friendship, and compassion and justice consists of maintaining the societal status quo and further the concept of impartiality is at the core of the system of criminal justice. Further a Government is not of men but of laws. When law ends tyranny beings. Law is the very antithesis of arbitrary power. Further among different types of felonies, an offence of murder or an order to commit murder is obviously illegal and immoral and that is why the Nazis never tried to legalise genocide and the orders to kill the concentration camp inmates were always couched in veiled terms and even the Nazis recognised that such conduct could never be justified in terms of any system of law.

The criminal justice system in a country is designed to protect the citizens of the country from the onslaught of criminal activities of a section of people who indulges in such acts. The State as a guardian of fundamental rights of its citizens is duty bound to ensure the administration of justice and the rule of law. It is in the interest of the people that the guilt of the offender who has indulged in criminal activity is determined as quickly as possible. But, unfortunately this concept has been ignored after killing of the then President of the country and other members of his family. In order to have a strong socio-economic system, it is important that each and every offender involved in crime should be put to justice and his trial should move at reasonably fast pace. The challenges before the criminal justice system are to balance the rights of the citizen as well as of the accused while dispensing speedy and effective justice in order to ensure a welfare state for its citizens. Rule of law is meaningless unless there is access to justice for the common people.

It seems to me the learned Judges have given ccogent reasons in believing the explanation of delay given by the prosecution. Further this being a finding of fact based on evidence on record, the scope of this Division to interfere under Article 103(3) of the constitution is very limited.

So I am of the view that the delay being reasonably explained, no interfere is called from this Division.

Regarding the third ground, i.e Mutiny, the learned counsels for the appellants made common submission that the evidence on record revealed that the killing of the President and the members of his family and the change of power on 15th August, 1975 was  a result of mutiny by some army officers and therefore the trial ought to have been held by Court Martial under the provisions of Army Act, 1952 and accordingly the trial of the appellants under the provision of the Code of Criminal Procedure was without jurisdiction and in support of this submission Sections 31(a), 59(3), 92(2), 94 and 95 of the Army Act, Sections 5 and 139 of the Penal Code and Section 594(2) of the Code of Criminal Procedure were referred.

Mr. Khan Saifur Rahman further submitted that the instant incident originated from Dhaka Cantonment on the night of 14th August from which it is apparent that it was

a mutiny simplicitor and futher there was also no agreement or criminal conspiracy or premeditated plan or pre-arranged plan, within the meaning of Section 34 or Section 120A of the Penal Code. The learned counsel further argued even if when any retired army officer or any other person not subject to Army Act joined in the occurrence on the night following 14th August, 1975 would also constitute a mutiny within the ambit of Section 31 of the Army Act and accordingly they also ought to have been tried by a Court Martial under the Army  Act and moreover there is similarity in the killings of the President as in the present appeals and General Ziaur Rahman as in both the cases they were Presidents of the Republic and they were killed by the army personnel and in the present appeals the officers and jawans army from artillery and lancer units came out from Dhaka Cantonment and killed the President at dawn on 15th August, 1975 at his official residence, whereas, in case of General Ziaur Rahman the army came out from Chittagong Cantonment and killed him at Circuit House where he was staying on the night following 29th May, 1981 and since both the occurrences were committed in similar manner, the appellants, if they were at all involved in the incident of 15th August, ought to have been tried by a Court-Martial as was done in case of General Ziaur Rahman. Further the President, being the commander-in-chief of the armd forces, for his killing, trial aught to have been held before Court Martial. In support of this contention the learned counsel has referred the case of Jamil Huq Vs. Bangladesh, 34 DLR (SC) 125.

Mr.Anisul Huq on the other hand, contended that the incident is not a mutiny, rather it is a preplanned murder and therefore, there is no legal bar for the trial of the appellants under the provisions of the Code of Criminal Procedure as would appear from the provisions of sections 59, 92, 94 and 95 of the Army Act 1952, Section 35 of the

Navy Ordinance 1961 and Section 549 of the Code of Criminal Procedure. Learned Attorney General endorsing the above submissions of Mr. Huq added that the appellants did not raise this point in the trial Court and raised for the first time it in the High Court Division with malafide motive in order to confuse the Court and further the evidence on record do not support a case of mutiny and rather disclosed  a case of murder and accordingly the charges against the appellants were duly framed and even if it is assumed that the incident is a ‘civil offence’ with the meaning of Section 8(2) read with Section 59(2) of the Army Act, in view of Section 94 of the Army Act the criminal Court has concurrent jurisdiction to try such offence.

Mr. Tawfique Nawaz, the learned counsel for the State, submitted that the entire scheme of the constitutional and legal personality of the President as was provided in some 59 Articles of the Constitution which were in force at the time of the killing of the then President are very explicit and accordingly the legal personality and the status, functions and immunities as enjoyed by the then President under the Constitution is to be considered on the basis of constitutional provisoions instead of merely considering his position merely on the basis of one single Act i.e Army Act 1952 or a provision therein for treating him as “army personnel” for being the “commander in chief” and accordingly the trial of the

appellants by criminal Court instead of Court martial was lawful.

As it appears the defence did not take any plea of “mutiny” while cross- examining or giving suggestions to the prosecution witnesses. Since the prosecution witnesses did not say anything in support of the defence plea of mutiny, the defence ought to have suggested to the prosecution witnesses that the involved officers and jawans in the mutiny submitted their charter of demands and as their demands were not acceded to, they killed the President but on the contrary it was suggested to P.W.24 on behalf of Lt. Col. Syed Farooque Rahman that at that time when Major Dalim was broadcasting the news of the killing, P.W.24, had  knowledge about declaration of Martial Law and that Khonkder Mostaque Ahmed became the Chief Martial Law

Administrator. Form this suggestion the defence wanted to make out a case that after the killing of the President, Martial Law was declared and Khonkder Mostaque Ahmed became the President and the Chief Martial Law Administrator of the country and by this suggestion the defence wanted to make out a case that since the killing was the consequence of a successful army insurrection, such killing would not constitute an offence of murder.

However as it appears as per provisions of the Constitution, after the killing of the President, the then Vice-President ought to have assumed the office as President but this time this constitutional provisions were ignored. Further if there was a mutiny, the officers and jawans involved in the incident should have been put on trial for mutiny under the Army Act by the Government in power but no such action was taken, rather the killers were rewarded by the Government. Md. Reajul Haque (P.W.37) a employee of Radio Station, stated in chief that at about 9 A.M. the chiefs of three services as well as the B.D.R. chief and the I.G.P. of Police were brought by Major Dalim at Studio No.2 and their statements of allegiance in favour of the change were recorded and broadcast. On behalf of Lt. Col. Shahriar Rashid it was suggested to Major General Shafiullah (P.W.45) that there was a successful military insurrection in the morning of 15th August,1975 and in the said insurrection Khonkder Mostaque Ahmed assumed the power of President , that all the chiefs of the defence services expressed their allegiance and that he did not take any action against the persons involved in the incident and that Khandaker Mostaque declared the killers as “ p§kÑÉ p¿¹¡e”. In reply to a question on behalf Farooque Rahmann Col. Shafayet Jamil (P.W.44) stated that it was not possible to take any action against the killers of 15th August as the persons involved in the killing of 15th August were given protection by the subsequent Governments and  favoured them and that the conspirators and killers of 15th August used to stay at Bangabhaban and that they run the Mostaque Government by constituting a Revolutionary Council. 

By the above suggestions as given to the witnesses the appellants termed the incident as a successful military coup d’etat and that the Governments protected and rewarded them by declaring them as ‘Surya Santan’ and the appellants did not try to make out a case of mutiny and further they, in their statements under section 342, were conspicuously silent on this point and they changed their stand at the appellate stage in the High Court Division although there is no material in support of the plea. 

Though in the Army Act, 1952, the definition of mutiny has not been given but the punishment for the mutiny has been provided in Section 31 of the Army Act 1952.

Mutiny has been defined in Section 35 of the Navy Ordinance, 1961, which reads thus:-

“35. In this Ordinance, mutiny means a combination between two or more persons subject to service law, or between persons two at least of whom are subject to service law-

(a)   to overthrow or resist lawful authority in the armed forces  of Bangladesh or any forces co-operating therewith or in any part of any of the said forces;

(b)  to disobey such authority in such circumstances as to make the disobedience subversive of discipline, or with the object of avoiding any duty or service, or in connection with operations against the enemy; or

(c)   to impede the performance of any duty or service in the armed forces of Bangladesh or in any forces co-operating therewith, or in any part of any of the said forces.”

There is no dispute that this definition of mutiny is applicable in the Army Act 1952 in view of the definition of ‘service law’ given in section 4(xxxiv), of the Navy Ordinance 1961 which provides that “service law” means this Ordinance, the Army Act, 1952 , the Air Force Act, 1953,and the rules and regulations made thereunder.”

The expression ‘active service’ used in Section 59 of the Army Act 1952, Khan Saifur Rahman submits, as is not applicable in this case but the above submission is contradictory because the appellants are trying to oust the jurisdcition of the criminal Court relying upon some provisions of the Army Act 1952.

According to Mr. Huq this definition of mutiny as given in section 35 of Navy Ordinance 1961 should be read along with Section 31 of the Army Act 1952 for coming to the conclusion that the acts of the appellants do not come within the mischief of mutiny. Clause (a) of Section 31 speaks of overthrowing or resisting lawful authority the armed forces of Bangladesh but there is nothing on record to show that the appellants and other accused have collectively insubordinated or collectively defied or disregarded the authority or refused to obey authority in order to bring their act within the ambit of mutiny and further the evidence on record proved that the authority rather accepted the action of the appellants and other accuseds, some disgrunted army personnel and retired army officer, and some of them were rewarded by the Government. 

 As it appears section 59(1) of the Army Act 1952 provides that subject to the provisions of sub-section (2), any person subject to the Army Act who at any place commits a civil offence shall be deemed to be guilty of an offence under the Army Act and “Civil offence’ defined in section 8(2) Army Act means an offence which, if committed in Bangladesh, would be triable by a criminal Court. Therefore, there is no dispute that if the acts of the appellants come within the mischief of ‘civil offence’ there is no legal bar for the trial of the appellants by a criminal Court constituted under the Code however section 59(2) of the Army Act stipulates that person who is a subject to Army Act commits murder against any person not subject to the Army Act shall not be liable to prosecution under the Army Act unless he commits the offence while on active service.

The term ‘active service’ has been defined in Section 8(1) as under:

“  active service”, as applied to a person subject to this Act, means the time during which such person is attached to, or forms part of a force which is engaged in operations against an enemy, or is engaged in military operations in, or is on the line of march to, a country or place wholly or partly occupied by an enemy, or is attached to or forms part of a force which is in military occupation of a foreign country;

There is no allegation against the appellants and other accused persons to the effect that while they were in “active service” committed the offence of murder and the appellants also did not claim that the incident was committed while they were on “active service”. There is also no material on record to show that the incident was committed while the appellants were engaged in operation against an enemy or that they were engaged in military operation or is on the line of march to a country or place wholly or partly occupied by enemy.

In terms of the relevant provisions of law as above, if the appellants being not in ‘active service’ commit a ‘civil offence’, the provisions of Army Act does not stand on the way for their trial by a criminal Court. Further Sections 94 and 95 have also been included in chapter IX of the Army Act 1952 for trial of ‘civil offence’ by an ordinary criminal Court. Section 94 presupposes that both a criminal Court and Court-Martial have jurisdiction concurrently in respect of an act or omission punishable both under the Army Act or in case of an offence deemed to be an offence under the Army Act as well as under any law in force and the same will also under the scheme of those two provisions, in the first instance, it is left to the discretion of the prescribed officer to decide before which court the proceedings shall be instituted and, if the prescribed officer decides that the case should be instituted before a Court Martial, the offender is to be detained in military custody. However at the same if a criminal Court is of opinion that the said offence shall be tried before the said Court, he may issue notice under Section 95 either to deliver over the offender to the nearest Magistrate or to postpone the proceedings pending a reference to the Government and upon receipt of the requisition the prescribed officer may either deliver over the offender to the said court or refer the question to the Government for determination as to whose order shall be final.

I am also in agreement with the submission of Mr. Tawfique Nawaz that in view of the position of the then President as provided in the constitution, merely because of one single Act i.e Army Act 1952 and for being “commander in chief” the late President cannot be regarded as army personnel.

The learned counsels for the appellants also contended that in view of Section 139 of the Penal Code and Section 549 of the Code of Criminal Procedure the trial of the appellants by a criminal Court is barred.

Section 139 of the Penal Code is included in chapter VII which contains sections 131-140. As it appears section 131 provides for abetting mutiny or attempting to seduce a soulder, sailor or airman from his duty, Section 132 provides for abetment of mutiny, if mutiny is committed in consequence thereof and other sections are relating to abetment of other offences and section 139 prohibits punishment of any person under the provisions of Penal Code who is subject to the Army Act, 1952, the Navy Ordinance, 1961, the Air Force Act 1953 for any of the offence for the abetment of those offences mentioned in section 131 to 138. Thus section 139 of the Penal Code has no application in the present appeals in view of the fact that the appellants have been tried and convicted not for committing an offence of abetment of mutiny but for a substantive offences of criminal conspiracy and murder. Regarding section 549 of the Code it appears that it is of a special nature and has the result of taking away the jurisdiction of criminal Court with respect to persons subject to military, naval and air force law. The expressions “is liable to be tried either by a court to which this Code applies or by a Court-Martial” used in this section implies that the offence for which the offender is to be tried should be an offence of which cognizance can be taken by a Criminal Court as well as a Court-Martial. The phrase is intended to refer to the initial jurisdiction of the two Courts to take cognizance of the offence and not to their jurisdiction to decide it on merits. In respect of offences which could be tried by both the Criminal Court as well as a Court-Martial, Section 94 and 95 of the Army Act have made suitable provisions to avoid a conflict of jurisdiction between those two Courts as discussed above.

It may be mentioned here that Sections 125 and 126 of the Army Act 1950 as applicable to India and Sections 94 and 95 of the Army Act 1952 are in verbatim language.

In Balbir Singh and another V. State of Punjab (1995) 1 SCC 90 the Supreme Court of India observed:

“When a criminal court and court-martial each have jurisdiction in respect of the trial of the offence, it shall be in the discretion of the officer commanding the group, wing or station in which the accused is serving or such other officer as may be prescribed, in the first instance, to decide before which court the proceedings shall be instituted and if that officer decides that they should be instituted before a “court-martial”, to direct that the accused persons shall be detained in Air Force custody. Thus, the option to try a person subject to the Air Force Act who commits an offence while on “active service” is in the first instance with the Air Force Authorities. The criminal court, when such an accused is brought before it shall not proceed to try such a person or to inquire with a view to his commitment for trial and shall give a notice to the Commanding Officer of the accused, to decide whether they would like to try the accused by a court-martial or allow the criminal court to proceed with the trial. In case, the Air Force Authorities decide either not to try such a person  by a court-martial or fail to exercise the option when intimated by a criminal court within the period prescribed by Rule 4 of the 1952 Rules, the accused can be tried by the ordinary criminal court in accordance with the Code of Criminal Procedure.”

In Joginder Singh V. The State of Himachal Pradesh , AIR 1971 SC 500, the Supreme Court observed:

“It is further clear that in respect of an offence which could be tried both by a criminal Court as well as a Court-martial, Sections 125, 126 and the Rules have made suitable provisions to avoid a conflict of jurisdiction between the ordinary criminal courts and the Court-martial. But it is to be noted that in the first instance, discretion is left to the officer mentioned in Section 125 to decide before which court the proceedings should be instituted. Hence the officer commanding the army , army corps, division or independent brigade in which the accused person is serving or such other officer as may be prescribed will have to exercise his discretion and decide under Section 125 in which court the proceedings shall be instituted. It is only when he so exercises his discretion and decides that the proceeding should be instituted before a court martial, that the provisions of Section 126(1) come into operation. If the designated officer does not exercise his discretion and decide that the proceedings should be instituted before a Court-martial, the Army Act would not obviously be in the way of a criminal Court exercising its ordinary jurisdiction in the manner provided by law.”

In the case of Major E.G.Barsay V. State of Bombay, AIR 1961 S.C. 1762 it was observed by Subha Rao, J as follows:

“The scheme of the Act therefore is self-evident. It applies to offences committed by army personnel described in S.2 of the Act; it creates new offences with specified punishments, imposes higher punishments to pre- existing offences, and enables civil offences by a fiction to be treated as offence under the Act; it provides satisfactory machinery for resolving the conflict of jurisdiction. Further it enables, subject to certain conditions an accused to be tried successively both by court-martial and by a criminal court. It does not expressly bar the jurisdiction of criminal courts in respect of acts or omissions punishable under the Act, if they are also punishable under any other law in force in India; nor is it possible to infer any prohibition by necessary implication. Sections 125, 126 and 127 exclude any such inference, for they in express terms provide not only for resolving conflict of jurisdiction between a criminal court and a court- martial in respect of a same offence, but also provide for successive trials of an accused in respect of the same offence.”

          In the case of Jamil Huq relied on by the appellants, the writ petitioners were tried and convicted by the Court Martial under the Army Act, 1952 for the offence of mutiny that took place in the night following 29th March,1981 which resulted in the death of Ziaur Rahman, the then President of Bangladesh. They filed writ petitions challenging the decision of the Court Martial constituted under the Army Act. The High Court summarily rejected the writ petitions. The Appellate Division in the facts of the given case observed “if the Court-Martial is constituted properly and the offence committed is cognizable by it then the rest is a question of fact based on evidence which is held by all the authorities that the writ jurisdiction is not available to interfere. This Court is only concerned to examine the question whether the jurisdiction under Article 102 has been conferred and once it comes to the conclusion that the jurisdiction has not been conferred there is the end of the matter.”

As it appears, this case has no manner of application in the facts and circumstances of the instant case.

Mr. Abdullah-Al-Mamun, the learned counsels for the appellant Bazlul Huda, however referred the case of R.V. Grant, Davis Riley and Topley, (1957) 2 All E.R. 694.

As it appears, in the above case the appellants were convicted by a General Court- Martial held at Nicosia in Cyprus of the offences of mutiny. On the night of the incident a noisy outbreak took place in the barracks- the appellants held a meeting on the roof of the hotel at which they were stationed and then came down and acted riotous conduct and demolished the bar’s shop as their grievances made to the authority were not redressed. They received an order from a Warrant Officer to disperse but they did not disperse. The House of Lords refused to interfere with their the conviction on the reasonings as under:

“I have not thought it necessary to take up time by going through the evidence in detail. The court is quite satisfied that there was evidence on which the court martial could find on a proper direction that there was a mutiny, and it is not for us to criticize the finding provided there was evidence on which they could come to the decision they did. For the reasons which I have endeavored to state as shortly as I can, the court is of opinion that there was no misdirection; that, although perhaps criticism could be made of the words the Judge-Advocate used when he made his interlocutory observation, there was a perfectly fair direction and nothing was said by the Judge-Advocate which could have misled the court martial. Therefore, on all these grounds the appeals should, we think, be dismissed.”   

As it appears in the instant appeals there is nothing on record to show that the army authority have initiated any proceeding against the appellants and other accused persons under the Army Act for violating the direction of the authority. There is also no evidence that there was collective insubordination and committed the killing. The accused persons were not in ‘active service’ and they have not committed a civil offence within the meaning of section 8(2) of the Army Act. Therefore, the criminal Court has not acted in excess of jurisdiction in convicting the appellants.

It also appears that in order to avoid controversy, the learned Sessions Judge was accorded sanction from the prescribed authority for trial of the appellants and other accused persons although they have committed no offence under the Army Act. Therefore, I find no substance in the objection raised by the learned counsels for the appellants regarding the forum of trial.

Before discussing the fourth and fifth grounds i.e conspiracy and murder, the question as to whether the confessions made by the appellants Furuque Rahman, Sultan Shahriar and Mohiuddin (Artillery) are legally admissible in evidence are to be addressed because if those confessional statements are legally admissible in evidence, the statement made therein will be relevant for disposing both the grounds of conspiracy as well as murder and if those are found to be not legally admissible, the prosecution will have to prove both the grounds on the basis of other evidence on record. 

 Regarding the confessional statements of the appellants Faruque Rahman, Sultan Shahriar and Mohiuddin (Art) the learned counsel for the appellants submitted those were procured by torture and coercion by the police by keeping them on police remand for a long time and therefore, those were not voluntary as would be evident from the reasonings and findings given by first learned Judge and the second learned Judges erred in law in accepting these confessions as voluntary and the third leanred Judge also erred in accepting the confesion of Mohiuddin (Artillery). It was further urged that since the learned Judges of the Division Bench were equally divided in their opinion as regards the confessional statements of Sultan Shahriar, Farooque Rahman, the third learned Judge aught to have considered their confessional statements also.

Mr. Anisul Huq and the learned Attorney General, on the other hand, submitted that the first learned Judge not only misread the materials on record, but on misconception of law disbelieved the above confessional statements on the grounds that before recording the statements the confessing accuseds were kept in police remand beyond period as provided in section 167(2) of the Code of Criminal Procedure by a “device”. The learned Attorney General drew our attention to the statement of P.W.61 and submitted that the appellant Farooque Rahman was taken on police remand for 13 days on two occasions in Lalbagh P.S. Case No.11(11)75 before the institution of the instant case on 2nd October 1996, and Sultan Shahrior was also taken on 15 days remand on three occasions in the said case before he was shown arrested in the instant case on 3rd October 1996 and accordingly findings of the first learned Judge that the the confessional statement of Farooque Rahman was in fact recorded after keeping him on police remand for 32 days and lekewise the confessional statement of Shahriar was recorded after keeping him on police remand for 34 days are not correct.

Records show that Sultan Shahriar was shown arrested in the instant case on 3rd October, 1996 and he was taken on police remand for 7 days on 30th November, 1996 and then on his confissional statement was recorded and that Farooque Rahman was shown arrested on 3rd October, 1996 in the instant case and thereafter he was taken on police remand for 7 days on 12th December, 1996 and then his confessional statement was recorded on 19th December, 1996 and that Mohiuddin (artillery) was taken on police remand for 7 days on 19th November, 1996 and thereafter he made his confessional statement on 27th November, 1996.

P.W. 51 stated that he recorded the confession of Sultan Shahrier after compliance of formalities required under section 364 of the Code of Criminal Procedure and explained to the accused about the contents of his statement and that after recording statement he issued a certificate about the correctness of the statement. As it appears appellant Sultan Shahriar did not challenge this statement of this witnesst hat he did record his statement in accordance with Section 364 of the Code. P.W.51 however admitted that there was no comment in column no.8 of the Form and he gave an explanation that as the accused did not complain to him of any ill treatment he did not fill up the above column and this witness denied the defence suggestion that he recorded the statement of the accused under duress and torture and that the accused was kept in wrongful confinement in police custody or that the statement recorded was not read over to the accused and that it was not voluntary. P.W. 51 also stated that he recorded the statement of Farooque Rahman after compliance of the formalities required under section 364 of the Code and that after recording his confession the accused was sent to the Court of Chief Metropolitan Magistrate and the C.M.M. acknowledged the receipt of the accused on the same day and that he issued a certificate to the above effect. Farooque Rahman the confessing accused, did not challenge this claim made by this witness regarding the recording of his confessinal statement in accordance with the provisions required by law. P.W. 51 denied the defence suggestion that at the time of recording his statement an A.S.P. of C.I.D., the investigating officer and other police officers were present in his room. P.W. 51 however admitted that he did not fill up columns 3,4,8 and 10 of the Form but denied the defence suggestion that Faruque Rahman reported to him about police torture .

P.W.52  stated that at the time of recording  confession of  Mohiuddin (artillery)he followed the procedures provided in section 364 of the Code and thereafter he issued a certificate and that after recording his confession, the accused was sent to jail custody.Mohiuddin (Artillery) also did not challenge the claim of this witness about recording his statement in accordance with the procedure laid down by law. P.W.52 however admitted that the Column No.1 of the Form was blank P.W.52, however denied the defence suggestion that Mohiuddin (Artillery)did not make any confession to him or that he signed a statement being prepared by the investigating officer or that the signature of this accused was obtained by force in presence of the police and that the confessional statements were not true or voluntary. As it appears in column No.1 of the Form it was

mentioned by P.W.52 that the Mohiuddin was produced at 11 A.M. on 27th November, 1996 and his statement was recorded at 2 P.M. So the time as well as date of producing the accused and the time of recording his statement were duly mentioned. Column Nos. 3 and 4 of the Form are the instructions and guidelines given to the Magistrates to follow while recording confessional statement of an accused. Column No.3 relates to explaining the confessing accused on each of the matters mentioned in column 5 and to caution him to reflect carefully before making the statement. However as it appears the queries required to confront the accused in column 5 had duly been confronted in Column No. 6. The above columns were duly filled up and so the accused should not have any grievance in this regard. The defence suggestion that at the time of recording statement any police officer was present in his room was denied Column 8 relates to brief statement of Magistrate’s reasoning about his satisfaction that the statement was voluntary. The concerned Magistrate in their statement stated that the confessional statement were recorded in accordance with law and that the accused being satisfied of the correctness of the statement put his signature. Column 10 contains the time of forwarding the accused  after recording confession. The concerned Magistrate stated that after recording statement he forwarded the accused to the Chief Metropolitan Magistrate on the same day with the record.

 As it appears the object of putting questions to an accused who offers to confess is to obtain an assurance of the fact that the confession is not caused by any inducement, threat or promise having reference to the charge against him. 

Chapter XLV of the Code of Criminal Procedure deals generally with irregular proceedings. There are certain irregularities which do not vitiate the proceedings and these are set out in Section 529. No question of prejudice arises in this class of cases because the section states categorically that they shall not vitiate the proceedings. Certain other irregularities are treated as vital and there the proceedings are void irrespective of prejudice. These are set out in section 530. A third class is dealt with in sections 531,532,533,535,536(2) and 537. There broadly speaking the question is whether the error has caused prejudice to the accused or has occasioned a failure of justice. The Code has carefully classified certain kinds  of error and expressly indicates how they have to be dealt with. In every such case the court is bound to give effect to the express commands of the legislature; there is no scope for further speculation. The only class of case in which the courts are free to reach a decision is that for which no express provision is made.

In the instant particular case only section 533 of the Code is to be considered. The first learned Judge has mentioned section 537 of the Code in this regard which has no manner of application in respect of any error or omission or irregularities that occurred while recording confessional statement by Magistrate.

Section 533 reads as follows:

“533. Non-compliance with provisions of section 164 or 364.(1) If any Court, before which a confession or other statement of an accused person recorded or purporting to be recorded under section 164 or section 364 is tendered or has been received in evidence, finds that any of the provisions of either of such sections have not been complied with by the Magistrate recording the statement, it shall take evidence that such person duly made the statement recorded; and, notwithstanding anything contained in the Evidence Act, 1872, section 91, such statement shall be admitted if the error has not injured the accused as to his defence on the merits. (2) The provisions of this section apply to Courts of Appeal, Reference and Revision.”

This section provides a mode for the rectification of an error arising from noncompliance with any of the provisions of section 164 or section 364. The object is to prevent justice being frustrated by reason of such non-compliance. If any of the provisions of this section have not been complied with by a Magistrate, the confessional statement may be admitted under this section upon taking evidence that the statement recorded was duly made, if non-compliance has not injured the accused to his defence on the merit. If the record of the confession or the statement is inadmissible owing to the failure to comply with any of the provisions of Section 164 or Section 364, intrinsic evidence, notwithstanding anything in Section 91 of the Evidence Act, may be given to show that the accused person duly made the statement and the statement, when so proved may be admitted and used as evidence of the case, if non-compliance has not injured the accused. The non-compliance with the provisions is cured only when there is no injury caused to the accused as to his defence on merit.

This view has been expressed in Mohammad Ali and others V. Emperor, 35 Cr.L.J. 385(F.B.) as follows:

“In view of the provisions of the sections of the Code of Criminal Procedure, particularly those contained in s. 533, Criminal Procedure Code, it is difficult to say that the omission to record questions and answers is a fatal defect, and that it is only by recording such questions and answers that a confession can furnish data which enable the court to arrive at the conclusion as to the voluntary nature of the confession. It is equally difficult to hold that when supplying these data or materials it would always be “impossible” for the trial Court to form an estimate as to the voluntary nature of such confession. The defect no doubt is a gross irregularity and it may in certain special cases injure the accused in his defence on the merits, but barring such cases such a defect is completely cured by the provisions of s. 533 of the Code of Criminal Procedure. It is open to a court to come to a conclusion from the internal evidence furnished by the statement itself or from other evidence that the statement had been voluntarily made, and the mere fact that there was an omission to record questions and answers would not debar the court from coming to that conclusion. Nor can it be said that without these data or materials it is “impossible” for a court to arrive at the conclusion that the confession had been made voluntarily. Where, of course, the defect is not merely one of recording it in due form and in accordance with law but there is a defect that the statement was not duly made at all, the position would be different.”

However in Kehar Singh’s case (AIR 1988 SC 1883) a question arose about the defect in the procedure in recording the confession of Kehar Singh wherein it was observed as follows:

“On a consideration of the above decisions it is manifest that if the provisions of S. 164(2) which require that the Magistrate before recording confession shall explain to the person making confession that he is not bound to make a confession and if he does so it may be used as evidence against him and upon questioning the person if the Magistrate has reasons to believe that it is being made voluntarily then the confession will be recorded by the Magistrate. The compliance of the sub-sec.(2) of S. 164 is therefore, mandatory and imperative and non-compliance of it renders the confession inadmissible in evidence. Section 463 (old Section 533 ) of the Code of Criminal Procedure provides that where the questions and answers regarding the confession have not been recorded evidence can be adduced to prove that in fact the requirements of sub- sec. (2) of S. 164 read with S. 281(old Section 364) have been complied with. If the Court comes to a finding that such a compliance had in fact been made the mere omission to record the same in the proper form will not render it inadmissible evidence and the defect is cured under S. 463  but when there is no-compliance of the mandatory requirement of S. 164(2) Criminal Procedure Code and it comes out in evidence that no such explanation as envisaged in the aforesaid sub-section has been given to the accused by the Magistrate, this substantial defect cannot be cured under S. 463 Criminal Procedure Code.”     However as it appears the first learned judge taking into consideration the successive remands of the appellants and the alleged non compliance of provisions of law, did not accept the confessional statements holding that taking the appellants on remand in connection with other cases without following proper procedure was a “device” adopted by the prosecution for obtaining the above confessional statements.

From the record, it further appears that Sultan Shahrier retracted his confession on 5th February, 1997 after 52 days of his confession, Farooque Rahman retracted his

confession on 1st March, 1993 after 43 days of his confession and Mohiuddin (artillery) retracted his confession after a long time more than 30 days of his confession. There being no explanation on the side of defence about the delay in filing the applications for retractions, it can be inferred that the retracting of these appellnats are afterthought devices for nullifying the admissions made in the statements.

Regarding the effect of retraction of a cofessional statement, in the case of Joygan Bibi 12 DLR SC 157, the Supreme Court of Pakistan observed :

“We are unable to support the proposition of law laid down by the learned Judges in this regard. The retraction of a confession is a circumstance which has no bearing whatsoever upon the question whether in the first instance it was voluntarily made, and on the further question whether it is true. The fact that the maker of the confession later does not adhere to it cannot by itself had any effect upon the findings reached as to whether the confession was voluntary, and if so, whether it was true, for to withdraw from a self-accusing statement in direct face of the consequence of the accusation, is explicable fully by the proximity of those consequences, and need have no connection whatsoever with either its voluntary nature, or the truth of the facts stated. The learned Judges were perfectly right in first deciding these two questions, and the answers being in the affirmative, in declaring that the confession by itself was sufficient, taken with the other facts and circumstances, to support Abdul Majid’s conviction. The retraction of the confession was wholly immaterial once it was found that it was voluntary as well as true. That being the case, no reason whatsoever can be found for the inability felt by the learned Judges in taking the confession into consideration against the co-accused. It is true that if there were no other evidence against Joygun Bibi except the confession of Abdul Majid, then, the confession by itself being merely a matter to be taken into consideration, and not having the quality of evidence against Joygun Bibi, it could rightly be held in law that her conviction could not be sustained on the confession alone. The grounds for this conclusion would undoubtedly gain weight if the confession were also retracted. But in the present case, Abdul Majid’s confession is by no means the only material in the case to be taken into consideration against Joygun Bibi. As will be seen presently, the evidence of the maid-servant Zohura furnished a very complete and detailed account of the movements and behaviour of Joygun Bibi on the night in question, and particularly at and after the time of the murder. Joygun Bibi has not offered any explanation in answer to the questions put to her on the basis of Zohura’s evidence and Abdul Majid’s confession as to her behaviour that night. She has been content to repeat that she is innocent and to suggest that the case has been fabricated against her by her husband’s younger brother, Sattar.”

In State Vs. Minhun alias Gul Hassan, 16 DLR (SC) 598 similar views have been expressed as follows:

“As for the confessions the High Court, it appears, was duly conscious of the fact that retracted confessions, whether judicial or extra judicial, could legally be taken into consideration against the maker of those confessions himself, and if the confessions were found to be true and voluntary, then there was no need at all to look for further corroboration. It is now well settled that as against  the maker himself his confession, judicial or extrajudicial, whether retracted or not retracted, can in law validly form the sole basis of his conviction, if the Court is satisfied and believes that it was true and voluntary and was not obtained by torture or coercion or inducement. The question, however, as to whether in the facts and circumstances of a given case the Court should act upon such a confession alone is an entirely different question, which relates to the weight and evidentiary value of the confession and not to its admissibility in law.”

 Similar views have been expressed in Mohd. Hussain Umar V. K.S. Dalipsinghhi, AIR 1970 S.C. 45, Ram Prakash V. State of Punjab AIR 1959 S.C.1, and State Vs. Fazu Kazi alias Kazi Fazlur jRahman and others 29 DLR (SC) 271.

As to the weignt of confessional statement, the view of the superior Courts is that a confession can be made foundation of a conviction if it is recorded in accordance with law, found true and voluntary, inculpatory in nature and if on examination of the statement as a whole if it is found inconformity on comparison with the rest of the prosecution case. What amount of corroboration could be necessary in a case would always be a question of fact to be determined in the light of the circumstances of each case. Sometimes no corroborative evidence are available and the court can act upon the confession whether retracted or not, against the maker, if the confession is found to be true and voluntary and if it was not obtained by torture, coercion or inducement. The proper way to approach a case of this kind is, first to marshall the evidence against the accused excluding the confession altogether from consideration and see whether, if it is believed, a conviction could be based on it. If it is capable of belief independently, then of course, it is not necessary to call the confession in aid. Where the court is not prepared to act on the other evidence, in such an event the Judge may call in aid the confession and use it to lend assurance to the other evidence.

As it appears the confessional statement of  Sultan Shahriar is about his presence in front of Sherniabat’s house and then at the Radio Station is corroborated by other two confessional statements of Syed Farooque Rahman and Mohiuddin (artillery). His statement as regards his subsequent conduct has been corroborated by P.Ws. 15,42 and 46. The confessional statement of Farooque Rahman has been corroborated by the other two confessional statements of Sultan Shahrier and Mohiuddin (artillery). P.Ws. 1, 4, 11, 12, 15, 21, 42 and 46 corroborated his statement in material particulars. The confession of Mohiuddin (artillery) is corroborated by other confessing accuseds in material particulars. His statement has also been corroborated by P.Ws. 17,18, 27 and 34. His statement as regards his presence at the night parade has been corroborated by P.Ws. 11,21,22, 24, 25 , 29 and 35.

 Next question is whether under section 10 of the Evidence Act the above confessional statements even if found to be true and voluntary are admissible in evidence against the makers and also each of the appellants as co conspirators to prove the charge of criminal conspiracy after the cessation of the conspiracy?

As it appears section 10 of the Evidence Act will come into play only when the court is satisfied that there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, that is to say, there should be a primafacie evidence that a person was a party to be conspiracy before his act can be used against his conspirators. Once such a reasonable ground exists, anything said, done or written by one of the conspirators in reference to the common intention, after the said intention was entertained, is relevant against others, not only for the purpose of proving the existence of the conspiracy but also for proving that the other person was a party to it. The evidentiary value of the said act is limited by two circumstances, namely, that the act shall be in reference to their common intention and in respect of a period after such period was entertained by any one of them. 

Conspiracy means something more than the joint action of two or more persons to commit an offence; if it were otherwise, section 10 would be applicable to any of the offence committed by two or more persons jointly and would thus import into a trial of hearsay evidence which the accused person would find it impossible to meet. The section is intended to admit evidence of communications between different conspirators while the conspiracy was going on, with reference to the carrying out of the conspiracy. Now the question is whether Section 10 is capable of being  widely construed so as to include a confession made by a conspirator with reference to past acts done in the actual course of carrying out the conspiracy after it has been completed.

In the case of Emperor of India V. Abani Bhusan Chakrabutty, 15 CWN 25, question arose whether confessions of co-accuseds is a relavent fact under section 10 of the Evience Act. In the above decision the Full Bench observed as follows:

“ The first piece of evidence we refered a short time ago. It is argued, on behalf of the Crown, that statement comes within the provisions of sec to the Indian Evidence Act, and is therefore to be treated as evidence aainst Abani’s fellow- prisoners. It is said that, if it does not fall within sec. to, at any rate, under the provisions of sec. 30, it is a confession of one of the co-accused and may be referred to in the course of the trial. It is argued by Mr. Roy with very considerable force, that, in any case, its value can be no higher than that of the evience of an cacomplice, and that, indeed, it is of less value than the evidence of an accomplice, because an accomplice can be cross-examiined for the purpose of testing his accuracy, while this confession of Abani made when he was a prisoner cannot be subject to that test. There is, of course, very great force in that argument we have come to the conclusion that the statement of Abani cannot properly be treated as evidence under sec. to of the Evidence Act that section, in our view, is intended to make evidence communications between different conspirators while the conspiracy is going on, with reference to the carrying out of the conspiracy. No doubt section 10 is wider than the law of England as to evidence in case of conspiracy. But we do not think that that section is intended to make evidence the confession of a co-accused and put it on the same foting as a communication passing between conspirators, or between conspirators and other persons, with reference to the conpiracy. But, withregard to section 30, in our opinion the statement, being the confessin of a co-accused, can be looked at under that section. But its value is discounted by the fact that it cannot be tested by cross- examinatin. We do not think, for a moment, of putting it any higher than the statement of an accomplice, nor can we in any way allow ourselves to be influenced by the statements in it, except where those statements are corroborated by independent testimony implicating the accused persons in the design with which they are charge.” 

This point was then considered with in Mirja Akbor V. King Emperor, AIR 1940 (P.C) 176. Their Lordships of the Privy Council on consideration of different authorities and Section 10 of the Evidence Act observed as follows:

“This being the principle, their Lordships think the words of S.10 must be construed in accordance with it and are not capable of being widely construed so as to capable of being widely construed so as to include a statement made by one conspirator in the absence of the other with reference to past acts done in the actual course of carrying out the conspiracy, after it has been completed. The common intention is in the past. In their Lordships judgment, the words “common intention” signifies a  common intention existing at the time when the thing was said, done or written by the one of them. Things said, done or written while the conspiracy was on foot are relevant as evidence of the common intention, once reasonable ground has been shown to believe in its existence. But it would be a very different matter to hold that any narrative or statement or confession made to a third party after the common intention or conspiracy was no longer operating and had ceased to exist is admissible against the other party. There is then no common intention of the conspirators to which the statement can have reference. In their Lordships judgment S.10 embodies this principle. That is the construction which has been rightly applied to S.10 in decisions in India, for instance, in 55 Bom 839 and 38 Cal 169. In these cases the distinction was rightly drawn between communications between conspirators while the conspiracy was going on with reference to the carrying out of conspiracy and statements made, after arrest or after the conspiracy has ended, by way of description of events then past.”