Present:

Mr. Justice Md. Shohrowardi

Criminal Revision No. 08 of 2010

Md. Muhibur Rahman Moyur and others

...Convict-petitioners

          -Versus-

The State

...Opposite party

Mr. Golam Abbas Chowdhury, Advocate  

...For the convict-petitioners Mr. S.M. Golam Mostofa Tara, D.A.G with Mr. A. Monnan, A.A.G

...For the State

Mr. Tabarak Hussain, Advocate with

Ms. Urmee Rahman, Advocate

...For the informant

Heard on 31.07.2024 and 01.08.2024  Judgment delivered on 20.08.2024

On an application filed under Section 439 read with Section 435  of  the  Code  of  Criminal  Procedure,  1898  Rule  was  issued calling  upon  the  opposite  party  to  show  cause  as  to  why  the impugned  judgment  and  order  dated  11.11.2009  passed  by  the Additional Sessions Judge, Court No. 3, Sylhet in Criminal Appeal No. 58 of 2006 affirming the judgment and order of conviction and sentence dated 06.06.2006 passed by the Magistrate, First Class, Sylhet in G.R. Case No. 147 of 2003 arising out of Golapgonj Police Station  Case  No.  1  dated  01.11.2003  convicting  the  petitioners under Sections 447/379 of the Penal Code, 1860 and sentencing them under Section 447 to suffer rigorous imprisonment for 1(one) month and under Section 379 of the Penal Code, 1860 to suffer imprisonment  for  5(five)  months  which  will  run  consecutively should not be set aside and/or pass such other or further order or orders as to this Court may seem fit and proper.

The prosecution case, in short, is that on 22.10.2003 at 4.15 pm  the  accused  persons  1.  Mohibur  Rahman  Moyur,  2.  Abdur Rahman and 3. Zilani forcibly cut a raintree valued at Tk. 10,000 from the Abu Ali Mosque and took away the tree to the adjacent sawmill. At the time of cutting the raintree, the informant Md. Moin Uddin and the members of the Mosque Committee requested the accused persons not to cut the tree. Subsequently, they lodged GD No. 834 dated 29.10.2003 and the police recovered the said raintree from the sawmill.

The police took up an investigation of the case. During the investigation,  the  Investigating  Officer  visited  the  place  of occurrence, prepared the sketch map and index, seized the alamat and recorded the statement of witnesses under Section 161 of the Code  of  Criminal  Procedure,  1898.  After  completing  the investigation  found  the  prima  facie  truth  of  the  allegation  made against  the  accused  persons  and  submitted  charge  sheet  on 01.12.2003 against the convict-petitioners.

During  the  trial,  the  charge  was  framed  under  Sections 447/379/411/506  of  the  Penal  Code,  1860  against  the  accused persons  which  was  read  over  and  explained  to  them  and  they pleaded not guilty to the charge and claimed to be tried following law. During the trial, the prosecution examined 5(five) witnesses to prove the charge against the accused persons and the defence cross- examined them. After examination of the prosecution witnesses, the accused persons were examined under Section 342 of the Code of Criminal Procedure, 1898 and the defence declined to adduce any D.W.

After concluding the trial, the learned Magistrate, First Class, Sylhet  by  judgment  and  order  dated  06.06.2006  was  pleased  to convict the petitioners under Sections 447 and 379 of the Penal Code, 1860 and sentenced them under Section 447 to suffer rigorous imprisonment for 1(one) month and under Section 379 of the Penal Code,  1860  to  suffer  rigorous  imprisonment  for  5(five)  months which will run consecutively. Against the said judgment passed by the trial Court, the convict-petitioners preferred Criminal Appeal No. 58 of 2006 before the Sessions Judge, Sylhet which was heard by  the  Additional  Sessions  Judge,  Court  No.  3,  Sylhet  and  the appellate  Court  below  by  impugned  judgment  and  order  dated 11.11.2009  affirmed  the  judgment  and  order  passed  by  the  trial Court  against  which  the  convict-petitioners  obtained  the  instant Rule.

P.W.  1  Moin  Uddin  is  the  informant.  He  stated  that  the occurrence took place at Abu Ali Jame Mosque on 22.10.2003 at 4.15 pm. The accused persons Moyur, Abdur Rahman and Zilani cut a raintree valued at Tk. 10,000 from the land of the Mosque and took away the said tree to the sawmill. At the time of cutting the tree, the locals tried to restrain them. He proved the FIR as exhibit 1 and his signature as exhibit 1/1. During cross-examination, he stated that he was the Motwalli. He affirmed that in the FIR there is no schedule of the mosque and there is also no dag, khatian and the boundary of the mosque. There is a wall beside the 3 sides of the mosque and the west and back side are open. There is a wall to the east, north and south side of the mosque. There is no deed of the mosque.  He  denied  the  suggestion  that  the  grandfather  of  the accused Moyur gifted the land of the mosque. He affirmed that Asob Ali is the President of the Mosque Committee and Gias Uddin is the Secretary.  There  were  9  other  members  in  the  Committee  and Mosque Committee took a resolution to file the case. In reply to a query by the Court, he stated that the resolution was not submitted before the Court. GD No. 840 was lodged. The Imam and Moazzin of the mosque are not the witnesses in the case. The President and Secretary were not cited as witnesses. The witness Lalon lodged G.R.  Case  124  of  98.  He  admitted  that  the  accused  persons possessed the land of the mosque. The witness Akmal filed Case No. 42 of 86 against Anfar Ali who is the uncle of the accused Muhibur Rahman.  Suruj  Ali  filed  Title  Suit  No.  8  of  96.  He  denied  the suggestion that he was not the motwally of the mosque.

P.W. 2 Akmal Ali stated that the informant, accused and the place of occurrence is known to him. The occurrence took place on 22.10.2003  at  4.15  pm.  The  accused  persons  Muhibur  Rahman, Abdur Rahman and Zilani cut down a tree from the mosque valued at Tk. 10,000 and sold the raintree. Subsequently, police seized the tree. During cross-examination, he stated that there is a wall to the east, south and north of the mosque and the west side is open. He denied the suggestion that the accused persons did not cut the tree from the mosque. The mosque is situated in dag No. 1801. The uncle of the accused filed Other Case No. 42 of 86 against his uncle Kala  Mia.  He  admitted  that  the  informant  and  the  witnesses belonged to the same group. There is a dispute regarding the land between  the  accused  persons  and  the  informant.  He  denied  the suggestion that the accused were falsely implicated in the case.

P.W. 3 Suruj Ali stated that the occurrence took place 1 year ago.  The  accused  Muhibur  Rahman  cut  down  a  raintree  of  the mosque. The police recovered the tree from the sawmill. During cross-examination, he admitted that he is the cousin of the informant Moinuddin. In Title Suit No. 8 of 96 filed by the accused persons, he was a witness. The title suit was filed in respect of dag Nos. 1799, 1803, 1802 and 3446. The Court passed the decree in favour of both parties. There is a pond to the north and the house of the accused persons was situated to the west of that pond. The tree was located beside the road of the accused. The tree was situated in the land of the mosque but outside the boundary. He affirmed that the accused persons did not cut down any tree from the land of the mosque. He could not say whether the predecessor of the accused persons gifted their land in favour of the mosque.

P.W. 4 Md. Asik Uddin stated that the informant, accused persons  and  the  place  of  occurrence  are  known  to  him.  On 22.10.2003 at 4.15 pm, he went to near the mosque and found that the accused Mohibur Rahman and Zilani cut down a raintree from the land of mosque, dag No. 1799. The mosque is situated in dag Nos. 1799, 1801 and 1802 within the boundary. There was a wall around  the  mosque.  He  denied  the  suggestion  that  the  accused persons did not cut the tree from the land of the mosque. 

P.W. 5 Alamgir is the Investigating Officer. He stated that he visited the place of occurrence, prepared the sketch map, recorded the  statement  of  witnesses  under  Section  161  of  the  Code  of Criminal  Procedure,  1898  and  seized  alamat.  During  the investigation, he found the prima facie truth of the allegation against the accused persons and submitted a charge sheet. He proved the jimmanama as exhibit 2 and his signature as exhibit 2/1. He went to the  place  of  occurrence  on  02.11.2003  and  subsequently  on 29.11.2003.

Learned Advocate Mr. Golam Abbas Chowdhury appearing on  behalf  of  the  convict-petitioners  submits  that  the  alleged occurrence took place on 22.10.2003 at 4.15 pm and before lodging the FIR, on 01.011.2003 the informant lodged a GD but the said GD was not proved by the prosecution. He further submits that in the FIR there is no dag number and schedule of the mosque. P.W. 4 admitted in cross-examination that the accused persons did not cut any tree from the land of the mosque. Having drawn the attention of this Court to the evidence of P.Ws. 1 to 4, the learned Advocate submits that many civil and criminal cases are pending between the informant and the accused persons. The President, Secretary of the mosque committee, Moazzin and Imam of the mosque were not examined by the prosecution and the accused-persons were falsely implicated in the case and the prosecution failed to prove the charge against the accused-persons beyond all reasonable doubt. Both the Courts  below  failed  to  assess  and  evaluate  the  evidence  of  the prosecution witnesses in its true perspective and arrived at a wrong decision as to the guilt of the convict-petitioners. He prayed to make the Rule absolute.

Learned Deputy Attorney General Mr S.M. Golam Mostofa Tara appearing on behalf of the State submits that the raintree cut down from the mosque was recovered from the nearest sawmill and P.Ws.  1,  2  and  4  stated  that  the  accused  persons  cut  down  the raintree from the land of the mosque and the prosecution proved the charge against the convict-petitioners beyond all reasonable doubt and both the Courts below on correct assessment of the evidence convicted the accused persons. Therefore, he prayed for discharging the Rule.

I have considered the submission of the learned Advocate Mr.  Golam  Abbas  Chowdhury  who  appeared  on  behalf  of  the convict-petitioners and the learned Deputy Attorney General Mr. S.M. Golam Mostofa Tara who appeared on behalf of the State, perused the evidence, impugned judgments and orders passed by both the Courts below and the records.

On perusal of the evidence, it appears that P.W. 1 Main Uddin stated that on 22.10.2003 at 4.15 pm the accused Moyur, Abdur Rahman and Jilani cut down a raintree from the land of the mosque. P.W. 2 Akmal Ali stated that on 22.10.2003 at 4.15 the accused Muhibur Rahman, Abdur Rahman and Jilani cut down a raintree from the land of the mosque. P.W. 3 Suruj Ali stated that the accused Muhibur Rahman cut down the raintree from the land of the mosque. P.W. 4 Md. Asik Uddin stated that on 22.10.2003 at 4.15 pm the accused Muhibur Rahman and Jilani cut down a raintree from dag No. 1799 belonged to the mosque. The alleged occurrence took place on 22.10.2003 at 4.15 pm and the FIR was lodged on 02.11.2003 but no explanation has been given in the FIR as to the delay of 10 days in lodging the FIR. There is no boundary of the mosque where  from the raintree was  allegedly cut down by the accused-persons.

It reveals that the mosque was constructed on gifted land but there is no registered deed of gift. The house of the accused-persons is situated adjacent to the west side of the mosque and there is no boundary to the west side of the mosque which is an open place. During cross-examination, P.W. 4 stated that “Bp¡j£l¡ jp¢S−cl S¡uN¡ ®b−L L¢ba ®L¡e N¡R L¡−V e¡Cz jp¢Sc N¡R L¡V−m (AØfø) Ha ®m¡−Ll p¡j−e N¡R ¢e−a f¡la e¡-paÉz” During cross-examination, P.W. 3 Suruj Ali stated

that in Title Suit No. 8 of 1996 filed by the accused-persons decree was passed in favour of both parties. He could not say whether the said suit was filed in respect of dag Nos. 1799, 1803, 1802 and 3446. He could not say whether the accused persons obtained the judgment in respect of dag No. 1802 from the appellate Court. P.W.

3 also affirmed that the tree was located beside the road of the accused-persons. P.W. 1 stated that a resolution was taken by the mosque committee for lodging the FIR. The prosecution did not prove the resolution. The prosecution did not examine any members

of  the  mosque  committee  including  the  president  and  secretary. There is no specific boundary to the west side of the mosque which

is an open place and the tree was located beside the road of the accused persons. The evidence discussed hereinabove, reveals that both  civil  and  criminal  cases  are  pending  between  the  accused persons and the informant-party. 

The above evidence of the prosecution witnesses depicts that

the land where from the tree was allegedly cut down is a disputed land. The prosecution failed to prove that the raintree was cut down from the land of the mosque. Furthermore, the prosecution did not examine President Asab Ali, Secretary Gias Uddin, members of the mosque  committee,  Moazzin  and  Imam  of  the  mosque.  The witnesses examined by the prosecution are inimical to the accused persons. The informant failed to prove any document that he is the motwally  of  the  mosque.  Non-examination  of  the  President, Secretary, Moazzin, Imam and members of the mosque committee gives rise to an adverse presumption under Section 114(g) of the Evidence Act, 1872 against the prosecution.

In view of the above evidence, facts and circumstances of the case and proposition, I am of the view that the prosecution failed to prove  the  charge  against  the  convict-petitioners  beyond  all reasonable doubt. The Courts below failed to assess and evaluate the evidence of the prosecution in its true perspective and arrived at a wrong decision as to the guilt of the convict-petitioners.     

I find merit in the Rule.

In the result, the Rule is made absolute.

The  impugned  judgments  and  orders  of  conviction  and sentence  passed  by  both  the  Courts  below  against  the  convict- petitioners Muhibur Rahman Moyur, Abdur Rahman (Abdul) and Zilani are hereby set aside.

However, there will be no order as to costs.

Send down the lower Court’s records at once.