IN THE SUPREME COURT OF BANGLADESH

APPELLATE DIVISION

PRESENT

Mr. Justice Md. Muzammel Hossain,

                                       Chief Justice

Mr. Justice Surendra Kumar Sinha

Mr. Justice Md. Abdul Wahhab Miah Ms. Justice Nazmun Ara Sultana Mr. Justice Syed Mahmud Hossain Mr. Justice Muhammad Imman Ali

CRIMINAL APPEAL NO.23 of 2011

 (From the judgment and order dated

28.08.2008 passed by the High Court Division in Death Reference No.150 of 2004 heard along with Criminal Appeal No.4739 of 2004, Criminal Appeal No.4740 of 2004, Jail Appeal No.118 of 2006 and Jail Appeal No.597 of 2007 accepting the death reference in part and allowing the appeals.)

The State                      .............Appellant         =Versus=

Dafader Marfoth Ali Shah and others .......Respondents For the Appellant    : Mr. Mahbubey Alam, Attorney

General with Mr. M. K. Rahman, Additional Attorney General, Mr. Momtazuddin Fakir, Additional Attorney General with Mothahar Hossain Saju, Deputy Attorney General, Mr. Bishwajit Deb Nath, Deputy Attorney General, Mr. Ekramul Haque, Deputy Attorney General with Mr.

Md. Masud Hasan Chowdhury, Assistant Attorney General, Mr. Shaikat Basu, Assistant Attorney General, Mrs. Mahfuza Begum, Assistant Attorney General and Mr. Bashir Ahmed, Assistant Attorney General instructed by Mrs. Sufia Khatun, Advocate-on-Record.

Government Chief Prosecutor: Mr. Anisul Huq, Senior

Advocate with Mr. Nurul Islam Sujan, Advocate and Mr. Sheikh Fazle- Noor-Taposh, Advocate as Government-Prosecutor.

As State Counsel to defend

the respondents

(appointed by the Court)   : Mr. Abdullah-Al-Mamun,

Advocate.

Date of hearing: 15.01.2013, 22.01.2013, 23.01.2013,

29.01.2013, 30.01.2013, 12.02.2013, 13.02.2013, 19.02.2013, 26.02.2013, 27.02.2013, 16.04.2013, 17.04.2013.

Date of judgment   : 30.04.2013.

J U D G M E N T

Md. Muzammel Hossain, C.J.- I have gone through the separate judgments prepared by Surendra Kumar Sinha, J. and Nazmun Ara Sultana, J. I agree with the reasoning and findings given by Nazmun Ara Sultana, J.

C.J.

Surendra Kumar Sinha, J: I have had the privilege of reading the draft copy of the judgment prepared by my learned sister Nazmun Ara Sultana, J. While I fully endorse her view that ‘the accused persons made a conspiracy to kill the four Awami League leaders inside the jail and in pursuance of that conspiracy accused Risalder Muslem Uddin, the present accused respondents Dafader Marfoth Ali Shah and L.S. (Dafader) Abul Hashem Mridha along with two other army personnel’ perpetrated the killing in the Dhaka Central Jail on the night following 2nd November, 1975 at around 4 a.m, I am however, unable to endorse her opinion in the operating part of the judgment restoring the respondents conviction passed by the trial court under sections 302/34 of the penal code and her findings that ‘The trial Court, therefore, rightly convicted’ the respondents. I also fully agree with my learned sister with her concluding opinion that the High Court Division erred in law in acquitting respondents. Since my learned sister has extensively discussed the evidence on record, I will discuss the evidence shortly which are necessary in support of my opinion.

A prison is a place in which people are physically confined and usually deprived of a range of personal freedoms. Incarceration in prison is a legal penalty that may be imposed by the Courts for the commission of a crime. Other terms used as penitentiary, correctional facility, remand centre, detention centre, and a gaol or jail. A prison system is the organizational arrangement of the provision and operation of prisons. A prison may also sometimes be used as a tool of political repression to detain political prisoners, prisoners of conscience and enemies of the state, particularly by authoritarian regimes. In times of war or conflict, prisoners of war may also be detained in prisons. The use of capital punishment began to decline in the late 18th century, the prisons are increasingly used by courts as a place of punishment, eventually becoming the chief means of punishing serious offenders. The concept of the prison as a penitentiary (as a place of punishment and personal reform) was advocated by the English jurist and philosopher Jeremy Bentham, among others. Confinement of criminals came to be viewed as an ideal, because it was thought that solitude would help the offender to become penitent and that penitence would result in rehabilitation.

Prisons are normally surrounded by fencing, walls, earthworks, geographical features, or other barriers to prevent escape. Multiple barriers, concertina wire, in some cases electrified fencing, secured and defensible main gates, armed guard towers, lighting, motion sensors and roving patrols may also be present depending on the level of security. There are a number of accepted reasons for the use of imprisonment. One approach aims to deter those who would otherwise commit crimes (general deterrence) and to make it less likely that those who serve a prison sentence will commit crimes after their release (individual deterrence). A second approach focuses on issuing punishment to, or obtaining retribution from those who have committed serious crimes. A third approach encourages the personal reform of those who are sent to prison. Finally, in some cases it is necessary to protect the public from those who commit crimes-particularly from those who do so persistently. Although prisons are intended to be institutions where good order prevails, but it is also possible that in certain circumstances the discipline may break down. It is the responsibility of prison administrators to ensure that each arriving prisoner understands what type of behaviour is expected and what acts are forbidden. On top of everything, their personal security is ensured by the State itself. In addition, there must be a clear set of disciplinary sanctions for acts of indiscipline.

The modern prison system was born in London, influenced by the utilitarianism of Jeremy Bentham. Bentham’s panopticon introduced the principle of observation and control that underpins the design of the modern prison. The notion of prisoners being incarcerated as part of their punishment or detention for the time being and simply as a holding state until trial or hanging or imprisonment was at the time revolutionary. This is when prisons had begun to be used as criminal rehabilitation centers.

Political prisoners are not treated as under- trial prisoners nor are they treated as convicted persons. They are kept in prison for alleged violation of prejudicial acts. They are kept separately without mixing with other prisoners. Their status is much higher than an ordinary civilian prisoner. It is the responsibility of the prison authority to ensure their safety and security. Even during medieval period it was inconceivable that a prisoner could be brutally killed by the authority in power. It is always treated

as the safest place for all kinds of prisoners and detainees. This has been not only proved untrue in the case in hand, the governments in power instead of putting the killers to justice rewarded them.

After the killing of Sheikh Mujibur Rahman, the entire nation was maimed to hear the news of the killing of Syed Nazrul Islam, Tajuddin Ahmed, Captain Monsur Ali and M. Kamruzzaman in their prison cells in the Dhaka Central Jail. The authority remained unmoved and indifferent. Being impelled by conscience, Kazi

Abdul Awal (P.W.1), the DIG (Prisons) Dhaka Central Jail, lodged an FIR on 4th November, 1975, being Lalbagh P.S. Case No.11 dated 4th November, 1975, taking risk of his life as the authority in power wanted to suppress the real incident of the killing. He stated that realizing the hatefulness and barbarism and the gravity of the incident, he himself lodged the FIR instead of allowing the Jailor to lodge the same. No investigation was held over the said incident to unearth the names of the assailants, their purpose and intention of the killing. The investigation of the case was postponed sine die by the order of the Government as revealed from the statement of Abdul Kahar Akond (P.W.64). The reason is obvious from all corners the fingers were pointing towards Khandaker Mustaq, his security team deputed at Bangabhaban and his followers as the killers. These killers were staying with Khandaker Mustaq in Bangabhaban forming his security team and associates to consolidate power for running the country.

In 1996, when the Awami League, the political party to which these national leaders belonged, formed Government, revived the case. P.W.64 could not trace out the original FIR. Ultimately, he colleted the true copies thereof from two places, one from the Dhaka Central Jail, ext-1 and the other from the judicial record of the Inspector General of Police, ext-3. In due course, he submitted the charge sheet on 15th October, 1998, against the respondents and 18 others. The learned Sessions Judge, Dhaka, received the case record for trial on 24th November, 1998. All 20(twenty) accused including the respondents stood charged under sections 120B and 302/109 of the Penal Code. Accused Moslemuddin was also separately charged under section 302 of the Penal Code. Most of the accused persons including the respondents remained in abscondence. They were tried in absentia. The trial Court as well as the High Court Division, believed the incident of killing but disbelieved the claim of P.W.1 that exts-1 and 3 are the true copies of the FIR. Despite that, the trial Court convicted 15 accused persons including the respondents in absentia and sentenced some of them to imprisonment for life under sections 302/109 of the Penal Code and the respondents with Moslem Uddin @ Moslem Uddin @ Heron Khan @ Moslem Uddin Khan to death under sections 302/34 of the Penal Code. All the accused persons were found not guilty of the charge of conspiracy under section 120B of the Penal Code and acquitted of the said charge.  

Abdus Samad Azad (P.W.10) was a political prisoner with these leaders during the relevant time stated that after the killing of Sheikh Mujibur Rahman along with his family members on 15th August, 1975, Khandaker Mustaq Ahmed declared himself as President. On 23rd August, 1975, he was arrested by the police and taken to the Police Control Room. On reaching there, he found late Syed Nazrul Islam, late Kamruzzaman, late Tajuddin Ahmed and late Captain Monsur Ali and at 12.30 noon, they were taken to the Dhaka Central Jail. Md. Nasim (P.w.14), son of late Monsur Ali stated that the killers of Sheikh Mujibur Rahman, namely Khandaker Mustaq, Col. Rashid, Col. Faruq and others took his father into the Dhaka Central Jail and there, they killed his father along with Syed Nazrul Islam, Tajuddin Ahmed and Kamruzzaman.

P.W.14 stated that on hearing the news on radio about the killing of Sheikh Mujibur Rahman; the usurpation of power by Khandaker Mustaq and the declaration of Martial Law, he was puzzled for the safety and security of his father as his father was then the Prime Minister of Bangladesh. He shifted his

father to a house adjacent to his father’s official residence. Then he shifted his father to the house of his maternal uncle Mahbubul Alam at Eskaton at noon. In the meantime Khandaker Mustaq wanted to know the whereabouts of his father. In late evening, the army personnel came in the area. On hearing the news over radio about the formation of the Government by Khandaker Mustaq his father became nervous. Then he shifted his father at night to the residence of a security staff of his father at T & T Colony. Sometimes thereafter, Shah Muazzem Hossain and Obaidur Rahman came to their Eskaton residence and wanted to know the whereabouts of his father. There was exchange

of hot words with them. They told him that they were apprehensive of his father’s security and they wanted to take him at a secured place for which they wanted to talk with him. They took Monsur Ali to Bangabhaban and there, Khandaker Mustaq offered him to become the Prime Minister. Monsur Ali refused the proposal disdainfully. Then Khandaker Mustaq Ahmed threatened him stating that if he did not accept the proposal, he would face similar fate like the one of 15th August. His father came back and on 22nd August he was arrested.

AHS Hasanuzzaman (P.W.31) stated that after taking late Kamruzzaman into jail, he along with Kamruzzaman’s wife used to meet him in jail. During the relevant time Kamruzzaman was the party’s chief and Sheikh Mujibur Rahman was the President of the country. Khandaker Mustaq earlier requested Kamruzzaman to support him for the post of Prime Minister but Kamruzzaman instead supported Monsur Ali for the office of Prime Minister. So, Khandaker Mustaq was displeased towards Kamruzzaman for not supporting him and the latter was apprehensive that Khandaker Mustaq would take revenge for not supporting him. When these leaders were in such detention, they were brutally killed on 3rd November, 1975.

P.W.36 stated that after the killing of Sheikh Mujibur Rahman, the army cordoned their residence and an officer told that all members of the family were put under house arrest. They snapped the telephone link. At 1.30 in the night, Major Dalim with an accomplice came and wanted to know what problem they were then facing. Her father being enraged abused him. On 23rd August, 1975, in the morning, the police took her father with them. Then she came to know that her father was kept in the Dhaka Central Jail. Towards mid October, 1975, she along with her mother went to meet her father in Dhaka Central Jail, when the latter told them that the country was heading towards a direction in which the pro-liberation forces would not be allowed to survive by the new regime.

Admittedly, these four leaders were the architects of the liberation of the country and presented to the people the fruits of liberation within a shortest period of time. They organized the unarmed young and adolescent boys to become freedom fighters for liberating the country and fought against an organized Pakistani army equipped with modern sophisticated arms, collected arms for them for fighting with them and convinced the world leaders that they were fighting for political, social and economic independence from the oppressive Government. These leaders were arrested and detained in prison only because they did not give allegiance to the usurpation of power by Khandaker Mustaq Ahmed and refused to join his Government.

The object and purpose behind the killing of the said four leaders are discernible from the testimonies of P.Ws.10, 14 and 36. These leaders not only refused to give allegiance to Khandaker Mustaq’s usurpation of power but also refused to join his Government. Naturally, Khandaker Mustaq was not only harbouring hatred towards them, but also realised that these leaders were thorns in his way to run the Government peacefully, and if they were kept alive, they might have mobilized the workers of Awami League after coming out from the prison in future. It is also an undisputed fact that Khandaker Mustaq came to power by killing Sheikh Mujibur Rahman with the help of some aberrated army officers, most of them were involved in the said killing. The evidence on record revealed that the killers of Sheikh Mujibur Rahman were deployed for the security of Khandaker Mustaq Ahmed and stayed with him in Bangabhaban. These are historical facts and the court can take judicial notice of these facts.

Courts can take judicial notice of the ordinary course of events. That a matter is judicially noticed means that it is taken as true without the necessity of being formally proved on evidence. Taylor in his Law of Evidence states that a man is not the father of a child, where non-access is already proved until within six months of the woman’s delivery. Nor is it necessary to prove the course of the heavenly bodies, or the like, that a matter is judicially noticeable means that it is taken without offering of evidence by the party who should ordinarily have done so. This is because the court assumes that the matter is so notorious that it will not be disputed. A proclamation of emergency is a matter of general information of which a court can take judicial notice. A matter of public history may be such a fact (Wigmore section 2567). Facts of which judicial notice may be taken are not limited to those of the nature specifically mentioned in clauses (1) to (13) of section 57 of the Evidence Act.

In the penultimate paragraph of section 57 of the Evidence Act it is stated that “If the court is called upon by any person to take judicial notice of any fact, it may refuse to do so unless and until such person produces any such book or document as it may consider necessary to enable it to do so”. This paragraph does not say whether the court may or may not take notice of any fact, nor does it say or mean that the court shall or may take judicial notice of every matter which comes under the head of description given there. It merely provides that when the court does take judicial notice of the fact of which it is bound to take judicial notice under clauses (1) to (13), then it may refer to appropriate books of reference about those facts. Though the matters of history, literature, science and art are not mentioned in section 57 as matters of which the court may take judicial notice, section 57 is not exhaustive of the facts of which the court may take judicial notice. This paragraph is in accordance with English law, so far as it enables the court to refer the appropriate books or documents of reference upon matters. It is directed to take judicial notice of it in advance of such law, in so far as it permits the court to refer to such books and documents on matters of public history, literature, science or arts.

Besides those matters, there may be other facts which are considered too notorious to require formal proof; such matters are, therefore, “judicially noticed”. ”Any matter of such common knowledge that it should be an insult to intelligence to require proof of it would probably be dealt with in this way (Cockle’s Cases and Statutes on Evidence, Eighth Edition, page 13)”. Of them, historical facts, geographical truths, scientific inventions, socio- economic conditions at a given time, natural phenomena, axiomatic truth, common affairs of life in general knowledge of people, religious history and prevalence of a religious belief and distinction between ideas of two sects. The courts can take judicial notice of partition of India, the communal disturbance at that time and the consequent insecurity of lives and property of Muslims in India and Hindus in Pakistan and their migration to India and Pakistan etc. (Shiv Nath V. Union of Indai, AIR 1965 SC 1666).

In Onkar Nath V. Delhi Administration, AIR 1977 S.C. 1108, Onkar Nath, a Railway employee was convicted by a Magistrate and his conviction was upheld by the appellate Court and the High Court in revision. His conviction was under the provisions of the Defence of India Rules, 1971. The allegation against him is that in violation of the prohibition, the appellant who was a leader of the Railwaymen’s Union held a meeting in the Railway yard inciting Railway workers to go on strike from May 8, 1971. The Supreme Court held that facts mentioned in Section 57 of the Evidence Act were not exhaustive and the purpose of this section is to provide that the Court shall take judicial notice of certain facts rather than exhaust the category of facts of which the Court may in appropriate cases take judicial notice. Recognition of facts without formal proof is a matter of expediency and no one has ever questioned the need and wisdom of accepting the existence of matters which are unquestionably within public notice. “Shutting the judicial eye to the existence of such facts and matters is in a sense an insult to the commonsense and would tend to reduce the judicial process to a meaningless and wasteful ritual. No Court therefore insists on formal proof, by evidence, of notorious facts of history, past or present. The date of poll, the passing away of a man of eminence and events that have rocked the nation, need no proof and are judicially noticed. Judicial notice in such matters, takes the place of proof and is of equal force. In fact, as a means of establishing notorious and widely known facts it is superior to formal means of proof”, the court observed. Accordingly, the supreme Court held that the Courts below were justified in assuming without formal evidence the Railway strike was imminent on May 5, 1974, and that a strike paralysing the civic life of the nation was undertaken by a section of workers on 8th May, 1974.

Similarly the general election of Pakistan held in 1970 is a landmark in the history of struggle for the right of self-determination of the people of

erstwhile East Pakistan is a historical fact and the court can take its’ judicial notice. In the said election Awami League appeared as a single majority party of the National Assembly of Pakistan for the purpose of framing a Constitution so as to ensure the political, social and economic right of the people of East Pakistan. The historical speech of Sheikh Mujibur Rahman on 7th March, 1971, at Race Course Maidan which inspired the people to participate in the struggle for national liberation; the declaration of Independence of Bangladesh on the night following 25th March, 1971, when the Pakistani Army cracked down and committed genocide, rape, arson and crime against peace and humanity; the elected representatives declared and constituted Bangladesh to be a sovereign Peoples Republic on 10th April, 1971, and formed the Government and took oath on 17th April, 1971, at Mujibnagar with the national four leaders, namely, late Syed Nazrul Islam as Acting-President, late Tajuddin Ahmed as Prime Minister, late M. Monsur Ali as Finance Minister and late M. Qamruzzamman as Home and Relief & Rehabilitation Minister are historical facts and the Court can take judicial notice of them.

The constitution of the ‘Constituent Assembly’, the drafting of the Constitution of the Peoples Republic of Bangladesh and adopting it on 4th November, 1972, which came into force on 16th December, 1972, the killing of Sheikh Mujibur Rahman and his family members on 15 August, 1975, by some aberrated army officers; the usurpation of power by Khandaker Mustaq Ahmed after killing Sheikh Mujibur Rahman; the arrest of four national leaders and keeping them in the Dhaka Central jail as they refused to give allegiance to Khandaker Mustaq’s Government and also refused to join his cabinet; the killing of these four national leaders Syed Nazrul Islam, Tajuddin Ahmed, Monsur Ali and M. Kamruzzaman while they were kept as political prisoners in Dhaka Central Jail in the early hours of 3rd November, 1975, when Khandaker Mustaq Ahmed was the President of the country are so notorious facts that those cannot be disputed by any body and if any one disputes these historical events, he will be taken or treated as a person not believing the history behind the sacrifice of millions of martyrs for the liberation, and the sovereignty of Bangladesh.

The trial Court committed a fundamental error in convicting the respondents along with 13 others under sections 302/109 of the Penal Code and also convicting the respondents along with Moslem Uddin under sections 302/34 of the Penal Code for the self same incident of murders. This shows that the trial Court was totally confused in the application of an offence of abetment of murder and sharing of common intention by two or more accused persons in the commission of murder in a case. The accused persons cannot be convicted for these two categories of offence for the commission of the self same incident of murders. One or more accused persons can be convicted for the abetment of the offence and the others for sharing common intention. Either they could be convicted under sections 302/109 or under sections 302/34 of the Penal Code if there are legal evidence in support of either of the charges but they could’t be convicted on both counts for the same offence of murders committed in course of the same transaction. The High Court Division has totally overlooked this glaring mistake and opted not to express any opinion either due to its ignorance or through inadvertence. In arriving at the conclusion of finding them guilty of those charges, it made inconsistent findings. On perusal of the judgment one can legitimately infer that the learned Judge is a novice judicial officer whose conception in criminal laws is very poor.

An abetment is an instigation to a person to do an act in a certain way or aid some other persons in doing an act. It is a preparatory act and connotes active complicity on the part of the abettor at a point of time prior to the actual commission of the offence. To constitute abetement the person must instigate any person to do a particular thing or he must engage with one or more persons in any conspiracy for the doing of that thing or intentionally aids by any act or illegal omission, the doing of that thing. These are the three essential ingredients to constitute abetement as crime. Section 109 is concerned only with the punishment of abetment and lays down nothing more than that if the Penal Code has not separately provided for the punishment of an abetment as such, then it is punishable as provided for the original offence. This section may be attracted even if the abettor is not present when the offence abetted is committed provided that he has instigated the commission of offence or has engaged with one or more persons in a conspiracy to commit an offence and pursuant to that conspiracy some acts or illegal omission takes place or has intentionally made it possible of the commission of an offence by an act or illegal omission.

It is to be noted that in order to implicate a person of an offence as abettor it has to be proved the actus reus he has abetted with the necessary mens rea. To establish the charge of abetement there must be evidence that an act was abetted and that it was abetted by the person charged with. The act abetted must, moreover, amount to a crime, and in order to connect the abettor with the crime, it is not sufficient to prove that he had taken part in those steps of the transaction which are innocent, but it must also be proved that he had deliberately taken part in those steps of the transaction which constituted an offence. Section 109 may be attracted even if the abettor is not present when the offence abetted is committed, provided that he has instigated the commission of the offence or has engaged with one or more other persons in a conspiracy to commit an offence and pursuant to that conspiracy some act or illegal omission takes place or has intentionally aided the commission of an offence by illegal omission.

Section 34 of the Penal Code embodies the principle of joint liability in doing of a criminal act, the essence of that liability is the existence of a common intention. Section 34 deals with the doing of separate act or acts, similar or diverse, by two or more persons, if done in furtherance of a common intention, each person is liable for the consequence of those as if he had done those himself for ‘that act’ and ‘the act’ in the latter part of the section must include the whole section covered by a ‘criminal act’ in the first part because they refer to it.

Section 34 of the Penal Code does not create a substantive offence. If two or more persons intentionally do a thing jointly, it is just the same as if each of them has done it individually. Common intention requires a prior consent or concert or a pre-planning. It is the intention or  mens rea to commit the offence and the accused can be convicted only if such an intention has been shared by all of them. Such a common intention should be anterior in point of time to the commission of the crime, but may also develop at the instant when such crime is committed.

It is difficult, in the premises, if not impossible, to procure direct evidence of such intention. It is similar to that of criminal conspiracy. In most cases, it has to be inferred from the acts or conduct of the accused and other relevant circumstances. So, mere accompanying the other accused may not infer common intention. Existence or otherwise of common intention depends upon facts and circumstances of each case. The intention of the principal offender and his companions to deal with any person who might intervene to stop the quarrel must be apparent from the conduct of the persons accompanying the principal offender. Evidence regarding development of common intention to commit an offence graver than the one originally designed, during execution of the original plan, should be clear and cogent. In this connection reference may be given to the cases of Dharam Pal V. State of Haryana, AIR 1978 S.C. 1492 and Abdur Rahman Mondal V. State, 29 DLR (SC) 247.

In Dharam Pal, it was observed that the common intention to commit an offence is graver than the one originally designed may develop during the execution of the original plan, that is to say, during the progress of an attack on the person who is intended to be beaten but the evidence in that behalf should be clear and cogent beyond suspicion, however strong, cannot take place of the proof which is essential to bring home the offence of the accused. In Abdur Rahman, (supra) Ashanuddin Chowdhury,J. observed ‘The common intention to bring about a particular result may well develop on the spot as between a number of persons. All that is necessary is either to have direct proof of prior concert or proof of circumstances which necessarily lead to that inference or incriminating acts must be compatible with the innocence of the accused and incapable of explanation on any other reasonable hypothesis. Further, it is essence of section 34 that the person must be physically present at the actual commission of the crime’.(Italics supplied).

The conduct or act of the accused can be gathered and the inference can only be drawn by the manner in which the accused or some of them, arrived on the scene and mounted the attack, the determination and the conduct with which the beating was given or the injuries caused by one or some of them, the acts done by others to assist those causing the injuries caused by one or some of them, the acts done by others to assist those causing the injuries, the concerted conduct towards one goal which matter. It is the totality of the circumstances to be taken into consideration in arriving at the conclusion whether the accused had a common intention to commit an offence with which they could be convicted. It is, therefore, established principle that the pre-arranged plan or even the intention may develop on the spot leading to the commission of the offence. But the crucial circumstance is that the said plan must precede the act constituting the offence. Therefore, before convicting an accused, the court must come to a definite conclusion that the said person had a prior concert with one or more persons for committing the offence.

The dominant feature of section 34 of the Penal Code is the element of participation in the entire canvas portraying the actions. The views taken in Abdur Rahman Mandal (supra) have been approved by this Division in a subsequent case in Major Md. Bazlur Huda

V.  State, ADC vol.VI(A)1. In that case, Sultan Shahriar was not present at or near the place of occurrence–he was at the Radio Station when Sheikh Mujibur Rahman and other members of his family were killed. On behalf of the accused his conviction under sections 302/34 of the Penal Code was challenged on the ground that in view of the admitted fact of his absence at the place of occurrence, his act of participation in the killing does not come within the ambit of section 34 of the Penal Code in the absence of any overt act or any other act of participation in the killing. It was also urged that in order to bring him within the ambit of sharing common intention with other accused persons his participation with other perpetrators in the scene of crime in pre-concerted or pre-arranged plan must be proved. In this connection this Division considered the cases of Barendra Kumar Ghose V. Emperor, AIR 1925 P.C.1, Shreekantiah Ramayya Muni Palli V. State of Bombay, AIR 1955 S.C. 287, Tukhram Gonopat V. State of Maharashtra, AIR 1974 S.C. 514, Jaikrishna Das Monohordas Desai V. State of Bombay, AIR 1960 S.C.889, Ramaswami V. State of T.N. AIR 1976 S.C. 2027, Abdur Rahman Mondal V. State, 29 DLR (SC) 247, Bangladesh V. Abed Ali, 36 DLR (AD) 234, Abdus Samad V. State 44 DLR (AD) 233 and State V. Tajul Islam, 48 DLR 305 and held by majority that in order to bring an accused within the ambit of section 34 of the Penal Code, the presence of the accused at

the scene of occurrence must be proved and that his participation, that is to say, overt act either direct or indirect in the commission of the offence in furtherance of the common intention of all must also be proved.

Apart from the above, it is to be noted that there are distinguishing features in the applicability of vicarious or joint liability in offences of physical violence and other offences. Sometimes we ignore the difference and in some cases it is held that though the dominant feature is the element of participation in actions, this participation need not in all cases be by physical presence. This Division approved the distinction drawn by the Supreme Court of India in Monohardas Desai (Supra) and Ramaswami Yanangar’s (supra) in cases regarding the applicability of section 34 of the Penal Code in respect of offences of physical violence and other offences in Major Bazlur Huda (supra). It is stated that in offences of physical violence, the presence of accused at the scene or, at or nearer to the scene of occurrence is necessary for rendering him liable on the principle of joint liability. The trial Court has totally ignored the applicability of sections 109 and 34 in a given case. The High Court Division ought to have expressed its opinion in this regard.

The offence of murder committed in consequence of a conspiracy and the offence of murder committed in pursuance of common intention by more than one accused persons are in essence, as discussed above, distinct. A criminal conspiracy differs from other offences, that is to say, an intention to do a criminal act is not a crime in itself, until something is done amounting to the doing or attempting to do some act, to carry out the intention; conspiracy on the other hand consist simply in the agreement confederacy to do some act. In a criminal conspiracy, accused persons are often required to do various acts at various stages; even if for the first time they come into conspiracy, at a later stage they are members of the conspiracy provided their act is calculated to promote the object of the conspiracy: is attracted when an offence of culpable homicide is committed ‘in furtherance of common intention’ of two or more persons, then every one of them is as such guilty as the other and it is not necessary that every one of them should have participated in the commission of the murder to the same extent. It is thus not consonant to law that after the accused persons were found guilty of criminal conspiracy to kill the four leaders in the Dhaka Central Jail, their conviction under section 302/34 of the Penal Code passed by the trial court could be legally maintainable.

The trial court has committed another fundamental error in acquitting the accused persons of the charge of criminal conspiracy. The High Court Division also committed the similar error in maintaining the finding on the charge of criminal conspiracy. Though it maintained the death sentence of Moslem Uddin, acquitted the respondents and Syed Faruque Rahman, Sultan Shahriar Rashid Khan, Bazlur Huda and A.K.M. Mohiuddin Ahmed. On the charge of conspiracy it held that the prosecution failed to prove that the killing was perpetrated in consequence of a criminal conspiracy hatched up in Bangabhaban by Khandaker Mustaq Ahmed, the politicians staying with him and his security team deputed at Bangabhaban or that the killing was implemented and monitored from the Bangabhaban over telephone. It observed that the story of telephonic talk between Bangabahban and the Dhaka Central Jail has not been established to the hilt of the case and that “the trial court has itself evaluated rightly discarded the testimonies of the witnesses who deposed relating to the deliberations amongst the accused persons inside the Bangabhaban over the killing of the 4 leaders”. The High Court Division concluded its opinion observing that it was not possible or probable on the part of the accused persons staying at Bangabhaban “to go out of the same at 0.00 hours or afterwards on 03.11.75 because of promulgation of coup-d’etat by Khaled Mosharaff on the same night and the consequent withdrawal of Tank Regiment from Bangabhaban as also for deployment of rival forces lead by the leader of the coup, within

It was contended on behalf of the appellant that the four national leaders were brutally killed as a part of deep rooted conspiracy, which was hatched up in the Bangabhaban by Khandakar Mustaq Ahmed, with the political leaders staying with him and his security team, and there are sufficient evidence in support of the charge of criminal conspiracy both direct and circumstantial, and therefore, the High Court Division acted illegally in acquitting the respondents. On the other hand, learned counsel appearing for the respondents supports the judgment of the High Court Division and submits that the High Court Division as well as the trial court on a proper appreciation of

the evidence on record has arrived at a right conclusion that the prosecution has failed to prove the charge of conspiracy on assigning cogent reasons-

this finding being concurrent, this Division should not interfere with such finding of fact.

Both the High court Division and the trial Court fell in error in failing to notice that conspiracy is a matter of inference deduced from certain acts of persons done in pursuance of an apparent criminal purpose in common between them. In the very nature of the offence, the presence of the accused at the scene of occurrence is not necessary. Section 120A of the Penal Code defines criminal conspiracy, which enacts that when two or more persons agreed or cause to be done an illegal act or an act which is not illegal but by illegal means, such an agreement is designated as criminal conspiracy punishable under section 120B of the Penal Code. The essence of criminal conspiracy is an agreement to commit an illegal act by some persons. A criminal conspiracy by its nature is hatched up in secrecy and direct evidence to prove conspiracy is seldom available. The offence of conspiracy being a making of an agreement to do an unlawful act, it is a matter of inference to be drawn from direct or circumstantial evidence. It can be inferred from the acts and conduct of the parties in agreement of conspiracy that there was an agreement between two or more persons to do one or the other of the acts described in the section. The conspiracy consists not merely in the intention of two or more persons, but in the agreement of those persons to do such acts. So long as such a design rests only in intention, it is not punishable.

The existence of a criminal conspiracy presupposes a guilty state of mind and a situation wherein the concerned accused, pursuant to a predetermined decision, execute a series of acts that constitute a criminal offence. In such case, the acts themselves are of such a character that a participation in those would leave no doubt that the concerned accused were taking part of an offence of criminal conspiracy. Further, offences created by sections 109 and 120B of the Penal Code are quite distinct though in both, the element of conspiracy is present. There is analogy between these two sections and there may be an element of abetment in a conspiracy but conspiracy is something more than an abetment. Second clause of section 107 states that a person abets the doing of a thing who engages with one or more other persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy. So, in order to constitute the offence of abetment by conspiracy, there must be a combining together of two or more persons in the conspiracy. Secondly, an act or illegal omission must take place in pursuance of that conspiracy, and in order to the doing of that thing, it is not necessary that the abettor should concert in the offence with the persons who committed it.

Whereas, section 120A consist in a mere agreement by two or more persons to do or cause to be done, an illegal act or an act which is not illegal by illegal means. When there is an agreement to commit an offence, the agreement itself becomes the offence of criminal conspiracy. So, distinction between the offence of abetment by conspiracy and the offence of criminal conspiracy, so far as the agreement to commit an offence is concerned, lies in this criteria. Criminal conspiracy to commit an offence is itself an offence and a person can be separately charged in respect to such a conspiracy. In this connection, reference may be given in the case of Kaher Singh V. State (Delhi Admn), AIR 1988 SC 1883, in which, the distinction of these two offences have been exhaustively dealt with and disagreed with the argument that a party to a criminal conspiracy shall be punished in the same manner as if he had abetted such an offence. It was observed by K. Jagannatha Shetty,J. in paragraph 257:

“the gist of the offence of criminal conspiracy created under section 120-A is a bare agreement to commit an offence. It has been made punishable under section 120-B. The offence of abatement created under the second clause of section 107 requires that there must be something more than a mere conspiracy. There must be some act or illegal omission in pursuance of that conspiracy. That would be evident by the wordings of section 107 (Secondly): “engages in any conspiracy ..... for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy ....” The punishments for these two categories of crimes are also quite different. Section 109, IPC is concerned only with punishment abetments of for which no express provision is made under the Indian Penal Code. A charge under section 109 should, therefore, be along with some other substantive offence committed in consequence of abetment. The offence of criminal conspiracy is, on the other hand, an independent offence. It is made punishable under section 120B for which a charge under section 109, IPC is unnecessary and indeed, inappropriate.”

The distinction is that in the second clause of section 107, a mere combination of persons or agreement between them is not enough-an act or illegal omission must take place in pursuance of conspiracy and in order to doing of the thing conspired for and in the latter offence the mere agreement is enough-if the agreement is to commit an offence. Proof of a conspiracy in most cases depends on inference from the conduct of the conspirators. In Noor Mohammad Yousuf Moin V. State (1970) 1 SCC 696, the Supreme Court of India observed:

“Though there is close association of conspiracy with incitement and abetment the substantive offence of criminal conspiracy is somewhat wide amplitude than abetment by complicity as contemplated by section 107 I.P.C. A conspiracy from its very nature is generally hatched in secret. It is, therefore, extremely rare that direct evidence in proof of conspiracy can be forthcoming from wholly disinterested quarter or from utter strangers. But, like other offences, criminal conspiracy can be proved by circumstantial evidence. Indeed, in most case proof of conspiracy is largely inferential though the inference must be founded on solid facts. Surrounding circumstances and antecedent and subsequent conduct, among other factors, constitute relevant material. In fact because of the difficulties in having direct evidence of criminal conspiracy, once reasonable ground is shown for believing that two or more persons have conspired to commit an offence then anything done by anyone of them in reference to their common intention after the same is entertained becomes, according to the law of evidence, relevant for proving both, conspiracy and the offences committed pursuant thereto”. 

If the conspirator had agreed to the common

design it can be presumed that he continued to be a party of criminal conspiracy. Since offence of criminal conspiracy can be proved largely from the inferences drawn from acts or illegal omission committed by the conspirators in pursuance of a common design, as soon as a charge of criminal conspiracy is brought against accused persons the rules of evidence provided in section 10 of the Evidence Act will come into play. The condition precedent to the application of the rule laid down in section 10 of the Evidence Act is that there should exist a reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, i.e. there should be prima facie evidence that a person was a party to the conspiracy before his act can be used against his co-conspirators. There may be so many devices and techniques adopted to achieve the common goal of the conspiracy and there may be division of performances in the chain of actions with one object to achieve the real end of which every collaborator must be aware and in which, each one of them must be interested. Reference in this connection may be made to the case of Yashpal V. State of Punjab, AIR 1977 SC 2433.

Actual proof of conspiracy is not required; even some prima facie evidence leading to a reasonable belief that two or more persons had conspired together is sufficient. It is also well established that conspiracy need not be proved by direct evidence. The same may be proved from the surrounding circumstances and conduct of the accused. As to when conspiracy can be taken as established, it is now settled by judicial pronouncements that there can hardly be direct evidence on this, for the simple reason that conspiracy is not hatched up in public-by its very nature-those are secretly planned. So lack of direct evidence relating to conspiracy by the accused has no significance. It is unnecessary to prove that the parties actually came together and agreed in terms to pursue the unlawful object-there need never have been an express verbal agreement, it being sufficient that there was a ‘tacit understanding between the conspirators as to what should be done’. The relative acts or conducts of the parties must, however, be conscientious and clear to mark their concurrence as to what should be done. The concurrence cannot be inferred by a group of irrelevant facts artfully arranged so as to give an appearance of coherence. See Shiba Narayan Laxmi Narayan Joshi V. State of Maharashtra, AIR 1980 SC 439 and Noor Mohad. Yousuf (suppra).

The conspiracy being hatched up in secrecy, conspirators cannot discuss the plans in the presence of strangers. This privacy and secrecy being the elements of criminal conspiracy, it is difficult to obtain direct evidence in its proof. For a court to believe that two or more persons are members of a conspiracy, if the said condition is fulfilled anything said, done or written by any one of them in reference to their common intention will be evidence against the other; anything said, done or written by one of the conspirators should have said, done or written by him after the said intention was entertained is relevant against the 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.

It should be borne in mind that the ‘common intention’ which is a constituent of proving an offence of criminal conspiracy is different from the one ‘common intention’ used in section 34 of the Penal Code. The expression ‘common intention’ used in section 10 of the Evidence Act signifies a common intention existing at the time when the thing was said, done or written by one of the conspirators but the ‘common intention’ referred to in section 34 is doing of separate acts similar or diverse, by several persons; if all are done in furtherance of a common intention. In the light of the above discussions, it is to be looked into whether the killing of the four national leaders was planned, designed and hatched up in the Bangabhaban by the members of the security team deputed for the security of the President, the political leaders who used to stay with the President and his Military and Civilian Secretaries. On appreciation of ext.36 and other materials on record, the trial Court arrived at the conclusion that Khandaker Mustaq Ahmed, Major Rashid, Capt. Moslem and his four associates were involved in the killing.

The trial Court held that the evidence of Mahbub Uddin Ahmed (P.W.20) indicated that the army personnel perpetrated the killing and that Major Dalim was involved; that Major Rashid, Major Shariar, Major Faruq visited Dhaka Central Jail and that they were interested to know the entire episode of events in the Central Jail from Bangabhaban. However, after analysing the evidence of P.W.1, Md. Aminur Rahman (P.W.2), A.T.M. Nuruzzaman (P.W.3) Mahbbat Ali (P.W.4), Alauddin Sikder (P.W.5), Md. Ismail Hossain Khan (P.W.6), Md. Abdur Rouf (P.W.7), Md. abdul Gahir (P.W.8), Md. Nayeb Ali (P.W.9) and Kazi Abdul Alim (P.W.12), it has arrived at the conclusion that Shah Moazzem Hossain, Obaidur Rahman, Nurul Islam Monzur, Major Faruq, Major Noor, Major Aziz Pasha, Major Mohiuddin, Major Bazlur Huda, Major Sarful Ahmed, Major Shahriar, Captain Nazmul, Captain Majed, Captain Nurul Huda, Captain Kishmat Hashem, Captain Khairuzzaman, Major Rashed Chowdhury, Risalder Moslem and Taheruddin Thakur were not involved in the conspiracy of killing. This finding is self contradictory and misconceived. It failed to comprehend the elements of conspiracy and the evidence required to prove a charge of criminal conspiracy. The findings arrived at after sifting the evidence of P.W.20 and the witnesses examined from Bangabhaban, there is no doubt that all elements of criminal conspiracy to kill the four national leaders in the Dhaka Central Jail by the army officers deputed in the Bangabhaban are present in the case and that the trial court has failed to comprehend the same. The High Court Division also noticed inconsistency in the first part and the latter part of the judgment of the trial Court.

In this case the prosecution has examined 3(three) witnesses to prove the meeting of minds by all the conspirators in the Bangabhaban, that is to say, the planning, designing and implementing-they are, Md. Mokhlesur Rahman Bhuiyan (P.W.11), Md. Shakhawat Hossain (P.W.13) and Md. Manik Mia (P.W.18). To prove the previous conduct of the accused persons it has examined 4 witnesses; they are, Md. Aminur Rahman (P.W.2), A.T.M. Nuruzzaman (P.W.3), Abdus Samad Azad (P.W.10), Md. Nasim (P.W.14) and Mahbubuddin Ahmed (P.W.20). To prove the preparation and execution of the killing pursuant to the conspiracy, the prosecution has examined 8 witnesses; they are- Kazi Abdul Awal (P.W.1), Md. Aminur Rahman (P.W.2), A.T.M. Nuruzzaman (P.W.3), Md. Mokhlesur Rahman (P.W.11), Khan Mohammad Ali Alok (P.W.17), Commodore Golam Rabbani (P.W.21), Md. Yakub Hossain Khan (P.W.34), and Lt. Col. (Rtd) Anwaruzzaman (P.W.46). To corroborate them, it has also examined Md. Nayeb Ali (P.W.8), Dr. Md. Faizuddin Miah (P.W.23) and Syed Mahbub-Al-Karim (P.W.52).

Coupled with their evidence, the prosecution has also examined 7 witnesses to prove that the killing squad went from the Bangabhaban to execute the killing and after the killing they returned back to Bangabhaban. Those witnesses are, A.T.M. Nuruzzaman (P.W.3), Mahabbat Ali (P.W.4), Md. Ismail Hossain (P.W.6), Md. Shakhawat Hossain (P.W.13), Khan Md. Alok (P.W.17), Md. Manik Mia (P.W.18), and Commodore Golam Rabbani (P.W.21). The evidence of these witnesses have been corroborated by P.Ws.7, 16, 36, 37 and 46. In support of the circumstantial evidence, the prosecution has examined P.Ws.2, 3, 10, 20, 21, Captain A.M.M. Saifuddin (P.W.26), Oliur Rahman (P.W.28), Col. Safayat Jamil (P.W.29), Shamsher Mobin Chowdhury (P.W.33) and Md. Mostafa (P.W.63). Some of these witnesses, i.e. P.Ws.26, 28, 29, 33 and 63 also proved the subsequent conducts of the conspirators.

It is argued on behalf of the respondents that the evidence on record indicated that since 2nd November, 1975, the telephone connection of Bangabhaban was snapped-so, the prosecution story that the conspiracy was hatched up in Bangabhaban and that Khandakar Mustaq Ahmed, Rashid and Faruq compelled the Inspector General (Prisons)(P.W.3) to co-operate the army personnel sent from the Bangabhaban for implementing the killing is an unbelievable story. In this connection, the learned counsel has drawn our attention to the evidence of P.Ws.21 and 29 and the conclusions arrived at by the High Court Division.

The High Court Division approved the finding of the trial Court holding that it had rightly discarded the evidence of P.Ws.1-3 as not trustworthy witnesses. Similarly, it discarded P.Ws.4 and 5 on the reasoning that their evidence do not disclose the complicity of the accused persons other than Moslem Uddin. It also discarded P.W.6 on the reasoning that he did not disclose the name of any of the accused persons. It also discarded the evidence of P.W.7 on the reasoning that he had not seen the incident and also discarded the evidence of P.Ws.8, 9 and 10 on the reasoning that they did not disclose the complicity of other accused persons. The High Court Division disbelieved other witnesses along with Md. Yaqub Hossain (P.W.24) on the reasoning that they are not trustworthy witnesses. So, practically the High Court Division has discarded all the prosecution witnesses by ascribing this or that reason apparently without any sound reasoning and thus, this reasonings lack legal foundation. Even then, it maintained the conviction of Moslem Uddin alone-in the one breath it observed that, there is inconsistency in the judgment of the trial Court, and on the other, it itself made inconsistent findings and observations while maintaining the conviction of accused Moslem Uddin. This inconsistency has reflected in its ultimate conclusion in finding the respondents not guilty of the charge. It has illegally given them the benefit of doubt.

While disbelieving the charge of conspiracy, the High Court Division after assessing the evidence of P.Ws.29 and 46 came to the conclusion that “it is very much doubtful as to whether there was at all any telephone link in operation between Bangabhaban and any other part of the city like Central Jail, Dhaka. It is also evidence from the deposition of the witnesses that on the night following 02.11.1975 from 12.00 midnight to 1 a.m. the inmates of Bangabhaban had received the message that their rival force had already been deployed within the vicinity of Bangabhaban and the tanks meant for guarding Bangabhaban had already been withdrawn by their rival force ...... Under the circumstances, the telephonic conversations from Bangabhaban to Central Jail as disclosed by the witnesses is very much difficult to be believed. Moreover, we find no reason to disagree with the learned Sessions Judge who after thorough analysis of their depositions found the testimonies of P.Ws.11, 13, 16, 17, 18 and 34 as unworthy of credence in the first part of his impugned judgment although he has contradicted his own findings at the latter part of the same judgment’.

It failed to notice that identification of all the accused persons in the scene of occurrence or the disclosure of the names of all the accused persons by all the witnesses is not at all relevant and necessary to prove a charge of conspiracy. It failed to notice that a conspirator is an agent of his associates in carrying out the object of conspiracy. So, if the element of constitution of conspiracy is present, all conspirators will be equally responsible for the commission of the offence. There was no disruption of the Bangabhaban’s telephone link and the High Court Division on a piecemeal consideration of those two witnesses has arrived at such conclusion over which I will discuss below. Assuming that the telephone link was disconnected, that itself is not a legal ground to disbelieve the charge of conspiracy. Because, before giving the direction over telephone from Bangabhaban,

it is found from the evidence of the witnesses that some of the conspirators supervised the arrest of the leaders and tried to compel them to join the Mustaq’s cabinet, and when they failed to achieve their goal, they put the leaders in detention. It has also been proved that before the directions were given from the Bangabhaban over phone, there were meetings amongst the conspirators in the Bangabhaban. There are other circumstantial evidence also to link this fact of meetings with the killing as will be evident from the evidence of P.Ws.10, 14, 20, 31 and 36 as discussed above.

P.W.11 was an employee of President’s Secretariat. He was the Personal Assistant of the Millitary Secretary to the President. He stated that on the night following 2nd November, 1975, at about 7.30 p.m., Captain Moslem came to his room and took him into a room on the first floor and in that room he saw the respondents with other accused persons; that they were discussing about Syed Nazrul Islam, Tajuddin Ahmed, Capt. Monsur Ali and Kamruzzaman; that Major Dalim and Major Rashid wanted to know from him whether he had Dhaka Central Jail’s telephone number and then they directed him to supply I.G. (Prisons) and D.I.G. (Prisons) official telephone numbers, the Jailor’s residence and official telephone numbers; that he supplied their phone numbers and at that time, they were discussing that the task had to be finished within the same night; that they were quering over telephone about the exact location of the cells where the said leaders were kept in the Dhaka Central Jail; that at that time, he was asked by Major Shahriar to leave the room and stay in his room until further order; that at about 9 p.m. the President’s Secretary called him in his office and on reaching there, he found some other persons sitting there and at that time, the defence secretary was talking over telephone regarding the said four political prisoners and, thereafter, the secretary and those persons went to President’s bed room; that in the morning he came to know that the four leaders were killed in the Dhaka Central Jail and that on following morning, he came to know that the said accused persons who were staying in Bangabhaban had gone abroad.

This witness stated in unequivocal terms that the respondents along with other accused persons were discussing about the four national leaders detained in the Dhaka Central Jail preceding the incident secretly in Bangabhaban. This statement has not been challenged by the defence. This witness also stated that Major Faruq was talking over phone with the Dhaka Central Jail regarding the four national leaders and the defence had not challenged the statement. Therefore, there are uncontroverted evidence that the officers under whom the respondents were deployed were discussing in a room in Bangabhaban regarding four national leaders; that they had contacted the jail authorities through the telephone number supplied by him; that on the same night the leaders were killed in the central jail and that on the following day army officers staying in Bangabhaban left the country.

P.W.13 was a Khedmodker (butler man) of Bangabhaban. He stated that he was in Bangabhaban on 20th August, 1975 and in course of his duties he was acquainted with Major Rashid, Major Faruq Rahman, Major Shahriar, Major Dalim, Major Bazlul Huda, Major Rashed Chowdhury, Major Sharful, Major Mohiuddin, Major Aziz Pasha, Captain Majed, Marfat Ali, Abul Hashem Mridha, Mahbub Alam Chashi, Taher Uddin Thakur; that they were usually discussing with Khandaker Mustaq; that Taheruddin Thakur and Mahbub Alam Chashi were staying with him since Khandaker Mustaq’s family was not staying at Bangabhaban; that on 2nd November, 1975, he came for duty at 2 p.m. and noticed the movements of the army officers with some other unknown persons in the Bangabhaban which appeared to him abnormal; that at 7.30 p.m. he found that the officers were holding meeting in Rashid’s room on the 1st floor; that at 12.30 midnight Major Rashid and other army officers including Taheruddin Thakur and Chashi were holding meeting in the President’s meeting room; that as desired he served tea to them and at that time Khandaker Mustaq was quering to Rashid about the persons who would go to jail and in reply Rashid told that Captain Moslem Uddin and his team would go; that Major Rashid told him to serve dinner to Moslem Uddin; that he went to Moslem Uddin’s room on the ground floor to serve dinner and at that time, the latter refused to take dinner; that Captain Moslem Uddin brought out a bottle of alcohol from the almirah and asked him to serve; that at that time two other persons in civil dress and two lower ranked army personnel were present with him and they jointly consumed alcohol; that at about 3 a.m. he noticed that Captain Moslem Uddin, one person dressed with plain cloth, the respondents and 2/3 other lower ranking army personnel went out of Bangabhaban in a millitary jeep; that thereafter, he along with P.W.18 went in the dining room for taking rest; that at about 6 a.m. Major Bazlul Huda woke him up and directed him to serve breakfast to all persons in the first floor; that he served breakfast to all the army officers and personnel who were then discussing among themselves; that Major Rashid was quering about the fate of 4 leaders staying in the central jail and in reply, Moslem Uddin replied that he finished the job assigned to him; and that from their discussions he learnt that the four national leaders were killed by Moslem Uddin and his team in the Dhaka Central Jail. The statement that at about 3 a.m. the respondents, Captain Moslem

Uddin and some other persons left Bangabhaban with an army jeep has not been challenged by the defence.

P.W.18 is another Khedmodker of Bangabhaban. He claimed that as he was employed at Bangabhaban from before the killing of Sheikh Mujibur Rahman; he noticed the presence of Major Rashid and other officers in the Bangabhaban in course of his duties; that Mahbub Alam Chashi and Taher Uddin Thakur stayed in Bangabhaban with Khandaker Mustaq in close association; that at that time tanks were deployed around Bangabhaban; that he came on duty at 2 p.m. on 2nd November, 1975 and P.W.13 was with him; that on that day at about 7/7.30 p.m, in the room of Major Rashid, he saw that other officers were also sitting with him; that at about 12/12.30 at night he noticed that a meeting was going on in the meeting room of Khandaker Mustaq and in the said meeting besides the said army officers, Chashi and Taher Uddin Thakur were also present; that they were talking on different topics and at one stage, Khandaker Mustaq wanted to know from Major Rashid on whom the task of jail was given; that in reply, Rashid told that Captain Moslem and his team were assigned for the job; that things were arranged accordingly and that, soon thereafter, Major Rashid told him to serve dinner to Moslem.

The narration of facts regarding holding of meetings twice in Bangabhaban as disclosed by P.Ws.13 and 18 just before the incident of killing are consistent. These witnesses were public servants and there is no reason to disbelieve them particularly when the defence has failed to establish any sort of enmity or biasness to depose falsely against accused persons. Most of their statements relating to the fact of holding meetings secretly about the four national leaders detained in the Dhaka Central Jail suggesting an inference for executing their plan of an illegal act in the Central Jail through Moslem Uddin’s team remain uncontroverted. The defence could not shake their testimonies. They are natural and neutral witnesses. They stated facts about what they saw and heard in their ordinary course of official duties. They were corroborated by P.W.11 on the question of discussion amongst the army officers in presence of Khandaker Mustaq, Mahbub Alam Chashi and Taher Uddin Thakur regarding the four national leaders who were detained in the Dhaka Central Jail. According to the prosecution, after these meetings in the Bangabhaban, Major Rashid, Major Faruq, Khandaker Mustaq’s team compelled the Inspector General (Prisons) P.W.3, the Deputy Inspector General (Prisons) (P.W.1) and Jailor (P.W.2) to allow Moslem Uddin and his team to enter into the Dhaka Central Jail.

P.W.1 in first part of his chief stated that as directed by P.W.3, he came to the Central Jail gate and sat beside him (I.G. Prisons). At that time, many telephone calls came and I.G. (Prisons) received those phones and talked with them. Though he did not disclose the name of the persons with whom I.G. (Prisons) was talking over telephone, but if his statements are considered with those of P.Ws.11, 17,

23, 29 and 34, it could be inferred that P.W.3 was talking with some persons staying in Bangabhaban. More so, if his subsequent statement ‘h‰ ih−el p¡−b BC ¢S ¢fËSep ®V¢m−g¡−e ®k¡N¡−k¡N L−l’ made in course of his cross examination is considered, there will be no doubt to infer that P.W.3 was directed from the Bangabhaban over telephone just prior to the incident of killing to allow Moslem Uddin and his team to enter into the Central Jail, Dhaka.

P.W.2 stated that he was the Jailor of Dhaka Central Jail; that the four leaders of Awami League were sent to Dhaka Central Jail and they were kept in detention as per order of the Government; that on the night fallowing 2nd November, 1975, Major Faruq wanted to know from Bangabhaban over telephone about the exact location of the leaders in jail; that at about 3 a.m., the jail guard on duty informed him over phone that P.W.3 wanted his presence in jail premises without delay; that he immediately came to the jail and at that time, the jail guard informed him that P.W.3 had already reached the jail; that he arranged for the sitting of P.W.3 in the office of P.W.1 and at that time, P.W.3 told him that he was informed from the Bangabhaban that the miscreants might have abducted some prisoners and accordingly directed him to give necessary instructions to his subordinates to remain alert; that in the meantime, P.W.1 reached there and soon thereafter, P.W.3 told them that some army officers headed by Captain Moslem Uddin would come to jail from Bangabhaban and that they should be taken to P.W.1’s room. He then went to his room and at that time, Major Rashid wanted to talk with P.W.3 from Bangabhaban. He then intimated the massage to P.W.3 and the latter came to receive the phone. P.W.1 then talked with Khandaker Mustaq and after telephonic talk, P.W.3 told them that the President directed them to act in accordance with the demand to be made by Moslem Uddin.

P.W.3 stated that after the killing of Sheikh Mujibur Rahman the four political leaders were kept in the Central Jail; that on the night following 2nd November at 3 a.m, he received a telephone call and the caller wanted to know about his identity; that he disclosed his identity and then the caller disclosed his identity as Major Rashid who was saying that he was speaking from Bangabhanan; that Major Rashid wanted to know from him whether there was any trouble in the jail; that he expressed his ignorance in that regard and at that time, Major Rashid told him that the miscreants might have abducted some prisoners and instructed him to take precautionary measures for the security of prisoners in the Dhaka Central Jail; that after 3/4 minutes another army officer wanted to know whether he (P.W.3) had taken precautionary measures in the central jail; that realizing the gravity of the

information, he intimated P.W.1 about the message received from Bangabhabnan and directed him to come immediately to the jail gate; that he then went to the room of P.W.1 and discussed about the message received from Bangabhaban; that in the meantime, a telephone call came from Bangabhaban when Major Rashid told him that an officer, namely, Captain Moslem would go to the Central Jail from Bangabhaban, who would say something to him and that he should arrange for talking of the said officer with the prisoners Syed Nazrul Islam, Tajuddin Ahmed, Captain Monsur Ali and Kamruzzaman; that on hearing the news, he wanted to talk with Khandaker Mustaq; that then Major Rashid handed over the phone to Khandaker Mustaq; that the latter talked with him for sometime and instructed him to act according to the direction given by Major Rashid; that sometimes thereafter, Captain Moslem reached P.W.1’s office room and wanted his identity; that on ascertaining his identity, Moslem Uddin wanted to know about the location of the persons whose names were given from the Bangabhaban; that he reminded Moslem about the message received from Bangabhaban and in reply Moslem told him that ‘I would shoot them’; that on hearing about the motive of Moslem, they were perturbed; that he then wanted to talk with Bangabhaban and in the meantime, a message came from the Jailor’s room that Major Rashid wanted to talk with him; that on hearing about the news, he went to P.W.2’s room and received the phone when Major Rashid asked him whether captain Moslem had reached the jail or not; that he replied that Moslem had reached, but then he wanted to ascertain from the President to know for what purpose captain Moslem was sent to the Central Jail; that he informed the President about the intention of Captain Moslem that he wanted to kill four leaders; that in reply, the President told him that ‘−p k¡q¡ h¢mu¡−R a¡q¡C qC−hz’ and that thereafter he narrated the manner of killing the leaders by Moslem Uddin and his team.

P.W.16 stated that he was receptionist-cum- personal assistant attached to Bangabhaban during the relevant time; that he knew the respondents and other accused persons who were moving desperately in Bangabhaban; that on 2nd November, 1975 his duty was from 7.30 a.m. to 2 p.m.; that on that day there was special restriction at the gate of Bangabhaban and that on entering into the office he noticed that army personnel were patrolling around Bangabhaban. He came to know that they were the followers of Major Dalim, Major Rashid; that on 3rd November while he was taking charge from Yaqub Hossain Khan (P.W.34), he came to know that on the previous night four Awami League leaders were killed in the Dhaka Central Jail, that he also came to know from their discussions that followers of Dalim, Rashid, Faruq executed the killing

of 4(four) national leaders and that in course of his duty, he came to know from their discussions that the army officers including the respondents killed them.

P.W.17 stated that he was appointed as receptionist-cum-personal assistant in the Bangabhaban during the relevant time; that on 3rd November at about 3 a.m., he was asked from President’s room to give phone connection with I.G. (Prisons); that when he connected the phone when one person received the phone and on query about his identity the recipient disclosed his identity as the Inspector General (Prisons); that then he told him that Major Rashid would talk with him from the President’s room; that thereafter, Rashid talked with him twice and sometimes thereafter, as per direction when he again wanted to connect I.G. (Prisons), he was told that I.G. (Prisons) had left for the Central Jail; that thereafter, he contacted I.G. (Prisons) through the telephone line of the Jailor in the Central Jail; that Major Rashid wanted to know from him as to whether Captain Moslem had reached the jail; that thereafter, as per his direction he connected the telephone line with President when the President talked with him for sometime, and thereafter, he came to know from Pritom Borua that Major Faruq and his team left Bangabhaban with arms and that at about 6 a.m., Major Rashid and other officers including the respondents returned to Bangabhaban who were then looking in fatigued condition. The statements of this witness have not been challenged by the defence.

P.W.21 Commodore Goalm Rabbani stated that the respondents and their accomplices were appointed as personal guards of Khandakar Mustaq and that they were performing their duties with heavy arms; that on 3rd November, 1975 at about 2 a.m., he was awakened by a messenger of Khandakar Mustaq intimating that the President was asking him for certain purposes and on getting news, he came out of his room and when he came to the lift, two armed personnel challenged him and after disclosing his identity, he was allowed to proceed; that on reaching the President’s room he found Major Rashid and Major Faruq inside the room and they were busy with telephonic talks; that Mustaq queried to him about the whereabouts of the guards staying in Bangabhaban; that when he expressed his ignorance, Mustaq then asked him whether he had any idea that the guards had left Bangabhaban; that he again replied in negative; that then he left for the retiring room; and thereafter, he went to the ground floor of his office for ascertaining the whereabouts of the guards and at that time, he noticed that Resalder Moslem Uddin, Dafadar Mridha and some of their accomplices associates with arms were in restive condition; that sometimes thereafter, Moslem Uddin, Marfat Ali Mirdha and other army personnel went out of Bangabhaban and then other officers left Bangabhaban and that at about 6 a.m. they returned.

P.W.34 was the receptionist of Khandaker Mustaq. He stated that in course of duties he noticed that Major Rashid and other officers named by him used to stay in the Bangabhaban; that on 3rd November, 1975, his duty was from 8 a.m. to 2 p.m. and after taking charge from P.W.17, the latter told him that on previous night at 3 a.m. Major Rashid directed him from President’s room to connect P.W.3; that accordingly P.W.17 connected the telephone line; that Major Rashid talked with him for some time and then Major Rashid, Dalim, Aziz Pasha, Noor, Majed, Captain Moslem entered into the room of P.W.17 with arms and directed him to connect telephone link with P.W.3; that P.W.17 connected the telephone line but he was informed that P.W.3 had left for the Central Jail; that Major Rashid then directed him to connect with the Central Jail; that P.W.3 received the phone when Major Rashid wanted to know from him whether Captain Moslem had reached the jail; that Major Rashid then instructed P.W.3 to talk with the President and handed over the phone to him and that P.W.3 talked with the President for sometime and then, Major Rashid and others left the room of P.W.17.

P.W.36 stated that he came to know that as per orders of the killers of Bangabandhu, such as, Major Rashid, Dalim, Faruq etc., the killing squad of 4/5 persons, headed by captain Moslem Uddin killed the four leaders after entering into the Central Jail. P.W.37 stated that he heard from the Deputy Jailor that the armed personnel came from Bangabhaban and killed the leaders. P.W.46 stated that he heard from P.W.3 that the killers headed by captain Moslem came from Bangabhaban and killed them.

P.W.46 stated that the night following 2nd November, 1975, at about 3 a.m., Khandakar Mustaq intimated the I.G. (Prisons) over telephone that the miscreants might have abducted some prisoners for which the security of the Central Jail should be tightened and directed him to ensure the presence of I.G. (Prisons) and D.I.G. (Prisons) in the Central Jail; that after arrival of I.G. (Prisons), Major Rashid told him from Bangabhaban over phone that Captain Moslem and other army personnel went there for discussing about four Awami League leaders; that Khandakar Mustaq then directed I.G. (Prisons) to allow those army personnel to enter into the jail; that sometimes thereafter, the army officers came to the Central Jail from Bangabhaban and expressed their desire to kill four national leaders and that thereafter, they killed the four national leaders.

Most of the incriminating statements made regarding the telephonic conversations between the Bangabhaban on the one side and P.ws.1-3 on the other side as disclosed by P.Ws. 3, 11, 17 and 34 remained uncontroverted. All these witnesses are neutral and reliable witnesses who were public servants. The defence failed show any enmity with them. Their claim that they had heard that directions were given from the Bangabhaban to P.Ws.1-3 to allow Moslem Uddin and his team to execute the killing on entering into the Dhaka Central Jail have been corroborated by P.Ws.8, 22 and 52. To avoid repetition, I have refrained from reiterating their statements. P.W.8 claimed that he heard from P.W.2 regarding the telephonic direction given from the Bangabhaban. P.W.23 stated that P.W.1 told him about the direction given by Col. Rashid from the Bangabhaban. P.W.52 also made similar statement that he heard from P.W.1 that Col. Rashid talked over phone from the Bangabhaban to allow the killing squad to enter into the Dhaka Central Jail. Their evidence also remain uncontroverted.

On an analysis of the evidence of the above witnesses we noticed that there are uncontroverted evidence of P.Ws.11 and 18 that the army officers with other civilians were holding meetings in Bangabhaban prior to the time of incident of killing. P.W.13 has corroborated them. Pursuant to such meetings, for facilitating the entrance of killing squad headed by Moslem Uddin in the Dhaka Central Jail and killing the 4(four) national leaders, directions were given to P.Ws.1-3, firstly, by Rashid and then by Khandaker Mustaq himself. P.Ws.1, 2, 3, 11, 17, 21, 34 and 46 made consistent statements that the killing squad headed by Moslem Uddin came from the Bangabhaban and that as per direction of Khandaker Mustaq, they entered into the Dhaka Central Jail and executed the killing. They have been corroborated by P.Ws.8, 23 and 52. The High Court Division disbelieved the witnesses examined from the Bangabhaban mainly because they did not produce their duty register. This itself is not enough to disbelieve those witnesses, unless their testimonies are tainted by infirmities. What’s more, there was gap of about 22 years from the date of occurrence to the date of revival of the case for investigation.

Though the Khandaker Mustaq’s Government could not remain in power after the killing, the successor Government conducted in business in the similar line and ideology until Bangladesh Awami League came to power in 1996. After the revival of the case, the trial started in 2001. Naturally, the inference that could be drawn is that the succeeding Government supported the killers, destroyed all corroborating documentary evidence in connivance with them. It will be evident from the fact that the succeeding Government appointed most of the army officers to lucrative posts in the foreign Embassies of Bangladesh. It will not be out of place to mention here that before drawing any adverse inference against the prosecution, one must keep in mind one vital aspect that even after the killing of the four national leaders in the Dhaka Central Jail, the investigation of the case was not allowed to proceed on by the authority in power although Khandaker Mustaq was not in power at that time. This has nakedly focused the intention of the succeeding Government in power. This has not happened even in any ordinary case, particularly in respect of a serious offence like a murder. So it is an unusual case and this case should be considered in the context of the matter that the State machinery wanted to stifle the case at the very initial stage. The killing was executed in pursuance of conspiracy is evident from the conducts of the accused persons and subsequent events after the killing. Admittedly, there was also a conspiracy to protect the said killers. As a part of that conspiracy, the FIR was removed by the interested quarters from the record and that the investigation was postponed sine die.

The High Court Division has totally ignored the historical background of the incident of killing and wrongly drawn adverse presumption against the prosecution. Besides, nobody denied that those witnesses were not employed in Bangabhaban at the relevant time. More so, the High Court Division was totally wrong in assuming that there was no telephone link with Bangabhaban, which was allegedly snapped by the Khaled Mosharraf group by a coup d’etat in the meantime. The inference drawn in this regard is based on piecemeal consideration of the evidence of P.W.29. In this regard my learned sister has thoroughly considered his evidence and rightly came to the conclusioin that the telephone connection of Bangabhaban on the night following 2nd November was in operation. I fully agree with her views. There are unimpeachable evidence on record that telephone connection of the Bangabhaban was in operation. It is unbelievable story that the Bangabhaban’s telephone link was totally snapped. It should not be ignored that Khandaker Mustaq was acting as President of the country till 4th November, 1974, and it is absurd to believe that while he was performing as President, the Bangabhaban’s telephone link would be disconnected. This telephonic direction from Bangabhaban, the holding of meetings in Bangabhaban just before the incident as witnessed by P.Ws.11, 13, 17 and 18, and the subsequent conducts of the respondents and other army personnel sufficiently proved a case of conspiracy that was hatched up in Bangabhaban for executing the killing of four national leaders detained in the Dhaka Central Jail.

As regards the prosecution’s claim that the killing squad headed by Captain Moslem Uddin went from Bangabhaban at around 3 a.m. of 3rd November, 1975, P.Ws.3, 4, 6, 13, 17, 18 and 21 made statements in that regard corroborating each other. Of them, P.Ws.17, 18 and 21 also deposed that they saw that the army officers returned to Bangabhaban at 6 a.m., when they were seen being seized with fatigue. P.Ws.7, 16, 36, 37 and 46 corroborated their above statements. Among them, the testimonies of P.Ws.3, 6, 7, 13, 16, 18, 36 and 37 remain uncontroverted. P.W.7 stated that within 2/3 minutes of entering into the Dhaka Central Jail, they heard the sounds of firing from the cell of the four leaders; that sometimes thereafter, the armed

personnel ran towards the jail gate and that in the evening he came to know from the Jailor and the Deputy Jailors that as per direction of Bangabhaban, Moslemuddin and his team came to jail.

It was contended on behalf of the respondents that since Brigadier Khaled Moshrraf took the reins of the country by a coup d’etat at zero hours of 2nd November, it was not possible or probable on the part of the army officers and personnel staying at Bangabhaban to go out from Bangabhaban to implement the killing, inasmuch as, their safety and security was predominant factor at that time. The High Court Division accepted the defence plea observing that the inmates of Bangabhaban having received the message of coup by their rival party, it was not probable for them to move outside the Bangabhaban after 1 a.m. on 3rd November particularly when there was deployment of rival force within the vicinity of Bangabhaban because the situation was such that their personnel security

was very much at stake and that it was very much known to them by the withdrawal of the tanks from Bangabhaban.

The High Court Division has disbelieved the prosecution case showing some technical loopholes and given the accused persons except one the benefit of doubt ignoring these aspects of the matter. The

circumstances leading to the killing of the 4(four) national leaders while in the safe custody of the State must be kept in mind. The accused persons couldn’t have implemented the killing unless very high handed powerful State machineries were involved in the conspiracy. Under such circumstances, it is absurd to assume that the corroborating materials would be allowed to remain in the Bangabhaban. The principle that the accused may be given the benefit of doubt is in the interest of justice and it should always be applicable with great circumspection, and not to be allowed as a matter at course, otherwise, its real purpose will be frustrated and the administration of justice will also be defeated. In the facts of the given case the High court Division has wrongly applied the principle in favour of the accused and instead of doing justice, it has defeated the ends of justice by maintaining the trial court’s findings that the prosecution has failed to prove that the killing was implemented in pursuance of conspiracy.

On the question of conspiracy, before drawing up inference as to whether there was conspiracy to kill the national leaders, besides the above facts, some other vital questions if considered, the decision of the High Court Division would have been otherwise. It failed to direct its attention towards some glaring facts which have nexus with the killing. The answer to these questions would automatically resolve all controversies in dispute. Why Sheikh Mujibur Rahman was killed? Who were responsible for his killing? Who came to power after the said killing? Whether the assumption of power by Khandaker Mustaq was legal? Why the national leaders were taken into custody after the killing of Sheikh Mujibur Rahman? Why the original FIR was not available with the record? Who was benefited by removing the same from the record? Why the investigation of such gruesome murders was stopped? Why an ‘eye wash’ inquiry was held even after killing of four national leaders in the Dhaka Central Jail? Why these leaders did not give allegiance to Khandaker Mustaq’s Government? Why all the officers and army personnel deputed for the security of President in Bangabhaban left the country with their family on 4th November, 1975? Why an aircraft was specially arranged to facilitate their safe exit from Bangladesh? Why these army personnel were absorbed in the Ministry of Foreign affairs while they were staying abroad? Why their appointment letters were carried by an officer

of the Ministry of Foreign affairs to Benggazi, Libeya and UK? The trial Court as well as the High Court Division should not ignore these chain of sinister facts.

As observed above, the history of the emergence of Bangladesh; the subsequent events after independence, the murder of Sheikh Mujibur Rahman and the persons involved in it; Khandaker Mustaq’s usurpation of power violating the constitutional provisions; the change of socio-political condition of the country after the murder of Sheikh Mujibur Rahman; and the killing of the four national leaders in the Central Jail are not only historical facts, these acts and events are interwined with each other, not unrelated. An inference from these facts would lead to the conclusion that the killing was the consequence of a deep rooted conspiracy which was designed, planned and executed by none other than these persons who were temporarily benefited by the murder of Sheikh Mujibur Rahman. Both the killing were the result of deep conspiracy and they were perpetrated not only for the purpose of usurping power but also to bring about a change in the political atmosphere in the country-to obliterate the spirit of the historic struggle for national liberation, to exterminate pro-liberation forces and in its place, to repatriate the rightist anti-liberation forces in the helm of the affairs of the Government.

Section 8 of the Evidence Act embodies the rule of evidence that the testimony of  res jestae is allowable when it goes to the root of the matter. The motive, the preparation, the existence of a design or plan, the previous and subsequent conducts of the accused are all relevant in one great canvass to kill the 4(four) national leaders. Motive is a state of mind to show the probable existence of mens rea of the accused persons which moves them to commit the offence or in the alternative, motive is the reason which prompts the intention of the accused to commit the crime. Though motive is not sine qua non for bringing the offence of murder home to the accused, it is relevant and important on the question of intention but the preparation is also obviously important in the consideration of the question whether the accused persons committed a particular act or not, to know whether they took any measures calculated to bring it about within premeditated action preceded not only by impelling motives but by appropriate preparations. The existence of design or plan is usually employed to indicate the subsequent doing of the act planned or designed. Preparation and previous attempts are instances of previous conducts of the accused persons influencing the commission of murders. Subsequent conducts of the accused persons are equally admissible. Coupled with them, the abscondence of the accused persons immediately after the occurrence is a relevant fact to be considered along with other evidence as indicating to some extent their guilty mind.

In support of the circumstantial evidence, P.W.2 stated that on 2nd November, 1975, while he was working in his office at Dhaka Central Jail, Major Dalim came there and pressed him to allow him to enter into the Central Jail; that when he told him that without permission of the higher authority, he would not allow him to enter inside the jail; that Dalim forced his entry into the jail and wanted to see the exact location where the Awami League leaders were kept; that finding the ferocious attitude and for fear of reprisal, he took him infront of cell No.15; that Dalim surveyed meticulously the area around the cell and at one stage, he talked with P.W.20, who was also detained as prisoner there and then went away. P.W.3 stated that after the murder of Sheikh Mujibur Rahman, the national leaders were kept in the Dhaka Central Jail and during that time, Major Rashid, Major Dalim, Major Shariar, citing reference of Khandaker Mustaq, used to inquire about the political leaders held as detenus and gave them necessary instructions. The statements of P.W.10 in this regard has been mentioned earlier.

P.W.20 stated that he worked as District Magistrate in July, 1975; that during the liberation struggle he was acquainted with Major Dalim; that he

was detained in Dhaka Central Jail as detenu in November, 1975; that on 2nd November, Major Dalim visited the Dhaka Central Jail and while the latter was passing in front of his cell, he wanted to know from him the cause of his visit and that Major Dalim made an evasive reply. His evidence remains uncontroverted. Major Dalim had no business to visit Dhaka Central Jail on the previous day of occurrence. He was staying at Bangabhaban with the respondents as a member of the President’s security team. This visit just before the occurrence leads us to infer that it was for the purpose of making reconnaissance of the area where the leaders were detained, that is to say, to make a preliminary survey for millitary operation. This fact leads to the inference that the conspiracy was afoot and this visit was done by a conspirator in reference to their common intention for executing the killing through the members of the conspiracy.

P.W.21 stated that after the killing Sheikh Mujibur Rahman, Major Faruqe, Major Rashid, Major Dalim, Major Shahriar, Major Noor, Major Mohiuddin and other officers and the respondents were staying at Bangabhaban; that after 1/2 days of killing of Sheikh Mujibur Rahman, Khandaker Mustaq gave him a letter to hand over to Captain Monsur Ali; that he directed Major Shariar to accompany him; that he handed over the letter to Monsur Ali and that 1/2 days thereafter, he came to know that the leaders were taken to jail custody. It is evident that on that the army officers staying at Bangabhaban were not in the good book of the army high command as they were transacting business (of the State) by-passing the high command.

P.W.26 stated that he was instructed by the authority of Bangladesh Biman flight operation on 3rd November, 1975, at about 11 a.m. that despite suspension of flight operations, he had to operate a special flight; that on his query about the purpose for operation of the special flight, the Operation Officer intimated him that some officers would be flown to Bangkok by an F-27 Craft with captain Azim and captain Ashraf, who were assigned to operate the flight; that at about 9.30/10 p.m. 4th November they landed at Chittagong airport for refuelling the aircraft and reached Bangkok at early dawn of 5th November, 1975; that on the following day, they returned back to Dhaka and after return, he came to know that passengers they had ferried in the flight were the killers of Bangabandhu, such as, Major Rashid, Major Dalim and others; that they fled from the country after killing the four national leaders on the night following 2nd November and that the officers took with them their families including children.

P.W.28 stated that in the afternoon of 4th November, then Chief of Protocol of the Ministry of Foreign Affairs Nazrul Islam told him that Col. Rashid and his group would leave Dhaka by a special flight

and asked him to talk with Hadayet, then Managing Director of Biman; that he instructed him to take necessary permissions for flying the special flight over Burma and Thailand, and also to contact with the Embassy of Thailand for landing permission of the special flight; that thereafter, acting Foreign Secretary directed Samsher Mobin Chowdhury (P.W.33), the Deputy Chief Protocol officer, to accompany him; that they went to the concerned Embassies for communicating note verbal; that at about 11 p.m. they went to the old Airport where Col. Monnaf received them; that they found Lt. Col. Rashid, Lt. Col. Shariar, Lt. Col. Dalim, Major Bazlul Huda, Lt. Col. Nur Chowdhury, Major Ahmed Saiful Hossain, Captain Marfat Ali, Kismat Hossain, Nazmul Hossain, Ansar, Lt. Col. Pasa, Moslem Mridha and Lt. Col. Faruq amongst the passengers to be flown; that thereafter those army officers boarded the special flight and that on the following morning he came to know that the four leaders were killed in the Dhaka Central Jail on the previous day.

P.W.29 stated that after 40 hours of the jail killing, the killers left the country; that he then charged Major General Khalilur Rahman as to why he did not inform about the killing despite that he was then staying in Bangabhaban. P.W.31 stated that Khandaker Mustaq was displeased towards Kamruzzaman as the latter supported Monsur Ali’s nomination as Prime Minister and that deceased Kamruzzaman always apprehensive that Khandaker Mustaq would not let him stay alive.

P.W.33 corroborated P.Ws.26 and 28 and stated that he accompanied P.W.28 for seeking permission from the Embassies of Burma and Thailand for the operation of the special flight over those countries; that when he was taken into the room by Mahbub Alam Chashi, the latter handed over a list of army officers stating that it was decided that those officers would leave the country, probably for Thailand; that he directed him to take permission for over-flight permission of Burma and landing permission from Thailand; that he handed over some papers and that they went to the Embassies of Burma and Thailand with an army jeep and handed over the letters; that they then went to the airport for intimating the pilot about the permission obtained from the Ambassadors; that the army officers left the country with a special flight from Dhaka Airport; that in April/May, 1976, then Additional Secretary, Ministry of Foreign Affairs told him that as per order of the Secretary, the listed army officers would be posted at different Embassies of Bangladesh and that he would have to carry the appointment letters for handing over to them; that he went to Bengazhaji, Libya and handed over the appointment letters to some officers and that as Major Dalim and Noor were staying in London, he went to U.K. and handed over their appointment letters in the Bangladesh High Commission Office.

P.W.63 stated that he was posted to Ministry of Foreign Affairs in 1996; that the investigation officer seized the connected files relating to the absorption of Bazlul Huda, Nur chowdhury, Kismat Hashem, Moslem uddin and Marfat Ali from the Ministry of Foreign Affairs in his presence and that he put his signature in the seizure lists; he proved exts.40, 41, 42, 43 and 44.

It is also evident from the record that most of the army personnel deputed for the security of Khandaker Mustaq were involved in the killing of Sheikh Mujibur Rahman and his family members. These security personnel were all along with Khandaker Mustaq Ahmed after 15th August till departure from the country after the killing in the central jail. This is another strong circumstance to link them in the incident of killing. Mustaq Ahmed was hostile towards these leaders as they did not give allegiance to his Government and did not agree to join his cabinet. Naturally, he realized that if these leaders were kept alive, one day they would take revenge against him if the Awami League was able to come to power in the future. So, he chalked out the plan for killing the leaders in jail with his acolytes in a calculated manner. Admittedly, the army personnel attached to Bangabhaban knew that they would become the target of attack by the pro-government forces and accordingly, they left the country by arranging a special flight through Khandaker Mustaq. Khandaker Mustaq wanted a free exit of the officers deputed for his security by arranging a special flight as a condition for surrendering his power. The army officers along with their family left the country within 40 hours of the killing and they remained in abscondence immediately after the occurrence. This fact necessarily showed that they had a guilty mind. This conduct of the army personnel is a circumstance indicating their mens rea if considered along with other evidence as discussed above, pointing their guilt is reasonable and realistic.

There are also other strong circumstantial evidence, namely, after the arrest of the deceased four leaders, Major Rashid and Major Dalim visited the Police Control Room where they were kept initially. These officers used to inquire about the leaders from the jail authority. Major Dalim visited the Dhaka Central Jail on 2nd November and ascertained the location of the cell where the leaders were detained. There was direction from the Bangabhaban to allow Moslem Uddin and his team to enter into the Dhaka Central Jail just before the killing. Moslem Uddin and his team left Bangabhaban at 3 a.m. of 3rd November, 1975. Moslem Uddin was recognized with arms in his hands when he entered into the Central Jail and that after the killing, he hurriedly left the central jail with the accomplices.

The positive case of the prosecution is that the Khandaker Mustaq was the principal conspirator. He had conspired with his political acolytes and security team deputed in the Bangabhaban for exterminating the four national leaders, who appeared to him to be thorns in his way to rule the country as President. An officer in the rank of Deputy Inspector General (Prisons) lodged the FIR on the following day pointing fingers at the security team of the President. It is also an admitted fact that though the FIR was lodged over the killing, the investigation of the case was kept at bay. This suggests that the stream of justice could not have been prevented even after such brutal killing unless very powerful persons were involved in the incident. It is only after a long gap of about 22 years, the case was revived and the investigation started. The case should be considered in the above backdrop.

The High Court Division failed to notice that the defence failed to shake the testimonies of the witnesses and that admittedly most of the witnesses examined are neutral and natural witnesses. The defence failed to bring anything adverse to the prosecution case by cross-examining them as to why they deposed against them. The High Court Division wrongly disbelieved P.Ws.11, 13, 16, 17, 18 and 21 for non production of their duty register. If their evidence are not tainted with infirmities or falsehood, there is no earthly reason to discard them. Along with their evidence, the evidence of P.Ws.2, 3, 10, 14, 20, 21, 26, 28, 29, 31, 33, 36 and 63 who deposed on the question of circumstantial evidence to corroborate the charge of criminal conspiracy, led to the inference that the story narrated by them is true and reliable.

This defence plea is not at all believable and absurd. If we consider the evidence of P.Ws.29, 42 and 46, it will be evident that Khaled Mosharraf took over the charge as the Chief of Army Staff on 4th November and continued in such position till 6th November, but the killing was perpetrated on the night following 2nd November. P.W.46 clarified the point in controversy in reply to a query made on behalf of Faruq Rahman stating that though the followers of Khaled Moshrraf staged a coup d’etat on 2nd November, 1975, they made abortive attempt to enter into Bangabhaban and that on 4th November Khandaker Mustaq gave up power. This witness did not say that Khaled Moshrraf took power on the night following 2nd November. There is evidence on record that the army officers staying at Bangabhaban were heavily armed with tanks. So they managed to keep their influence and power till 4th November morning is evident from the evidence of P.Ws.29 and 46.

P.W.29 stated that Khaled Moshrraf gave dead line

of 2nd November for bringing the aberrated army officers and personnel under the chain of command;

that the tanks should be returned back and then to surrender the unauthorized and unconstitutional Government; that on 2nd November, 1975, two infantry companies were taken back but they could not be given posting. P.W.29 further stated that “h‰ih−el Hhw ®p¡ql¡Jlc£ Ñ EŸÉ¡−el AhÙÛ¡ela VÉ¡wLN¤¢ml fË¢aqa Ll¡l SeÉ c¤C¢V ®L¡Çf¡e£ f¡W¡u H ¢V ®p¡e¡lN¡J ®q¡−Vm

®lmœ²¢pw−u J Afl¢V p¡C¾pmÉ¡h−l¡Vl£l j¤−M z a¡q¡l¡ 3 e−iðl/75 H f¢Sne NËqZ L−lz ®mx L−eÑm Ngg¡−ll ®eaª−aÄ  he¡e£ ØV¡g ®l¡Xœ²¢pw−u HLcm ®~ eÉ f¡W¡−e¡ qu k¡q¡−a VÉ¡wL

®l¢S−j¾V Bj¡−cl ¢fRe ®b−L Bœ²je L¢l−a e¡ f¡−l z” In reply to a query made on behalf of Faruq Rahman in course of cross-

examination, P.W.29 stated that from 4th November morning to 6th November 12 p.m., Khaled Moshrraf was the Chief of Army Staff and that on 4th November, 1975, at about 11 a.m., Khaled Moshrraf entered in the Bangabhaban and that General Khalil was there. Therefore, it is apparent from the evidence of this witness that till 4th November morning Khandakar Mustaq was in power and that Khaled Mosharraf’s force could not enter beyond Sohrawarddy Udyan.

The control of the areas under the rebel force and the regular force has been clarified by P.w.29. He stated that the rebel forces headed by Col. Rashid deployed tanks not only around Bangabhaban but also at Sohrawarddi Uhyan to avert any counter attack; that the regular force deployed its artillery at Sonargoan railway crossing and Science Laboratory intersection. So, apparently almost half the area of the City, including the entire old Dhaka where the Dhaka Central Jail and the Bangabhaban are housed, were under the control of the rebel force. The regular force controlled the northern portion from the Science laboratory to Sonargaon Hotel. The regular force sent two companies of army to counteract the rebel force, one at the rail crossing of Hotel Sonargaon and another at the intersection of Science Laboratory but they could not take control of the areas controlled by the rebel force. Therefore, it was not at all difficult on the part of the rebel force staying at Bangabhaban to move to the Dhaka Central Jail for implementing the killing plan because the regular force were staying far away either from the Bangabhaban or from the Dhaka Central Jail.

The High Court Division failed to notice that most of the members of the security team deployed at Bangabhaban were the killers of Sheikh Mujibur Rahman. After the killing of Sheikh Mujibur Rahman, they enthroned Khandakar Mustaq Ahmed in the office of President and they ruled the country keeping Khandakar Mustaq as a puppet President in their hands. When they had exceeded the limits and the chain of army command was totally broken down, some senior officers including P.W.29 stood in their way. Though Major General Ziaur Rahman was Chief of Army Staff, it is on record that he had hardly any control over the army. The First Bengal Lancers and the Second Field Regiment were under the command of Faruq and Rashid, and Ziaur Rahman had no control over them.

P.W.29 stated that though there was direction for returning 30 tanks, which were under the control of Rashid and Faruq, they did not obey the direction and kept all artilleries under them from mid September, 1975. This statement proved that these officers were heavily armed with 30 tanks and two regiments were under their control. This fact proved that till the last moment of their departure from Bangladesh, they

tried to assert their power and there was no hurdle for them to move to the Dhaka Central Jail from Bangabhaban for implementing their plan of killing of the four national leaders. The High Court Division did not advert its attention to that direction.

Learned counsel for the respondents tried to pursuade us that the defence plea is most probable than that of the prosecution version. The positive defence case is that it was Khaled Mosharraf who was instrumental to the killing of the four national leaders for retaining his power peacefully after the coup d’etat along with P.W.29. In support of his contention, he has relied upon the evidence of P.W.52. The statement of this witness that after the coup d’etat, Mosharraf in order to consolidate his power might have killed the four leaders after arresting Ziaur Rahman. He clearly stated that it was his assumption. Before the said statement, he stated that the coup d’etat was against Mustaq Ahmed but, on the other breath, he stated that the conflict was between Khaled Mosharraf and Ziaur Rahman; that after dethroning Mustaq Ahmed, Syed Nazrul Islam was supposed to be the legal successor in the office of President but, he expressed his ignorance on a query made by the defence that Khaled Mosharraf was the perpetrator. This witness was not a party to any of the groups and whatever statement he made was on guess. The High Court Division erred in giving weight to this solitary statement.

However, it is an admitted fact that the killing was perpetrated on the night following 2nd November and that till the departure of the rebel army offers in the afternoon of 4th November, Khaled Mosharraf had no access beyond Science Laboratory inter-section and Sohrawarddy Udyan. The High Court Division impliedly accepted the statement as an admission without giving attention to his entire evidence and the evidence of

P.W.42. This defence plea is absurd, hypothetical and full of surmises, inasmuch as, it is not Khaled Mosharraf who wanted to kill the national leaders, rather, it was those rebel force who were supporting Khandaker Mustaq, and this force kept the leaders in detention in the Dhaka Central Jail in order to consolidate Khandaker Mustaq’s power and position. Had Khaled Mosharraf been the perpetrator, the Government in power after the death of Khaled Mosharraf could have been prosecuted but in reality, the successor Government wanted to suppress the incident. No one suspected them as killers of the political prisoners staying in the Central Jail at any point of time. Even the relatives of the deceased leaders pointed fingers towards Khandaker Mustaq and his followers.

The circumstantial evidence proved beyond doubt that it was the army officers who were deputed for the Khandaker Mustaq’s security were the real perpetrators of the crime. Even after the killing, the followers of Khaled Mosharraf stayed in the country and one of them deposed in this case. Though Khandaker Mustaq was dethroned, the force which came to power after killing Khaled Mosharraf could not have been differentiated from Khandakar Mustaq’s regime on principle and ideology. They were birds of a same feather as would be evident from their subsequent conduct. The said Government not only wanted to conceal the killing but also stopped the investigation of the case. The difference between the two groups was not on principle but, on the question illegal retention of power. That is why, this succeeding regime rewarded the killers by giving lucrative jobs in foreign missions of Bangladesh abroad.

As observed above, there are uncontroverted evidence on record in support of the prosecution case that the killing squad came from the Bangabhaban and after executing the killing, they returned back again to Bangabhaban. In this regard the prosecution has been able to prove this fact by examining P.Ws.3, 4, 6, 7, 13, 16, 17, 18, 21, 36, 37 and 46. Of the witnesses, the testimonies of P.Ws.3, 6, 7, 13, 18, 36 and 37 remain uncontorverted. Their testimonies suggest that the planning, preparation and implementation of the killing was monitored from Bangabhaban. Another vital fact which revealed from the lips of these witnesses is that the killing squad was also fixed by the conspirators earlier and the said killing squad headed by Moslem Uddin executed the killing after coming from the Bangabhaban at around 3 a.m. of 3rd November. The testimonies of P.Ws.3, 4, 6, 7, 13, 16, 17, 18, 21, 36, 37 and 46 lead to an irresistible conclusion that the army officers deputed at Bangabhaban killed the four national leaders. Along with their evidence, the circumstantial evidence proved by P.Ws.2, 3, 10, 20, 21, 26, 28, 29, 31, 33, 36, 63 are so conclusive in nature that the killing was executed by the members of security team of Mustaq. The chain of circumstances is so complete as to leave no scope for drawing any inference other than that it was the respondents and their co-conspirators who killed the national leaders. The observation of the High Court Division that there are missing links in the circumstances is, therefore, misconceived and perverse.

Next point urged on behalf of the respondents is that the prosecution has failed to produce the FIR of the case and that the true copies of the same, exts-1 and 3, are spurious papers which cannot be used in the case. It is further contended that the FIR being a vital document having not been proved in this case, the High Court Division is justified in giving the respondents the benefit of doubt.

Admittedly the original FIR was missing from the case record as well as from the police diary. Under the circumstances, the investigating officer seized a true copy of it from the Dhaka Central Jail, ext-1 and another true copy from the judicial record of the office of the Inspector General of Police, ext-3. Both the High Court Division and the trial Court disbelieved these two documents. The High Court Division on examination of ext-1 though found no discrepancy in them, observed that neither of the two could be “treated as FIR in this case though these two papers, as it could be gathered from the attending circumstances, undoubtedly contains the contents of the report made by P.W.1 first in point of time with Lalbagh Police Station on 04.11.1975 ..... Since neither of the two falls within the purview of the definition of an FIR as contemplated under section 154 of the Code of Criminal Procedure”. The High Court Division then observed, ‘from the FIR as claimed by the prosecution Ext-1 which was lodged on 4.11.1975 after the occurrence that piece of paper also testifies that he entered into Central Jail on the fateful night. True, it is the description of Moslem Uddin as disclosed by the prosecution differs from place to place though it could not be proved to the hilt by the prosecution that Moslem Uddin came out of Bangabhaban and entred into Central Jail yet it has been proved that he entered into the Central Jail on the fateful night irrespective of the place he came

from, beyond reasonable doubt therefore, Muslemuddin can not absolve his liability in this case’.

The above findings are self explanatory, inasmuch as, they are based on surmises. Though the High Court Division disbelieved exts-1 and 3 as true copies of FIR, accepted the claim of the prosecution that P.W.1 lodged an FIR on the following day of occurrence with Lalbagh police station, and on the other hand, while maintaining the conviction of Moslem Uddin, relied upon the same very FIR, observing that he was an FIR named accused. The High Court Division was of the view that in course of cross-examination, P.W.1 admitted that exhibit-1 did not contain any memo number although he had asserted that at the bottom of this FIR memo number ”01/DIG/1/(4) dated Dacca 4.11.75” was mentioned; that he had admitted that the FIR which was seized from his possession by the investigating officer which did not contain the same memo number; that there was overwriting on the date of the said memo number; that though the P.W.1’s signature was available in it, the said signature contained the date as 4th November, 1975, which date had no relevance with the accused; that the FIR which was collected from the office of the Inspector General of Police, exhibit-3, was not seized by preparing any seizure list and that Abdul Kahar Akond (P.W.64) did not seize the record from which he had collected ext-3.

I find fallacy in these findings. P.W.1 stated that on the following day of occurrence, he lodged an FIR with the Lalbagh police station; that after lodging the FIR, he communicated a copy of the same to all places and kept one copy in Jail which is marked as exhibit-1; that ASP Hafizuddin Dewan (P.W.56) seized a copy of the FIR which he kept with him along with a report submitted by him to I.G. (prisons); that the copy which he kept with him in the Central Jail and in the office of the Inspector General of Police are identical. P.W.64 stated that he collected a true copy of the FIR from the office of the I.G.(Prisons), ext-3. True, the investigation officer did not collect the copy of the FIR from the office of the Inspector General by preparing a seizure list, but this copy was collected from the judicial record of the said office and the contents therein are identical with the other.

P.W.64 got the charge of investigation of the case on 18th August, 1996. He gave an explanation for collecting the copy of the FIR stating that when he could not trace out the original FIR either from the Court record or from the case diary, on enquiry he could trace out the true copies of the same which were kept in the offices of Inspector General of Police and the Central Jail and then he collected them from those offices. The explanation appears to be cogent, reliable and trustworthy considering the nature of the offence and the delay in reviving the case for investigation. There was no wrong in his endeavour in collecting the copies. The prosecution also proved the seizure of Registers relating to the fact of lodging of the FIR by P.W.1 with the Lalbagh police station and the entries made in exts.16, 30, and 39, which corroborate the claim of the prosecution. The High Court Division has totally ignored these oral and documentary evidence and upon superficial consideration of the materials on record disbelieved exts-1 and 3 as true copies of the FIR.

The High Court Division failed to notice that as per rule 246(a) of the Police Regulations Bengal, 1943, a carbon copy of the FIR is required to be sent by the Officer-in-Charge of the police station to the Superintendent of Police. So, apparently the police authority was required to keep a copy of the FIR of

the case. This being a sensational case, instead of

keeping a copy of the FIR in the office of the Superintendent of Police, it was kept in the office of the Inspector General of Police. There is nothing wrong in it and the investigation officer has collected the same from the judicial record of the Inspector General of Police. Therefore, there is presumption that it was collected from the legal authority which kept the same, since the original one was missing. Rule 246(a) is reproduced below:

“The first page of the first information report viz, that signed, sealed or marked by the complainant or informant under section 154, Code of Criminal procedure shall be treated as the original. It shall be sent without delay to the District Magistrate or the Sub-divisional magistrate, as the case may be, through the court officer. The first carbon copy of the first information shall be sent to the Superintendent. The second copy shall be kept at the police station for further reference. A copy (not carbon) shall be sent to the Circle Inspector direct at the same time as the original and the first carbon copy are despatched to the Court Officer and the Superintendent. In subdivision where there is a Sub-divisional Police Officer two copies of the first information report shall be made out on ordinary papers, by the carbon process, one for the Sub-divisional Police Officer and the other for the Circle Inspetor.” 

The prosecution adduced secondary evidence to prove the FIR by examining P.Ws.1 and 64. These witnesses explained the cause as to why they produced true copies of the FIR. The maker of the FIR himself deposed and reaffirmed that exts-1 and 3 are the true copies of the FIR and are in verbatim language. He made statements on oath. If a true copy of a document is proved by the maker on oath giving explanation that the original is missing from the record, it satisfies the requirement of secondary evidence within the meaning of section 63 of the Evidence Act. What’s more, these exhibits were admitted in evidence without objection by the defence and the Court admitted them

as secondary evidence. Where secondary evidence of the contents of a document alleged to have been destroyed/untraceable is admitted by the court of first instance without objection, even without any foundation for the reception of secondary evidence having been laid down, the opponent is estopped from taking any objection to the admissibility of such documentary evidence in the appellate Court. (Biswambhor Singh V. State, AIR 1954 SC 139).

Secondary evidence of the existence, condition or contents of the original is admissible when the original has been destroyed or lost, or when, for any other reason not arising from the default or negligence of the party offering secondary evidence of its contents, it cannot be produced within reasonable time. Even oral evidence of the contents of the original document can be proved when the original is admitted to have been lost. This view has been taken by the Judicial Committee of the Privy Council in Pearey V. Nanak Chand, AIR 1948 PC 108. In State of U.P. V. Nagu, AIR 1979 SC 1567, the original dying declaration was lost and not available, it was held by the Supreme Court of India that ‘In the circumstances the prosecution was entitled to give secondary evidence which consisted of the statement to the Magistrate as also of the Head constable who had made a copy from the original and testified that the copy was a correct one’.

There is no dispute that ext-3 was collected from the office of the I.G. (Prisons). The defence did not challenge the statement of P.W.64 about the collection of the copy. He was confronted only that it was not seized by preparing a seizure list and that he did not seize the record with which it was kept. These facts do not disprove the positive assertion of P.W. 64 unless his statement is challenged. More so, P.W.1 corroborated him stating that this copy and the other copy seized from jail are identical. P.Ws.1 and 64 corroborated the collection of the true copies of the FIR from the said offices. P.W.64 proved the copy recovered from the judicial record of Inspector General of Police and the defence failed to shake his testimony. The grounds on which they have been discarded are not cogent and legal, and the defects are trifling in nature. It failed to consider the nature of the offence, the power and influence of the accused persons during the time, their involvement in the case, the situation prevailing in the country during the relevant time and the delay in reviving the case by surpassing a path strewn with thorns of prickles.

What is more, admittedly the Lalbagh police recorded the case as Lalbagh P.S. Case No.11 dated 4th November, 1975, in pursuance of the FIR lodged by P.W.1. Therefore, I find nothing wrong, rather the date mentioned in it after the signature of P.W.1 in exhibit-1 was correct one with reference to the case registered with the Lalbagh police station. These facts coupled with the testimony of P.W.64 led us to infer that the High Court Division erred in disbelieving the prosecution’s claim of collection of the true copies of the FIR, exts-1 and 3. The learned Judges failed to notice that exhibit-1 was seized by P.W.64 and the defence did not challenge his testimony on the question of seizure of the copy from Dhaka Central Jail. Therefore, fact remains that P.W.64 seized a true copy of the FIR, ext-1, from the custody of the Central Jail authority and collected another copy from the office of the I.G. of Police which are identical and legally admitted into evidence.