Judgment : Appellate Division
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51
National Board of Revenue represented by its Chairman and others
vs
BSRM Steels Limited, represented by it’s Managing Director
Subordinate legislation must not be directly or indirectly in conflict with the provisions of the enabling law.
In addition, it is a revenue generating issue of the state. Public and higher State interest cannot be defeated for the sake of misleading subordinate legislation and procedural glitches. If these are the situations, as the highest court of the land, we opine that the Appellate Division should invoke its mandate under article 104 of the Constitution of Bangladesh for doing complete justice for the national interest.
52
Durnity Daman Commission
Vs
Dr. Khandaker Mosharraf Hossain and another
From the careful reading of the provision of section 540 of the Code it is apparent that the provision of section can apply only to examine or recall and re-examine any such person if his evidence appears to be essential to the just decision of the case.
As per section 8 of the Criminal Law Amendment Act, 1958 (Act No. XL OF 1958) there is a statutory Bar on trial de novo. A Special Judge, unless he otherwise decides, shall not be bound to recall or rehear any witness, whose evidence has already been recorded, or to re-open proceedings already held, but may act on the evidence already produced or recorded and continue the trial from the stage which the case has reached.
53
Deputy Commissioner, Railway Land and Buildings, Bangladesh Railway, Dhaka -Vs- Abdul Huq, Proprietor, Haq`s Bay and another
If we consider the above notification coupled with the provision of section 5 of Ordinance No.24 of 1970 then we have no hesitation to hold that the Divisional Estate Officer of Bangladesh Railway has been empowered by the Government to perform the function of the Deputy Commissioner under the said Ordinance.
54
Sonali Bank Limited
Vs
Mosammat Salma Begum and others
This Court earlier refused to entertain such prayer of the respondent No.1 treating her prayer as an application under section 32 of the Ain. Now, she 6 has adopted the instant procedure claiming her prayer as an application under Order XXI Rule 58 of the Code of Civil Procedure. Under the aforesaid provision, an application has to be filed where any claim is preferred to, or any objection is made to the attachment of, any property attached in execution of a decree on the ground that such property is not liable to such attachment, the Court, shall proceed to investigate the claim or objection with the like power as regards the examination of the claimant objector, and in all respects, as if he was a party to the suit. Rule 59 provides that claimant or objector must adduce evidence to show that at the date of the attachment he had some interest in or was possessed of, the property attached. The aforesaid provisions contemplated an inquiry into questions including questions relating to right, title or interest in the property attached. It seems to us, having regard to the relevant provisions, that the stage at which a claim is to be preferred under Order XXI Rule 58 is intended to be a stage before the sale has actually been held and the attachment is pending. It is open to the Court under sub-rule(2), Rule 58 to postpone the sale pending investigation of the claim. In 7 the instant case auction has already been held at the instance of the bank itself after getting certificate under section 33(5) of the Ain. The High Court Division acted in excess of its authority in allowing claim petition preferred under Order XXI Rule 58 of the Code of Civil Procedure after the property attached was sold.
55
Md. Rabiul Karim and others
Vs.
Golam Morshed Khan and others
It appears from words used in the order of the High Court Division that the Administrative Tribunal by its decision directed the concerned authority to take steps by amending respective 11 “Bidhimala” for giving promotion of the writ petitioners in the post of Kanungo/ Sub- Assistant Settlement Officer. In fact, by the impugned order, the Administrative Tribunal directed to amend the law in giving positive relief of the writ petitioners which cannot be allowed. The Administrative Tribunal cannot direct the Government to amend the law as well as it cannot direct the Government to give promotion of the writ petitioners in the post of Kanungo/ Sub- Assistant Settlement Officer because the promotion is not a right.
56
Nur Alam Howlader alias Pachu alias Sumon alias Nurul Alam and others
-Vs-
The State
A real and abiding concern for the dignity of human life is required to be kept in mind by the courts while considering the confirmation of the sentence of death but a coldblooded and pre-planned brutal murder without any provocation, after committing rape on an innocent and defenceless young girl of 18 years certainly makes this case a rarest of rare cases which calls for no punishment other than capital punishment. Justice demands that courts should impose punishment fitting to the crime so that the courts reflect public abhorrence of the crime. The Courts must not only keep in the view 21 the rights of the criminal but also the rights of the victim of crime and the society at large while considering imposition of appropriate punishment. ....... In the instant case the appellants committed rape upon a defenseless innocent college student and brutally murdered her in her way to college. The atrocity committed by them as evident from their confessional statements is extremely shocking and that reflects such mental depravity of the appellants that they deserve no other punishment than death in order to meet the society’s cry for justice.
57
Md. Mizanur Rahman Mizan
-Vs-
The State
1. CRIMINAL APPEAL NO.77 OF 2012. (From the judgment and order dated 08.07.2012 passed by the High Court Division in Death Reference No.21 of 2008 with Criminal Appeal Nos.1294, 1297 and 1309 of 2008 with Jail Appeal Nos.288, 290 and 289 of 2008.) Md. Mizanur Rahman Mizan Vs. The State It is settled principle that before recording confession caution must be administered to the person who is going to confess. It is the duty of the Magistrate to ascertain whether the same is to be made voluntarily and uninfluenced from any external factor. It is also required to explain to the accused that he was not bound to make a confession and if he does so, it might be used against him. The Magistrate must satisfy himself that no pressure or force was used on the accused who makes the confession. From the confessional statement of the appellant and evidence adduced by the recording Magistrate P.W.19 we are of the view that the confession of the appellant was voluntarily made and the same was not a result of any duress or coercion by Police and the same was recorded after due warning and giving sufficient time for reflection. The Magistrate recorded a memorandum from which it transpired that the confession was made voluntarily. We do not find any material on record relying upon which it can be said that those were not voluntarily made and from facts, circumstances and other evidence on record it appears to us that the contents of the same were true.
58
Md. Anowar Hossain
Vs
The State
From the testimonies of the PWs. 3, 5, 6, 9 and 13 it appears that they are the eye witnesses of the occurrence. All of them stated that the appellant Anwar Hossain inflicted ‘ramda’ blow targeting the head of the victim Monira which had caused severe cut injury on the right jaw of the victim. She died in the spot. We do not find any earthly reason to disbelieve the testimonies of P.Ws.3, 5, 6, 9 and 13 who are natural witnesses of the occurrence. Of them, P.W.3 Shamsunnahar is an injured witness, who in her testimony stated that accused person at first assaulted her and thereafter killed the victim Monira. Learned Advocate for the appellant submits that there are contradictions and discrepancies in the evidence of prosecution witness but we do not find any contradiction in the evidence adduced by the prosecution in which witnesses testified that victim Monira was assaulted by the appellant Anowar Hossain and his ‘ramda’ blow caused fatal injury in the right jaw of the victim leading to her instantaneous death. It is true that PW-3, 5 and 6 are siblings of the deceased victim Monira and PW-13 is her grandmother. They are close relatives of each other. But at the same 11 time, they are the most natural witnesses of the occurrence as the place of occurrence was only about 150 yards away from their homestead as per charge sheet. Mere close relationship among the victims and witnesses cannot render the testimonies of them untrustworthy when it appears that they are the most natural witnesses and their testimonies are supported by the medical evidence.
59
Md. Akbar Ali alias Jelhaque Mondal
Vs
The State and another
Usually in the matter of this nature, testimony of the injured is sufficient to prove the case of the prosecution. An injured witness would not allow the real culprit to escape from rigors of law and falsely implicate her innocent husband. Evidence of injured witness has evidentiary value and unless compelling reasons exist, his/her evidence is not to be discarded 8 lightly. Section 134 of the Evidence Act has categorically laid it down that “no particular number of witnesses shall in any case be required for the proof of any fact.” Testimony of a solitary witness can be made the basis of conviction. So long as the single eye-witness is a wholly reliable witness the Courts have no difficulty in basing conviction on his/her testimony alone. The credibility of the witness requires to be tested with reference to the quality of his evidence which must be free from blemish or suspicion and must impress the Court as natural, wholly truthful and so convincing that the court has no hesitation in recording a conviction solely on his uncorroborated testimony.
60
Md. Dawlat Fakir and others
Vs.
The State
P.Ws.3,4,5,6,10 and 14. They are the most natural witnesses to whom dying declaration was made by the victim. The doctor, who held autopsy of the deadbody of the victim in his crossexamination has said, “উল্লিখিত জখমের পর রুগী কথা বলিতে পারে।” Such evidence makes the dying declaration credible and the conviction based on the same cannot be faulted. Once the Court is satisfied that the dying declaration was true, voluntary and not influenced by any extraneous consideration, it can base its conviction without any further corroboration as rule requiring corroboration is not a rule of law but only a rule of prudence.......
On perusal of Section 30 of the Evidence Act it appears that where confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession. The provision of Section 30 is not conclusive for the reason that only if the Court feels the confession is corroborated with other materials on record, then that can be used against the co-accused and in that situation section 30 of the Evidence Act will come into play. The word ‘may’ in this section is very important to interpret the presence of this term indicates that such a confession can not be said to be ‘evidence’ in its technical sense and thus can only support a conviction. The confession of 15 the co-accused is not the substantive piece of evidence and that it can only be used to confirm the conclusion drawn from other evidence in a criminal trial.
61
The State and others
Vs.
Md. Jamal @ Karati Jamal and others
While sitting in judgment over the acquittal it is required to seek an answer to the question whether the findings are palpably wrong, manifestly erroneous or demonstrably unsustainable. An order of acquittal can be set aside if the Appellate Court is satisfied that reasons in support of acquittal recorded are perverse, non existent, extraneous and order of acquittal palpably wrong or ill founded or demonstrably unsustainable. If the answers are found to be negative the order of acquittal is not to be disturbed. Conversely, if it is found that the order of acquittal cannot at all be sustained in view of the infirmities, the appraisal of the evidence is called for. The paramount consideration of the Court is to ensure that miscarriage of justice is to be prevented. It is the duty of the Court to scrutinize probative material by the weighty thought before upsetting order of acquittal. Generally, the order of acquittal shall not be interfered with because the presumption of 16 innocence of the accused is further strengthened by acquittal.
62
Mujib Ali
Lachu Miah alias Kamal Ahmed
Abdul Bari
Vs.
The State
Conviction can be recorded on the basis of the statement of a single eyewitness provided his credibility is not shaken by any adverse circumstance appearing on the record against him and the court, at the same time, is convinced that he is a truthful witness. Where there are no such exceptional reasons operating it becomes the duty of the court to convict, if it is satisfied that testimony of a single witness is entirely reliable.
63
Government of Bangladesh represented by the Senior Secretary, Ministry of Public Administration, Secretariat Building, Ramna, Dhaka and others
Vs
Md. Saiful Islam and others
Work-charged employees have not only been deprived of their due emoluments during the period they served on less salary but have also been deprived from the pensionary benefits as if services had not been rendered by them though the Government has been benefitted by the services rendered by them. The concept of work-charged employment has been misused by offering the employment on exploitative terms for the work which is regular and perennial in nature. The concept of equality as envisaged in the constitution is a positive concept which cannot be enforced in a negative manner. Therefore, the service rendered by work-charged employees for a considerable period, like 20 years or more, may be considered to be permanent employees and they may be qualified for grant of pensionary benefit, inasmuch as, pension is not a charity, rather, it is the deferred portion of compensation for past service...........
After receiving continuous service for 20 years from a work-charged employee without break, if he is left in uncertainty over his future, that is wholly denying socio-economic justice and completely contrary to Fundamental Principles of State Policy as enumerated in part II of our Constitution. The Government should formulate a policy instrument for giving pensionary and other benefits to the work-charged employees who have served without break for a considerable period of time i.e for 20 years or more. All the authorities should take immediate appropriate action in that behalf.
64
Deputy Commissioner, Brahmanbaria and others
Vs.
Chand Miah, being dead his heirs (a) Most. Hosne Ara Begum and others
From the order-sheet of Title Suit No.59 of 1994, it appears that there is no endorsement in the same that notice upon the pro-forma defendant No.6, Deputy Commissioner, Brahmonbaria was duly served. It further appears from the Order No.17 dated 29.11.1995 that there was an endorsement that defendant Nos.4 and 6 had filed hajira. Both the trial Court and First Revisional Court upon appreciation of the materials on record held that notice upon the Government was not at all served and that the plaintiff obtained ex-parte decree by practising fraud upon the Court. Since the service of notice upon the defendant No.6 has not been proved and court of facts upon appreciation of the materials on record held so, we are of the view that the High Court Division is in second revision erroneously disturbed the findings of facts. A decree obtained by practising fraud is non-existent and cannot be allowed to stand.
65
Md. Raju, Son of Md. Abdur Rouf
Vs
The State and others
From the evidence as stated above, it appears that P.W.1 Most. Rukshana Bewa, P.W.2 Most. Razia Begum, injured witness P.W.3 Arfan, P.W.4 Md. Anwar Hossain, P.W.5 Md. Jamal Uddin, P.W.6 Md. Labu Hossain @ Ziauddin, P.W.7 Md. Moinul Huq, P.W.8 Md. Sonahar and P.W.9 Munsur Ali consistently, in their testimonies, stated that the appellant Younus at first inflicted dagger blow to victim Sujan and, thereafter, to victim Alamgir. Friend Raju inflicted dagger blow to victim Nur Nabi. We do not find any material contradictions and discrepancies in the testimonies of those eye witnesses of the occurrence. Post-mortem reports show that the victims died receiving the stated dagger and ‘shabol’ blows. A critical examination of the evidence of the P.Ws.1,2,3,4,5,6,7,8 and 9 shows that their presence at the time of incident cannot be doubted. The evidence of these eye witnesses has been broadly corroborated by the medical evidence in respect of the deceaseds as well as the injuries sustained by them. The learned Advocates for the appellants failed to satisfy us showing any material contradictions and discrepancies of the testimonies of those eye witnesses. The eye witnesses in their testimonies stated that the accused persons were previously known to them and they inflicted dagger blows mercilessly towards the victims one after another. It further appears that appellant Md. Younus @ Yousuf ordered friend Raju to kill Nur Nabi @ Nabin so that he could not give evidence against them. Pursuant to that order, friend Raju dealt dagger blow on the person of victim Nur Nabi @ Nabin. Consequently, he died on 06.02.2004. Learned Advocate for the petitioner brother Raju has submitted that there is no specific allegation against brother Raju that he had committed any murder or he had any active participation in the offence, therefore, the learned Courts below ought to have acquitted petitioner brother Raju. But scanning the evidence we find that PW-1 stated in her testimony that brother Raju had a dagger in his hand and he had given it to friend Raju who handed over that dagger to Younus and Younus inflicted fatal blows with that dagger to deceased Sujan and Alamgir. This statement was supported by PW-4. Again, PW-6, 8 and 9 stated that brother Raju had a dagger in his hand. Besides, PW-1 stated in her examination-in-chief that brother Raju had dealt a shabol blow to her husband victim Alamgir. In view of the evidence recorded above, we do not find any illegality or irregularity in the conclusion arrived at by the trial Court as well as the High Court Division.
66
Ahmed Ali Noor and others
Vs
Nigar Hossain and others
The uniform view of this court is that if section 9 of the Specific Relief Act is utilised the plaintiff need not prove title and title of the defendant does not avail him. Section 9 gives a speedy remedy to a person who has without his consent been dispossessed of immovable property, otherwise, in due course of law, for recovery of possession without establishing title provided that his suit is brought within six months of the date of dispossession. A proceeding under section 9 is intended to be a summary proceeding the object of which is to afford an immediate remedy to an aggrieved party to reclaim possession of which he may have been unjustly denied by an illegal act of dispossession. In our jurisprudence governed by rule of law even an unautahorised occupant can be ejected only in the manner provided by law. The object is to check the tendency of recovery of possession of property by taking law in hand. Even a trespasser in settled possession cannot be dispossessed without recourse to law.
67
Md. Gaisuddin Bhuiyan and others
Vs.
The Secretary, Security Services Division, Ministry of Home Affairs, Bangladesh Secretariat, Dhaka and others.
By now it is settled that though the appointing authority has right to amend/alter the Service Rules to suit the need of time but not to the detriment to the rights or privileges that existed at the relevant time when an employee of such appointing authority entered into its service.
68
The Government of the People’s Republic of Bangladesh, represented by the Secretary, Ministry of Finance, Internal Resources Division, Segunbagicha, Ramna, Dhaka and others.
Vs
Moazzam Hossain, Proprietor of M/s. Abdullah Traders, 12, Madan Pal Lane, Nawabpur Road, Dhaka.
Customs Act, Section 83A: By now it is settled by the pronouncement of the apex court that a show cause notice is required to be served upon the notice receiver. Accordingly section 83A(2) provides that if the demand has the effect of imposing a fresh liability or enhancing an existing liability, a demand notice in writing shall be given by the officer of Customs to the person liable for the payment of additional duty and section 83A(3) mandates that unless otherwise specified in this Act, the due date for payment against the aforesaid demand notice shall be 30(thirty) working days from the date of issuance of such a demand notice by the officer of Customs.....It is apparent that though the petitioner was afforded an opportunity to reply and hearing but the petitioner without availing the opportunity invoke the writ jurisdiction impugning the demand notice. The High Court Division without considering paragraph-4 of the demand notice erroneously declared issuance of demand notice without lawful authority and made the Rule absolute referring section 32(3) of the Customs Act. Section 32 relates to untrue statement, error, etc. .......It appears that the High Court Division made the Rule absolute by taking an erroneous view without interpreting section 83A of the Customs Act in its true perspective. Accordingly, the civil petition for leave to appeal is disposed of with the above observation. Impugned judgment and order dated 01.06.2017 passed by the High Court Division in Writ Petition No.822 of 2015 is set aside.
69
Chariman, Court of Settlement and another
Vs.
Moulavi Syed Karim
Admittedly neither in the Court of Settlement nor in the High Court Division the present appellants filed any written statement or affidavit-in-opposition, not even a scrap of paper in support of their contention. Leave was granted on 09.07.2008 and consequently instant Civil Appeal arose. The appellants by swearing affidavit filed additional paper book on 27.08.2020 annexing some papers and documents such as notice issued by the Ministry of Works dated 29.12.1985, application of Salma Khatun filed before the Court of 3rd Sub-Judge, Dhaka, praying for succession certificate and copy of succession certificate issued to her dated 17.06.1981 and 17.08.1981 respectively, applications filed by the present respondent before the Court of Settlement dated 09.08.1986 and 20.01.1987. None of these documents were before the Court of Settlement or the High Court Division. The appellants by filing these documents on 27.08.2020 before this Division now trying to take an attempt for introducing ‘de novo trial’ on the issues raised for the first time without any pleadings in their concise statement. This civil appeal has been filed under Article 103 of the Constitution. No doubt there are some limitations under Article 103 unlike Article 104 of the Constitution. Both are dissimilar or different from each other. The distinction between the two Articles must be maintained. Under Article 103 we cannot turn this Division into a trial court for some extraneous plea in appeal on a matter of certiorari. When the documents were not produced either in the trial court or in the High Court Division the principle of estoppel will preclude the appellant from asserting something contrary to what is implied by a previous judicial statement or actions.
70
The Secretary, Bangladesh Bar Council, Dhaka
Vs.
Maksuda Parvin and others
It seems that the petitioners filed the writ petition on behest of the Prime University to regularize the wrong done by the university. In other words it is a test case by the Prime University to cover their wrong done and legalize other more than 1300 law students who completed LL.B (pass) course from the said University in violation of the undertaking by the university. This cannot be allowed.
71
Dr. Zubaida Rahman, wife of Mr. Tarique Rahman
Vs.
The State and another
It appears that the High Court Division discharged the Rule on the findings that: (i) no cognizance had yet been taken against the petitioner as per section 4(1) of the Criminal Law Amendment Act, 1958 (ii) the allegations brought against are not preposterous rather there are specific allegations in the FIR and the charge sheet and truthfulness thereof can only be determined by taking evidence in the trial and (iii) investigation report (charge sheet) having already been submitted recommending prosecution of the petitioner and the matter is at the stage of taking cognizance, it would not be just to interfere with the proceedings by exercising power vested in section 561A at this stage. We are in conformity with the reasonings of the High Court Division in discharging the Rule. But we failed to understand that how a Division Bench of the High Court Division entertained the application under section 561A of the Code of Criminal Procedure by issuing Rule and granting order of stay at the stage when even cognizance was not taken against the petitioner and the petitioner did not surrender before the competent court of law. From paragraph no.6 of the application under section 561A of the Code of Criminal Procedure the petitioner stated that ‘on 31.03.2008 vide a memo being no.4563 dated 27.03.2008 of the Head Office of the Anti-Corruption Commission a charge sheet was submitted under section 109 of the Penal code against the petitioner.’ It is further stated that ‘the learned Additional Chief Metropolitan Magistrate kept the matter for further order on 07.04.2008 as is evident from the order dated 05.03.2008.’ From the above it is obvious that no cognizance of the offence against the petitioner was taken. It may be mentioned here that the Additional Chief Metropolitan Magistrate is not competent to take cognizance of an offence under section 109 of the Penal Code which is exclusive jurisdiction of a Special Judge under section 4(1) of the Criminal Law Amendment Act, 1958. Before the case records alongwith charge sheet could be forwarded to the Special Judge, the petitioner moved the High Court Division under section 561A of the Code of Criminal Procedure and Rule was issued staying proceedings of the case. The High Court Division interfered in this case purporting to exercise its inherent power under section 561A of the Code of Criminal Procedure at the stage when only charge sheet was submitted by the Dudak, and from the records it does not appear nor is it the case of the petitioner that the case records has been sent to the Special Judge or cognizance of the offence has been taken against the petitioner. It is settled Principal of law that initiation of a criminal proceedings starts after taking cognizance of offence. Submission of charge sheet cannot be treated as finality of investigation until cognizance of the offence is taken by the appropriate court...... Furthermore, the Rule issuing Bench of the High Court Division overstepped in its jurisdiction in not considering that the petitioner filed the application under section 561A of the Code of Criminal Procedure without surrendering to the jurisdiction of the appropriate court and thus illegally entertained the application under section 561A and stayed further proceedings of the case. It is well settled that when a person seeks remedy from a court of law either in writ jurisdiction or criminal appellate, revisional or miscellaneous jurisdiction under section 561A of the Code of Criminal Procedure, he/she ought to submit to due process of justice. The Court would not Act in aid of an accused person who is a fugitive from law and justice.
72
Md. Montaj Uddin
Vs.
Ministry of Public Administration and others
The high handedness of the respondent nos.6 and 7 is reflected from the investigation report submitted by the Chief Judicial Magistrate as well as High Powered Committee formed by the Ministry of Education. The High Powered Committee submitted its report on 04.05.2015 and the High Court Division passed the impugned judgment and order with the observation on 28.07.2016. Thereafter, almost 6 years have been elapsed but no action has been taken as per recommendation of the High Powered Committee as well as observation of the High Court Division. It appears that the inquiry held by the High Powered Committee by the Ministry of Education found prima-facie truthfulness of the allegation. We are of the view that the Government may proceed on the basis of that investigation report without further delay. Accordingly the civil petition for leave to appeal is disposed of with the above observation.
73
The Government of the People’s Republic of Bangladesh, represented by the Secretary, Ministry of Land, Bangladesh Secretariat, Ramna, Dhaka
Vs.
Md. Abdul Hye and others
Observations made by the High Court Division, in our opinion, are not warranted in the context of the issue before court. The High Court Division ought to have kept in mind that it was the legislative decision of the State which was the subject matter of dispute before it, while the High Court Division undoubtedly has the jurisdiction to determine the constitutionality of the ‘law’, the motives behind the law and the wisdom of the legislative body are not amenable to the judicial review.
The object of mandamus is to prevent disorder from a failure of justice and is required to be granted in all cases where law has established no specific remedy and whether justice despite demanded has not been granted. However, ordinarily the court will not exercise the power of the statutory authorities. It will at the first instance allow the statutory authorities to perform their own functions and would not usher the said jurisdiction itself.
Our considered view is that a writ of mandamus cannot be issued to the legislature to enact a particular legislation. Same is true as regards the executive when it exercises the power to make Rules, which are in the nature of sub-ordinate legislation. There is no statutory compulsion, on the part of the Government to enact a law in respect of properties which are vested to the Government and where institution have already been developed to be named after the name of the original owner.
It appears that the Government enacted a law, Act of 2001 (Amended in 2013), to dealt with the vested properties fairly and reasonably in accordance with the law. As such, there is no necessity to issue directions upon the Government regarding the vested properties.
74
Ariful Islam Shimul
Vs.
The State.
On perusal of the deposition of the witnesses it is found that there are minor discrepancies in the statement of the witnesses but those minor discrepancies do not affect the core of the prosecution case and cannot be the ground to disbelieve the evidence adduced by the prosecution.
The submissions of the learned Advocate that the prosecution failed to prove its case because of inability to bring independent witnesses do not merit consideration. Submission of the learned Advocate for the appellant regarding delay of 1(one) year in recording the statements of witness no.5 by the investigating officer cannot be a ground to discard the evidence. In the instant case as many as 3(three) different Police Officers investigated the case for cogent reason and it is apparent that the change of investigating officers contributed to the delay in examining the witness. Under such circumstances, any delay in examining the witness under section 161 of the Cr.P.C. will not prejudice the prosecution case.
75
Government and Bangladesh represented by the Senior Secretary, Ministry of Land and others Vs. Md. Selim Khan and others
The High Court Division cannot assume the power and jurisdiction of a particular authority conferred by a specific law/statute in exercising power under Article 102 of the Constitution of the People’s Republic of Bangladesh and thus, the High Court cannot declare a particular area as `Balumahal` making a particular law i.e. Ain 2010 nugatory or redundant. Thus, in this particular case the High Court Division has traveled beyond its jurisdiction declaring the mouzas in question as `Balumahal`.
76
Government of Bangladesh and others
Vs
Syed Fazle Elahi Obhi and others
When a Judicial Officer passed an order within the ambit of a particular law i.e. under the Code of Criminal Procedure said order cannot be interfered with under Article 102 of the Constitution of the Peoples Republic of Bangladesh unless said order is without jurisdiction or suffers from quorum non-judice.
77
Imam Sirajul Hoque and another
Vs
Director General Land Record and Survey Tejgaon Dhaka and others
Upon perusal of the above rule it is clear that the Director of Land Records and Surveys has been vested with the power to discharge all functions of a Revenue Officer and shall have all powers of Settlement Officer under rule 42A along with some other rules in respect of all operation under chapter XVII of the State Acquisition and Tenancy Act.
78

Bangladesh and Others
Vs
Ocean Containers Limited

From the SRO 354 dated 02.12.1999 it appears that the gazette notification was not operated by giving retrospective effect as such applications seeking exemption by the petitioner company were rejected justly and correctly by the NBR inasmuch as the ‘container terminal’ of the petitioner company was not entitled to get tax exemption before publication of gazette notification dated 02.12.1999. As the ‘container terminal’ in question was not within the purview of physical infrastructure facility when the petitioner company filed application seeking tax exemption and thus the NBR justly and legally rejected the application for exemption and also correctly rejected the review application dated 31.01.2000 seeking review of earlier order dated 18.10.1999 since there left no scope to review of that application by the NBR. Accordingly, we hold that the SRO No.354-Ain/99 dated 02.12.1999 having effect from the date of its publication left no scope to allow tax exemption to the ‘Unit-2’ of the respondent company and the NBR justly and legally rejected the applications filed by the respondent company.

79

Bangladesh and Others
Vs
Pragati Insurance Limited and others

It is apparent that budget speech by the Finance Minister is not enactment of Parliament but only financial proposals. The law is enacted when it is legislated by the Parliament and assented by the President of the Republic....
It is cardinal principle of construction that every statute is primafacie prospective unless it is expressly or by necessary implication made to have a retrospective operation.....
Admittedly, in the cases in hand competent VAT authority issued demand cum show cause notice upon the respondent-companies under section 55(1) of the VAT Act. Respondent companies prayed time for reply on the plea of pending representation of their Association to the NBR regarding explanation on the issue of charging VAT on “Insurance Commission Agent”. Waiting for few months, VAT authority issued notice fixing date of hearing. But the respondents without appearing in the hearing invoked the writ jurisdiction under Article 102 of the Constitution. From the demand cum show cause notice it is apparent that an adjudication process was initiated and the respondents sought time in writing to reply and thus the process awaiting adjudication. Against the adjudication order, forum of appeal is prescribed in the VAT Act. At this juncture, the writ petitions filed by the respondents as petitioners are not maintainable.

80

Mohammad Ali @ Sakil
Vs
The State

During recording of his confessional statement under section 164 of the Code of Criminal Procedure, the condemned-appellant Mohammad Ali @ Shakil stated that he was aged about 21 years. Having considered the evidence on record, the confessional statement as well as the statement recorded under section 342 of the Code of Criminal Procedure, we are of the view that the condemned-appellant was not a minor at the time of commission of the offence. Therefore, he was not entitled to get the privilege under the Children Act, 1974 so far as those relate to youthful offenders.

81

Government and others
Vs
Md. Mainul Haque and others

As per the relevant Nitimala there is no scope to give MPO to a teacher who has been appointed out of pattern and the writ petitioners having been appointed as a non-MPO post against the section teacher and their claimed of MPO benefit by avoiding the said ‘Nitimala’ cannot be enforced.

82

Hazrat Ali
Vs
The State, represented by the Deputy Commissioner, Dhaka

Evidence on a point is to be judged not by the number of witnesses produced but by its inherent truth.

83

Rafiqul Islam Sheikh,
Md. Mohon Khalifa,
Md. Mohon Khalifa and others.
Vs
The State.

In the instant case there is some inconsistency between confessional statements and postmortem report of the victim regarding the manner of killing. But this inconsistence does not create any doubt for the prosecution to prove its case as because the surrounding circumstances couple with confessional statements made by the condemned prisoners made them guilty in this case, thus, the inconsistency between postmortem report and confessional statements will not make any hindrance to establish this case for the prosecution.

84
Mr. Md. Sanaullah, (Retired)
Vs
Government of Bangladesh and others
In the instant case there was no judicial or departmental proceedings pending against the petitioner at the time of his retirement; even no proceedings either judicial or department had been initiated against him within a year of his retirement. Thus, the action taken by the authority stopping the pay of the pension to the petitioner has no legal basis.
85
Ahsan Shorfun Nur
Vs
The Administrator of Waqfs and others
We have no hesitation to hold that the Administrator of Waqf has got no jurisdiction to appoint a Mutawalli in a proceeding under section 32 of the Waqfs Ordinance, in particular appointing Joint Mutawalli along with the existing Mutawalli beyond the terms of deed of Waqf.
86
Director General (DG), Directorate General of Health and Service, Mohakhali, Dhaka and another.
Bangladesh, represented by the Secretary, Ministry of Health and Family Welfare, Dhaka and others.
Dr. Abu Saeed and others.
-Versus-
Dr. Md. Tajul Islam and others.
Dr. Abdul Karim and others.
It has to be borne in mind that the function or duty of a Court is not to do charity; rather it has to act in accordance with law to ensure justice. If an aspirant candidate or a participant of a particular selection process is provided job later on without participation in later selection process as decided by the concerned authority then this will create havoc in regular selection process and eligible and meritorious candidates will be deprived from getting job.
87
Minaz Ahmed and another
=Vs=
Arif Motahar and others
Having discussed as above we are of the view that in the cases initiated by the agency(s)/ organization(s) other than the Commission at the pre-trial stage before taking cognizance by the Special Judge, the Magistrate concerned is not powerless to entertain the application for bail of an accused under Money Laundering Protirodh Ain,2012.
88
The State Vs. Badal Kumar Paul
 Since codeine phosphate is a derivative of codeine, it has to be considered as scheduled narcotics and any portion of the mixture of codeine phosphate with any other liquid substance shall render the total amount of liquid substance as narcotics substances and punishment will be imposed based on the quantity of total amount of such combination.  Since the existence of codeine phosphate makes Phensedyl a narcotic combination, the possession of or carrying of Phensedyl is thus a punishable offence under Section 19(1) Serial 3 of the Narcotics Control Act, 1990.  It is well settled principle that if the prosecution case is proved otherwise beyond reasonable doubt based on evidence, the accused can be convicted despite the seizure list witnesses denied supporting the prosecution case i.e. recovery and seizure. The trial Court as well as the High Court Division successfully assessed that the prosecution had been able to prove beyond reasonable doubt that 250 bottles of Phensedyl amounting to 25 liters containing Chlorpheniramine Maleate and codeine phosphate have been recovered and seized from the possession of the accused-respondent.
89

Abdur Rashid, Opposite Party No. 6 being dead his heirs Mohammad Hossain and others
=Vs=
Nurul Amin alias Abu Taher and others

In the present case the vendor-opposite party Sekandar Mia sold the case land to pre-emptee-opposite party Feroj Mia who was a stranger in the case land and said Feroj Mia transferred the land to opposite party no.6 Abdur Rashid, predecessor of the present appellants, on 21.06.1992 who was a co-sharer in the holding as such considering the view taken by their lordship in the case of 50 C.W.N. 806 as well as 35 DLR 238 and also distinguishing the facts of 35 DLR (AD) 225, We have no hesitation to hold that even after subsequent transfer by the stranger pre-emptee to another co-sharer of the holding, the pre-emptory right of a cosharer pre-emptor will not be defeated as because the subsequent transfer is subject to the right available against the original transfer and the subsequent transferee would be impleaded as party in the pre-emption proceeding and he would be entitled to get the consideration and compensation money as deposited by the pre-emptor.

90

Abdul Gaffar (Officer-in-Charge, Tejgaon Police Station, Dhaka) and another
=Vs=
Md. Mohammad Ali (Writ Petitioner) and others.

Compensation for doing excesses in abuse of the power of Police

Since both the appellants filed application admitting that being junior police officer they could not dealt with the matter in appropriate manner and tenders unconditional apology and also considering their entire service career, we are inclined to condone the compensation amount of Tk.5000/- as directed by the High Court Division to pay by each of the appellant nos.1 and 2 to the petitioner. The police personnel should keep in mind that the police force being specially trained as disciplined force and enjoys extra benefits and protection are maintained by the Government with tax money of the public for the purpose to serve the public as such the police personnel should be more cautious to maintain dignity of their profession as well as protect human rights of the citizens along with other rights enshrined in the constitution.

91

Commissioner, Customs, Excise and VAT Commissionerate, Jassore and others
=Vs=
M/S. Perfect Tobacco Company Ltd., represented by its Managing Director

Section 42 of the VAT Act and article 102 of the Constitution of Bangladesh

In the instant case the writ-petitioner impugned adjudication order dated 15.08.2007 passed by the writ-respondent no.2 Assistant Commissioner, Customs, Excise and VAT Division, Kushtia which is an appealable order under section 42(1)(Ka) of the VAT Act and section 42(2)(Ka) mandates that 10% of the demanded VAT is to be deposited at the time of filing of the appeal. When there is a statutory provision to avail the forum of appeal against an adjudication order passed by the concern VAT Official then the judicial review under Article 102(2) of the constitution bypassing the appellate forum created under the law is not maintainable.

92
Durnity Daman Commission =Vs= Dr. Khandaker Mosharraf Hossain and another
From the order dated 25.01.2022 passed by the High Court Division in Criminal Appeal No.9295 of 2021
93
RAJUK and another =Vs= Dr. Tofail Hoque and another
From the judgment and order dated the 30th day of July, 2017 passed by the Appellate Division in Civil Petition for Leave to Appeal No.800 of 2016
94
Md. Abdul Gafur alias Milon and others =Vs= The State
From the judgment and order dated the 19th day of August, 2010 passed by the High Court Division in Death Reference No.115 of 2005 with Criminal Appeal Nos.3655, 3481, 3945 and 8389 all of 2005 and Jail Appeal Nos.893, 894, 895 and 896 all of 2005
95
Bangladesh, represented by the Secretary, Ministry of Health and Family Welfare, Bangladesh Secretariat, Dhaka and others =Vs= Md. Kamal Hossain and others
In view of the above two reported cases the earlier decision by this Division as reported in 18 MLR(AD), 372 has become in-operative and redundant. So it is now well settled that Court cannot pass an order to absorb the employees/officers of a project who have been appointed on contract basis under the revenue budget unless there is any statutory provision and thus the respondents claim of absorption in revenue budget on the principal or theory of legitimate expectation has got no legal basis.
96
Noor Mohammad alias Kalu alias Kalu Chor alias Kalo Dakat Vs. The State
From the judgment and order dated 20.11.2012 passed by the High Court Division in Death Reference No.93 of 2007 with Criminal Appeal No.6126 of 2007 and Jail Appeal Nos.1178-1180 of 2007
97
Md. Rafiqul Islam alias Rafique Vs. The State
From the judgment and order dated 12.05.2008, 13.05.2008 and 14.05.2008 passed by the High Court Division in Death Reference No.145 of 2004 with Criminal Appeal No.3664 of 2004 and Jail Appeal No.1185 of 2004.
98
Monir Ahmed Vs. The
From the judgment and order dated 27.11.2012 passed by the High Court Division in Death Reference No.39 of 2007 with Jail Appeal No.541 of 2007.
99
Bangladesh, represented by the Secretary, Ministry of Health and Family Welfare, Bangladesh Secretariat, Dhaka and others =Vs= Md. Kamal Hossain and others
In view of the above two reported cases the earlier decision by this Division as reported in 18 MLR(AD), 372 has become in-operative and redundant. So it is now well settled that Court cannot pass an order to absorb the employees/officers of a project who have been appointed on contract basis under the revenue budget unless there is any statutory provision and thus the respondents claim of absorption in revenue budget on the principal or theory of legitimate expectation has got no legal basis.
100
Md. Aminul Islam =Vs= The State
From the judgment and order dated 10.10.2013 passed by the High Court Division in Death Reference No.62 of 2008 with Criminal Appeal No.4028 of 2008 and Jail Appeal No.721 of 2008
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