Home : Supreme Court of Bangladesh

Serial No.	Name of the Parties, Citation and Key Words	Summary of the case	Key Ratio
1.	Dr. Miah Md. Mohiuddin & ors Vs. The State & ors (Hasan Foez Siddique, CJ) 17 SCOB [2023] AD 1 Key words: Circumstantial evidence; confessional statements; section 164 of the Code of Criminal Procedure; article 33 (2) of the Constitution; motive; Section 10 and 30 of Evidence Act 1872	This is a case where a renowned Professor of University of Rajshahi was brutally murdered by one of his colleagues. There were no eye witnesses. Based on the circumstantial evidence police arrested the caretaker of the house where the victim lived. The arrested accused confessed under section 164 of the Code of Criminal Procedure, 1898. Accordingly the investigation Officer arrested other co-accused and two of them confessed. But the mastermind of the killing, an Associate Professor of the same University declined giving any confessional statement. The Appellate Division found that the strong circumstantial evidence coupled with confessions of the co-accused and motive of killing proved by the prosecution point unmistakably to the guilt of the mastermind of the murder and confirmed the conviction and sentence awarded by the High Court Division. Appellate Division also discussed the effect of alleged prolonged police custody upon the acceptability of confessional statement of one of the convicts and discrepancy between confession and medical evidence.	Section 164 of the Code of Criminal Procedure If a confessional statement does not pass the test of voluntariness, it cannot be taken into consideration even if it is true: The Evidence Act does not define “confession”. The courts adopted the definition of “confession” given in Stephen’s Digest of the Law of Evidence. According to that definition, a confession is an admission made at any time by a person charged with crime, stating or suggesting the inference that he committed that crime. The act of recording a confession is a very solemn act and section 164 of the Code of Criminal Procedure lays down certain precautionary rules to be followed by the Magistrate recording a confession to ensure the voluntariness of the confession. In such a case, the accused being placed in a situation free from the influence of the Police is expected to speak out the truth being remorseful of what he has committed. A confession can be acted upon if that passes two tests in the assessment of the court. The first test is its voluntariness. If a confessional statement fails to pass the first test, the second test is immaterial. If he does not disclose his complicity in an alleged crime voluntarily, court cannot take into consideration the confessional statement so recorded, no matter how truthful an accused is. (Para 41) When a case against an accused rests completely on circumstantial evidence, the prosecution is required to prove the motive: In a criminal case, motive assumes considerable significance. Where there is a clear proof of motive for the offence, that lends additional support to the finding of the Court that the accused is guilty. When a case against an accused rests completely on circumstantial evidence, the prosecution is required to prove the motive of the accused for committing the offence. (Para 52)
2.	Terab Ali & ors Vs. Syed Ullah & ors ( Md. Nuruzzaman, J) 17 SCOB [2023] AD 34 Key Words: Persuasive efficacy; interpretation of law; Article 111 read with Article 149 of the Constitution of Bangladesh, 1972	The petitioner-judgment debtor filed an application for dismissal of an execution case as being time barred. The learned Senior Assistant Judge rejected the application relying on a synopsis of a decision of one of the High Courts of Pakistan passed in 1998 published in a D.L.R. reference book which was affirmed by the High Court Division. The Appellate Division, however, found that the decision of the High Court of Pakistan is not applicable in our jurisdiction after 25th March 1971 and detailed as to which precedents of Dhaka High Court, Federal Court of Pakistan, Supreme Court of Pakistan, Calcutta High Court, Federal Court of India and the Privy Council are binding on us and which are not. Finally, finding that the execution proceeding was initiated after 3 years beyond the permissible period under Article 182 of the Limitation Act, dismissed the execution case.	Which precedents are applicable in our jurisdiction: Regarding the binding effect of precedents of Supreme Court, Article 212 of the Government of India Act 1935; Article 163 of Constitution of Pakistan 1956 and Article 63 in Constitution of Pakistan of 1962 served the purposes of the present Article 111 of Bangladesh Constitution. By dint of the above mentioned constitutional provisions the case laws of the then higher courts namely Dhaka High Court, Federal Court of Pakistan (14 August 1947 of its independence to 1956); Supreme Court of Pakistan (1956 to 25 March 1971); Calcutta High Court, Federal Court of India (1935-1947 13th August) the Privy Council (till 13th August, 1947) is applicable with binding effect in our jurisdiction. (Paras 19 and 20)
3.	The State Vs. Badal Kumar Paul (Obaidul Hassan, J) 17 SCOB [2023] AD 43 Key Words: Section 19(1) Serial 3(Kha), 19(4) and 25 of the Narcotics Control Act, 1990; Phensedyl; Codeine Phosphate; Schedule III of the Drugs (Control) Ordinance, 1982	The Appellate Division answered two important questions in this criminal appeal clearing a cloud of confusion as to (i) whether ‘Codeine’ and a derivative of codeine i.e. ‘Codeine Phosphate’, are prohibited items as narcotics and whether its presence in any liquid i.e. phensedyl renders the total amount of phensedyl/liquid as narcotics and (ii) whether having possession or carrying phensedyl is a punishable offence under section 19(1) serial 3(Kha) of the Narcotics Control Act, 1990. The respondent was arrested for having possession of 250 bottles of Phensedyl each containing 100 ml. totaling 25 liters and 72 pieces of Indian woolen mufflers. The trial Court found the respondent guilty under section 19(1) serial 3(Kha) of the Narcotics Control Act, 1990 and sentenced him to suffer imprisonment for life. The High Court Division, however, acquitted him on the ground that “phensedyl” is not a contraband drug under the laws of the land. The Appellate Division taking into consideration the chemical examination report of ‘phensedyl’ and analyzing relevant laws and judicial pronouncements of the highest Courts of Bangladesh and India came to the conclusion that phensedyl contains ‘Codeine Phosphate’ which is a derivative of codeine and its presence in the drug renders the total amount of phensedyl as narcotics and, therefore, possessing or carrying phensedyl is a punishable offence under section 19(1) serial 3(Kha) of the Narcotics Control Act, 1990. Thereafter, it set aside the judgment and order of the High Court Division and restored the same of the trial Court.	Since codeine phosphate is a derivative of codeine, it thus also stands as a ‘Ka’ class narcotic under Schedule-I of the Narcotics Control Act, 1990: ‘Codeine phosphate’ is a derivative of codeine and codeine is a scheduled narcotic under Section 19(1) Serial 3 of the Narcotics Control Act, 1990, which is an opium derivative. In schedule-I of the Narcotics Control Act, 1990 three categories of narcotics have been enumerated. The derivatives of opium have been mentioned in serial 3 of ‘Ka’ class of narcotics, where codeine is one of the derivatives. So, indisputably according to the Narcotics Control Act, 1990 ‘codeine’ is a scheduled narcotic and it is prohibited. Guidelines for evaluation of medical products proposed in Annexure–III of the Report of the Expert Committee for Drugs on the National Drug Policy of Bangladesh, 1982 strictly prohibits the use of codeine in any combination form as it causes addiction. Since codeine phosphate is a derivative of codeine, it thus also stands as a ‘Ka’ class narcotic under Schedule-I of the Act. (Para 13) For the purpose of imposing punishment the ‘total amount of substances’ with which the narcotic has been mixed requires to be considered as narcotic substances: Phensedyl is a liquid substance with which a solid substance i.e. codeine phosphate is found mixed. In this circumstance, we are of the view that when any kind of narcotic is found mixed with other substances whether it is liquid or solid, for the purpose of imposing punishment the ‘total amount of substances’ with which the narcotic has been mixed requires to be considered as narcotic substances and the accused will be punished accordingly. In this situation, if the substance with which the narcotic has been found mixed is liquid, the total amount of narcotic substance need to be counted based on volume or mass. (Para 15)
4.	Dr. Zubaida Rahman Vs. The State & anr (Borhanuddin, J) 17 SCOB [2023] AD 54 Key Words: Section 173, 190, 561A of the Code of Criminal procedure; 26(2), 27(1) of the Anti- Corruption Commission Act, 2004; Section 109 of the Penal Code; Fugitive;	In this case, the Anti-Corruption Commission submitted a charge sheet under section 109 of the Penal Code, 1860 against the petitioner along with section 26(2), 27(1) of the Anti-Corruption Commission Act, 2004 for concealing assets in the wealth statement and account of assets. The petitioner filed criminal miscellaneous case seeking quashment of the proceeding under section 561A of the Code of Criminal Procedure and obtained a rule with stay order. Thereafter, a Division Bench of the High Court Division discharged the rule upon hearing. The petitioner being aggrieved preferred this leave to appeal before the Appellate Division. The Court held that submission of charge sheet cannot be treated as finality of investigation until cognizance of the offence is taken by the concerned court. The Court also held that the High Court Division exceeded its jurisdiction by issuing the rule at a stage when the cognizance was not taken and even charge sheet was not produced. Moreover, a fugitive cannot seek justice. In the result, the Appellate Division dismissed the petition with modification of the impugned judgment and order.	Section 173 and 190 of the Code of Criminal procedure: 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. (Para 18) Section 561A of the Code of Criminal procedure: 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. (Para 22)
5.	Md. Khorshed Alam Vs. The State & anr (M. Enayetur Rahim, J) 17 SCOB [2023] AD 61 Key Words: Sections 11 (Ka), 11(Ga) and 27 of the Nari-O-Shishu Nirjatan Daman Ain, 2000;	The question came up for consideration in this case whether a fresh inquiry is required, when a complainant asserts with an affidavit before the Nari-O-Shishu Nirjatan Daman Tribunal that she went to the police station but police refused to accept her complaint, to ascertain if she actually went to the police station. The Appellate Division held that there is no legal necessity to make an inquiry whether the complainant went to the police station and he/she was refused by the police before submitting the complaint before the Tribunal, if the Tribunal is satisfied about the truthfulness of the claim. But the Tribunal can direct anybody other than a police officer to hold an enquiry to find out primarily whether the allegation of committing of offence made in the complaint is true. In such a situation if a police officer is directed to hold an enquiry, cognizance taken on the basis of such enquiry report vitiates entire proceeding. In the instant case the Tribunal convicted and sentenced the Appellant finding him guilty under section 11(Ga) of the Nari-O-Shishu Nirjatan Daman Ain, 2000 and the High Court Division affirmed the conviction but the Appellate Division found that the evidence adduced by the prosecution was not enough to convict the Appellant beyond reasonable doubt and thus acquitted him of the charge.	Section 27 (1 Ka) of the Nari-O-Shishu Nirjatan Daman Ain, 2000: Enquiry must be made by any other person than police: We are of the view that the Tribunal did not commit any illegality in entertaining the complaint filed by respondent No. 2. Section 27 (1 Ka) clearly speaks that if the learned Judge of the Tribunal is satisfied as to the filing of the complaint he can direct the Magistrate or any other person to make an inquiry with regard to the allegation. The expression "Ab¨ †Kvb e¨w³' (any other person) does not include any police officer but, it includes any public officer or any private individual or any other responsible person of the locality upon whom the Tribunal may have confidence to conduct the inquiry in respect of the complaint logged before it. In the instant case the learned Judge of the Tribunal acted illegally in directing the Officer-in-Charge of Pahartoli Police Station to make an inquiry in respect of the complaint and, thereafter, taking cognizance on the basis of such inquiry report has vitiated the entire proceeding. (Para 24 and 25)
6.	Anowar Talukder Vs. The State (Md. Ashfaqul Islam, J) 17 SCOB [2023] AD 69 Key Words: Commutation of death sentence; prolonged custody in condemned cell; Nari-O-Shishu Nirjatan Daman Ain, 2000; sections 4 and 10 of the Nari-O-Shishu Nirjatan (Bishesh Bidhan) Ain, 1995	The petitioner of the case was sentenced to death for murdering his wife. The sentence was confirmed by the High Court Division and was upheld by the Appellate Division. Learned Counsel on behalf of the petitioner submitted during review hearing that death penalty was imposed upon the petitioner based on circumstantial evidence where there were several missing links. Further submission of the Counsel was that the petitioner is in condemned cell for more than 18 years. Therefore, considering his prolonged custody in the condemned cell he should be acquitted. The Appellate Division taking into consideration the prolonged custody in the condemned cell of the petitioner together with the fact that under the Nari-O-Shishu Nirjatan (Bishesh Bidhan) Ain, 1995 sentence of death was the only punishment for an offence committed by the petitioner but subsequently in the Nari-O-Shishu Nirjatan Daman Ain, 2000 imprisonment for life for the same offence was also included, commuted the sentence of the petitioner to imprisonment for life from death.	The law is well settled that there must be some circumstances of a compelling nature together with prolonged custody which would merit consideration for commutation. (Para 13) The condemned prisoner has been languishing with the agony of death in the condemned cell for almost 18 years not due to any fault of his own. That being the situation, the fact of prolonged incarceration together with the discussion that we made above fortified with the recently passed decision of this Division can be considered as a mitigating circumstances and for that reason we are inclined to modify the order of sentence and commute the sentence of death to that of imprisonment for life. (Para 18, 19)
7.	Govt. of Bangladesh & ors Vs. Md. Abdul Jalil & ors (Md. Abu Zafor Siddique, J) 17 SCOB [2023] AD 74 Key Words: Section 5 of Limitation Act, 1908; Condonation of delay; delay made by the government; Section 115(1) of the Code of Civil Procedure	In this case the Government made a delay of 403 days in filing a revisional application before the High Court Division against the judgment and decree of the Appellate Court in which a bil (water body) recorded in Khas Khatian was decreed in favour of the respondents. The High Court Division, however, refused to condone the delay and discharged the Rule. The Government preferred this petition against the judgment and order of the High Court Division. Appellate Division held that the delay was made due to exhaustion of the official formalities which was beyond the control of the Government and it was not an inordinate delay which could not be condoned. Consequently, the Appellate Division set aside the judgment and order of the High Court Division and condoned the delay made by the Government.	Section 5 of Limitation Act, 1908: The delay caused in filing the revisional application by the Government was due to the exhaustion of the official formalities which was beyond its control and it was not an inordinate one, so it should have been condoned: The facts and circumstances clearly indicate that the different offices of the Government are so connected that one cannot work without co-operation and assistance from the other. In the instant case, it appears that the office of the Deputy Commissioner, Netrokona, initiated the proposal to file a revisional application before the High Court Division but it could not do so without obtaining the necessary papers and the opinion of the Government pleader and concerned authority. However, it appears that the record was sent to the office of the Solicitor and thereafter, the record was sent to the office of the learned Attorney General and then an Assistant Attorney General was entrusted to take all necessary steps regarding filing of the same in the High Court Division under section 115(1) of the Code of Civil Procedure. In these circumstances, the reasons for delay of 403 days in filing the revisional application as stated in the application under section 5 of the Limitation Act by the defendant petitioners cannot be disregarded and discarded simply because the individual would always be quick in taking the decision whether he would pursue the application for condonation of delay since he is a person legally injured. Whereas, the state being impersonal machinery has to work through different offices or servants and from one table to another table in different offices. In view of the facts and circumstances of the case it appears that the delay caused in filing the revisional application was due to the exhaustion of the official formalities and as such, the same is beyond the control of the defendant petitioners and moreover, the aforesaid delay of 403 days is not an inordinate one and as such, if the same is not condoned the defendant leave petitioners shall be led to irreparable loss and injury. (Para 16, 17, 18)
8.	Mst. Fatema Vs. The State & ors (Jahangir Hossain, J) 17 SCOB [2023] AD 79 Key Words: Section 526 of the Code of Criminal Procedure; Witness protection	In the instant case the Appellate Division elaborated when police should be given direction to give protection to the witnesses so that they can adduce evidence in the Court without fear. An FIR was lodged by the petitioner following murder of her husband in which police submitted charge sheet and the Court framed charge against the accused persons. But due to continuous threat from the accused persons to the informant and witnesses no witness came forward to adduce evidence in the Court. Rather, they filed several General Diaries in the concerned police station. Thereafter, informant filed a case in the High Court Division under section 526 of the Code of Criminal Procedure for transferring the case from Narayanganj to Dhaka. The High Court Division did not allow the application. Appellate Division, however, considering the fact that witnesses lodged several GDs mentioning the threat from the accused persons opined that High Court Division ought to have directed the law enforcing agency to take necessary steps for ensuring security of the informant and the witnesses of the case so that they could adduce their evidence in the court without any fear and accordingly, directed the police for ensuring the security of the witnesses.	Security of the informant and the witnesses has to be ensured: On perusal of the impugned judgment it reveals that the High Court Division came to a finding that both the parties forced each other to give false testimony or give testimony in favour of either of the parties. And as such the High Court Division ought to have directed the law enforcing agency to take necessary steps for ensuring security of the informant and the witnesses of the case so that they could adduce their evidence in court without any fear. (Para 11) We are of the view that justice would be best served if we direct the Superintendent of Police, Narayangonj to take all necessary steps for ensuring security of the informant and witnesses of the case, so that they may adduce their evidence in the Court without any fear and interruption from any corner. Accordingly, the Superintendent of Police, Narayangonj is directed to take necessary steps in ensuring security of the informant [petitioner] and witnesses of the case so that they may adduce their evidence in the Court in accordance with law. (Para 13 and 14)