Absence of motive demands deeper forensic search of the evidence:
It is true that proof of motive is not necessary to sustain a conviction but when the prosecution puts forward a specific case as to motive for the crime, the evidence regarding the same has to be considered in order to judge the probabilities. Proof of motive satisfies the judicial mind about the likelihood of the authorship of the crime. In its absence, it demands deeper forensic search of the evidence. …Md. Humayun Kabir Vs. The State, (Criminal), 15 SCOB [2021] AD 76
Competency of a child witness to testify:
A child may be allowed to testify, if the court is satisfied that the child is capable of understanding the question put to him and give rational answers to the Court. Before examining a child as a witness the Court should know his intellectual capacity by putting a few simple and ordinary question to him and should also record a brief proceeding of the inquiry. …Md. Humayun Kabir Vs. The State, (Criminal), 15 SCOB [2021] AD 76
The evidentiary value of extra-judicial confession depends upon the veracity of the witnesses to whom it is made and the circumstances in which it is made:
It is the duty of the Court to look into the surrounding circumstances and to find whether the extra-judicial confession is not inspired by any improper or collateral consideration or circumvention of the law suggesting that it may not be true one. The evidentiary value of such statement depends upon the veracity of the witnesses to whom it is made and the circumstances in which it came to be made and actual word used by the accused. Such statement must pass the test of reproduction of exact words, the reason or motive of making such statement. …Md. Humayun Kabir Vs. The State, (Criminal), 15 SCOB [2021] AD 76
When accused is entitled to benefit of doubt:
Court’s decision must rest not upon suspicion but upon legal grounds establish by legal testimony. Mere suspicion, however, strong, cannot take the place of proof. It is well settled principle that where on the evidence two possibilities are open, one which goes in favour of prosecution and the other benefits the accused, the accused is entitled to the benefit of doubt. …Md. Humayun Kabir Vs. The State, (Criminal), 15 SCOB [2021] AD 76 ....View Full Judgment

Acquittal:–– Discharge cannot be taken as acquittal–– The misappropriation is only Tk. 1,60,200/- committed about 34 years ago it will be difficult on the part of prosecution to prove the charge after splitting into ten cases. Therefore, we have taken a lenient view on the question of retrial of the petitioner on consideration of the fact that the petitioner has suffered in jail custody for sometime and he is not in service. Accordingly, we set aside the conviction of the petitioner and instead of remanding the matter, we discharge him of the case. This order of discharge cannot be taken as acquittal and the petitioner cannot claim reinstatement in his service on consideration of his conduct. .....Bashir Ahmed =VS= DC, Magura, [3 LM (AD) 541] ....View Full Judgment

Active service– Active service”, as applied to a person subject to this Act, means the time during which such person is attached to, or forms part of a force which is engaged in operations against an enemy, or is engaged in military operations in, or is on the line of march to, a country or place wholly or partly occupied by an enemy, or is attached to or forms part of a force which is in military occupation of a foreign country; (Per Md. Tafazzul Islam, J) ...Major Md. Bazlul Huda(Artillery) =VS= The State(Banga Bandhu Murder Case), [9 LM (AD) 386] ....View Full Judgment

Aggravating and Mitigating Circumstances– The 1991 Act placed these pre-existing practices on statutory foundation. English judiciary has treated (a) offences by groups or gang, (b) offences against young, elderly or otherwise vulnerable victims, (c) offences involving the abuse of trust or authority, (d) offences involving planning or organisation, (e) offences involving political murder or attempted murder or terrorism oriented offences (Al-Banna, re-Hindwai, supra), as aggravating offences.
Greater culpability is the answer where the offender commits an offence against a vulnerable victim such as an old, very young, disabled etc (re: Allen and Bennet 1988 10 Cr. App. R. (S) 466).
The Floud Committee included grave harm to justify additional imprisonment in such offences which lead to death, serious bodily injury, serious sexual assault, severe or prolonged pain or mental distress, (Floud and Young 1981 P 118-119). In re-Fowcet (1995 16 Cr. App. R (S) 55) the Court of Appeal observed that some factors, such as irrationality of the behaviour, the selection of vulnerable persons or a particular class of person or target, unusual obsession or delusions, will naturally assume prominence.
In 1993 Practice Direction, the Lord Chief Justice stated that Judges should specify the period to be served in all but very exceptional cases which are so serious that the Judge believes that the offender should be detained for his natural life (1993 96 Cr. App. R 397).
In the UK notion of general deterrence, which is different from individual deterrence, is often invoked to justify severe sentence for crimes of high seriousness. (Paras: 869-873); .....Allama Delwar Hossain Sayedee =VS= Government of Bangladesh, [2 LM (AD) 76] ....View Full Judgment

Alibi–– Mr. Shajahan’s emphasis on this aspect of defence case was quite fervent. The reason for Mr. Shajahan’s tooth and nail effort is understandable. If it stood proved that the appellant remained away from Pirojpur until July 71, as the alibi witnesses claimed, he can not be guilty of any of the charges, as all the alleged offences took place in May ’71. Although the standard of proof for the prosecution is “beyond reasonable doubt”, pleas, taken by the defence, including the plea of alibi, is generally to be proved with civil standard i.e. with preponderance of probability. To substantiate his claimed absence from Pirojpur and transient stay in Jessore upto mid July ‘71, the appellant (as accused) examined some five witnesses namely D.Ws. 4, 6, 8, 12 and 14. He also relied on some documents in this regard. (Paras-800 & 801); .....Allama Delwar Hossain Sayedee =VS= Government of Bangladesh, [2 LM (AD) 76] ....View Full Judgment

Alibi–– Mr. Shajahan’s emphasis on this aspect of defence case was quite fervent. The reason for Mr. Shajahan’s tooth and nail effort is understandable. If it stood proved that the appellant remained away from Pirojpur until July 71, as the alibi witnesses claimed, he can not be guilty of any of the charges, as all the alleged offences took place in May ’71.
Although the standard of proof for the prosecution is “beyond reasonable doubt”, pleas, taken by the defence, including the plea of alibi, is generally to be proved with civil standard i.e. with preponderance of probability. To substantiate his claimed absence from Pirojpur and transient stay in Jessore upto mid July ‘71, the appellant (as accused) examined some five witnesses namely D.Ws. 4, 6, 8, 12 and 14. He also relied on some documents in this regard. (Paras-800 & 801); .....Allama Delwar Hossain Sayedee =VS= Government of Bangladesh, [2 LM (AD) 76] ....View Full Judgment

The Appellate Court’s jurisdiction is co-extensive with that of the trial court:
The Appellate Court’s jurisdiction is co-extensive with that of the trial court in the matter of assessment, appraisal and appreciation of the evidence and also to determine the disputed issues. ...The State Vs. Nurul Amin Baitha and anr, (Criminal), 18 SCOB [2023] AD 1 ....View Full Judgment

Acquittal:–– Discharge cannot be taken as acquittal–– The misappropriation is only Tk. 1,60,200/- committed about 34 years ago it will be difficult on the part of prosecution to prove the charge after splitting into ten cases. Therefore, we have taken a lenient view on the question of retrial of the petitioner on consideration of the fact that the petitioner has suffered in jail custody for sometime and he is not in service. Accordingly, we set aside the conviction of the petitioner and instead of remanding the matter, we discharge him of the case. This order of discharge cannot be taken as acquittal and the petitioner cannot claim reinstatement in his service on consideration of his conduct. .....Bashir Ahmed =VS= DC, Magura, [3 LM (AD) 541]

Active service– Active service”, as applied to a person subject to this Act, means the time during which such person is attached to, or forms part of a force which is engaged in operations against an enemy, or is engaged in military operations in, or is on the line of march to, a country or place wholly or partly occupied by an enemy, or is attached to or forms part of a force which is in military occupation of a foreign country; (Per Md. Tafazzul Islam, J) ...Major Md. Bazlul Huda(Artillery) =VS= The State(Banga Bandhu Murder Case), [9 LM (AD) 386]

Aggravating and Mitigating Circumstances– The 1991 Act placed these pre-existing practices on statutory foundation. English judiciary has treated (a) offences by groups or gang, (b) offences against young, elderly or otherwise vulnerable victims, (c) offences involving the abuse of trust or authority, (d) offences involving planning or organisation, (e) offences involving political murder or attempted murder or terrorism oriented offences (Al-Banna, re-Hindwai, supra), as aggravating offences. Greater culpability is the answer where the offender commits an offence against a vulnerable victim such as an old, very young, disabled etc (re: Allen and Bennet 1988 10 Cr. App. R. (S) 466). The Floud Committee included grave harm to justify additional imprisonment in such offences which lead to death, serious bodily injury, serious sexual assault, severe or prolonged pain or mental distress, (Floud and Young 1981 P 118-119). In re-Fowcet (1995 16 Cr. App. R (S) 55) the Court of Appeal observed that some factors, such as irrationality of the behaviour, the selection of vulnerable persons or a particular class of person or target, unusual obsession or delusions, will naturally assume prominence. In 1993 Practice Direction, the Lord Chief Justice stated that Judges should specify the period to be served in all but very exceptional cases which are so serious that the Judge believes that the offender should be detained for his natural life (1993 96 Cr. App. R 397). In the UK notion of general deterrence, which is different from individual deterrence, is often invoked to justify severe sentence for crimes of high seriousness. (Paras: 869-873); .....Allama Delwar Hossain Sayedee =VS= Government of Bangladesh, [2 LM (AD) 76]

Alibi–– Mr. Shajahan’s emphasis on this aspect of defence case was quite fervent. The reason for Mr. Shajahan’s tooth and nail effort is understandable. If it stood proved that the appellant remained away from Pirojpur until July 71, as the alibi witnesses claimed, he can not be guilty of any of the charges, as all the alleged offences took place in May ’71. Although the standard of proof for the prosecution is “beyond reasonable doubt”, pleas, taken by the defence, including the plea of alibi, is generally to be proved with civil standard i.e. with preponderance of probability. To substantiate his claimed absence from Pirojpur and transient stay in Jessore upto mid July ‘71, the appellant (as accused) examined some five witnesses namely D.Ws. 4, 6, 8, 12 and 14. He also relied on some documents in this regard. (Paras-800 & 801); .....Allama Delwar Hossain Sayedee =VS= Government of Bangladesh, [2 LM (AD) 76]

Benefit of doubt–– Accused is entitled to the benefit of doubt–– It is well settled principle that where on the evidence two possibilities are open, one which goes in favour of prosecution and the other benefits the accused, the accused is entitled to the benefit of doubt. We are of the view that the prosecution has not been able to prove its case beyond all shadow of doubt against the appellant, so the appellant is entitled to get benefit of doubt. Accordingly, we find substance in the appeal. The appellant Humayun Kabir, son of Liakatulla, of village- Newrain, Police Station Laksham, District Comilla is acquitted on the charge. ...Humayun Kabir(Md.) =VS= The State, [10 LM (AD) 619]

Benefit of doubt–– In Md. Ibrahim Hossain –Vs- The State ( 14 BLD (AD) 253), the Appellate Division emphasised that benefit of doubt can not be given for minor omissions. (Para-761); .....Allama Delwar Hossain Sayedee =VS= Government of Bangladesh, [2 LM (AD) 76]

Capital punishment–– While it is true that many countries have abolished death sentence, the position as it stands today, is that capital punishment prevails in as many as 55(fifty five) countries and 7(seven) countries retain death sentence for exceptional cases. (Source: Amnesty International and Penal Reform International). Countries that retain capital sentence, include the largest democracy, i.e. India, and 33 component States of the United States of America. Some countries, such as Malaysia, Singapore, Saudi Arabia, Trinidad and Tobago retain mandatory death sentence for murder, while some 13 (thirteen) countries prescribe mandatory death sentence for drug trafficking, while 33 (thirty three) countries have death as an alternative sentence for the said offence. (Penal Reform International). (Para-29); .....Ali Ahsan Muhammad Mujahid =VS= The Government of Bangladesh, [2 LM (AD) 65]

Capital sentence–– The Court is bound to award capital sentence– When it is found from the evidence that the death was intentional, the accused used deadly weapon, the incident of murder is gruesome, barbaric and motivated, and there is no extenuating circumstance to award the minimum sentence, the court is bound to award capital sentence. Besides, in the present incident nobody had the opportunity ever to remotely imagine the amount of such ghastly incident. .....Ataur Mridha =VS= The State, [3 LM (AD) 513]

Cognizable offence:–– A complaint of a cognizable offence–– A complaint of a cognizable offence recorded by a Magistrate and sent by him to the police for investigation and report is sufficient information justifying arrest under section 54 of the Code. Similarly, information that a warrant of arrest has been issued against a person in respect of a cognizable offence, may justify action being taken under the said section. Where, from a report of a Chowkider that certain persons were dacoits the police officer called them to surrender, but the latter resisted and fired shots at the officer, the latter was justified in arresting those persons. .....Ministry of Law, Justice & Parl. Afrs. =VS= BLAST, [3 LM (AD) 274]

Cognizable offence:–– Reasonable complaint or suspicion must depend upon the circumstances of each particular case–– Where a police officer suspecting that certain pieces of cloth which a man was carrying early morning, was stolen property, went to him and questioned him and having received unsatisfactory answers, arrested him, he was entitled to arrest him because reasonable suspicion exists of his being concerned of a cognizable offence. Where a person was found armed lurking at midnight in a village inhabited by persons well known to the police as professional dacoits, there was a reasonable suspicion against the person of his being concerned in a cognizable offence. But this does not mean that the police are limited only by their own discretion as to what persons they may arrest without warrant. Their powers in this respect are strictly defined by the Code. In order to act under the first clause, there must be a reasonable complaint or reasonable suspicion of the person to be arrested having been concerned in a cognizable offence. What is a ‘reasonable’ complaint or suspicion must depend upon the circumstances of each particular case; but it should be at least founded on some definite fact tending to throw suspicion on the person arrested, and not on a mere vague surmise. .....Ministry of Law, Justice & Parl. Afrs. =VS= BLAST, [3 LM (AD) 274]

Cognizance of offence:–– Cognizance of offence by a courts of session–– The Indian provision is a bit different from ours. The Indian provision reads as under: “Cognizance of offence by a courts of session –Except as otherwise expressly provided by this court or by any other law for the time being enforce, no court of session shall take cognizance of any offence as a court of original jurisdiction unless the case has been committed to it by a magistrate under this court”. .....Mufti Abdul Hannan Munshi =VS= The State, [3 LM (AD) 566]

Confession:–– Confession is taken to be true, voluntary and inculpatory in nature, a conviction can be given against the maker–– The confessions have been corroborated by circumstantial evidence proved by the witnesses. Even if there is no corroborating evidence, if a confession is taken to be true, voluntary and inculpatory in nature, a conviction can be given against the maker of the statement relying upon it subject to the conditions mentioned above. .....Mufti Abdul Hannan Munshi =VS= The State, [3 LM (AD) 566]

Confidential document–– It is however, to be noted that the case diary is a confidential document. So, it may not be claimed by the accused person at any time for the purpose of assessing and scrutinizing its entries. A criminal court is free to ask for the case diary at any stage of the proceedings. But, the case diary cannot be used as evidence in the trial. .....Ministry of Law, Justice & Parl. Afrs. =VS= BLAST, [3 LM (AD) 274]

Court of appeal:–– Normally Supreme Court does not reassess of the evidence–– Normally Appellate Division does not interfere with the judgment of the High Court Division on appeal if it is found that the judgment is based on proper appreciation of the evidence. It cannot reassess the evidence afresh as a court of appeal to examine whether or not the High Court Division has properly appreciated the evidence. .....Md. Akram =VS= The State, [1 LM (AD) 581]

Credible information–– There was no provision in the Codes of 1861 and 1872, enabling an arrest without warrant on credible information as to the person to be arrested being concerned in a cognizable offence. Such a provision was introduced for the first time in the Code of 1882. The words “credible information” include any information which, in the judgment of the officer to whom it is given appears entitled to credit in the particular instance. It need not be sworn information. The words “credible” and “reasonable” have reference to the mind of the person receiving the information. A bare assertion without anything more cannot form the material for the exercise of an independent judgment and will not therefore amount to “credible information”. The “reasonable suspicion” and “credible information” must relate to definite averments which must be considered by the police officer himself before he arrests a person under this section. .....Ministry of Law, Justice & Parl. Afrs. =VS= BLAST, [3 LM (AD) 274]

Criminal misconduct–– A criminal misconduct is said to have been committed by a public servant, if he accepts or obtains or agrees to obtain or attempts to obtain for himself or for any other person in gratification. .....RAJUK =VS=Manzur Ahmed & Others, [1 LM (AD) 1]

Criticism Judgment–– There is no wrong in critiquing a judgement once it is finally published. However, it must be borne in mind that deliberations during the course of any hearing may not be subjected to analysis or criticism since such comments in a sub judice matter might be prejudicial and taint the mind of the public before the judgement is pronounced. .....The State =VS= Adv. Md. Qamrul Islam, M.P & another, [1 LM (AD) 28]

Delay–– Delay by itself in the execution of sentence of death is by no means an extenuating circumstances for commuting the sentence of death to imprisonment for life. There must be other circumstances of a compelling nature which together with delay will merit such commutation. We find no compelling extenuating circumstances in this case and therefore, find no ground whatsoever to interfere.” (Per Md. Tafazzul Islam, J) ...Major Md. Bazlul Huda (Artillery)=VS=The State (Banga Bandhu Murder Case), [9 LM (AD) 386]

Delay–– As regards the delay, this Court in the original judgment observed that mere delay in filing a case is not a ground for disbelieving the case. ...Major Md. Bazlul Huda (Artillery) =VS= The State, [10 LM (AD) 581]

Death Penalty:–– Abolition of Death Penalty is not Possible–– Our social conditions, social and cultural values are completely different from those of western countries. Our criminal law and jurisprudence have developed highlighting the social conditions and cultural values. The European Union has abolished death penalty in the context of their social conditions and values, but we cannot totally abolish a sentence of death in our country because the killing of women for dowry, abduction of women for prostitution, the abduction of children for trafficking are so rampant which are totally foreign to those developed countries. .....BLAST & others =VS= Bangladesh & others, [1 LM (AD) 286]

Death Penalty:–– A law which is not consistent with notions of fairness and provides an irreversible penalty of death is repugnant to the concepts of human rights and values, and safety and security. .....BLAST & others =VS= Bangladesh & others, [1 LM (AD) 286]

DGFI:–– Responsibility of Directorate General of Forces Intelligence (DGFI)–– An officer of DGFI who has sworn affidavit has also admitted impliedly that the money have been extorted by an officer of DGFI, but according to him, he has acted access of power for which the DGFI shall not take any responsibility. This statement belies the documents submitted by Bangladesh Bank. This force cannot deny its responsibility in view of the fact that after collection of the pay orders the officer communicated his action to its chief. It is claimed by the writ petitioners and also by the learned Counsel that the businessmen have been compelled to attend at a specified office under its control. They were kept sitting from dawn to dusk for days together and sometimes detained there without furnishing any information to their near ones. It was not possible to act as such on the part of one officer without knowledge and concurrence of the authority on consideration of the fact that it was not an isolated incident, rather the arrest, detention and torture both physically and mentally were carried out for days together against dignified and resourceful persons. It was a concerted effort on the part of this agency is beyond reprehensible. Those actions were taken openly and freely, and the same need not be proved. .....Bangladesh Bank=VS=East West Property Developments (Pvt.) Ltd., [3 LM (AD) 106]

Discretion:–– A provision of law which deprives the court to use of its beneficent discretion in a matter of life and death, without regard to the circumstances in which the offence was committed and, therefore without regard to the gravity of the offence cannot but be regarded as harsh, unfair and oppressive. The legislature cannot make relevant circumstances irrelevant, deprive the court of its legitimate jurisdiction to exercise its discretion not to impose death sentence in appropriate cases. Determination of appropriate measures of punishment is judicial and not executive functions. The court will enunciate the relevant facts to be considered and weight to be given to them having regard to the situation of the case. Therefore we have no hesitation in holding the view that these provisions are against the fundamental tenets of our Constitution, and therefore, ultra vires the Constitution and accordingly they are declared void. .....BLAST & others =VS= Bangladesh & others, [1 LM (AD) 286]

Duty of the Court–– It is the duty of the Court to award proper sentence having regard to the nature of the offence and depending upon the degree of criminality, the manner in which it was committed and all attended circumstances. The occurrences of killing of intellectuals were committed with the extremely cruel and beastly manner which demonstrated index of the depraved character of the perpetrators. It will be a mockery of justice to permit the accused to escape the extreme penalty of law when faced with such evidence and such cruel acts. The Judges are carrying out the duty under the Law. The sentence awarded by the Tribunal for intellectuals killings is not disproportionate in view of the nature of charge and evidence adduced. (Para-231); .....Ali Ahsan Muhammad Mujahid =VS= The Chief Prosecutor, ICT, Dhaka, [2 LM (AD) 1]

Imprisonment for life–– A death may be commuted to imprisonment for life–– On the following grounds:- (a) The condemned-prisoner has no significant history of prior criminal activity. (b) Youth of the condemned-prisoner at the time of commission of the offence. (c) The condemned-prisoner would not be likely to commit acts of violence if released. (d) Confinement of the condemned-prisoner in the condemned cell from 09.06.2005 till date i.e. for more than 7 years during which period the sword of death has been hanging on his head. .....BLAST & another =VS= Bangladesh & others, [1 LM (AD) 353]

Imprisonment for life–– Five heads, namely, i) the motive for killing the deceased; ii) last seen theory; iii) recovery of the dead body in a gunny sack together with clothes and a knife; iv) the fact that the two accused persons, who were stated to be brothers, were absconding after the incident and v) the fact that Accused No.2 gave false information. The Sessions Court, on a combination of the aforesaid five factors, ultimately held the two accused guilty of murder and sentenced them to imprisonment for life. There were at least eight factors which led this Court to set aside the judgment passed by the Division Bench of the Andhra Pradesh High Court, on the ground that cumulatively all eight factors would lead to the conclusion that the High Court judgment was perverse. .....Parasa Koteswararao =VS= Eede Sree Hari, [3 LM (SC) 68]

Incumbit probatio qui decit, non qui negat–– means:– The burden of proving a fact rests on the party who substantially asserts the affirmative of the issue and not upon the party who denies it; for a negative is usually incapable of proof. The Appellate Division held that the strong admission being corroborated by documentary evidence, it can be inferred beyond reasonable doubt that the accused was present in Chittagong during the relevant time of occurrences and hence, the plea of alibi taken by the defence is concocted, false and not believable. Since the defence admitted the presence of accused at the crime sites, the prosecution has been able to prove as to whether the accused was involved in those incidents. (Para-127); .....Salauddin Quader Chowdhury =VS= The Chief Prosecutor, ICT, Dhaka, [2 LM (AD) 511]

Individual Culpability–– While offence seriousness is one of the elements of proportionality, culpability of the individual offender is the other principal dimension of offence seriousness. Von Hirsch expressed harm and individual culpability as under; “Harm refers to the injury done or risked by the criminal act. Culpability refers to the factors of intent, motive and circumstances that determines how much the offender should be held accountable for his act. Culpability, in turns, affects the assessment of harm. The consequences that should be considered in ganging the harmfulness of an act should be those that can fairly be attributed to the actors choice” (Von Hirsch 1986 P-64-65). (Para-867); .....Allama Delwar Hossain Sayedee =VS= Government of Bangladesh, [2 LM (AD) 76]

Investigation officers–– The investigation officers do not have any discretion to take decision as to whether he will or will not record the events during investigation in the case diary. This is a compulsory statutory duty for every officer to record all the events in the case diary. This is the duty of the Officer-in-Charge to make sure that officers subordinate to him shall record necessary entries in the case diary properly. A case diary is an indicator how good and intellectual a police officer is. .....Ministry of Law, Justice & Parl. Afrs. =VS= BLAST, [3 LM (AD) 274]

Justice–– What is justice–– What is justice? How is justice related to law? According to Lucas (1980: 3), justice “differs from benevolence, generosity, gratitude, friendship, and compassion”. It is not something for which we should feel grateful, but rather, something upon which we have a right to insist. According to Plato, Justice consists of maintaining the societal status quo. Justice is one of four civic virtues, the others being wisdom, temperance, and courage. In an ordered state, everyone performs his or her role and, does not interfere with others. Each person’s role is the one for which the individual is best fitted by nature; thus, natural law is upheld. Aristotle believed that Justice exists in the law and that the law is “the unwritten custom of all or the majority of men which draws a distinction between what is honourable and what is base”. The concept of impartiality is at the core of our system of criminal justice. (Per S. K. Sinha, J) ...Major Md. Bazlul Huda(Artillery)=VS=The State(Banga Bandhu Murder Case), [9 LM (AD) 386]

Mass killing–– It was not at all necessary when the charge involve hundreds of victims. (Majority view), (Per Mr. Justice Hasan Foez Siddique). ...A.T.M. Azharul Islam =VS= Chief Prosecutor, ICT, Bangladesh, [9 LM (AD) 593]

Mens rea–– Another Law point agitated by Mr. Razzak is on mens rea. The following observation of Smith & Hogan negatives Mr. Razzak’s complaint that the principle of mens rea was not applied by the Tribunal, “Everyone agrees that a person intends to cause a result if he acts with the purpose of doing so. If D has resolved to kill P and fires a loaded gun at him with an object of doing so, he intends to kill. It is immaterial that he is aware that he is a poor shot, that P is nearly out of range, and that his chances of success are small. It is sufficient that killing is his object or purpose, that he wants to kill, that he acts in order to kill”. (Page 70, Tenth Edition Criminal Law: Smith & Hogan). In Moloney (1985, AC, 905) the House of Lords held that the mens rea of murder is intention to cause death or serious bodily harm. So, it was essential to determine the meaning of intention. Moloney must be read in the light of the explanation of it by the House in Hancock and Shankland 1986, AC, 455, the Court of Appeal in Nedrick and by the House in Woollin. When it is so read it appears that (1) a result is intended when it is the actor’s purpose to cause it, (2) a court or jury may also find that a result is intended, though it is not the actor’s purpose to cause it, when- (a) the result is virtually certain consequence of that act, and (b) the actor knows that it is a virtually certain consequence”. In order to establish that an accused possesses the requisite mens rea for instigating a crime, it must be shown that the accused directly or indirectly intended that the crime in question be committed and that the accused intended to provoke or induce the commission of the Crime, or was aware of the substantial likelihood that the Commission of the Crime would be a probable consequence of his acts (Prosecutor –vs-Muvunyi, Prosecutor –vs- linaj etal) Archbold Page-855. Mind of a person cannot be read and hence mens rea is only to be assessed from the attending facts and circumstances and also from the nature of the actus reas. In this case there are ample evidence to substantiate the allegation that the Appellant had mens rea of aiding and abetting as well for committing the offences by himself. On the Appellant’s participation in the offences at the dwelling of Hazrat Ali, the Privy Council’s decision in Barendra Kumar Ghosh –v- Emperor, the infamous Post Office Case, is relevant. In that case, a gang went to rob a post office and all except the appellant went inside the Post Office, killed the Post Master, but the appellant stayed out with a gun to look around. The Privy Council opined that he also would be liable of murder, though he was outside and did not shoot. Lord Sumner, in his part of the Councils opinion expressed, “ Even noting, as he stood outside the door, it is to be remembered that in crimes as in other things they also serve who only stand and wait.” (AIR 1925 1PC) (A. H. M. Shamsuddin Choudhury, J) …Government of Bangladesh =VS= Abdul Quader Molla, [8 LM (AD) 375]

Meticulous examination–– The Appellate Division opined that the High Court Division, on thorough and meticulous examination and consideration of the evidence on record and also other facts and circumstances rightly acquitted both the accused-respondents by the impugned judgment and order. In the circumstances this criminal petition for leave to appeal be dismissed. .....The State =VS= Asif Khan Riyad & another, [1 LM (AD) 534]

Modesty–– Modesty is the attribute of female sex and she possesses it irrespective of her age. The question of infringing the modesty of a woman is depended upon the customs and habit of the people. Acts which are outrageous to morality would be outrageous to modesty of women. Modesty is defined as the quality of being modest and in relation to woman, womanly propriety of behavior, scrupulous chastity of thought, speech and conduct. It is the reserve or sense of shame proceeding from instinctive aversion to impure or coarse suggestions. "Modesty" of a women is intimately connect with feminity including her sex. .....Dr APM Sohrab-uz-zaman =VS=State, [1 LM (AD) 466]

Monoism and Dualism–– In general, two principal theories persist, namely Monoism and Dualism on this point. Judiciary of the countries that follow Monoism subscribe to the view that International law and Municipal Law are concomitant aspects of the one (mono) system of law in general, while the judiciary in those countries that adhere to the Dualism, stick to the norm that international and municipal laws represent two diametrically distinct legal (dual) systems, international law having an intrinsically different character from that of municipal law. (J G Starke, Introduction to International law, page 72). Hans Kelsen termed Dualism as pluralist theory. Dualists expound the view that rules of international law can not directly and exproprio vigore be applied within the municipal sphere by State courts, i.e in order to be so applied such rules must undergo a process of “specific adoption” by or “specific incorporation” into, Municipal Law, while Monoist believe such rules are auto-incorporated into the municipal system. George Schwarzenberger (A Mannual of International Law, Fourth Edition, Vol-1. Page 40), insists that the two schools hold antithetically opposing views. Dualist believe International and Municipal Laws are separate and self-contained legal systems-contacts between them are possible but require express or tacit recognition of the rules of the one legal system by the other. (Page 41, Schwargenberger). Dualism grew in strength in the nineteenth century with the development of the pluralist doctrines of the sovereignty of state will, as propounded by Hegel and those who followed him, with the emergence of the concept of internal legal sovereignty. Triepel, one of the pivotal advocates of Dualism expressed in his book “Volkerrecht and Laudesrecht” 1899, that there are two fundamental differences between the two systems; (1) The subject of state law are individuals, while the subjects of International Law are states solely and exclusively. (2) Their judicial origins are different; the source of state law is the will of the state itself, the source of International Law is the common will of the states (Gemeinville). Anzilati, another arch exponent of Dualism, however, held that the difference lies in that Municipal law is conditioned by the fundamental norm that state legislation is to be obeyed, while International Law is conditioned by the doctrine of “pacta sunt servanda”, ie agreements between the states are to be respected, and hence two systems are so distinct that no conflict between the two are possible; there may be references from the one to the other, but nothing more (di Diritto Internazionale, 3rd edn 1928, Vol 1 page 43). Dualists hold high primacy of state law basing the same on the theory of the sovereignty of the state will, while the Monoists assert that all laws belong to a single unity, composed of binding legal rules, whether those rules are obligatory on states, on individuals, or on entities other than states. They believe that there can be no escape from the position that the two systems, because they are both systems of legal rules, are interwoven parts of one legal structure. Dualists’ argument on the Primacy of Municipal Law lies on the claim that states enjoy the very widest liberties and exercise complete sovereignty, while Monoists say States sovereignty is conditioned by the limits International Law imposes. Since, according to positivists theory, International Law and Municipal Law constitute two strictly separate and structurally different systems, the former can not impinge upon state law unless the latter, a logically different system, allows its constitutional machinery to be used for that purpose. (J G Strake supra, page 76). In the cases of treaties, rules regarding transformation of treaty into state law, i.e. by legislative approval of the treaty, which is not merely a formal but a substantive requirement, alone vindicates the extension to individuals of the rules laid down in treaties. While the US courts generally follow Monoist School, British courts draw a distinction between. i) Customary rules of International Law on the one hand and ii) the rules laid down by treaties, on the other. So far as the treaties are concerned, British courts consistently and without ambiguity follow Dualism i.e, adoption theory, stubbornly in that they do not give effect to any treaty provision which has not been specifically adopted domestically by legislation. So far as rules of Customary International law are concerned, however, the scenario is inflicted with some obscurity engendered by divergent judicial views, finally suggesting that in case of conflict domestic law must prevail. (A. H. M. Shamsuddin Choudhury, J) …Government of Bangladesh =VS= Abdul Quader Molla, [8 LM (AD) 375]

Performing duty as Judge–– While affirming the award of sentence of death, a person who used to work as Judge may not support the capital sentence but while performing his duty as Judge he is bound by law and fact. He is to decide the issue of awarding the sentence considering the gravity of the offence. While affirming this sentence as a Judge we must take into consideration the relevant laws, facts, evidence and situation of the relevant time. (Para-32); .....Ali Ahsan Muhammad Mujahid =VS= The Government of Bangladesh, [2 LM (AD) 65]

Plea of alibi–– Mr. Khondker Mahbub Hossain, learned Counsel appearing on behalf of the appellant drew our attention to the issues of some newspapers dated 08.11.1971 , 11.11.1971, 23.11.1971, 8.12.1971 and 11.12.1971 and submitted that the appellant was in Dhaka and communication between Chittagong and Dhaka was in fact collapsed from the month of November 1971 to 16 December, 1971. Learned Counsel failed to show any evidence that the communication was totally disrupted at the relevant time and that all the ways of movement from Dhaka to Chittagong were disconnected. His submission is unacceptable in view of the documentary evidence published in “The Dainik Azadi” on 04.12.1971. Contents of which were: ÒAvR c~e© cvwK¯Ív‡bi Bmjvg QvÎms‡Ni mfvcwZi PÆMªv‡g AvMgb Ó evZ©v cwi‡ekK, Ò cvwK¯Ívb Bmjvgx QvÎ ms‡Ni c~e© cvwK¯Ív‡bi kvLvi mfvcwZ Rbve Avjx Avnmvb †gvnvg¥` gyRvnx‡`i 3 w`‡bi md‡i AvR XvKv ‡_‡K Avwmqv †cuvQv‡eb| GLv‡b Ae¯’vbKv‡j wZwb `jxq Kgx©‡`i Ges ivR‰bwZK †bZ„e„›`‡`i mwnZ †`‡ki eZ©gvb cwiw¯’wZ m¤ú‡K© Av‡jvPbv Ki‡eb Ges myax mgv‡e‡k e³„Zv Kwi‡eb ewjqv GK †cªm wiwj‡R ejv nBqv‡Q Ó | From the aforesaid news item, the submission of Mr. Khandaker Mahbub Hossain is devoid of substance. It is quite natural that since the President of EP ICS went to Chittagong on 25.11.1971 after taking decision on 24.11.1971, the appellant, who was in Charge of Chittagong Division, ICS and former leader of Chittagong town unit, ICS and local commander of Al-Badar Bahini would go and stay in Chittagong between 19th November, 1971 and 15 December, 1971. So the alibi, plea taken by the appellant does not carry any force. (Paras-197 & 198); .....Mir Quasem Ali =VS= The Chief Prosecutor, ICT, Dhaka, [2 LM (AD) 364]

Police Culture–– The “culture” of a police department reflects what that department believes in as an organization. These beliefs are reflected in the department’s recruiting and selection practices, policies and procedures, training and development, and ultimately, in the actions of its officers in law enforcement situations. Clearly, all police departments have a culture. The key question is whether that culture has been carefully developed or simply allowed to develop without benefit of thought or guidance. There are police agencies, for example, where police use of force is viewed as abnormal. Thus, when it is used, the event receives a great deal of administrative attention. Such a response reflects the culture of that department: the use of force is viewed and responded to as an atypical occurrence. Contrast such a department with one which does not view the use of force as abnormal. And, most importantly, the culture of the department is such that officers come to view the use of force as an acceptable way of resolving conflict. It is clear that the culture of a police department, to a large degree, determines the organization’s effectiveness. That culture determines the way officers view not only their role, but also the people they serve. The key concern is the nature of that culture and whether it reflects a system of beliefs conducive to the nonviolent resolution of conflict. It is also important to recognize that the culture of a police department, once established, is difficult to change. Organizational change within a police agency does not occur in a revolutionary fashion. Rather, it is evolutionary. .....Ministry of Law, Justice & Parl. Afrs. =VS= BLAST, [3 LM (AD) 274]

Presumption of fact:–– A public servant while discharging public duty seizes any contraband goods or article from a person, it will be presumed that he has acted in accordance with law–– It is now settled that a public servant while discharging public duty seizes any contraband goods or article from a person, it will be presumed that he has acted in accordance with law. It is a presumption of fact. If the recovery and seizure are made in accordance with law, it is difficult to disbelieve the evidence of the seizing officer unless inherent infirmities are revealed in course of cross examination. Therefore, the onus lies upon the accused to show that no such arm was recovered from his possession. It is now settled that the non-examination of public witnesses is not a legal ground to disbelieve the prosecution case. This view has been taken on consideration of the present socio-economic condition and on the rise of criminal acts. Normally, the public witnesses are not willing to depose against the terrorist persons for fear of reprisal or other reasons. That will not disprove the recovery of arms. The High Court Division has totally ignored that aspect of the matter. The judgment of the High Court Division is set aside. The accused respondent shall get the benefit of section 35A of the Code of Criminal Procedure. .....The State =VS= Md. Ali Reza, [5 LM (AD) 247]

Victims' Right–– Consideration of victims' rights now stand universally recognised. It is reckoned that the Court in sentencing an offender should not confine itself to the fundamental rights of the accused only, but must also take account of the victims' predicaments and rights. The Appellate Division is of view this concept is of particular importance in the context of the atrocities that were perpetrated during glorious war of liberation, as literally, the entire populace, save a handful of anti liberationists, were victims of those atrocities. .....Muhammad Kamaruzzaman =VS= Chief Prosecutor, International Crimes Tribunal, Dhaka, [4 LM (AD) 392] ....View Full Judgment

Burden of proof in wife killing case: What is more surprising to note here is that the appellant has not provided any reasonable explanation as to the cause of the death of his wife although in wife killing case, the condemned-appellant is under the obligation to do so. He has given all contradictory suggestions to the witnesses imputing allegations that the victim was a lady of lose character having illicit connection with others. In a misogynistic society, character assassination of women is a regular feature. In the case in hand even after death victim’s soul will not rest in peace because her two sons will know that their mother was a lady of questionable character. The condemned-appellant has failed to discharge his obligation by not explaining the cause of death of his wife in his house. [Syed Mahmud Hossain, CJ (Minority view)] …Md. Abdul Awal Khan Vs. The State, (Criminal), 16 SCOB [2022] AD 22 ....View Full Judgment

Benefit of doubt–– Accused is entitled to the benefit of doubt–– It is well settled principle that where on the evidence two possibilities are open, one which goes in favour of prosecution and the other benefits the accused, the accused is entitled to the benefit of doubt. We are of the view that the prosecution has not been able to prove its case beyond all shadow of doubt against the appellant, so the appellant is entitled to get benefit of doubt. Accordingly, we find substance in the appeal. The appellant Humayun Kabir, son of Liakatulla, of village- Newrain, Police Station Laksham, District Comilla is acquitted on the charge. ...Humayun Kabir(Md.) =VS= The State, [10 LM (AD) 619] ....View Full Judgment

Benefit of doubt–– In Md. Ibrahim Hossain –Vs- The State ( 14 BLD (AD) 253), the Appellate Division emphasised that benefit of doubt can not be given for minor omissions. (Para-761); .....Allama Delwar Hossain Sayedee =VS= Government of Bangladesh, [2 LM (AD) 76] ....View Full Judgment

In the facts of the instant case, a 13 year old house maid has undoubtedly been raped and there is no reason why the victim, who suffered the trauma and the stigma that goes with it, should not be believed. She has put herself in an invidious situation where she will be shunned and marginalised for the rest of her life and yet she has been disbelieved. This is clearly a travesty of justice. (Minority View) …State Vs. Mostafizur Rahman and another, (Criminal), 1 SCOB [2015] AD 28
In facts, the story of rape itself gives rise to a grave suspicion implicating the accused, respondent; as such it will be fully within the domain of the appellate court to acquit the accused. Moreover, the reason of delay in lodging FIR even after the release of the victim from the clutch of the accused has not been properly described; so it is very difficult to consider the evidence of prosecutrix, P.W.2 as beyond any reasonable doubt which is the fundament requirement of conviction of an accused person. (Majority View) …State Vs. Mostafizur Rahman and another, (Criminal), 1 SCOB [2015] AD 28 ....View Full Judgment

Circumstantial evidence: It is settled principles that where the inference of guilt of an accused is to be drawn from circumstantial evidence only, those circumstances must, in the first place, be cogently established. Further, those circumstances should be of a definite tendency pointing towards the guilt of the accused, and in their totality, must unerringly lead to the conclusion that within all human probability, the offence was committed by the accused excluding any other hypotheses. …Haji Mahmud Ali Londoni & anr Vs. State & anr, (Criminal), 5 SCOB [2015] AD 102 ....View Full Judgment

Commutation of Sentence: On the question of commutation of the sentence, we are to take into consideration the heinousness of the offence committed in juxtaposition with the mitigating circumstances. It is by now established that in Bangladesh the sentence for the offence of murder is death which may be reduced to one of imprisonment of life upon giving reasons. It has been the practice of this Court to commute the sentence of death to one of imprisonment for life where certain specific circumstances exist, such as the age of the accused, the criminal history of the accused, the likelihood of the offence being repeated and the length of period spent in the death cell. …Kamal alias Exol Kamal Vs. State, (Criminal), 10 SCOB [2018] AD 6
The death sentence is the most severe and irretrievable form of punishment. Once the sentence is carried out, it cannot be redeemed. It is certainly a cruel form of punishment which is an affront to human dignity. However, the death sentence is not unconstitutional in Bangladesh. …Kamal alias Exol Kamal Vs. State, (Criminal), 10 SCOB [2018] AD 6 ....View Full Judgment

A complete review of the evidence indicates that there was pre-existing hostility between the victim and appellant Mohiuddin. The motive for the commission of the murder is explicit from the evidence of P.Ws 22, 25, 39 and 43 which is relevant. Proof of motive does lend corroboration to the prosecution case. The same plays an important role and becomes a compelling force to commit a crime and therefore motive behind the crime is a relevant factor. Motive prompts a person to form an opinion or intention to do certain illegal acts with a view to achieving that intention. Adequacy of motive is of little importance as it is seen that atrocious crimes are committed for very slight motives. One cannot see into the mind of another (State Vs. Santosh Kumar Singh, 2007 Cr LJ 964). However, motive alone is not sufficient to convict the accused in case of circumstantial evidence. Along with motive, there should be some further corroborative evidence. …Dr. Miah Md. Mohiuddin & ors Vs. The State & ors, (Criminal), 17 SCOB [2023] AD 1 ....View Full Judgment

Capital punishment–– While it is true that many countries have abolished death sentence, the position as it stands today, is that capital punishment prevails in as many as 55(fifty five) countries and 7(seven) countries retain death sentence for exceptional cases. (Source: Amnesty International and Penal Reform International). Countries that retain capital sentence, include the largest democracy, i.e. India, and 33 component States of the United States of America. Some countries, such as Malaysia, Singapore, Saudi Arabia, Trinidad and Tobago retain mandatory death sentence for murder, while some 13 (thirteen) countries prescribe mandatory death sentence for drug trafficking, while 33 (thirty three) countries have death as an alternative sentence for the said offence. (Penal Reform International). (Para-29); .....Ali Ahsan Muhammad Mujahid =VS= The Government of Bangladesh, [2 LM (AD) 65] ....View Full Judgment

Capital sentence–– The Court is bound to award capital sentence– When it is found from the evidence that the death was intentional, the accused used deadly weapon, the incident of murder is gruesome, barbaric and motivated, and there is no extenuating circumstance to award the minimum sentence, the court is bound to award capital sentence. Besides, in the present incident nobody had the opportunity ever to remotely imagine the amount of such ghastly incident. .....Ataur Mridha =VS= The State, [3 LM (AD) 513] ....View Full Judgment

Cognizable offence:–– A complaint of a cognizable offence–– A complaint of a cognizable offence recorded by a Magistrate and sent by him to the police for investigation and report is sufficient information justifying arrest under section 54 of the Code. Similarly, information that a warrant of arrest has been issued against a person in respect of a cognizable offence, may justify action being taken under the said section. Where, from a report of a Chowkider that certain persons were dacoits the police officer called them to surrender, but the latter resisted and fired shots at the officer, the latter was justified in arresting those persons. .....Ministry of Law, Justice & Parl. Afrs. =VS= BLAST, [3 LM (AD) 274] ....View Full Judgment

Cognizable offence:–– Reasonable complaint or suspicion must depend upon the circumstances of each particular case–– Where a police officer suspecting that certain pieces of cloth which a man was carrying early morning, was stolen property, went to him and questioned him and having received unsatisfactory answers, arrested him, he was entitled to arrest him because reasonable suspicion exists of his being concerned of a cognizable offence. Where a person was found armed lurking at midnight in a village inhabited by persons well known to the police as professional dacoits, there was a reasonable suspicion against the person of his being concerned in a cognizable offence. But this does not mean that the police are limited only by their own discretion as to what persons they may arrest without warrant. Their powers in this respect are strictly defined by the Code. In order to act under the first clause, there must be a reasonable complaint or reasonable suspicion of the person to be arrested having been concerned in a cognizable offence. What is a ‘reasonable’ complaint or suspicion must depend upon the circumstances of each particular case; but it should be at least founded on some definite fact tending to throw suspicion on the person arrested, and not on a mere vague surmise. .....Ministry of Law, Justice & Parl. Afrs. =VS= BLAST, [3 LM (AD) 274] ....View Full Judgment

Cognizance of offence:–– Cognizance of offence by a courts of session–– The Indian provision is a bit different from ours. The Indian provision reads as under: “Cognizance of offence by a courts of session –Except as otherwise expressly provided by this court or by any other law for the time being enforce, no court of session shall take cognizance of any offence as a court of original jurisdiction unless the case has been committed to it by a magistrate under this court”. .....Mufti Abdul Hannan Munshi =VS= The State, [3 LM (AD) 566] ....View Full Judgment

Confession:–– Confession is taken to be true, voluntary and inculpatory in nature, a conviction can be given against the maker–– The confessions have been corroborated by circumstantial evidence proved by the witnesses. Even if there is no corroborating evidence, if a confession is taken to be true, voluntary and inculpatory in nature, a conviction can be given against the maker of the statement relying upon it subject to the conditions mentioned above. .....Mufti Abdul Hannan Munshi =VS= The State, [3 LM (AD) 566] ....View Full Judgment

Confidential document–– It is however, to be noted that the case diary is a confidential document. So, it may not be claimed by the accused person at any time for the purpose of assessing and scrutinizing its entries. A criminal court is free to ask for the case diary at any stage of the proceedings. But, the case diary cannot be used as evidence in the trial. .....Ministry of Law, Justice & Parl. Afrs. =VS= BLAST, [3 LM (AD) 274] ....View Full Judgment

Court of appeal:–– Normally Supreme Court does not reassess of the evidence–– Normally Appellate Division does not interfere with the judgment of the High Court Division on appeal if it is found that the judgment is based on proper appreciation of the evidence. It cannot reassess the evidence afresh as a court of appeal to examine whether or not the High Court Division has properly appreciated the evidence. .....Md. Akram =VS= The State, [1 LM (AD) 581] ....View Full Judgment

Credible information–– There was no provision in the Codes of 1861 and 1872, enabling an arrest without warrant on credible information as to the person to be arrested being concerned in a cognizable offence. Such a provision was introduced for the first time in the Code of 1882. The words “credible information” include any information which, in the judgment of the officer to whom it is given appears entitled to credit in the particular instance. It need not be sworn information. The words “credible” and “reasonable” have reference to the mind of the person receiving the information. A bare assertion without anything more cannot form the material for the exercise of an independent judgment and will not therefore amount to “credible information”. The “reasonable suspicion” and “credible information” must relate to definite averments which must be considered by the police officer himself before he arrests a person under this section. .....Ministry of Law, Justice & Parl. Afrs. =VS= BLAST, [3 LM (AD) 274] ....View Full Judgment

Criminal misconduct–– A criminal misconduct is said to have been committed by a public servant, if he accepts or obtains or agrees to obtain or attempts to obtain for himself or for any other person in gratification. .....RAJUK =VS=Manzur Ahmed & Others, [1 LM (AD) 1] ....View Full Judgment

Criticism Judgment–– There is no wrong in critiquing a judgement once it is finally published. However, it must be borne in mind that deliberations during the course of any hearing may not be subjected to analysis or criticism since such comments in a sub judice matter might be prejudicial and taint the mind of the public before the judgement is pronounced. .....The State =VS= Adv. Md. Qamrul Islam, M.P & another, [1 LM (AD) 28] ....View Full Judgment

Difference between cheating and breach of contract: In every case of cheating there is implicit agreement between the parties. The vital factor to be considered is whether at the time of agreement there was intention to carry out the terms of the contract or not. If there is nothing to show that there was no intention at the time of agreement which was arrived at, but the failure to fulfill the terms of the agreement was the subsequent event, the offence of cheating cannot be said to have been committed. It would only be a case of breach of contract. …Prof. Dr. Motior Rahman vs. The State & anr, (Criminal), 3 SCOB [2015] AD 1 ....View Full Judgment

Due process vis-a-vis crime control consideration:
In performing our duties, this court is charged with the task of not only assessing the facts against the law, but also considering the impacts of judgments that are pronounced and any assessment made on the overall justice system. With modern criminal justice mechanism, the right against self-incrimination is one that stands as a cornerstone. As such, confessions by a co-accused are generally inadmissible against the accused in a concerned case. However, in our duties of administering justice, we are sometimes faced with a case that forces us to consider aspects of larger policy at play. The balance between crime control and due process models of justice is such a consideration that requires reassessment with changing times and upon the fact of each case. The case before us is one of such a heinous crime, where measures of control are made far more necessary, to ensure that justice can be brought to the victim in question. As such, while due process is still of utmost importance; crime control considerations must be made as well. …Md. Shukur Ali and others Vs. The State, (Criminal), 16 SCOB [2022] AD 62
Adverse inferences may be drawn upon silence on part of those incriminated:
The principle of the right against self incrimination is also accompanied by the principle that upon silence on part of those incriminated, adverse inferences may be drawn at any stage of the trial and pre-trial procedures. When the co-accused, Azanur and Mamun put forth their confessions, incriminating the accused Shukur and Sentu, they had the opportunity to present their accounts of the events in question. Their refusal to adduce defence witness and to give any statement, allows this Court to draw an adverse inference against them, in conjunction with the inferences drawn from the period of their absconcion. …Md. Shukur Ali and others Vs. The State, (Criminal), 16 SCOB [2022] AD 62 ....View Full Judgment

Delay–– Delay by itself in the execution of sentence of death is by no means an extenuating circumstances for commuting the sentence of death to imprisonment for life. There must be other circumstances of a compelling nature which together with delay will merit such commutation. We find no compelling extenuating circumstances in this case and therefore, find no ground whatsoever to interfere.” (Per Md. Tafazzul Islam, J) ...Major Md. Bazlul Huda (Artillery)=VS=The State (Banga Bandhu Murder Case), [9 LM (AD) 386] ....View Full Judgment

Delay in the disposal of this case cannot by itself be a ground for commuting the sentence of death:
From the nature of the offence it appears to us that the petitioner is in no way entitled to get any sympathy. We do not find any mitigating or extenuating circumstances on record for commutation of the sentence of death. Delay in the disposal of this case cannot by itself be a ground for commuting the sentence of death to one of imprisonment for life since the crime committed by the petitioner was premeditated senseless, dastardly and beyond all human reasonings. ...Md. Zahangir Alam & ors Vs. The State, (Criminal), 18 SCOB [2023] AD 45 ....View Full Judgment

Delay–– Delay by itself in the execution of sentence of death is by no means an extenuating circumstances for commuting the sentence of death to imprisonment for life. There must be other circumstances of a compelling nature which together with delay will merit such commutation. We find no compelling extenuating circumstances in this case and therefore, find no ground whatsoever to interfere.” (Per Md. Tafazzul Islam, J) ...Major Md. Bazlul Huda (Artillery)=VS=The State (Banga Bandhu Murder Case), [9 LM (AD) 386] ....View Full Judgment

Delay–– As regards the delay, this Court in the original judgment observed that mere delay in filing a case is not a ground for disbelieving the case. ...Major Md. Bazlul Huda (Artillery) =VS= The State, [10 LM (AD) 581] ....View Full Judgment

Death Penalty:–– Abolition of Death Penalty is not Possible–– Our social conditions, social and cultural values are completely different from those of western countries. Our criminal law and jurisprudence have developed highlighting the social conditions and cultural values. The European Union has abolished death penalty in the context of their social conditions and values, but we cannot totally abolish a sentence of death in our country because the killing of women for dowry, abduction of women for prostitution, the abduction of children for trafficking are so rampant which are totally foreign to those developed countries. .....BLAST & others =VS= Bangladesh & others, [1 LM (AD) 286] ....View Full Judgment

Death Penalty:–– A law which is not consistent with notions of fairness and provides an irreversible penalty of death is repugnant to the concepts of human rights and values, and safety and security. .....BLAST & others =VS= Bangladesh & others, [1 LM (AD) 286] ....View Full Judgment

DGFI:–– Responsibility of Directorate General of Forces Intelligence (DGFI)–– An officer of DGFI who has sworn affidavit has also admitted impliedly that the money have been extorted by an officer of DGFI, but according to him, he has acted access of power for which the DGFI shall not take any responsibility. This statement belies the documents submitted by Bangladesh Bank. This force cannot deny its responsibility in view of the fact that after collection of the pay orders the officer communicated his action to its chief. It is claimed by the writ petitioners and also by the learned Counsel that the businessmen have been compelled to attend at a specified office under its control. They were kept sitting from dawn to dusk for days together and sometimes detained there without furnishing any information to their near ones. It was not possible to act as such on the part of one officer without knowledge and concurrence of the authority on consideration of the fact that it was not an isolated incident, rather the arrest, detention and torture both physically and mentally were carried out for days together against dignified and resourceful persons. It was a concerted effort on the part of this agency is beyond reprehensible. Those actions were taken openly and freely, and the same need not be proved. .....Bangladesh Bank=VS=East West Property Developments (Pvt.) Ltd., [3 LM (AD) 106] ....View Full Judgment

Discretion:–– A provision of law which deprives the court to use of its beneficent discretion in a matter of life and death, without regard to the circumstances in which the offence was committed and, therefore without regard to the gravity of the offence cannot but be regarded as harsh, unfair and oppressive. The legislature cannot make relevant circumstances irrelevant, deprive the court of its legitimate jurisdiction to exercise its discretion not to impose death sentence in appropriate cases. Determination of appropriate measures of punishment is judicial and not executive functions. The court will enunciate the relevant facts to be considered and weight to be given to them having regard to the situation of the case. Therefore we have no hesitation in holding the view that these provisions are against the fundamental tenets of our Constitution, and therefore, ultra vires the Constitution and accordingly they are declared void. .....BLAST & others =VS= Bangladesh & others, [1 LM (AD) 286] ....View Full Judgment

Duty of the Court–– It is the duty of the Court to award proper sentence having regard to the nature of the offence and depending upon the degree of criminality, the manner in which it was committed and all attended circumstances. The occurrences of killing of intellectuals were committed with the extremely cruel and beastly manner which demonstrated index of the depraved character of the perpetrators. It will be a mockery of justice to permit the accused to escape the extreme penalty of law when faced with such evidence and such cruel acts. The Judges are carrying out the duty under the Law. The sentence awarded by the Tribunal for intellectuals killings is not disproportionate in view of the nature of charge and evidence adduced. (Para-231); .....Ali Ahsan Muhammad Mujahid =VS= The Chief Prosecutor, ICT, Dhaka, [2 LM (AD) 1] ....View Full Judgment

Even if the facts proved are slightly different from those alleged in the charge, a conviction based on the facts proved would be legal:
Joint trial of different offences under different enactments does not vitiate proceedings in the absence of prejudice to the accused, particularly when the special enactment authorizes the Court to try different offences jointly where a charge is framed for one offence but offence committed is found to be some other than the one charged, provided, the same facts can sustain a charge for the latter offence, the accused can be convicted for such an offence. Even if the facts proved are slightly different from those alleged in the charge, a conviction based on the facts proved would be legal. ...The State Vs. Nurul Amin Baitha and anr, (Criminal), 18 SCOB [2023] AD 1 ....View Full Judgment

F.I.R: Where there is no F.I.R. or where the F.I.R. cannot be proved in accordance with law in that case also the court will not detract the testimony of the witnesses which will have to be assessed on its own merits and the case is to be assessed on merit on the basis of the evidence adduced before it. (Nazmun Ara Sultana, J) …State Vs. Dafader Marfoth Ali Shah & ors, (Criminal), 5 SCOB [2015] AD 1
Discrepency always occurs even in the evidence of the truthful witnesses:
The learned Counsel has contended that these contradictory statements of these P.Ws. reasonably make these witnesses untrustworthy. But we are unable to accept this argument of the learned Counsel in this present case. Considering the very facts and circumstances of this case we rather, are of the view that it was very much natural on the part of the witnesses to make discrepent statements regarding colour of the wearing clothes and the weapons of the assaillants and that these discrepent or contradictory statements of the P.Ws. are so trifling in nature that these cannot raise any suspicion about the truthfulness of the witness or about the occurrence they narrated. The learned Counsel for the accused-respondents has pointed out some other alleged minor discrepent or contradictory statements also in the evidence of the prosecution withnesses, but we do not find any of these alleged discrepent or contradictory statemetns of the prosecution witnesses fatal at all to raise any suspicion about the truthfulness of these witnesss. Discrepency always occurs even in the evidence of the truthful witnesses. It is also settled that one part of evidence of a witness even if is rejected the other part of the evidence of the same witness may be accepted. (Nazmun Ara Sultana, J) …State Vs. Dafader Marfoth Ali Shah & ors, (Criminal), 5 SCOB [2015] AD 1 ....View Full Judgment

For entertaining a review an error has to be one which is so obvious that keeping it on the record will be legally wrong:
Further, it has now been settled that an error is necessary to be a ground for review but it must be one which is so obvious that keeping it on the record will be legally wrong. The moot point is, a party to a litigation is not entitled to seek a review of judgment merely for the purpose of rehearing or a fresh decision of the case. The power can be extended in a case where something obvious has been overlooked-some important aspects of the matter has not been considered, the court can reconsider the matter. There are exceptional cases where the court can remedy its judgment. In the alternative, it may be said that the error must also have a material real ground on the face of the case. ...Md. Zahangir Alam & ors Vs. The State, (Criminal), 18 SCOB [2023] AD 45 ....View Full Judgment

International Crimes Tribunal Matter: The cardinal principle of assessment of evidence is that the entire evidence is to be considered as a whole and then a decision is to be arrived. There is no scope to consider one statement made in cross-examination in isolation. (Majority view) (Per Mr. Justice Syed Mahmud Hossain, CJ) …A.T.M. Azharul Islam Vs. Chief Prosecutor, ICT, (Criminal), 14 SCOB [2020] AD 1
It is the cardinal principle of law of evidence that hearsay evidence is to be considered together with circumstances and the material facts depicted. If hearsay evidence has probative value then it is admissible in evidence. (Majority view) (Per Mr. Justice Syed Mahmud Hossain, CJ) …A.T.M. Azharul Islam Vs. Chief Prosecutor, ICT, (Criminal), 14 SCOB [2020] AD 1
In order to incur criminal liability in a case of crime against humanity, the accused himself need not participate in all aspects of the criminal conduct. (Majority view) (Per Mr. Justice Syed Mahmud Hossain, CJ) …A.T.M. Azharul Islam Vs. Chief Prosecutor, ICT, (Criminal), 14 SCOB [2020] AD 1
It is of the essence of the crime of abetment that abettor should assist the principal culprits towards the commission of the offence. Participation de facto may sometimes be obscure in detail, it is established by the presumption Juris et de jure that actual presence plus prior abetment can mean nothing else but participation. (Majority view) (Per Mr. Justice Hasan Foez Siddique) …A.T.M. Azharul Islam Vs. Chief Prosecutor, ICT, (Criminal), 14 SCOB [2020] AD 1
When a charge involves hundred of victims, it is not at all necessary for the prosecution to narrate the names of all the victims. (Majority view) (Per Mr. Justice Hasan Foez Siddique) …A.T.M. Azharul Islam Vs. Chief Prosecutor, ICT, (Criminal), 14 SCOB [2020] AD 1
In a criminal case the prosecution must prove the charge brought against an accused beyond any shadow of reasonable doubt. Criminal cases are not like civil cases. In criminal case the accused may only take the plea of not guilty and the burden is entirely upon the prosecution to prove its case. Cross-examination is not also necessary on the entire deposition of a witness as it may damage the defence case. Non-cross-examination on a certain fact would not make the deposition of a witness on that point admitted facts. (Minority View) (Per Madam Justice Zinnat Ara) …A.T.M. Azharul Islam Vs. Chief Prosecutor, ICT, (Criminal), 14 SCOB [2020] AD 1 ....View Full Judgment

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 State Vs. Badal Kumar Paul, (Criminal), 17 SCOB [2023] AD 43 ....View Full Judgment

In the larger interest of justice the Court may overlook a mere irregularity or a trivial breach in the observance of any procedural law:
Depending on the facts and circumstances of a particular case in the larger interest of justice the Court may overlook a mere irregularity or a trivial breach in the observance of any procedural law for doing real and substantial justice to the parties and the Court may pass any appropriate order which will serve the interest of justice best. Procedure has always been viewed as the handmaid of justice and not meant to hamper the cause of justice or sanctify miscarriage of justice. It is intended to achieve the ends of justice and normally, not to shut the doors of justice for the parties at the very threshold. ...The State Vs. Nurul Amin Baitha and anr, (Criminal), 18 SCOB [2023] AD 1 ....View Full Judgment

Imprisonment for life–– A death may be commuted to imprisonment for life–– On the following grounds:-
(a) The condemned-prisoner has no significant history of prior criminal activity.
(b) Youth of the condemned-prisoner at the time of commission of the offence.
(c) The condemned-prisoner would not be likely to commit acts of violence if released.
(d) Confinement of the condemned-prisoner in the condemned cell from 09.06.2005 till date i.e. for more than 7 years during which period the sword of death has been hanging on his head. .....BLAST & another =VS= Bangladesh & others, [1 LM (AD) 353] ....View Full Judgment

Imprisonment for life–– Five heads, namely, i) the motive for killing the deceased; ii) last seen theory; iii) recovery of the dead body in a gunny sack together with clothes and a knife; iv) the fact that the two accused persons, who were stated to be brothers, were absconding after the incident and v) the fact that Accused No.2 gave false information. The Sessions Court, on a combination of the aforesaid five factors, ultimately held the two accused guilty of murder and sentenced them to imprisonment for life. There were at least eight factors which led this Court to set aside the judgment passed by the Division Bench of the Andhra Pradesh High Court, on the ground that cumulatively all eight factors would lead to the conclusion that the High Court judgment was perverse. .....Parasa Koteswararao =VS= Eede Sree Hari, [3 LM (SC) 68] ....View Full Judgment

Incumbit probatio qui decit, non qui negat–– means:– The burden of proving a fact rests on the party who substantially asserts the affirmative of the issue and not upon the party who denies it; for a negative is usually incapable of proof. The Appellate Division held that the strong admission being corroborated by documentary evidence, it can be inferred beyond reasonable doubt that the accused was present in Chittagong during the relevant time of occurrences and hence, the plea of alibi taken by the defence is concocted, false and not believable. Since the defence admitted the presence of accused at the crime sites, the prosecution has been able to prove as to whether the accused was involved in those incidents. (Para-127); .....Salauddin Quader Chowdhury =VS= The Chief Prosecutor, ICT, Dhaka, [2 LM (AD) 511] ....View Full Judgment

Incumbit probatio qui decit, non qui negat–– means:– The burden of proving a fact rests on the party who substantially asserts the affirmative of the issue and not upon the party who denies it; for a negative is usually incapable of proof.
The Appellate Division held that the strong admission being corroborated by documentary evidence, it can be inferred beyond reasonable doubt that the accused was present in Chittagong during the relevant time of occurrences and hence, the plea of alibi taken by the defence is concocted, false and not believable. Since the defence admitted the presence of accused at the crime sites, the prosecution has been able to prove as to whether the accused was involved in those incidents. (Para-127); .....Salauddin Quader Chowdhury =VS= The Chief Prosecutor, ICT, Dhaka, [2 LM (AD) 511] ....View Full Judgment

Individual Culpability–– While offence seriousness is one of the elements of proportionality, culpability of the individual offender is the other principal dimension of offence seriousness. Von Hirsch expressed harm and individual culpability as under;
“Harm refers to the injury done or risked by the criminal act. Culpability refers to the factors of intent, motive and circumstances that determines how much the offender should be held accountable for his act. Culpability, in turns, affects the assessment of harm. The consequences that should be considered in ganging the harmfulness of an act should be those that can fairly be attributed to the actors choice” (Von Hirsch 1986 P-64-65). (Para-867); .....Allama Delwar Hossain Sayedee =VS= Government of Bangladesh, [2 LM (AD) 76] ....View Full Judgment

Investigation officers–– The investigation officers do not have any discretion to take decision as to whether he will or will not record the events during investigation in the case diary. This is a compulsory statutory duty for every officer to record all the events in the case diary. This is the duty of the Officer-in-Charge to make sure that officers subordinate to him shall record necessary entries in the case diary properly. A case diary is an indicator how good and intellectual a police officer is. .....Ministry of Law, Justice & Parl. Afrs. =VS= BLAST, [3 LM (AD) 274] ....View Full Judgment

A Judge does not presides over a criminal trial merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape the tentacles of justice. That is what the justice stands for. …Dr. Miah Md. Mohiuddin & ors Vs. The State & ors, (Criminal), 17 SCOB [2023] AD 1 ....View Full Judgment

Justice–– What is justice–– What is justice? How is justice related to law? According to Lucas (1980: 3), justice “differs from benevolence, generosity, gratitude, friendship, and compassion”. It is not something for which we should feel grateful, but rather, something upon which we have a right to insist. According to Plato, Justice consists of maintaining the societal status quo. Justice is one of four civic virtues, the others being wisdom, temperance, and courage. In an ordered state, everyone performs his or her role and, does not interfere with others. Each person’s role is the one for which the individual is best fitted by nature; thus, natural law is upheld. Aristotle believed that Justice exists in the law and that the law is “the unwritten custom of all or the majority of men which draws a distinction between what is honourable and what is base”. The concept of impartiality is at the core of our system of criminal justice. (Per S. K. Sinha, J) ...Major Md. Bazlul Huda(Artillery)=VS=The State(Banga Bandhu Murder Case), [9 LM (AD) 386] ....View Full Judgment

Members of Parliament are Public Servants: The oath that they took referred to their obligation to “faithfully discharge the duty” upon which they were about to enter. They are public servants since they held office by virtue of which they were authorized or required to perform public duty. The word “office” has been used in Articles 3 and 3D of P.O.28 of 1973 meaningfully. …Anti Corruption Commission Vs Md. Shahidul Islam & ors, (Criminal), 6 SCOB [2016] AD 74
The Anti-Corruption Commission Act is applicable in respect of public servant as well as “any other person”. …Anti Corruption Commission Vs Md. Shahidul Islam & ors, (Criminal), 6 SCOB [2016] AD 74 ....View Full Judgment

Mass killing–– It was not at all necessary when the charge involve hundreds of victims. (Majority view), (Per Mr. Justice Hasan Foez Siddique). ...A.T.M. Azharul Islam =VS= Chief Prosecutor, ICT, Bangladesh, [9 LM (AD) 593] ....View Full Judgment

Mens rea–– Another Law point agitated by Mr. Razzak is on mens rea.
The following observation of Smith & Hogan negatives Mr. Razzak’s complaint that the principle of mens rea was not applied by the Tribunal,
“Everyone agrees that a person intends to cause a result if he acts with the purpose of doing so. If D has resolved to kill P and fires a loaded gun at him with an object of doing so, he intends to kill. It is immaterial that he is aware that he is a poor shot, that P is nearly out of range, and that his chances of success are small. It is sufficient that killing is his object or purpose, that he wants to kill, that he acts in order to kill”. (Page 70, Tenth Edition Criminal Law: Smith & Hogan). In Moloney (1985, AC, 905) the House of Lords held that the mens rea of murder is intention to cause death or serious bodily harm. So, it was essential to determine the meaning of intention. Moloney must be read in the light of the explanation of it by the House in Hancock and Shankland 1986, AC, 455, the Court of Appeal in Nedrick and by the House in Woollin. When it is so read it appears that (1) a result is intended when it is the actor’s purpose to cause it, (2) a court or jury may also find that a result is intended, though it is not the actor’s purpose to cause it, when- (a) the result is virtually certain consequence of that act, and (b) the actor knows that it is a virtually certain consequence”.
In order to establish that an accused possesses the requisite mens rea for instigating a crime, it must be shown that the accused directly or indirectly intended that the crime in question be committed and that the accused intended to provoke or induce the commission of the Crime, or was aware of the substantial likelihood that the Commission of the Crime would be a probable consequence of his acts (Prosecutor –vs-Muvunyi, Prosecutor –vs- linaj etal) Archbold Page-855.
Mind of a person cannot be read and hence mens rea is only to be assessed from the attending facts and circumstances and also from the nature of the actus reas. In this case there are ample evidence to substantiate the allegation that the Appellant had mens rea of aiding and abetting as well for committing the offences by himself.
On the Appellant’s participation in the offences at the dwelling of Hazrat Ali, the Privy Council’s decision in Barendra Kumar Ghosh –v- Emperor, the infamous Post Office Case, is relevant. In that case, a gang went to rob a post office and all except the appellant went inside the Post Office, killed the Post Master, but the appellant stayed out with a gun to look around. The Privy Council opined that he also would be liable of murder, though he was outside and did not shoot. Lord Sumner, in his part of the Councils opinion expressed, “ Even noting, as he stood outside the door, it is to be remembered that in crimes as in other things they also serve who only stand and wait.” (AIR 1925 1PC) (A. H. M. Shamsuddin Choudhury, J) …Government of Bangladesh =VS= Abdul Quader Molla, [8 LM (AD) 375] ....View Full Judgment

Meticulous examination–– The Appellate Division opined that the High Court Division, on thorough and meticulous examination and consideration of the evidence on record and also other facts and circumstances rightly acquitted both the accused-respondents by the impugned judgment and order. In the circumstances this criminal petition for leave to appeal be dismissed. .....The State =VS= Asif Khan Riyad & another, [1 LM (AD) 534] ....View Full Judgment

Modesty–– Modesty is the attribute of female sex and she possesses it irrespective of her age. The question of infringing the modesty of a woman is depended upon the customs and habit of the people. Acts which are outrageous to morality would be outrageous to modesty of women. Modesty is defined as the quality of being modest and in relation to woman, womanly propriety of behavior, scrupulous chastity of thought, speech and conduct. It is the reserve or sense of shame proceeding from instinctive aversion to impure or coarse suggestions. "Modesty" of a women is intimately connect with feminity including her sex. .....Dr APM Sohrab-uz-zaman =VS=State, [1 LM (AD) 466] ....View Full Judgment

Modesty–– Modesty is the attribute of female sex and she possesses it irrespective of her age. The question of infringing the modesty of a woman is depended upon the customs and habit of the people. Acts which are outrageous to morality would be outrageous to modesty of women. Modesty is defined as the quality of being modest and in relation to woman, womanly propriety of behavior, scrupulous chastity of thought, speech and conduct. It is the reserve or sense of shame proceeding from instinctive aversion to impure or coarse suggestions.
"Modesty" of a women is intimately connect with feminity including her sex. .....Dr APM Sohrab-uz-zaman =VS=State, [1 LM (AD) 466] ....View Full Judgment

Monoism and Dualism–– In general, two principal theories persist, namely Monoism and Dualism on this point. Judiciary of the countries that follow Monoism subscribe to the view that International law and Municipal Law are concomitant aspects of the one (mono) system of law in general, while the judiciary in those countries that adhere to the Dualism, stick to the norm that international and municipal laws represent two diametrically distinct legal (dual) systems, international law having an intrinsically different character from that of municipal law. (J G Starke, Introduction to International law, page 72). Hans Kelsen termed Dualism as pluralist theory.
Dualists expound the view that rules of international law can not directly and exproprio vigore be applied within the municipal sphere by State courts, i.e in order to be so applied such rules must undergo a process of “specific adoption” by or “specific incorporation” into, Municipal Law, while Monoist believe such rules are auto-incorporated into the municipal system. George Schwarzenberger (A Mannual of International Law, Fourth Edition, Vol-1. Page 40), insists that the two schools hold antithetically opposing views.
Dualist believe International and Municipal Laws are separate and self-contained legal systems-contacts between them are possible but require express or tacit recognition of the rules of the one legal system by the other. (Page 41, Schwargenberger).
Dualism grew in strength in the nineteenth century with the development of the pluralist doctrines of the sovereignty of state will, as propounded by Hegel and those who followed him, with the emergence of the concept of internal legal sovereignty.
Triepel, one of the pivotal advocates of Dualism expressed in his book “Volkerrecht and Laudesrecht” 1899, that there are two fundamental differences between the two systems;
(1) The subject of state law are individuals, while the subjects of International Law are states solely and exclusively.
(2) Their judicial origins are different; the source of state law is the will of the state itself, the source of International Law is the common will of the states (Gemeinville).
Anzilati, another arch exponent of Dualism, however, held that the difference lies in that Municipal law is conditioned by the fundamental norm that state legislation is to be obeyed, while International Law is conditioned by the doctrine of “pacta sunt servanda”, ie agreements between the states are to be respected, and hence two systems are so distinct that no conflict between the two are possible; there may be references from the one to the other, but nothing more (di Diritto Internazionale, 3rd edn 1928, Vol 1 page 43).
Dualists hold high primacy of state law basing the same on the theory of the sovereignty of the state will, while the Monoists assert that all laws belong to a single unity, composed of binding legal rules, whether those rules are obligatory on states, on individuals, or on entities other than states. They believe that there can be no escape from the position that the two systems, because they are both systems of legal rules, are interwoven parts of one legal structure. Dualists’ argument on the Primacy of Municipal Law lies on the claim that states enjoy the very widest liberties and exercise complete sovereignty, while Monoists say States sovereignty is conditioned by the limits International Law imposes.
Since, according to positivists theory, International Law and Municipal Law constitute two strictly separate and structurally different systems, the former can not impinge upon state law unless the latter, a logically different system, allows its constitutional machinery to be used for that purpose. (J G Strake supra, page 76).
In the cases of treaties, rules regarding transformation of treaty into state law, i.e. by legislative approval of the treaty, which is not merely a formal but a substantive requirement, alone vindicates the extension to individuals of the rules laid down in treaties.
While the US courts generally follow Monoist School, British courts draw a distinction between. i) Customary rules of International Law on the one hand and ii) the rules laid down by treaties, on the other.
So far as the treaties are concerned, British courts consistently and without ambiguity follow Dualism i.e, adoption theory, stubbornly in that they do not give effect to any treaty provision which has not been specifically adopted domestically by legislation. So far as rules of Customary International law are concerned, however, the scenario is inflicted with some obscurity engendered by divergent judicial views, finally suggesting that in case of conflict domestic law must prevail. (A. H. M. Shamsuddin Choudhury, J) …Government of Bangladesh =VS= Abdul Quader Molla, [8 LM (AD) 375] ....View Full Judgment

The principles governing the sentencing policy in our criminal jurisprudence have more or less been consistent. While awarding punishment, the Court is expected to keep in mind the facts and circumstances of the case, the legislative intent expressed in the statute in determining the appropriate punishment and the impact of the punishment awarded. Before awarding punishment a balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and mitigating circumstances. Considering the depraved and shameful manner in which the offence has been committed, the mitigating factor would not outweigh the aggravating factors. In this case, there was no provocation and the manner in which the crime was committed was brutal. It is the legal obligation of the Court to award a punishment that is just and fair by administering justice tempered with such mercy not only as the criminal may justly deserve but also the right of the victim of the crime to have the assailant appropriately punished is protected. It also needs to meet the society’s reasonable expectation from court for appropriate deterrent punishment conforming to the gravity of offence and consistent with the public abhorrence for the heinous offence committed by the convicts. …Dr. Miah Md. Mohiuddin & ors Vs. The State & ors, (Criminal), 17 SCOB [2023] AD 1 ....View Full Judgment

Performing duty as Judge–– While affirming the award of sentence of death, a person who used to work as Judge may not support the capital sentence but while performing his duty as Judge he is bound by law and fact. He is to decide the issue of awarding the sentence considering the gravity of the offence. While affirming this sentence as a Judge we must take into consideration the relevant laws, facts, evidence and situation of the relevant time. (Para-32); .....Ali Ahsan Muhammad Mujahid =VS= The Government of Bangladesh, [2 LM (AD) 65] ....View Full Judgment

Plea of alibi–– Mr. Khondker Mahbub Hossain, learned Counsel appearing on behalf of the appellant drew our attention to the issues of some newspapers dated 08.11.1971 , 11.11.1971, 23.11.1971, 8.12.1971 and 11.12.1971 and submitted that the appellant was in Dhaka and communication between Chittagong and Dhaka was in fact collapsed from the month of November 1971 to 16 December, 1971. Learned Counsel failed to show any evidence that the communication was totally disrupted at the relevant time and that all the ways of movement from Dhaka to Chittagong were disconnected. His submission is unacceptable in view of the documentary evidence published in “The Dainik Azadi” on 04.12.1971. Contents of which were: : “আজ পূর্ব পাকিস্তানের ইসলাম ছাত্রসংঘের সভাপতির চট্টগ্রামে আগমন ” বার্তা পরিবেশক, “ পাকিস্তান ইসলামী ছাত্র সংঘের পূর্ব পাকিস্তানের শাখার সভাপতি জনাব আলী আহসান মোহাম্মদ মুজাহীদের ৩ দিনের সফরে আজ ঢাকা থেকে আসিয়া পোঁছাবেন। এখানে অবস্থানকালে তিনি দলীয় কর্মীদের এবং রাজনৈতিক নেতৃবৃন্দদের সহিত দেশের বর্তমান পরিস্থিতি সম্পর্কে আলোচনা করবেন এবং সুধী সমাবেশে বক্তৃতা করিবেন বলিয়া এক প্রেস রিলিজে বলা হইয়াছে ” । From the aforesaid news item, the submission of Mr. Khandaker Mahbub Hossain is devoid of substance. It is quite natural that since the President of EP ICS went to Chittagong on 25.11.1971 after taking decision on 24.11.1971, the appellant, who was in Charge of Chittagong Division, ICS and former leader of Chittagong town unit, ICS and local commander of Al-Badar Bahini would go and stay in Chittagong between 19th November, 1971 and 15 December, 1971. So the alibi, plea taken by the appellant does not carry any force. (Paras-197 & 198); .....Mir Quasem Ali =VS= The Chief Prosecutor, ICT, Dhaka, [2 LM (AD) 364] ....View Full Judgment

Plea of alibi–– Mr. Khondker Mahbub Hossain, learned Counsel appearing on behalf of the appellant drew our attention to the issues of some newspapers dated 08.11.1971 , 11.11.1971, 23.11.1971, 8.12.1971 and 11.12.1971 and submitted that the appellant was in Dhaka and communication between Chittagong and Dhaka was in fact collapsed from the month of November 1971 to 16 December, 1971. Learned Counsel failed to show any evidence that the communication was totally disrupted at the relevant time and that all the ways of movement from Dhaka to Chittagong were disconnected. His submission is unacceptable in view of the documentary evidence published in “The Dainik Azadi” on 04.12.1971. Contents of which were: : “আজ পূর্ব পাকিস্তানের ইসলাম ছাত্রসংঘের সভাপতির চট্টগ্রামে আগমন ” বার্তা পরিবেশক, “ পাকিস্তান ইসলামী ছাত্র সংঘের পূর্ব পাকিস্তানের শাখার সভাপতি জনাব আলী আহসান মোহাম্মদ মুজাহীদের ৩ দিনের সফরে আজ ঢাকা থেকে আসিয়া পোঁছাবেন। এখানে অবস্থানকালে তিনি দলীয় কর্মীদের এবং রাজনৈতিক নেতৃবৃন্দদের সহিত দেশের বর্তমান পরিস্থিতি সম্পর্কে আলোচনা করবেন এবং সুধী সমাবেশে বক্তৃতা করিবেন বলিয়া এক প্রেস রিলিজে বলা হইয়াছে ” ।
From the aforesaid news item, the submission of Mr. Khandaker Mahbub Hossain is devoid of substance. It is quite natural that since the President of EP ICS went to Chittagong on 25.11.1971 after taking decision on 24.11.1971, the appellant, who was in Charge of Chittagong Division, ICS and former leader of Chittagong town unit, ICS and local commander of Al-Badar Bahini would go and stay in Chittagong between 19th November, 1971 and 15 December, 1971. So the alibi, plea taken by the appellant does not carry any force. (Paras-197 & 198); .....Mir Quasem Ali =VS= The Chief Prosecutor, ICT, Dhaka, [2 LM (AD) 364] ....View Full Judgment

Police Culture–– The “culture” of a police department reflects what that department believes in as an organization. These beliefs are reflected in the department’s recruiting and selection practices, policies and procedures, training and development, and ultimately, in the actions of its officers in law enforcement situations. Clearly, all police departments have a culture. The key question is whether that culture has been carefully developed or simply allowed to develop without benefit of thought or guidance. There are police agencies, for example, where police use of force is viewed as abnormal. Thus, when it is used, the event receives a great deal of administrative attention. Such a response reflects the culture of that department: the use of force is viewed and responded to as an atypical occurrence. Contrast such a department with one which does not view the use of force as abnormal. And, most importantly, the culture of the department is such that officers come to view the use of force as an acceptable way of resolving conflict. It is clear that the culture of a police department, to a large degree, determines the organization’s effectiveness. That culture determines the way officers view not only their role, but also the people they serve. The key concern is the nature of that culture and whether it reflects a system of beliefs conducive to the nonviolent resolution of conflict. It is also important to recognize that the culture of a police department, once established, is difficult to change. Organizational change within a police agency does not occur in a revolutionary fashion. Rather, it is evolutionary. .....Ministry of Law, Justice & Parl. Afrs. =VS= BLAST, [3 LM (AD) 274] ....View Full Judgment

Presumption of fact:–– A public servant while discharging public duty seizes any contraband goods or article from a person, it will be presumed that he has acted in accordance with law–– It is now settled that a public servant while discharging public duty seizes any contraband goods or article from a person, it will be presumed that he has acted in accordance with law. It is a presumption of fact. If the recovery and seizure are made in accordance with law, it is difficult to disbelieve the evidence of the seizing officer unless inherent infirmities are revealed in course of cross examination. Therefore, the onus lies upon the accused to show that no such arm was recovered from his possession. It is now settled that the non-examination of public witnesses is not a legal ground to disbelieve the prosecution case. This view has been taken on consideration of the present socio-economic condition and on the rise of criminal acts. Normally, the public witnesses are not willing to depose against the terrorist persons for fear of reprisal or other reasons. That will not disprove the recovery of arms. The High Court Division has totally ignored that aspect of the matter. The judgment of the High Court Division is set aside. The accused respondent shall get the benefit of section 35A of the Code of Criminal Procedure. .....The State =VS= Md. Ali Reza, [5 LM (AD) 247] ....View Full Judgment

There must be accountability for gruesome violations of our penal law:
We insist on accountability for gruesome violations of our penal law because that is how we defend the law and demonstrate our insistence on respect for the law going forward in a progressive legal system. If we fail to ensure accountability across the legal system by ending impunity, we risk undermining the very beneficial effects to which the nascent accountability drive that has built over the past decades. That is the final message we would wish to propel in adjudicating this significant criminal review. ...Md. Zahangir Alam & ors Vs. The State, (Criminal), 18 SCOB [2023] AD 45 ....View Full Judgment

Victims' Right–– Consideration of victims' rights now stand universally recognised. It is reckoned that the Court in sentencing an offender should not confine itself to the fundamental rights of the accused only, but must also take account of the victims' predicaments and rights. The Appellate Division is of view this concept is of particular importance in the context of the atrocities that were perpetrated during glorious war of liberation, as literally, the entire populace, save a handful of anti liberationists, were victims of those atrocities. .....Muhammad Kamaruzzaman =VS= Chief Prosecutor, International Crimes Tribunal, Dhaka, [4 LM (AD) 392] ....View Full Judgment

When presence of the witness at the place of occurrence is not challenged, his/her presence is deemed to be admitted: What is remarkable to mention here is that presence of Laboni at the place of occurrence at the relevant time has not been challenged by the defence in her crossexamination. Therefore, it is deemed to have been admitted by the defence that Laboni a child aged about 71⁄2 years was present at the time of occurrence. …Md. Abdul Haque Vs. The State, (Criminal), 15 SCOB [2021] AD 58 ....View Full Judgment

Absence of motive demands deeper forensic search of the evidence:
It is true that proof of motive is not necessary to sustain a conviction but when the prosecution puts forward a specific case as to motive for the crime, the evidence regarding the same has to be considered in order to judge the probabilities. Proof of motive satisfies the judicial mind about the likelihood of the authorship of the crime. In its absence, it demands deeper forensic search of the evidence. …Md. Humayun Kabir Vs. The State, (Criminal), 15 SCOB [2021] AD 76
Competency of a child witness to testify:
A child may be allowed to testify, if the court is satisfied that the child is capable of understanding the question put to him and give rational answers to the Court. Before examining a child as a witness the Court should know his intellectual capacity by putting a few simple and ordinary question to him and should also record a brief proceeding of the inquiry. …Md. Humayun Kabir Vs. The State, (Criminal), 15 SCOB [2021] AD 76
The evidentiary value of extra-judicial confession depends upon the veracity of the witnesses to whom it is made and the circumstances in which it is made:
It is the duty of the Court to look into the surrounding circumstances and to find whether the extra-judicial confession is not inspired by any improper or collateral consideration or circumvention of the law suggesting that it may not be true one. The evidentiary value of such statement depends upon the veracity of the witnesses to whom it is made and the circumstances in which it came to be made and actual word used by the accused. Such statement must pass the test of reproduction of exact words, the reason or motive of making such statement. …Md. Humayun Kabir Vs. The State, (Criminal), 15 SCOB [2021] AD 76
When accused is entitled to benefit of doubt:
Court’s decision must rest not upon suspicion but upon legal grounds establish by legal testimony. Mere suspicion, however, strong, cannot take the place of proof. It is well settled principle that where on the evidence two possibilities are open, one which goes in favour of prosecution and the other benefits the accused, the accused is entitled to the benefit of doubt. …Md. Humayun Kabir Vs. The State, (Criminal), 15 SCOB [2021] AD 76 ....View Full Judgment

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. …Dr. Miah Md. Mohiuddin & ors Vs. The State & ors, (Criminal), 17 SCOB [2023] AD 1 ....View Full Judgment