Concise statement– Caveat was filed on behalf of the respondent, no concise statement has been filed by the respondent in the past more than 15 years since grant of leave by this Division. In such circumstances, in view of Order XIX, rule 3 of the Appellate Division Rules, the respondent is not entitled to be heard by this Division since no concise statement has been filed by him. ...Prabartak Shangha =VS= Mahmud Ali Khan,(Civil), 2020 [9 LM (AD) 679] ....View Full Judgment

Rule 13 of Order XXIII, rule 5 of Order XX of the Appellate Division’s Rules are applicable to criminal appeals, and there is no legal bar to convict them even if no leave was granted on this point–
The evidence on record proved beyond doubt that the killing was perpetrated in pursuance of a conspiracy and therefore, it is consonance to law and justice that the respondents should be awarded a legal conviction of an offence on the basis of the evidence on record. If a graver sentence is provided for murder in pursuance of conspiracy, the question of prejudice would have arisen. Here the respondents have not acquired any right against the acquittal on the charge of conspiracy. So, even without exercise of inherent power, this Division can alter the conviction of the respondents to one of murder in pursuance of the criminal conspiracy. The appellant has taken ground Nos.II and IV in its concise statement for convicting the accused on the charge of conspiracy. In view of rule 13 of Order XXIII, rule 5 of Order XX of the Appellate Division’s Rules are applicable to criminal appeals, and there is no legal bar to convict them even if no leave was granted on this point. This is a settled point and I need not make any observation on this question. In support of the charge, the prosecution has adduced evidence and the accused persons have defended the same. The trial court as well as the High Court Division discussed the evidence in support of this charge but disbelieved the charge on perfunctory grounds. Therefore, there is no legal bar to convict the respondents on the basis of the evidence on record.... (Surendra Kumar Sinha, J) (Minority view). .....State =VS= Dafader Marfoth Ali Shah & ors, (Criminal), 2018 (1) [4 LM (AD) 430] ....View Full Judgment

The evidence on record proved beyond doubt that the killing was perpetrated in pursuance of a conspiracy and therefore, it is consonance to law and justice that the respondents should be awarded a legal conviction of an offence on the basis of the evidence on record. If a graver sentence is provided for murder in pursuance of conspiracy, the question of prejudice would have arisen. Here the respondents have not acquired any right against the acquittal on the charge of conspiracy. So, even without exercise of inherent power, this Division can alter the conviction of the respondents to one of murder in pursuance of the criminal conspiracy. The appellant has taken ground Nos.II and IV in its concise statement for convicting the accused on the charge of conspiracy. In view of rule 13 of Order XXIII, rule 5 of Order XX of the Appellate Division’s Rules are applicable to criminal appeals, and there is no legal bar to convict them even if no leave was granted on this point. This is a settled point and I need not make any observation on this question. In support of the charge, the prosecution has adduced evidence and the accused persons have defended the same. The trial court as well as the High Court Division discussed the evidence in support of this charge but disbelieved the charge on perfunctory grounds. Therefore, there is no legal bar to convict the respondents on the basis of the evidence on record. (Surendra Kumar Sinha, J) (Minority view) …State Vs. Dafader Marfoth Ali Shah & ors, (Criminal), 5 SCOB [2015] AD 1 ....View Full Judgment

Bangladesh Service Rules, Part-1
Rule 42
Bengal Statue 1781, Bengal Regulation No.1793, Act of 1964, Act of 1865, Act of 1871, Act of 1877 and Act 16 of 1908, Act of 1964
Service (Reorganization and Condition) Act, 1975
Constitution of Bangladesh, 1972
Article 102, 105
Supreme Court of Bangladesh (Appellate Division) Rules, 1988
Order XXVI
Code of Civil Procedure, 1908
Order XLVII, rule 1
Extra Mohorars— Writ-petitioners are entitled to united grades and pay of scale, equal pay and other benefits of service— The respondents-writ-petitioners invoked writ jurisdiction under Article 102 of the Constitution to protect their rights as Government employees and against hostile and discriminatory action of the appellant-writ respondents as such writ petition is very much maintainable. .....Ministry of Law, Bangladesh =VS= Abdur Rahman Bhuiyan, (Civil), 2024(1) [16 LM (AD) 35] ....View Full Judgment

The appellants have failed to make out any case calling for the review prayed for as none of the ingredients as spelt out in Order XLVII, rule 1 of the Code of Civil Procedure or Order XXVI, rule 1 of the Appellate Division Rules is present in this case to lay our hands to review the impugned judgment. In the instant case, there is no reasonable ground to justify the action of the respondent on the doctrine of necessity since the impuged order of detention of the respondent was made, according to the appellants, with the apprehension that somebody else (the students community threatening to move to Sena Bhaban) may endanger public order due to some utterances of the detenu and, as such, this Court in the impugned judgment found the order of detention to have been passed without lawful authority. The plea of doctrine of necessity is not warranted in the facts and circumstances. Bangladesh vs Mostafizur Rahman 12 BLC (AD) 193.

Order XXVI rule I—(Per Justice Md Abdul Matin) :
In view of Article 105 of the Constitution read with review rules as per Supreme Court of Bangladesh, Appellate Division Rules, 1988 in Order XXVI, rule I interference can be made only on the ground of an error apparent on the face of the record. The scope of interference is very limited. Nonetheless, since in the instant case the error is apparent on the face of the record and in that view of the matter to limit the relief to reduction of sentence only is not enough.
The appellants enjoyed their freedom from 9-4-1996 when they were acquitted by the High Court Division and then they are released as per leave granting order dated 3-11-1996 and, therefore, ends of justice will be met if the two appellants are given the full relief by allowing the appeals as a whole maintaining the judgment of the High Court Division insofar as the appellants are concerned. Therefore, the appeals are allowed. Accordingly, the appellants are acquitted Order of the Court These appeals are allowed by majority judgment. The perod of sentence is reduced to 3 (three) years from 7(seven) years. The appellants are directed to surrender to serve out the sentence, if not already served out. Khandker Zillul Bari vs State 13 BLC (AD) 97.

Review– Removing unauthorized constructions from the periphery of Lalbagh Fort–
Learned counsel appearing for the respondents submits that the respondents are ready to vacate the houses if they are paid sufficient compensation. Learned Attorney General was present at the hearing of the matter. Learned Attorney General finds it difficult to refute the claim of the respondents. Upon consideration of the facts and circumstances of the matter, we assess Tk.40,00,000/- (forty lacs) as compensation to be paid to the owners who are found to be in possession of the houses. We direct the Archeology Department to pay Tk.40,00,000/- (forty lacs) to the owners jointly within three months from the date receipt of the order and the owners shall apportion the said amount according to the area they are in possession. We direct the Archeology Department to evict the respondents on payment of such compensation forthwith. .....Adv. Manzill Murshid =VS= Haji Md. Abdul Hashem, (Civil), 2018 (1) [4 LM (AD) 31] ....View Full Judgment

Review– In a review petition there is no scope for rehearing–Prayer for plaint amendment was regularly allowed or not, which it the High Court Division duly answered that we do not find this brings any change in the plaint–
The finding of the High Court Division to the effect that “we do not find this brings any change in the plaint inasmuch as in the original plaint also. In the civil petition the only issue raised was as to whether the prayer for amendment was regularly allowed or not, which it appears the High Court Division duly answered. Further the grounds as raised by the learned counsel of the petitioner may be agitated at the time of hearing of the suit. In a review petition there is no scope for rehearing. The review petition is dismissed. .....S.K. Khalilur Rahman =VS= Mrs. Meherun Nesa, (Civil), 2018 (1) [4 LM (AD) 340] ....View Full Judgment

Review–
From the judgement sought to be reviewed that the points raised in the review petition were argued and dealt with by this Division. Hence we do not find any error apparent on the face of the record. We do not find any error in the judgement of this Division, and accordingly, we find no merit in the instant review petition, which is accordingly dismissed. .....Shah Alam(Md.) =VS= Gomati Water Development Division, (Civil), 2018 (2) [5 LM (AD) 195] ....View Full Judgment

Review–
A Division Bench of the High Court Division hearing the criminal miscellaneous case by judgment and order dated 17.02.2009 made the Rule absolute and quashed the proceedings of Violation Miscellaneous Case No.234 of 2008 arising out of B.L.L. Case No.335 of 2008 pending before the First Labour Court, Dhaka. Against the judgment and order of the High Court Division, the petitioner filed Criminal Petition for Leave to Appeal No.233 of 2009 before this Division. This Division on hearing the leave petition by judgment and order dated 8th December, 2009 dismissed the leave petition, against which the instant review petition has been filed. In the review petition, the petitioner has failed to show that the view taken by this Division endorsing the view of the High Court Division was the result of an error apparent on the face of the record warranting review of the same as provided in Order XXVI, rule 1 of the Supreme Court of Bangladesh (Appellate Division) Rules, 1988. It further appears that the grounds taken in the review petition were also taken in the leave petition but those not being relevant were not considered. The review petition accordingly, the same is dismissed. .....Nur-e-Alam =VS= Grameen Phone Limited, (Criminal), 2018 (1) [4 LM (AD) 425] ....View Full Judgment

The procedures provided in Order XXVI rules 1-6 of the Appellate Division Rules, which are not inconsistent with the Act and the Rules, would guide the procedure and practice of the Appellate Division for disposal of a review petition, that is to say, a review in a criminal matter can be made on the ground of an error apparent on the face of the record. .....Muhammad Kamaruzzaman =VS= Chief Prosecutor, International Crimes Tribunal, Dhaka, (Criminal), 2018 (1) [4 LM (AD) 392] ....View Full Judgment

Review– Where the error is so apparent and patent that review is necessary to avoid miscarriage of justice–
We reiterated that a review cannot be equated with an appeal. It does not confer a right in any way to a litigant. The Appellate Division unequivocally expressed that it is now well settled that a review of an earlier order is not permissible unless the Court is satisfied that material error, manifest on the face of the order, undermines it's soundness or results in miscarriage of justice. The Appellate Division observed that a review of judgment is a serious step and the Courts are reluctant to invoke their power except where a glaring omission or patent mistake or grave error have crept in earlier by judicial fallibility. Power of review is not an inherent power - it must be conferred by law either specifically or by necessary implication and that despite there being no provision in the Act or the Rules for review from the judgment of the Appellate Division on appeal, by fiction of law a review is maintainable from the judgment of the Appellate Division subject to the condition that where the error is so apparent and patent that review is necessary to avoid miscarriage of justice. .....Muhammad Kamaruzzaman =VS= Chief Prosecutor, International Crimes Tribunal, Dhaka, (Criminal), 2018 (1) [4 LM (AD) 392] ....View Full Judgment

The Constitution of Bangladesh, 1972
Article 105 and
Supreme Court of Bangladesh (Appellate Division) Rules, 1988
Order XXVI
The Penal Code, 1860
Sections 302/34 or 302/109
It is established principle of law that a judgment of the apex Court is final on both questions of law and of fact. It is precedent for itself and for all the Courts subordinate to it and the finality of the judgment cannot be impinged on. In the case in hand leave was granted in Review Petitions and thereafter criminal appeals were filed which are now under consideration in the instant judgment. As per provision of Article 105 of the Constitution of the People’s Republic of Bangladesh and Order XXVI of the Supreme Court of Bangladesh (Appellate Division) Rules, 1988 this Division is competent enough to reconsider or interfere with its earlier decision to prevent abuse of its process and to cure gross miscarriage of justice. ––The trial Court as well as the High Court Division and this Division by majority committed illegality misreading the evidence. In view of the reasons stated hereinabove, Appellate Division is of the view that the judgment and order dated 10.09.2014 passed by this Division with majority view dismissing the appeals and thereby convicting the accused-appellants was not justified and, therefore, the same is reviewed and all the criminal appeals arose from the Criminal Review Petitions No.68, 73,74 and 89 of 2017are allowed. .....Shamsu Habib alias Biddut =VS= The State, (Criminal), 2023(1) [14 LM (AD) 422] ....View Full Judgment

Constitution of Bangladesh
Article 105 and
Supreme Court of Bangladesh (Appellate Division) Rules, 1988
Rule 1 of Order XXVI
The core question for consideration is whether there is error apparent on the face of the record which calls for interference of the impugned judgment. It is an established jurisprudence that a review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only against patent error of law. Where without any elaborate argument one could point to the error and say that here is a substantial point of law which stares one in the face, and there could reasonably be no two opinions to be entertained about it, a clear case of error apparent on the face of the record would be made out. It is only a clerical mistake or mistake apparent on the face of the record that can be corrected but does not include the correction of any erroneous view of law taken by the Court. ...Md. Zahangir Alam & ors Vs. The State, (Criminal), 18 SCOB [2023] AD 45 ....View Full Judgment

The Penal Code, 1860
Section 302/201/34
Supreme Court of Bangladesh (Appellate Division) Rules, 1988
Rule 1 of Order XXVI (Part IV)
A review cannot be granted to urge fresh grounds when the judgment itself does not reveal an error apparent on the face of the record–– The nature of the offence it appears to us that the petitioner is in no way entitled to get any sympathy. Appellate Division does 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. ––This Division is of the view that there is hardly any scope of rehearing of the matter afresh as a court of appeal in a review petition. Further in the instant petition the learned counsel fails to point out any error in the judgment apparent on the face of the record. Therefore, all the review petitions merit no consideration and accordingly those are dismissed. .....Zahangir Alam(Md.) =VS= The State, (Criminal), 2023(1) [14 LM (AD) 607] ....View Full Judgment

Violation of status quo order passed by Appellate Division.
The Appellate Division found that the contemner-respondent Mahfuzul Huq, Director, Equity Property Management (Pvt.) Ltd. guilty of contempt of this court and sentence him to suffer simple imprisonment for 1(one) month.
Faiz Ahmed @ Syed Ahmed and others -Vs.- Mahfuzul Huq, (Civil) 11 ALR (AD) 29-32

Contempt of Court–
The contemner-respondent has not denied having transferred the 29 flats after the order of status quo dated 14.03.2010 as alleged by the petitioners. So, it appears that the contemner-respondent has transferred as many as 29 flats constructed on the land in question in gross violation of the order of this Court dated 14.03.2010. By this act of violation of this court’s order the contemner-respondent has committed contempt of court. The contemner-respondent has showed gross disrespect to this court-the highest court of the country by violating its order which- cannot be and should not be overlooked or taken leniently. The contemner-respondent is directed to surrender before the central jail, Dhaka immediately to serve out the sentence and the superintendent of central jail is directed to receive and keep the contemner-respondent Mahfuzul Huq in jail to serve out his sentence. The Registrar of this Court is directed to issue warrant of commitment and detention of the contemner-respondent in jail as per Order XXVII Rule 13 of the Supreme Court of Bangladesh (Appellate Division) Rules, 1988. .....Faiz Ahmed =VS= Mahfuzul Huq, (Civil), 2018 (2) [5 LM (AD) 383] ....View Full Judgment