Capital Sentence: Bangladesh Perspective–
Bangladesh, like its neighbours and majority of the commonwealth members, retain capital punishment, though it is limited to capital offences only. Bangladesh general law, as it stands today, is slightly at variance with that in India in that a sentencing Court in Bangladesh must assign reasons whether it awards death sentence or the alternative sentence of imprisonment for life, while in India, only death sentences must be justified by special reasons.
General substantive legislation i.e. the Penal Code fixes the penalty that can be awarded, while the general procedural legislation i.e the Code of Criminal Procedure (henceforth Cr.P.C.) law down the procedure to be followed in sentencing a person convicted of an offence punishable under a penal provision of the Pena Code. Cr. P.C. does not lay down sentencing polices. However, section 367 (5) (as amended) provides that where the Court condemns a convict with death sentence or in the alternative awards imprisonment for life or for a tem of years, the Court shall state reasons for the sentence awarded. No sentencing section in the Penal Code specify any particular sentence. They do, instead specify the maximum sentence, often with alternative, whether custodial or not, and thereby equip the Court with a great deal of discretion.
As death sentence in Bangladesh under the Penal Code is not mandatory and alternative sentence of life imprisonment can, at the discretion of the Court, as discussed above, under the heading “sentencing principles in Bangladesh”, be awarded, only in appropriate cases of murder, where aggravating factors outweigh mitigating factors, such as provocation etc. are absent death sentences are passed at the Courts’ discretion. Our Courts apply general deterrence, retribution, commensurability, proportionality rationales, motive, personal circumstances of the convict. Antecedent facts leading to the commission of the offence, play decisive role in the determination of sentence. Thus the Appellate Division in Nowsher Ali – V- State (39 DLR (AD) 194) and Dipok Kumar Sarkar –V-State (40 DLR (AD) 139) commuted death sentence in wife killing cases because the couple’s union were not “blissful” and were rather “rancorous”.
Death sentences are however deemed appropriate when the convict act in cold blood without provocation, which are so heinous that arouse judicial indignation. Apart from the cases of murder, which are punishable under section 302 of the Penal Code, capital punishment can be awarded for gang rape, trafficking of children, women, for seriously injuring a child or a women by acid throwing under a special legislation called Women and Children Cruelty Act, 2013. While exercising their discretion, take account of all those factors as they take in sentencing a murderer under the Penal Code provisions. (Paras:1082-1087); .....Allama Delwar Hossain Sayedee =VS= Government of Bangladesh, (Criminal), 2017 (1)- [2 LM (AD) 76] ....View Full Judgment

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, (Criminal), 2017 (2)– [3 LM (AD) 513] ....View Full Judgment

Reasons for Capital Sentence (Muhammad Kamaruzzaman case)–
As professor Ashworth aptly stated, sentencing is the most difficult aspect in a criminal trial No doubt, sentencing capital offenders in a country that allows death sentence is all the more difficult and mind blowing.
Having gone through comparative sentencing policies in capital offences in various jurisdiction, it is my firm understanding that the trail that Indian higher judiciary follows, is the possible best one. It is based on the principle balancing and in doing so Indian judiciary peddle the normative that while life is precious and should not be taken away through judicial device in ordinary circumstances, there are cases when nothing short of death sentence is conducive. Indian Supreme Court by various decisions have laid down guide lines. Actually, the Indian legislative scheme requires the Courts to do the balancing in murder cases, which is such that while retaining death sentence, the scheme makes it the sentence of last, rather than of first, resort.
Although Indian Supreme Court ordain that capital punishment shall be awarded only in the rarest of the rare cases, instances of death sentence confirmation is, by no account , insignificant. Indian system is humane enough not to send all murderers to the gallows, yet resolute enough to award ultimate sentence if the offence appears to be too gruesome. Thus, when ordinary killers are spared of their necks socially repulsive felons are not.
In deciding on the sentence of this appellant, I, for myself, have given extensive thought about what would be conducive and proportionate.
As are done in most jurisdictions, I have taken into account the aggravating and, possible mitigating circumstance-have reminisced the impact the acts of this felon entailed during our Glorious War of Liberation, having, of course, regard to one of history’s worst ever genocide that took place in Bangladesh in 1971 which rocked the world.
I have scanned the his acts left behind on the surviving victims, families of murdered victims and, of course on the country as a whole, as I am required by the principle followed globally in sentencing.
I kept in mind what people with great endowment, reverence, wisdom and fully matured thoughts observed from time to time. I read with keen devotion and introspection the following observation of the universally acclaimed jurist, who specialise on crimes against humanity, Sir Geoffrey Robertson, QC who suggested application of retributive norm of sentencing for the offenders whose crimes touch the righteous people all over the world; “If the crimes of such individuals are the most heinous of all, because they touch not only the families of victims but decent people throughout the world, then some retribution is required”. (Geoffrey Robertson, Q.C. page 330 of his book Crimes Against Humanity, New Edition).
In affirming the capital sentence, I do echo the observation the Nuremberg Tribunal and the US prosecutor scripted, as quoted above.
We must not be over compassionate when sentencing a felon of the appellant’s type, but must think of the trail of horror his acts left behind for successive of generations. We must be firm enough to pass extreme sentence if that be proportionate to the gravity of the offence.
It is a pathetic episode of our history that such a human monster was allowed to escape the regiour of Justice for so many decades, for which blames fall squarely upon those who usurped power unconstitutionally for many years after killing the Founding Father of the Nation, Banga Bandhu Sheikh Mujibur Rahmanand and tried to put the clock back to pre 1971 state.
For all I Have stated above, I remain indubitably convinced that the interest of justice can only be met if this appellant is shown the gallow. (A. H. M. Shamsuddin Choudhury, J) …Muhammad Kamaruzzaman =VS= The Chief Prosecutor, ICT, Dhaka, (Criminal), 2019 (2) [7 LM (AD) 375] ....View Full Judgment