Relevant passages from some decisions pronounced by our Appellate and the High Court Divisions, which are reproduced below, do reveal that as in India, Pakistan, Sri Lanka and indeed most other countries, whether they follow common law or civil law, retribution and general deterrence rationale are more appropriate in awarding sentence to a person guilty of such felony as murder, rape, arson etc.
“The High Court Division on consideration of the evidence found that the petitioner had killed two victims without any provocation whatsoever and the killing was result of pre-meditation and that the petitioner who has taken two lives should give his own life and rejected the plea of commutation of death sentence to imprisonment for life on the ground that petitioner was in death cell for about 3 years” (18 BLD 605).
“On going through the materials on record and the impugned judgment, we find no illegality therein to interfere with the same. We also find no ground to commute the sentence as there is no extenuating circumstance for the same”.
(Mofazzal Hossain Pramanik-V- State, 6 BLC (AD) 96).
“In a case like the present where a number of persons inflict a large number of injuries with the intention of causing death so that each is contributing towards the death of the deceased, it is not necessary for the purpose of imposing the maximum penalty to determine who gave the fatal blow. In such a case all those accused to whom the Court attribute the intention of causing death in a brutal manner, should (in the absence of some other circumstance justifying the imposition of the lesser penalty) be awarded the maximum penalty. / (Fateh Khan and others –V – State, 15 DLR (SC) 5).
“There being no extenuating circumstance, the sentence of death imposed on the condemned convict by the learned Sessions Judge, Munshiganj, was the only sentence that could be imposed” (The State-V – Siddiqur Rahman, 2 BLC (HC) 145). Application of retributive rationale is clearly implied in this judgment.
In Abed Ali-V-State (42 DLR (AD) 171), the Appellate Division approved the following observation of the convicting Court; “He committed gruesome murder of 2 young men and attempt on third who however narrowly escaped. He is neither old, nor teenager and under circumstance I do not find any extenuating circumstance to save the accused from gallows. He came with a pre-determined and calculated intention to commit murder and with that end in view accosted the informant and his brothers who were unarmed and taken off / guard. We have nothing in the circumstance of the case and in the conduct of the accused to take a lenient view in the matter of the sentence inspite of our very best concur to temper Justice with mercy”.
This is yet another judgment which shows that retribution morale dominated minds of the Judges.
The following observation of the Appellate Division in the case of Dipok K Sarkar –V- State (40 DLR (AD) 139) also suggest that retributive rationale is to be followed but the principle of commensurability must be the basis; “It is not certainly our purpose to say, however, that killing of wife by husband is to be viewed by some other standard while considering the offence of murder, but as in all other cases the circumstances attending the crime have to be taken notice of for inflicting the proper punishment prescribed under the law”. (Paras: 931-933); .....Allama Delwar Hossain Sayedee =VS= Government of Bangladesh, (Criminal), 2017 (1)- [2 LM (AD) 76] ....View Full Judgment